Post-trial Memoranda from Floyd v. City of New York (Stop-and-Frisk Litigation)

I haven’t been following the Floyd lawsuit that challenges New York City’s stop-and-frisk practices as closely as I should, and I need to fix that. Just today, I downloaded the postrial memoranda that the defendants and the plaintiffs filed with the district court, to read over the next week or so. In case any of you would like to read these documents, too, I have posted them here (defendants’ memorandum) and here (plaintiffs’ memorandum).

From the Archives: The ACLU Urges RFK to Prosecute (1963)

It’s strange to see ACLU brass support a criminal investigation, as occurred yesterday when executive director Anthony Romero issued a statement relating that it was “imperative that the Department of Justice thoroughly examine whether the [Trayvon] Martin shooting was a federal civil rights violation or hate crime.”

Strange, but not unprecedented. Back in 1963, the executive director of the ACLU wrote Robert F. Kennedy to encourage Kennedy’s Department of Justice to pursue more cases under 18 U.S.C. § 242, a federal civil-rights statute. John de J. Pemberton wrote his letter to RFK to discuss the filing of Moses v. Kennedy and Hoover, a lawsuit that sought to compel the Federal Bureau of Investigation and Department of Justice to investigate and prosecute, where appropriate, section 242 violations that were occurring non-stop in Mississippi.

(Aside: The lawyers for the plaintiffs in Moses were William Kunstler and William Higgs. Everyone still knows who Kunstler was. Higgs not so much, which is a shame; he’s one of the lost legends of the civil rights movement and had a fascinating, if short, life. A few snippets here and here.)

In his letter to Kennedy, de J. Pemberton wrote:

It is our understanding that few if any Section 242 prosecutions have been instituted in Mississippi within the past few years. With the dramatic increase in civil rights activity in the South, the need for protection and assistance, as demonstrated by the Moses suit, is made all the more imperative.We urge as forcefully as possible that the Department of Justice give serious attention to the questions raised in the Moses suit.

Ultimately, Moses was thrown out of court, as it had to be, with the judge concluding that the ”complaint must be dismissed because it seeks remedies which, in the context of the above pleadings, this Court has no power to grant.” (The district court’s decision tossing the case can be found at 219 F.Supp. 762.)

After the jump, I’ve posted photographs of de J. Pemberton’s letter, Burke Marshall’s response on RFK’s behalf, and de J. Pemberton’s reply. (These documents can be found in Box 76 of the Burke Marshall papers, within the Department of Justice Record Group at the National Archives in College Park.)

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Federal Charges Against George Zimmerman?

I deliberately avoided coverage of the George Zimmerman trial, as I did the Casey Anthony trial, the O.J. Simpson trial, and most other high-profile cases. But upon waking up this morning, I did take notice of Zimmerman’s acquittal and ensuing calls for federal authorities to bring “civil rights charges” against him. This got me to thinking, what civil rights charges? And how likely is it that the federal authorities will file these charges?

Upon review, it appears that the closest “fit” among federal crimes would be 18 U.S.C. § 249, a recently enacted federal hate-crimes statute (officially, The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009). Section 249(a) provides:

(a) In General.—

(1) Offenses involving actual or perceived race, color, religion, or national origin— 

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—

(i) death results from the offense; or
(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
Section 249(a)(2)* is to similar effect, except that it applies to crimes motivated by “the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person,” and contains a more elaborate federal jurisdictional “hook.”
What is the government’s track record in section 249 cases? Well, there have been few section 249 prosecutions to date. In looking for cases that have concluded their district-court phase, I could find only the following:
United States v. Maybee: Last summer, in United States v. Maybee – timing-wise, the first appeal of a conviction under section 249 — the United States Court of Appeals for the Eighth Circuit affirmed a defendant’s jury-trial conviction under section 249. Per the government’s appellate brief, the evidence at trial “established that defendant, along with two others, while driving his truck, chased a car occupied by five young Hispanic men and deliberately used his truck to repeatedly strike the victims’ car, ultimately causing the car to crash and burst into flames.” The record also contained abundant evidence that the defendant and his companions (one of whom pleaded guilty to a section 249 charge prior to trial) used racial slurs against the victims just prior to the attack.

United States v. Hatch Earlier this month (July 2013), in United States v. Hatch, the Tenth Circuit affirmed a conviction, upon the defendant’s guilty plea (reserving right to appeal), of conspiracy to violate the statute. According to the Court of Appeals, “In April 2010, a mentally disabled Navajo man—whom the record identifies only as ‘V.K.’—came to [a] restaurant. [Another individual] convinced V.K. to come to [his] apartment. Hatch and [a third person] later joined [them] there. At [the] apartment, the three white men drew on V.K.’s back with markers. They told him they would draw “feathers” and “native pride” but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.’s hair. Finally, they heated a wire hanger on the stove and used it to brand a swastika into V.K.’s arm.” One of Hatch’s two co-defendants also was convicted upon plea of a section 249 charge; the other was convicted upon plea of conspiracy to violate this law.

