Month: October 2014

If you’re expecting a conference kicked off by
former New York Mayor Michael Bloomberg to discuss the many, many
innovative ways city governments can intervene and meddle with
their citizens’ lives and claim this is for their own benefit, you
would be right. Reason’s Scott Shackford attended the two-day
CityLab conference, bringing mayors and city leaders from across
the world to Los Angeles. While there was, indeed, conference after
conference about leaders finding ways to be more involved in the
lives of its citizens, there’s a greater recognition that leaders
can’t really control consumer behavior as the “sharing economy”
grows and expands into more services and that cities need to be
more flexible to allow for completely new and different systems of
manufacturing to take hold.

View this article.

The Des Moines Register highlights
an Iowa forfeiture case, the subject of a federal lawsuit filed
this week, in which state troopers took $100,000 in winnings from
two California poker players traveling through the state on their
way back from a World Series of Poker event in Joliet, Illinois.
The case illustrates several of the themes I discussed in a recent
column
explaining how cops became highway robbers:

Cops can always find an excuse to stop you. On
the morning of April 15, 2013, Trooper Justin Simmons, who is part
of an “interdiction team” that looks for contraband and money to
seize, pulled over William Davis and John Newmer­zhycky, who
were traveling west on Interstate 80 in a rental car, a red Nissan
Altima. Simmons later said he had received a vague tip from “an
Illinois law enforcement officer” to be on the lookout for a red
car, but he did not know why. Obviously that did not rise to the
level of reasonable suspicion, which Simmons needed to stop the
car. So instead he claimed that he pulled Davis and Newmer­zhycky
over because Newmer­zhycky, who was driving, failed to signal as he
passed a black SUV. But as can be seen in the
video recorded by Simmons’ dashcam (starting around the 00:28
mark), Newmer­zhycky did signal. In the absence of
such contrary evidence, cops are free to invent minor traffic
infractions to justify a stop they want to conduct for other
reasons. Although it does not condone such prevarication, the
Supreme Court has
said any valid legal reason makes a stop constitutional, even
if it’s a pretext for a more ambitious investigation. The
Register reports that its “review of 22,000 warnings
and citations given by the [interdiction] teams from 2008 to 2012
showed that 86 percent went to non-Iowans.” Because Iowans are much
better drivers, of course.

Cops can extend a traffic stop after issuing a citation
or a warning, provided the motorist “consents.” Around the
1:27 mark in the video at the top of the Register‘s story,
after Simmons has ostensibly concluded his business and sent
Newmerzhycky on his way, he pulls a Columbo, engaging
Newmerzhycky in a conversation-cum-interrogation about the real
object of the stop. “Hey, John?” he says as Newmerzhycky starts
returning to his car. “Do you have time for a couple of questions?
Do you have something illegal in the car?” Things quickly go
downhill from there. Newmerzhycky denies having drugs or large
amounts of cash. Simmons asks for permission to search the car.
Newmerzhycky says no. Simmons asks if it’s OK to bring a police dog
by for a sniff. “I’d prefer to be on my way,” Newmerzhycky says.
Simmons asks again. “Do I have the right to say no to that?”
Newmerzhycky asks. He does, since he is officially free to go at
this point. Simmons answers the legal question honestly, and
Newmerzhycky reiterates his desire to be on his way.

A dog sniff is not a search, but it can justify a
search. Refusing to take no for an answer, Simmons says
Newmerzhycky seems nervous, and he uses that observation as
justification for calling Trooper Eric VanderWiel, a K-9 officer
with a drug-detecting dog. That move is highly suspect, since
the Supreme Court has
said police may not forcibly prolong a routine traffic stop
merely to wait for a drug-sniffing dog. At the same time, the Court
says an olfactory inspection by a canine is not a search and can be
conducted at will, without any evidence of criminal activity,
provided a traffic stop is not “unnecessarily prolonged.”
VanderWiel’s dog supposedly alerted to the back of the car, at
a point where the dog was conveniently hidden from the dashcam. In
practice, such an assertion gives cops a license to search any car
they want, since “a
court can presume” a police dog’s alert by itself provides
probable cause unless the defendant proves the animal is
unreliable.

