Thursday, May 31, 2007

An Allergy to Freedom (UPDATE, June 1)

The view from Sunriver,
a beautiful Oregon community where, at present, the police can only deal with actual threats to life and property. Kind-hearted folks in the State Legislature are working at this very minute to change that.

You need to buckle up your kids!” a shrill, insistent voice commanded from across the parking lot. “It is the law, you know.”

My patience already whittled down to a stub following a typically exhausting shopping excursion (a fairly major undertaking, since five small children were involved), I fixed my tormentor with a theatrically polite smile. She seemed like a pleasant enough middle-class mother, apart from the look of smug civic rectitude radiating from her face.

Why, thank you for that reminder, deputy,” I called out before planting myself in the driver's seat of our mini-van and driving off. I neither buckled in our kids, nor checked for a reaction from the Dutiful Pillar Of Law And Order who had issued the rebuke.

Although Oregon – where this encounter occurred – has a “primary” seatbelt law, I didn't have to buckle up, nor did any of the passengers, while we were in the parking lot: Only those driving on “highways” (a category including any public street) are required to wear seat belts under threat of a citation. This will quite possibly change soon in Oregon, in large measure because of the kind of reflexive, freedom-aversive conformity displayed by the moral tutor I encountered in the parking lot.

Working its evil way through the Oregon legislature right now is a measure, House Bill 3445, which would end a promising experiment in civic liberty just as it threatens to become interesting. Two Oregon resort towns – Sunriver and Black Butte Ranch – are currently free of the plague of modern traffic enforcement.

Police in those towns are presently forbidden to detain and cite drivers who commit trivial violations of minor traffic laws. They retain the power to arrest those who are caught endangering others through reckless driving, of course. But in those two Oregon towns, the police can't stop a driver or issue a ticket for committing any of the malum prohibitum-type infractions on which so many municipal departments thrive. And it's driving them crazy.

No seatbelt? No citation. No tail light? No ticket. In too much of a hurry? Not to worry,” summarized a March 3 AP dispatch from Sunriver. “Sgt. P.J. Beaty watches people in this upscale development breaking traffic laws, and sees plenty of them. But he can't pull them over. A man swerved head-on into Beaty's lane, and then back out again and Beaty couldn't law a glove on him.”

Last winter, a dispute flared up between the Sunriver Owners Association, the de facto government of the 2,000 resident vacation community, and the Sunriver Service District, which governs the police and fire department, over the status of Sunriver's roads, which are considered private but open to the public. In February, the Service District ordered police to consider the roads exempt from minor vehicle infractions.

As a result, the Sunriver Police “can only stop drivers for what the state [of Oregon] calls traffic crimes, such as drunken or reckless driving” and they have removed their radar units from their patrol cars.

In Black Ranch, which is also governed by a private homeowners association, police officers do enforce minor traffic laws, but they can only issue “ranch citations” which do not appear on an individual driving record.

It is important to recognize that the police in both villages were not impeded in any way from dealing with situations in which a depraved person turns his automobile into an instrument of mayhem. They were simply forbidden to stop people for anything less than behavior that directly threatened the lives, persons, and property of those living in the community.

There's not been any rampant crime here,” Sunriver resident Susan Lawson told me. Lawson, who works for the Sunriver Scene, the publication of the Sun River Owners Association, pointed out that many critics of the police restrictions believed that the village would quickly become a haven for drag racers and other maniacal motorists. She dismissed those concerns with a quiet chuckle.

If you know Sunriver's roads, you'd know this was impossible,” she related. “They're curvy and lined with trees. There are deer everywhere. And we have roundabouts, or traffic circles, at several locations, So it's not as if the city is laid out to encourage drag-racing.”

All the panic over the situation was completely unwarranted,” Lawson continued. “The police haven't gone away, and they can certainly intervene where someone is endangering others. They're still on patrol, and if someone were robbing the mini-mart up the road the police would obviously have the power to arrest the suspect. The police are simply not permitted to enforce a very small number – it's either six or eight – of laws dealing with minor traffic infractions, because our roads are the equivalent of private property.”

And the problem with this is...?

If the police are restricted to dealing only with legitimate threats to life, person, and property, what's the emergency? Why are Sunriver civic leaders so anxious to change (.pdf) this uniquely attractive status quo?

