Kennebec County Sheriff’s Office and the Augusta Police Department have been working collaboratively by combining resources such as our Special Response Team. This pic was taken recently by staff at the Kennebec Journal as the two teams trained together for tactical approaches and tactical entries. Lookin’ sharp, guys!
I just did my first segment on HuffPost, along with one-time Agitator guest blogger Alyona Minkovski and friend-of-the-Agitator Jack Cole, one of the co-founders of Law Enforcement Against Prohibition.
Gibson’s agreement to pay $350,000 to settle with the Department of Justice over alleged Lacey Act violations prompted a flood of press releases from environmental groups, lawmakers, and U.S. wood manufacturers. In unison, they hailed the settlement as a win for the world’s forests, a blow against slave labor, a victory for American jobs, and a triumph of diligent law enforcement. The actual settlement agreement, jointly signed by Justice officials and the Gibson legal team, paints a far different picture. Presenting a set of facts both sides agree on, it depicts overzealous and poorly informed enforcement officials in hot pursuit of a company that was trying in good faith to comply with contradictory foreign statutes. It also inadvertently sums up all that is wrong with the Lacey Act provision that holds U.S. firms criminally liable for violations of foreign laws.
Suspecting a Lacey violation, in 2009, the Environmental Crimes unit of the Justice Department, aided by the FBI and Fish and Wildlife Service, raided Gibson’s Nashville factory and seized pallets of ebony fingerboard blanks that had been imported from Madagascar. In 2006, Madagascar had banned the export of unfinished ebony, and two years later had prohibited the export of all ebony, so the DOJ felt they had a strong case. On a closer reading of the statutes, however, their case started to unravel. The order banning “unfinished” ebony contained a provision specifically permitting the export of guitar fingerboards. While it didn’t make a clear distinction between fingerboard blanks, and partially finished and fully finished, fretted fingerboards, does the global environment truly hang on whether a piece of ebony has a fret slot?
Upon banning ebony exports in 2008, the Madagascar government simultaneously issued licenses permitting select forest operators to legally ship wood that had been cut previously. The DOJ acknowledges that Gibson’s ebony came from a logger who had obtained one of the coveted export licenses. Documents seized during the raid also showed that Gibson had acquired the wood from a Forest Stewardship Council certified broker, who had provided ample assurances that it was in compliance with all relevant statutes. DOJ said that these circumstances partially exonerated Gibson, but that an internally circulated email from a company wood buyer stating “Proving legality is a major problem,” somehow showed criminal intent.
While they were sorting through the complexities of Madagascar law, in 2011 the DOJ raided Gibson again, seizing Indian rosewood fingerboard blanks from plants in Memphis and Nashville. This time, they charged that the wood was “unprocessed” under Indian law and unlawful to export, because it was several millimeters too thick. The Indian Foreign Trade office, along with several local industry groups, pushed back immediately and said that the DOJ had completely misread the law, noting that millions of similar fingerboards had been exported without issue over the past three decades to guitar makers around the world.
Proven wong on a factual point, the DOJ returned the seized rosewood and gave Gibson the green light to continue importing it as they had in the past. To save face, they sheepishly noted that if India ever changes its laws to prohibit such export, and Gibson fails to act accordingly, another raid may be in the works.
So three years and two armed raids later, the Justice Department admitted that Gibson did nothing wrong in importing Indian rosewood. Ambiguously drafted statutes make the Madagascar case less clear cut, but the best the presiding Assistant Attorney General can say is that the guitar maker “may have” violated some foreign statutes. This “may have” cost Gibson $350,000 in fines, the loss of wood valued at $261,000, and $2.4 million in legal fees. Not to mention the costs associated with disruptions in production, and having a reputation tarred by a government agency.
The biggest argument against the amended Lacey Act is that it holds U.S. companies liable for violations of the laws of all the world’s 200 countries. But if the U.S. Department of Justice, with its virtually unlimited resources, has a demonstrated problem grasping the nuance of foreign law, is it fair to hold private enterprises like Gibson to a higher standard? Furthermore, should arguments over the fine points of Madagascar law be elevated to criminal status? Gibson CEO Henry Juszkiewicz rightly calls his company’s legal odyssey “a matter that could have been addressed with a simple contact by a caring human being representing the government. Instead, the Government used violent and hostile means with the full force of the U.S. government and several armed law enforcement agencies costing the taxpayer millions of dollars.”
