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More on U.S. v. Gould, aka “The Road to Hell…”

Via Eugene at The Volokh Conspiracy comes a link to this review of the decision by Ken Lammers of Crimlaw. Excerpt:

The court cites a number of cases which it claims support its position that protective sweeps are allowed once valid entry into the residence has been gained by an officer (I have not the time to check them but at least a couple appear to be inapposite plain view cases). Even later in the opinion it blows off the trial judge’s finding that the police created any danger to themselves by entering the trailer and not picking up Gould later (ie: in the morning when he left for work). The trial court says they can’t create a danger and then rely on it to abrogate constitutional guarantees. The appellate court says all the right things about how the officers cannot do such a thing and then makes an excuse for them doing it in this case.

—

My Opinion: The trial court had it right when it pointed toward the officers placing themselves in danger and then taking advantage of it to do a protective sweep. Herein lies the difference between Buie and it’s progeny and Gould. There is quite often danger in serving a warrant and thus the deference to officers acting under the color of one. However, if an officer is acting without a warrant, probable cause, or even a report of immediate criminal activity he cannot be allowed to choose an action which places him in danger over safer courses of action and be allowed to violate the constitution because of the choice. How hard could it have been to have someone watch Gould’s place overnight and stop him when he came out the next day? Sure it would have been inconvenient but that’s far from the primary consideration in a constitutional analysis. This is the point at which the court errs in its constitutional analysis.

There’s a lot more. Essentially he agrees with DeMoss in all the details. There are links to other legal reviews, too.

The Road to Hell is Paved with Good Intentions

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A recent 5th Circuit Court of Appeals decision has hit the radar of those of us concerned over the ever-expanding powers of government in (to us) obvious violation of the Constitutional protections written in to limit that power. I first ran across this latest slip down the slippery slope over at Say Uncle, but the Geek with a .45 and John Donovan have also weighed in. What all three of these bloggers have commented on was this news story from New Orleans, home of the 5th Circuit Court.

Court Opens Door To Searches Without Warrants

It’s a groundbreaking court decision that legal experts say will affect everyone: Police officers in Louisiana no longer need a search or arrest warrant to conduct a brief search of your home or business.

Leaders in law enforcement say it will provide safety to officers, but others argue it’s a privilege that could be abused.
The decision was made by the New Orleans-based 5th Circuit Court of Appeals. Two dissenting judges called it the “road to Hell.”

The ruiling stems from a lawsuit filed in Denham Springs in 2000.

New Orleans Police Department spokesman Capt. Marlon Defillo said the new power will go into effect immediately and won’t be abused.

“We have to have a legitimate problem to be there in the first place, and if we don’t, we can’t conduct the search,” Defillo said.

But former U.S. Attorney Julian Murray has big problems with the ruling.

“I think it goes way too far,” Murray said, noting that the searches can be performed if an officer fears for his safety — a subjective condition.

Defillo said he doesn’t envision any problems in New Orleans, but if there are, they will be handled.

“There are checks and balances to make sure the criminal justce (sic) system works in an effective manor,” (sic) Defillo said.

Our reaction to this story is understandable, I think. We’re supposed to trust Capt. Defillo’s word that “the power won’t be abused” though he says “(t)here are checks and balances to make sure the criminal justice system works in an effective manor.” (I think the word “manor” might be a highly appropriate freudian slip.) Yes, we’re supposed to trust our overlords who just removed one of those “checks and balances” – checks and balances that aren’t there to ensure the criminal justice system works effectively, but there to ensure that the rights of the individual are protected against government abuse. And these words come from a spokesman for a police department with a serious record of corruption. This is not encouraging.

I’ve just begun reading Professor Randy Barnett’s latest book, Restoring the Lost Constitution, which opens with the following:

Growing up, I was like most Americans in my reverence for the Constitution. Not until college was the first seed of doubt planted in the form of an essay by a nineteenth-century abolitionist and radical named Lysander Spooner. In his best-known work, No Treason: The Constitution of No Authority (1870), Spooner argued that the Constitution of the United States was illegitimate because it was not and could never have been consented to by the people on whom it is imposed. Although as an undergraduate I found Spooner’s argument unanswerable (and I must admit so it remained until I was in my forties), the problem was largely theoretical. My mind may have doubted, but my faith remained.

Until I took Constitutional Law at Harvard Law School. The experience was completely disillusioning, but not because of the professor, Laurence Tribe, who was an engaging and open-minded teacher. No, what disillusioned me was reading the opinions of the U.S. Supreme Court. Throughout the semester, as we covered one constitutional clause after another, passages that sounded great to me were drained by the Court of their obviously power-constraining meanings. First it was the Necessary and Proper Clause in McCulloch v. Maryland (1819), then the Commerce Clause (a bit) in Gibbons v. Ogden (1824), then the Privileges or Immunities Clause of the Fourteenth Amendment in The Slaughterhouse Cases (1873), the the Commerce Clause (this time in earnest) in Wickard v. Filburn (1942), and the Ninth Amendment in United Public Workers v. Mitchell (1947).

Nor were these landmark decisions isolated cases. In countless other opinions, the Supreme Court justices affirmed they meant it when they said the Constitution did not mean what it apparently said.

