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What the Discovery Channel Gets Wrong In Its Series on the Unabomber

By Greg Stejskal
ticklethewire.com

The Discovery Channel TV series, “Manhunt Unabomber,” disrespects achievements of  the “Unabom” investigation by creating a predominantly fictionalized story.

Theodore Kaczynski (FBI photo)

Theodore Kaczynski (FBI photo)

One of the shows I watched in my youth was “The Untouchables.” I was about ten when it premiered in 1959 on TV, and it was one the things that inspired me to want to be a G-man. The first episodes of “The Untouchables” were based on Eliot Ness’ book by the same name that he wrote with Oscar Fraley a sportswriter. (The book was published in 1957 less than a year after Ness’ death.) Those early episodes closely followed the book and were presented as a true story. It is very good story – a crusading lawman puts together a team, a group of incorruptible agents who take on Chicago’s biggest crime lord, the ruthless Al Capone, and topple his empire that was built on the manufacture and sale of beer and liquor during prohibition.

The problem is some of the key parts of the story aren’t true.

The Untouchables didn’t topple Capone. They did raid and destroy some of Capone’s distilleries and breweries. This diminished Capone’s bootleg income and inconvenienced him financially, but it was the IRS agents working with the U.S. Attorney’s Office that toppled Capone. The IRS agents and U.S. attorneys built a strong tax evasion case against Capone independent of Ness and the Untouchables. Capone was convicted of five counts of tax evasion and no violations of the Volstead Act (the illegal manufacture and/or sale of alcohol for consumption). Capone was sentenced to 11 years, most of which he served at Alcatraz off the coast of San Francisco.

Ness Never Met Capone

Unlike the TV series or the subsequent movie, which was even more fictionalized, Ness and Capone never met. There was no dramatic confrontation.

Ness and Fraley in writing the book embellished the truth regarding Ness’ role in the demise of the Capone empire, and the TV series that followed solidified that fiction. Those IRS agents and US attorneys who successfully prosecuted Capone are forgotten. (For the record, the Chicago U.S. attorney who prosecuted Capone was George E.Q. Johnson, and the lead IRS agent was Frank Wilson – lest we forget.)

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That brings me to a series currently running on the Discovery Channel about the “Unabom” investigation. The show makes the usual claim/disclaimer that it’s based on a true story. Unfortunately, it’s more fiction than truth. The series makes a large departure from the truth – it portrays a minor player on the Unabom Task Force (UTF), Jim Fitzgerald, as the investigator who broke the case and was involved in key aspects of the case. It then builds on that fiction by depicting a relationship between the Unabomber/Ted Kaczynski and Fitzgerald that never happened.

The Unabom (FBI shorthand for University and Airline Bomber) investigation began in 1978 with the first bomb and continued until the Unabomber was identified, arrested and prosecuted in 1998. (The last bombing was in 1995.) The investigation was the longest and most expensive in FBI history. Many people were involved in the investigation from different agencies. Some spent a substantial portion of their careers on the investigation. All kinds of investigative techniques were utilized, huge data bases were built and countless leads were followed only to what seemed to be dead ends.

In the later years, a Unabom Task Force was formed in San Francisco. The lead agency was the FBI, but there were representatives from the U.S. Postal Inspectors and the Bureau of Alcohol Tobacco and Firearms (ATF). San Francisco had been the mailing origin for some of the later bombs, and the San Francisco Chronicle was one of the newspapers that Unabomber had chosen to communicate through with law enforcement.

Finally, the big break came when the Unabomber claimed that he would discontinue his use of bombings to kill if his 35,000-word manifesto were printed in a major newspaper. (He did reserve the right to commit acts of sabotage without targeting people.) It was decided that the publication could lead to identifying the Unabomber, but a major newspaper had to be persuaded to publish it.

