Sunday, May 31, 2015

Only "Blue Lives" Really Matter

A weeping Brelo reacts to his acquittal.

When Cleveland Police Officer Michael Brelo mounted the hood of a Chevy Malibu and fired fifteen shots through the windshield, killing Timothy Russell and Melissa Williams, he behaved in an “unreasonable” and “unconstitutional” fashion. This was the testimony offered by W. Ken Katsaris, a nationally renowned expert witness on use-of-force issues, during Brelo’s bench trial for two counts of voluntary manslaughter

Brelo’s actions amounted to the execution-style murder of a terrified, unarmed couple whose vehicle had been immobilized following a 22-minute high-speed pursuit and a 137-round onslaught by police. This isn’t why Katsaris found Brelo’s behavior to be “unreasonable” or “unconstitutional.” 

The lives of the victims were not consequential in Katsaris’s constitutional calculations: Once the decision had been made to kill the Mundanes, the only relevant consideration was the safety of Officer Breloand his comrades on the scene.

By leaping on top of the hood of the car, Brelo was “taking action that is not trained, not recognized, not safe, and put all of the other officers in the vicinity of his becoming a victim and their [the other officers] having to attempt to now engage to save his life,” Katsaris testified before trial judge John P. O’Donnell. 

If an officer is in fear for his life and behind cover, which was Brelo’s posture until the last eight seconds of the engagement, it would make not a particle of sense for that officer to abandon cover and “put [himself] standing on top of a car in the middle of, as he called it, a fire fight,” Katsaris explained. 

The logical inference to be drawn from that act is that the targeted individuals did not actually pose a threat, and that Brelo’s actions would have to be regarded as murder. Katsaris disposes of that possibility by insisting that the officer’s “subjective belief” didn’t matter, because he and the other cops have legally protected discretion to kill even when the circumstances do not justify that action. The only “objective” consideration is the safety of the officers as they exercise their lethal discretion. 

“You don’t put yourself in a position of officer down in the middle of a situation [like] that he was involved in,” insisted Katsaris. “That’s why it’s objectively unreasonable…. It’s taking yourself out from behind cover. And you’re putting yourself in crossfire. And you’ are putting the other officers in jeopardy of having to now, if you get shot, save your life which risks their lives.”

When he was asked if Brelo would have acted “reasonably” and “constitutionally” by remaining behind cover while firing the final fifteen shots, Katsaris replied: “I would probably say so.” 

Killing Russell and Williams efficiently and with minimal risk to the government-certified assailants was “objectively reasonable,” by Katsaris’s analysis. This is because only the “Blue Lives” on the scene truly mattered. Divested of double-talk and purged of persiflage, Judge O’Donnell’s ruling acquitting Brelo of voluntary manslaughter expresses the same view. 

“If defendant Michael Brelo is not guilty … if the evidence did not show beyond a reasonable doubt that he knowingly caused [the victims’] deaths in violation of the Constitution – then I will not sacrifice him to a public frustrated by historical mistreatment at the hands of other officers,” wrote O’Donnell in a lengthy and self-indulgent prelude to the inevitable 
exoneration. “At the same time, if the evidence did prove the charges beyond a reasonable doubt then he will be found guilty and punished as [would] any other criminal. His badge and gun offer no special protection here. He and I took similar oaths to support and uphold the Constitution. If the evidence shows that he violated his he can be sure I will honor mine.”

Thirteen pages later, Judge O’Donnell ruled that “as a matter of law … Brelo, shooting from the Malibu’s hood, acted in a sudden passion or a sudden fit of rage in response to serious provocation by Timothy Russell and Melissa Williams sufficient to incite Brelo to use deadly force” – one of the key elements of the charge against him. Four pages further in, the judge ruled that it had been proven beyond a reasonable doubt that Brelo “caused at least one” of the gunshot wounds that caused Russell’s death.”