In both Maybee and Hatch, the defendants argued that section 249 was unconstitutional, in that Congress lacked authority to enact the statute. Both Courts of Appeals rejected this argument, concluding that the Thirteenth Amendment conferred sufficient authority upon Congress.

United States v. Mullet: Some of you may have heard about this case, in which the defendants were charged with federal crimes for, inter alia, cutting off the beards of their foes within the Amish faith. The lead defendant, Samuel Mullet, Sr., was convicted by a jury of violating section 249, as well as other crimes. More than a dozen co-defendants also were convicted of conspiring to violate the statute.

United States v. Thompson: Here, the defendant pleaded guilty to a single section 249 count. The felony information, filed in the District of Minnesota in July 2011, alleged that Thompson struck an elderly Muslim man of Somali descent while telling him to “go back to Africa.”

United States v. Hall: A 2013 guilty plea by a member of the Aryan Brotherhood. Hall, an inmate in a federal prison in Texas, assaulted another inmate whom he believed was gay.

United States v. Larson: A guilty plea associated with an assault upon a Sikh cab driver in Washington state. The incident took place in October 2012; Larson entered his plea in June 2013 in the Western District of Washington.

United States v. Jenkins: This federal prosecution, brought in 2012, stemmed from the kidnapping and assault of a gay man in Kentucky. Two female defendants pleaded guilty to aiding and abetting a hate crime assault, in violation of section 249. Their two male co-defendants pled not guilty and went to trial. At trial, the men both were convicted of kidnapping and conspiracy charges, but were acquitted of the section 249 crime.

Unfortunately, I don’t know if these cases represent all section 249 prosecutions to date. I may have missed a case, especially if it led to a dismissal or acquittal (making the DOJ somewhat less enthusiastic about issuing a press release).

Nevertheless, it’s pretty clear that the feds don’t file very many section 249 charges. Why? Well, as I’ve written elsewhere, civil-rights crimes can be very difficult to prove. The failure to earn convictions on the section 249 count as against the Jenkins defendants who chose to go to trial underscores the difficulty in proving, beyond a reasonable doubt, the specific intent necessary to establish a hate-crime offense. My sense is that federal prosecutors, aware of these difficulties, properly are reserving section 249 charges for relatively clear-cut cases. (Indeed, section 249 cases are so rare that the DOJ’s press releases for two different cases (Thompson and Hatch) both identified the case as the first to be brought under the Shepard-Byrd Act. Oops.) I have not read anything about the Zimmerman case that would lead me to believe that the section 249 case against him is comparably obvious, but again, I have not been following the case closely.

Turning the page, some of you who recall the federal prosecutions of the police officers involved in the Rodney King beating may wonder about the applicability of those crimes to the Zimmerman case. These offenses, 18 U.S.C. §§ 241 and 242, don’t apply to the Zimmerman matter. The first of these crimes is a conspiracy offense, and you can’t have a one-person conspiracy. Per the Department of Justice’s website, the second of these offenses “makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States,” But Zimmerman wasn’t acting under “color of law” insofar as I can tell, so I don’t think that crime would fit, either.

* An earlier version of this post mistakenly referred to this subdivision as section 249(b).


What Will Get a Police Officer Decertified? Records from the Florida Department of Law Enforcement

In most jurisdictions, it’s well-nigh impossible to obtain records or data that relate to police-officer disciplinary proceedings. But there exist a few jurisdictions, such as Florida, that make this information available under open-records laws. Seizing upon this opportunity, not long ago reporters for the Sarasota Herald-Tribune submitted dozens of public-records requests to state and local law enforcement authorities, to ascertain whether and under what circumstances police officers were being disciplined for crimes they committed and other derelictions of duty.

This laborious project ultimately produced a series of extremely interesting articles, which you can access at this link. More to the point of this post, one of the authors of this series, reporter Anthony Cormier, was kind enough to share with me a series of databases assembled in connection with these stories.

The databases consist of records from the Florida Department of Law Enforcement (FDLE). In Florida, police and corrections officers must have a “certificate” in order to ply their trade. The FDLE is the state agency responsible for issuing, and revoking, these certificates. An officer may get reported to the FDLE following an internal affairs investigation, their arrest, or some other prompt. The FDLE then determines whether to revoke the officer’s certificate, impose lesser sanctions, or take no action.

The databases that I was sent comprise records relating to many years’ worth of complaint proceedings, involving more than 28,000 complaints in all. I am still getting my arms (and head) around the data, but I don’t mind conducting the initial stages of this process in public, so long as none of you hold me too closely to what I say here.

