One consequence of the events in Ferguson, Mo. is that people are talking with each other across ideological lines who usually don’t, a symbol being the attention paid on both left and right to Sen. Rand Paul’s op-ed last week in Time. And one point worth discussing is how the problem of police militarization manifests itself similarly these days in local policing and in the enforcement of federal regulation.

At BuzzFeed, Evan McMorris-Santoro generously quotes me on the prospects for finding common ground on these issues. The feds’ Gibson Guitar raid — our coverage of that here — did much to raise the profile of regulatory SWAT tactics, and John Fund cited others in an April report:

Many of the raids [federal paramilitary enforcers] conduct are against harmless, often innocent, Americans who typically are accused of non-violent civil or administrative violations.

Take the case of Kenneth Wright of Stockton, Calif., who was “visited” by a SWAT team from the U.S. Department of Education in June 2011. Agents battered down the door of his home at 6 a.m., dragged him outside in his boxer shorts, and handcuffed him as they put his three children (ages 3, 7, and 11) in a police car for two hours while they searched his home. The raid was allegedly intended to uncover information on Wright’s estranged wife, Michelle, who hadn’t been living with him and was suspected of college financial-aid fraud.

The year before the raid on Wright, a SWAT team from the Food and Drug Administration raided the farm of Dan Allgyer of Lancaster, Pa. His crime was shipping unpasteurized milk across state lines to a cooperative of young women with children in Washington, D.C., called Grass Fed on the Hill. Raw milk can be sold in Pennsylvania, but it is illegal to transport it across state lines. The raid forced Allgyer to close down his business.

Fund goes on to discuss the rise of homeland-security and military-surplus programs that have contributed to the rapid proliferation of SWAT and paramilitary methods in local policing. He cites Radley Balko’s Rise of the Warrior Cop, which similarly treats both manifestations of paramilitary policing as part of the same trend.

As McMorris-Santoro notes in the BuzzFeed piece, Rep. Chris Stewart (R-Utah) has introduced a bill called the Regulatory Agency Demilitarization Act, citing such unsettling developments as a U.S. Department of Agriculture solicitation for submachine guns. 28 House Republicans have joined as sponsors, according to Ryan Lovelace at National Review.

There has already been left-right cooperation on the issue, as witness the unsuccessful Grayson-Amash amendment in June seeking to cut off the military-surplus 1033 program. As both sides come to appreciate some of the common interests at stake in keeping law enforcement as peaceful and proportionate as situations allow, there will be room for more such cooperation. (& welcome Instapundit, Radley Balko, Bainbridge readers; cross-posted at Cato at Liberty)

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ABC 20/20 with Elizabeth Vargas takes on the kids-unattended-in-cars hysteria, interviewing Lenore Skenazy and discussing the growing tendency of random passersby to take on the role of informant and call the cops when they see kids — even older kids on cool days — alone in parked cars.

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  • D.C.-area listeners: Today (Monday) I’m scheduled to join host Diane Rehm on her popular WAMU radio show, along with other panelists, tune in at 10 a.m. [update: transcript];
  • “A few people have pointed it out, but our ROE [Rules of Engagement] regarding who we could point weapons at in Afghanistan was more restrictive than cops in MO.” [@jeffclement, part of an interesting Storify on veterans' opinions of Ferguson; related on gun-handling practice of Ferguson police last week as seen by gun aficionados [Reddit via VICE]
  • Obama should call for an end to the 1033 program, which drives local police militarization, says my Cato colleague Tim Lynch [CNN, Yahoo] Pentagon surplus grants to local police don’t correlate with terror threats (state that gets most per officer: Alabama) [WP] Missouri grant angle [David Mastio and Kelsey Rupp, USA Today]
  • SWAT raids on poker games and a comedian: John Stossel’s column this week is on Ferguson [Fox] The inimitable Mark Steyn [Steyn Online] And for balance here’s a contrary view from someone who views militarization as both inevitable and necessary [Jazz Shaw, Hot Air]
  • “What I Did After Police Killed My Son” [Politico; Michael Bell of Kenosha, Wis.]
  • Asset forfeiture, federal partnerships fed St. Louis County gear acquisition [Eapen Thampy, Forfeiture Reform] More background on forces fueling militarization [Glenn Reynolds, Popular Mechanics, 2006]
  • “The Missouri Highway Patrol, St. Louis County, and the City of Ferguson agree that public has the ‘right to record public events’” [Volokh, 2010 Cato video] “Prove the truth”: why cameras help good cops [Nick Gillespie]