But what’s worst about this case is how an unlikely coalition of environmental groups, U.S. wood manufacturers (whose wood consumption dwarfs the music industry), and the Department of Justice can transform the use of raw coercion on flimsy legal grounds into some kind of a victory. For anyone who thinks our assessment is overly harsh, we suggest they go to Gibson’s website, where they can read the Department of Justice Settlement for themselves. There is no argument against proper stewardship of finite wood resources. However, there is something wrong with abandoning basic concepts of due process and proportionality, and creating scapegoats in the name of a worthy cause.
The Department of Defense Criminal Investigation Service now has the ability to use federal asset forfeiture and “Equitable Sharing” provisions to seize and forfeit property:
In order to gain sharper teeth in its investigations and prosecutions, DCIS added something more to its arsenal in 2007. A Memorandum of Understanding outlining basic functions and guidelines of DCIS’s participation in the DOJ’s Asset Forfeiture Program was formalized on May 25, 2007. Before this MOU became official, DCIS could only seek civil judgments and settlements for large sums of money as some form of financial punishment.
Assets being sought for forfeiture by DCIS are entered into DOJ’s Consolidated Asset Tracking System (CATS). DOJ’s CATS system, a controlled DOJ database, tracks assets through the forfeiture process and gives the Attorney General a good picture of what assets are being forfeited, in what amounts, from whom, and by what investigative agency. CATS, however, is only as accurate as the end user or data entry specialist who inputs the information at the local level. If assets are being forfeited but are not entered into CATS, DOJ has no other way to know what assets are being forfeited by each investigative agency. As the forfeiture partnership progresses, CATS should provide an accurate reflection of the assets being forfeited by DCIS.
Another aspect of the DOD/DOJ MOU is that the United States Marshal’s Service (USMS) will be the custodian of all assets seized when DCIS is the lead investigative agency. This is common practice for other DOJ criminal investigative agencies such as the DEA, FBI, and some non-DOJ participating investigating agencies such as the United States Postal Inspection Service (USPIS).
Part of the rationale for establishing DCIS as a participating agency in the DOJ Asset Forfeiture Program, specifically the Assets Forfeiture Fund, are the two DCIS capabilities that were not available before 2007. As previously described, DCIS now has the ability to take [*204] the profit out of crime affecting DOD and its sub-agencies. Additionally, the MOU gives DCIS the ability to receive equitable sharing funds directly from the DOJ Assets Forfeiture Fund. Equitable sharing is available to DCIS if it was not the lead investigative agency seeking forfeiture on a case but contributed to the investigation. The MOU establishes that DCIS can not only seek equitable sharing from DOJ criminal investigative agencies, but also investigative agencies that participate in the Treasury Fund and Postal Fund. An example of this would be when IRS Criminal Investigations is the lead agency on a forfeiture case that DCIS substantially assisted. Funds shared and received must be used in accordance with 28 U.S.C. § 524(c), the Attorney General’s Guidelines on Seized and Forfeited Property (July 1990), and DOJ’s policies.
Interesting legal twist:
Unique problems may exist when the federal government seeks to civilly forfeit assets from active duty personnel and national guardsman or reservists called to active duty under Title 10 of the United States Code. Under the Servicemembers’ Civil Relief Act of 2003 (SCRA), service members have certain protections against default judgments being entered against them. While the language of the statute states that the act “applies to any civil action or proceeding in which the defendant does not make an appearance,” it is unclear if this protection applies specifically to civil forfeiture actions. In order to comply with the statute, a plaintiff must provide an affidavit to the court stating whether or not the defendant is in military service or showing that the plaintiff is unable to determine whether or not the defendant is in military service. Due to the in rem nature of civil forfeiture actions, the defendant is the asset itself, and thus will never be in military service within the meaning of the SCRA. Any property subject to a civil forfeiture action cannot defend itself against a default judgment unless a third party intervenes and files a claim to the property. Therefore, in the case that a service member is the owner of assets being sought in civil forfeiture, the service member is not the defendant in the action, but rather the claimant if he or she files a timely claim to the subject property. No precedent exists on the SCRA’s prevention of default judgment in federal civil judicial forfeiture actions. Historically, the SCRA’s language was intended to prevent the entry of default judgments against service members who were named parties to common place civil actions such as tort actions, small claims lawsuits, copyright [*208] infringement, civil rights lawsuits, bankruptcies, debt and foreclosure actions, divorces, or any child custody proceeding.