The Attorney General, Janet Reno, the then Director of the FBI, Louie Freeh, the San Francisco Special Agent in Charge, Jim Freeman, the Assistant SAC, Terry Turchie and Kathy Puckett, an FBI agent and a member of the UTF with a psychology background (PhD), met with and persuaded the very reluctant editors of the NY Times and the Washington Post to publish the manifesto. It was decided that the Post would publish the manifesto in its entirety, and the newspapers agreed to share the immense cost of the publication. (Jim Fitzgerald had no part in this process.)

Publication Triggers Suspicions

The publication led to David Kaczynski and his wife’s realization that David’s brother, Ted, was probably the Unabomber. (David’s wife had suspected that Ted was the Unabomber for a while.) They reached this conclusion by comparing some of Ted’s early writings with the manifesto.

Through their attorney they communicated their conclusion to the UTF.  When members of the UTF saw Ted Kaczynski’s early writings and compared them to the manifesto, most if not all of them thought they were written by the same person. No special analytical technique was necessary. (Jim Fitzgerald was not the first one to make this determination. He reached the same conclusion as did most of the other members of the UTF.)

David Kaczynski’s attorney told the UTF that Ted was living in a small cabin in Lincoln, Montana. A surveillance was quickly begun of Ted in Lincoln. Various UTF members and other agents were infiltrated into Lincoln using assumed identities. At the same time, investigation and interviews were conducted in all the locations where Ted had lived and gone to school.

All this information was analyzed and put together for a search warrant affidavit establishing probable cause to search Ted’s cabin. After the surveillance had been ongoing for about six weeks, the search warrant affidavit was presented to a local federal magistrate who issued the search warrant. A ruse was developed to get Ted to come out of his cabin, and the cabin was searched.

The search found: bomb making materials; voluminous incriminating documents including an original draft of the manifesto and a coded diary confessing to all of the bombings; the typewriter used to type the manifesto and a fully constructed bomb ready to be sent – the bomb was designed as an anti-personal bomb, despite Ted’s promise not to kill.

Post Arrest 

After Ted’s arrest, he was interviewed by Postal Inspector Paul Wilhelmus and FBI agent Max Noel. Both had been involved in the Unabom investigation for years. Ted did not confess, but after what was found in the cabin, it wasn’t necessary. (Jim Fitzgerald was never in Lincoln during the search of the cabin and the arrest of Ted. Consequently, he had no part in the search nor the interview.)

Like Eliot Ness, who never met Al Capone, Jim Fitzgerald never met Ted Kaczynski.

Much later Jim Fitzgerald in an interview with Newsweek, implied that his “forensic linguistic analysis” identified Ted Kaczynski as the Unabomer. In the Newsweek piece, that identification is referred to as a “defining moment in Fitzgerald’s career” – no such moment occurred.

I realize that the Discovery Unabomber series is a dramatization not a documentary, and it’s difficult to make a long often tedious investigation into a compelling story. But that’s not an excuse to make a minor member of a team who was only on the team for a matter of months into the star player who won the game. I’m not sure why the writers took this tack, and I don’t do screen plays, but maybe an ensemble cast of unique characters would have worked. That’s what the task force was – kind of like the movie, “Spotlight.”

The Unabom investigation is a great story and can be told without embellishing the minimal role of one agent in the investigation and thereby diminishing all those that contributed to a monumental team effort.

As the legendary Michigan football coach Bo Schembechler said:

“No man is greater than the team; no coach is greater than the team; the team, the team, the team.”

Trump’s Remarks Point to A Bumpy Road for Jeff Sessions and Christopher Wray

Donald Trump

Donald Trump

By Allan Lengel
ticklethewire.com

Heading up a major law enforcement agency like the Justice Department or FBI is never easy. It’s a major headache. There’s always a crisis around the corner.

Keeping your job and doing it with integrity has only been more challenging under the Trump administration. Don’t count on Jeff Sessions sticking around as Attorney General for all too long, and expect Christopher Wray to face endless ethical dilemmas dealing with President Donald Trump after his confirmation as FBI director.

The president’s remarks to the New York Times give a pretty clear indication of tumultuous times ahead for the two.

Trump tells  the paper that he would never have hired Sessions had he known he was going to recuse himself in the probe into Russia.

“Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job and I would have picked somebody else,” Trump said.