One of the first things I want to glean from the data concerns the types of offenses (criminal violations, poor work performance, etc.) that get police and corrections officers in hot water the most, and least, often, both in absolute terms and as a percentage of referred cases. As an initial stab at this information, I transferred some of the databases over to Microsoft Excel, merged a few of these tables using the VLOOKUP function, and then ran an Excel pivot table to arrange the cases based on their (1) outcomes and (2) the principal offense that the officer was accused of committing. By pulling these strings, I could tell which “offenses” — a term that, in this context, encompasses both criminal violations and other gaffes — led to the most decertifications.

I’ll post the resulting chart, after the jump.

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Annals of Privacy-Enhancing Devices: The Delcon Security Telephone (1961)

With all the ongoing fuss over government surveillance, it’s like 1961 all over again. But I doubt that we will see a comeback from the Delcon Security Telephone, advertised in this vintage brochure and cover letter.

The Delcon Security Telephone was a “scrambler” designed to defeat eavesdropping and wiretapping efforts by the government and assorted ne’er-do-wells. Per its promotional brochure, as attached to a regular phone the Security Telephone “converts the human voice into unintelligible jargon, which can be identified vaguely as the sound of a voice, similar to the effect of a phonograph record played backwards.” Only those who had their own, similarly coded Delcon Security Telephone on their end of the line could decipher this gibberish.

Was the Delcon phone useful? Well, as the cover letter brags, it did play a part in the “Murchison-Alleghany Proxy Fight,” which sounds fascinating, but not so fascinating that I’m actually going to find out what it was. The product’s principal drawback: it weighed 24 ounces, which seems just a couple ounces short of a Shakeweight. But with long-distance rates being what they were back in 1961, maybe the handset’s weight saved its purchasers money in the long run, by making certain that confidential calls got to the point.

Is the U.S. Attorney’s Office for the District of Massachusetts Really “Particularly Immoral”?

As part of the ongoing conversation over the charging practices of federal prosecutors, prompted by the death of Aaron Swartz, one commentator observed that the United States Attorney’s Office for the District of Massachusetts–which prosecuted Swartz–was, based on her experience, “particularly immoral.”

The writer cited only two instances of perceived “immorality” in support of this charge. I suspect the commentator had other examples in mind, but wished to spare readers a series of war stories. But the accusation, as well as the rather slender evidence advanced to support it, got me to wondering. If one wanted to prove that a particular U.S. Attorney’s office was “particularly immoral,” how would one go about doing it?

Since most of the criticisms of the Swartz prosecution sound in perceived “overcharging” by the prosecutors involved, I decided to focus on “overcharging” as evidence of “immorality.” Here, it’s important to define what I mean by “overcharging,” which people use to describe several distinct, though often overlapping, phenomena. In addressing the issue at hand, I concentrated on those species of “overcharging” in which prosecutors allege crimes with the intent to either reduce or dismiss them as part of a plea bargain to other offenses. Attacks on this type of overcharging don’t (necessarily) accuse the prosecutor of filing charges on “insufficient” proof, whatever that means. Instead, the argument accuses the prosecutor of engaging in an illegitimate practice by using criminal charges as bargaining chips.

So, if this practice amounts to overcharging, and this sort of overcharging represents an “immoral” practice, how to measure it? Here, I tapped a series of datasets I have pulled together from data compiled by the Administrative Office of the United States Courts (AOUSC) and the Executive Office for United States Attorneys (EOUSA), which I have used for other purposes in the past. These datasets reflect the disposition of charges filed in cases terminated in United States District Courts between October 2002 and September 2009. The data can be sorted by judicial district, and thereby yield a picture of charge dispositions in each U.S. Attorney’s jurisdiction.

Now, the data have their flaws. They contain some inputting errors, for one thing. Though they are portrayed as comprehensive, I have spotted at least a few missing cases. The data do not distinguish between cases handled by the local U.S. Attorney’s office, and those prosecuted out of Main Justice. Finally, and most important, while the data relate the charges filed against each federal defendant (with the AOUSC data relating only the five “most serious” charges, as measured by base offense level), the records do not include information specific to each offender (such as his or her criminal history). This gap means that  one can’t divine from the data alone where on the Sentencing Guidelines a particular defendant would fall, if convicted.