For any defendant not accoutered with a badge and accustomed to carrying a government-issued gun, those findings of fact would translate into a guilty verdict. The “equal protection” provisions of the U.S. Constitution – assuming that they retain any meaning – would dictate the same outcome for a police officer.  

The “constitution” to which both O’Donnell and Brelo swore an oath, however, is not the written document with which many Americans are familiar. It is an unwritten set of customs and assumptions growing out of the concept of “qualified immunity” for those who carry out the State’s errand of lethal force. In the words of an amicus brief filed in the most recent US Supreme Court case involving the question, “police officers, in addition to receiving qualified immunity, are entitled to wide discretion in making an arrest….Deference is a key part of the Court’s immunity jurisprudence…. By allowing some margin of error, the Court avoids a chilling effect on law enforcement.” 
Katsaris testifies in Brelo's trial.
The operative assumption, derived from the 1974 Supreme Court opinion in Scheuer v. Rhodes, is that “it is better to risk some error and possible injury from such error than not to decide or act at all.” That ruling, a bellwether case involving “qualified immunity,” was issued in response to a lawsuit filed on behalf of victims and survivors of the Kent State Massacre. 

Once a police officer has decided on a “taking” – whether a traffic stop, investigative detention, an arrest, or a killing – the matter has been settled, and the subject has no choice but to submit. If this results in an innocent Mundane suffering injury or death, this is a regrettable “error,” but the officer cannot be held responsible; doing so would inhibit his comrades in similar situations, thereby putting their incomparably valuable lives at unacceptable risk.

Katsaris has diligently propagated that view as a trainer and expert witness on behalf of Americans For Efficiency in Law Enforcement (AELE). It may not be surprising to some that Katsaris found it “objectively reasonable” for adrenaline-propelled police officers to kill two unarmed people at the end of a long and dangerous car chase. Hopefully most people would be taken aback to learn that he conferred the same benediction upon the actions of a Portland Police Officer who fatally shot an unarmed, emotionally distraught man in the back as he was running away. 

Distraught after his brother died from heart and kidney failure, 25-year-old Aaron Campbell suffered a breakdown while visiting his girlfriend. Portland Police received a call about a “suicidal man with a gun.” Very shortly thereafter several police officers materialized on the scene and, in keeping with the prevailing standards of conduct within their profession, resolved the situation by murdering the suicidal man.  

Standing at a substantial distance from the police, Campbell had his back to the officers and his hands in the air when one officer fired several beanbag rounds at him. Another unleashed a police dog. Those actions were taken, according to the officers, because Campbell “wasn’t following commands.” Understandably fearful for his own safety, Campbell started to run – only to be brought down by a single shot fired into his back from an AR-15 wielded by Officer Ronald Frashour. 

A grand jury declined to indict Frashour, insisting that the fatal back-shooting of the unarmed and terrified man “was … consistent with the relevant laws and statutes regarding the use of deadly force by a police officer.” Their perceptions of that issue were sculpted, in large measure, by the “expert” testimony of Katsaris during his December 29, 2011 deposition

“Officer Frashour comported with the training that was offered in terms of the reasonableness of his decision and what it was based on,” Katsaris insisted. “And I concluded that it was reasonable, and objectively [sic], because it is an objective rather than a subjective analysis.” 
Then-sheriff Katsaris with unlicensed killer Ted Bundy.
Katsaris’s performance was a rote recital of the familiar conjurations used to justify police homicide. In one particularly substance-free portion of his testimony, Katsaris insisted that Frashour’s act of homicide was justifiable because of “the perceptions of that officer at that time, in the shoes of that officer, given the totality of circumstances that are presented to him at the moment that he makes that decision.” 