Now, bear in mind IANAL (I Am Not A Lawyer), but I’ve read a LOT of case law over the last ten years or so in my study of the legal history of the right to arms and other rights of the individual, and I’ve found precisely what Prof. Barnett describes here – a slow but steady erosion of the power-limiting restrictions of the Constitution until the Constitution really doesn’t mean anything any longer as far as a restriction on government power. Just two weeks ago my opinion was validated by Justice Antonin Scalia, who said during a speech in New Orleans:

It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.

We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.

Knowing what I know about the accuracy of the press, I decided that I should once again go straight to the source, and read the decision to determine for myself just how bad it was. The case is U.S. v. Gould, and the decision was published last Wednesday. It was an en banc re-hearing by fifteen justices, including justices Garwood and DeMoss, who found in U.S. v. Emerson that the Second Amendment protected a right of the individual – the first rollback of any kind regarding judicial protection of the right to arms in any Federal court since 1939.

The basics of the case are relatively simple:

Louisiana deputy sheriffs, having received on October 17,2000, a telephone warning that Gould, known to be a convicted felon with a reputation for violence, was planning to kill two local judges, went that same evening to the approximately 14 x 16 foot trailer where Gould lived to talk to him, not then intending to arrest him. The officers, who had neither a search nor an arrest warrant, were admitted by another resident of the trailer, Dennis Cabral, who said Gould was asleep in his bedroom. The officers entered and proceeded down the hall towards the bedroom Cabral had indicated. The bedroom door was open, but the officers did not see Gould, and they then conducted a brief protective sweep for him, looking under the bed and opening the door to each of the two bedroom closets, in one of which they saw in plain view, but did not then seize, three rifles. They promptly then ran outside and later found Gould hiding in the woods. In subsequent questioning Gould stated he was keeping the rifles for their owner, a female acquaintance. Gould was then arrested, executed a consent to search, and the rifles were then seized.

Straightforward, no? The cops caught a known violent felon with some guns who had threatened to kill some judges. Score one for the good guys, right? Letting this guy go would have, once again, proven that the courts are “soft on crime,” but they did the right thing and now this asshole is behind bars where he ought to be. Right?

The decision goes on some 32 pages, citing case after case of precedent before concluding:

We hold that a protective sweep as authorized by Buie (Maryland v. Buie (1990)) need not always be incident to an arrest. The district court erred in holding otherwise. Applying the standards and limitations articulated in Buie and the general reasonableness criteria of the Fourth Amendment, we conclude that the protective sweep here was valid. The district court’s suppression order is accordingly REVERSED.

This was not a unanimous decision, obviously. No, it was 11-4. There are 30 pages of dissent, and Justice DeMoss’s (who was joined by Justice Smith) is the most eloquent and detailed. It starts at page 44 of the opinion, and I strongly recommend that everyone interested in individual right read the whole thing to see the mechanism of incrementalism thoughtfully dissected. Excerpts:

This case presents the difficult issues of: (1) whether the protective sweep exception defined by the Supreme Court in Maryland v. Buie, 494 U.S. 325 (1990), is limited to situations involving the execution of an arrest warrant as we held in United States v. Wilson, 36 F.3d 1298 (5th Cir. 1994); and if not (2) whether the search in this case was reasonable. In addressing these two issues, I think the majority makes three significant errors. First, the majority’s starting point in its Fourth Amendment analysis concerning a warrantless search of a home is faulty and therefore the majority does not fully account for the lack of consent in this case. Second, the majority’s reliance on the so-called “clearly” legitimate “knock and talk” police investigatory tactic is misplaced and therefore the majority’s holding leads to an end-run around the Fourth Amendment’s protections. Third, the majority has misconstrued the holding of the Supreme Court in Buie. I will address these three errors in order.

I.

The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. Further, “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a homewithout a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443, 477-78 (1971)). Additionally, the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313 (1972). Accordingly, our law dictates that unless some exception applies, the search at issue in this case, a warrantless nonconsensual search of Kelly Gould’s bedroom in his home, must be found unconstitutional.

Justice DeMoss goes on for a while documenting his position in detail. On to error number two:

In satisfying its first requirement of this newly created exception to the protections afforded by the Fourth Amendment, i.e., that the officers were legally present in the mobile home, the majority relies on the “knock and talk” police investigatory tactic mentioned in United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). The majority refers to this practice as being “clearly… recognized as legitimate.” The “knock and talk” tactic is hardly well-established law. The Fifth Circuit case establishing the concept of “knock and talk” merely states that “[t]his investigative tactic is not inherently unreasonable.” Jones, 239 F.3d at 720.

Use of the “knock and talk” tactic may be reasonable in some cases, e.g., police may follow-up on a lead and approach a citizen, seeking the citizen’s cooperation. In this case, however, the officers conducted an intrusive search of a bedroom with neither consent, nor search warrant, nor arrest warrant, nor any exigent circumstances. The majority has created an exception that permits an officer to ask for permission to enter a home from a third party who may have authority to consent to only part of the home but not all of the home and then immediately contend that he, the officer, is so apprehensive about his own safety that he must conduct a protective sweep of areas where he has no consent to be, when the officer had no obligation or duty to enter the home in the first place. This new exception is really a “knock, enter, maybe talk, and search” police investigatory tactic, all conducted without a warrant, and resulting in an end-run around the protections afforded by the Fourth Amendment.

