State Supremes Say Cops Can Bust Down Your Door

Posted Oct. 2 at 12:43 pm by Laura Onstot

From bluebuddies.com, get yours today!

Leo Brutsche offered officers keys when they arrived at his property in Kent with a warrant to search for meth, a production operation, and his son, James Brutsche.

James wasn’t so gracious, running for a mobile home and barricading himself in. The multi-jurisdictional Valley Special Response Team declined Leo’s offer and broke down a glass door with a battering ram. An officer later testified that breaking down the door was necessary as police “did not know if James Brutsche was arming himself or rallying unaccounted-for individuals in the mobile home to engage police in a fight, and to minimize the likelihood that evidence was being destroyed.”

No drugs, nor evidence of drugs, were found during the July 2003 search. Though one year later, James died in a warehouse methlab fire in Kent.

Leo Brutsche did nearly $5,000 in repairs to the buildings on his property after the cavalry left, turned around and sued King County and the City of Kent, both of whom had officers in the raid. The county was eventually let out of the suit, and at an arbitrator awarded Brutsche $2,400 plus court costs.

The city fought the award. And in 2005, a King County Superior Court judge not only reversed the decision, but threw the case out completely, giving over $4,000 in court costs to Kent. Brutsche appealed up to the state high court, with backup from the American Civil Liberties Union and the Institute for Justice.

Today the state Supremes ruled 5 to 4 that police were justified in deciding that James posed a threat and breaking in property doors, making it impossible for Brutsche to collect on any damages.

Under state law, a warrant not only gives police the right to go on your property, but to do a certain amount of damage necessary to execute that warrant. In an earlier Snohomish County case, cops not only broke in doors, but trashed the inside, scattering of a house looking for evidence. In that case the damage was excessive and not necessary for executing the warrant, the court ruled.

But in Brutsche’s case, Justice Barbara Madsen wrote for the majority: “on the evidence submitted, the officers did not exceed the scope of their privilege to be on the property to execute the search warrant.”

“The decision certainly will have an effect on Washington property owners,” Institute for Justice attorney Michael Bindas says. “When police damage the property of an innocent person during the execution of a search warrant.”

Two dissenting opinions were also entered with the court decisions, authored by justices Richard Sanders and Tom Chambers. “Under these facts a reasonable jury could certainly find using a battering ram to destroy doors rather than using an available key was unnecessary,” Sanders writes, while noting that the majority was correct in opining that the law does allow for some damage if necessary for executing a warrant.

Chambers agrees with Sanders but is far less politic in his concurring dissent where he states: “I write separately to stress that there is nothing more reprehensible to the law than an agent of the government causing unnecessary and unreasonable damage to the person or property of a person while performing—or purporting to perform—a government function.” He goes on to say that the state should be forced to prove that the force it used was necessary—in a jury trial.

Update:
Unlike the Institute for Justice, the ACLU wasn't backing Brutsche so much as pushing for recognition of the right to sue cops that are excessively destructive under state negligence laws. The majority opinion upheld the right to sue, but only under trespassing laws, ACLU spokesperson Doug Honig explains. The civil rights advocacy group is pleased that the court at least upheld the right to sue, he says, though disappointed that the court didn't give Brutsche the chance to seek redress.

“We hope that this will serve as a deterrent to police from unnecessarily destroying property when they serve warrants in the future, knowing that they could get sued if they aren’t careful," Honig says. "We got the point recognized that we wanted to, unfortunately it was not applied to Brutsche, but it should help people in the future.”

Topics: Civics 101

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The End is Nigh

Posted Oct. 1 at 3:33 pm by Don Ward

But the world still hasn't ended yet.

Two days after the House of Representatives voted down its version of the Wall Street Bailout legislation, and despite round-the-clock handwringing by the Administration, Democrat leaders in Congress, media elites and the latest bumbling brace of presidential wannabes, the market rebounded yesterday and stocks have stabilized today.

How America has gotten to the point where its economy, with a $13 trillion dollar GDP, is held hostage pending some tawdry legislation penned by professional mandarins scrambling to save the same CEO's who created this mess (and who happen to contribute lavishly to their political campaigns) is a lesson in civics which should be foremost on the minds of every voter in November.