As previously discussed, assets are entered into the DOJ CATS system for tracking purposes by the lead investigative agency in a forfeiture case. In 2008, DCIS judicially forfeited over $ 238,000 in assets coming from Virginia, Texas, and Pennsylvania. Currently in CATS, n65 DCIS is seeking forfeiture of over $ 10.5 million in assets ranging from televisions, jewelry, gold coins, computer equipment, cash, bank accounts, vehicles, watercraft, real property, stock shares, and other items. Because federal asset forfeiture is still new for DCIS, not all states have active DCIS judicial forfeiture cases pending. But many states and districts are quickly joining with DCIS as a viable and strategic partner in combating crime and punishing criminal activities within the DOD.
This is all from the article “Federal Asset Forfeiture and the Military”, in the 2009 Air Force Law Review, authored by Staff Sergeant Steven Morley.
Police in Louisiana break into home during nighttime raid, terrify two women and eight children. They promised to return to fix the door, but as of Friday, had yet to do so.
Police in St. Paul, Minnesota bust in on a family, kill the dog, ransack the house, handcuff three children at gunpoint, and force them to sit next to the corpse of their former pet. They had the wrong house. They still found a gun in the basement, which was apparently illegal under Minnesota law. The head of the family was arrested, and is still in jail.
The same Baltimore cop who killed Cheryl Lynn Noel recently killed a man wielding a sword during a forced-entry raid. That man also wasn’t the suspect police were looking for. The article points out that thanks to the law Cheye Calvo helped pass in Maryland, we know that there are 1,600 SWAT raids each year in the state, most of them search warrants for drug offenses. None of the state officials interviewed seem to have a problem with this.
The Sikh temple shooting in Wisconsin is a good reminder that though these mass shootings are often put forth as the reason why we need SWAT teams, the SWAT guys generally don’t arrive until after the shooting stops. That said, while we regularly criticize aggressive police tactics and point out the reality that the job isn’t nearly as dangerous as it’s often portrayed, there are of course times when it is quite dangerous. So let’s acknowledge the heroism of Lt. Brian Murphy, the cop who took eight bullets while trying to give aid to the other victims.
When Chicago police broke into his Austin home with guns drawn and a search warrant, Markee Cooper Sr. . . . and his family could only look on as drawers and closets were searched for crack cocaine based on an alleged informant’s tip.
On Friday, a federal jury awarded Cooper and his family $565,000 in damages after finding one officer at fault for a falsified warrant and two others responsible for the illegal 2007 search.
[Cooper] and his wife testified at the trial that their two young sons, Markee Jr., 13, and Zion, 8, were traumatized at seeing their father confront a roomful of cops with guns before kneeling to the living room floor and handing over his badge and weapon.
“It’s a horrible experience for a child to see or even think about,” Cooper’s wife, Sherita, said after the verdict was announced. “I’m just glad that justice was served.”
The city of Chicago will have to pay $450,000 in compensatory damages awarded by the seven-woman, three-man jury, said Cooper’s attorney, Brendan Shiller. The jury also assessed punitive damages against three of five officers — money they will be responsible for paying, Shiller said.
Officer Sean Dailey, who testified that he secured the warrant based on information from an informant named “Lamar” who told him crack was being sold out of the second-floor apartment in the Cooper’s building, was assessed by far the most — $100,000. Sgt. Salvatore Reina was found liable for $10,000 and former Lt. Dennis Ross for $5,000.
