Ninth Circuit Imposes (Some) Limits On Cops Yanking Things Out of Your Ass

Mark Tyrell Fowlkes had a bad day.

For you or me, that means realizing that there's no credit left on our Starbucks card or our co-workers being annoying or getting a flat tire. For Fowlkes, it meant the Long Beach Police Department forcibly pulling something out of his ass.

LBPD, assisted by the DEA, were wiretapping and surveilling Fowlkes to see if he was dealing drugs. He was. LBPD arrested him once, caught him with drugs and a gun, and released him, probably to see where he'd lead them. A week later, they ran a pretextual traffic stop on him, arrested him, and took him to jail. There they strip-searched him:

Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and “assistance” in the form of additional officers because he thought Fowlkes might have drugs.

Officers believed that Fowlkes was not being cooperative displaying his anus and thought he was trying to push something in there. One Sergeant testified that he believed Fowlkes was trying to force an object further into his anus in order to destroy evidence. That's not how anuses work. That's not how any of this works. But to prevent Fowlkes from further hiding or destroying something in his anus, Sargeant Michael Gibbs “delivered a drive stun tase to the center portion of the defendant’s back” and the officers handcuffed him. Officers claim they could see a plastic bag protruding from Fowlkes. With Fowlkes cuffed, tased, and under the control of five officers, the officers decided that immediate action was needed to protect evidence. Sargeeant Michael Gibbs gloved up and pulled the object out of Fowlkes' rectum without seeking a warrant, without medical training or medical personnel, and "without the assistance of anesthesia, lubricant, or medical dilation," producing blood and feces.

So. Not as bad as the day David Eckert had when New Mexico police enlisted the help of a doctor to penetrate him repeatedly, but still bad.

The feds charged Fowlkes with drug and gun possession. That included a count based on the drugs pulled out of him. The trial court rejected his argument that the drugs seized from his anus were illegally obtained. Yesterday, in a revised opinion, the Ninth Circuit decided to put some limits on cops' freedom to root about in our collective asses.

The Ninth Circuit found the warrantless visual strip search reasonable, including the visual body cavity search, mostly on the grounds that the government arrests so many people it would be impractical to get warrants to strip-search them, and because jail safety is important because the government arrests so many people. As Dilbert would say, that's not being circular, it's having no loose ends.

But the Court noted actual limits on intrusions into our bodies. "Therefore, while visual cavity searches that do not require physical entry into a prisoner’s body are generally permissible without a warrant during the jail intake process, physical cavity searches generally are not." Did the Court recognize a general rule against sergeants yanking things out of our asses without a warrant? Not exactly. It's the Ninth Circuit, sure, but this is still America. The Court avoided a broad rule. "We need not and do not determine whether a warrant is required to seize evidence discovered during a visual strip search from an inmate’s body because the officers’ conduct here was unreasonable for other reasons." The Court decided that the search was unreasonable — and thus violated the Fourth Amendment — because the officers violated the jail's own written policies requiring a medically trained person conduct cavity searches, because Fowlkes posed no immediate threat, because the officers had no training in such measures that would let them evaluate whether they were safe or necessary, and because the officers did not take any steps to minimize trauma:

Here, the LBPD officers did not take adequate steps to minimize Fowlkes’ physical trauma. They did not, for example, use lubrication or ensure that the removal was conducted under sanitary conditions; they did not seek the guidance or assistance of medical personnel; and they did not assure themselves that removing the object from Fowlkes’ rectum was safe—indeed they did not know the size, shape, or substance of the object. Further, they did nothing to mitigate his anxiety or emotional trauma. They did not, for example, offer him options for removing the contraband or secure his compliance; they did not (and could not) assure him that the removal was safe or being conducted by a trained professional; and they did not (and could not) assure him that the procedure was legal and in keeping with LBPD policy rather than an arbitrary show of force.

The Ninth Circuit — bless its heart — seems to think that physical and emotional trauma were a bug, not a feature, of the officers' approach. But at least we know: there are limits to the judiciary's willingness to let cops conduct medical procedures on you.

So the Ninth Circuit reversed Fowlkes' conviction — on the one count arising from the drugs found in his rectum. It upheld the rest of the conviction.

