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The Sun-Times Embraces the Nanny State

rbalko@reason.com (Radley Balko) — Fri, 25 Jul 2008 07:43:00 EDT

Chicago's second biggest daily responds to my article on the Windy City's Nanny State proclivities with an endorsement of many of the policies I criticize.

Reason mocks the city for requiring that fat cops shape up, providing them with nutritionists and trainers to help.
We don't. Police work is physical work. A cop has to be in shape.

Fair enough. But my mocking was more about the fact that after a year of headlines about police abuses, it just struck me a bit odd that the Board of Aldermen's biggest concern while I was in town researching the article was a proposal to assign cops personal trainers at taxpayer expense.

Reason knocks the mayor for regulating thousands of taverns -- evil peddlers of demon rum -- out of existence. Chicago has only about 1,300 taverns today, compared with about 7,000 in the 1940s.
We don't. A lot of those joints were buckets of blood that loomed within a short stagger of neighborhood schools. And nobody in town complains they can't find a drink.

Ah, yes. For the children.

And "buckets of blood?" Really? You know, I'll bet if we compare Chicago's crime rate in the tavern-happy 1940s with its crime rate now, the modern, 1,300-tavern era doesn't fare so well. In fact, let's go back a bit further. There was a time when alcohol in Chicago and the rest of America was banned altogether. What was crime like between 1919 and 1933? What was it like in Chicago? Also, is it really a good idea to make people travel farther from their homes to find a drink?

Reason finds fault with Chicago's gun control laws, said by the magazine to be among the most restrictive in the nation.
We don't. The Sun-Times has had to write too many stories about too many people killed by guns. Repealing our gun laws -- hey, let's all ride the L with pistols -- won't help.

Actually, it might. Chicago has an out and out ban on handguns right now. How's that working out? And if the use of guns for self-defense is such an abomination, why are Chicago's politicians allowed to carry, while its citizens aren't?

A couple of other nanny-state regulations cited by reason fall into a gray zone for us. Unlike strict libertarians, we support the ban on smoking in the workplace, but we agree that taverns should have been left to decide the matter for themselves.

Not sure what the difference is. Private property is private property. But fair enough. I could live with a workplace ban that exempted bars and restaurants.

And, as we wrote last week, all those surveillance cameras make us nervous, but it's hard to deny the unintended consequence that those doing the watching are being watched, too. Security cameras have caught more than a few police officers stepping over the line.

Actually, if memory serves, private security cameras caught those cops beating on citizens. Call me a crazy conspiracy theorist, but I'd guess that if a city-owned camera caught a Chicago cop breaking the law, there's a decent chance those tapes would disappear in short order. Not sure why I would think such a thing. Just a hunch, I guess.

If Chicago is a bit of a nanny state, the impulse springs from a good place -- a widespread sense that this is a remarkably healthy, vibrant and livable city, and we don't want to screw it up.

I see. It's the intent of the laws that matter, not their actual consequences. Good to know.

I love Chicago. But Chicago was a world-class city long before it started instituting traffic and surveillance cameras, taxing bottled water, banning foods that offend interest groups, and shutting down taverns. Here's a thought. Maybe the Nanny State stuff is making a vibrant and livable city a bit less vibrant and livable. Maybe, just maybe, Mayor Daley and the Board of Aldermen's suffocating paternalism is part of the reason why Chicago is losing population faster than friggin' Detroit.

Addendum: My last line was a bit overwrought. According to Census data (link goes to xls file), Chicago lost 59,358 people between 2000 and 2007. Detroit lost 34,318. Given that Chicago is more than double the size of Detroit, it wasn't correct to say that the city is bleeding population "faster" than Detroit. Chicago also gained about 8,000 people between 2006 and 2007.

