When A Fugitive Dies, "Blue Privilege" Makes All the Difference

Pleasant Grove, Utah resident Ashleigh Holloway Best killed herself in the early hours of May 17, 2016 when she lost control of the stolen 2002 Lincoln Navigator she was driving and plowed it into a tree. The man who was pursuing the thief, Kenneth Lee Drew, was the authorized representative of the vehicle’s lawful owner. On January 11, Drew was sentenced to prisonbecause the thief foolishly killed herself. 

If Drew had been a government-employed law enforcement officer, rather than a private repossession agent, he would likely have received a hazardous duty commendation following Best’s admittedly tragic death. After all, police officers in Utah and elsewhere routinely use lethal force in dealing with citizens who seek to avoid being physically “repossessed” by agents of the state that supposedly owns them. Most of those cases don’t involve people being pursued for actual crimes, such as automobile theft. 

Like too many families, the Bests had been overwhelmed by financial reverses and had fallen behind in their car payments. They reportedly were helping care for ailing relatives, and had only one family vehicle. The desperation that gave rise to Ashleigh’s self-destructive decision is as understandable as her actions were inexcusable. 

By giving pursuit once Best fled with a car she no longer lawfully owned, Drew acted imprudently. It has never been proven that he deliberately forced Best off the road at the end of the chase, which would have been both criminally irresponsible and self-defeating. In addition to the fact that it is perverse to risk killing someone to recover a stolen car, ramming a vehicle one is seeking to repossess makes no economic sense. It’s likely that Drew’s regrettable decision was a product of frustration, rather than malice.

Foolish choice, tragic death: Ashleigh Best.

If he had called the police to report an auto theft, the outcome for Best might well have been identical – but the state operative whose actions led to the fatal crash would be protected by the pernicious legal fiction called “qualified immunity.” That privilege enjoyed by state-licensed plunderers is not extended to private property recovery agents, whose jobs are both unpleasant and frequently dangerous. 

“There was [sic] lots of mistakes made that night,” insisted Brennan Best, Ashleigh’s widower, after Drew was sentenced. “I don’t think what was done [to Ashleigh] was done on purpose. But I do believe we all need to be accountable for our own actions.”

Drew made a horrible, perhaps unforgivable, mistake. Brennan and Ashleigh Best conspired to commit a crime – theft through fraud.

According to the investigative summary in Drew’s indictment, when he arrived at about midnight to reclaim property for which the Bests were no longer making contractually required payments, Brennan interfered with the repossession and demanded an opportunity to make a new arrangement with the creditor. Drew agreed with that proposal, and began processing the necessary forms. While the repo agent was thus preoccupied, Best covertly instructed his wife to take the automobile to a relative’s home. 

At that point, Mr. Best became an accomplice in grand larceny: At that point, pending completion of a new payment plan, the automobile was the property of the creditor. If Best had been sincere in his offer to Drew, there was no need to abscond with the vehicle. (In fact, if the couple had filed for Chapter 7 bankruptcy, they could have avoided repossession of the Navigator.) 

After Ashleigh climbed into the car and sped off, Brennan, abetted the theft by “trying to place himself in front” of Drew’s tow truck “to prevent it from following the Navigator,” according to the police account. Ashleigh’s conduct suggests that her husband had instructed her to “drive it like you stole it” – which, in fact, was precisely what she had done. 

If her excursion had been innocent, the guilty-minded driver would not have endangered the lives of others by careening through residential streets at speeds of up to seventy miles an hour. Drew acted with culpable recklessness as well – but Brennan Best is criminally liable in the death of his wife, whether or not state functionaries will admit as much. 

Unlike police officers in similar situations, Drew – a private peace officer enforcing a legitimate property rights claim – was not offered “Garrity” protections, which would have meant that his initial statement to police could only be used for disciplinary action, rather than criminal prosecution. Nor was he allowed the luxury of reviewing video records of the incident prior to speaking with investigators, another perk extended to police in Utah and elsewhere. 