It is so typically Washington D.C. that a four-page document submitted by Treasury Secretary Henry Paulson (the former CEO of Goldman Sachs and definition of conflict of interest), grew to 110-page and $700 billion blank check written by House Democratic leadership (See: conflict of interest, campaign contributions Pelosi, Frank, et al) and now it has ballooned to a four hundred-page behemoth with every earmark possible stapled to the Bailout legislation's flank and championed by Sen. Barack Obama (See: conflict of interest, campaign contributions Fannie Mae, ACORN et al).

Despite all of the assurances by politicians and media experts, no one has been able to come up with a simple, succinct explanation describing the mechanics how giving away going a trillion dollars in taxpayer money is going to save the economy, other than by shouting "we have to do something, now, Now, NOW". And that it's George Bush's fault.

Nor can anyone guarantee that this will be the last final, conclusive, absolute, we-really-mean-it-cause-we-lost-our-lease, definitive and penultimate bailout package Americans will be on the hook for.

You couldn't make this stuff up if you tried: Not even if you were writing a movie script designed to be a parody of life inside the Beltway. So try wrapping your brain around the fact that the Wall Street/Financial Bailout legislation in the U.S. Senate is being tacked onto legislation for mental health care; the Paul Wellstone Mental Health and Addiction Equity Act of 2007

Note: On 10/1/2008, the Senate plans to use H.R.1424 as the vehicle for the economic rescue legislation.

Along with other provisions, it's being reported $150 billion in more spending is being added to the Bailout.

Topics: Civics 101

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I Was Totally Going to Write the Most Awesome Blog Post...

Posted Sep. 30 at 12:22 pm by Damon Agnos

...but Nancy Pelosi's speech turned me off. Now I'm not going to.

If Nancy kills your flow that easily, you could never work for me.

Topics: Civics 101

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Note to Republicans Voting Down the Bailout Scheme: RUN WITH IT!

Posted Sep. 30 at 4:50 am by Don Ward

Raise your hand if you have actually read the text of the Wall Street Bailout legislation voted down yesterday in the House of Representatives. That means all 110 pages of the bill. From Table of Contents to Sec. 303, the “Extension of Exclusion of Income from Discharge of Qualified Principal Residence Indebtedness”.

If so you’re probably in that rare sliver of the population which excludes all of your friends and coworkers, captains of industry and truck stop waitresses, radio talk show hosts, reporters and television talking heads. And no doubt a large number of Congress-weasels voting on the measure too.

As far as bills go, the Bailout legislation is chock-full of mealy-mouthed language and vague assurances meant to assuage the doubts of critics while covering the flabby asses of its sponsors.

Continue reading "Note to Republicans Voting Down the Bailout Scheme: RUN WITH IT!"

Topics: Civics 101

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High Court Allows Brain Suit

Posted Sep. 25 at 12:11 pm by Laura Onstot

From Gaetan Lee, Flikr

Like many of us, Jesse Smith probably wasn't thinking about death when he checked the organ donor box on his driver's license. But shortly after his 21st birthday, his heart stopped.

Upon investigating Smith’s death, the King County Medical Examiner's office got in touch with his mother, Nancy Adams, and asked permission to donate some of his brain tissue to the Maryland-based Stanley Medical Research Institute. After many assurances, and, Adams asserts, promises that they would use only a portion of his brain, she signed a waiver.

During the course of the autopsy, the brain and other organs were removed. Most were returned, though samples of other organs were sent to SMRI, along with the entire brain, which SMRI and the county claim Smith gave them permission to harvest en masse. Adams later saw a news special on organ donation that explained the relationship between the Medical Examiner's office and SMRI, realized her son's entire brain had been sent off, and "suffered from grief and depression, requiring psychological and psychiatric treatment," per the terms of a lawsuit she subsequently filed.

State law allows people to gift their organs to designated recipients—generally hospitals, transplant clinics, and researchers. When someone does that, the wishes of his next of kin are irrelevant. In Superior Court, King County and SMRI argued that because Smith had checked the box on his driver's license, Adams' permission wasn't needed in the first place. A judge agreed and threw the case out. But Adams appealed, and last week the state Supreme Court ruled unanimously that her lawsuit could go forward.