This Week in Innocence

rbalko@reason.com (Radley Balko) — Thu, 24 Jul 2008 10:56:00 EDT

Stories pulled from the Innocence blog the last few weeks:

Another exoneration in Dallas (see my interview with Dallas County District Attorney Craig Watkins here).
DNA testing finally exonerates a Texas man for a rape he always said he didn't commit. Unfortunately, Tim Cole died in a Texas prison nine years ago. Another man confessed to the rape in 1995, but authorities ignored him. It's likely that Cole's wrongful conviction came with a death sentence. A lifelong asthmatic, he'd been able to treat the condition by the time he got to college. Not so in prison. He died of an asthmatic attack in 1999.
Meanwhile in Tennessee, a stubborn prosecutor may finally back down after years of p ursuing the wrong man for a 1985 murder, despite the fact that DNA evidence has cleared the man of the rape the same prosecutor said was the motive for the murder. The U.S. Supreme Court has actually heard this case, tossing the conviction on the grounds that no reasonable juror could have convicted the man given the new evidence. Money quote: "Why, after all this evidence has poured in that House is innocent of the crime, does the state continue to so zealously defend the situation? The reason is because state prosecutors typically never admit error." That's from the federal district court judge in Nashville. Paul House spent 23 years in prison, most of them on death row.
DNA testing exposes another wrongful murder conviction, this one in New Mexico. It's also another example in how police can extract false confessions, particularly from the mentally disabled.
Reuters looks at how lax evidence preservation laws are hampering efforts to look for other wrongful convictions.
Alabama Gov. Bob Riley (unconvincingly) explains why he's opposed to post-conviction DNA testing in capital cases.
South Carolina is one of just a few states that don't give post-conviction inmates a path to DNA testing in cases where it could prove their innocence. The state legislature passed a bill to correct the problem, and Gov. Mark Sanford was set to sign it. Unfortunately, the legislature then tacked on an 11th-hour poison pill amendment allowing police to take DNA samples from everyone arrested for a serious crime (not just those convicted) for inclusion in a statewide database. To his credit, Sanford had already vetoed a similar bill, and was forced to veto this one. Unfortunately, that means South Carolina still doesn't allow for DNA testing to determine innocence, either.

L.A. Says "No" to Cheap Food for Poor People

rbalko@reason.com (Radley Balko) — Thu, 24 Jul 2008 08:40:00 EDT

The Los Angeles city council says no more fast food joints in South L.A.

Here's what I've always wondered: If the goal is to get low-cost fresh fruits, vegetables, and lean meats to low-income areas, why are these big city politicians so obsessed with keeping Walmart Supercenters out of the inner city?

Okay, I know the answer to that question. But no company has a better track record at getting huge amounts of produce to low income people at discount prices.

Mandatory Volunteerism

rbalko@reason.com (Radley Balko) — Wed, 23 Jul 2008 11:24:00 EDT

Over at the Volokh Conspiracy, Jim Lindgren lays out the powerful players in Service Nation, a creepy new push for national service. The campaign appears to be pretty Obama-friendly, jibing with his recent call for a national service bureaucracy that's "just as powerful, just as strong, just as well-funded" as the military. Of course, McCain has certainly expressed an appreciation for the "a cause greater than yourself" mindset too, including a fondness for—quite literally—the sight of uniformed cadres of young people preparing for a day of service with calisthenics in the public square.

The Service Nation Summit kickoff event is getting promotional help from Time magazine, whose Managing Editor Rick Stengel is a co-chair. Seems like an odd undertaking for a newsweekly, doesn't it? But then, Time has an annoying habit of crossing over into advocacy on issues its editors have deemed too important to leave to impartial reportage.

Lindgren points out that though the campaign is couched in terms that make it appear oriented toward merely encouraging volunteerism, some of its top officials have a history of supporting a more coercive definition "service," including support for Rep. Charlie Rangel's (D-N.Y.) bill to bring back conscription. Most ominously, one of the group's stated goals is to "[l]aunch a debate about why and how America should become a nation of universal national service by 2020."

Note the absence of the word "if."

McCain and Iraq

rbalko@reason.com (Radley Balko) — Wed, 23 Jul 2008 10:33:00 EDT

A look back at just how "right" McCain has been over the last six years.

Making Up Evidence an "Honest Mistake"

rbalko@reason.com (Radley Balko) — Mon, 21 Jul 2008 14:57:00 EDT

It's a few months old, but here's a pretty crazy case of prosecutorial malfeasance from Santa Clara County, California.

