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Radley Balko Responds to Orin Kerr:

Radley Balko responds to Orin Kerr's criticism of his position on paramilitary police raids here.

33yearprof (mail):
You are wrong, Orin. Admit it and get it behind you.
11.25.2006 8:53pm
Mahan Atma (mail):
Unfortunately Balko doesn't have comments on his site, so I'll have to respond here.

My experience in clerking was that in cases like these, whether the police ever paid out in a civil lawsuit depended on the judge and the plaintiff's attorneys. With good attorneys and a judge who knows how to get around qualified immunity, the city can be essentially forced into a settlement. (They don't want to spend the money to go to trial, much less appeals, and discovery often tends to be unfavorable to the police, so if the parties get past summary judgment, the city will pay off.)

But it shouldn't be left up to the judge. Too many judges are pro-law enforcement by default, having been prosecutors. The long and short of it is: [b]Qualified Immunity has no legitimate place in these disputes.[/b]

IMO, QI is simply one of the worst abominations perpetrated by the Supreme Court in modern history. Time to do away with it.
11.25.2006 9:00pm
Wild Pegasus (mail) (www):
Worse yet, the whole notion of state immunity from is anti-republican and has no place in American law. Immunity rests in the idea that the sovereign cannot be tried under his own law without his consent. In nations where law theoretically flows from the Crown, that makes sense. But that is not true of the American system and does not belong here.

- Josh
11.25.2006 9:04pm
Tom Holsinger (mail):
I've won despite qualified immunity, but it isn't easy. It requires either a policy of benign neglect by superior officers, or things like a emergency room report stating that a client was "alert, conscious and cooperative" when brought in for treatment after a brutal arrest for being drunk in public. And in that case my client had been serenading his ex-wife at her parent's home, though she was currently dating a police officer.

My major problem representing plaintiffs in excessive force litigation was my clients' inability to conform their conduct to the requirements of the law, rather than qualified immunity. There is nothing like a subsequent arrest, on thoroughly justified charges, to ruin an otherwise good 42 USC 1983 action.
11.25.2006 10:05pm
TheNewGuy (mail):
There is nothing like a subsequent arrest, on thoroughly justified charges, to ruin an otherwise good 42 USC 1983 action

*laughing*

That was pure gold, Tom... I'm serious... you owe me a new monitor.

It says something about the quality of your clients... but how do you think cops like dealing with informants and snitches? If there was a better/cleaner way of getting inside criminal organizations, I wish somebody would find it.
11.25.2006 10:28pm
Stormy Dragon (mail) (www):
Is this part of some plan by The Volokh Conspiracy and The Agitator to set up a Andrew Sullivan/National Review Online style grudge-fest so that on slow days each can just blog about how unfair the other is being to them?
11.25.2006 11:15pm
Beerslurpy (mail) (www):
I thought the main problem with snitches/informants wasnt that they were scumbags, but that they were either paid scumbags or scumbags who would go to jail if they couldnt lay a finger on someone else. And as a result, they give unreliable evidence which leads to the doors of innocent people being kicked in at 4 in the morning.
11.25.2006 11:17pm
Tom Holsinger (mail):
NewGuy,

True story. I'm in deposition in Fresno, at McCormick Barstow, with my client in an excessive force action. My client had just come out of his house in response to police knocking on the door. They asked to speak to him in the yard, so he came out, was arrested and battered. It turned out they knew he was always armed, and he had in fact put a gun in his pocket before leaving the house. He had showed me his concealed weapons permit (he was a Mariposa County "mountain man") earlier so I knew he had one.

"Were you armed with a hand gun when you were arrested?"

"Yes."

"Did you have a concealed weapons permit at the time?"

"Yes."

"Would you show it to us?"

Client looks in pocket. "It's not here - I must have it in my truck."

"Could you bring it up and show it to us after we break?"

"Yes."

"Why were you carrying a gun when you were arrested?"

"I always carry one with me when I'm not at home."

"Are you carrying one now?"

"Yes."

pregnant pause similar to the one in Attack of the Killer Tomatoes when the human spy said, "Pass the ketchup"

me - "Mr. 'Smith', would you come outside with me, please? Larry, we'll be back with the permit after I've disarmed my client."