Isn't justice majestic?

My Bad Use of Force Decision Shows You Shouldn't Second-Guess My Use of Force Decisions

The Blaze, Glenn Beck's tequila-sweat dream-diary, repeats a law enforcement talking point today. The talking point — "scrutinizing use of force will kill cops" — is rarely served this explicitly or uncritically.

The story's about a Birmingham police officer who got pistol-whipped at a traffic stop. A suspect from the car he stopped approached him aggressively, cold-cocked him, and pistol-whipped him. Cold-hearted bystanders took pictures of him bleeding on the ground rather than helping. Thankfully, the officer will recover. But he's saying that he didn't use force in time to defend himself because of fear of how the media might treat him:

"A lot of officers are being too cautious because of what's going on in the media," said the officer, who asked to remain anonymous for the safety of his family. "I hesitated because I didn't want to be in the media like I am right now."

The Blaze pointedly notes:

The suspect in question, Janard Shamar Cunningham, is a black man and was seemingly unarmed during the incident.

Police — eagerly quoted by The Blaze — are using this to complain about media coverage of their actions:

Heath Boackle, a sergeant with the Birmingham Police Department and president of the city's Fraternal Order of Police, said Thursday that cops are "walking on eggshells because of how they're scrutinized in the media."

Police Chief A.C. Roper sees the episode — as well as the reaction, including celebratory and vitriolic comments posted online alongside images of the wounded officer — as symptomatic of a larger problem, in which some don't respect law enforcement.

"The nobility and integrity of policing has been challenged," Roper said. "As a profession, we have allowed popular culture to draft a narrative which is contrary to the amazing work that so many officers are doing everyday across this nation."

Here the typical subtext is closer to plain text: reporting on, scrutinizing, and criticizing officer use of force puts officers in danger by making them hesitate and second-guess themselves.

This is monstrous gibberish.

A cop made a bad use of force call. Thank God he lived. But a bad use of force call is not a good argument for less scrutiny of use of force. "I have trouble making decisions because of fear of how I will be treated in the media" does not convey "I'm capable of good judgment about the use of force, so you should trust me more."

Chief Roper complains about "popular culture" drafting a "narrative." What he means is that he's mad that there has been a mild drift away from the existing narrative — the law and order (and Law & Order), thin-blue-line narrative in which the cop is presumed to be the good guy and force is presumed to be righteous, a necessary tool for discovering truth and punishing evil, thwarted only by dishonest lawyers and publicity-hungry politicians. That narrative has been — and remains — overwhelming.

Police work is not, contra Chief Roper, an occupation of nobility and integrity, any more than any other profession is. It's a profession made up of noble and ignoble people, honest officers and liars, decent folks and utter thugs. It does not deserve the cultural free pass we've given it. The complaints here show how extensive that free pass is. Consider: the officer and his supporters aren't saying that he hesitated using deadly force on a human being because using deadly force on a human being is something to be done with great care. They're saying he hesitated — and that other officers might hesitate — because of how it might look on the news.

If "maybe I shouldn't kill this guy unless I have a good reason" isn't an adequate motivator to govern deadly force — and our history suggests that it isn't — I'm okay with "maybe I don't want to be on the news" stepping in to help.

Edited to add: I took some shots at The Blaze here, but the CNN story linked above is just as cop-deferential.

Darren Wilson and the Benefit of Doubt

The United States Department of Justice has released a prosecution memo explaining how it decided not to bring federal charges against Ferguson Police Department Officer Darren Wilson for shooting Michael Brown.

The report is 86 pages long, with 28 footnotes. The report's summary of relevant federal law — what charges are available, what it would have to prove to convict Officer Wilson, and the landscape of use-of-force law — appears correct. I can't evaluate whether the Department has misrepresented what witnesses said or the circumstances of their statements, but the report's evaluation of the credibility of witnesses is convincing: it is based on inconsistencies in statements, inconsistencies with scientific analysis of physical evidence, and other factors that I would use as a defense attorney to attack a prosecution witness. The Department's conclusion that it can't prove guilt beyond a reasonable doubt is likely correct. Its conclusion that there is no credible evidence supporting prosecution, because there is no credible evidence contradicting Officer Wilson's account, is arguable.