San Jose Det. Matthew Christian created a fake DNA report signed by a fictitious lab technician to use as a prop while interrogating a man under investigation for sex crimes against a developmentally disabled neighbor. Police are allowed to lie to suspects in an effort to extract information or confessions, so Christian hadn't violated any laws in actually creating the report.

The problem is that the fake report somehow made its way into Deputy District Attorney Jaime Stringfield's file, along with a real report stating that no DNA could be found on the blanket in question. At a preliminary hearing, Stringfield then proceeded to question the Det. Christian about the fake report. Christian obliged with false testimony.

"This blanket that you seized, did you submit it to the crime lab for analysis?" she asked.
"Yes," Christian said.
"Are you aware of any results?" she asked.
"Yes. There was semen found on the blanket," Christian said.
Superior Court Judge Gilbert T. Brown ordered Kerkeles to stand trial. Stringfield listed Roberts, the fake analyst, among her trial witnesses.

Stringfield blamed the defense attorney for not pointing out the discrepancy in the two reports. But according to the article, defense attorneys twice asked for more information on the reports. Stringfield declined their requests. The defense finally made a third request, this time for the resume of the fictitious lab technician who signed the fake report, at which time Det. Christian remembered that he had made the whole thing up.

An "internal committee" of prosecutors later concluded that Christian's fake report, false testimony, and memory lapse, and Stringfield's failure to notice the fake report, failure to notice the real report, and failure to distinguish between the two—were all "honest mistakes."

St. Louis Cops Turn Forfeiture Policy Into Free Car Rental Service

rbalko@reason.com (Radley Balko) — Mon, 21 Jul 2008 11:03:00 EDT

Seems that the city of St. Louis, like many cities, allows the police to confiscate the cars of people suspected (but not necessarily convicted) of certain crimes. They have a contract with a city towing firm, and said firm was allowing police officers and their families to "rent" confiscated cars free of charge, sometimes for months on end. Officers and their families could also sometimes purchase the confiscated cars at a fraction of the cars' value.

All of that is pretty outrageous. But it gets better. The St. Louis Post-Dispatch stumbled onto the story after investigating the daughter of the city's police chief. She had been involved in a number of accidents with different cars. On several occasions she had wrecked a car, then simply gone down to the towing service to get a 60-80 percent discount on a new one. After one accident, her blood-alcohol concentration tested at .17. She wasn't arrested or charged. The department says it has "no idea" why she was let go.

The police department hired a law firm, which concluded that the towing arrangement broke no rules or laws. The chief improbably claims he was oblivious to the deals his daughter was getting (her relationship with the towing service apparently goes back to 2002). The Post-Dispatch reports that the chief's last public statement on the matter was that, "the absolute necessity in maintaining transparency in the eyes of the public."

He has since declined to comment.

(Via TheNewspaper.com)

Two More Isolated Incidents

rbalko@reason.com (Radley Balko) — Fri, 18 Jul 2008 13:28:00 EDT

After a "wrong-door" drug raid in Harlem led to the death of 57-year-old Alberta Spruill in 2003, New York City officials promised to implement reforms with respect to the use of confidential informants, and institute checks to verify that narcotics officers and SWAT teams were hitting the right residences.

But as civil rights attorney Joel Berger and I explained in the Wall Street Journal a couple of years ago, the city soon reneged, claiming that the promised reforms were merely discretionary, and could be revoked at will. Soon enough, stories of wrong-door raids began popping up in the newspapers again—and have since.

There were two more in the Bronx this week.

The NYPD is admitting it was wrong when officers broke down the doors of two apartments in the Bronx during a pair of misguided drug raids.
They found nothing, and it turns out both homeowners were innocent.
Officials say the apartments never should have been raided, and they admit the search warrants were based on lies from a confidential informant.
[...]

