Whether you like it or not, the County Board of Supervisors, in faithful service to their curmudgeon constituency, has invited the cops to your next social gathering. I first wrote in opposition to the very controversial "Social Host Ordinance" (SHO) in June of 2008. In spite of the fact that the clear majority of Isla Vistans oppose this ordinance (and maybe that's because it's widely believed that Isla Vista is the only place where the SHO will be enforced with any regularity), it was enacted into law on December 1. As I stated previously, the police in Isla Vista and elsewhere are not without tools to suppress underage drinking. They have numerous statutes at their disposal that enable them to detain people that are in public (or in some cases in the public view) and, at the very least, can seize and pour out the drink with impunity. Most don't stop there, however. The Isla Vista Foot Patrol issues thousands of tickets per year for minor in possession, open container in public, and related law violations. Those under 21 are booked into jail for public intoxication at the drop of a hat. And let's not forget that they were already barging uninvited into apartments and houses in Isla Vista long before the SHO was first proposed. Accounts of frequent and deliberate Fourth Amendment violations by the Isla Vista Foot Patrol are common.
The truth is cops barge in to private spaces because they can get away with it, with or without a SHO. Any true accountability for doing so when the sum total of damages are usually hurt feelings and the replacement value of a beer is and was non-existent. The big difference now is that they will, under color of the SHO, have an easier time holding those accountable who are furnishing alcohol to those under 21 in smaller gatherings. There was never really any difficulty holding the big party throwers (i.e., hosting 10 or more people) accountable for serving alcohol to minors because the cops could either walk through an open door and/or demand to speak to the host in order to enforce a noise violation and the exception to the warrant requirement would sprout up during that encounter. Now what they are able to do, under color of the SHO, is to enter any apartment where there is any noise or other evidence noticeable from the outside that suggests there is a "social gathering" going on inside. That's pretty broad (read "overbroad"). It doesn't have to be a raging party. Two people sharing one beer is a party. They could both be 21 or older but the cops are still, under color of the SHO, allowed to barge in to sniff drinks and check ID's and whatever contraband they see in plain view is fair game. A typical reaction of acceptance of the Government over-reaching might be: 'well, even the cops understand that underage beer consumption and college are synonymous and that they will, therefore, use good judgment on deciding when to enforce this law'. I'm sure most cops will. However, what this law does is enable cops with poor judgment to rampantly intrude into peoples' private spaces in ways that will deter even legal conduct. Giving that much 'unbridled' discretion to a rank and file patrol officer is disfavored by the California Supreme Court and may not otherwise withstand Constitutional scrutiny. For example, according to the holding of the California Appellate Court in People v. Hua, police officers may not enter a dwelling absent a warrant simply because they believe that a non-jailable criminal offense is taking place inside.
I hereby invite anyone who has a case involving the enforcement of the SHO to contact me and I will consider handling the matter pro bono.
Showing posts with label cops. Show all posts
Showing posts with label cops. Show all posts
Thursday, December 9, 2010
Monday, February 9, 2009
Bad Cop, No Donut?
Does the recent U.S. Supreme Court decision, Herring v. U.S., signal the end of the "exclusionary rule"? (For those who aren't students of criminal procedure, the "exclusionary rule" is what keeps evidence that was obtained in violation of the U.S. Constitution from being used against a criminal defendant at trial and, if applied, often results in the entire case against them being dismissed).