He was “part of the plan but not the planner,” the witness concluded, recasting the familiar Nuremberg Defense in the contemporary language of corporate management. At this point it should be clear that the words spoken by "experts" like Katsaris don't matter; they engage in a kind of performance art in which their very presence signifies the correctness of the officer's decision to kill somebody. Of passing interest is the fact that Katsaris first earned notoriety three decades ago as Sheriff of Leon County, Florida: Following the arrest of Ted Bundy, then-Sheriff Katsaris was the officer who read the indictment to the serial killer. Since that time, Katsaris has devoted his energy to the defense of Bundy's killing fraternity who commit those acts while garbed in the robes of the state's punitive priesthood.
After he joined that fraternity by killing Aaron Campbell in 2010, Ronald Frashour was fired, then suspended for two years during the official inquiry, then reinstated with full back pay. As a result, Ronald Frashour was the fourth-highest-paid Portland employee in 2012.  

While Frashour’s life was never in jeopardy, the police union insisted that his livelihood was of greater value than the innocent life he had ended. As police union spokesman William James Manifold candidly explains, "All lives don't matter” – and “Blue Lives” matter immeasurably more than those of the public supposedly protected by the police.  

Although "all lives have the potential to matter," Manifold explained in an essay republished by the Colorado Lodge of the Fraternal Order of Police, "most certainly all lives don't matter." For him, and other active and retired members of the Sanctified Fraternity of State-Licensed Violence, it is an unassailable truth that "Blue Lives Matter," and that mere Mundanes should literally prostrate themselves in worship before their costumed overseers: 

"[B]y whatever God you worship or don't, by all things holy, #BlueLivesMatter.... Instead of you getting on some high horse thinking that you are being so damned enlightened with you `All Lives Matter' bullsh*t, you should be getting on your knees thanking each and every one of those people who gave their live [sic] so you can sleep at night, so you can walk the street, so you can enjoy the safety that they provide."

"If I've offended you, I honestly don't give a sh*t," continues Manifold, giving unvarnished expression to the institutional attitude of law enforcement as a profession. "And honestly, if you get offended that easily and don't or won't support our law enforcement officers then I really don't have the time for you so good riddance. You are part of the problem."

Those who carry out the State's errand of violence "matter," but this is only selectively true of lesser beings who supposedly "enjoy the blanket of protection" provided by the State and its enforcement caste. If you "show your support ... turn on a blue light at night, thank an officer, attend a Citizens Police Academy," or otherwise express the expected attitude of chastened gratitude and awe-struck reverence before the Praetorians, "you matter." Those who "choose to walk on the `other side' of the line, well just keep walking, they'll get to you eventually.... You don't matter."

The "other side," on this construction, includes not only criminals but critics of the police. These are lives that "don't matter," or lebensunwerten leben, as the same concept was expressed in Germany eight decades ago.

Manifold, interestingly, has been photographed wearing a baseball cap decorated with the “1*” symbol. The purpose of that decal, as was explained to me by someone better-versed in the semiotics of police privilege, is to remind police officers that each of them has “one ass to risk” – and that protecting it at all times, and in all circumstances, is their first priority.

This is because -- as Katsaris and Manifold explained, and police conduct reminds us every day – only “Blue Lives” really matter.

Dum spiro, pugno!

Friday, May 22, 2015

Planes, Trains, and Automobiles: None Are Safe from the State's Plundering Parasites

All aboard Amtrak -- in Germany, circa 1938. (Still from "The Mortal Storm.")

“Is anyone present carrying more than ten marks, or planning to take out of the country any foreign money, gold, jewels, or other valuables?” demanded the German customs inspector after boarding the Innsbruck-bound train. “Any violation of the law will be punished with penal servitude --special cases by death.”

Freya Roth, a single woman in her 20s traveling with her mother and younger brother, produced her passport and handed it to the inspector. After the document was stamped, the truculent bureaucrat noticed the young lady’s luggage.

“Whose suitcase is that?” he snapped, his voice colored with an implied threat. “Take it down – open it.”

