“An organized group of Southern California bandits has brazenly hijacked armored cars and grabbed hundreds of thousands of dollars in cash. The heavily armed thieves reportedly have damaged trucks, hassled their victims, covered up video cameras—and even celebrated their haul. “Wowee!” and “way to go, buddy,” they allegedly cheered, after pulling a recent heist.
You’d be forgiven for assuming that this is the latest example of California’s ongoing crime wave, epitomized by “third world” scenes of pilfered freight trains and brazen smash-and-grab robberies. But it’s nothing of the sort. Actually, it’s more pernicious than the usual crime spree because a sheriff is the mastermind and his deputies are looting the armored cars.
For instance, San Bernardino County deputies stopped the same Empyreal Logistics armored-car driver twice and took a total of nearly $1.1 million in cash owned by legal marijuana dispensaries, per news reports. The government has not charged the armored-car company nor the cannabis firms with any crimes, but the sheriff keeps the cash, anyway. Critics are right to call it highway robbery.
Welcome to the dystopian world of civil-asset forfeiture, a drug-war relic that allows police—often at the behest of district attorneys—to take people’s cash, cars, and properties based on their suspicion that the property was involved in a crime. Officials never have to prove that the property’s owner was involved in a crime.
The agencies have every incentive to employ this strategy routinely given that they keep the proceeds and spend the money on vehicles, guns, and whatever. News reports found police so adept at abusing this process that they sometimes target people who own the kind of fancy SUVs and sports cars that they’d like to have available in their motor pool.
Not only does this process deprive Americans of their Fourth Amendment right to be safe against the government’s searches and seizures, but it undermines the credibility of law enforcement by turning cops into our adversaries. San Bernardino County Sheriff Shannon Dicus claims that “80 percent of marijuana at dispensaries was grown illegally.” If that’s true, then the sheriff simply needs to, you know, go to court and prove it.”
“Whenever I write about police abuse and use-of-force issues, I often hear from the “back the badge” crowd to defend whatever it is the police officer did in a given situation. They’re not always wrong, of course, but one recurring theme always sticks in my craw, especially given that these writers typically describe themselves as “conservatives.”
Police defenders instinctively view most situations—and expect the rest of us to do so—from the perspective of the officer. “Well, sure that African American teen was holding a cellphone rather than a gun, but how was the officer to know before he shot him?” “Sure, the SWAT team broke down the door to the wrong apartment, but mistakes happen (note the passive voice).”
One of the stated principles of conservatism is fealty to the constitution, which protects the rights of individuals against the abuses of government. Police are the face of that government. They enforce the rules that lawmakers pass. Having the right to detain or even kill you, officers literally hold all of your “rights” within their grasp.
Therefore, I spend less time worrying about the genuinely difficult challenges of officers than about my fellow citizens’ right to life and liberty. As Charlton Heston says in a Touch of Evil, “Only in a police state is the job of a policeman easy.” Likewise, I worry less about the frustrations of IRS agents than I do about the rights of taxpayers. Tax collectors have a legitimate job, but a true freedom-lover is primarily concerned about protecting individuals from the state.
Let’s look at a recent example. On Dec. 23, Los Angeles police shot to death Valentina Orellana-Peralta. who was shopping for quinceañera dresses in a Burlington store dressing room in North Hollywood. Officers were responding to reports of an assault with a deadly weapon and opened fire. A bullet penetrated the dressing-room wall, where Valentina and her mom were hiding from the ruckus. The girl died in her mother’s arms.
Those who scream (rightly) about government encroachment on our liberties when, say, legislators pass a new gun-control measure, tax hike or business regulation need to acknowledge that the government’s killing of a young girl who is out enjoying her day is a rights-destroying offense of a much higher order. It doesn’t matter that the girl was not the intended target.
The Los Angeles Police Department released a bland statement saying that officers didn’t know the girl was in the dressing room. The union argued the officer followed active-shooter protocols after getting 911 calls. It appears there was no active shooter. Police killed the suspect, who was a danger, but the weapon was a bike lock and cable.”