HB 3445 (.pdf), which was sponsored by Republican (natch) state representative Gene Whisnant, treats Sunriver's situation as an emergency. It would expand the definition of highways to include “every public way ... and place ... within the boundaries of this state, open, used, or intended for use of the general public for vehicles or vehicular traffic as a matter of right,” including “premises open to the public that are owned by a homeowners association....”

One all but inevitable side-effect of this law, by my reading, would be the application of traffic laws to private roads and parking spaces; indeed, Oregon State Police Lt. Carl Rhodes used the example of “a supermarket parking lot” to describe the present status of Sunriver's roads. So it's entirely reasonable to believe that once the measure is passed, revenue-leeching Oregon police will have the power to cite drivers who fail to buckle up before pulling out of a parking space in front of a supermarket. Which would meet with the approval of the sweet lady referred to above.

Whozat? Whisnant -- Eugene Whisnant, Sunriver's representative in the Oregon State Legislature.

Whisnant and co-sponsor Rep. John Dallum have called for that measure to be amended with an emergency clause implementing its provisions immediately.

Once again I must ask: If everything in Sunriver is, as Susan Lawson (a supporter of HB 3445) told me, “really quiet” in Sunriver, what's the rush to change things?

One oft-stated concern is the fact that the town's population often expands from 2,000 to 10,000 or more during Summer tourist season. Is the assumption here a) that all of these people are looking for an excuse to run amok behind the wheel; or b) that many of those people would be frightened by the prospect of spending some time in a town where drivers enjoy a modicum of freedom from police harassment?

I suspect the genuine source of urgency here is found in the joint testimony offered by the Sunriver Service District and Owners Association to the Oregon legislature on April 12: “[The] change in enforcement has received wide-spread publicity, which has, unfortunately, affected Sunriver's reputation as a safe vacation destination.”

This is a version of option “b” -- fear that a “reputation” growing out of a little additional freedom might somehow act as a tourist repellent, despite the fact that Sunriver had somehow avoided descending into Hobbessian anarchy after the police were put on a shorter leash.

Perhaps this is a correct assessment of the public Sunriver is trying to attract. Maybe the termagant from my parking lot encounter is entirely representative of contemporary Americans – people who have come to believe that safety is the divine State's gift to its dutiful subjects, who seek the comforting embrace of obedient conformity.

In any case, this episode offers a small illustration of the process through which tiny but promising eruptions of freedom are quickly suppressed.


In a very pleasant phone conversation, Rep. Whisnant explained to me that his intention was to craft a bill that would be "specific to Sunriver and Black Butte Ranch," permitting the police in those particular villages "to enforce all of the state traffic laws," and that he didn't believe it would apply to other private roads and parking spaces.

This is certainly true of the second sentence of the brief measure, which focuses on "premises open to the public that are owned by a homeowners association" -- which describes Sunriver and Black Butte Ranch. However, the first sentence just as clearly offers the broad and inclusive definition of "highway" referred to above. When I asked Rep. Whisnant about this, he said that this was "boilerplate info inserted into the bill by lawyers" -- which is where trouble of the sort I'm anticipating often begins, of course.

Born and raised in North Carolina, Whisnant married a fourth-generation Oregonian and moved to The Beaver State following retirement.

While he seems to be on amicable terms with most of his constituents, Whisnant knows that at least one former resident of his district isn't happy with HB 3445.

"Just this morning I heard a message from a friend of mine, a former mayor who now lives in Hawaii. He wasn't pleased with the bill," Whisnant told me. "He told me that my job `is to get rid of bills, not to move more of them through.' That's generally what I'd prefer to do, of course, but it seems that every session we end up with more [laws] than we began with."

A spartan new editon of Pro Libertate: the e-zine is now available at The Right Source.

Tuesday, May 29, 2007

When The State Owns Your Name

Senseless, lawless violence -- government reduced to its essence: BLM employee C.J. Ross commits a felonious assault on Nevada property rights activist Ken Greenwell, in Palomino Valley, Nevada, November 13, 2001. Greenwell had staged a peaceful protest of the BLM's theft of cattle belonging to rancher Ben Colvin. Ross, acting on behalf of the rustlers, took offense. Note the contrast between Ross's snarling, feral visage and the incredulous composure displayed by Greenwell, and ask yourself: Which of these two displays the civilized face of freedom?

Denver resident Evan Herzoff was walking home from a local tavern on April 8 of last year when he saw a swarm of police officers trying to subdue an obviously disturbed man in the parking lot of an Office Depot.