“It isn’t locked,” Freya said quietly, her brows drawn together in worried puzzlement. Before she had finished the sentence the inspector had torn open the luggage and started to paw through it. A comrade noticed a large bound volume on the shelf above Freya’s seat. He retrieved it and began to pore over its handwritten pages.

“What is that – code?” the policeman inquired of Freya.

“No – it’s a physiological treatise,” she replied, proudly explaining that it had been written by her late father, Professor Victor Roth.

Radiating hostile disapproval, the inspector handed the manuscript to a Gestapo officer who had been looming in the background, a silent monolith of murderous menace.

“Why are you taking this out of the country?” the officer barked at Freya. “You intend on publishing it abroad?”

Freya tried to explain that she kept the book with her because it was her father’s last work, which was enough to implicate her as an enemy of the State.

“I can’t take the responsibility of allowing you to cross the border with this document,” sniffed the officer as if he owned Freya and everything in her possession. “This is a matter that can only be decided by my superior.”

Freya was taken to a local police station where she was detained for five days for possession of contraband – “a seditious production sustaining a theory destructive to the new ideals.”

 “You belong – in part – to the German race, but by your action you show yourself unworthy to represent that race abroad,” the police commander explained to Freya, alluding to her paternal Jewish ancestry. “You will report to the police daily. Let me warn you to be extremely careful in your conduct, and in your contacts. That is all.”

The traumatized woman was “released” to life as an inmate in an open-air prison. She had been condemned and dispossessed without a trial as the result of a warrantless search of her effects during a routine train trip.

Freya’s Nazi-era experience, depicted in the 1940 film The Mortal Storm, was a fictional parable intended to shock its American audience: Imagine what it would be like to live in a country where police could board a train, rifle through your luggage, confiscate anything of value they found, and detain you indefinitely if they found suspected contraband in your possession. 

From Republic to Reich: a "VIPR Team" on patrol.
I don’t know if Aaron Heuser, a mathematician from Eugene, Oregon, is familiar with “The Mortal Storm.” He doesn’t need to see the movie – he has lived it.

As Heuser recounted to Conor Friedersdorf of The Atlantic magazine, during an Amtrak trip from Eugene to Washington, D.C. last fall, he received an unwelcome visit in his sleeper compartment by a DEA agent whose comportment was indistinguishable from that of the cinematic Nazi officials who terrorized Freya Roth.

The DEA agent addressed Heuser by name and claimed that his trip had raised numerous “red flags” – specifically, that “I had a sleeper car, was traveling alone, and did not check my luggage.”

When the officious pest demanded access to the sleeper compartment and Heuser’s personal effects, the traveler refused. Undeterred, the agent informed Heuser “that he was going to bring a dog, walk it by my room, and that if it alerted, my room would be searched. He told me that I could not argue this and that I was not allowed to be present for the search.”

Like nearly everything else that emerges from the tax-devouring skull cave of a DEA official, that claim was a lie. Heuser had every right to be present during the search, but the agent insisted that he absent himself because “the dog might bite me.” In retrospect, and perhaps at the time, that statement could be seen as a threat garbed in the unpersuasive disguise of solicitude.

As Heuser strode toward the dining car, he was stalked by a second DEA operative who tried to get him to leave the train, where he would be surrounded by other law enforcement officers.

“The officer followed me, telling me that they know I am transporting drugs, and if I have any for personal use, they do not care, and it would be easier if I just told them,” Heuser told The Atlantic. “I said that was nice to know, then kept walking.” Yet another DEA operative tried to gain access by pretending that “someone was hiding in my bathroom.”

When Heuser was finally allowed to return to his compartment, “I found my backpack moved and open, and my wallet, which was set down on the room table, had $60 missing.” He was told by a dining car attendant that “Amtrak is forced to give passenger info to the Feds, that the DEA comes on every trip, usually arresting someone in the sleeping car or taking all their money.”