“what about the onslaught of frivolous suits that would come down against the police? That also misses the mark, particularly when considering that it is not possible to simply enter a federal courthouse and file a lawsuit because you’re mad at the cops. Before suing a government actor, a plaintiff must satisfy two conditions: that the public servant affirmatively violated someone’s constitutional rights, and that the violation of the rights is clearly established in prior case law. Without qualified immunity, a would-be litigant would still need to prove to a federal judge that his constitutional rights were infringed on. Qualified immunity is only the second part—the part that sends a victim searching for a perfect court precedent where another victim experienced a near-identical sort of misconduct.
It’s for that reason that the doctrine gives license to some disturbing behavior—the sort that should concern anyone who positions himself as a defender of responsible governance. An example: “The City Officers ought to have recognized that the alleged theft was morally wrong,” but the police “did not have clear notice that it violated the Fourth Amendment.” This is a real quote from a real decision from a real federal court—the U.S. Court of Appeals for the 9th Circuit—awarding qualified immunity to two government actors who we apparently cannot trust to know that stealing during a search warrant is unconstitutional unless there is some obscure court precedent saying so. I’d posit that most of the public has more faith in police to do their jobs with integrity. I certainly do.”
“Over his 17 years on the job — including eight as the union president of the Fraternal Order of Police in South Florida — 49 people have complained about him to Internal Affairs as he amassed 19 official use-of-force incidents, $600,000 in lawsuit settlements and a book’s worth of terrible headlines related to his record and his racially inflammatory social media posts, many of which attacked alleged victims of police violence.
Yet Ortiz has repeatedly beaten back attempts to discipline him. He returned to work in March from a yearlong paid suspension during which state and federal investigators examined whether he “engaged in a pattern of abuse and bias against minorities, particularly African Americans … [and] has been known for cyber-stalking and doxing civilians who question his authority or file complaints against him.” The investigation was launched after three Miami police sergeants accused him of abusing his position and said the department had repeatedly botched investigations into him.
But investigators concluded their hands were tied because 13 of the 19 use-of-force complaints were beyond the five-year statute of limitations, and the others lacked enough hard evidence beyond the assertions of the alleged victims. The findings underscored a truism in many urban police departments: The most troublesome cops are so insulated by protective union contracts and laws passed by politicians who are eager to advertise their law-and-order bona fides that removing them is nearly impossible — even when their own colleagues are witnesses against them.”
“As a police officer with an encyclopedic knowledge of labor law and grievance procedures, Ortiz shielded himself over the years with the extensive protections woven into the local union’s collective bargaining agreement and Florida’s “Law Enforcement Officers’ Bill of Rights,” a police-friendly law that passed decades ago and has been continuously beefed up with bipartisan support. He has also availed himself of a controversial judicial doctrine, called qualified immunity, which shields police from certain forms of liability.
Among the special provisions that have made policing Florida’s police so difficult is a rule in the bill of rights that says all investigations must be wrapped up in 180 days. Critics say the rule is a vehicle for sympathetic colleagues to protect an officer simply by dragging their feet. In its review of Ortiz, the Florida Department of Law Enforcement reported that between 2013 and 2018 seven citizen complaints against him were voided because the department failed to finish investigating within the prescribed time limit.
An even more significant obstacle in the bill of rights is a rule that officers must be shown all evidence against them before they are interviewed about complaints — a right that isn’t afforded to civilians and that flies in the face of normal investigative techniques. It allows officers to tailor their responses to the evidence, avoid being caught in lies and even, says former Miami police chief Art Acevedo, “interfere with the investigation or retaliate” against witnesses.”
“Ortiz’s record stands out sharply compared with those of his peers. The 49 citizen complaints against him are 2½ times more than the combined complaints against the department’s four other captains. Those other captains also have a combined 16 use of force incidents on their records, three fewer than the 19 on Ortiz’s record.”