For several years, Herzoff has been a volunteer with Denver CopWatch, which was created following the murder of Ismael Mena by SWAT troops in 1999. Herzoff happened to have a small video camera with him, and – careful to avoid either trespassing on Office Depot property or blocking access on a nearby sidewalk – he recorded the arrest.

The subject, who had already injured himself, was surrounded by six officers, all of whom behaved with restraint and professionalism; for example, they took care to hold his head off the pavement in order to prevent him from further injuring himself. For Herzoff, the episode was a welcome and refreshing example of police officers rendering exemplary public service.

And then one of them, Officer Jeffrey Morgan (badge number 00102), had to ruin it.

Morgan spied Herzoff and his camera, waved and shouted a sarcastic greeting: “Hi – having a good night?” The policeman got in his car and drove off, only to return a few minutes later. The officer asked Herzoff where he lived (less than a block from the scene) and then demanded ID, claiming – dishonestly – that Herzoff was “on private property, and you don't have any reason to be here.”

After receiving Herzoff's driver's license, Officer Morgan went back to the cruiser to run it through the computer. When he returned, the following exchange took place (all of it recorded by Herzoff's video camera):

Officer Morgan: Why don't you step into the alley so I don't have to take you to jail?

Herzoff: No problem [starts to move into the alley]. Oh, can I have your card, by the way?

Morgan: Actually let's take you to jail instead.

Herzoff: I'm sorry. I'm just asking for your card.

Morgan: You're going to jail.

Herzoff was booked into the local jail, sleeping on a top bunk in a crowded cell on a completely spurious trespassing charge. His mother posted $100 bail the next morning and collected his effects, including the video camera, which recorded – among other things – the obvious disappointment of police officers as a search of Herzoff's effects failed to find narcotics.

Officer Morgan obviously had no cause to arrest Herzoff. The 27-year-old spectator had taken care to avoid trespassing and had complied with all of the officer's instructions. The arrest was an obvious act of petty retaliation born out of an adolescent desire on Morgan's part assert domination over a troublesome civilian who had presumed to ask a police officer for identification.

On May 16, the City of Denver paid Herzoff a $8,500 settlement and instructed police officers not to retaliate against citizen request for ID. Neither of these acts should have been necessary, had Morgan – like most Law Enforcement Officers of recent vintage -- not been trained to regard the public as an enemy to be subdued, rather than citizens to be protected.

This is particularly aggravating in Morgan's case. He had treated the apparently deranged man with greater deference than he displayed toward a harmless, law-abiding spectator whose sole “offense” was to display, however politely, the understanding that the local police are supposed to be locally accountable.

Beneath the aggravation caused by Officer Morgan's smug, self-satisfied abuse of power (“Actually, let's take you to jail instead” -- for that needless little bit of snarkiness, Morgan has at least one outstanding a$$-thrashing in his “accounts receivable” file) we find a telling illustration of the fact that we live in a literal police state.

Herzoff was arrested and jailed because he had politely asked a police officer for personal identification. And Herzoff would have been arrested had he refused to provide his own ID when the officer demanded it, since Colorado, like more than twenty states, has a law defining “failure to identify” as a crime.

One of the most salient traits of a police state is the demand "Papiere bitte"-- “Your papers, please” -- coupled with the understanding that failure to comply is good and sufficient cause for detention.

Three years ago, in the case Hiibel v. Sixth Judicial District Court of Nevada, the US Supreme Court upheld the constitutionality of state laws authorizing police to detain people who refuse to identify themselves even when there are no other grounds for an arrest.

That decision, observes legal analyst Barbara Babcock (no, not that Barbara Babcock), represents a grave point of transition for our society. No longer do Americans enjoy “our much-vaunted liberty to walk freely on the streets surrounded by a zone of privacy or even anonymity – not numbered and in place; not responsible to explain ourselves on demand to the government.”

Our freedom of movement now may be constricted at any time by anyone wearing the State-issued official costume and junk jewelry, and we can be incarcerated merely for insisting on the sovereign right to mind our own business. That is a tidy description of a police state – however relatively prosperous or apparently benign it may be.

A police officer does not need probable cause to stop a car or a pedestrian and investigate potential crime,” writes Jeff Bray, Senior Legal Advisor to the Plano, Texas Police Department, in the May issue of Police Chief magazine.

According to the US Supreme Court, a police officer may initiate a temporary stop, a level of intrusion short of an arrest, if the officer can articulate a reasonable suspicion that the suspect has committed a crime or is about to commit a crime," writes Bray. "This is commonly known as a Terry stop” -- after the 1968 decision Terry v. Ohio, which grudgingly allowed police to conduct “stop and frisk”-operations in the course of investigating a suspected crime.