In addition, the majority has not stated why their new exception is necessary or why we should not find that the officers created a situation that resulted in a Fourth Amendment violation when they in fact had many other permissible ways to pursue their investigation, i.e., seeking a search warrant based on the informant’s tip. The majority does address the issue of exigent circumstances that can sometimes make a warrantless search permissible. This search, however, as the majority agrees, is not based on any exigency.

Again, justice DeMoss goes on to make his case eloquently. Finally, error number three:

We decided to review en banc the Gould case to determine: (1) whether the rule established in Wilson that a protective sweep of a home was limited to an arrest situation, as defined by the Supreme Court in Buie, was correct; and (2) if the protective sweep exception to the search warrant requirement is not limited as Wilson and Buie indicate, whether the warrantless search of Gould’s bedroom was reasonable.

The majority characterizes the rule outlined in Wilson as a “bright-line” rule; Wilson, however, directly follows the precise language used by the Supreme Court in its definition of the protective sweep exception in Buie. The protective sweep exception as outlined in Buie requires the following three elements. First, the officers must be executing an arrest warrant in a suspect’s home. See generally Buie, 494 U.S. 325 (mentioning over 65 times the concept of arrest in a home when defining a protective sweep). Second, the officers must perceive some danger from another person or persons. Id. at 332-36 (indicating that not every in-home arrest will justify a protective sweep and listing several factors that are used to validate the reasonableness of the perceived danger, such as the nature of the crime for which the arrest is being executed, the likely presence of cohorts, and the time and place of arrest). Third, the search may only be a quick and limited cursory inspection of those places another person might be hiding. Id. at 335-36. Here, the majority has ignored the first two elements and only addressed the third. (Which in my reading of many cases tends to be true. That and the – sometimes apparently deliberate – misreading of cases used as precedent.)

Of course, there is good reason for the limited definition as outlined in Buie and tracked by this Court in Wilson. Such a definition avoids the quagmire that the majority finds itself in after rejecting the language in Buie and Wilson. The majority is forced to fashion a new exception with alternative elements that are vague; and as such the new exception swallows the rule that a warrant is generally required for an in-home search.

—

(T)he element that the officers must be executing an arrest warrant in a home in order to conduct a protective sweep cannot be so easily disposed of and an alternative substituted for it. As the Buie court noted:

The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on the-street or roadside investigatory encounter…. A protective sweep… occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s “turf.”

In place of this element the majority substitutes the following element: the police presence in the home must be for a legitimate law enforcement purpose. The majority’s element is an inadequate substitution. There are many legitimate law enforcement purposes that may permit officers to do something short of conducting a warrantless search, e.g., enter a home for the purpose of talking to the person who gave the officers consent and had authority to consent to the entry. Such a legitimate purpose does not somehow give the officer carte blanche to then search the house. In the protective sweep situation, as defined by Buie, the officers must have more than a legitimate purpose to be in the home, the officers must have a compelling reason, i.e., be in the house under the obligation to execute an arrest warrant. This requirement is, in fact, the essence of the Buie holding and this requirement is a limiting factor on the officers’ conduct that is missing from the majority’s opinion.

So, once again we have an example of what 9th Circuit Justice Alex Kozinski described in his dissent to the decision not to rehear Silveira v. Lockyer:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

They’re obviously able to do the same thing with prior case law, as well.

But here’s the kicker in the dissent that really got my attention:

Finally, in my view this case should have never been prosecuted in federal court. The original criminal conduct which precipitated the arrest was strictly local in nature: one Louisiana resident (Forehand) reported to the sheriff of one Louisiana parish (and not to the FBI, the DEA, the ATF, or the U.S. Marshall Service) that another Louisiana resident (Gould) had made oral threats to kill two Louisiana judges (not federal judges) and some other Louisiana residents (not residents of another state) apparently because of a proceeding of some sort in a Louisiana court (not a federal court) relating to a state law claim (not a federal question). If the admonitions in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000) about drawing a line between local and national interests have any meaning at all, then this criminal investigation would have undoubtedly fallen on the local side of the line. All of the law enforcement actors in this case were state officers.

Furthermore, I think it would be ridiculous to conclude that the firearms found as a result of a warrantless search in Gould’s closets in Gould’s bedroom in Gould’s trailer home in the woods of rural Louisiana had any effect whatsoever, much less a substantial effect, on interstate commerce as Lopez and Morrison require for a federal prosecution.

The events which precipitated this case occurred on October 17, 2000. The federal indictment in this case was not handed down until August 9, 2001, more than 9 months later, which clearly indicates that the federal indictment was an afterthought.

—

…I would suggest that the following conclusions should be readily drawn:

A.

The dismissal on March 5, 2001, of the state solicitation for murder charge for “no probable cause” pulls the rug out from under the government’s assertion that Gould’s “threats to kill” were sufficiently real and immediate to justify talking with him even without any warrant; and

B.

The decision of the state court on July 25, 2001, to grant Gould’s motion to suppress pulls the rug out from under the subsequent federal indictment based on identical facts; and should have been disclosed to the federal district court addressing the federal suppression hearing. Had it been, the federal district court might well have based its decision on the alternate ground that the state had already ruled the seizure of the firearms was unconstitutional.