“Additional video shows three cops—Hopp, Jalia, and Tyler Blackett—watching the footage the day they booked Garner.
“Ready for the pop?” asks Hopp, as Jalia squirms and appears visibly uncomfortable. “Hear the pop?”
“What’d you pop?” asks Blackett. “I think it was her shoulder,” responds Hopp, as he re-enacts the motion.
“I hate it,” says Jalia.
“I love it,” one of the male officers responds. Garner did not receive medical care for six hours after the ordeal, according to the suit. (Blackett later resigned.)
Loveland Police Chief Robert Ticer has claimed that the department was unaware of the extent of the brutality until the lawsuit became public, but the contents of an internal report released yesterday appear to directly contradict that, with documents showing that Assistant Chief of Police Ray Butler viewed the footage and said that Hopp’s actions were “necessary, reasonable and within policy.”
“There is no excuse, under any circumstances, for what happened to Ms. Garner. We have agreed on steps we need to take to begin building back trust,” Ticer said in a statement. “While these actions won’t change what Ms. Garner experienced, they will serve to improve this police department and hopefully restore faith that the LPD exists to serve those who live in and visit Loveland.” He also said that department policy now requires an assistant city attorney and personnel from city of Loveland human resources to review use of force incidents, as opposed to just a member of the police force. Sarah Schielke, an attorney for the family, has called for his resignation.”
“Police violated the constitutional rights of an Alabama man when they repeatedly shot at his car, first as he inched forward in it nonthreateningly and then as he drove away, hitting him either five or six times and requiring that he receive emergency surgery, a federal court ruled last week.
The same panel found that the officers are entitled to qualified immunity and thus cannot be sued in connection with the incident. The legal doctrine allows state actors to violate your rights without fear of civil liability if the exact manner in which they misbehaved has not been declared unconstitutional in a preexisting court precedent. (A practical example: Two cops in Fresno, California, allegedly pocketed $225,000 while executing a search warrant, but the victims were not permitted to sue because no ruling on the books said that stealing under those precise circumstances is a violation of someone’s rights.)”
“Body camera footage released along with the lawsuit shows Grashorn stepping out of his police cruiser. Love and Hamm’s other dog, Bubba, is sleeping on the ground but gets up and begins running toward the officer. Grashorn draws his gun on the dog, but the couple yells at the animal to come back. It pauses and turns toward its owners, but Herkimer jumps out of the truck and lopes toward Grashorn with its tail wagging. Grashorn shoots the dog. (The audio is not captured by the body camera, which retains 30 seconds of footage before it is turned on, but not sound.)”
“After the shooting, Grashorn refused to allow the distraught couple near Herkimer, ordering them to go back to their truck. When Hamm demanded to know why Grashorn had shot the dog, Grashorn yelled that he had “no way of knowing” whether Herkimer was friendly and that he “wasn’t in the business to get bit.”
The lawsuit says that Loveland police refused to let the couple retrieve their dog and take it to a veterinarian until a Loveland police supervisor arrived on the scene. Hamm was ticketed for having a “dangerous dog.” The ticket was later dismissed by the district attorney.
Herkimer died four days after being shot. An internal review by the Loveland Police Department found the shooting was justified.”
“Reason has been covering sad incidents of “puppycide” like Herkimer’s for decades now. In 2019, a Faulkner County, Arkansas, sheriff’s deputy was fired and charged with animal cruelty after he casually shot a small dog because the owner refused to walk outside to talk to him. The shootings lead not only to devastated families and viral news stories, but expensive lawsuit settlements for cities. In 2019, St. Louis paid $775,000 to a woman whose dog was shot during a no-knock SWAT raid over an unpaid gas bill. The Detroit Police Department has settled a string of lawsuits for shooting dogs during drug raids.”
“In November of 2018, Lucil Basco of Bexar County, Texas, awoke to a thunderous boom, followed by a parade of eight cops barging through her front door. She was handcuffed, and, with her screaming child, removed from the premises. The officers soon realized they made a mistake: They had the wrong house, based on incorrect information from a confidential informant. Yet they continued the operation anyway.”