Police say that three separate times, the drugs from his alleged undercover buys were really drugs that were hidden under his clothing. Cops were fooled, and because of it, two local residents were traumatized.
[...]
On Saturday, when Eyewitness News began questioning cops about the story, they adamantly insisted there were undercover drug buys in both apartments.
[...]
Now, after repeated calls to the NYPD, their story has changed. They now tell Eyewitness News that they can't prove beyond a reasonable doubt that there were any undercover buys in the apartments, just a confidential informant who allegedly lied.
In a statement released Thursday afternoon, police say, "We've initiated an investigation which has resulted in the informant being arrested for possession of narcotics. The investigation is continuing regarding his conduct leading up to these two search warrants."
They also say surveillance video shows the informant, who was supposedly searched beforehand by cops, reaching into his undergarments three separate times, exchanging the cops' money for hidden drugs, then allegedly walking out of the building.

Why didn't they check the surveillance video before conducting the raids? And how thoroughly could they possibly have searched this informant if he was able to hide drugs in his clothing? Moreover, if they were this sloppy while using this informant, how do we know other cops in the city aren't making similar mistakes with other informants? This particular informant has been the source of information for at least a dozen other drug raids.

Once again, the larger point here is that these raids are too violent and dangerous, the margin of error too small, and the tips and investigations that lead to them too subject to mistakes and bad information for them to be used on nonviolent drug offenders.

Charlie Lynch Trial Begins Tuesday

rbalko@reason.com (Radley Balko) — Fri, 18 Jul 2008 12:15:00 EDT

Charlie Lynch is the owner of a medical marijuana dispensary in Morro Bay, California. Though the business is legal under state law, Lynch was arrested in July of last year for violating federal drug laws. Last month, he was featured in the Drew Carey documentary below. As the video explains, Lynch is facing extra charges for giving medical marijuana to 17-year-old Owen Beck, who used the drug to treat the symptoms of bone cancer.

Lynch faces up to 100 years in prison. His trial begins Tuesday.

Check Lynch's website for more information on his case, including directions to the courthouse where he'll be tried.

Our Foolish Security Theater

rbalko@reason.com (Radley Balko) — Fri, 18 Jul 2008 07:11:00 EDT

Ohio State's John Mueller has outlined an elegant, reasonable, sensible approach to terrorism policy (pdf). Which of course is why it will get very little consideration in Washington. Mueller's premises:

1. The number of potential terrorist targets is essentially infinite.
2. The probability that any individual target will be attacked is essentially zero.
3. If one potential target happens to enjoy a degree of protection, the agile terrorist usually can readily move on to another one.
4. Most targets are "vulnerable" in that it is not very difficult to damage them, but invulnerable in that they can be rebuilt in fairly short order and at tolerable expense.
5. It is essentially impossible to make a very wide variety of potential terrorist targets invulnerable except by completely closing them down.

And his policy prescriptions:

1. Any protective policy should be compared to a "null case": do nothing, and use the money saved to rebuild and to compensate any victims.
2. Abandon any effort to imagine a terrorist target list.
3. Consider negative effects of protection measures: not only direct cost, but inconvenience, enhancement of fear, negative economic impacts, reduction of liberties.
4. Consider the opportunity costs, the tradeoffs, of protection measures.

Nick Gillespe interviewed Mueller for reason in 2006. Tim Cavanaugh interviewed him in 2005.

Via Bruce Schneier.

Police Militarization? What Police Militarization?

rbalko@reason.com (Radley Balko) — Thu, 17 Jul 2008 20:32:00 EDT

Headline of the day:

"SWAT Team Looks for Purse Snatcher"

"I've never seen a comic book with the phrase 'anal sodomy' in it before."

rbalko@reason.com (Radley Balko) — Thu, 17 Jul 2008 12:08:00 EDT

Oklahoma County, Oklahoma Commissioner Brent Rinehart is facing a tough reelection campaign. He's been accused of abusing his office for personal gain, and will go on trial in the fall on felony campaign finance charges. But apparently, this is all a conspiracy of homosexuals, liberal do gooders, and good ol' boys to force Rinehart out of office. Rinehart lays out his case in a comic book he's sending out to voters, which—you may be surprised to learn—he wrote ~~and illustrated~~ himself.