"You do that, Tom!"

My client and I exit the conference room, my client pulls his revolver in front of the terrified receptionist and empties the chamber into my hand. Smith puts the gun back into his pocket, I drop the bullets into my briefcase and give the receptionist a cheery smile as we head for the elevator.

Mr. Smith locks his gun in his truck glove compartment and removes his concealed weapons permit, which I study carefully for the first time and discover that it had expired two weeks earlier.

The receptionist upstairs grabbed her phone when we returned, but stopped calling 911 when I told her that my client was now unarmed.

"Mr. Smith, are you unarmed now?"

"Yes."

"Do you have your concealed weapons permit?"

"Yes."

"Is it valid?"

"Objection! My client invokes his Fifth Amendment privilege to remain silent on the grounds that a response might incriminate him!"

"Tom, do you really think you can get this case to trial?"

"You have a point, Larry {O'Neill, now a judge), he wouldn't get past the metal detector."

So I settled for less than the case was worth.
11.25.2006 11:21pm
RainerK:
The NewGuy,
Forget the new monitor. Posting at the VC comes with an automatic policy of unlimited QI.

One good way for LE to minimise their interactions with informants might be to limit their use to really serious cases, such as dealing with the mob. A small time drug user/dealer hardly qualifies as a criminal organisation. Besides, if the investigators had to do more leg work to gather the evidence, the quality of it might be a whole lot more reliable.

By the way, don't miss reading the other recent posts on Balko's site, just plain theagitator.com . He details a whole number of raids gone bad.
11.25.2006 11:26pm
Tom Holsinger (mail):
corrections:

"Mr. Smith, are you armed now?" change unarmed to armed

"Yes."

"Is it loaded?"

"Yes."

THEN the pregnant pause

and change chamber to cylinder
11.25.2006 11:32pm
Tom Holsinger (mail):
RainerK,

You should hang around with more officers. Law enforcement is very reliant on informants for just about everything. The business is anything but neat and tidy.

I've worked both sides, now work for a court, and have the greatest respect for professional peace officers.
11.25.2006 11:39pm
RainerK:
Reading om theagitator about a raid based on a warrant issued because the suspect used a completely innocent relative's address, reminds me of a couple years ago. Two deputies showed up at the door with an arrest warrant for a woman. We had previously gotten mail to the same name sent to our address and had always returned it unopened. What if that woman had been into some drug dealing or worse? We might have looked at a midnight raid too. Not a comforting thought.
11.25.2006 11:50pm
David M. Nieporent (www):
One good way for LE to minimise their interactions with informants might be to limit their use to really serious cases, such as dealing with the mob.
One way is to stop enforcing victimless crimes. If you have real crimes, you have real victims, who can testify (and/or real crime scenes, with actual evidence). You don't need to rely on informants nearly as much to develop evidence against people.

But given that this isn't going to happen, a more realistic solution is to stop letting cops be lazy and rely solely on informants. Require that they actually do some work to confirm the testimony of informants. If someone claims to have bought drugs from person X at address Y, at least (at the very least!) go confirm that person X actually lives at address Y before you apply for the warrant.
11.26.2006 12:41am
Beerslurpy (mail) (www):

One way is to stop enforcing victimless crimes. If you have real crimes, you have real victims, who can testify (and/or real crime scenes, with actual evidence). You don't need to rely on informants nearly as much to develop evidence against people.

I've been saying this for so many years to no effect that I dont even bother to bring it up anymore. To some extent I've accepted that there are a lot of people in our society that want to use the government to butt into other people's private lives.
11.26.2006 12:59am
Tom Holsinger (mail):
Some of the posts here perfectly demonstrate the distinctions between theory and practice.
11.26.2006 1:02am
Beerslurpy (mail) (www):
Is that directed towards anyone in particular or just everyone that disagrees with you?

What's so impractical about not going after victimless crimes? All the arguments you can make for weed being illegal you can make 10x more effectively against alcohol. We tried banning alcohol, it sucked on a national scale but we finally had the wisdom to repeal it. With weed, there are fewer people who think the law is stupid but all the reasons the laws suck are identical.