In summary, the Fourth Amendment is the keystone that holds up the arch of our Bill of Rights which in turn is the unique contribution of our founding fathers to our system of government which has now survived longer than any other representative government in the world. In his famous dissent in Olmstead v. United States, Justice Brandeis called privacy – which he defined as: “the right to be let alone” – “the most comprehensive of rights and the right most valued by civilized men.” Justice Brandeis argued that the framers knew that Americans wanted protection from governmental intrusion not only for their property, but also for their thoughts, ideas and emotions. Take away the Fourth Amendment and the right of privacy disappears.

The deputy sheriffs here in Gould made no attempt to develop a sworn affidavit in writing from the purported informant, Forehand, and they therefore made no attempt to get either a search warrant or an arrest warrant from an independent third party magistrate on the basis of probable cause. I have no doubt that the deputy sheriffs believed that they were acting reasonably and with good intentions. But the old adage warns us that “the road to hell is paved with good intentions.” In my judgment, that is precisely where the majority opinion wants to put us – by unhooking the “protective sweep” from its connection with the execution of an arrest warrant in a home, which is where the Supreme Court framed the concept. In my view the gambit of getting permission to enter a citizen’s home in order to talk to someone and then conducting a protective sweep search under the guise of sensing danger to the investigating officer will effectively eliminate the need for complying with the Fourth Amendment and at that point we will all be, literally and figuratively, on the road to hell.

It has been a continuous theme on this blog that I believe that, through a slow but steady incrementalist approach, we have been stripped of the rights we as individuals are supposed to have under the Constitution as it was originally framed. This is the “slippery slope” argument, perhaps now the “road to hell” argument, and it is not limited to just the right to arms. Decisions like this one are but larger blips on a radar screen that is completely fuzzy with the chaff of earlier, less alarming but prerequisite decisions. We’ve had over 200 years of case law to fold, twist, spindle and mutilate to get where we are today.

I cannot put it more plainly – our freedoms are disappearing, and they are doing so through the conscious and unconscious machinations of all three branches of government, and in the majority with “good intention” on the part of the lawmakers and the judges who interpret those laws. Justice Brandeis also said in Olmstead,

Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

We are frogs in the pot, but the mechanism that turns up the heat is human nature – the desire for immediate safety and security, without regard to future effect. In this case, a known violent felon was found to be in possession of firearms after he allegedly threatened to kill. He’s off the street, we’re all safer. But we’re all less free than we were on March 23.

In University of Texas Law professor Sanford Levinson’s Yale Law Journal article The Embarrassing Second Amendment he wrote:

One would, of course, like to believe that the state, whether at the local or national level, presents no threat to important political values, including liberty. But our propensity to believe that this is the case may be little more than a sign of how truly different we are from our radical forbearers. I do not want to argue that the state is necessarily tyrannical; I am not an anarchist. But it seems foolhardy to assume that the armed state will necessarily be benevolent. The American political tradition is, for good or ill, based in large measure on a healthy mistrust of the state. The development of widespread suffrage and greater majoritarianism in our polity is itself no sure protection, at least within republican theory. The republican theory is predicated on the stark contrast between mere democracy, where people are motivated by selfish personal interest, and a republic, where civic virtue, both in common citizen and leadership, tames selfishness on behalf of the common good.

Yes, our Constitution was written by men with an inherent distrust of the State, and it was written as a mechanism to limit the power of the State in favor of the rights of individuals, but that mechanism has failed. As Professor Barnett puts it in the introduction to Restoring the Lost Constitution:

Had judges done their job, this book would not need to be written. Since adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power.
—
Without these missing clauses, the general scheme of the Constitution has been radically altered, which is precisely why they all had to go. The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted constitution creates islands of liberty rights in a sea of governmental powers.

Captain Marlon Defillo of the NOPD tells us not to worry, the new police power to search without a warrant won’t be misused. Trust us, we’re from the government, and we’re here to help you. If you haven’t done anything wrong, you have nothing to fear. It’s for your safety and security that we take another bit of your rights away. You’re not responsible enough for them, anyway.

Let me conclude with another bit from Judge Kozinski’s dissent in Silveira:

The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

The courts long ago lost their “courage to oppose” if they ever really generally recognized their responsibility to. They’ve been aiding and abetting the expansion of government power at the expense of the Constitution since shortly after ratification, and if they can eventually no longer find anyone to enforce their decrees, it might be because of decisions like the 5th Circuit’s Gould finding of last week. We are, as time goes on, less and less a free people, and we are less free because we allow our government to expand its power. We’re too busy living our lives, and we’re too human in our desire to be safe and secure. Freedom is dangerous. Freedom is risky. And freedom must be paid for, either through “eternal vigilance,” as Jefferson warned, or through conflict, as Robert Heinlein wrote in his novel Starship Troopers,

As to liberty, the heroes who signed the great document pledged themselves to buy liberty with their lives. Liberty is never unalienable; it must be redeemed regularly with the blood of patriots or it always vanishes. Of all the so-called natural human rights that have ever been invented, liberty is the least likely to be cheap and is never free of cost.