Perhaps, yes. It is precedent for the idea that the criminal does not necessarily go free where the constable blundered or, as in this case, where the constabulary erred. The warrant upon which Mr. Herring was seized (i.e., "pulled over"), was entered into the computer erroneously, but not in bad faith, by someone other than the officer that pulled him over. Okay, so what? Well, according to the majority, the purpose of the exclusionary rule was to deter intentional misconduct by law enforcement. I guess I agree with that, but here's the point of separation. When we speak of institutions, we can find intent on the part of the higher ups (such as chiefs, and other administrators), or a more nebulous form of intent on behalf of the entire institution where they have failed to put systems in place which will limit the degree of intrusions into the private lives of law abiding people. Not telling police departments, as the Supremes could have, that their failure to develop and implement systems (through software, double-checking by human beings, etc.) to better ensure that information entered into the widely available databases may result in bad guys going free was an opportunity squandered. Incidentally, implementing such systems would also save a lot of valuable law enforcement time by making sure that their time is not wasted barking up the wrong trees. So, everybody could have won: The general public could have won, the police (in a broader sense) could have won, and an occasional undeserving criminal defendant could have won. The latter, according to the ingenious Warren Court, was a worthwhile price to pay for a freer society. The over-arching principals in force are that (1) there is no perfect solution to the problem (and, yes, to my conservative friends who don't know what it's like to be jacked up by cops for no reason, there IS a problem) and (2) that the American values of privacy and freedom that serve to allow us all to live without a rational worry that we will be subjected to the random and otherwise unfettered curiousities of law enforcement are worth sacrificing a small amount of security.
Another discussion that has emerged in the wake of Herring is: "what else might we do to deter police misconduct which violates the U.S. Constitution?". Here are some thoughts:
1. Deprive the offending officer of a paycheck for every violation.
2. Make the offending officer where a patch on his uniform that reads, "I violate people's consitutional rights".
3. Fire the offending officer.
4. Make the offending officer pay money damages to the defendant.
5. Exclude "some" of the illegally obtained evidence. (Hmmm...just the wrapper?)
6. Make the jury aware of the violation and tell them that they may decide to acquit the defendant on that basis. (That might work...maybe...uh, in a marijuana possession case.)
My experience teaches me that prosecutors, judges and cops hate the exclusionary rule so much, that they'll do nearly anything to get around it. What we see in reaction to it are very narrow readings of the rules, and usually a tortured reading of the facts (a very common work-around is to argue that officer didn't actually pull the person over for a dubious legal reason, they pulled them over for a totality of dubious reasons which, altogether, amount to one legal reason) . The less honest police officers will lie to cover up their violation. It's not at all hard to imagine how that happens. If they were lazy about understanding and respecting the Fourth Amendment, who's to say that they won't be just as lazy about understanding and respecting their duty to be honest (when under oath) and otherwise? A rule which does not burden the public safety as much as the "exclusionary rule" might solve this problem. However, would a cop lie to keep his job? Would he lie to avoid public shaming? Would he lie to save money? Would a judge or prosecutor avoid engaging in intellectual dishonesty in order to protect the cop from these various punishments? I say, let's not bother finding out.
Perhaps, yes. It is precedent for the idea that the criminal does not necessarily go free where the constable blundered or, as in this case, where the constabulary erred. The warrant upon which Mr. Herring was seized (i.e., "pulled over"), was entered into the computer erroneously, but not in bad faith, by someone other than the officer that pulled him over. Okay, so what? Well, according to the majority, the purpose of the exclusionary rule was to deter intentional misconduct by law enforcement. I guess I agree with that, but here's the point of separation. When we speak of institutions, we can find intent on the part of the higher ups (such as chiefs, and other administrators), or a more nebulous form of intent on behalf of the entire institution where they have failed to put systems in place which will limit the degree of intrusions into the private lives of law abiding people. Not telling police departments, as the Supremes could have, that their failure to develop and implement systems (through software, double-checking by human beings, etc.) to better ensure that information entered into the widely available databases may result in bad guys going free was an opportunity squandered. Incidentally, implementing such systems would also save a lot of valuable law enforcement time by making sure that their time is not wasted barking up the wrong trees. So, everybody could have won: The general public could have won, the police (in a broader sense) could have won, and an occasional undeserving criminal defendant could have won. The latter, according to the ingenious Warren Court, was a worthwhile price to pay for a freer society. The over-arching principals in force are that (1) there is no perfect solution to the problem (and, yes, to my conservative friends who don't know what it's like to be jacked up by cops for no reason, there IS a problem) and (2) that the American values of privacy and freedom that serve to allow us all to live without a rational worry that we will be subjected to the random and otherwise unfettered curiousities of law enforcement are worth sacrificing a small amount of security.