AP coverage here. And here are a couple of sample pages from Rinehart's masterpiece:

San Francisco May Damn-Near Outlaw Smoking

rbalko@reason.com (Radley Balko) — Wed, 16 Jul 2008 15:51:00 EDT

Two new proposals on the table in San Francisco:

Smokers would find it harder to buy their cigarettes and light up in public under two proposals under consideration by the San Francisco Board of Supervisors.
Mayor Gavin Newsom has proposed prohibiting tobacco sales in pharmacies, including Walgreens and Rite Aid. The city's public health chief said the proposal is modeled after rules in eight provinces in Canada but has not been tried anywhere in the United States.
Supervisor Chris Daly has proposed legislation that would vastly limit areas where people can smoke.
Gone would be smoking in all businesses and bars, which now make an exception for owner-operated ones.
Gone too would be lighting up in taxicabs and rental cars, city-owned vehicles, farmers' markets, common areas of apartment buildings, tourist hotels, tobacco shops, charity bingo games, unenclosed dining areas, waiting areas such as lines at an ATM or movie theater, and anywhere within 20 feet of entrances to private, nonresidential buildings.
Mitch Katz, director of the Department of Public Health, said he strongly supports both measures - even if they are angering business owners who say it's one more example of San Francisco City Hall overstepping its bounds.
"Tobacco remains the No. 1 cause of preventable death in the U.S. - period," he said. "It's government's responsibility to protect people from obvious risks."

Under the Bridge

rbalko@reason.com (Radley Balko) — Wed, 16 Jul 2008 11:11:00 EDT

Details writer Ian Daily visits the underside of the Miami bridge that's home to a community of exiled sex offenders:

Fourteen men, ranging in age from 30 to 83, call this place home. Some sleep in cars among the pilings, others in grimy Wal-Mart tents wedged beneath the bridge. Martin, who spent two years in jail after being convicted of exposing himself to a 16-year-old girl when he was 19 or 20 (a crime he says he didn't commit), no longer has to wear the black GPS monitoring device that many of his neighbors do. He finished his five-year probation in 2006, but he can't find a place to live that complies with the county's residency laws. So Martin is forced to live here—in a colony under an overpass where the amenities include a generator, a composting toilet, and a workout area with a bench and free weights—indefinitely, because he and the other men were ordered here by law-enforcement authorities.
"Take a picture if you want," says Martin, showing off his driver's license. The address next to his photo reads UNDER THE JULIA TUTTLE CAUSEWAY.

I first blogged about the sex offender bridge in April of last year.

Kerry Howley and Jacob Sullum have also looked at policies aimed at exiling sex offenders.

The Massive Federal Criminal Code

rbalko@reason.com (Radley Balko) — Wed, 16 Jul 2008 10:44:00 EDT

A new report from the Heritage Foundation attempts to count the number of laws in the federal criminal code. Author John S. Baker, Jr. estimates we have about 4,500 laws, with another 10,000 if you include federal regulations that can be criminally enforced. But Baker cautions that the code is so Byzantine, vague, and ambiguous, it's really impossible to come up with a reliable figure. The Constitution lays out just three federal crimes, and for 200 years, criminal justice policy was mostly left to the states. That began to change in the 1970s.

Today's federal criminal code is enormous—and growing. Baker also finds that Congress tends to add more laws during election years (surprise!), that federal judges and prosecutors exacerbate the problem by interpreting federal statutes as broadly as possible (sometimes retroactively), and that new federal laws are increasingly lacking a mens rea requirement.

So we have a bewildering federal criminal code that no one person could possibly completely comprehend, the fact that you can be charged for breaking one of those laws even if you weren't aware that what you were doing was illegal, and increasingly leeway and discretion afforded to prosecutors to interpret all of these laws as broadly as possible. Throw in the problem of selective enforcement (there aren't nearly enough resources to prosecute all the crimes on the books), and you have a system where everyone's a potential criminal, but prosecutors can pick and choose whom to target. Federal prosecutors then win convictions in about 90 percent of their cases—and that's only those cases that make it to trial. Ninety-five percent of federal defendants take plea bargains (which doesn't always necessarily mean they're guilty).