These limitations mean that the data don’t yield what would represent one useful measure of overcharging–juxtaposing the maximum possible sentence that would adhere in a case, as charged, against the prosecution’s actual plea-bargain demand to the defendant. But one can tap the data in other useful ways. For example, because the data identify the district in which each case was brought, one might parse, shuffle, and collect the data to rank U.S. Attorneys’ offices along the following lines (among others):

Dismissals in Pled Cases: the percentage of charges that were dismissed in cases resolved by guilty or no contest plea. Here, a high dismissal rate would seem suggestive of aggressive charge-bargaining;

“Most Serious Charge” Reductions: the percentage of cases, resolved by plea, in which the offense designated as the “most serious charge” at the time of initial case filing no longer held this status at the time of case termination. Once again, higher dismissal rates would tend to suggest aggressive charge-bargaining; and

Dismissals of “Bargaining Chips” in Pled Cases: the frequency with which, in pled-out cases, prosecutors dismissed a charge that practitioners widely appreciate as a bargaining chip, such as the firearm enhancement found at 18 U.S.C. 924(c).

I concede that none of these metrics come close to perfection. Even assuming the accuracy of the data, they are subject to skewing influences such as docket composition and prosecutorial tactics such as threatening to file a more severe superseding indictment, instead of “bargaining down” an existing case. But if properly understood and limited, these metrics have their uses. Especially to the extent that the data corroborate each other, they may yield “yellow flags,” spotlighting offices whose practices may warrant further scrutiny (or praise).

So, what do these analyses yield? Well, I am writing up a short essay that relates the results, while trying to clarify what is meant by the term “overcharging.” I should have a draft done within the next week or two; toss me a line if you’d like a copy, or if you edit a law review that has very low standards. For now, I’ll just say that many of the same judicial districts tend to pop up again and again at the extremes of these rankings.

And, toward the point of this post, what about the District of Massachusetts? Well, with the caveat that I still need to double-check the data, it appears that this District (meaning, presumably, the U.S. Attorneys who practice there) has built a record that does not suggest pervasive charge manipulation–at least relative to other U.S. Attorney’s offices. Specifically, among federal districts, the District of Massachusetts had either the second- or the third-lowest charge-dismissal rate over the studied time span (the difference depends on whether one relies on the AOUSC data or the EOUSA data on this point). The District also had the seventh-lowest rate of 18 U.S.C. 924(c) plea-deal charge dismissals.

So, while acknowledging that the measures I used don’t exhaust the possible grounds for a finding of “immorality,” I don’t perceive from my preliminary review of the data much substantiation for the charge that the Massachusetts U.S. Attorney’s office is “particularly immoral.”


Some Thoughts on the Computer Fraud and Abuse Act

The death of Aaron Swartz last week has drawn renewed attention to the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030). If you’ve made it this far in the post, I will assume that you know what the CFAA is, and what it criminalizes.

My aim here isn’t to criticize or defend the CFAA generally, or the Swartz prosecution specifically. Instead, I simply want to offer up some data that fleshes out how, and how often, federal prosecutors have invoked the statute, from which others may draw their own conclusions.

As I explain to anyone who spends more than four minutes with me–which guarantees that very few persons do–I have complied a database of information on all federal prosecutions that terminated in federal district courts between October 2002 and September 2009 (FY 2003 — FY 2009).* The data come from the Administrative Office of the United States Courts (AOUSC), which compiles the information from terminated federal cases and makes it available to researchers through the Interuniversity Consortium for Political and Social Research. Though the data are far from perfect — humans input the information for each case, and humans make mistakes — they shed light on matters such as how often federal prosecutors invoke particular crimes, and what sorts of dispositions these cases produce.

Earlier this evening I ran a few searches on my database,** searching for prosecutions terminated between October 2002 and September 2009 that included at least one count alleged under 18 U.S.C. § 1030.*** (The database includes only the five “most serious” charges, so it doesn’t capture all counts in all cases, but it comes close.) Here’s what I found:

Total Number of § 1030 Cases. Altogether, 905 federal cases that terminated between October 2002 and September 2009 included at least one count under 18 U.S.C. § 1030 among the five “most serious” initial charges, or the five “most serious” charges at the time of case termination. (Note that here, the database identifies each defendant in a multi-defendant case as a separate “case.”)

Year-by-Year Breakdown. The number of filed cases that incorporated at least one 18 U.S.C. § 1030 charge, either at the time of case filing or case termination, increased a bit as the 2002–2009 timeframe progressed. The database contains 115 such cases that were filed in FY 2003; 98 cases filed in FY 2004; 131 cases filed in FY 2005, 143 cases filed in FY 2006, 145 cases filed in FY 2007, 129 filed in FY 2008, and 144 filed in FY 2009. Moreover, the actual number of § 1030 cases filed in FY 2008 and FY 2009 is certainly higher than the numbers above suggest. The database includes only terminated cases, and many cases filed during these fiscal years remained pending as of September 30, 2009, the last day of FY 2009.