Were I still a federal prosecutor, I wouldn't recommend prosecuting the case, and were I Wilson's defense lawyer, I would like my chances much better than the prosecution's chances. I don't disagree with the factual or legal analysis. But I find it remarkable, both as a former prosecutor and as someone who has practiced criminal defense for 15 years.

I find it remarkable because most potential prosecutions don't get this sort of analysis. Most investigations don't involve rigorous examination of the credibility of the prosecution's witnesses. Most investigations don't involve painstaking consideration of the defendant's potential defenses. Often investigators don't even talk to potential defense witnesses, and if they do, don't follow up on leads they offer. Most investigations don't carefully weigh potentially incriminating and potentially exculpatory scientific evidence. If an explanation of the flaws in a case requires footnotes, you shouldn't expect it to deter prosecution.

Instead, I'm more used to the prosecution assuming their witnesses are truthful, even if they are proven liars. I'm more used to contrary evidence being cynically disregarded. I'm more used to participants in the system stubbornly presuming guilt to the bitter end. I'm more used to prosecutors disregarding potentially exculpatory evidence that they think isn't "material." I'm more used to the criminal justice system ignoring exculpatory science and clinging to inculpatory junk science like an anti-vaxxer.

Why is this case different? It's different because Darren Wilson is a cop. Cops get special rights and privileges and breaks the rest of us don't. Cops get an extremely generous and lenient benefit of the doubt from juries. Nearly every segment of the criminal justice system operates to treat cops more favorably than the rest of us.

The Department of Justice report didn't say "we can't prove this beyond a reasonable doubt, particularly because juries defer to cops." It didn't need to. It's understood. The Department of Justice also didn't have to worry about being called out for inconsistent approaches to other reports. That's because when you're a black guy who shoots a white law enforcement officer in self-defense, they don't write an 86-page memo with 28 footnotes about it. They just prosecute you.

It's not unjust that Darren Wilson gets the benefit of the doubt. It's unjust that nearly everyone else doesn't.

Broken Windows And Broken Lives

The Broken Windows Theory led to an era of aggressive policing of petty offenses — which in turn led to increased confrontation between police and civilians.

The theory depends upon the proposition that tolerating bad conduct, however petty, sets social norms, and that bad conduct steadily escalates to meet those norms.

Second, at the community level, disorder and crime are usually inextricably linked, in a kind of developmental sequence. Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods as in rundown ones. Window-breaking does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers whereas others are populated by window-lovers; rather, one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.

Let's take this as true for a moment.

If tolerating broken windows leads to more broken windows and escalating crime, what impact does tolerating police misconduct have?

Under the Broken Windows Theory, what impact could it have but to signal to all police that scorn for rights, unjustified violence, and discrimination are acceptable norms? Under Broken Windows Theory, what could be the result but more scorn, more violence, and more discrimination?

Apparently we've decided that we won't tolerate broken windows any more. But we haven't found the fortitude to do something about broken people. To put it plainly: just as neighborhood thugs could once break windows with impunity, police officers can generally kill with impunity. They can shoot unarmed men and lie about it. They can roll up and execute a child with a toy as casually as one might in Grand Theft Auto. They can bumble around opening doors with their gun hand and kill bystanders, like a character in a dark farce, with little fear of serious consequences. They can choke you to death for getting a little mouthy about selling loose cigarettes. They can shoot you because they aren't clear on who the bad guy is, and they can shoot you because they're terrible shots, and they can shoot you because they saw something that might be a weapon in your hand — something that can be, frankly, any fucking thing at all, including nothing.

What are we doing about this? Are we pushing back against unwarranted uses of force and deprivations of rights, to prevent them from becoming self-perpetuating norms?

No. We're not pursuing the breakers of windows. If anything, we are permitting the system steadily to entrench their protected right to act that way. We give them second and third and fourth chances. We pretend that they have supernatural powers of crime detection even when science shows that's bullshit. We fight desperately to support their word even when they are proven liars. We sneer that "criminals have too many rights," then give the armed representatives of our government stunning levels of procedural protections when they abuse or even kill us.