Because of this, Drew’s grief-stricken, guilt-ridden disclosures were critically scrutinized by police eager to build a criminal case. If he had been a fellow member of the Punitive Priesthood, Drew’s equivocations and self-contradictions would have been seen as evidence of trauma, rather than proof of criminal intent. 

“I’ve never seen a repo agent be this aggressive,” insisted Pleasant Grove Police Lt. Britt Smith shortly after Drew’s arrest. This is only true to the extent that Smith fails to perceive his costumed comrades as “repo agents” of a sort – because lethally aggressive tactics of the kind Drew allegedly used are quite commonplace. 

Investigators claimed, but have not proved, that Drew forced Best off the road using a variation of a PIT (Precision Immobilization Technique) maneuver. A PIT maneuver is to be used only in situations where deadly force is justified. Yet hyper-aggressive police in Utah employ that tactic frequently; one recent incident of that kind involved a driver suspected of driving while intoxicated. Another episode, interestingly, involved recovery of a stolen car.

Almost six years to the day before the avoidable, largely self-inflicted death of Ashleigh Best, South Jordan Police Officer Jared Nichols used a PIT maneuver in an effort to trap an SUV driven by Wade Pennington in a cul-de-sac. Pennington, who was on probation and had a court hearing scheduled a few days later, was being pursued without cause by Officers Nichols and Brett Lopez. The official story was that they suspected him of theft, but their supervisor, Sgt. Allen Crist, found no evidence to support that suspicion. 

Crist explicitly ordered Nichols not to pursue Pennington, but that order was ignored.

“I’m going to take him out,” Nichols said just a few minutes before trapping Pennington. He and Lopez went “gun-up” to make a felony stop, despite the fact that their target was not suspected of a felony. 

After Nichols t-boned Pennington’s SUV, Lopez emerged with a drawn gun and screamed at the driver to “get on the ground – stay where I can see you.” At roughly the same time, Nichols unloaded on Pennington at point-blank range. Immediately after shooting the victim, Nichols snarled, “Freeze, Wade! I’m going to shoot you. Get down on the f***ing ground!”

Pennington was murdered – no other word is adequate – because he was trying to comply with Lopez’s demands. The officer who murdered him spat out two contradictory commands after firing the deadly shots. 

The last words Pennington heard were a sadistic taunt hurled at him by Lopez: “You’re dead, mother****r!”

Nichols and Lopez were cleared by their department within 72 hours. Despite having the opportunity to refresh their memories by watching dashcam video of the chase and subsequent killing, the officers told stories that were self-contradictory, and contradicted each other. 

Lopez was eventually fired for violating the department’s high-speed chase policy, but never faced criminal prosecution. As a matter of equity, the same punishment would have been appropriate for Kenneth Drew, who violated his company’s policy by pursuing a vehicle he had been sent to repossess. The only other morally suitable option would have been for Lopez and Nichols to serve the same sentence imposed on Drew. 

Officer Nichols not only avoided prosecution, he was promoted. The murder of Wade Pennington was the second time Nichols had slaughtered an unarmed man after immobilizing his vehicle in a parking lot: He had followed almost exactly the same procedure in executing Darren Neil Greuber, who like Pennington was a parolee, in 2007. The investigating officer who had cleared Nichols in the Greuber killing, West Jordan PD Sergeant Michael S. Leary, performed the same right of absolution after Nicholas gunned down Pennington two years later.

As someone not invested with Blue Privilege and buoyed by the financial support of a police union, Drew was maneuvered into pleading guilty to manslaughter as part of a plea bargain in which prosecutors asked for a suspended prison sentence. 

Utah Fourth District Judge Robert Lunnen, a callow, vindictive jurist who had been on the bench for less than a month, discarded that plea agreement, imposing a sentence of one to fifteen years in prison. The obscenely severe sentence, I suspect, reflects the hostility of tax-fattened functionaries toward those who challenge the State’s monopoly on “justice.”