Everyone, perhaps except Trump, realizes Sessions had no choice considering he was in the the inner circle of the Trump campaign in 2016, and he met with Russian officials. It was a no-brainer for Sessions, and frankly, had he not, he would have been under great pressure on the Hill and from Deputy Attorney General Rod Rosenstein to recuse himself.

Then there’s the comment about the FBI director.

“The FBI person really reports to the president of the United States,” Trump said in what clearly is an untrue statement. Sure, the FBI director can brief the president on a regular basis, but he doesn’t answer to the president, at least not in the way Trump thinks.

The FBI’s website states, “Within the U.S. Department of Justice, the FBI is responsible to the attorney general, and it reports its findings to U.S. Attorneys across the country. The FBI’s intelligence activities are overseen by the Director of National Intelligence.”

Trump won’t have a very hard time pushing Sessions out. That seems to be a certainty.

But considering he’s already fired one FBI director, Trump will have a tough time firing a second one without catching hell from Congress and the American people.

These are challenging and complicated times for law enforcement.

What isn’t complicated is doing the right thing and not bending to pressures from the White House.

President Nixon tried undermining the justice system, and we know justice prevailed.

President Donald Trump’s Early Influence on the Criminal Justice System and Law Enforcement

Donald Trump, via Wikipedia

Donald Trump, via Wikipedia

By Ross Parker
ticklethewire.com

President Trump is a media magnet, for better or worse. Debates on public policy and personal peccadilloes whirl so fast that it seems fair to step back and try to ignore the daily sensations and make a preliminary assessment of his successes and failures in the law enforcement and criminal justice arenas.

Relations with Law Enforcement Agencies

Candidate and now President Trump often voices an intention of becoming a supporter and partner with police and federal agents. He vocally repeats the warnings from the War on Drugs contingent and openly chose their tenets over Black Lives Matter. He promises more support, financial, executive, and legislative, and he declares new policies and priorities.

The jury seems to still be out on whether these promises are going to be implemented but law enforcement seemed at least open-minded after their general ambivalence for Obama. But Trump’s “buddy” plan took a serious hit in the last few days when he abruptly fired the well respected head of the largest and most influential law agency in the nation, if not the world.

Last week Trump fired James Comey, the Director of the FBI. In the Bureau’s almost 100 year history this had occurred only twice previously:  President Richard Nixon fired the director while the nation was in the throes of Watergate, and President Bill Clinton fired William Sessions in 1993, shortly after Clinton took office.

Although Comey had drawn some criticism by his disclosures a few days before the election that the Bureau was re-opening and then re-closing the investigation on candidate Hillary Clinton, most thought that, however misguided, the comments were not intended to affect the election or have any other ill intent. Whether they did or did not doom her election hopes is another subject.

Contrary to Trump’s protestations, Comey was and continues to be highly regarded by other law enforcement agents, Congress, and the public at large. With the men and women of the FBI, the issue is personal.

It was also the way it was done, its peremptory quality, the prevarication and confusion among Trump, his staff and spokespersons. The Director found out he’d been terminated on a TV news program. It was the kind of Amateur Hour we have come to expect from this Administration.

Ironically ,Trump’s firing resulted in the disclosure of his meddling/obstruction of the investigation of fired National Security Coordinator Michel Flynn. Trump’s remarks to Comey about closing the Flynn investigation would probably never have seen the light of day absent the firing. Not the first time Trump stepped on an important part of his anatomy.

The flare-up of violent crime statistics, concern about increasing assaults on police, general ambivalence toward Obama policies—all of these factors provided an atmosphere in which President Trump could have cemented relations with law enforcement. But the Comey affair and Trump’s meddling in several other DOJ cases and policies seem to have made this a lost opportunity for him to build an alliance with law enforcement.

Supreme Court and the Judiciary

Another potentially positive area was in his judicial appointments. From a law enforcement perspective, if the measure of the value of Justices and judges is their tendency to rule for the government in criminal cases, then the selection of Justice Gorsuch to fill Justice’s Scalia’s seat was a big win for Trump.