That Amtrak employee did not engage in hyperbole, as Joseph Rivers can testify. The 22-year-old native of Romulus, Michigan, was robbed by DEA agents when his Los Angeles-bound train was stopped and searched in Albuquerque. Rivers, who entertained ambitions of becoming a music video producer, was carrying his life savings -- $16,000 in cash – in a bank envelope.

Behaving precisely like his fictional Nazi analogues from “The Mortal Storm,” the DEA agent confiscated every penny of Rivers’ life savings without arresting him or charging him with a crime. Under the Justice Department’s civil asset forfeiture program, possession of large sums of cash or other exceptional wealth – “gold, jewels, or other valuables,” as the customs inspector put it in the film – is sufficiently suspicious to justify confiscation.

“We don’t have to prove that the person is guilty,” gloated a DEA agent when asked about the incident by the Albuquerque Journal. “It’s that the money is presumed to be guilty.” Sean Waite, the DEA’s Ortsgruppenleiter for Albuquerque, bragged to the Albuquerque Free Press that his he and his squalid associates have harvested about $1 million from travelers passing through that city on Amtrak’s Southwest Chief.

Setting aside questions about the wisdom of carrying his entire life savings in cash, Joseph Rivers’ experience is especially poignant, given that he could just as easily have been robbed by his local police.

Between 2003 and 2007 – the years of Rivers’ adolescence –
Romulus witnessed a 118 percent increase in forfeiture revenues despite the fact that there was no corresponding increase in criminal activity. A similar trend was seen on the part of law enforcement agencies throughout Wayne and Oakland counties. The forfeiture take by police in Novi went from $12,278 to $2.7 million. The Wayne County Sheriff's Office netted $8.69 million in 2007, four times the haul its banditti seized in 2001.

Sgt. Dave Schreiner, the head of Canton Township's forfeiture unit, was admirably forthright
in defending civil forfeiture as his department’s chief cash conduit: "Police departments right now are looking for ways to generate revenue, and forfeiture is a way to offset the costs of doing business.... You'll find that departments are doing more forfeitures than they used to because they've got to -- they're running out of money and they've got to find it somewhere."

Bear in mind, once again, that this defense of forfeiture was offered at a time when the non-official crime rate was holding steady, and by some measurements in a modest decline. Acting with the irrepressible predatory instinct that guides all State institutions, the police responded to this state of affairs by carrying out a crime wave of their own.

For the privileged plunderers of Romulus and the surrounding towns, preying on the public was encouraged and rewarded – but holding back any of the loot from your cohorts was a grave offense. This is why former Romulus Police Chief Michael St. Andre, his wife, and several members of his Special Investigations Unit will spend time in prison.

A year ago, St. Andre pleaded guilty to three felonies, including embezzlement and conducting a criminal enterprise. Last October he was sentenced to a term of up to 20 years in prison, a punishment forcefully underscoring the State’s determination that its plunderers act with only the purest of motives – like the ascetic, disciplined Nazi inspectors portrayed in “The Mortal Storm,” for example.

The Nazis’ reputation for self-denial was largely unearned. Their version of totalitarianism is as dead as their Fuhrer, but their tactics are widely employed by the enforcement caste in America’s Homeland Security State – a fact that either is or soon will be apparent to anybody seeking to exercise the right to travel unmolested.

Recall the question asked by the Nazi customs inspector in “The Mortal Storm”: “Is anyone present carrying more than ten marks, or … any foreign money, gold, jewels, or other valuables?” That same question was posed – almost verbatim – by Idaho State Trooper Justin Klitch following
a pretext stop of Colorado resident Darien Roseen a few miles from my home in January 2013.

“How much cash is in the vehicle?” asked Klitch after bullying the elderly man into opening the trunk of his vehicle and pretending to detect a “strong odor of marijuana” emanating from the interior. “Do you have any gold, any high-value items in this vehicle?” That question provided a good and sufficient demonstration of Klitch’s true motive in making the stop: He was looking for loot, rather than contraband.