This week's Freedom Zealot Podcast examines the death of Ashleigh Best, the murder of Wade Pennington, and other examples official privilege:



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The Perverse Ingenuity, and Routine Lawlessness, of Law Enforcers

Enforcers of drug prohibition can be perversely ingenious in devising methods to subvert due process guarantees. One tactic widely employed by police officers looking for a way to circumvent the Fourth Amendment is to intimidate a subject into giving the officers permission to invade the rights of others – such as residents of an apartment building, or passengers in an automobile. That ruse has been rebuffed in two recent state Supreme Court rulings.

Police officers in Berlin, Connecticut who conducted a warrantless search of an apartment complex using a drug-detecting dog violated the Fourth Amendment, acknowledged a December 22^nd ruling from that state’s highest appellate court.

...but they can murder our dogs with impunity, natch.

In May 2012, acting on an anonymous tip, police obtained permission from the owners and managers of an apartment complex to carry out what was called a “canine examination of the common areas of the building.” A drug-detecting dog named Zeusz was deployed in the hallway of each floor of the complex, and allowed to sniff at the bottom of each door. Zeusz displayed what is called a “passive alert” at unit 204, which prompted the officers to obtain a search warrant. This led to the discovery of several marijuana plants.

The Fourth Amendment’s definition of a reasonable search refers to a particular description of “the place to be searched, and the persons or things to be seized”; this language was designed to forbid the kind of general warrants that were commonly used by British military and customs officials in the years immediately prior to the colonial rebellion. By getting the owners of the apartment complex to authorize a warrantless search – waiving the rights of dozens of people to be secure in their individual domiciles -- the Berlin Police behaved less like their British forebears than their antecedents in Communist East Germany.

The trial court threw out the evidence seized in that search as the product of a Fourth Amendment violation. The State of Connecticut appealed the case to the state Supreme Court, which upheld the trial court’s decision. The ruling cited a long string of federal judicial precedents – including a recent ruling in a very similar case from Florida – describing the use of warrantless “canine sniffs” as a violation of common law property rights and the un-enumerated right to personal privacy.

Given that dozens or scores of SWAT raids occur, on average, every day in the American Soyuz, it’s clear that Americans cannot look upon their homes as a refuge from government abuse. They are at even greater risk when exercising their freedom of movement, given the predatory conduct of opportunistic police agencies empowered to seize cash and other property in the name of drug prohibition.

Gerald Cleverly was a passenger in a pickup truck driven by his friend Chris Jones when El Dorado, Kansas Police officer Brent Michael Buckley stopped them for not wearing seat belts. Buckley would later admit that he had executed a pretext stop for the purpose of arranging a “consensual” search of the vehicle and its occupants. Both Jones and Cleverly submitted to a pat-down search – which they were not legally required to do – and nothing was found.

Buckley issued the citation, and then – employing a deceptive tactic taught by police training programs such as Desert Snow – he told the motorist that although he was free to go, the officer wanted to ask “a few more questions” and requested permission to search the truck.

The purpose of what Desert Snow operatives call the “Roadside Conversation” tactic is to elicit potentially incriminating details from drivers who are ignorant of the fact that they have no legal responsibility to tell the officer anything. This also extends the traffic stop beyond its constitutionally permissible limit, allowing the officer to devise an “articulable suspicion” of criminal activity that will supposedly justify a “drug sweep” by a conveniently available K-9 handler. This charade inevitably ends with the dog “alerting” on something “suspicious,” which provides an excuse for a hands-on search of the vehicle.

This script was followed by El Dorado PD officers Buckley and Sam Huming, with the minor adaptation that a K-9 unit wasn’t necessary.

A search of the interior of Jones’s vehicle turned up no evidence of contraband. Since the driver had “consented” on behalf of his passenger, Cleverly was ordered out of the car and subjected to a second pat-down search. He was told that he was not free to leave and forbidden to use his cell phone, which means that he was in police custody, despite the officers’ subsequent claims to the contrary. A search of a cigarette package found a small amount of methamphetamine.

Idaho State Police Road Pirate Justin Klitch in action.