The Hiibel ruling, however, expanded “stop and frisk” to include a police power to interrogate people at whim.

The High Court ruling notes that the plaintiff, Nevada resident Larry Dudley Hiibel, “was arrested and convicted for refusing to identify himself” to Humboldt Deputy Sheriff Lee Dove. Hiibel had been riding in his pickup truck with his 17-year-old daughter Mimi while the two of them argued over the relative merits of Mimi's boyfriend (at the time, Mimi was the driver). At one point, Mimi in frustration slugged her dad in the shoulder, an act that was witnessed and reported to the police by an excessively zealous citizen.

Hiibel had pulled the truck over to the side of the road and was smoking a cigarette when Deputy Dove arrived. Hiibel was grouchy and uncooperative when Dove demanded that he identify himself, and tauntingly invited the Deputy to run him in. Mockery isn't helpful when dealing with a law enforcement officer, but it isn't a crime.

You're facing arrest here if I don't see some identification,” Dove informed Hiibel after the latter had repeatedly refused to show ID. In response to Hiibel's demand to know why an ID had to be shown, Dove replied he was “investigating an investigation” -- a prompt, if less than illuminating, reply.

The video and transcript of the Hiibel arrest document – among other things – the fact that Mimi, the supposed victim, screamed in horror as her father was handcuffed and taken into custody: She was pinned in the cab of the truck by a State Trooper who had arrived to provide “backup.” Then it was Mimi's turn to be thrown to the ground and pinned down by two large adult men, and handcuffed on the utterly preposterous charge of “resisting arrest” -- her resistance in this case confined to expressing disapproval of her father's arrest.

The “resisting arrest” charge against Mimi was dismissed, because the arresting officers couldn't specify an underlying criminal charge to justify the arrest. (It is not unheard of, however, for people to be arrested solely for “resisting arrest”; go here and scroll down to read about the case of a 43-year-old man who was incarcerated on $15,000 bond for the non-crime of “resisting arrest without violence.”) Hiibel was convicted of his supposed crime, however, despite the fact that he had been charged with no other offense.

The purpose of the Nevada statute, observed the Washington Post, was “to codify the Supreme Court's 1968 decision in Terry v. Ohio,” which “empowered police to briefly detain suspicious subjects – such as people who seem to be `casing' a bank in preparation for a robbery – question them and search them for weapons.”

But as Justice Stevens noted in his Hiibel dissent, the Court in that case actually expanded police powers in a dramatic and troubling fashion.

Given our statements to the effect that citizens are not required to respond to police officers' questions during a Terry stop, it is no surprise that [Hiibel] assumed ... that he had a right not to disclose his identity,” wrote Stevens. “The officer in this case told [Hiibel] ... that `he was conducting an investigation and needed to see some identification.' As the target of that investigation ... [Hiibel] acted well within his rights when he opted to stand mute.”

The freedom to “stand mute” when faced with an official demand for ID no longer exists in much of the United States, and we can rest assured that those who are putting the final decorative touches on our Homeland Security State are working quietly to abolish it altogether.

Be sure to pay a visit to The Right Source.

Sunday, May 27, 2007

Another Victim of the Homeland Security State

Sgt. James Emerick "Jaime" Dean, US Army, (ret.), on his wedding day last August. May he rest in God's peace.

The bullet that ended the life of 29-year-old Army Ranger James Emerick “Jaime” Dean last December 26 was fired by a Maryland State Police sniper named Sergeant Danny Weaver. But the circumstances that brought about the lethal conjunction of Jaime Dean and Danny Weaver were engineered by the architects of Washington's open-ended “war on terror” -- both the foreign military conflicts in which Dean had served, and the domestic militarization of law enforcement that brought about his needless death.

Dean, mentally unbalanced after his tour of duty in Afghanistan, was thrust into a deep depression after receiving notice that the Regime was re-activating him to serve another tour in Iraq. Diagnosed with severe post traumatic stress disorder, Dean was subject to recurring nightmares that would cause him to “wake up soaked in sweat,” his widow Muriel told the New York Times.

He was prescribed medication for his condition, which may or may not have helped. The FedEx letter he received from the Pentagon shortly after Thanksgiving definitely did not help. But the Bush-era Pentagon is not burdened with scruples when it comes to redeploying mentally ill soldiers to Iraq.