Like the fictional Freya Roth, Roseen endured a lengthy and entirely unwarranted detention after Klitch hijacked his SUV. A thorough search of the vehicle yielded neither gold, nor jewels, nor marijuana.

A growing number of Americans who need to travel but want to avoid molestation or irradiation at airports have taken to the roads or the tracks, only to find that the TSA and its comrades will not leave them alone.

In the film, Freya and her family were interrogated and subject to detention by Nazi customs officials at a border crossing. Americans can have that experience – which can quickly escalate to threats of arrest and a life-threatening assault with a deadly weapon – up to 100 miles inside the national border.

Travelers aren't free from such potentially lethal harassment if they use routes deep within the country’s interior. Multi-jurisdictional task forces called Visual Intermodal Prevention and Response (VIPR) teams
swarm bus and train stations, and even conduct highway checkpoints.

As the redoubtable James Bovard points out, the attitude of our rulers toward travelers “is best summarized by the motto posted at the headquarters of the TSA air marshal training center: `Dominate. Intimidate. Control.’”

Whatever their native tongue, totalitarians from every culture speak the same language. 

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Dum spiro, pugno!

Monday, May 18, 2015

Pity the Poor Stormtroopers: Baby Bou-Bou Ambushed Them (Updated, May 21)

The truth in black and white -- but don't believe it: Sheriff Joey insists that this is the face of a criminal.

(See the update at the bottom of the essay, or click here.)

It was the baby’s fault that he was nearly burned to death in his own crib. 

Bou-Bou Phonesavanh was barely a year and a half old, just learning to walk, and unable to speak, but those limitations didn’t stop him from engaging in “deliberate, criminal conduct” that justified the 2:00 a.m. no-knock SWAT raid in which he was nearly killed

The act of sleeping in a room about to be breached by a SWAT team constituted “criminal” conduct on the part of the infant. At the very least, the infant was fully liable for the nearly fatal injuries inflicted on him when Habersham County Sheriff’s Deputy Charles Long blindly heaved a flash-bang grenade – a “destructive device,” as described by the ATF, that when detonated burns at 2,000-3,500 degrees Fahrenheit – into the crib. 

The detonation of a flash-bang grenade.
Merely by being in that room, Bou-Bou had assumed the risk of coming under attack by a SWAT team. By impeding the trajectory of that grenade, rather than fleeing from his crib, Bou-Bou failed to “avoid the consequences” of that attack. 

In any case, Bou-Bou, along with his parents and his siblings, are fully and exclusively to blame for the injuries that nearly killed the child and left the family with more than one million dollars in medical bills. The SWAT team that invaded the home in Cornelia, Georgia on the basis of a bogus anonymous tip that a $50 drug transaction had occurred there is legally blameless. 

This is the defense presented by Haberham County Sheriff Joey Terrell and his comrades in their reply to a federal lawsuit filed last February on behalf of Bou-Bou Phonesavanh and his family

A tax-subsidized settlement was reached about a month ago in which the National Fire Insurance Company will pay $964,000 to the family -- a little more than $538,000 for medical expenses, and multiple installments of $200,000 to the infant after he turns 18 in 2033. This arrangement will leave the family facing at least a half-million dollars in current medical expenses, a figure that will be matched or eclipsed by future costs incurred by Bou-Bou's ongoing medical treatment.

In familiar fashion, nobody responsible for this crime will be compelled to make restitution, or be held accountable for the nearly fatal injuries inflicted on the child – and the significant but non-life-threatening injury suffered by his father -- during the 2:00 a.m. home invasion that took place nearly a year ago.