But the win came at a price. The absence of a Justice for a year meant that the Court was stuck in third gear and could not resolve some important questions which have split the lower courts.

Then, too, the politicization of the selection process and the abandonment of the 60 vote rule in the Senate will impact the process negatively for decades. The emphasis on broad-based excellence has been de-emphasized a notch for a candidate’s predicted loyalty on a few hot-button issues. The fact that we appeared to have gotten a Justice of excellence and integrity in Justice Gorsuch does not entirely absolve the methods and intentions of the selection process.

Moreover, the general dysfunction of both Congress and the White house has, thus far, left hundreds of vacancies for new federal judges and U.S. Attorneys unfilled.

Finally, going back to the original rubric for judging success in this category, there is undoubtedly an undetermined segment of the law enforcement community and the population at large which holds that there is more to assessing success in choosing judges than their predictability for government-favored rulings. Excellence, independence, wisdom, legal acumen, and courage—have these attributes been de-valued by Trump and his architects for criminal justice?

Criminal Justice Reform

For the first time in several decades there appeared to be broad-based, bipartisan support for making progressive changes to the criminal justice system. From Senator Rand to Congressman John Conyers (a wide spectrum indeed), consensus was building toward reform.

Rep. John Conyers

Rep. John Conyers

But the President and his Attorney General Jeff Sessions are not only opposed to this movement, they apparently want to roll back policy to the get-tough rhetoric of two and three decades ago. AUSAs are directed to seek the most severe charges and sentences in drug and gun cases. Mandatory minimums are back in favor. Prosecutions of marijuana cases in recreational use states have been threatened.

It’s Nixon’s War on Drugs Redux. Even those of us who have consistently opposed marijuana legalizations shudder at the prospect now at sending DEA agents and AUSAs to put the genie back in the bottle.

Trump/Sessions DOJ has also done a 180 on civil rights investigations of local police departments, even to re-examining all existing consent decrees. Many police will welcome the end to what they consider to be obsessive micro-management from Washington. Others, however, found DOJ’s participation to serve as a pragmatic buffer between community groups and the police. Communities like Baltimore considered the decree to be the foundation for a strengthened department.

Trump’s description of a terrible crime wave gripping America paints a bleak picture, particularly in the cities. Some think this rhetoric denigrates the hard work by law enforcement which had resulted in a 42% decrease crime statistics. Still, most agree that violent crime, especially since 2015, continues to be a stubborn and dangerous problem, along with the opioid epidemic. A fresh approach and commitment would be a real achievement by President Trump. So far, however, we have seen only fear mongering and proposals like The Wall and widespread deportations.

The Law Enforcement Leaders, made up of over 200 police chiefs, have made five policy recommendations to the President and Attorney General:

1.    Focus on violent crime with DOJ’s priorities and resources.

2.    Reduce unnecessary time behind bars. Lock up the worst.

3.    More resources for mental health and drug treatment, which cannot be addressed successfully in jail.

4.    Build up Community Policing with local programs and information clearinghouses.

5.    Reduce recidivism by supporting prison education and treatment programs, residential re-entry centers, and home confinement for those nearing release.

President Trump seems inclined to support the first and part of the third proposals (opioid treatment). His present plan seems inconsistent with the second and fourth, although they would be worthwhile topics for the task force to reduce crime which he has created.

Law Enforcement Budgets

The quickest way to a law enforcement agency’s heart is through its wallet. Two months ago Trump announced that his first budget would include significant increases in law enforcement spending. That, of course, would be welcome news for agencies whose increased costs have not been met by increased budgets. Plus the Administration’s announced expanded expectations will be costly.

The problem is that any budget increases will be met by the pressure to cut spending to justify a tax reduction. So this is another one in the wait-and-see category.

Bureau of Prisons

President Obama cut the federal prison population by about 10% through an unprecedented use of his clemency power, reduced Sentencing Guidelines and legislative changes in sentencing. The result caused the prison overpopulation pressure to ease and almost ended the use of “private prisons.”