Cooper’s legal team argued that Dailey either made up the informant or was reckless by making no effort to try to verify the tip. They pointed to the sketchy information Dailey initially had about Lamar’s background — no last name, phone number or address.
“I think this verdict shows that the informant didn’t exist, and he made it up,” Shiller said of Dailey. “And if he made up an informant, the city needs a better policy to prevent this from happening again.”
The officers’ attorneys argued that Dailey played by the rules, informing the Cook County state’s attorney’s office before going to a judge for the warrant. Dailey testified that the same informant had given him three previous tips that led to criminal charges. That the information turned out to be bad was not intentional, the defense argued.
“That’s called, ‘I ain’t perfect,'” Mitchell said during closing arguments Thursday. “Was it serious? Yes. Was it malicious? No.” . . .
[Cooper] testified at trial that he thought he was the victim of a home invasion when he first heard someone breaking into his residence, only to find about a dozen plainclothes officers with guns drawn.
It’s really rare to get any damages for a wrong-door raid, much less to see punitive damages assessed to the officers involved. Qualified immunity is a pretty high hurdle. and juries tend to be sympathetic to cops.
But Cooper’s description of the terrifying raid, and his first thought that he was being invaded by criminal intruders, seemed to have some resonance with this particular jury. Before you click over, see if you can guess what Cooper does for a living.
Which reminded me of today’s “happy” story in the NY Post about a young man who’d been given a $100 ticket for riding his unicycle on a Brooklyn sidewalk — even though he offered to show the cop a government web site on his iPhone that stated it is NOT a crime. The cop didn’t care. Worse — when he got to court, at first the judge refused to listen to him.
[Judge] Delury also warned him not to ride his bicycle on the sidewalk again “or I’ll put you in Rikers.”
Isn’t that a little FLIP? A high school student rides a unicycle on the sidewalk (incidentally NOT breaking the law) and the next thing you know a judge is threatening to send him to JAIL?
Eventually the judge backed down — but only after the kid had the guts to request a second appearance in front of him to ask for a jury trial. By then the judge had finally DEIGNED to read the ACTUAL LAW. He then declared the issue “dismissed.”
What a lucky break! The kid is not going to do hard time for not breaking a law! – L
This should be a very familiar topic for Agitators:
This paper develops the political economy of the militarization of domestic policing. We analyze the mechanisms through which the “protective state” — where the government utilizes its monopoly on force to protect citizens’ rights — devolves into a “predatory state” which undermines the rights of the populace. We apply our theory to the U.S., where we trace the (failed) historical attempts to establish constraints to separate the military functions and policing functions of government. In doing so we emphasize the role of crises in the form of perpetual wars — the “War on Drugs” and the “War on Terror” — in the accelerated militarization of domestic policing.
This is from Coyne and Hall at the economics department of George Mason University. SSRN here.
Here’s a photo of part of the police response to the protests in Anaheim today. As many times as I’ve seen and written about images like this one, I still find them startling. It just isn’t the sort of thing you’re supposed to see in a free society.
The heavy-handedness is Anaheim is particularly poignant when you consider that the protests themselves are in response to a rash of shootings by Anaheim cops, most notably Manuel Diaz last week, who was unarmed and shot twice. According to an attorney for the family, the second shot was to the back of the head as Diaz lay on the ground.
The punchline here is that after the police shoot Diaz, after they fire rubber bullets and pepper balls at protesters last week, after they call out the urban warfare unit this afternoon . . . everyone is calling on the protesters to remain peaceful.
I give you two police department recruiting videos. The first is from Decatur, Georgia. The second is from Newport Beach, California. These are the videos each respective department has chosen to represent what being a cop is all about. They’re the videos each department feels will appeal to candidates with the characteristics and traits that make for a good police officer.
Let’s assume two generic towns that are otherwise mostly similar. One town takes a Newport Beach approach to policing. The other takes a Decatur approach. In which town would you rather live?
At the New York Times, Ted Conover has written an amazing profile of Alex White, the longtime Atlanta drug informant who refused to help the cops cover up the murder of Kathryn Johnston. Add it to your long reads folder. It’s well worth your time.