Geographic Variation.  Prosecutors in the Central District of California filed the largest number of cases that included at least one § 1030 charge at case initiation or termination (82), followed by the Eastern District of California (48), Southern District of New York (37), the Eastern District of Virginia (also 37), and the Eastern District of Pennsylvania (35). Significantly, these were the only districts that averaged more than five § 1030 cases a year over the seven-year period. About half of all United States districts averaged one, or less than one, § 1030 case per year. The District of Massachusetts, where Swartz was prosecuted, saw sixteen (16) terminated section 1030 cases over the FY2003–FY2009 span.

Case Outcomes. Here, I focused on felony charges brought under 18 U.S.C. § 1030(a). Of the total of 893 counts under this subdivision with recorded dispositions over the studied period, 59 percent led to convictions. Section 1030(a) counts went to trial a bit more often than the “average” crime did. The trial rate of 6.7% for § 1030(a) charges was about half again the overall 4% trial rate for all charges in the dataset–but since only sixty § 1030(a) counts went to trial, it’s probably best not to draw any broad conclusions from this discrepancy. Tried § 1030(a) counts led to acquittals 18.3% of the time, meanwhile, a figure close to the dataset’s overall trial-acquittal rate of approximately 20%.

Sentencing Outcomes. On this point, I looked exclusively at the subset of 18 U.S.C. § 1030 cases in which the AOUSC identified § 1030 as the “most serious” charge at filing. Among these 767 cases, just south of 500**** led to no prison time for the defendant, either because of a dismissal, acquittal, or a sentence upon conviction that called for no custody time. The most commonly appearing prison sentences were pretty low; they were, in order, 12 months (the sentence in 34 cases), 5 months (25 cases), 18 months (also 25 cases), 15 months (14 cases), and 24 months (also 14 cases). But some cases — about 10 percent of all cases that led to a prison term (31 out of 279) — led to prison sentences of 57 months or more. Most of these big-sentence cases, however, also involved charges brought under statutes other than § 1030, as Swartz’s case did.

* * *

The data are open to a variety of interpretations. To get the ball rolling, here are a few thoughts of my own.

First, assuming the perpetuation of the trends discussed above, in most judicial districts there exist a handful of § 1030 prosecutions each year–at most. This fact means that (the applicable sentencing guideline notwithstanding) there exists no established “going rate” for plea bargains involving the offense. The lack of a “going rate” likely enhanced the uncertainty that Swartz internalized as his case progressed. Furthermore, because prosecutors don’t try very many § 1030 cases, they may have an incentive to allege a large number of counts in any given case, in order to enhance the somewhat opaque odds of conviction.

Second, I was somewhat surprised at the list of jurisdictions in which § 1030 prosecutions were most common. I would have thought that the Eastern District of New York  and the Northern District of California would have been among the leaders in CFAA prosecutions. And while these districts weren’t too far behind those listed above (the Northern District of California had 29 prosecutions containing a § 1030 count; the Eastern District of New York, 21), I wonder whether CFAA investigations weren’t prioritized in these districts, or whether U.S. Attorneys in these jurisdictions were, for some reason, relatively apathetic about prosecuting the crime.

Third, the 59 percent conviction rate for section 1030(a) charges is higher than the conviction rates for most of the other frequently alleged federal crimes, suggesting that these counts aren’t used as bargaining chips by federal prosecutors as often as many other crimes are.

* * *

* I’m working on getting some more recent data.

** Here, let me stress that I ran the data while also watching “Archer: Season  Two” on DVD. So please take the numbers presented here with a pinch of salt.

*** This search encompassed four “charge codes”: 18:1030A.F; 18:1030A.M, 18:1030B.F, and 18:1030B.M. The first of these charges was, by far, the most common.

**** There were a handful of AOUSC codes for custodial provisions that I didn’t take the time to decode. Suffice it to say that the number of non-prison outcomes may be as low as 467 and as high as 488, and is probably on the high end of this range.

Bud Abbott, Pornography, and Searches Incident to Arrest

Tragedy — I dug up today’s document too late to incorporate it into my Crim Pro class on the search incident to arrest exception to the warrant requirement. Given its ribald subject matter, though, I probably wouldn’t have referenced it anyway; plus, I was too busy airing the world’s worst search incident to arrest.

The document — posted a long time back on — is an FBI memorandum from 1958. The memo (you’ll need to click on the document on the left-hand side of the linked-to web page to access it) claims that Bud Abbott, of Abbott & Costello fame, was an avid collector of pornography, possessing around 1,500 reels of the stuff in his home.

More to the pedagogical point, the memo writer advises that the Los Angeles Police Department planned on raiding a possible upcoming party at Abbott’s, at which time the police would “confiscate all films they are able to find in their search incidental to [the participants'] arrests.”  At the time, the governing caselaw (Harris v. United States and United States v. Rabinowitz) would have permitted such an extensive search incident to arrest, provided (of course) that the arrest was lawful. The Supreme Court’s decision in Chimel v. California, which pared back the permissible radius of a search incident to arrest, was 11 years in the future.