Cash is inherently suspicious. The
troopers found $85,000 inside Davis’ locked briefcase, plus another
$15,000 in Newmerzhycky’s computer bag, where they also found a
grinder with bits of marijuana in it, which resulted in a citation
for possession of drug paraphernalia—the only Iowa charge brought
against either man. (Both bags were in the trunk, so maybe the dog
really did smell contraband—or maybe she is trained to smell cash.)
Naturally, Newmerzhycky’s denial that he was carrying a lot of
currency counted as evidence that he was up to no good, although it
is not hard to see why an innocent person
might lie in this situation, especially given how things turned
out. But the truth is that police automatically assume large sums
of cash must be related to drug trafficking or other criminal
activity. They have a strong incentive to do so, since they get to
keep the money. In Iowa law enforcement agencies
receive 100 percent of the proceeds from civil forfeitures they
initiate. From 2011 through 2013, the
Register reports, Iowa’s interdiction teams seized
about $7 million in cash from motorists.

“There is absolutely nothing illegal or uncommon about people
driving through the United States with out-of-state plates…and
carrying amounts of cash,” the lawyer who filed Davis and
Newmerzhycky’s lawsuit tells the Register. “There’s
nothing illegal about carrying cash, and yet law enforcement begins
to treat individuals who are carrying cash as if they are
criminals.” Ultimately the state agreed to return $90,000 of the
two men’s money, a third of which was consumed by legal fees.

That was not the end of their trouble. “Both of their California
homes were searched the next day by law enforcement based on a tip
from an Iowa agent,” the Register notes. Although
both men have state-issued cards identifying them as patients
allowed to use cannabis for symptom relief, the paper says, they
still faced “felony drug charges” because of the marijuana found in
their homes. According to Davis and Newmerzhycky’s California
lawyer, prosecutors dropped those charges after watching the
video of the traffic stop.  

In their lawsuit, Davis and Newmerzhycky argue that the stop,
the search, and the seizure were unconstitutional. They want the
rest of their money back, plus compensation for their ensuing
troubles, including a stroke that Newmerzhycky attributes to the
stress caused by the criminal charges.

[Thanks to Joe Kristan for the tip.]

Marizopa County, Arizona’s
Sheriff Joe Arpaio loves grandstanding—and much of his routine is
made for TV. His chain gangs
wear black and white striped uniforms, just like in old movies, his
prisoners are issued pink underwear “sure to
offend the tender male ego” as his office boasts, and his world
famous “tent city”
jail is available for tours (adults only, no more than five per
group, please). But his office has also been guilty of a litany of
shenanigans, including
stealing documents from a defense attorney,
arresting critical journalists,
spying on political opponents—and maintaining such lousy jail
conditions that they violate inmates’ rights.

In fact, U.S. District Judge Neil V. Wake has
yet again, in an
ongoing saga,
told Sheriff Joe to offer decent medical care to the prisoners
in his care.

Defendants now have at least one medical provider and additional
mental health staff assigned to the Jail’s intake center 24 hours a
day, 7 days a week. But they have not shown they have resolved
systemic deficiencies in providing pretrial detainees timely
face-to-face assessment by medical and mental health providers for
serious acute or chronic complex conditions.

Judge Wake noted that county officials have made some
improvements since the last time he noted that they weren’t
complying with his order to improve conditions, but that “some of
the new practices were begun only a few days before” they asked to
be released from court superviion.

Note that the original judgment against the county dates to
1995, the jails
lost their national accreditation because of conditions in
2008, it’s now 2014, and Sheriff Joe and company are still dragging
their heels over a court order to improve the treatment of
inmates.

The ACLU of Arizona has more
here.