Another discussion that has emerged in the wake of Herring is: "what else might we do to deter police misconduct which violates the U.S. Constitution?". Here are some thoughts:
1. Deprive the offending officer of a paycheck for every violation.
2. Make the offending officer where a patch on his uniform that reads, "I violate people's consitutional rights".
3. Fire the offending officer.
4. Make the offending officer pay money damages to the defendant.
5. Exclude "some" of the illegally obtained evidence. (Hmmm...just the wrapper?)
6. Make the jury aware of the violation and tell them that they may decide to acquit the defendant on that basis. (That might work...maybe...uh, in a marijuana possession case.)
My experience teaches me that prosecutors, judges and cops hate the exclusionary rule so much, that they'll do nearly anything to get around it. What we see in reaction to it are very narrow readings of the rules, and usually a tortured reading of the facts (a very common work-around is to argue that officer didn't actually pull the person over for a dubious legal reason, they pulled them over for a totality of dubious reasons which, altogether, amount to one legal reason) . The less honest police officers will lie to cover up their violation. It's not at all hard to imagine how that happens. If they were lazy about understanding and respecting the Fourth Amendment, who's to say that they won't be just as lazy about understanding and respecting their duty to be honest (when under oath) and otherwise? A rule which does not burden the public safety as much as the "exclusionary rule" might solve this problem. However, would a cop lie to keep his job? Would he lie to avoid public shaming? Would he lie to save money? Would a judge or prosecutor avoid engaging in intellectual dishonesty in order to protect the cop from these various punishments? I say, let's not bother finding out.
Saturday, July 26, 2008
DUI Cops: Sung Heroes
I would extend a hearty congratulations to SBPD Officer Christina Ortega for arresting more people for DUI in Santa Barbara County than any other cop, except that some of those people are my clients. I don't think they would appreciate my doing so. I do, however, think we need DUI laws and police officers to enforce them. We also need courts and prosecutors to dole out pronouncements of guilt and punishment. We need a lot of things to combat the scourge of drinking and driving that burdens our highways. For instance, we need taxis and other forms of public transportation. We are a society too dependent on cars and, as is vogue to point out, foreign oil. But let's give props to taxi drivers. I can't remember ever hearing about a taxi driver getting any reward whatsoever. They don't get fancy uniforms, badges, pins, ribbons, placques, and other forms of praise. But why not? Don't they prevent DUI too? Of course they do. As one cabbie recently pointed out in an article in the Santa Barbara Independent about the various challenges facing the taxi industry in Santa Barbara, if there were no cab drivers the National Guard would be needed to come in and clean up the mess caused by drunk drivers (or words to that effect). I don't doubt it. Yet on nights when SBPD does not have a DUI enforcer on the beat, we don't see anything close to the carnage that the cabbie quoted in the article described. So, I know why cops get all the praise and cabbies get none: Being a cop is so dangerous and being a cabbie isn't. Right? Wrong. More taxi drivers are killed in the line of duty than cops. The US Bureau of Labor Statistics has consistently counted taxi driving as one of the top ten most dangerous jobs. Law enforcement isn't even in the top ten.
I hereby congratulate the cabbies who keep our streets safe every night from drunk drivers. And, to the fine men and women in yellow, let's be careful out there!
I hereby congratulate the cabbies who keep our streets safe every night from drunk drivers. And, to the fine men and women in yellow, let's be careful out there!
Tuesday, May 13, 2008
Word to the wise...
