Suicide by Cop; The Sequel

Posted on May 29, 2012 by Marty Ryan

One of the first blogs written by us [Fawkes-Lee & Ryan] (two years ago) was entitled “Suicide by Cop”.  It garnered more comments than anything we have written since.

The blog is about three incidents in which law enforcement came close to emptying their ammo cartridges on a particular suspect.  One of those suspects was Randall D. Kimsey, 50, Ogden, IA.  This past week his family filed a lawsuit against the police who killed him.

In 2010 we wrote:

This past May police were called to a residence in Ogden, IA after a neighbor accused the man in the residence of making harassing phone calls.  When police arrived at the residence in question, the accused answered the door with a handgun.  The reactive police force went into panic mode and cordoned off the house, evacuated neighbors, and after a ceremonial waiting period, entered the house.

“Randall D. Kimsey 50, had been suicidal in the past and authorities were worried that he had taken prescription drugs,” The standard operating procedure for a suicidal citizen appears to be what occurred next.  A SWAT team entered his home in full gear and shot Kimsey to death.  Police took the moral road of shooting Kimsey to protect him from committing suicide.

In a recent Des Moines Register article, more facts come to the surface.  When a sheriff’s deputy went to the door to make the contact about harassing phone calls, Randall Kimsey was asleep. The deputy “demanded” that Kimsey’s wife wake him up.  When Kimsey came to the door one of the officers yelled, “gun!”  Kimsey went back to bed.

This entire episode was ridiculous if it hadn’t been for the death of Randall Kimsey.  Kimsey’s wife, who obviously didn’t feel in danger, was persuaded to leave the house and “was taken into custody”.  The neighborhood was evacuated.  Law enforcement attempted to negotiate with Kimsey.  Why?  The man has every right to own a gun.  All he did was come to the door with a gun in his hand.  Maybe I’m missing all the facts, but there was no need for law enforcement to enter the house (without a warrant – there was certainly enough time to acquire one) and set off percussion flash bombs – several, and expect a man to not be afraid for his life.  I really believe anyone in that predicament might shift into a survival mode.

The SWAT team went upstairs and deployed another flash bomb and Kimsey came out of the bedroom while “allegedly carrying a gun.”  He suffered 14 bullet wounds.  “Six officers left at least 33 shell casings at the scene.”  Maybe this is not a good choice of words, but it was definitely “overkill”!

I hope Lori Kimsey wins this lawsuit.  Probably, it will be settled out of court.  But law enforcement training and decision-making needs improvement.  The CATO Institute has published a booklet [white paper] entitled “Overkill:  The Rise of Paramilitary Police Raids in America.”  I don’t expect everyone to run out and purchase a copy, but the opening paragraph in the Executive Summary says most of what you may already know:

Americans have long maintained that a man’s home is his castle and that he has the right to defend it from unlawful intruders.  Unfortunately, that aright may be disappearing.  Over the last 25 years, America has seen a disturbing militarization of its civilian law enforcement, along with a dramatic and unsettling rise in the use of paramilitary police units (most commonly called Special Weapons and Tactics, or SWAT) for routine police work.

There is so much wrong with this story.  And the sheriff doesn’t help himself by stating that he shouldn’t comment at this point, but that he has “a lot of things that come right to my head based on what you’re telling me.”  It almost sounds premeditated.

I said it in 2010, and I’ll say it again:  “Today’s modern police officer has a Glock in the holster, mace, flashlight, handcuffs, radio, tactical gloves, ammo, combat knives, and batons.  SWAT teams are not afraid to use those “tools’ when communication breaks down.  It’s too bad that patience is not strapped to that utility belt as well.”

The 2010 blog is posted online yet at:  https://iowappa.com/?p=103 Suicide by Cop

 

 

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Anslinger’s Allies

Posted on May 16, 2012 by Marty Ryan

Shortly after being elected, President Obama instructed the Department of Justice to stop going after people who were using marijuana for medicinal purposes.  That directive didn’t last very long.  Today, the Drug Enforcement Agency is busier than ever hauling in otherwise innocent people for doing something that their state law allows – relieving their pain with the aid of a natural herb.