The court's decision hinged on SMRI's clinical class. Washington law includes a clause that says in a case like Smith's, where no designated recipient is named, only a hospital can receive the organs. But SMRI isn't a hospital, the court ruled, so they don't automatically qualify to receive donated organs. That means they need permission; and since whether or not SMRI was given permission to take the entire brain remains unresolved, the case has to be hashed out in a trial court.

Topics: Civics 101

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Court Rules on Statute of Limitations with Wikiprudence

Posted Aug. 8 at 9:16 am by Laura Onstot

Over a decade ago, Susan Rivas went into Overlake Hospital in Bellevue for a renal angioplasty, a less invasive procedure for fixing blocks in the main artery to the kidneys. There were complications and the next day, July 20, 1996, Rivas was told one of her kidneys would have to be removed.

Three years and one day later, Rivas filed a medical malpractice claim against Overlake. The statute of limitations on the claim is three years. Rivas was a day later and many thousands of dollars short. The hospital asked a superior court judge to throw the case out, saying Rivas had run the statute. She appealed, noting that when the clock began ticking she was in an intensive care unit recovering from that botched procedure that cost her a kidney.

The trial court sided with Rivas saying she had a right to have both her case and the question of whether or not she had waited too long decided by a jury.

Overlake took it to the state Court of Appeals which reversed the Superior Court, saying Rivas was out of time and lucid during the convalescence so didn't qualify for incapacity exceptions to the limitations statute.

Twelve years later the whole thing finally reached the high court, where the justices ruled six to three that the medical question of whether or not Rivas was adequately incapacitated at the time is a trial issue and her claim will be allowed to proceed.

The dissenters argue that Rivas' short time out didn't impact her ability to file a suit in the ensuing three years and the statute of limitations should have been upheld.

But perhaps the best part of the whole case is a footnote in the majority opinion. In noting whether or not Rivas might have some claim that her recovery in the ICU should push back the statute of limitations date, majority author Justice Tom Chambers refers to the Glasgow Coma Scale. In explaining the scale and its relationship to the case he includes a footnote with a reference for hapless law students who will someday have to dissect the opinion: Wikipedia.

It was only a matter of time before the internet—home to free porn, sneezing pandas and novel length comment chains on the Obamas' "terrorist fist jab"—became a jumping off point for jurisprudence in the state's highest court.

Topics: Civics 101

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More tips for hikers who don't want to be shot and killed

Posted Aug. 7 at 11:52 am by David Stoesz

Yesterday the Seattle Times ran a big-picture analysis of the recent killing of a hiker by a hunter in Snohomish County. They included some tips for other hikers who would prefer not to be shot and killed, including this one: Avoid "animal-colored clothing."

A few they neglected to add:

• Don't go hiking in a bear outfit.
  
• Avoid the urge to go, "Rarr!! Rarr! Here comes a bear! A really big, scary bear!"
  
• Stay upright! Never lumber along on all fours.
  
• Don't devour raw salmon or climb trees in search of honey.
  
• Never go hiking with Piglet or Boo Boo
  

One of the hunters quoted in the story said the real problem was that the young shooter in question "failed to positively identify his target with binoculars before firing." So most hunters, after they get you in the cross hairs of their high powered rifles, will first double check before blowing you away. Well, that's reassuring.

It would have been nice if the Times also ran a list of suggestions for hunters. Number one: How about not shooting your big fucking bear guns anywhere near where humans are hiking?

Topics: Civics 101, Crime & Punishment, Environment, and Media

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The Reinvention of Critical Mass

Posted Aug. 1 at 3:03 pm by Mike Seely

I came late in life to bicycling, finally learning how to ride on two wheels when I was like 9, which was about four years later than most of my friends. I don't own a bike today, and can't help but think my arrested development in this area has a subliminal hand in this state of affairs. But does this mean I drive everywhere? No, sir — not by a longshot. I walk. A lot. Many miles. Every day. It brings me closer to Jesus, and the guy from Sparklehorse. Which brings me to Critical Mass.