By Christmas, Jaime was no longer taking his medication. After hoisting a few at a local bar, he came home, agitated and suicidal. He told Muriel – whom he had married in August – that “the next time you see me I'll be in a body bag.” After shattering a mural on the wall of his home, Jaime grabbed a can of gasoline and threatened to burn the house down; Muriel, somewhat accustomed to Jaime's problems, was able to calm him down. “I told myself in a couple of hours he'll be fine,” Muriel told the local newspaper, the Enterprise.

Reflections on a world-shattering loss: A mirror belonging to Muriel Dean, Jaime's widow, displays a photo captioned by a love note from her husband; below, Muriel is reflected in her husband's tombstone.

Jaime left his home to visit his grandmother, Mary. “He talked about Iraq and some family problems he was having,” she recalled. As he left, Jaime told his grandmother he was going to visit his father, who lived nearby.

At around 9:00 Christmas night, Jaime called his sister and told her “[I] just can't do it any more”; a gun shot was heard in the background, leading Jaime's sister to believe initially that he had killed himself. This impression dissipated after Jaime returned to the telephone, even though he wasn't communicative by that point.

Muriel called the police and asked them to check on Jaime's welfare. Mention was made of the fact that Jaime's father Joseph had several guns in his home, including a black powder gun.

Jaime Dean with his father Joseph, last August (l.); Joseph Dean cleaning his home following Jaime's death in December (below)

Joseph's home, observes an official inquiry conducted by Richard D. Fritz,(.pdf) the Republican County Attorney for St. Mary's County, is “a secluded family farm surrounded by woods and fields” and accessible by “a dead end dirt lane serving only the few houses located thereon.” The home provided “a clear 360 degrees of observation,” meaning that Jaime couldn't leave without being observed.

When the police learned that a suicidal Army Ranger had holed up at the farmhouse, they evacuated the neighboring houses. They also disabled his truck with “stop sticks.” Since the subject was alone, and no crime had been committed, this was not a hostage situation; Jaime Dean was a threat to himself alone. He was isolated and neutralized. The police could easily have outlasted Dean if they had the patience to do so, the vigilance to keep the house under surveillance, and the clarity of mind to get him in touch with his family and loved ones.

After all, the point was “to save lives, not kill somebody,” comments Tony Wheatley, Joseph Dean's neighbor.

But that's now how the paramilitary affiliates of the Homeland Security State operate.

How the Homeland Security State deals with humanitarian crises: An armored vehicle is deployed during the standoff with Jaime Dean. (Photo courtesy of BayNet.)

Joseph Dean's home was surrounded by Emergency Response Teams – that is, SWAT units – from two local Sheriff's departments and the Maryland State Police. Two “Peacekeeper” armored vehicles (courtesy of the Pentagon's Law Enforcement Support Office, most likely) were dispatched to the site. A 14-hour standoff ensued, during which time “family members were not allow to talk to Dean ... [and] his grandmother was threatened with arrest,” recounted the Washington Post.

At about 1:30 am, the police disabled Dean's cell phone and rerouted the residential land line phone so that it could only communicate with the police negotiator. This may have made sense if Dean had been a criminal suspect, but, once again, he wasn't: He was a suicidal, agitated man who most likely would have benefited from contact with his family, rather than with a spokesman for the paramilitary forces surrounding him.

After a bizarre and unnecessary effort to insert a “throw phone” into the house, the assault with “chemical munitions” began: “Somewhere between forty and sixty rounds were shot at the house,” reports St. Mary's County Attorney Fritz in his investigation.

Let's pause for a moment and recap:

Jaime Dean was a combat veteran suffering from post-traumatic stress disorder. He was prone to violent dreams generated by his combat experience. He was in the middle of an emotional breakdown, cut off from his family and looking down the barrels of a large paramilitary force. And then he comes under attack with non-lethal, but disorienting, chemical weapons.

The eminently predictable product of these factors was Dean's action, shortly after the unwarranted and useless gas attack, was to fire his shotgun in the general direction of the police. That was the first time in this entire episode that Dean had directed gunfire at anybody (including himself). And it “would have been viewed as ... a first degree felony assault, which is punishable by a term of incarceration of 25 years,” observes Fritz.

Dean would fire his shotgun two other times during the siege, once after a drowsy sniper carelessly let his rifle discharge (remember: only police and soldiers are responsible enough to be trusted with firearms), and once at a second “throw phone” placed in the window at around 11:30 am.