Representative Dana Rohrabacher [R – CA46] introduced an amendment to H.R. 5326, the Commerce, Justice, Science, and Related Agencies Appropriations Act, which would “prohibit the use of funds to be used with respect to preventing the States of Alaska, Arizona, California, Colorado, Delaware, District of Columbia, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”  Rep. Rohrabacher was joined in sponsoring the amendment with Rep. Maurice Hinchey [D – NY22], Rep. Tom McClintock [R – CA4], and Rep. Sam Farr [D – CA17].  Urban, rural, Republican and Democrat.

The amendment had nonpartisan and diverse flavor.  It failed to pass 163 – 262 (Roll no. 238).  The only member of the Iowa delegation to vote in favor of the amendment was Rep. Dave Loebsack [D – IA2].  Reps. Bruce Braley [D – IA1], Tom Latham [R – IA4], Leonard Boswell [D – IA3], and Steve King [R – IA5] voted against the amendment.

Sixteen states and the District of Columbia have approved marijuana for medicinal purposes.  Two other states have legislation pending before their governors (New Hampshire and Connecticut).  Polls have shown repeatedly that approving marijuana for medical purposes run in favor of the concept, from 51% to 80%.

What is it that 4 out of 5 members of Congress from Iowa don’t get?  Do they actually approve of tax-payers’ dollars going to the armed DEA raids that bust a middle-aged woman with multiple sclerosis?  Do they still think that marijuana will do all the things that Harry Anslinger claimed?

There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, results from marijuana usage. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.  – Harry Anslinger, 1937 testimony before Congress.

Rohrabacher’s amendment was nothing more than telling the DEA that it should quit wasting time and money going after individuals and small businesses who are abiding by their respective state laws.

Perhaps the money would be better spent training the DEA about a certain document called the U.S. Constitution, particularly Amendment X:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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No Slam Dunk

Posted on April 9, 2012 by Marty Ryan

Last September I wrote that the United States Supreme Court was about to hear oral arguments in a case called Florence v. Board of Chosen Freeholders.  As you’ll recall, this is what I had to say about it:

Albert Florence was a passenger in a car traveling on a New Jersey road when the driver was pulled over by a New Jersey State Trooper.  Florence was taken in to custody on a non-indictable civil matter unrelated to the traffic stop.  Even though he claimed the unpaid matter had been taken care of, the trooper brought him to the jail to be booked.  In the booking process, Florence was told to strip, hold his hands out, lift his genitals, and raise his tongue with his mouth open.  All of this took place with a jailer standing within an arm’s length.

If that wasn’t bad enough, Florence was transported from the Burlington County Jail to the Essex County Correctional Facility after 6 days.  At Essex, he went through a similar naked routine as he did upon entering the Burlington County Jail. This time “he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough.”  After a day spent in the Essex County facility, the charges against Florence were dropped and he was released.

I also wrote that this case was not a “slam dunk” in favor of what many of us consider being a violation of the Fourth Amendment.  It wasn’t.  The SCOTUS handed down its decision last week.  In justification for saying that it’s okay for correctional and jail officials to conduct intrusive searches, Justice Kennedy said that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals.”  He likened Florence to Timothy McVeigh and the serial killer Joel Rifken.  (I had no idea who Rifken was and had to Google® him – he is a serial killer who may have killed up to 17 prostitutes in the New York/Long Island area.)  Justice Kennedy got it wrong.  Instead of expecting Timothy McVeigh, jails and detention centers should be expecting the people more like Florence.  Not only are most people entering these facilities more like Florence, but even Justice Kennedy couldn’t show that McVeigh or Rifken were security risks when detained.  Contrarily, both appeared to be closer to gentlemen than hoarders of contraband, and in the case of Rifken, very cooperative.

The Court of Appeals for the Third Circuit held that “the strip search procedures described by the District Court at BCJ and ECCF are reasonable.” The Appeals court reversed the “District Court’s grant of summary judgment” and remanded the case “for further proceedings consistent with [its] opinion.”  In coming to this conclusion, two of the three circuit judges based their reasoning on balancing “the Jails’ security interests at the time of intake before arrestees enter the general population against the privacy interests of the inmates.”  They gave more weight to the security interests than they did to the constitutional rights of the accused.  Justice Kennedy did the same.  He barely mentioned constitutional rights, but he went on with page after page about the security of jails.  It’s as if the Jailers Association of America wrote the decision.