Critical Mass, as far as I'm concerned, can suck a duck. If they were to ride peacefully through the streets at any hour, slowing traffic, I'd be cool with that. But they don't; they're dicks — critical massholes, if you will. However, they once were onto something, and I've got a new idea for how they can get on the straight and narrow again: ditch the bikes. That's right, ditch the bikes. Walking back from lunch, I almost got run over by a huge white pickup with Yosemite Sam mudflaps on Marion Street, and it made me think. It made me think that Critical Mass could reinvent itself as a pedestrian army, thousands strong, that strides through every imaginable downtown crosswalk during rush hour, stifling vehicular turners without jumping on hoods. Pedestrians aren't assholes — they've got sole.

I have a dream.

Topics: Civics 101

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Supremes Say Fear of Violence Counts in Court

Posted July 24 at 10:50 am by Laura Onstot

A Tacoma cop says that when he arrived at a woman's home after her parents called, concerned she might be in the house with her violent ex-boyfriend, Kha Magers, "her demeanor [indicated to me] something was terribly wrong." The cop asked if Magers was around; she said no. Then he asked her to step outside. Magers was inside, she told the officer, then begged him not to say she'd told, saying Magers would hurt her.

The woman later recanted her testimony, saying Magers was in the house with her permission. She added that despite his prior assault convictions, an earlier statement about him once holding a sword to her neck and threatening to decapitate her, and a restraining order in effect at the time of the Dec. 2003 incident, she lied to police and her family when saying Magers made her fear for her life.

Magers first statements to police and later recanting were all introduced at trial. Magers history of violence was also brought in to convince the jury that fear for her safety caused the woman to recant her statements to police in December. Magers was convicted, the three strikes rule went into effect, and he was given a life sentence.

Continue reading "Supremes Say Fear of Violence Counts in Court"

Topics: Civics 101

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Blast from the Past

Posted July 24 at 5:06 am by Don Ward

My how the times have changed.

Via Historylink.org...

Long before Seattle celebrated Seafair, there was the Golden Potlatch. Seattle's first summer festival opened on July 17, 1911, to commemorate the onset of the 1897 Klondike Gold Rush and to pan some new gold from the pockets of tourists and revelers. The first two festivals were peaceful enough, but high spirits turned to drunken rioting in 1913, when a mob sacked the local offices of the IWW and Socialist Party. Seattle Times publisher Col. Alden J. Blethen saluted such "patriotic" vigilantism, prompting Mayor George Cotterill to embargo the newspaper and declare a state of emergency.

The incident was prompted when three artillerymen took offense when their uniforms were insulted by a local rabble-rousing street agitator on the corner of Occidental and Washington. Backed up by a couple a of swabbies on shore leave, the group wound up on the wrong end of a butt-kicking in a street fight.

Round two occured the next day when Army and Navy service men came back in greater numbers to finish the job by ransacking the local IWW and Socialist Party headquarters.

Now days the shoe is on the other foot and it is the socialists and Wobbly-wannabes who are trying to shut down Army recruiting offices in Seattle.

Topics: Civics 101

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How to Smoke Pot in Your Friend's Car and Not Get Busted

Posted July 17 at 10:42 am by Laura Onstot

Jeremy Grande was cruising through Skagit County in Aug. 2006 with friend Lacee Hurley, when a cop pulled them over, caught a whiff of ganja, pulled them both out of the car, searched it, found the pot, and arrested them both for possession. Grande got an extra paraphernalia charge added to the mix for when the cop found a bowl on him as well.

The charges against Grande were tossed out by the Skagit County District Court, which found that the cop had probable cause to pull over and consequently search the driver. But he didn't have a separate reason to suspect Grande was involved in criminal behavior and he wasn't the one who was pulled over. The Superior Court reversed and his case was kicked up to the state Supremes. In today's rare unanimous ruling, all nine justices agreed that:

[T]he question is whether the police officer had an objective rationale that it was Grande committing a crime and consequently, probable cause for his arrest. In other settings, we have concluded that where officers do not have anything to independently connect an individual to illegal activity, no probable cause exists and an arrest or search of that person is invalid.