None of these policies seem at all likely in the Trump Administration, whose plans will fill the prisons up again and bring back budget and infrastructure concerns. Sessions’ direction for tougher charging and sentencing policies will accelerate this trend. Plus he has announced an intention to reverse Obama’s executive order to close private prisons.

All of this portends a significant increase in the BOP budget. Some, perhaps many, in law enforcement will applaud this result. However, the discovery by criminal justice “reformers” in Congress that these policies have a price tag may well put them in opposition to the President’s plan to lock more miscreants up.

So what’s the verdict on Trump’s early influence on the criminal justice system? Like the rest of his actions, it depends on the point of view of the listener. But, over all, it appears to be something which once held promise but seems to be trending downward. Beyond content and result is the method. There seems to be only limited thoughtful planning and consultation with career experts.

Like much of Trump’s policy pronouncements, it has a shoot-from-the-lip quality.

___________________________________________________________

This is my 100th column for Ticklethewire, a milestone of note only to writers who are “counters.” Whatever the future holds, I want to thank Allan Lengel for his help and indulgence, and to the readers who give me feedback, especially the ones who care enough to disagree.

Deputy Attorney General Rod J. Rosenstein, The Canary in the Coal Mine, Already Gasping for Air

Rod Rosenstein, deputy attorney general.

Rod Rosenstein, deputy attorney general.

By Allan Lengel
ticklethewire.com

Deputy Attorney General Rod J. Rosenstein, a former U.S. Attorney from Baltimore, is the canary in the coal mine for the Justice Department. In very short time, in that role, he’s already gasping for breath, having been put smack in the middle of the firing of FBI Director James Comey.

The phrase “canary in the coal mine” refers to caged canaries miners would carry down into the mine tunnels. If dangerous gases collected, the gases would kill the canaries before killing the miners. In this case, the dangerous gases could be the dubious demands by President Donald Trump that could compromise the Justice Department, and ultimately kill the canary’s government career.

Skeptics of the Trump administration have always expected that Attorney General Jeff Sessions would play politics and try to please his boss, the president.  But Rosenstein, a career prosecutor who has worked under both Republican and Democratic administrations, has a reputation as a straight shooter. The expectation is that he’ll stand up and say no if Trump tries to compromise the department. If Trump pushes too far and won’t back off, everyone assumes he’ll get fired or quit.

But very quickly, he’s already gasping for air.

Rosenstein authored a letter for the president detailing how Comey acted inappropriately during the Hillary Clinton email probe and implied he should be fired, but never said it outright. Trump then shot off a letter to Comey, saying he was going by the recommendation of Rosenstein and Sessions to fire him. Skeptics found it hard to swallow that Trump had concerns for Clinton.

Yellow canary - Serinus canaria on its perch in front of a white background

Rosenstein apparently felt duped, or at least that’s how it’s being portrayed in the press.

The Washington Post reported that Rosenstein threatened to “resign after the narrative emerging from the White House on Tuesday evening cast him as a prime mover of the decision to fire Comey and that the president acted only on his recommendation, said the person close to the White House, who spoke on the condition of anonymity because of the sensitivity of the matter.”

People will be closely observing, paying close attention to see if  the chirping continues to come from Rosenstein’s new office at Justice, or whether at some point, it’s silenced.

 

In the Age of Social Media, The Legal Duty to Report Crime

By Ross Parker
ticklethewire.com

Over the weekend NBC News and other media reported a story of the sexual assault of a 15-year-old girl in Chicago by a group of juvenile boys. The painful media “angle” of the report was that the offenders had broadcast the brutal assault to 40 Facebook viewers, none of whom had reported the crime to police.

The Chicago Police Chief stated that he was uncertain whether any of the viewers would be charged criminally. He said that he was “disgusted” by their inaction and added, “Where are we going in society?”

The incident follows another one in Chicago in which 4 people taunted and beat a mentally disabled man and broadcast the crime, also by Facebook.