Do they look like Peace Officers to you? Tactical operators outside Joseph Dean's home during the 14-hour siege. (BayNet photo)

By that time, the police had devised an “overall plan of operation”:

*A police officer named Trossbach, a childhood friend of Jaime's, was brought to the scene to try to “talk him out.”

*If this failed, the SWAT operators would bracket the home with the armored “Peacekeepers.” “Peacekeeper 1” would plant an explosive charge on the right side of the house; “Peacekeeper 2” would be deployed to the front.

If the actions of Trossbach, in attempting to talk Dean out did not work, chemical munitions would be redeployed by both Peacekeepers, from the front, and the back of the residence,” reports Fritz. “If the chemical munitions did not work, the explosive charge would be detonated in order to blow a hole in the side of the house so as to remove the security provided by this windowless wall, and to serve as a possible point of entry.”

The first question that occurs to me is this: If an effort was going to be made to “talk him out,” why didn't the police allow Jaime's wife, father, grandmother, and sister to talk to him? A second question: Fritz points out that only five minutes were allotted for Officer Trossbach to make the attempt to talk Jaime out – why? What was the rush?

At 12:45, according to the chronology assembled by Fritz, “power is cut to the house. Telephone to the residence is dead, negotiator continues to attempt contact but cannot because phone is dead. State Police Peace Keeper is deploying chemical munitions in front, Calvert County armored vehicle is deploying chemical munitions to the rear of the residence.”

Once again, I have to ask: What was the rush? And how was Jaime supposed to react to this assault?

Two minutes later, Jaime opened the door and appeared to be pointing his gun at the armored Peacekeeper. That's when Sgt. Weaver, fearing for the safety of the officers therein, fired the shot that killed Jaime Dean.

The officer [Sgt. Weaver] had to take that action to protect the exposed officers,” insisted Maryland State Police Col. Thomas Hutchins shortly after the incident. “It's a tragedy that was not of our doing. It was Mr. Dean who decided.”

What, exactly, did the victim “decide” here? Dozens, perhaps scores, of perverse decisions were made by police officials that created circumstances perfectly calibrated to result in the death of Jaime Dean, of which I'll highlight just a few:

*The first perverse decision was to treat the matter as a hostage situation, rather than a humanitarian emergency.

*The second was to militarize the encounter, which made escalation, rather than de-escalation, the predictable course of action.

*The third was to cut off Jaime from his family, rather than to try desperately to reconnect him with them. Since bloody when is it proper to prevent communication between a suicidal person and his family?

*The fourth was to unleash “chemical munitions” against Jaime, which predictably provoked him to return fire; I'm cynical enough – as a result of studying many episodes of this kind – to believe that this might have been the desired outcome.

*Who was the tactical genius who authorized the use of explosives? What was to happen after the wall had been breached? Was there any option here that would not have resulted in Jaime Dean suffering a violent death?

*And who decided to cut power to the home while Jaime was on the phone with a police negotiator?

County Attorney Fritz, who concludes – incomprehensibly – that Jaime's “killing may well be justifiable under the law,” excoriates the police for creating a set of circumstances in which that killing became inevitable.

Since “the police had both time and location in their favor,” Fritz points out, “there was absolutely no need to push an extraction of Mr. Dean. This was not a hostage situation, where an innocent civilian was being threatened... to the contrary, it was a barricade by a single individual, who was demanding to be left alone.”

Time after time, Mr. Dean informed officers that they should not attempt to approach his house, and for them to back off, or they would get hurt,” continues Fritz. Legitimate Peace Officers would have cooperated, while being ready to help if necessary. But Dean was dealing with paramilitary operators whose mission was to make the subject submit, or be destroyed – even when that target was a mentally ill man who had not committed a crime.

Fritz points out that “there was absolutely no need to take on such an aggressive stance.” And the operational plan to end the standoff “needlessly created a situation that if Mr. Dean exposed himself as he did, the Counter Sniper, Sgt. Weaver, would have no option but to utilize lethal force, as he did.”

Which is to say, Col. Hutchins, that it was you – your department, and the tactical units deployed on-site, who “decided” to end Jaime Dean's life. It was your choices that resulted in the shot being fired that killed Jaime in the doorway of his father's home, leaving his blood smeared five feet into the entryway of a house that had already been perforated with scores of chemical munitions.

Jaime Dean while deployed in Afghanistan.