“Deputies arrived and broke into Basco’s home that evening, despite there being no reason to believe such force was required. Though it appears they did not do the requisite research to confirm she was involved in the drug trade, they did conduct plenty of surveillance: “Officers conducted a traffic stop of Mrs. Basco shortly before the raid during which they searched her vehicle and learned that she is a nurse,” writes Pulliam. “And officers were surveilling the home both when Mrs. Basco left to collect her child and when she returned with him.””
“It is not uncommon for police departments to leverage confidential sources to carry out violent, no-knock raids. The Chicago Police Department, for example, is well-known for its so-called John Doe warrants, based solely on anonymous tips.
In 2019, a cadre of male cops knocked down the door to a Chicago apartment, handcuffing a naked woman while they ransacked her home. The officers elicited nearly 100 misconduct allegations during that one raid because they had the wrong address and had not bothered to do rudimentary verification beforehand. The city has a pile of similar suits.”
“For years, St. Paul police officer Heather Weyker was swamped. She gathered evidence, cultivated witnesses, filled out the police reports, testified under oath—all in connection with an interstate sex trafficking ring run by Somali refugees. But perhaps most impressive is that she did all that while fabricating the same ring she was investigating, which resulted in 30 indictments, 9 trials, and 0 convictions.
Hamdi Mohamud, then a 16-year-old refugee from Somalia, found herself caught up in that scheme in 2011, when one of Weyker’s witnesses, Muna Abdulkadir, tried to attack her and her friends at knifepoint. Mohamud called the police, and Weyker intervened—on behalf of Abdulkadir. She arrested Mohamud and her friends for allegedly tampering with a federal witness, and Mohamud subsequently spent two years in jail before the trumped-up charges were dismissed.
While Mohamud lost those two years of her life, Weyker has not paid any price—not in spite of her position, but because of it. Since the officer conducted her investigation as part of a federal task force, she is entitled to absolute immunity and cannot be sued, the U.S. Court of Appeals for the 8th Circuit ruled last year.”
“”Middle-management circuit judges must salute smartly and follow precedent,” Judge Don Willett regretfully explained in his concurring opinion. “And today’s result is precedentially inescapable: Private citizens who are brutalized—even killed—by rogue federal officers can find little solace” in U.S. Supreme Court case law. The unfortunate reality, Willett observed, is that “if you wear a federal badge, you can inflict excessive force on someone with little fear of liability.”
Vindicating your rights in court is a cornerstone of the rule of law. As the famous British jurist William Blackstone observed, “in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded.”
Blackstone’s dire scenario resembles what is happening in the United States today in cases like Byrd v. Lamb. File suit for damages against a lawless federal officer, and the federal courts likely will toss the suit in the name of following precedent. As Willett noted in his judicial protest, “redress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone.””
“If a Bivens claim arises in a “new context,” meaning “the case is different in a meaningful way from previous Bivens cases decided by this Court,” Justice Anthony Kennedy wrote, the presiding judge must scour the record for any “special factors counselling hesitation.” For example, Kennedy said, “the risk of personal damages liability is more likely to cause an officer to second-guess difficult but necessary decisions concerning national security policy.” If any such “special factor” is found (or simply invented by the judge), the lawsuit against the federal officer must be dismissed.”
“The lower courts got the message. In Oliva v. Nivar (2020), the 5th Circuit dismissed a Bivens claim by 70-year-old José Oliva, a Vietnam veteran who was beaten and permanently injured by federal police at a Department of Veterans Affairs hospital in El Paso, Texas. According to Oliva, the officers took a disliking to him because he did not immediately show his ID, which was momentarily out of his reach in a metal detector bin. He also spoke up against their verbal bullying. “I got a problem with this man,” one of the officers reportedly said about Oliva’s lack of deference. “He’s got an attitude.” The same officer placed Oliva in a chokehold and slammed him to the ground, severely injuring his shoulder.