The most recent Chicago case occurred 53 years, almost to the day, after the notorious rape and murder of Catherine “Kitty” Genovese in March 1964, while observers saw and heard the brutal stabbing and her cries for help. A sensationalized New York Times article, two weeks after the murder, reported that 38 people had watched the murder and did nothing about it.

The article shocked readers across the country and came to represent a widespread “truth” about apathy in the big cities, the breakdown of the values of the 1950s, and the social anxieties of the years which followed.

Many of us became familiar with the Genovese case in our Psych 101 and Sociology textbooks in college, under the title “Bystander Effect” or “Bystander Syndrome,” as the supposed tendency of large groups of people who witness crimes to refuse either to come to the aid of the victim or to call the police. Dozens of movies, TV shows, books, and songs decried the “Bad Samaritan” tendency of people who predominated in modern life.

The problem with the story and its widespread consequences was that most of the reported “facts” were not true. Fifty years later studies showed that the events had been grossly exaggerated and inaccurate in many respects, especially the overstated number of  witnesses (actually probably 5 or 6, some of whom did call the police and try to help the victim). Only one man indicated that he had seen and heard  the assault and “did not want to get involved.”

Ironically the case did have some positive effects, the most obvious of which was the creation of the 911 police emergency system. And there have been other developments, good and bad, which have resulted from the popular reaction to the Genovese case.

But the media and police reports about failure of witnesses to come forward and assist in investigations have continued regularly. Which raises the question, what are the legal implications of the failure of a witness to report a crime?

It’s Misprison

The deliberate concealment of a person’s knowledge of a crime by a non-participant is called misprision. It was first recognized as a common law misdemeanor in 16th Century England and over the centuries it spread to the colonies.

Eventually statutes defining misprision replaced the common law. In the federal criminal code misprision is in 18 USC Sec. 4 (Whoever with knowledge of the commission of a felony conceals it and does not as soon as possible make it known to a person of authority is punishable by a potential $250,000 fine and a maximum of 3 years in prison.)

However, the general principle is that there is no legal duty to report crimes. Mere silence does not constitute criminal concealment. Misprision requires as elements a knowing and an affirmative act of concealment of the crime.

Although misprision has been a crime in the U.S. since 1789, it continues to be misunderstood and rarely employed by prosecutors. It is often confused with the crimes of acting as an accessory after the fact and obstruction of justice, each of which focuses on giving aid to a criminal.

Commonwealth v. Lopes (Mass. 1945) illustrates some of the difficulty with the statute as well as its legal distinctions with other offenses. There the defendant failed to report the discovery of a child’s body because to do so would expose his having an affair. The conviction was reversed because the defendant’s intent was to protect his exposure from a crime (adultery) not to conceal the discovered crime. But compare the case with US v. Baumgartner (6th Cir.2014)(misprision conviction upheld where a Tennessee judge lied to prosecutors and another judge to protect one of his former criminal defendants with whom he was having an affair and receiving drugs).

There are important exceptions to the general rule that failure to report a crime (without an act of concealment) is not a crime. These have been enacted by the states in particular situations. A few states (like Texas), for example, penalize the failure to report an offense resulting in a serious injury or death. Also there are “mandatory reporters,” such as parents, teachers, doctors and ministers, who are required to report certain crimes. Vets are required in some states to report animal abuse, and photo processers must report child pornography photos or videos. Some states make it criminal for a nurse or nursing home staff not to report abuse of the elderly or disabled. Additionally, there are “mandatory reporting crimes,” the most common of which is the failure to report child abuse.

Because even these exceptions are rarely prosecuted, few courts have tested their limits. What if the witness has a recognized legal privilege not to reveal a confidence? What if reporting could have 5th Amendment implications?

What if a judge, prosecutor, or federal agent receives information of a crime in another jurisdiction by a cooperating witness? Is he or she bound to disclose the information to the appropriate authorities in view of 28 USC Sec. 1361’s compulsion for officers of the US to perform their legal duty?

As the Bystander Syndrome encounters the social media obsession in the 21st Century, the duty to report crimes to law enforcement will continue to be more of an ethical and moral issue, as well as an important public policy subject.