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Never mind what rightish pundits have to say about the Perry indictment. Leftish pundits like Jonathan Chait are tearing it to shreds all by themselves. It reminds me of when prosecutor Andrew Thomas, sidekick of Sheriff Joe Arpaio in Phoenix, pressed charges against some of Arpaio’s political rivals over actions within their official authority, an episode that ended with Thomas’s disbarment. Chait:

They say a prosecutor could get a grand jury to indict a ham sandwich, and this always seemed like hyperbole, until Friday night a Texas grand jury announced an indictment of governor Rick Perry. The “crime” for which Perry faces a sentence of 5 to 99 years in prison is vetoing funding for a state agency. …

The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a “misuse” of power or “coercion” of one’s opponents. To describe the indictment as “frivolous” gives it far more credence than it deserves.

When you’ve lost not just David Axelrod and Matt Yglesias but even Jonathan Chait and Scott Lemieux for a legal complaint against a conservative, you’re not just aboard a sinking ship, it’s more like you’re grasping a piece of random driftwood.

P.S. John Steele Gordon, Commentary: “the blow back from left, right, and center is so intense that Perry may well be the first public official to actually gain political clout from being indicted.” (& welcome Jacob Gershman/WSJ Law Blog readers)

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A timely reminder [Ed Krayewski, Reason] Appallingly, some unions have won provisions forbidding authorities from interviewing an officer charged with misconduct until days after an incident, which means a lawyered-up officer can, if so inclined, hold back from committing to a story until it becomes clearer what story is convenient. Krayewski:

Whether Ferguson’s police chief or mayor are actually interested in firing this cop is hardly known. But in the current situation, their hands are tied by an intricate system of legal protections built for cops around the country. Firing Michael Brown’s killer would not make him guilty of murder. That’s what jury trials are for in this free country. But cops, who are authorized by the government to use violence to attain their goals, ought to be held to a higher standard than everyday criminals, not lower ones. A job is a privilege, not a right.

We’ve run many items over the years on this theme, including: Connecticut officer reinstated with back pay after “covering up a hit and run crash involving a fellow officer [she] was involved in a relationship with,” and police union “defends Denver cop fired for driving drunk at 143 mph”; union saves job of officer who planted white powder on suspect in a drug arrest, also in Connecticut; the comprehensively bad “Law Enforcement Officer’s Bill of Rights” package enacted in many states; etc. And closely related, from Ken White at Popehat: “Don’t Give Special Rights To Anybody! Oh, Except Cops. That’s Cool”; J.D. Tuccille, Reason.

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Michael Daly at The Daily Beast has the flabbergasting story of Henry Davis, who was picked up by cops “for an outstanding warrant that proved to actually be for another man of the same surname, but a different middle name and Social Security number,” then beaten by several officers at the station. What happened next was truly surreal: while denying that Davis had been seriously hurt at all, though a CAT scan found he had suffered a concussion and a contemporaneous photo shows him bleeding heavily, four police officers sought to have him charged for property damage for getting blood on their uniforms. The story emerged in part through contradictions in sworn testimony. Moreover, it developed that the department did not have a practice of placing incident reports of this sort in the officers’ personnel files, making it impossible to know how often individual officers had been involved in allegations of excessive force.

The kicker: the police department was that of Ferguson, Missouri.

P.S. Here’s a court document.

Earlier on petty fines and charges as an abusive element in law enforcement. More on the Davis case from Kevin at Lowering the Bar.

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The road to Overlawyered

by Walter Olson on August 16, 2014

Best search engine query of the day that led someone to Overlawyered: “i parked.my.car drunk and.forgot.where it is”. We don’t have it!