In a larger sense, however, these circumstances were devised by those who preside over the Warfare/Homeland Security State. Such people regarded Jaime Dean not as a wounded but affable young husband and father (to his newly acquired stepson), a generous neighbor, an exemplary employee – but only as someone to fill a uniform, and perhaps a coffin, in a pointless and immoral war in which needless tragedies like the one that killed Jaime are commonplace.

(Thanks to Trevor Bothwell of the Free State Project for his capable reporting on this tragedy. Thanks as well to Lew Rockwell for tipping us to the New York Times essay about Jaime and his needless death. It should also be pointed out that Jamie's widow Muriel has established an In Memoriam website for her husband.)

Please be sure to visit
The Right Source.

Friday, May 25, 2007

Dog and Man in Washington

Ken Rogers of Washougal, Washington was enjoying a visit with family in Kennewick and looking forward to some fishing when his slumber was rudely disturbed on the night of July 13, 2003.

Rogers, a 54-year-old regional sales manager for Georgia-Pacific, was sleeping under the stars when a large dog suddenly vaulted over a wooden fence and sank its teeth into his left arm. Shocked and disoriented in the darkness, and not wearing his eyeglasses, Rogers struggled desperately to free himself from the dog, to no avail.

A voice from the other side of the fence informed Rogers that the dog was the property of the Kennewick Police Department's K-9 Unit. “Stop fighting the dog and I will release him,” yelled Officer Bradley Kohn. Rogers, understandably, wasn't content to wait, and started punching the police dog -- later identified as “Deke” -- in the head.

Officer Kohn, along with Officer Ryan Bonnalie, tore down part of the fence. The two of them, along with Deputy Jeff Quackenbush, “entered the backyard and subdued Rogers,” as the excessively decorous language of a legal appeal filed by the officers describes the incident.

The TriCity Herald offers a more descriptive account: “Deke latched onto [Rogers] and in the struggle bit him several times on the hand, back, neck and face while three officers beat him.” Syndicated legal affairs columnist Jack Kilpatrick, citing an official report, offers another layer of relevant detail: “Officers Kohn and Bonnalie and Deputy Quackenbush struck Mr. Rogers with fists, knees and a flashlight, while Deke continued to bite and hold Mr. Rogers until Mr. Rogers was subdued and handcuffed.”

An even more candid description of the episode would be this: Ken was sleeping peacefully when he suffered a potentially lethal dog attack, and then was severely beaten by three armed men after they had vandalized his host's property.

Supposedly, all of this was justified because the police were hot on the trail of a criminal suspect. One would presume that they were seeking a burglar, a rapist, or some other practitioner of criminal violence. One would be mistaken: The police officers who beat Ken Rogers had been summoned as backup by Sgt. Richard Dopke after he had spotted someone riding a mini-moped without a helmet or turning on the lights.

After Dopke turned on his siren and running lights and gave chase, the “suspect” (whose behavior was foolish, but difficult to characterize as criminal) pulled into a nearby garage and shut the door. A man and two women at the residence, which was about a block away from the yard where Rogers was sleeping, claimed that the mysterious mini-moped rider named “Troy” had run half-naked through their backyard. Dopke later claimed that he didn't find the story convincing, but he called for backup and a K-9 Unit just the same.

The story gets even uglier from here.

Overkill is always the first option: Sure, they're heavily armed and already outnumber the protester, by why shouldn't the riot police let their attack dog have a little fun, too?

As it happens, Gary Hilliard, a Corrections Officer (jail guard) for Benton County, was the man who sent Officer Dopke off in pursuit of the mysterious moped man. And, it should not surprise us to learn, it was Hilliard who had actually been operating the vehicle illegally. Making matters all the nastier is the fact that roughly two years after this episode, Hilliard was fired from his job and served a three-month jail term “for having sexually explicit pictures of children on a personal computer,” reported the TriCity Herald.

I'm on record expressing misgivings about the way evidence is collected from computer hard drives in child pornography cases. I will point out that Hilliard's subsequent record does cast his actions on the night of July 13 in an interesting light.

Just as it was overkill for the police to beat someone suspected of a minor traffic infraction, Hilliard's actions in lying to the police and sending them after a fictitious fugitive could be seen as the product of a bad conscience. This makes me wonder if Hilliard was returning from an illicit assignation of some kind when he provoked the interest of Officer Dopke. In any case, Hilliard misdirected the police, and an innocent man was mauled by a police dog and severely beaten by several officers as a result.