A Policeman’s Beat Notebook (1907-1908)

My mom’s mom’s dad was a New York City police officer back in the early 1900s. When my grandmother, his daughter, died a few years ago, my mother inherited some of his effects. Among them, she found the notebook in which my great-grandfather entered his patrol reports for late 1907 and almost all of 1908. Recently, mom gave this notebook to me.

I never met my great-grandfather, George Brewster. He died in the 1950s. From what mom and my grandmother have told me, he was a very interesting person. A strikingly good-looking man, much like his great-grandson, he worked as a police officer for a time, but quit to run a nickelodeon shortly after my grandmother was born. Because my grandmother managed to survive this transition, our family now looks back on this decision and calls it “bold.” But I’m pretty sure that in 1909, my great-grandmother used other, less complimentary terms to describe the forfeiture of a steady job, and the investment of the family’s savings on hand-cranked moving pictures.

Anyway, the notebook measures about five inches high by three inches wide, small enough to fit inside a jacket or pants pocket. The precise year printed on each ruled page happens to be 1899, not 1907 or 1908; I wonder whether my great-grandfather bought the book secondhand, and whether a modern defense attorney could make something out of the disconnect between the pre-printed dates and the days, months, and years recorded by hand. As its frontispiece, the notebook has a glued-in photograph–black and white, of course–of my grandmother. The caption reads “Laura M. Brewster age 11 months and 8 days when taken.” I’d say it’s strange to see a baby picture of a woman whom I knew best when she was in her 80s, but grandma told me so many stories about her childhood–usually juxtaposing her labors with my privileges–that it’s not difficult for me to find the proper mental spot for the photo.

My great-grandfather was stationed within the 84th Precinct, which back at that time encompassed that part of the Lower East Side closest to the Williamsburg Bridge’s Manhattan Landing. Most of the residents of this precinct were Jewish, recent immigrants from Eastern Europe. If this neighborhood witnessed much violent crime, my great-grandfather displayed a tremendous knack for avoiding it. Most of the daily entries within the notebook relate only his hours of service, followed by “no report,” and his lieutenant’s stamp of approval. These entries are all written in a beautiful, steady cursive, pressed into the page with the calm hand of a man who has just spent several hours casually strolling around the city.

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United States v. Jones (the GPS case): the Motion to Suppress and Other Court Documents

I haven’t figured out quite yet how I’m going to integrate the United States Supreme Court’s recent decision in United States v. Jones into my criminal procedure course next fall.  (I’d better figure it out pretty fast, since I’m teaching the course at two different schools next semester. Eep.)

To get a better grasp of the facts behind the decision, I downloaded the pertinent Motion to Suppress (as later supplemented, and with its exhibits), Opposition Brief, and Order from the originating United States District Court’s website, via PACER. I’ve made these documents available at this link, if any of you want to download them for your own use.

Just as a head’s up, the “lead” document on this web page is Jones’ Omnibus Pretrial Motion (with its attack on the GPS device being found at pages 17-18 of the motion); links to other, related documents, including the Supplement to the Omnibus Motion (in which Jones raised additional arguments regarding the use of the GPS device) can be found at the bottom of the page.

Torture: The Puritan Approach

The events of the past decade have revived the debate over whether it is ever permissible for a state to torture someone, and if so, under what circumstances.  With this short post, I simply want to flag the fact that this conversation is nothing new, and dates back to the very first days of colonial settlement.  To wit, the Puritans included the following provision within the first code promulgated in the Massachusetts Bay Colony, the endlessly fascinating 1641 Body of Liberties (a reprint of which can be found here):

No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and sufficient evidence to be guilty. After which if the cause be of that nature, That it is very apparent there be other conspiratours, or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane.

The terms of this law clearly suggest some hand-wringing by the Puritans over the propriety of torture. Such measures were OK, but only under very carefully specified circumstances (even granting that more crimes were punishable by death then, than today). The obvious candidates for torture were convicted witches, as to whom it very well might be “apparent that there be other conspiratours” about. Even so, methods of torture that were “barbarous and inhumane” were off-limits under the law.  Though one wonders what “barbarous and inhumane” connoted, back in the day.


San Francisco Police and Peace Officers’ Journal of the State of California (1929-1930)

By now, it may be obvious that I enjoy reading old law-enforcement publications.  Here’s another, a collection of issues from the San Franciso Police and Peace Officers’ Journal of the State of California (was a title this long really necessary?), dating back to 1929 and 1930.  A few highlights:

Outlook for the Securities Market,” by Plunket-Lillienthal & Co. (December 1929 edition): “The stock market under normal conditions which have developed since the recent readjustment in stock prices, is a reflection of the general business outlook, and it seems reasonable to to expect that with the prospects for business being quite favorable in the last half of 1930, the stock market should move upward in April or May of that year. . . . We believe the general trend of the market for the near-term should be upward until the last week in December, as a strong stock market stimulates retail activities and encourages buying for the holiday season.”  Eep.

