Tag: law enforcement

More on the Siobhan Reynolds Case

Building on Ilya Shapiro’s post on the sealed grand jury proceedings against Siobhan Reynolds, founder of the Pain Relief Network, and the sealed Reason Foundation/Institute for Justice amicus brief, here is some more background on the Wichita witch hunt:

The U.S. Attorney’s Office in Wichita, Kansas, indicted physician Stephen Schneider and his wife, Linda, a nurse, for illegal drug trafficking in December 2007. Reynolds found an eerie parallel between Schneider’s case and the prosecution that denied her husband pain medication, so she took action. Her public relations campaign on behalf of Dr. Schneider so annoyed Assistant U.S. Attorney Tanya Treadway that Treadway sought a gag order to bar Reynolds’s advocacy. The presiding judge denied the gag order.

When the judge denied Treadway’s gag order, Treadway instead subpoenaed Reynolds for records related to Reynolds’s PR campaign against the prosecution of the Scheiders. Ms. Reynolds resisted the subpoena and tried to challenge it in court, but the $200 daily fine intended to ensure compliance with the subpoena has left Reynolds pretty much bankrupt.

This case represents the worst of government excesses in federal overcriminalization and overzealous prosecution. The federal government continues to treat doctors as drug dealers, as Ronald Libby points out in this Cato policy analysis. The grand jury, intended as a check on prosecutorial power, instead acts as an inquisitorial bulldozer that enhances the power of the government. My colleague Tim Lynch examined this phenomenon in his policy analysis A Grand Façade: How the Grand Jury Was Captured by Government.

Cato Adjunct Scholar Harvey Silverglate examined the case of Dr. William Hurwitz in his book, Three Felonies a Day: How the Feds Target the Innocent. The DEA turned a few of Hurwitz’s patients into informants and prosecuted Hurwitz. When Hurwitz shuttered his practice, two of his patients killed themselves because they could not get prescriptions for necessary painkillers. Siobhan Reynolds’s husband, another of Hurwitz’s patients, could not get essential medication and died of a brain hemorrhage, likely brought on by the blood pressure build-up from years of untreated pain.

Ninja bureaucrats continue to treat doctors that prescribe painkillers as tactical threats on par with terrorist safehouses. When the DEA raided the office of Dr. Cecil Knox in 2002, one clinic worker “thought she and her husband, who was helping her in the office that day, would be shot. She looked on in horror as an agent put a gun to his head and ordered, ‘Get off the phone! Now!’” Radley Balko chronicles this unfortunate trend in Overkill: The Rise of Paramilitary Police Raids in America, and the Raidmap has a separate category for unnecessary raids on doctors and sick people (sorted at the link).

Taser Cameras

UPI is reporting that the Taser Corporation is selling cameras that mount on their stun guns.

The cameras automatically turn on when the Taser is removed from its holster and its safety device is released.

“Video is going to help the officer,” said Cmdr. Steve Wilkinson, internal affairs investigator for the West Melbourne (Fla.) Police Department. “And if you don’t record it, the kid down the street with a cellphone is going to use it.”

As I wrote in this post and said in this video and this forum, this is the future of law enforcement. Taser-mounted (or handgun-mounted) cameras can show the circumstances leading up to a use of force and prevent lawsuits where force was justified. The camera’s presence on a weapon, however, can provide officers an incentive to present the taser or handgun sooner rather than later. Departments would be better served with head-mounted cameras, which are also likely to capture more of the events before an officer employs physical force. Expect more of this as these devices become cheaper (and tamper-proof).

Regardless of the form, use of recording technology to provide more transparency and accountability in law enforcement is a good thing.

Embed the Raidmap

Cato Fellow Radley Balko highlighted the trend toward heavy-handed police practices in Overkill: The Rise of Paramilitary Police Raids in America. Radley continues to chronicle police abuses at The Agitator and Reason. Recent examples of police excesses include the unnecessary death of seven-year old Aiyana Jones in Detroit and this raid on an innocent elderly couple in Chicago (immigrants who fled the Soviet Union because of oppression).

One of the fruits of Radley’s research was the Raidmap, a Google map application that allows you to see the scope of this epidemic of “isolated incidents.” You can also sort botched raids by category: death of an innocent, raid on an innocent suspect, death or injury of an officer, death of a nonviolent offender, unnecessary raids on doctors and sick people, and other examples of paramilitary police excess.

View Original Map and Database

Now you can embed the Raidmap on your website or blog as seen below. The code is on the Raidmap page.

Pass it on.

Judge Dismisses Wiretapping Charges against Motorcyclist for Recording Traffic Stop

Maryland Circuit Court Judge Emory A Pitt, Jr. has ruled that motorcyclist and Maryland Air National Guardsman Anthony Graber did not violate the Maryland wiretapping statute when he recorded his traffic stop. The wiretap law does prohibit the recording of audio where there is a “reasonable expectation of privacy,” but Judge Pitt found that a police officer performing a traffic stop has no such expectation of privacy.