We’ve abandoned our vigilance. Our islands of liberty are constantly shrinking in the ever-rising sea of governmental powers. In Prof. Barnett’s book there is supposedly a way to restore our “presumption of liberty” without armed conflict. I hope there is. Because without a way to reverse this trend peacefully, the only choices left to us are submission or armed revolt. I don’t know yet if we’ve proceeded down the slope to the point of no return, and I don’t think we can know until we get that empty feeling in the pits of our stomachs that free-fall induces.

But by then, the road to hell will have reached its destination.

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Can Someone PLEASE Explain This to Me?

The mentality of women who go back to their abusers is absolutely beyond me. I have referenced the case of Riss v. New York before, in Part II of Is the Government Responsible for Your Protection? I’ll repeat the pertinent portion of the story:

Linda Riss, an attractive young woman, was for more than six months terrorized by a rejected suitor well known to the courts of this State, one Burton Pugach. This miscreant, masquerading as a respectable attorney, repeatedly threatened to have Linda killed or maimed if she did not yield to him: “If I can’t have you, no one else will have you, and when I get through with you, no one else will want you”. In fear for her life, she went to those charged by law with the duty of preserving and safeguarding the lives of the citizens and residents of this State. Linda’s repeated and almost pathetic pleas for aid were received with little more than indifference. Whatever help she was given was not commensurate with the identifiable danger. On June 14, 1959 Linda became engaged to another man. At a party held to celebrate the event, she received a phone call warning her that it was her “last chance”. Completely distraught, she called the police, begging for help, but was refused. The next day Pugach carried out his dire threats in the very manner he had foretold by having a hired thug throw lye in Linda’s face. Linda was blinded in one eye, lost a good portion of her vision in the other, and her face was permanently scarred. After the assault the authorities concluded that there was some basis for Linda’s fears, and for the next three and one-half years, she was given around-the-clock protection.

Riss met Pugach in 1957, not knowing that he was already married. When she discovered he was married and broke off the relationship in 1959, Pugach promised reprisal. He carried out his threat. A thug threw lye in her face blinding her and disfiguring her face. Linda Riss sued the NYPD and the City of New York for failing to protect her, and lost. Burton Pugach was sentenced to 15 to 30 years in prison for the crime in 1962.

Guess what? When he got out of prison in 1974 they met, and eight months later she married him. (New York Times story, registration required. Use ‘newslinks’ for both user ID and password.)

But that’s not all! Sometime prior to 1997 Pugach got a mistress, and apparently repeated his earlier behavior. He went to trial for threatening her the same way he threatened Linda Riss.

Pugach Calls Ex-Wife As Witness

A Queens man on trial for allegedly terrorizing his mistress is defending himself today by calling the wife he blinded in a similar feud 38 years ago as a witness, reports WCBS’ Irene Cornell.

Burton Pugach , a 70-year-old ex-lawyer accused of terrorizing a former lover has rejected a deal to serve 60 days in jail and three years probation, choosing instead to become his own lawyer.

Pugach would face a one-year sentence if convicted on charges of aggravated harassment and sexual abuse.

According to the Associated Press, in 1959, Pugach, who was married to someone else, was convicted of hiring three thugs to throw lye in the face of girlfriend Linda Riss because she threatened to leave him. He served 14 years in prison. Then, after divorcing his first wife, he married Riss.

A disbarred Pugach then allegedly began a campaign of harassment when his 42-year-old girlfriend tried to end their five-year affair and started dating a younger man.

The woman has testified that Pugach threatened to hire someone to kill her.

Pugach Affair Still Getting Straightened Out

A jury in Queens today begins sorting out the case of Burton Pugach, charged with threatening a former girlfriend with death after she broke off their affair, reports WCBS’ Irene Cornell.

The 70-year-old disbarred lawyer defended himself. His chief character witness was his wife Linda. In 1959, when he was a young attorney, Linda was the girlfriend who dumped him after discovering he was already married.

Pugach hired thugs to throw lye in her face, scarring and blinding her, but she married him after he got out of prison in 1974.

Now she says she’s forgiven him for his affair. And she says the only reason he’s been charged in this case is because of his past.

Gee, YA THINK???

What is it that makes some women behave this way? The New York Times piece, published March 21, 2004, says very little about that 1997 prosecution, but it does say this about their relationship:

Over the years, Mrs. Pugach credited a number of factors for her decision to marry the man responsible for blinding her: a Christian sense of forgiveness, the advice of a fortuneteller, her increasing belief that the police were to blame, the fear that another woman would scoop up Mr. Pugach. “One friend told me,” she said, “that Burt could leave his shoes under her bed any night.” But mostly, she cited her need to move forward. “If you’re going to remain bitter and obsessed,” she said, “it will destroy you.”

Moving on, I understand. Forgiveness, I understand, a little. But marrying the man who blinded you? That, I don’t understand, and never will.

KevinLeave a comment

Go Ahead, Rely on the Government for Your Protection

(I don’t have time for this, but…)

Mr. Free Market reports on another case where doing that resulted in the unnecessary death of a citizen. Doing a little Googling, I found this report on the case:

This frail ex-soldier was killed minutes after dialling 999 – but the police failed to respond

Sandy Clark was in fear of his life from a criminal with a violent record, yet as Daniel Foggo reports, his call for help was given the lowest possible status

Police failed to respond to pleas for help from a disabled Army veteran who dialed 999 minutes before he was brutally murdered in his own home. The operator at West Mercia police who took the call decided no action was required, even though it was the third time that day that Alexander “Sandy” Clark had told officers of his fears about the man who killed him.