Despite having to empty his bank account to pay for three months of physical therapy following the beating, Ken Rogers would most likely have let the matter go had the Kennewick Police Department displayed minimal decency and professionalism by contacting him, asking after his health, and expressing its regrets.

So Rogers sued the Kennewick Police Department for more than $2.35 million, complaining that he had been subject to illegal arrest, unreasonable search and seizure, and other violations of his individual rights.

On May 1, a US District Court jury upheld Rogers' claims, awarding him and his wife Mary Lou more than $1 million in compensatory and punitive damages.

En route to that verdict, the Kennewick city government made a ridiculously low settlement offer, called into question the extent of Rogers' injuries (subtly accusing him of fraud because he wasn't visibly disabled and continued to enjoy outdoor activities), and filed a petition to the US Supreme Court (.pdf) breathtaking in its assertions of official police impunity.

The petition was filed following a ruling from the Ninth Circuit Court of Appeals last August that found Rogers had been subject to unlawful search and seizure. Seeking to overturn that ruling, attorneys for the Kennewick police claimed that Deke the police dog -- not Officer Kohn, the dog's handler -- was responsible for the injury to Rogers.

Don't blame me -- it's the dog's fault: Heroic Military Police use dogs to threaten helpless Abu Ghraib detainees.

Kohn claims to have released Deke after the dog's leash had become entangled “on the hitch of a boat trailer” in a driveway near the yard where Rogers was sleeping. Deke then vaulted the fence sua sponte and latched on to Rogers's left arm. Because Kohn did not specifically order this assault, the police petition claimed, he did not intentionally “seize anyone in the fenced backyard,” and thus there was no violation of rights protected by the Fourth Amendment.

According to the petition, “there can be no constitutional violation for a wrongful seizure where there is no intent to seize.”

Even if there were true regarding the attack by a trained police dog who was trained to act like (in the words of Diehl Lettig, Rogers' attorney) a “heat-seeking missile,” the fact remains that Rogers was swarmed, beaten, and handcuffed by three police officers.

This is an intentional “seizure” by any rational definition. In fact, one of the federal District Court rulings cited in the police petition, Cardona v Connolly, actually vindicates Rogers' complaint. That ruling held, in relevant part, that a “Fourth Amendment seizure” can be said to take place “only when there is a governmental termination of freedom of movement through means intentionally applied.”

Surely the liberal use of “fists, knees and a flashlight” by police against a prone individual being mauled by a police dog until the victim is “subdued” and handcuffed would qualify as “governmental termination of freedom” through “intentional” means.

Nonetheless, the petition for US Supreme Court review filed on behalf of the officers insisted that their actions were covered by the principle of “qualified immunity,” which is described as “an important constitutional protection for our public servants.”

"Qualified immunity," reduced to its essence.

Government officials performing discretionary functions are entitled to qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated,” insists the Kennewick police brief.

What this means, from that perspective, is that the police had an open-ended and unqualified right to beat and detain Rogers unless he can (quoting again from the brief) “demonstrate that the police officers, by their conduct, violated a clearly established constitutional right....” Furthermore, it wouldn't do, insisted the police petition, for Rogers to demonstrate the violation of “a generalized right, such as the right to be free from illegal searches or seizures or the right generally to be free from the excessive use of force.”

In this specific case, the police argued that unless Rogers, could prove that Officer Kohn intended for Deke to attack him specifically, he had no legal recourse. On this construction, the mauling, beating, handcuffing, and general mistreatment Rogers endured was all legal and appropriate, since those who inflicted it on him were clothed in “qualified immunity.”

Fortunately, this matter ended up being put before a jury of sensible people who detected in that argument the distinctive aroma of something very much like the sort of residue Deke deposits at the end of his canine digestive cycle.

A significant and relevant post-script to this matter:

Three of those implicated in this incident – Officers Dopke and Bonnalie, and Deke – were retired form the force between 2003 and 2006.

Officer Bonnalie, who helped vandalize the fence and had a hands-on role in beating Rogers, was fired in 2005 after an off-duty road rage incident in which he threatened a 63-year-old Meals on Wheels volunteer by shoving a handgun into his chest.

A parting thought...

Several people whose opinions I highly esteem and whose friendship I cherish have advised me to "balance" my reporting on the police. They have a sound point; I don't want to become monomaniacal on the subject of police corruption. I am searching for suitably inspiring stories about good police officers and and willing to run them when given the chance. And I am always receptive to news tips about stories of that kind (or any other, for that matter).

Please be sure to visit The Right Source.