Plan for Handling the Liquor Question“: Here, the Chico, California, Chief of Police proposes an alternative to prohibition, whereby the government would own and operate all distilleries, wineries, and breweries, and be the exclusive sales agent for same.

We’re Getting Snappier Officers” (by L.E. Claypool, of the San Francisco office of the Associated Press): “In place of the traditional oldtime cop has come a younger, handsomer, more athletic fellow who wears a snappy uniform and cap and can cut a mean dido in a full dress suit if and when necessary. . . . The effect on women has been marvelous. For instance, when San Francisco had to make her traffic laws more stringent, especially as applied to jaywalking and improper driving, it was found the big, slouchy policeman could not get far with the women. There are many women drivers and, sad to relate, many women jaywalkers. Some time ago when a woman driver was taken to task for a traffic violation, she was certain to get sassy with with the policeman and likely to slap his face if she felt like it. Now, when a nattily dressed young man in khaki who looks and talks like a cross between Maurice Chevalier and Rudy Vallee, asks a woman motorist or woman jaywalker to please be herself, she is flabbergasted, and almost invariably does it and likes it.”

Public Defender Frank Egan“: “Frank Egan, who has been public defender ever since the office was created in this city, is elected, having received a handsome vote in the primaries. However, it would be a nice compliment to him for all police officers to put in a vote for him on November 4.

“Public Defender Frank Egan was a former member of the San Francisco Police Department, and a darned good one, too. He always has been ready to go to the front for any brother officer, and in his present office he has always seen that the police have gotten the breaks in any case he has handled. . . .”

Each issue also includes a blotter-report-style “National Crime Report,” a mix of the macabre, the tragic, and the humorous.  This one is typical of the genre.

Curiously, there’s not that much discussion of prostitution in these bulletins.  One wonders why; perhaps the 1937 Atherton report on police corruption in San Francisco sheds some light on this early-day media blackout.

T-Minus 1: Daily Training Bulletins of the Los Angeles Police Department (1954), Part II

Last week, I posted about the collection of old Los Angeles Police Bulletins that’s available on  The last post introduced the Bulletins by looking at some of the cartoons that were included therein; this post will take a closer look at the collection’s substance.

Specifically, I’m interested in what the Bulletins have to say about the efficacy of the exclusionary rule in ensuring compliance with the Fourth and Fifth Amendments. As background here, the Bulletins were released in 1954. That was five years after the United States Supreme Court held that the basic right captured by the Fourth Amendment was “incorporated” as against the states (in Wolf v. Colorado), but seven years before the Court “nationalized” the exclusionary rule, in Mapp v. Ohio. It also was just one year before the California Supreme Court held that the exclusionary rule applied to criminal proceedings in that state (in a case by the name of People v. Cahan). With the exclusionary rule still one year in the future, what did the manuals have to say about proper police procedure? Was it still the Wild West, or were there right ways and wrong ways to do things?

What I found was somewhat of a mixed bag.  There very little within the manuals on issues of pivotal concern to modern police officers. For example, the Bulletins only very briefly consider the circumstances in which it is appropriate to enter someone’s house, and, insofar as I can tell from my admittedly quick review, never discuss when an officer can, over protest, search a motor vehicle, a residence, or personal property (other than the pockets of a suspected burglar, surprised during a stakeout) for evidence of a crime.  At a minimum, even if I missed a line or two somewhere, these topics are not covered in any detail. Here, I would note that the manuals do not say that such searches are always (or ever) OK; they simply ignore the issues entirely.  (The topics of search warrants and wiretapping also aren’t discussed within the Bulletins; presumably, however, such measures weren’t within the purview of the beat cops to whom these manuals were principally directed.)

There was much more within the Bulletins on the propriety of an arrest, particularly for commonplace crimes such as public intoxication.  This focus isn’t all that surprising, since law enforcement officers long had been held civilly liable for improper arrests. Indeed, the manual expressly notes the possibility of civil liability. On this note, the manual makes frequent use of the frick-and-frack dyad of “Officer Apathy” and “Officer Sharp” (a little like “Goofus” and “Gallant” from those old Highlights for Children magazines one used to see in dentists’ offices, only with guns and more-frequent interaction with vagrants and prostitutes).  One of the first admonishments from the square-jawed Officer Sharp is that “An understanding of the laws of arrest is to the policeman what a knowledge of the use of the compass is to a navigator.”