The 5th Circuit characterized Oliva’s civil rights lawsuit as a “new context,” which is basically the kiss of death for Bivens claims. Yes, the court admitted, both Oliva and Bivens centered on allegations of Fourth Amendment violations by federal officers. But “this case differs from Bivens in several meaningful ways.” For one, “the case arose in a government hospital, not a private home.” For another, “the VA officers were manning a metal detector, not making a warrantless search for narcotics.” From there it was all too easy for the 5th Circuit to find “special factors counselling hesitation,” such as the fact that Congress specifically “did not make individual officers liable for excessive-force claims.”
In sum, thanks to SCOTUS-sanctioned legal hairsplitting, a victim of abusive federal policing did not even get a chance to make his case for damages.”
“Bivens became “a ‘disfavored’ judicial activity” because a majority of the Supreme Court has come to see it as an example of judicial activism, a modern ruling that empowered federal judges to do something they should not do. The late Justice Antonin Scalia called Bivens “a relic of the heady days in which this Court assumed common-law powers to create causes of action.” Justice Clarence Thomas has argued that “the analysis underlying Bivens cannot be defended.”
But was Bivens really such a radical departure? Not when considered in the full light of American legal history. Indeed, the idea that federal judges have the authority to impose damages against lawless federal officers is as old as the republic—older, in fact, since it comes from venerable British common law judgments that directly influenced the founding generation.”
“America’s founding generation was deeply committed to seeing the judiciary hold wayward federal officers civilly liable for their misdeeds. That commitment is readily apparent when you examine the debates over the ratification of the Constitution, in which both sides subscribed to this particular view of the judicial role.
In 1788, for instance, the Anti-Federalist writer known as Maryland Farmer argued that “whenever an officer had deviated from the rigid letter of the law,” that officer should be forced to pay “ruinous damages.” But under the proposed Constitution, Maryland Farmer feared, federal judges might refuse to award damages to “spare the public purse, if not favour a brother officer.”
George Mason, another Anti-Federalist, raised the same concern at the Virginia ratifying convention. Speaking on June 19, 1788, Mason worried that the new federal judiciary could not be trusted “to bring officers to justice.” Suppose “any of the federal officers should be guilty of the greatest oppressions, or behave with the most insolent and wanton brutality to a man’s wife or daughter,” Mason demanded, “where is this man to get relief?”
Federalist John Marshall, the future chief justice of the United States, responded to Mason the next day. Mason “says that the officers of the government will be screened from merited punishment by the federal judiciary,” Marshall said. “The federal sheriff, [Mason] says, will go into a poor man’s house and beat him, or abuse his family, and the federal court will protect him.”
Nonsense, Marshall declared. “Will such great insults on the people of this country be allowable?” he asked. “Were a law made to authorize them, it would be void. The injured man would trust to a [judicial] tribunal in his neighborhood. To such a tribunal he would apply for redress, and get it.”
Marshall proved as good as his word while serving as chief justice. In Little v. Barreme (1804), he led the Supreme Court in finding a U.S. naval officer liable for trespass after he seized a ship based on an illegitimate presidential order. “The law must take its course,” Marshall wrote, “and he must pay such damages as are legally awarded against him.” Likewise, in Wise v. Withers (1806), Marshall found a District of Columbia justice of the peace liable for trespass after the officer entered a man’s home without legal authority.
Such rulings against rogue federal officers continued to appear in subsequent decades. “At the Founding, and for much of American history, there was no question as to whether federal courts had the power to provide judge-made damages remedies against individual federal officers,” observed University of Texas law professor Stephen Vladeck in the Cato Supreme Court Review: 2019–2020. “Not only did federal courts routinely provide such relief, but the Supreme Court repeatedly blessed the practice.” The Bivens case—in which federal drug cops were held civilly liable for unconstitutional search and seizure—is consistent with this noble legal tradition.”
“Whatever the solution, it is long past time for the many victims of rights-violating federal officers to start getting some redress in court.”