Meanwhile, a new paper from the Cato Institute on federal white collar crime explains how federal prosecutors in corporate crime cases are adopting the Spitzer model, and doing away with trials and courtrooms altogether. N. Richard Janis writes that the "combination of draconian sentences, lack of meaningful judicial control over the imposition of sanctions, and the impossible burdens on company officers have jeopardized the very nature of our adversary system of justice." The Cato study says federal prosecutors' enormous leverage under the post-Enron regulatory structure allows them to essentially deputize private corporate counsel to go after targeted employees.

I'd add that the broadly written (and even more broadly interpreted) federal conspiracy and racketeering laws make all of this even worse. If federal prosecutors don't have the evidence to prove the underlying crime, they'll often fall back on conspiracy or mail or wire fraud charges, which are much easier to prove.

Example of how broadly-written conspiracy laws can entrap the innocent here. William Anderson and Candice E. Jackson looked at the federalization of crime for reason back in 2004, as did Gene Healy.

The Triumphant Return of the Hopsicle

rbalko@reason.com (Radley Balko) — Tue, 15 Jul 2008 09:39:00 EDT

Last summer, I posted on the travails of Rustico, a great little restaurant in Alexandria, Virginia trying to get the okay from state alcohol regulators to put frozen beer on a stick on its menu. Virginia had an old law on the books stating that alcohol must be either served in its original container or immediately after pouring. After a year of negotiation, the "hopsicle" returned to Rustico earlier this month. There's also now a bill pending in the state legislature cementing the legal status of the frozen treat.

I had one last night. It was the cherry-flavored pop you see above, made from a Belgian kriek. Very, very tasty.

Also taking effect this month in Virginia: a bill legalizing sangria. That drink was also banned in the commonwealth, due to a post-Prohibition law banning any drink that mixes spirits, wine, or beer. The law technically outlawed martinis and boilermakers, too.

One Million Strong

rbalko@reason.com (Radley Balko) — Mon, 14 Jul 2008 11:32:00 EDT

The ACLU says the Transportation Security Administration's terrorist watch list hit one million names sometime over the weekend. It's hard to see how a list that large could possibly be useful.

According to a recent public chat on the TSA website, nearly seven years after the September 11, 2001 attacks, the government is "in the process" of finally developing a way for innocent people to appeal their inclusion on the list.

CORRECTION: The watch list is maintained by the Terrorist Screening Center, not by TSA.

Cleveland DEA Informant Scandal Wraps Up

rbalko@reason.com (Radley Balko) — Mon, 14 Jul 2008 09:11:00 EDT

The Cleveland Plain Dealer has a long and fascinating wrap-up of a massive debacle involving DEA agent Lee Lucas, drug informant Jarrell Bray, and the many people the two of them wrongly put behind bars.

The case reads a little like a trashy crime noir novel. Despite ignoring repeated warnings about Bray's trustworthiness from local police, and despite signs early on that he should have known Bray was prone to making things up, Agent Lucas continued to take the convicted felon at his word, and continued to wrack up arrests and convictions based on Bray's assertions.

Two dozen cases were dismissed. All but one of those wrongfully arrested were black. The kicker is that after all of this, Lucas is still on the DEA's payroll (despite about a half dozen prior incidents where he has been accused of unethical behavior). And former U.S. Attorney Greg White, who prosecuted the cases Lucas brought in, has since been promoted to U.S. magistrate.

Appeals Court Rules in Rack 'n' Roll Pool Hall Case

rbalko@reason.com (Radley Balko) — Sat, 12 Jul 2008 14:35:00 EDT

A few weeks ago, a three-judge panel from the United States Court of Appeals for the Fourth Circuit tossed out (pdf) most of the civil rights suit filed by David Ruttenberg, owner of the Rack 'n' Roll Pool hall in Manassas Park, Virginia. Fortunately, the court did leave one Fourth Amendment claim that could save Ruttenberg's case.

For a couple of years now, I've been reporting on how officials in the tiny town of Manassas Park have been harassing Ruttenberg and attempting to take away his business. The police there have been investigating Rutenberg for several years, for what they've recently said are drug crimes. As of yet, they've found no evidence of criminal wrongdoing by Ruttenberg. They've arrested him twice on charges unrelated to drugs—once for filing a false police report and once for bouncing a check—and in both cases the charges were eventually dropped.