I followed that case closely, so if you were reading this blog back in 2006, you’re probably familiar with the general course of events. But several things about the article struck me. First, for all the danger informants face from the people they give away, White was most afraid of the police officers he dealt with day to day, even before he turned on them after the Johnston raid.
The leader of the team of officers that he worked with most often, Gregg Junnier (pronounced “junior”), apparently set the tone. White said suspects would sometimes make the mistake of talking trash once handcuffed. Junnier would then slam them against a car or grab them on both sides of the mouth, supposedly to keep them from swallowing drugs. White remembers the time another officer he worked with had a suspect handcuffed and on his stomach; when the suspect began insulting him, White said, the policeman “kicked him in the mouth,” which made even his fellow officers flinch.
“One day Junnier come into my apartment,” White told me, “started throwing stuff around. He say, ‘Where’s the money?’ He knew I’d made some that week. He going through my dresser. He took $4,000. Junnier rough. He very, very rough.” White just accepted the situation. He was not a partner but merely a sub rosa subcontractor, a fact Junnier frequently reminded him of.
Junnier’s team drove around in a black Ford van with darkened windows that became notorious — Darth Vader’s own ride. “Everybody know that van,” White told me. Junnier also drove his own S.U.V., and one day he handed White, in the passenger seat, an envelope full of pictures.
“He show me this Jamaican guy,” White said. “Except only his head, on a fence. It had dreadlocks on top and veins below where it got ripped off. Junnier say he fell between buildings during a chase.” White said he felt he was shown the photo as a kind of warning.
Second, we learned from the FBI investigation that the sort of police thuggery apparent in the Johnston case was common and longstanding in Atlanta, which White confirms in describing his own interactions with the city’s narcotics cops. The lying, brutality, and corruption had been going on for years. Yet a local civil rights leader told Conover, and a local police official seemed to confirm, that the Johnston case was the first time a white police officer in Atlanta had ever been charged with violating the rights of a black person.
And there’s a good chance even those officers would never have been charged if not for Alex White. This wasn’t a few rogue cops. This was systemic.
Third, after all this died down, White was convicted of selling “a couple ounces” of marijuana to an undercover police officer in an Atlanta suburb. His sentence? Up to eight years in prison. The police officers who pressured an informant for a tip with threats of false drug charges, lied on a search warrant, gunned down a 93-year-old woman, left her to bleed on her own living room floor while planting drugs in her basement to cover up their mistake, then conspired to cover it all up by pressuring and threatening another informant to lie for them? They were sentenced to 5, 6, and 10 years, respectively.
Finally, Conover points out that one of the reforms the city put in place after the Johnston raid was a civilian review board to provide some police oversight. As of November of last year, less than five years after the raid, here’s how that was working out:
Cris Beamud came from Eugene, Oregon to Atlanta to found and run the Citizen Review Board after city ordnance established the police oversight panel in 2007.
The CRB came into being as a response to a botched drug raid that ended with the police killing of 92-year old Kathryn Johnston.
Beamud tells WABE she’s resigning out of frustration with city and police leaders who often ignore the board’s findings and recommendations.
“We’re constantly being faced with dismissals and rejections of recommendations that we believe, and I believe personally, would improve the quality of public safety services in the City of Atlanta,” she says.
Beamud points to the recent police fondling case, and the ongoing Atlanta Eagle raid. Before an outside investigation found police misconduct during the 2009 raid on the Midtown gay bar, the CRB had issued a report saying the same thing.
“You continue to beat your head against the wall, and then you decide that you’ve had enough,” she says.
Joy Morrissey, who chairs the CRB, says Atlantans are losing a valuable ally.
“Cris has been a police officer, a prosecutor, a police legal adviser, an assistant D.A., and yet [the mayor and police chief] don’t listen to her,” Morrissey says, adding that Beamud has established civilian oversight before coming to Atlanta.
“She produces very good reports – well reasoned reports – and the results have been maligned, ignored, criticized,” Morrissey says.