Rap songs and t-shirts with inscriptions like “Snitches Get Stitches” will continue to challenge law enforcement’s need for pubic cooperation in order for officers and agents to protect and serve. The use of statutes like misprision will accomplish little to satisfy this need.

 

Neil Gorsuch’s Participation In Supreme Court Could Make a Difference, Most Likely In favor of Protecting Officers

Judge Neil Gorsuch

Judge Neil Gorsuch

By Ross Parker
ticklethewire.com

The muddied area of the law in civil actions against police officers involved in a shooting is one where Justice Neil Gorsuch’s participation and vote could make a difference, most likely in favor of protecting the officers. The Supreme Court heard argument last week in County of Los Angeles v. Mendez, a Section 1983 action against the county and two LA Sheriff’s Deputies.

It is an old legal adage that bad facts make bad law. From a law enforcement perspective, the case presents that kind of context.

First the present atmosphere surrounding police shootings, particularly of minority members, particularly where a rule or policy violation is present,  is very unforgiving of split second decisions by police officers in the heat of situations reasonably perceived to be dangerous.  See The War on Cops by Heather Mac Donald. One publication has described the case as involving the question if the police can “troll you and then shoot you.”

Second the atmosphere was especially stacked where the victim was, after the fact, found to be an innocent who suffered serious injuries.

The deputies were seeking a parole violator in 2010 when they knocked and announced their identity at a house in Los Angeles and then entered and searched it. In violation of the 4th Amendment, they lacked either an arrest or search warrant. Finding no one, two of them were sent to check a dilapidated shack in the backyard behind the house. Without announcing their identity or purpose, they opened the door with guns drawn. Not knowing who they were, Mendez picked up a BB gun he used to kill rats but did not point it at the officers. The deputies opened fire with 15 shots wounding Mendez and his pregnant girlfriend. Mendez later had to have his leg amputated because of his injuries.

The “Provocation” Rule

At the conclusion of the federal bench trial, the judge sustained liability and awarded the plantiffs $4 million in damages. The 9th Circuit Court of Appeals upheld the judgment under the alternative theories that the officers had provoked the threatening situation and that their constitutional violation, under the circumstances, was the proximate cause of the excessive force causing the injuries.

The “provocation” rule is opposed by law enforcement because it ignores principles of qualified immunity and focuses on events prior to the reasonableness of the officers’ action at the time of the shooting. Such a rule would, they argue, encourage police to hesitate and thus result in increased danger to both them and the subjects. The legal analysis has been widely discredited by other appellate courts.

Plaintiffs argue that it is unfair to shield officers from liability for unreasonably dangerous situations which they created or contributed to by their own actions.

The wide gap in views on what legal principles and analysis should be employed by the parties and lower courts was reflected by the apparent attitudes by the 8 Justices during oral argument last week. Even the fundamentals of the law in this area are confusingly uncertain.

The case could very well end up in a 4-4 tie between the Justices who support a finding that an unconstitutional entry satisfied proximate cause for the injury (likely Kagan, Sotomayor, Breyer, and Ginsburg)  and those who could discern no proximate cause between any constitutional violation and the result (likely Roberts, Alito, Thomas and Kennedy). A tie would uphold the 9th Circuit’s affirmance of liability and damages. Of course predicting individual votes in a murky area of the law is a perilous course taken only by the most stalwart of columnists (who have nothing to lose).

Ominously the 13 Amicus Curiae briefs are split almost equally divided in their support of the two sides of the case.

Almost Justice Gorsuch’s disciplined and conservative approach could bring clarity in this area. Of course it is likely to be a clarity very unhelpful to the victims of police shootings.

Sally Yates Sends the Right Message to the Trump White House

Former Acting Attorney General Sally Yates

Former Acting Attorney General Sally Yates

By Allan Lengel
ticklethewire.com

Acting Attorney General Sally Yates wasn’t going to be around very long at the Justice Department considering she was a holdover from the Obama administration.

Nonetheless, she should be commended for standing up to President Donald Trump, who implemented an executive order that was poorly thought out and executed.