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Even as the FDA prepares ambitious new rules pressuring food makers to reduce the amount of salt in their wares — recipe regulation, as we’ve called it — a new study questions whether most people in Western countries really need to cut salt after all. The study, led by Dr. Salim Yusuf of McMaster University, finds evidence consistent with sodium being a health risk for person with hypertension and those with the highest salt intake, but also suggests that most of the population is in the optimal zone for salt intake and that adding potassium-rich fruits and vegetables to the diet may be a superior way for many to fend off bad effects from sodium. The study ran jointly in the New England Journal of Medicine with a second which lays more emphasis on hazards of salt intake. [Yahoo News] More: Just One Minute, ACSH.

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Above: Cato podcast, interviewed by Caleb Brown.

The events in Ferguson, Mo. have vaulted police militarization to the top of the national news. I’ve spent a lot of the past 48 hours talking with the press, covering the issue on Twitter and other social media, and fielding reactions to my blog post (reprinted at the Cato blog), which has gotten considerable attention. Highlights:

P.S. Finally some good news from Ferguson. Newly assigned cops from the Missouri Highway Patrol wear blue not camo, mingle and talk to protesters with respect — and suddenly there’s calm. And the Rand Paul piece is making news.

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That’s putting it mildly. But issues like litigation holds and charges of spoliation, and discovery generally, are where much of the action is in mass torts. Beck explains at Drug and Device Law.

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We’ve warned many times that the Food Safety Modernization Act of 2011 is sure to drive up food prices, make life hard for small farmers, and encourage the substitution of industrial farm methods for the traditional and local. Now the FDA is rumbling that wooden onion crates may need to give way to plastic, although defenders say wooden crates have a good safety record in actual use. “Replacing a million wooden crates would cost about $200 million. … plastic crates can only hold about half the weight of wooden ones and they cost nearly three times as much.” [Economics 21]

In June, after an outcry, the FDA backed off hints that it would end the age-old practice of aging cheese on wooden boards.

P.S. Interesting discussion in comments on whether the cited cost figures are plausible. One thing I like about Overlawyered readers is that they know so much about onion crates.

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In an update on ADA filing mills more than two years ago we noted the case of Alfredo Garcia, one of the busy class of serial plaintiffs who’ve sued hundreds of California businesses demanding money for accommodations violations, often represented by attorney Morse Mehrban, a longtime Overlawyered favorite. Garcia has also been described as an “illegal immigrant and convicted felon,” and KABC Los Angeles says that after filing more than 800 lawsuits, Garcia has actually been deported:

Based on previously disclosed settlements, Eyewitness News can estimate that Garcia has collected approximately $1.2 million from business owners since he began filing lawsuits in 2007.

At the same time, Garcia applies for and receives fee waivers from the courts by claiming he is too poor to pay the court fees associated with the lawsuits. That means taxpayers pick up the tab. …

[By 2010] he’d sued more than 500 businesses, including La Casita Mexicana in Bell. The restaurant owners were able to prove that Garcia had not been at their restaurant on the dates he claimed to have been there.

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$6,500 a ticket

by Walter Olson on August 14, 2014

Salt Lake City is slapping some rather hefty fines on ridesharing drivers [Salt Lake Tribune]

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Why armored vehicles in a Midwestern inner suburb? Why would cops wear camouflage gear against a terrain patterned by convenience stores and beauty parlors? Why are the authorities in Ferguson, Mo. so given to quasi-martial crowd control methods (such as bans on walking on the street) and, per the reporting of Riverfront Times, the firing of tear gas at people in their own yards? (“‘This my property!’ he shouted, prompting police to fire a tear gas canister directly at his face.”) Why would someone identifying himself as an 82nd Airborne Army veteran, observing the Ferguson police scene, comment that “We rolled lighter than that in an actual warzone“?