There's nothing theoretical about the increased corruption and crime, ruined lives, wasted police effort and eroded liberties that this pathetic social experiment has resulted in.

The distinction between theory and practice we are talking about here only came about because tried to shoehorn the war on drugs into a constitutional framework that was fundamentally hostile to it. We tried to pass it off as a balancing act, but it isnt one. The more we come down on the side of government in this area, the more we lose everywhere else. The more we lower the penalties for police abuse in drug cases, the more likely we are to see these tactics for other crimes as well (like gambling or labor laws or... oh wait). Hudson v Michigan is only the latest attack on the peasantry and sure not to be the last.
11.26.2006 2:55am
whit:
the ignorance here of how cops deal with informants is ASTOUNDING.

whether or not one works in an aguilar-spinelli state, informants cannot simply be taken at face value, etc.

for example.

it is nowhere NEAR enough *(at least not in my jurisdiction) for an informant to say he bought drugs at location X, for us to get a warrant

in brief, this is how PC is developed.

informant is signed up.

informant is completely searched. (no drugs on person). informant is given money. informant is kept under constant surveillance as he enters target residence, upon his leaving residence and then meets with cops. informant is searched AGAIN. drugs are recovered.

this is repeated AT LEAST one more *usually 2 -4 more times* before a warrant is gotten.

this warrant is not based on what the informant says happened. it is based on the observations of sending a guy with money and no drugs into a house, and him exiting WITH drugs and no money, and doing this several times.

*that* gives probable cause for a search warrant. none of the drug sales can be prosecuted, since the informant remains anonymous. only what is recovered during the warrant.

i have seen over and over again in this thread and other threads the assumptions that cops give informants any frigging credibility, and that warrants etc. are taken based on what some dirtbag informant says. that is absurd.

like i said, i don't agree with the drug war PERIOD, but given the drug war (not to mention mafia stuff, terorrism stuff, etc.) informants are a valuable asset.

personally, i FAR prefer to buy the drugs myself vs. using an informant and have done so over 150 times as an undercover agent in the past.

most agencies have moved away from that because it is exceptionally dangerous.
11.26.2006 10:43am
Fub:
whit wrote:
it is nowhere NEAR enough *(at least not in my jurisdiction) for an informant to say he bought drugs at location X, for us to get a warrant

in brief, this is how PC is developed. [...]
I think point of many posts in these threads on the Atlanta shooting of Kathryn Johnston is that the police fairly obviously did not develop PC that way.

According to the WAPO:
Kathryn Johnston, who police said was 92, was killed Tuesday evening by narcotics agents. Authorities said the agents got a search warrant for her home after buying drugs from a man there that afternoon.
11.26.2006 11:37am
whit:
fub, your post does not come close to supporting your assertion.

it says "after buying drugs from a man there that afternoon"

did an undercover cop buy the drugs? an informant? had they made previous buys there? etc. none of those questions are answered. so stop assuming.

if an undercover cop made the buy then OF COURSE all that is needed is one sale (although when i was UC, i would routinely make multiple buys for a stronger case).

again, people make all sorts of ASSUMPTIONs.

frankly, the article supports my case, not yours.

if the cops bought drugs there that afternoon. that's good because it means the PC is fresh.

it also merely says "buying drugs". it doesn't say WHO bought the drugs.

this is the problem with all this armchair analysis. people make assumptions because they want to believe the cops were wrong. frankly, ANY case that al sharpton jumps on , just based on his record, it's probably a good idea to believe the opposite of what Al believes. that's just based on his past record.

regardless, please show me where the WAPO article disputes my point. it does not

you said "fairly obviously" the police did not develop PC that way. you are wrong. it is far from fairly obvious, and there is no evidence in the article that supports your "fairly obvious" assertion.
11.26.2006 11:58am
Fub:
whit wrote:
fub, your post does not come close to supporting your assertion.

it says "after buying drugs from a man there that afternoon"

did an undercover cop buy the drugs? an informant? had they made previous buys there? etc. none of those questions are answered. so stop assuming.
Yes, I made an assumption. It was based on my observation over the years that police usually are quite glad to state strong cases in print if they can. I assumed that if they had made multiple purchases over days or weeks they would have said so. More especially so, since the case involved a SWAT dynamic entry, wounded officers and a dead citizen, and newspapers are reporting that the people in the neighborhood are less than happy about it.