Hopefully she has set a tone and a message to the White House: Federal law enforcement will not compromise its principles when asked to do something that violates the law.

It’s not likely to be the last time the administration directs federal law enforcement officials to do something questionable.

The president on Tuesday, when announcing his Supreme Court nominee, talked about the importance of the Constitution and the rule of law. We should take him at his word that he places great importance on upholding the law, not bending or breaking it.

In the coming months and years, some law enforcement officials may be forced to make a choice between doing the right thing for the country or keeping their jobs and following a White House order.

Hopefully they’ll do the right thing.

They can always get another job.

They can’t always get another reputation.

 

The Frightening Opiate Tales From The Emergency Room

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By Ross Parker
ticklethewire.com

The mind numbing opiate epidemic is not news, but the number of overdose deaths keeps climbing, and DEA agents say that we are still on the uphill side of the worst drug crisis in U. S. history. Until the opiate epidemic invades you or your family or friends, it is easy to underestimate the intransigence of the scourge.

Emergency room physicians and nurses have to cope with the unending tide of hopeless and desperate patients who are wheeled into the ER every day.  These are stories from a typical urban hospital where all classes, ages and races end up unconscious on their front door step. The fact that the stories are so unexceptional illustrates the extent to which the drug has a death grip on the country.

One ER doc relates that at the beginning of his twelve-hour shift a young woman comes in close to death in an opiate overdose. The medical team uses their best efforts to revive her, and they are successful. The doctor and a nurse both advise her strongly that the next incident may not have a good outcome and that she needs to remain in the hospital for a full medical work-up by an internist as well as counseling and treatment. But she signs herself out of the hospital AMA (Against Medical Advice) before he or anyone else in the hospital can do anything to prevent her from leaving.

The ER doc’s shift proceeds with other patients. An hour before the shift ends, the same young woman is wheeled into the hospital with her second overdose. Again she is revived. Physicians are trained to make no moral judgments about their patients’ lifestyles, but frustration pervades the atmosphere of the facility. What’s the point?

At a different hospital an ER physician tells a story that is going around ERs about a practice of opiate addicts driving to the hospital parking lot, leaving the car in drive with their foot on the brake and taking their drug of choice. If they remain conscious during the “high,” they keep that foot on the brake until they can drive away to another destination. If they overdose and lapse into unconsciousness, their foot slips off the brake, and the car crashes into something stationary, another car, a wall or such. Hospital security then finds the overdosed driver and rushes him or her into the ER for emergency treatment.

How Much Is Too Much?

A third doctor relates a post-overdose conversation she had with a chronic user. The problem, the user explained, is that the most euphoric effect comes only when he is close to slipping into unconsciousness. So users, at least the ones who want to live, must gauge what amount will reach this point without unintentionally going too far. Could the doc give him a little advice on this problem?

Each drug, used legally or not, has a Therapeutic Toxic Ratio or Therapeutic Index, which is a comparison of the amount of drug that causes the effect sought to the amount that causes toxicity. There is a safety continuum between effectiveness and a lethal side effect. The user who was seeking advice was saying that the best high is one which occurs as close to the toxicity point as possible without going too close to a lethal overdose.

The problem with this over simplistic analysis is that there are so many factors and unknowns in the context of illegal drugs that predicting this point is impossible. Using recreational drugs doesn’t happen in the hospital laboratory. The unknown mixture of different drugs (e.g., heroin and fentanyl) prevents this assessment by a user. Also the strength and purity of the drug(s), user tolerance, and contaminants affect the reaction to the drug and change the safety continuum.

So, even if the doctor was inclined to have this discussion, it would have been impossible to do so.  Instead the answer was that any time the user took a drug he was spinning a deadly roulette wheel. The unknown factors were the ones which could kill him or her. Even the same dose of a single drug can be effective one time and kill the user another time. The practice is inherently and unpredictably dangerous.

These are stories of a public emergency sliding toward a cataclysm, one not being addressed by policymakers and politicians. Appreciating its grim tenacity is only the first step to finding an answer to the epidemic.