Mr Clark, 63, who lived alone in Worcester, told the operator that he was being pursued by a man who had already stolen from him and who had stated, in an angry telephone call, his intention to come to his home and confront him. Instead of help being sent, Mr Clark was told simply to keep his door shut and dial 999 again if the man materialised. The call was officially logged as having the lowest possible status.

About 20 minutes later, Mr Clark was brutally beaten to death by Martin Rauwley, a career criminal who was the subject of Mr Clark’s frantic calls. Rauwley, 39, got into Mr Clark’s home and savagely beat him with his own walking stick, stabbing him to death with the fragments of the stick when it broke. His body lay undiscovered for more than 24 hours.

Mr. Clark’s assailant didn’t need a (prohibited) firearm or a (prohibited) knife to kill Mr. Clark. But Mr. Clark was denied the only weapon with which a frail 63 year-old man might defend himself from a strong, healthy 39 year-old assailant.

Mr Clark’s son Mark and daughter Andrée believe that the police decision effectively to ignore their father’s call cost him his life.

There’s more to it than just the police dispatcher’s decision. It’s a long, long chain of things. But remember, the State isn’t responsible for protecting any specific individual, just the public at large.

Although Mr Clark died two years ago, full details of his attempts to get help before his death have now been released by his family. They did not emerge at the trial of Rauwley, who had a string of previous convictions for fraud and violence. He was jailed for life for Mr Clark’s murder in October 2002.

On the day of his death, March 4, 2002, Mr Clark spoke to West Mercia police three times about his concerns about Rauwley. The two had met in a pub and become friendly, but two days earlier, Rauwley had stolen some of Mr Clark’s military medals. Mr Clark dialed 999 on March 2 to report the theft and was subsequently visited by officers.

Mr Clark first called 999 on March 4 at 10.53am to relate that Rauwley had pushed a note through his letterbox saying he was looking for him. The police later rang Mr Clark back but since Rauwley had not appeared, no more was done.

That afternoon, however, Rauwley telephoned Mr Clark and they argued about the medals. At 4.29pm, Mr Clark called 999 again and had a conversation lasting several minutes. Finishing the call, the operator assessed it as “grade four”, the lowest of the possible levels of response. It meant that the operator judged that no police presence was required. Mr Clark was on his own.

Within minutes, Rauwley had entered Mr Clark’s home and was beating the former soldier to death in his bedroom. Mr Clark, who had served 22 years in the Signal Corps, was suffering from a severe form of spinal rheumatism, Parkinson’s disease and a heart condition. He was no match for his then 37-year-old attacker.

Rauwley left having pocketed some more of his victim’s possessions. CCTV footage later showed him walking along a nearby street at 5.10pm. Mr Clark’s body lay undiscovered for more than 24 hours.

Boy, those CCTV cameras really prevent crime don’t they?

Rauwley, a drug-taking career criminal with convictions for fraud and violence, was quickly caught and convicted.

When Mr Clark’s family were told by the police of their father’s 999 calls, Mark and Andrée asked to see the transcripts. They were allowed to view them at police headquarters on the understanding that they could take no copies. Andrée, 43, said: “Reading them I could tell dad was scared and Mark felt the same.”

Apparently there’s no Freedom of Information Act analog in the UK. Why am I not surprised?

The brother and sister engaged a solicitor, Stephen Lodge, who arranged for them to view the transcripts again. On this second viewing, however, they appeared different. “The second time we got no impression that he was frightened,” said Mark, 39. “It was like there was something missing.”

Penny Fishwick, a solicitor for West Mercia police, explained the discrepancy in a letter to the Clarks’ solicitor. She said that after listening to the tapes with a colleague “I requested a few minor amendments with a view to improving the accuracy of the transcript.

Riiiiiight. I believe that.

Unsatisfied, Mark and Andrée asked for Mr Lodge to get access to the tapes of the 999 calls. This he was eventually allowed to do, but only after signing an undertaking not to let Mr Clark’s family have access to them, to spare them the distress of hearing their father’s voice in his final minutes. More mysterious, however, was an admission from the police that the beginning of the last, and crucial, call had disappeared.

That didn’t work for Nixon, why do they think it’ll work here?

In a letter to Mr Lodge dated August 14, 2003, Miss Fishwick said: “I have just listened to this [final] tape and noted that the first three lines of the conversation are missing. I am sorry about this but I doubt that the first three lines are in any way controversial.”

But we’ll never know, will we?

After hearing the tapes, Mr Lodge said that notwithstanding the missing beginning of the tape, the transcripts appeared accurate. He has since moved to another firm of solicitors and his replacement has stated that he sees no point in pursuing the police.

And there isn’t. They cannot be held responsible, as I’ve previously made clear.

Mark and Andrée, however, are anything but satisfied. “Now I suspect we will never know the full story since a part of the tape had just disappeared, which we find extraordinary,” said Andrée. “I believe this case raises issues over matters such as the police’s response to calls from vulnerable people.

“We feel, however, that West Mercia’s response has been arrogant. When we managed to get a meeting with a senior policeman he told us that all the policing would be done exactly the same given the same circumstances again.”