The police in Manassas Park have hired informants to set up drug deals in Ruttenberg's bar (which they later cited as evidence that Ruttenberg's bar was a filled with drug activity). They've pulled over Ruttenberg's former girlfriends, and threatened them with charges unless they provided information against him. They've even co-opted security Ruttenberg had hired specifically for the purpose of keeping drugs out of his bar, and had them set up drug transactions in the bar.

The story took a particularly weird twist last year when local politics blogger Greg Letiecq and I revealed that one of the charges levied against Ruttenberg by the Department of Alcoholic Beverage Control—that he was allowing lewd activity to go on at the bar—was due to photos dozens of photos of women dancing in various stages of undress that were taken by then-Manassas Park Vice Mayor Kevin Brendel. At the time, Brendel was working at Ruttenberg's bar as a part-time D.J. Current and former Rack 'n' Roll staff say Brendel encouraged the women to strip and put on lewd contests when Ruttenberg wasn't around, despite repeated warnings from Ruttenberg.

I've personally witnessed police harassment of Ruttenberg's customers. And I've gone through hours of surveillance video with him showing countless attempts to set him up.

Ruttenberg has shown remarkable resolve through all of this. He records every phone conversation. He keeps meticulous surveillance video that covers every corner of his property. He collects statements and affidavits from staff, friends, and witnesses. He has hired private investigators. He has a formidable collection of evidence of public corruption and police misconduct (I've spent hours with him at the bar going through it all). Unfortunately, local prosecutor Paul Ebert (the same prosecutor in the Ryan Frederick case) seems uninterested. As does the FBI. And the Virginia State Police.

The appeals court ruling was pretty dismissive of Ruttenberg's suit (the ruling also misstates several facts about the case). But the one claim they left intact may turn out to be enough. The appeals court panel reversed the district court's dismissal of Ruttenberg's Fourth Amendment claim that the tactics the police used in a 2004 raid on Rack 'n' Roll were excessive. And they most certainly were.

The police initially sought a criminal search warrant for the raid. They couldn't find a judge to grant them one. So instead, they claimed they were conducting a routine alcohol inspection, and raided the place anyway. This "regulatory inspection" was clearly intended to intimidate Ruttenberg and his customers, and to find evidence of criminality—the police brought more than 70 officers from Manassas Park and surrounding jurisdictions, some in uniform, some in plain clothes, and still others in ski-mask hats and camouflage pumping shot guns as the stormed the place (on Ladies' Night).

If this was a routine alcohol inspection, you have to wonder what an actual drug raid might have looked like. Here's Ruttenberg's surveillance video of the raid. Er, "inspection":

The only people arrested in the raid were either undercover cops or people Ruttenberg later learned were working for the police as confidential informants.

The bad news is that while the ruling remands the remaining claim back to the district court for further proceedings, the panel then expresses a good deal of skepticism about whether the remaining claim should ultimately survive. In fact, the ruling nearly instructs the district court on how to dismiss it.

The good news is that Ruttenberg has several state claims that remain intact, which he can now attach to his federal case. That gets him into discovery, where he can demand to see everything the town of Manassas Park has accumulated in its long investigation of him.

Ruttenberg's other problem right now is that he has run out of money to pursue the case any further. He had kept his bar open at a loss for a couple of years in hopes of selling it. He was finally able to sell it at a steep loss last year, but that and the legal fees he has accumulated have wrecked him. He's currently looking for legal representation to help him continue the case.

Fifth Circuit: Police Not Liable for Plants Mistakenly Destroyed in Drug Raid

rbalko@reason.com (Radley Balko) — Sat, 12 Jul 2008 12:20:00 EDT

The Fifth Circuit Court of Appeals has upheld a federal judge's dismissal of a lawsuit against a sheriff in Harrison County, Mississippi who destroyed $225,000 worth of kenaf plants during a drug raid. The sheriff and his deputies mistook the plants for marijuana. They seized the plants even after a sample tested negative for THC.