Nearly every lawsuit begets a “defendant’s reply” disputing all of the factual allegations and legal claims presented by the plaintiffs. Where the defendants are law enforcement officers, the objective is to build a case that the actions of the officers were “reasonable” and in compliance with established “policies and procedures” – and thus protected by “qualified immunity.” From this perspective, the assailants are innocent of all liability even though they did everything wrong – and the victims are fully to blame even though they did nothing wrong. The reply filed on behalf of Sheriff Joey's deranged deputies will serve as a legal clinic for other departments involved in similar Soviet-grade atrocities in the future.

No evidence of any illegal conduct was found at the home as a result of the raid. The front yard and driveway of the residence abounded in evidence that children lived there – evidence so clear and compelling that even a police officer would have recognized it. The search and arrest warrant was issued at about 2:00 in the afternoon on May 27; this offered plenty of time for the vigilant and capable personnel of the Habersham County Sheriff’s Office to conduct surveillance of the targeted residence and even to arrest the suspect in more conventional fashion, assuming that this was necessary and justified. 

The subject of the warrant, Wanis Thonetheva, was not at the residence when the stormtroopers arrived. He was arrested on narcotics charges several hours later, in broad daylight and in unremarkable fashion, “at his actual place of residence, without any resistance and without the use of a flashbang stun grenade,” the lawsuit recalls.

At the time that arrest was being made, Bou-Bou’s parents were just absorbing the horror of what had been done to the infant by the assailants who had broken into their temporary home without cause and kidnapped the gravely wounded child. 

Bou-Bou’s father -- in agony from a torn rotator cuff that resulted from being assaulted, thrown to the floor, and shackled by one of the invaders -- noticed some blood in the empty crib. The screaming child had been seized by the berserkers and taken away. The frantic parents were not allowed access to the traumatized and bleeding child—“officer safety” uber alles, you know. To cover the abduction, one of the officers on the scene did what comes naturally to highly trained police officers: he hastily improvised a self-serving lie. 

“The parents were told by officers on the search team that their son had a tooth dislodged as a result of the search and that the blood that the parents saw in or about the area of the crib was due to the alleged tooth issue,” recounts the lawsuit. The parents “did not know the extent of their son’s injuries (and were not provided truthful information about them by the Defendants) until they were told at the Hospital where their son was taken that he was in a coma.”

Yes, it is possible that one of the infant’s newly-cut teeth had been “dislodged” by the stun grenade. What the people responsible for that act of abhorrent criminal violence did not mention was that the toddler also suffered “severe blast burn injuries to the face and chest; a complex laceration of the nose, upper lip and face, twenty percent of the right upper lip [was] missing; the external nose [was] separated from the underlying bone; and a large avulsion burn into the chest with a resulting left pulmonary contusion and sepsis.”

Sheriff Joey’s underlings told Bou-Bou’s parents that they had knocked out one of the baby’s teeth. They actually blew off his face and gouged a hole in his chest. Exhibit B in the lawsuit is an unbearable hospital photograph of the child in a medically induced coma immediately after the attack. The Defendant’s reply to that piece of evidence is a denial that the photograph “accurately depicts the injuries allegedly sustained” by the infant.

Even if that photograph is a reliable depiction of those injuries, the baby only had himself to blame, according to Sheriff Joey and his band of privileged cretins. 

Bounkham “Bou-Bou” Phonesavanh is the lead plaintiff in the lawsuit, with his parents listed as co-plaintiffs. When the defendants claim that the damages caused to the child, “if any,” were “directly and proximately caused by the contributory and comparative negligence of plaintiffs and their failure to exercise ordinary care,” they are blaming the baby for not foreseeing the possibility that he would be attacked by a SWAT team at 2:00 a.m. and burned alive in his crib.

When the defendants seek to deflect blame by claiming that “the deliberate, criminal conduct of [the] plaintiffs … supersedes any and all negligence or liability, if any, on the part of these defendants,” they are pretending to believe that the 19-month-old child was part of a criminal conspiracy. 

In its “eleventh defense,” Sheriff Joey and his Brownshirts let everything fly, invoking the doctrines of “assumption of the risk, failure to avoid consequences, laches, failure to mitigate damages, last clear chance, and sudden emergency.” 