In my experience reading newspapers, I have observed officials' tendency to justify their actions as much as possible when telling information to reporters, especially when those actions are subject of controversy. The absence of justification offered seemed obvious to me.
if the cops bought drugs there that afternoon. that's good because it means the PC is fresh.
I don't disagree that the PC for possesion for sale would be fresh, but I don't see how that alone would support the dynamic entry tactics. The police have been remarkably silent about the actual warrant, and other officials are refusing to release the warrant under an "office policy" rubric, apparently (ie: according to the news reports) in contravention of the state's public record laws.

You may well be right though. Maybe they did make multiple buys. Maybe they developed a good case that Ms. Johnston was selling drugs, and was armed and dangerous. But if gambling were legal I'd bet you $5 that they didn't.

Is that speculation? You bet. There's very little discussion of news without it. But please don't confuse my, or any other, opinion about this case with opinion about the good information you've provided on practices in jurisdictions where you've served.

And Al Sharpton can, you know, kiss something or other.
11.26.2006 1:12pm
Tom Holsinger (mail):
whit,

You overlook what happens when senior officers take over from the street detectives. I won a suppression motion because a lieutenant who was glory-hogging took an informant's unsubstantiated word at face value and did the search himself. The detective sergeant had to watch, gritting his teeth, while the lieutenant screwed up.

You describe what normally happens. These threads concern situations where it has gone horribly wrong.

The issue here is how to minimize the threat to the public from the latter.
11.26.2006 1:21pm
Dave Wangen (mail):
"informant is completely searched. (no drugs on person). informant is given money. informant is kept under constant surveillance as he enters target residence, upon his leaving residence and then meets with cops. informant is searched AGAIN. drugs are recovered.

this is repeated AT LEAST one more *usually 2 -4 more times* before a warrant is gotten. "

Cory Maye.

If that's how "PC was developed", why did the single officer who actually knew who the informant was raid the house next door?
11.26.2006 1:48pm
Speaking The Obvious:
Whit: "like i said, i don't agree with the drug war PERIOD, but given the drug war (not to mention mafia stuff, terorrism stuff, etc.) informants are a valuable asset. "

Compare: I don't agree with slavery PERIOD, but given slavery is constitutional, enforcing the Fugative Slave Law is valuable.--ante-bellum Constitutional scholar

Compare: I don't agree with Nazism PERIOD, but given the laws of Germany, rounding up Jews and placing them in the Warsaw ghetto is valuable.--German policeman circa 1939

Personally, when it comes to massive violations of the personal rights and liberties of an entire class of people (blacks, Jews, recreational drug users), I'm amazed at the rationalizations of those in law enforcement and prosecution. In my examples above, the cost of those valuable enforcements included the Civil War and WWII. Perhaps if civil disobedience had been stronger, such wars would have been less obligatory.
11.26.2006 2:27pm
David M. Nieporent (www):
the ignorance here of how cops deal with informants is ASTOUNDING.

whether or not one works in an aguilar-spinelli state, informants cannot simply be taken at face value, etc.
Whit: go research the procedures used in Tulia, Texas.
11.26.2006 3:26pm
whit:
"Yes, I made an assumption. It was based on my observation over the years that police usually are quite glad to state strong cases in print if they can. I assumed that if they had made multiple purchases over days or weeks they would have said so. More especially so, since the case involved a SWAT dynamic entry, wounded officers and a dead citizen, and newspapers are reporting that the people in the neighborhood are less than happy about it."

and you are STILL doing it.

first of all, if a cop made the purchase that's all that's needed. second of all, you are basing your assumption that since the newspaper doesn't completely flesh out every detail fo the cops case, that none of those details are present.

incredible.

just because it's not in the NEWSPAPER story does not mean it doesn't happened.

a responsible person would wait to read the PC cert before jumping to ridiculous conclusions.

newspaper articles are not PC certs. they frequently (far more times than not) leave out tons of relevant details, especially when all they have to go on is some soundbite from some dept. PIO

i repeat: don't jump to conclusions
11.26.2006 4:48pm
whit:
to speaking the obvious: ok, these responses below are possibly the dumbest, MOST OFFENSIVE, and illogical thing i have read on the internet this month. congrats...