Yet the UK government requires its subjects to depend on the government for their protection exclusively.

And they cannot seem to understand why the violent crime rate in Britain is higher than in the the U.S. or the rest of Europe.

“We would still like to sue,” she said, “and I will be writing to the Police Complaints Authority to take this matter further. We will not let it drop.”

A spokesman for West Mercia said last week: “Following the death of Mr Clark, the grading of his calls to the police was reviewed. That review showed that the manner in which these calls were graded was appropriate in the light of the circumstances of the time. No formal complaint has been received by the force.”

Thanks for the pointer, Mr. Free Market.

And if the link works, read this article about the frustration of crime victims in England over the inability of the police to do anything effective. Read this one, too.

Now, back to work.

KevinLeave a comment

Which Would YOU Rather Have in a President?

(My one post for today, probably)

I’ve been watching the ongoing battle between President Bush and the putative Democrat nominee John Kerry, and I’m saddened but not surprised by the polling data that shows them in a statistical dead heat at this time. Dick Morris was on TV last night and made a pretty cogent point – this race is between two issues, not two people. The issues are the war on terrorism, and jobs. People who believe the war on terrorism is most important will vote for George Bush. Among the Undecided Middle, people who think jobs are more important (regardless of the rebounding economy, low unemployment rate, et. al) will probably vote for John Kerry.

But for me, those two issues are beside the point. I am more in agreement with Dubya than I would ever be with Kerry, but then I don’t really know where Kerry stands. Apparently nobody does. His positions seem more like probabilistic clouds, ruled by the Heisenberg Uncertainty Principle – you can’t know where he stands, and the act of trying to determine his position affects his position. I want someone in office I can trust, with positions I understand – even if I may disagree with some of his positions on some issues. Kerry never met an issue he couldn’t waffle on. Bush says what he means, and does what he says – a political tactic that seems to have thrown the political analysts here and in other nations for a loop. Bush has said he doesn’t do nuance.

Which reminded me of this article I found in the Sacramento Bee a while back that is still active. It’s from May 27, 2003, and it has the single most illustrative quote I have ever seen defining the difference between President Bush and other politicians – most especially John Kerry:

“What is a little disconcerting for the French is an American president who seems to be principled,” said Jean Duchesne, an English literature professor at Condorcet College in Paris. “The idea that politics should be based on principles is unimaginable because principles lead to ideology, and ideology is dangerous.”

There’s your choice in black and white. Do you want a President with principles, or do you want John Kerry?

Of course, there’s still time for Kerry’s campaign to implode before the convention. Then the Democrats could pull a Torricelli and nominate Hillary. But the choice would still be the same.

No Time to Post Here, But…

KevinLeave a comment

Instead I engaged in a short exchange with a commenter to a thread over at Dean Esmay’s:

Stu:

If you’re a young, urban, black American male you have a very high chance of being murdered. If you’re a young, urban, hispanic American male, your chances are lower, but still quite high.

If you do not fit either of those demographics, your chances of being murdered are about the same as the average Canadian’s. Perhaps lower, because young, urban black males in America die of homicide at six times the rate of the rest of our population.

In comparing the US and England, the homicide rate ratio between the two countries has always been in excess of 5:1 – even when neither nation had any gun control whatsoever. I believe the ratio is currently just under 4:1, but I cannot be sure of that at the moment.

And finally, “‘The reality is that banning guns does not keep guns out of the hands of criminals;’ The logic of that statement completely eludes me. The primary source of illegal guns is theft from legal gun owners. So eliminate ALL of the guns, and criminals have a much more difficult time accessing them.”

England has tried that. It made possession of all handguns illegal in 1996. All 156,000 legally-owned handguns (Actually, I think it was 163,000) were turned in, along with 750,000 rounds of legally possessed ammunition. Handgun crime has gone UP every year since. England recently had a “firearm amnesty” where people could turn in illegal weapons, no questions asked. The collected almost 200,000 firearms and over a million rounds of ammo – but in the violence-ridden areas of London and Manchester there was almost no response.

Banning guns makes it more difficult for criminals to acquire them, but it does not make it effectively difficult, as England demonstrates.

It is not physically possible to “ELIMINATE ALL OF THE GUNS” – and since violent criminals represent somewhere around 1% of a population, it doesn’t require very many guns to service that population. And they will be served – the first rule of economics is that demand will be met with supply.

Banning guns ignores these simple and obvious facts. And all it does is disarm the people you DON’T need to worry about. The inability to see this logic is what eludes me.

Posted by Kevin Baker on March 25, 2004 at 11:39 AM

Kevin: “If you’re a young, urban, black American male you have a very high chance of being murdered. If you’re a young, urban, hispanic American male, your chances are lower, but still quite high.”

Chopping up demographics in this way is what I meant when I said “tortured statistics”. Unless you’re saying that this group doesn’t count, or something.

Kevin: “In comparing the US and England, the homicide rate ratio between the two countries has always been in excess of 5:1 – even when neither nation had any gun control whatsoever. I believe the ratio is currently just under 4:1, but I cannot be sure of that at the moment.”