As most readers have reason to know by now, the town of Ferguson, Mo. outside St. Louis, numbering around 21,000 residents, is the scene of an unfolding drama that will be cited for years to come as a what-not-to-do manual for police forces. After police shot and killed an unarmed black teenager on the street, then left his body on the pavement for four hours, rioters destroyed many local stores. Since then, reportedly, police have refused to disclose either the name of the cop involved or the autopsy results on young Michael Brown; have not managed to interview a key eyewitness even as he has told his story repeatedly on camera to the national press; have revealed that dashcams for police cars were in the city’s possession but never installed; have obtained restrictions on journalists, including on news-gathering overflights of the area; and more.

The dominant visual aspect of the story, however, has been the sight of overpowering police forces confronting unarmed protesters who are seen waving signs or just their hands.

If you’re new to the issue of police militarization, which Overlawyered has covered occasionally over the past few years, the key book is Radley Balko’s, discussed at this Cato forum:

Federal grants drive police militarization. In 2012, as I was able to establish in moments through an online search, St. Louis County (of which Ferguson is a part) got a Bearcat armored vehicle and other goodies this way. The practice can serve to dispose of military surplus (though I’m told the Bearcat is not military surplus, but typically purchased new — W.O.) and it sometimes wins the gratitude of local governments, even if they are too strapped for cash to afford more ordinary civic supplies (and even if they are soon destined to be surprised by the high cost of maintaining gear intended for overseas combat).

As to the costs, some of those are visible in Ferguson, Mo. this week.

[edited to add/update links and to clarify the issues of military surplus and the un-interviewed witness; cross-posted at Cato at Liberty]

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Many organizations and individuals have now filed amicus briefs in the case filed by climate scientist Michael Mann against bloggers, journalists and a think tank (the Competitive Enterprise Institute) that had published or linked to hostile commentary about him. Among them is a brief filed on behalf of the Cato Institute, Reason Foundation, Individual Rights Foundation, and Goldwater Institute whose point, as Ilya Shapiro explains, is to “urge the court to stay out of the business of refereeing scientific debates.” Among filers of other briefs just entered: Reporters Committee for Freedom of the Press and 26 other organizations, online publishers and the Electronic Frontier Foundation, and defendant/commentator Mark Steyn. Earlier here, etc. More: Alison Frankel, Reuters.

Unrelatedly, a Maryland judge has ruled in favor of a large group of defendant-bloggers and entered a directed verdict against Brett Kimberlin’s defamation suit; claims he has filed in federal court remain unresolved. Reporter Dave Weigel was there, and tweeted: “Kimberlin says the bloggers will face ‘endless lawsuits for the rest of their lives.’” [Legal Insurrection, Ken White, Popehat; recent background on federal-court side of case from Paul Alan Levy and more, earlier] (Updated to clarify which of the matters Levy was writing about). More: Weigel in the Daily Beast.

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August 13 roundup

by Walter Olson on August 13, 2014

  • Texas jury awards $27 million against McDonald’s in negligent security case [Bloomberg]
  • NYC cop sues after being acquitted on rape charges, and from the difference in coverage between the NY Daily News and Slate, you might not realize it was the same case;
  • “Obamacare was no inartful compromise; it was a brutal cramdown.” [Michael Greve, Law and Liberty, on Halbig]
  • American Tort Reform Foundation nominations of “judicial hellholes” this year include Louisiana, South Florida and NYC [Abnormal Use]
  • Antitrust’s awful academics [Tom Bowden, Ayn Rand Institute]
  • New York Assembly Speaker Silver “earned up to $750,000 in 2013 working a few hours per week” at prominent tort firm [NY Daily News]
  • Europe: Gardeners with sit-on lawnmowers face buying motor insurance [Telegraph]

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“Get rid of children”

by Walter Olson on August 12, 2014

Bob Dorigo Jones has a winner in his 2014 Wacky Warning Labels Contest. [Let's Be Fair!, earlier] My own favorite of this year’s entrants, a warning that peel-and-stick sports decals do not themselves provide protection against injury, placed third.

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Inevitably, Felix Salmon draws different policy conclusions than would I from the story, but this essay explains at length how state governments’ wish to enjoy the extorted legal proceeds of the tobacco settlement up front, rather than stretched out over time as was the original idea, did not work out quite as planned. [Medium]

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