Cleverly was arrested and later found guilty of drug possession and sentenced to eighteen months of probation. The court dismissed a motion to suppress the drug evidence on the grounds that it was produced through a consensual search. The Kansas Supreme Court has now reversed Cleverly’s conviction.

The rights protected by the Fourth Amendment and its state equivalent, wrote the court’s majority, belong to the individual and are “not merely inconvenient technicalities designed to irritate government agents.” Furthermore, “A driver of a vehicle subjected to a traffic stop does not have the authority, as a matter of law, to waive the Fourth Amendment rights of passengers in the stopped vehicle.”

Judicial rulings of this kind, while welcome, have little practical impact on the conduct of police and the prosecutors who eagerly exploit routine police lawlessness. In her June, 2011 UC-Davis Law Review essay “The Police Gamesmanship Dilemma in Criminal Procedure,” Professor Mary D. Fan of the University of Washington School of Law points out that police departments are adept at finding ways to “slide around the rules” and can always develop “tactics that undermine the purpose of rules” established by the judiciary.

It is for this reason that most of the criminal misconduct that occurs on America’s thoroughfares is committed by people engaged in what Fan calls the “competitive enterprise of ferreting out crime” – where “crime” is described as violations of government edicts that have nothing to do with the protection of persons and property.

This week's Freedom Zealot Podcast: Debtor's prisons are illegal, yet ubiquitous in the American soyuz --



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Sheriffs as Slavemasters: Will Inmate Labor Be Used to Build Trump's Wall?

“Liberty, if I understand it at all, is a general principle, and the clear right of the subjects within the realm, or of none,” declared British statesman Edmund Burke in an April 3, 1777 message to the Sheriffs of Bristol. “Partial freedom seems to me a most invidious mode of slavery. But, unfortunately, it is the kind of slavery the most easily admitted in times of civil discord: for parties are but too apt to forget their own future safety in their desire of sacrificing their enemies.”

The tyrannical measures that had provoked the American rebellion, wrote Burke, threatened liberty throughout Britain’s dominions. Once imposed in a time of crisis, he explained, they “may be advanced further and further at pleasure, on the same argument of mere expediency.”
Thomas Hodgson is a sheriff of Bristol -- in this case, Bristol County, Massachusetts -- and a very different kind of "public servant" from those to whom Burke sent his message. Indeed, he seems to embody the preference for authoritarian expediency that Burke condemned, as demonstrated by his suggestion that the federal government should conscript prison labor to build Donald Trump’s proposed border wall.

Punitive poseur: Sheriff Hodgson

“I can think of no other project that would have such a positive impact on our inmates and our country than building this wall,” insisted Hodgson during the swearing-in ceremony for his fourth term. “Aside from learning and perfecting construction skills, the symbolism of these inmates building a wall to prevent crime in their communities around the country, and to preserve jobs and work opportunities for them and other Americans upon release, can be very powerful.”

Hodgson used his inaugural speech to announce an initiative he calls Project N.I.C.E. – National Inmates’ Community Endeavors – through which prison convicts and inmates of county jails would provide what he calls “volunteer” labor for disaster relief and other government public works projects.

“We need to turn this country around and put law and order back in place,” insisted Hodgson. “That’s why today, I am making a formal offer to President-elect Trump that inmates from Bristol County and others from across the nation through Project N.I.C.E. will help build the wall.”

Hodgson’s call for a nation-wide levee en masse of prison labor assumes a steady supply of convicts – and the State excels at making innocent people into criminal offenders.
Contrary to what Trump and his most eager acolytes would have us believe, there is no paucity of “law and order” in American society. The level of violent crime remains at or near an historic low, even as the prison population continues to expand.

Analyzing the available data from the FBI’s Uniform Crime Reports, New York Daily News reporter David J. Krajicek contrasted national crime statistics from 2014 – the last year for which they are available – and 1987. His survey found that the overall crime rate at that point in Reagan’s presidency was 612 instances of violence for every 100,000 people; in 2014; it was 365 per 100,000, a 40 percent decline. There were roughly 320,000 fewer violent crimes in 2014 than in 1987; one notable comparison is offered by the fact that there were 20,096 murder cases in 1987, and 14,249 in 2014.