We’re coming to a point where the needs of government are becoming greater than the rights our forefathers envisioned.  Yes, there needs to be control over what comes into our correction and detainment facilities.  But comparing Florence to McVeigh or Rifken is insulting to anyone who is going to be asked to “come down to the station to get this little matter of a traffic ticket settled”.

 

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Knock, Knock; Who’s There?

Posted on March 11, 2012 by Marty Ryan

Imagine renting a home and answering the door to a couple of men in suits.  “We understand you have a few people living here that are unrelated to you.”  How would you respond to that question by someone showing an official badge of the city in which you live?  It may not happen to most of us, but all of us should care about government sticking its obtrusive nose into our households.

Senate File 2300 is a bill that prohibits the regulation of rental property by a city based upon familial relationships.  Instead, the occupancy limitations would be based upon square footage.  The purpose of this bill is to give rental property owners and their customers – people who can’t afford to purchase a home of their own – a right to be left alone from government busybodies.

A 2007 Iowa Supreme Court decision, ARPA v. Ames, supposedly settles the matter in favor of the City of Ames and other municipalities.  An Ames ordinance limited occupancy to certain homes in certain neighborhoods to “no more than three unrelated persons”.  However, the decision was not unanimous.  The legal question in this case was whether the Ames ordinance violated the Equal Protection clauses of the United States and Iowa Constitutions.  All justices agreed that the ordinance did not violate the federal constitution, but Justice Wiggins, with whom Justices Appel and Hecht joined, filed a dissenting opinion in which he believes the ordinance violated the state constitutional provision of Equal Protection.  Article I, section 6 of Iowa’s Constitution states:  “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

The majority opinion properly identified the question of “whether the ordinance . . . is rationally related to a legitimate governmental interest.”  But that’s all it got right.  The majority sided with Ames’ argument that the ordinance promoted “a sense of community, sanctity of the family, quiet and peaceful neighborhoods, low population, limited congestion of motor vehicles and controlled transiency.”  Those may be governmental interests, but are they ‘legitimate’?  Or, is it just convenient to a particular section of the community?

Justice Wiggins acknowledges that cities have a “legitimate purpose in promoting the quality and character of its neighborhoods,” but we share his perception that it’s sort of a stretch to believe that “distinguishing between related and unrelated persons in a zoning law is rationally related to the promotion of a sense of community, sanctity of the family, quiet and peaceful neighborhoods, low population, limited congestion of motor vehicles, and controlled transiency.”

Justice Wiggins said that “this ordinance disadvantages those most likely to live with roommates—the poor and the elderly. . . . The ordinance distinguishes between acceptable and prohibited uses of property by reference to the type of relationship a person has with those they live with, not by the conduct of those that live in the residence.”  He even had a suggestion.  “If Ames wants to regulate population it can do so by reference to floor space and facilities. Noise and conduct can be controlled with nuisance and criminal laws. Traffic and parking can be controlled by limiting the number of vehicles to all households or with off-street parking regulations.”  This suggestion is the point of SF 2300.

“Families today, especially ones with teenagers, are just as likely as a group of unrelated persons to have numerous vehicles parked outside their home. In fact, in a college community like Ames, students, the unrelated persons most targeted by the ordinance, are more likely to rely on alternative means of transportation—public transportation, foot, or bicycle—than a vehicle.”

The rationally-written dissent offers more common sense arguments:  “As another court has articulated under a similar ordinance, “twenty male cousins could live together, motorcycles, noise, and all, while three unrelated clerics could not.”  That raises a funny question.  Would a convent be excluded from the ordinance because all the residents are sisters?

“[I]t is irrational to suppose this ordinance promotes a quiet and peaceful neighborhood. This ordinance does not distinguish between a raucous family that plays loud music at their home, has large parties at their home, and houses more vehicles than persons living in their home, and a house of four single, quiet, homebodies whose only knowledge of wild parties and loud music comes from watching television. As another court summarizes, housing ordinances of this sort create an irrational discrepancy in treatment because a tenant-occupied house whose “residents happen to be the quiet, neat type who use bicycles as their means of transportation” are subject to the ordinance; “whereas the owner-occupied house is not subject to the ordinance, even though its residents happen to be of a loud, litter-prone, car-collecting sort.”