It happens that innocent people are charged criminally every day. Note that I didn't say that the majority of criminal charges are unfounded. However, don't think that just because you didn't do something illegal, you won't get accused of doing something illegal. Having said that, I wouldn't want to cause a law abiding person to stay up at night imagining that they are going to be whisked away to jail in the middle of the night by the SWAT team. That's called paranoia, and it's not what I'm trying to engender... Here's what I am asking you to worry about: If you are hanging around people that are up to illegal conduct, you are at far greater risk of being criminally charged for something you didn't do. Consider the plight of 96 young men arrested at San Diego State for alleged drug sales. Are all of them guilty? The truth is, I don't know. However, based on my experience, I would guess it is likely that some of the arrests were made largely by association. Whether it was membership in one of the fraternities targeted and/or being a recipient of a group text message or an email by a drug dealer concerning drug sales, it is not unlikely that at least a few of those 96 never sold drugs, nor did anything in furtherance of drug sales. If a large scale sting operation can happen at San Diego State, it can certainly happen at UCSB (and probably already is happening). So, aside from quitting your fraternity, and disassociating with drug users (which may have its advantages), what else can you do to protect yourself from being falsely accused? Well, first read about what happened at San Diego State. Young looking cops working undercover befriended fraternity members by showing up at parties and acting like college kids.
Ask yourself if you really know the people you are hanging with. What is it about them that would cause you to conclude that they couldn't be a cop? What you shouldn't ever think is that they are not a cop because you saw them get drunk, get in a fight, rent an apartment in IV, get high, buy drugs, share drugs, or sell drugs. You should neither rely on any statements that they make that tend to suggest that they are not cops (including, but not limited to, "no, I am not a cop", "I hate cops", "cops are pigs", etc.) The thing to understand is that cops are not only capable of lying, but lying is part of their day to day professional life. They lie frequently when they work under cover, and even in uniform they lie when they are investigating crime. They do so with the complete approval of their department when it is done for an approved purpose. In fact, they are trained to lie. Unlike any other set of professionals, they may lie with absolute impunity. What other group in society can say that about? None. Even used car salespeople (and most certainly lawyers - sorry, lawyer haters) face negative consequences if they are caught lying.
Another thing a UCSB student might do to avoid getting roped in with those who are up to no good is avoid people who are not affiliated with UCSB. It is true that a lot of City College students live in IV, and are, perhaps, planning to transfer to UCSB next Fall. However, if you don't go to school with them (i.e., see them in class, etc.), do you really know that they go to City College? And can't anyone, including a cop or someone who is up to no good enroll in one class at City College at a minimal cost and hassle in order to "fit in" in IV? Of course they can.
The best thing you can do to avoid being arrested is to obey the law. And to greatly limit the possibility that you will be accused of something you didn't do, you should avoid those who are breaking the law.
Ask yourself if you really know the people you are hanging with. What is it about them that would cause you to conclude that they couldn't be a cop? What you shouldn't ever think is that they are not a cop because you saw them get drunk, get in a fight, rent an apartment in IV, get high, buy drugs, share drugs, or sell drugs. You should neither rely on any statements that they make that tend to suggest that they are not cops (including, but not limited to, "no, I am not a cop", "I hate cops", "cops are pigs", etc.) The thing to understand is that cops are not only capable of lying, but lying is part of their day to day professional life. They lie frequently when they work under cover, and even in uniform they lie when they are investigating crime. They do so with the complete approval of their department when it is done for an approved purpose. In fact, they are trained to lie. Unlike any other set of professionals, they may lie with absolute impunity. What other group in society can say that about? None. Even used car salespeople (and most certainly lawyers - sorry, lawyer haters) face negative consequences if they are caught lying.
Another thing a UCSB student might do to avoid getting roped in with those who are up to no good is avoid people who are not affiliated with UCSB. It is true that a lot of City College students live in IV, and are, perhaps, planning to transfer to UCSB next Fall. However, if you don't go to school with them (i.e., see them in class, etc.), do you really know that they go to City College? And can't anyone, including a cop or someone who is up to no good enroll in one class at City College at a minimal cost and hassle in order to "fit in" in IV? Of course they can.
The best thing you can do to avoid being arrested is to obey the law. And to greatly limit the possibility that you will be accused of something you didn't do, you should avoid those who are breaking the law.
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