“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” the judge wrote. “When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.”

As I said in this op-ed, and as Clark Neily, Radley Balko and I pointed out in this video, Maryland police officers have used the “expectation of privacy” claim as a tool to deter anyone from recording on-duty police officers. In Anthony Graber’s case, a Maryland state trooper cut off Graber in an unmarked car and emerged from the driver’s side door in jeans and a gray pullover, gun drawn and badge not visible. It looked like a carjacking, and Graber was not charged for recording the encounter until he posted it on YouTube. The message to other Marylanders was clear: record the police, and you will face arrest and felony prosecution.

The prosecutor behind the case against Graber, Joseph Cassilly, spoke on a panel last week at Cato. He made clear that he disagreed with the structure of the Maryland wiretapping law, and was using the case to push the legislature toward a single-party consent wiretap statute. While I agree with a move to a single-party consent law, it is satisfying to see the charges against Anthony Graber reduced to the traffic violations that instigated the encounter in the first place.

Cops on Camera

The past six months have given us a number of police excesses caught on camera. Police officers savagely beat University of Maryland student John McKenna and filed false felony assault charges against him. Video of the event set the record straight. Prosecutors dropped the charges against McKenna, and four officers have been suspended and are facing state and federal investigations.

The McKenna case showed the value of video as an honest witness. Yet Maryland police officers continue to make the claim that the state wiretapping law forbids recording in public. I discuss this issue in a new Cato video, Cops on Camera, along with attorney Clark Neily of the Institute for Justice and Cato adjunct scholar Radley Balko.

We are hosting an event next Wednesday, September 22, on the right of citizens to record on-duty police, and the prosecutor in the high-profile Maryland wiretapping case against Anthony Graber will be on the panel. Registration available here.

Maryland Attorney General Sides with Anthony Graber

You may remember the case of Anthony Graber, the Maryland motorcyclist charged with violating the state’s wiretapping statute for recording his traffic stop and posting it on YouTube. I’ve said several times over the last few months that these charges are based on a misreading of the law; minus a “reasonable expectation of privacy,” recording an oral communication does not violate the wiretapping statute.

As it turns out, the Maryland Attorney General agrees.

The Maryland Attorney General has released an opinion advising a state legislator that, contrary to the claims of Harford County State’s Attorney Joseph Cassilly, a traffic stop is probably not an instance where a police officer can claim a reasonable expectation of privacy.

The AG’s opinion provides a thorough survey of Maryland’s and other states’ decisions on the issue, giving three possible interpretations of the wiretap statute as applied to a citizen recording a traffic stop.

First, a court might agree with the theory that police encounters are private conversations, but the AG found that this “seems an unlikely conclusion … particularly when they occur in a public place and involve the exercise of police powers.” That sounds familiar.

Second, a court might conclude that the Maryland statute forbids only the surreptitious recording of a police stop. The opinion deems this an unlikely outcome due to differences between the language of the Maryland law and the wiretapping statutes of Massachusetts and Illinois.

The opinion settles on its third possible outcome, agreeing with what I, Radley Balko, Carlos Miller, the Maryland ACLU, the Maryland courts, other Maryland State’s Attorneys, and the Maryland Attorney General’s previous opinions have said: the Maryland wiretap statute does not permit the prosecution of citizens for recording the actions of public officials in public places.

Graber’s court date is set for October. The AG’s opinion should halt his prosecution and further abuse of the Maryland wiretap statute.

DWI Convictions Due to Faulty Breathalyzer Calibration

From the Washington Post:

Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.

D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said…

The District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said.

This is the same jurisdiction where a woman who had a single glass of wine with dinner and a Blood Alcohol Concentration (BAC) of .03 was arrested for being under the influence in 2005. The national standard for a DWI arrest is .08, and anyone testing below .05 is presumed not to be intoxicated. The District of Columbia’s standard for arrest was anything above .01 if the officer deemed the driver intoxicated. Public outcry over the strict policy, particularly in a town built on tourism, prompted the D.C. Council to temporarily amend the law. The D.C. Police website still says that police can charge DUI (Driving Under the Influence, not Driving While Intoxicated) for a BAC of .07 or lower.

There is good reason to question the foundation of DWI laws and enforcement. Radley Balko makes the case that the federal push for reducing the national DWI BAC standard from .10 to .08 achieved little for public safety in Back Door to Prohibition: The New War on Social Drinking. Even Mothers Against Drunk Driving (MADD) founder Candy Lightner regrets the no-tolerance direction her organization has taken: “[MADD has] become far more neo-prohibitionist than I had ever wanted or envisioned… I didn’t start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.”