Do we really believe in Broken Windows Theory? If we do, how can we be surprised at more casual law enforcement racism, more Americans dead at the hands of police, more matter-of-fact violations of our constitutional rights? We left the windows broken. We helped set the norm. They're just following it.

Sunil Dutta Tells It Like It Is About American Policing

Sunil Dutta, a "professor of homeland security" at Colorado Tech University, was an LAPD cop for 17 years. Today, the Washington Post ran his column explaining how citizens should interact with the police.

First, Dutta talks about the challenges cops face from rude civilians:

Working the street, I can’t even count how many times I withstood curses, screaming tantrums, aggressive and menacing encroachments on my safety zone, and outright challenges to my authority. In the vast majority of such encounters, I was able to peacefully resolve the situation without using force. Cops deploy their training and their intuition creatively, and I wielded every trick in my arsenal, including verbal judo, humor, warnings and ostentatious displays of the lethal (and nonlethal) hardware resting in my duty belt. One time, for instance, my partner and I faced a belligerent man who had doused his car with gallons of gas and was about to create a firebomb at a busy mall filled with holiday shoppers. The potential for serious harm to the bystanders would have justified deadly force. Instead, I distracted him with a hook about his family and loved ones, and he disengaged without hurting anyone. Every day cops show similar restraint and resolve incidents that could easily end up in serious injuries or worse.

Note how Dutta unsubtly conflates genuinely dangerous things — like threatening to set off a gas bomb — with curses, "tantrums," and "outright challenges to my authority." This sleight-of-hand miscategorization is how cops convince us they need the power to order us to refrain from gathering in one place to protest or put away that menacing cell phone or stop being developmentally disabled around them. See, cops know what is dangerous, and if you say they shouldn't be able to tell you not to do whatever they say is dangerous, you're really saying you should be allowed to set off gasoline bombs at the mall.

We are still learning what transpired between Officer Darren Wilson and Brown, but in most cases it’s less ambiguous — and officers are rarely at fault. When they use force, they are defending their, or the public’s, safety.

"Rarely" is an empirical term; Dutta does not cite evidence. Certainly cops are very rarely deemed responsible by the justice system for use of force. But a rather rather large number of people are killed by police every year; we don't know exactly how many, and we have no reliable resource to test law enforcement asserts that the killings are justified. Never mind lesser violence, like tasing and pepper spraying people, or things not classified as uses of force, like forcible torture and rape of suspects under the guise of "investigation," or situations where police got innocent people killed through idiocy.

But this is Dutta's main point:

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?

Note now nicely this dovetails with Dutta's first point. First, Dutta gets to decide what is dangerous and what he can order you to cease doing. Because gas bombs! Second, if you keep doing it, that's a tasing. Or a beating. Or a shooting.

Dutta's message is this: a cop can always tell you what to do, and you have to take it, or else. (The "else" is violence.)

We have a justice system in which you are presumed innocent; if a cop can do his or her job unmolested, that system can run its course. Later, you can ask for a supervisor, lodge a complaint or contact civil rights organizations if you believe your rights were violated. Feel free to sue the police! Just don’t challenge a cop during a stop.

This is either blissfully naive or breathtakingly dishonest. Do we have a justice system? By name, yes. Is it effective in deterring cops from abusing citizens or punishing them when they do? No. If you go and ask that supervisor to lodge a complaint, better have a lawyer's phone number, because you may get threatened and harassed. If you hope the cop will be charged criminally for misbehavior, you're going to be waiting a very long time for no result. When it comes to breaking the law, the system treats you one way and cops another.

But Dutta's rationales are mere window dressing. His core message is this:

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.

The outrageous thing is not that he says it. The outrageous thing is that we accept it.

Would we accept "if you don't want to get shot, just do what the EPA regulator tells you"? Would we yield to "if you don't want your kid tased, do what the Deputy Superintendent of Education tells you"? Would we accept "if you don't want to get tear gassed, just do what your Congressman tells you?" No. Our culture of individualism and liberty would not permit it. Yet somehow, through generations of law-and-order rhetoric and near-deification of law enforcement, we have convinced ourselves that cops are different, and that it is perfectly acceptable for them to be able to order us about, at their discretion, on pain of violence.