Reduced to its putrid essence, this compound defense amounts to a single claim: If you live anywhere within the claimed jurisdiction of a federally subsidized einsatzgruppe like the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team, then you are fair game for an after-midnight military raid, and you have only yourself to blame once it happens. 

It doesn’t matter that the raid is the product of a dishonestly obtained search warrant issued on the basis of an anonymous tip from a petty criminal, or that no evidence of illegal activity was ever discovered. If your home is torn apart and your infant is nearly killed, you alone are responsible, and the gallant agents of public order cannot be held liable. This is true even in cases like that of the Phonesavankh family, who sought a temporary home with a relative in Georgia after their house in Wisconsin was claimed by a fire. 

This is all covered by the “Sucks to be you” provision of the “If you’re not a cop, you’re little people” doctrine.
Looking for other babies to burn, deputy?
Bobbing like feculent flotsam in the puddle of sewage that is the defendants’ “eleventh defense” is the term “laches,” which refers to an impermissible delay by a plaintiff in bringing forward a claim for damages.

This obviously doesn’t apply to the conduct of the Phonesavankh family in this case. They filed a timely notice of tort claim, and then proceeded to file the lawsuit after the Habersham County grand jury refused to hold the Sheriff and his minions accountable – and after the county government broke its promise to pay for Bou-Bou’s medical treatment.

The origins and usage of that obscure and archaic legal term do offer some insight about the way Bou-Bou’s would-be murderers see themselves, and their victim.

“Laches” is a term embodying the ancient legal maxim that “Equity favors the vigilant, and not those who have slumbered on their rights.” Defendants who appeal to this oft-cited and little-applied concept are accusing plaintiffs of subjecting them to a form of “legal ambush.”

 What Sheriff Joey and his cornpone chekists are claiming, in effect, is that while he was sleeping, Baby Bou-Bou ambushed them.

(This post has been updated to include details of the settlement.)

Update, May 21

Some commenters have asked for specific quotes from the "Defendants' Reply" blaming Bou-Bou for the injuries he suffered, and accusing him of negligence or "criminal" conduct. For those interested in reading full text of that reply, the document is found in a Scribd archive, which is accessible through links in the essay above.

Under the "Four Corners" doctrine, which applies to wills, contracts, and other legal instruments, the author's intention in composing such a document is defined by the plain meaning of the text. If a claim or assertion isn't found within the four corners of that document, it can't be considered. The "Defendants' Reply" made several accusations about the supposed conduct of the "plaintiffs"; nowhere within that text is an effort made to distinguish Bou-Bou from the other defendants. 

The lead plaintiff in the lawsuit is the infant, Bounkham Phonesavanh. The Defendants' Reply imputes "deliberate, criminal conduct" to all of the plaintiffs without exception; it is an assertion of joint and several liability on the part of the infant and his parents (described as his "Natural Guardians as Next Friends").

With this in mind, read the "Seventh Defense" on page 34, in which the defendants assert that "plaintiffs' damages, if any, were directly and proximately caused by the contributory and comparative negligence of plaintiffs and their failure to exercise ordinary care."

They did not exempt Bou-Bou from that charge. They couldn't -- he is the chief plaintiff.

The same applies to the claims made in the Tenth Defense (see page 35) that the injuries and damges "were caused by the deliberate, criminal conduct of plaintiffs."

Omission of the definite article from those statements is a failed attempt at a semantic dodge: If the intent were to exempt Bou-Bou, the author of this scabrous brief would have specified which of the plaintiffs had supposedly engaged in "criminal conduct." Absent that specification, the defense mounted on behalf of Sheriff Joey and his minions focused squarely on the lead plaintiff, the infant who was nearly murdered in his sleep.

(My sincere thanks to the heroic Rev. John Pittman Hey for sharing his PACER research on this case.) 

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