Britain has had what would be considered to be tight gun control (in comparison to the US) since 1920. And the overall homicide rate ratio is 10:1

Kevin: “England has tried that. It made possession of all handguns illegal in 1996. All 156,000 legally-owned handguns were turned in, along with 750,000 rounds of legally possessed ammunition. Handgun crime has gone UP every year since.”

And the homicide rate?

Posted by Stu on March 25, 2004 at 12:09 PM

Stu:

That’s not “chopping up demographics” or “tortured statistics” – it’s explaining that homicide is not homogenous throughout a society. Handgun ownership, for instance, is largely concentrated in the white male population, but homicide is heavily concentrated in the young, black, urban male population. You are attempting to make the case that “more guns = more homicide” yet that conclusion cannot be logically drawn given the facts. In the United States approximately 1 million handguns and two million long guns are added to the private market each year, yet we’ve had ten or more years of declining homicide rates.

Homicide in England has trended – slightly – UP since the handgun ban. The proportion of homicides committed with handguns has gone UP since the ban.

This suggests that guns are not the cause of homicide, yet gun bans treat them as though they are.

“Britain has had what would be considered to be tight gun control (in comparison to the US) since 1920. And the overall homicide rate ratio is 10:1” That is incorrect. The U.S. homicide rate in 2000 was 5.64/100,000. England & Wales had a rate of 1.61/100,000, for a ratio of 3.5:1. The firearm homicide ratio is 10:1. What you consider to be “tight” gun control may differ somewhat from mine.

Dean’s comment section is not an appropriate place to hold this discussion IMHO. I have a blog that I set up specifically for discussions of this type. Would you be interested in debating this topic with me there?

Posted by Kevin Baker on March 25, 2004 at 1:39 PM

“Dean’s comment section is not an appropriate place to hold this discussion IMHO.”

I disagree. This is what the comments section is for.

Why did you just post the homicide rate for England and Wales, and not include those of Scotland and NI? Even so, what would attribute the higher homicide rate in America to?

Posted by Stu on March 25, 2004 at 1:57 PM

Stu:

It’s inappropriate because it’s his bandwidth, and it’s an awkward place to make extended points – which a discussion of this type requires.

I excluded Scotland and Northern Ireland because they are not normally included in the general comparison between the U.S. and what most people here think of when you say “Britain.” If you average England & Wales, Scotland and Northern Ireland, the rate is about 2.25/100,000. Both Scotland and Northern Ireland have higher homicide rates than England & Wales. That would bring the ratio down to about 2.5:1.

Homicide is a largely cultural thing, but it is exacerbated by the illicit drug trade and consumption of mind-altering substances, both of which are concentrated in specific demographics in both the U.S, the UK, and Canada. The culture of the U.S. is still relatively young compared to Europe, and it is historically violent. Europeans seemed to prefer engaging in killing wholesale (with war after war after war) we tend to do it retail. Canada seems to be more European in nature.

Posted by Kevin Baker on March 25, 2004 at 2:15 PM

I guess that means he won’t debate me over at The Fabulous Baker Boys. Too bad. That would have been fun.

KevinLeave a comment

Citizen Smash Interviews One of Stalin’s “Useful Idiots”

I have no idea how he kept from throttling her, but if you haven’t read it already, go now.

These are the people our public school systems are producing.

And Time magazine has the temerity to suggest that homeschooled kids aren’t good citizens?

KevinLeave a comment

The Next Time Someone Tells You that Self-Defense isn’t Illegal in the UK,

(for all intents and purposes,) show them this:

Man Who Killed Armed Intruder Jailed Eight Years

A man who stabbed to death an armed intruder at his home was jailed for eight years today.

Carl Lindsay, 25, answered a knock at his door in Salford, Greater Manchester, to find four men armed with a gun.

When the gang tried to rob him he grabbed a samurai sword and stabbed one of them, 37-year-old Stephen Swindells, four times.

Mr Swindells, of Salford, was later found collapsed in an alley and died in hospital.

Lindsay, of Walkden, was found guilty of manslaughter following a three-week trial at Manchester Crown Court.

He was sentenced to eight years’ imprisonment.

After the case, Detective Chief Inspector Sam Haworth said: “Four men, including the victim, had set out purposefully to rob Carl Lindsay and this intent ultimately led to Stephen Swindells’ death.

“I believe the sentences passed today reflect the severity of the circumstances.”

Three other men were charged with robbery and firearms offences in connection with the incident, which took place in February last year.

Manslaughter. For bringing a sword to a gunfight.

Excuse me, Chief Inspector Haworth, but the victim here was Carl Lindsay, and the other three men should be in jail for homicide in the death of their accomplice. Mr. Lindsay should have received a hearty pat on the back for ridding society of a violent perpetrator.

UPDATE – 3/24/04: Reader Ben D comments:

Just a quick note-there is a follow up story on Moorewatch stating that this may actually have been a drug buy gone bad. The man wielding the sword was apparently a dealer. Not that he should be punished for defending himself (especially not for defending himself with a sword-way to go!), but there may be more nuances here.

I responded:

However, were you a reader of this story – provided without nuance – would you not draw the conclusion that defending yourself against attack is legally risky?

That’s my point – the general public in the UK is actively discouraged from self-defense, in fear of prosecution.

“You can’t protect yourself! You’re not qualified!”

(Added to the original post because comments tend to eventually disappear.)