Marion Waltman, the owner of the plants, was asking to be compensated for the destruction of his property. The appeals court upheld the circuit court judge's ruling that the qualified immunity enjoyed by government employees requires Waltman to show "deliberate indifference" on the part of the sheriff, and that Waltman failed to meet that standard.

Waltman might still be able to sue in state court. But for now, he'll have to foot the bill for the sheriff's $225,000 mistake.

The Ballad of Kathryn Johnston

rbalko@reason.com (Radley Balko) — Fri, 11 Jul 2008 11:49:00 EDT

Atlanta native Shawn Mullins' latest album includes a tribute to Kathryn Johnston, the 92-year-old woman slain in a botched 2006 drug raid. Have a listen below.

reason coverage of the Johnston case here.

Flint, Michigan Battles Crack Epidemic

rbalko@reason.com (Radley Balko) — Wed, 09 Jul 2008 12:38:00 EDT

The third most violent city in American had declared war on . . . saggy pants. Below, a helpful graphic from the Detroit Free Press explains the new law.

I wrote about the new wave of baggy pants laws back in January.

Another Isolated Incident

rbalko@reason.com (Radley Balko) — Wed, 09 Jul 2008 08:40:00 EDT

Last Thursday, narcotics cops in Troy, New York shot the locks off a door, tossed a flash grenade through a window, and stormed a house as part of an early-morning drug raid. They found only a single mother inside, not the drugs or weapons described in the warrant. The raid seems to have stemmed from a bad tip from a confidential informant. But Troy authorities don't seem particularly repentant. Here's District Attorney Richard McNally:

"The checks and balances were in place. We checked and double-checked the information in this case. All the checks and double-checks were done. Unfortunately, it didn't work as planned."

Obviously the checks and balances weren't in place, or the police wouldn't have terrorized an innocent woman (fortunately, her five-year-old daughter wasn't home at the time).

One local TV reporter spoke with a police sergeant related to the case, who said the police have no intention of repairing the damage they did to the woman's home.

Sgt. Dean: "We did not hit the wrong house, we hit the house that the search warrant directed us to hit."
Anya: "But was that information that led up to that right?"
Sgt. Dean: "My bosses are going through this whole investigative process to make sure that we were as thorough as possible."
Anya: "What was the level of threat that you assessed prior to coming into the home?"
Sgt. Dean: "That there were weapons in the house, or that the drugs were stored in that manor."
Anya: "In this house, you found no drugs?" Sgt. Dean: "We are not publicly speaking on that issue at this point."
Anya: "Do you think this will hurt your credibility?"
Sgt. Dean: "The last thing we want to do is enter an innocent person's home - it doesn't get us anywhere, and it doesn't hamper the drug trade."
Anya: "Will you be going back to clean-up the damage to the house?"
Sgt. Dean: "We just have to enter lawfully with our search warrant, that is our only obligation."
Anya: "And you can leave it in any state that you left it?"
Sgt. Dean: "Yes. We had probable cause that led us to believe there was drug activity."

Which apparently means they feel no obligation to clean up the mess they made.

Are You Supposed To Smoke It, or Make Love to It?

rbalko@reason.com (Radley Balko) — Tue, 08 Jul 2008 22:22:00 EDT

Police in Ohio discover some really premium weed.

The Ballad of Esequiel Herenandez

rbalko@reason.com (Radley Balko) — Tue, 08 Jul 2008 17:25:00 EDT

Tonight, PBS will air the documentary The Ballad of Esequiel Hernandez. Hernandez was an 18-year-old resident of Radford, Texas killed in 1997 when U.S. Marines mistook him for a drug smuggler while he was out tending to his family's herd of goats.

The case illustrates the dangers inherent in blurring the line between military and domestic policing, a practice that's grown increasingly common over the last 30 years, particularly with respect to the drug war.

As the PBS summary points out, the film takes on particular significance now that the Bush administration has ended a 10-year moratorium on military operations along the border.

Watch the trailer here. Nick Gillespie commented on the Hernandez case for NPR back in 1998.

Thanks to David Boaz for the tip.