Likewise, the manuals did touch upon some third rails to avoid during interrogations, due to the possibility of exclusion at trial.  Per this cartoon, which incorporates a highly unnecessary character in a sombrero, “the 1890 technique” for inducing a confession “is out,” and officers should instead utilize “scientific, intelligent interrogation.” The text on the bottom of the page reminds officers that courts have cracked down on the practice of promising rewards or inducements in exchange for confessions.  More generally, the manual offers frequent reminders about how good investigations–meaning investigations that yield reliable evidence–are essential to good cases, and to securing convictions in court.

All in all, the manual provides some support for the notion that without an exclusionary rule or similar sanctions,  police won’t pay quite the same attention to compliance with constitutional rules regarding search, seizure, and interrogation.  I acknowledge that such training might have been available to Los Angeles police officers of that era through other sources, but the dearth of such information in a 300+ page police manual is somewhat telling.

One other point, of possible interest to modern audiences.  The manual recommends that when an officer “stakes out” a car previously determined to have been stolen, he should disconnect two or three of its spark plug wires.  Doing so “will effectively reduce the car’s potential speed and forestall a ‘chase.’”  This is, clearly, the forerunner to Axel Foley’s banana-up-the-tailpipe tactic.



Just the Facts, Ma’am: Daily Training Bulletins of the Los Angeles Police Department, in Cartoons (1954)

If you watched L.A. Confidential recently–or even if you didn’t–you might be interested in this text, a compilation of the daily training bulletins issued by the Los Angeles Police Department in the post-WWII era.

On second thought, it’s a pretty long read, and the content is simply too good for just a single post.  I’ll probably discuss some its specific advice to officers later on this week. For now, how about if we just look at some of its cartoons?  I like cartoons, and there’s so much to like here.  Or to be appalled by.  Whatever.

Let’s start with “appalled”:  How about this cartoon?  Though it’s still a little more enlightened than Mickey Rooney’s performance in “Breakfast at Tiffany’s.”  At least the Asian character here speaks English well; it’s the officer who resorts to pidgin.

Or, um, this cartoon.  Is the Eskimo angle really necessary?

Now, on to the “awesome”:

Some people with a gun are out for no good.”  I appreciate how the creator of these cartoons has problems with prepositions that are similar to / of / with my own.  I also appreciate the inclusion of “jealous women” among the classes of people who are out for no good.

Charlie Weedmark, World’s Greatest Bicycle Detective“: This cartoon had me at “bicycle detective.”  How has this not been spec’d for a Jim Carrey role?  And is Charlie Weedmark any relation to “Harvey Richards, Lawyer for Children“?

Finally, here are a few that I don’t know quite what to make of:

Patrick O’Pixie, the little guy who looks out after all good policemen?”  Um, where the heck was Patrick when James Cromwell shot Kevin Spacey?

Nude dancers, as being within the purview of the vice squad, I can see.  But “animal fanciers“?  Isn’t some further explanation necessary?  Here again, euphemism by the writer = confusion in the reader.



Katz v. United States

I tend to get obsessed by the first case, or other primary source, that I teach in a course.  In Torts, it’s Hammontree v. Jenner; in American Legal History, it’s the Laws and Liberties of Massachusetts (the 1648 version); in Criminal Procedure, it’s Katz v. United States, the phone-booth case that inspired the “reasonable expectation of privacy” standard.

A while back, I searched around and found old footage of what I believe to have been the telephone booths in Katz (which are now long gone, of course).  I also ordered the district-court record from the case from the National Archives.  David Holt at our library posted these documents online for public consumption, and Gerard Magliocca at Concurring Opinions was kind enough to link to them.  For whatever reason, I forgot to include Katz’s motion to suppress among the posted documents.  I’ve since corrected that, again with David’s help, such that the motion is now also available online.

In case you’re disinclined to read through all of the Katz materials, here’s a quick rundown of a few points of interest from these documents:

1.  As you might expect, the United States Supreme Court’s opinion snuffed out the government’s case.  On remand, the government moved to dismiss the Indictment, with the court granting the motion.

2. One of the witnesses that the government subpoenaed for trial was Frank “Lefty” Rosenthal.  (By the way, I love it when official court documents incorporate nicknames.  I once defended a civil case in which the named plaintiff was Jimmy “The Hat” Allard; this nickname, on its own, made each pleading at least seven percent more fun to read.)  If this name sounds familiar, Rosenthal was the inspiration for the “Ace” Rothstein character portrayed by Robert De Niro in the movie “Casino.”

3. As some of you may know, Katz used a local hotel as his residence; an FBI agent rented the room next to his and eavesdropped on his conversations from that vantage point. The court filings establish that Katz stayed in Room 122 at what is today a Best Western, at 8400 Sunset Boulevard.

4. Katz’s punishment, upon his conviction (prior to appeal, and then dismissal, of course)?  A fine of $300.  Yup, three hundred measly dollars.  Out of such stuff are long-lived constitutional rules made.