Adjusted for our larger population, there was a fifty percent decline in robbery during the same period, and an overall 48 percent decline in property crime generally.
Similar trends are seen in the number of on-duty police officer deaths: During the Reagan era, the average annual rate of officer fatalities was 189, compared to 135 during the Obama presidency.  Last year, there were 140 on-duty fatalities, a little more than half of which (77) were homicides.

He beat the Clintons, but he won't rein in the police state.

With the decline in crimes against both property and person, the State has turned to prohibition as a way of feeding its carceral apparatus. In 2015, arrests for marijuana possession outnumbered arrests for all violent crimes. This may be seen as either the final throes of a dying institution – or the beginning of its revival, under anti-marijuana obscurantist Jeff Sessions.

The population from which Hodgson would collect his slave labor force would be – overwhelmingly, if not exclusively -- non-violent offenders. Most of those conscripted from county jails would be hapless, economically marginal people incarcerated for petty violations of useless municipal ordinances, including those whose “offense” consisted of such things as failing to manicure their yards to the satisfaction of code enforcement officers.

Indeed, the reason such statutes were enacted to begin with was to provide a steady stream of fine-generated revenue, and a self-sustaining supply of inmate labor. This is documented in Douglas A. Blackmon's book Slavery by Another Name. Blackmon's research led him to conclude that municipal ordinances in the post-Emancipation South were designed and enforced with the purpose of producing large pools of inmate labor to be leased to large corporate interests. Other versions of this analysis had been advanced earlier in criminologist Thorsten Sellin's study Slavery and the Penal System, and David Oshinsky's book Worse Than Slavery.

Blackmon's account begins with the story of 22-year-old Green Cottenham, who was arrested for "vagrancy" by the sheriff of Shelby County, Alabama. "Vagrancy" was the stickiest of catch-all charges used to round up anyone unable "to prove at a given moment that he or she [was] employed."

At the time and place of Cottenham's arrest, the charge was most frequently used to justify the arrest of young black men, many of whom were itinerant workers seeking gainful employment. Cottenham was quickly convicted following a burlesque of a trial and sentenced to thirty days of hard labor.

In a fashion instantly familiar to most people incarcerated today, Cottenham was unable to pay an array of "fees" that accompanied his spurious incarceration. So the thirty-day sentence was quickly expanded to a full year. Immediately thereafter, Cottenham was "leased" -- or, as his parents, both of whom former slaves, would put it, sold -- to the Tennessee Coal, Iron, and Railroad Company, a subsidiary of U.S. Steel.

Another tragic case of SYLP syndrome.

One of thousands of black men vended by sheriffs across Alabama, Cottenham was dispatched to work in Slope No. 12, a coal shaft that formed part of the Pratt Mines near Birmingham.

"Imprisoned in what was then the most advanced city of the South, guarded by whipping bosses employed by the most iconic example of the modern corporation emerging in the gilded North, [Cottenham and his co-workers] were slaves in all but name," observes Blackmon.

Thousands perished from disease, overwork, and accidents, their mortal remains interred in shallow graves not far from where they expired. All of this is seen as an indictment of a barbarous past we have supposedly transcended. But the system described by Blackmon -- opportunistic law enforcement feeding non-violent offenders into a penal system hard-welded to government-favored corporations – still exists.

Like Communist China, the American Soyuz has a Laogai (“reform through labor) prison manufacturing system. Working through Unicor, a public-private partnership created during the Great Depression to create "factories with fences," corporations employ prisoners to manufacture products from designer jeans to computer circuit boards.

The entities that profit from the American Laogai would be eager to participate in Donald Trump’s border wall project, which would be among the largest corporatist undertakings since the New Deal. Law and Order Leninists would be thrilled by the spectacle envisioned by Sheriff Hodgson – until they learn, in the most unpleasant way imaginable, how easily the State can turn harmless people into slaves.

This week's Freedom Zealot Podcast: Debtor's prisons are illegal -- and ubiquitous in the American Soyuz --




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