The dissent comes to the bottom line:  “Ames claims it is promoting a sense of community with this ordinance: But whose community is Ames promoting? Is Ames only interested in promoting traditional families or those who can afford to live in a home without roommates—the wealthy and the upper-middle class? It is irrational for a city to attempt to promote a sense of community by intruding into its citizens’ homes and differentiating, classifying, and eventually barring its citizens from the community solely based on the type of relationship a person has to the other persons residing in their home.”

This last thought provokes one of our own.  How do you prove that you are related or not related to another?  Will DNA samples have to be procured?  We’re okay with the government knowing approximately ‘how many’ live in a particular building; we are not okay with the government knowing “who” lives in a particular building.

Mason Proffit sang that “we’re all brothers, and we have to learn how to live.”  Communities should allow all of us to live as brothers and sisters, and not takes names as we move from rental property to rental property in an attempt to escape the clipboard-toting, badge-wielding, eyes and ears of city officials who want to know who is living with you.

Contact your state senator and urge passage of SF 2300.

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Same Results; Different Reasoning

Posted on February 6, 2012 by Marty Ryan

Last November, I wrote a blog about how the Fourth Amendment is losing its meaning.   One of the examples I had used was the case of United States v. Jones.  The facts of the case are as follows:   Antoine Jones and Lawrence Maynard were business partners.  In 2004, both were suspected of being involved in drug trafficking, so the FBI attached a Global Positioning System (GPS) to the Jeep that Jones drove – his wife’s.  A federal judge had issued a warrant to attach the GPS to Jones’ vehicle, but the judge limited the warrant to the District of Columbia and for a specific ten-day period.  FBI agents didn’t get around to installing the GPS device until the 11th day, and then they attached it to the Jeep while it was parked in a public parking lot in Maryland.

This case involves the question of 1) whether the warrantless use of a tracking device (GPS) on a vehicle to monitor its movements on public streets violates the Fourth Amendment, and 2) whether the government violated Jones’ Fourth Amendment rights by attaching the GPS tracking device to his vehicle without seeking a valid warrant and without his consent.  At the time of the posting, the United States Supreme Court was hearing oral arguments.

On January 23, the Court handed down its decision.  Yes, “the Government physically occupied private proper­ty for the purpose of obtaining information. [The Court has] no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.”  Justice Scalia, the self-appointed historian of the Bench, went on to justify the decision by using case law on trespass as old as the country.  But Justice Stotomayor explained it best in her concurrence:  “[T]he Gov­ernment installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones’ Jeep without a valid warrant and without Jones’ consent, then used that device to monitor the Jeep’s movements over the course of four weeks. The Government usurped Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection.”

Stotomayor used a different reasoning than Scalia to come to the same conclusion.  Citing People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009), she noted that the GPS will go far beyond providing the government with information that will use as evidence; it will also include “(‘trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meet­ing, the mosque, synagogue or church, the gay bar and on and on’)”.  Justice Stotomayor pointed out that she “would also consider the appropriateness of entrusting to the Executive, in the absence of any over­sight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance.”  We can agree with that!

Both the majority and Stotomayor criticized Justice Alito’s concurrence.  Alito’s opinion was well-thought out and brought technology into the frame of the argument.  However, he lost me also when he began to compare this situation with tort law and then suggested that this matter be taken up by Congress and the states.  “A legislative body is well situ­ated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a com­prehensive way.”  That statement makes me think that Justice Alito doesn’t see the magnitude of the Fourth Amendment violation.  I’ve seen legislative bodies attempt to comply with constitutional questions.  It isn’t pretty.

In any case (no pun intended), the Court came to correct conclusion.  We can sigh a bit, smile, and know that some fragment of the Fourth Amendment remains – for now.

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What Happened to Our Fourth Amendment?

Posted on January 29, 2012 by Marty Ryan

This is a short read, and there’s not a lot of legalese in the opinion.

http://www.supremecourt.gov/opinions/11pdf/11-208.pdf

The Fourth Amendment to our Constitution has been watered down considerably over the decades.  It’s difficult to imagine that a thought process went from patrol officer to U.S. Supreme Court Justice in the time it takes for lightning to flash.  Can you find the quote that should have overturned the district court’s ruling?

Hint:  “I’m going to get my husband.”

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