It's not acceptable. It is servile and grotesque.

Lawsplainer: How Mike Brown's Alleged Robbery Of A Liquor Store Matters, And How It Doesn't

Last Friday, as the killing of Mike Brown continued to roil Ferguson, Missouri, the Ferguson Police Department released a police report and surveillance video showing a young man shoving a protesting convenience store clerk and leaving with merchandise. Mike Brown's family lawyer confirmed that the video showed Brown, but decried its release as an irrelevant smear. Later Ferguson's police chief later admitted that officer Darren Wilson did not seek to detain Brown based on the robbery, but because Brown was walking in the street.

Would the alleged robbery1 matter, in any case brought against Darren Wilson for the death of Mike Brown?

It might matter legally, but only for narrow reasons. It does matter practically, but shouldn't.

[Read more…]

Don't Give Special Rights To Anybody! Oh, Except Cops. That's Cool.

I was all set to write a post making this point: it's offensive and irrational for the police to say "we have to protect the identity of a cop who shoots a citizen, for safety" when the criminal justice system routinely names suspects and defendants — either openly or by leak. People are accused of horrible crimes all the time, and does the system hold back their names out of fear that they or their families will face retribution? No.

But Kevin Williamson has already done a great job writing that post:

Here’s a microcosm of the relationship between state and citizen: We know the names of the nine people charged with felonies in the Ferguson looting, but not the name of the police officer at the center of the case.

Here's what I want to add to Kevin's observations: this particular piece of special pleading for cops is not unique; it's part of a pattern.

If you are arrested for shooting someone, the police will use everything in their power — lies, false friendship, fear, coercion — to get you to make a statement immediately. That's because they know that the statement is likely to be useful to the prosecution: either it will incriminate you, or it will lock you into one version of events before you've had an opportunity to speak with an adviser or see the evidence against you. You won't have time to make up a story or conform it to the evidence or get your head straight.

But what if a police officer shoots someone? Oh, that's different. Then police unions and officials push for delays and opportunities to review evidence before any interview of the officer. Last December, after a video showed that a cop lied about his shooting of a suspect, the Dallas Police issued a new policy requiring a 72-hour delay after a shooting before an officer can be interviewed, and an opportunity for the officer to review the videos or witness statements about the incident. Has Dallas changed its policy to offer such courtesies to citizens arrested for crimes? Don't be ridiculous. If you or I shoot someone, the police will not delay our interrogation until it is personally convenient. But if the police shoot someone:

New Mexico State Police, which is investigating the shooting, said such interviews hinge on the schedules of investigators and the police officers they are questioning. Sgt. Damyan Brown, a state police spokesman, said the agency has no set timeline for conducting interviews after officer-involved shootings. The Investigations Bureau schedules the interviews at an “agreeable” time for all parties involved, he said.

Cops and other public servants get special treatment because the whole system connives to let them. Take prosecutorial misconduct. If you are accused of breaking the law, your name will be released. If, on appeal, the court finds that you were wrongfully convicted, your name will still be brandished. But if the prosecutor pursuing you breaks the law and violates your rights, will he or she be named? No, usually not. Even if a United States Supreme Court justice is excoriating you for using race-baiting in your closing, she usually won't name you. Even if the Ninth Circuit — the most liberal federal court in the country — overturns your conviction because the prosecutor withheld exculpatory evidence, they usually won't name the prosecutor.

And leaks? Please. Cops and prosecutors leak information to screw defendants all the time. It helps keep access-hungry journalists reliably complaint. But leak something about an internal investigation about a shooting or allegation of police misconduct? Oh, you'd better believe the police union will sue your ass.

Cops, and prosecutors, and other public employees in the criminal justice system have power. It is the nature of power to make people believe that they are better than the rest of us, and entitled to privileges the rest of us do not enjoy.

The question is this: are we so addled by generations of "law and order" and "war on crime" and "thin blue line" rhetoric that we'll accept it?