Whit: "like i said, i don't agree with the drug war PERIOD, but given the drug war (not to mention mafia stuff, terorrism stuff, etc.) informants are a valuable asset. "

Speaking the obvious said: Compare: I don't agree with slavery PERIOD, but given slavery is constitutional, enforcing the Fugative Slave Law is valuable.—ante-bellum Constitutional scholar Compare: I don't agree with Nazism PERIOD, but given the laws of Germany, rounding up Jews and placing them in the Warsaw ghetto is valuable.—German policeman circa 1939


comparing the drug war to slavery or nazism is beyond offensive, stupid and nonfactual. it is galactically stupid

you are correct. i don't agree with the drug war. that's called a POLICY disagreement

it does not follow that the drug war is a crime against humanity or genocide.

get real.

and if you really think that way, then you better not have voted for kerry, gore or clinton, since none of them supported repealing the drug war

seriously. comparing the drug war to NAZIsm

comparing a dumb policy of criminalizing drug use to the systematic extermination of a people based on their religion

yea, nice analogy.

plonk
11.26.2006 4:54pm
Fub:
whit wrote:
first of all, if a cop made the purchase that's all that's needed. second of all, you are basing your assumption that since the newspaper doesn't completely flesh out every detail fo the cops case, that none of those details are present.
Agreed that one purchase is enough for PC. But I was responding to your assertion that your practice is to make several, and noting that I doubted that is what happened in this case.

Yes, that is speculative opinion. But this isn't a courtroom. It is a discussion, and an exchange of opinions.
a responsible person would wait to read the PC cert before jumping to ridiculous conclusions.
As I noted previously, although in another Volokh discussion thread on this case, the official who apparently has a duty to release the warrant has refused to do so. I view official reluctance to release information as one indicator of potential official posterior covering.

Whether my opinions about this incident are ridiculous or correct remains to be seen. I agree that they may be proved incorrect by further revelation of facts about the incident.

But I see nothing irresponsible about expressing them. Nobody is going to be convicted or acquitted of a crime, shot at dawn, released to kill again, or even slightly inconvenienced because of them. Few, probably including some of those reading this discussion, will even give a rip about them.
11.26.2006 6:47pm
Fub:
whit wrote:
did an undercover cop buy the drugs? an informant? had they made previous buys there? etc. none of those questions are answered. so stop assuming.
According to a report today from WXIA-TV ATLANTA:
Atlanta's police chief talked Sunday night about a controversial police shooting involving a 92-year-old woman. It was the first time Chief Richard Pennington has commented on the incident.
...
The Atlanta Police Department has promised a full investigation, but said they did find suspected narcotics inside the home.

"They did find drugs in the house and it was not a large amount. It was marijuana," said Chief Pennington.

Chief Pennington said the case was built on a drug buy by a confidential informant, who claimed he purchased drugs inside Johnston's home.
That link is from Radley Balko's blog entry on the subject. He has another interesting bit of information there as well.

Granted that the report doesn't preclude the possibility that undercover police made one or more purchases to confirm the CI claim. But I think you will agree that it doesn't look like that is what happened. If undercover buys were made, can you think of any reason that police would not have disclosed the fact by now?
11.26.2006 11:09pm
markm (mail):
Whit: Apparently your department does it right. That doesn't mean that every department does. E.g., in the Corey Maye case, the only officer who knew who the informant was, was the one who was killed. It's not clear why there even was a warrant for Maye's residence, unless this officer had also failed to find out whether a suspect fingered by his informant still lived there. In the Johnston case, they can't even identify the person who allegedly sold the drugs.
11.27.2006 5:55pm