The lesson here: if you're going to get lit in a car, make sure you're not the one driving.

Topics: Civics 101

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No Toilet Takers

Posted July 17 at 8:56 am by Rick Anderson

$89,000, Seats One

There are no bids yet for Seattle's used public toilets after one day on eBay (Watch the toilet in action!) The $500,000 unisex, automated toilets are going at less than 20 percent original cost. But they're not exactly in mint condition, the eBay posting says, with "an average amount of scuffs, scratches, small dents and/or other signs of use...[plus] some pronounced graffiti on steel mirror & door."

After four years and $5 million in cost, Seattle is getting out of the autopotty business while others are getting into it, and outdoor advertising - something Seattle never fully ventured - seems the key. In a story today on Seattle's toilet sale, the NY Times notes that "In 2005, [NY] Mayor Michael R. Bloomberg signed an agreement giving Cemusa, a Spanish company, a 20-year franchise to sell advertisements on bus stops, newsstands and kiosks. In return, the city will receive $1.4 billion in cash and 20 automated toilets. The first, in Madison Square Park, opened in January. Four more are to be installed in Brooklyn and Queens this fall." Adds the Times:

In Seattle, problems arose almost immediately. Users left so much trash behind that the automated floor scrubbers had to be disabled, and prostitutes and drug users found privacy behind the toilets’ locked doors.

“I’m not going to lie: I used to smoke crack in there,” said one homeless woman, Veronyka Cordner, nodding toward the toilet behind Pike Place Market. “But I won’t even go inside that thing now. It’s disgusting.”

Portland thinks it may have the answer:

Rather than automated toilets, some cities are looking for cheaper alternatives that would be cleaned by human attendants. One prototype, to be installed next month in Portland, Ore., would cost $50,000 each, compared with some $300,000 for an automated unit.

Randy Leonard, a Portland city commissioner, helped design that toilet, which in addition has open gaps at the top and bottom of the door, a feature discouraging drug abuse, prostitution and the like.

But given that lesser privacy, it is unclear how popular such a toilet might be, as Mr. Leonard acknowledges.

“We in the U.S. have yet to shed our puritanical roots,” he said. “We are uptight about toilets.”

Topics: Civics 101

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Speaking of Inmates and Public Records

Posted July 3 at 10:10 am by Laura Onstot

Even if Allan Parmelee is allowed to keep filing records requests to his hearts content with every governmental agency in the state, the Supreme Court says he has no right to actually receive those records. (Background on Parmelee's case is here.)

In a 5 - 4 ruling today, the state high court decided that the Olympic Corrections Center was within its rights to deny inmate Michael Livingston access to records in the personnel file of a corrections officer. The DOC filled the request and sent it over to the jail. But Livingston was handed a note saying the jail did not allow inmates access to personal records of the staff working with them so the file would have to be sent to someone else of his choosing on the outside.

Livingston took the case to court with the backing of the American Civil Liberties Union and the Washington Coalition for Open Government. But in the majority opinion, Justice Barbara Madsen argues:

The public records act requires the department to release its records to the public. However, whether the Department must allow them inside a correctional facility is a distinct issue, subject to different statutory obligations.

Justice James Johnson wrote the dissenting opinion saying that simply producing a DOC record and mailing it to a DOC facility then withholding it from the requester does not actually make a record available as required by law. He writes:

But the law requires agencies to make records available, and I cannot agree that an agency makes a record available by mailing the record to itself and then withholding the record from the person who requested it.

So what does all this mean for Parmelee? In Madsen's majority opinion she does allude to the issue of who is entitled to request public records, writing:

It is well settled that a reviewing court interprets the disclosure provisions of the public records act liberally and the exemptions from disclosure narrowly. In general, an agency must disclose a public record unless a statutory exemption applies.

Nowhere in the Revised Code of Washington does it say inmates cannot have access to public records, so from that line of thinking, Parmelee is still within his rights to keep filing requests. But even if the Appellate Court currently considering that question sides with him, the Supreme Court ruling means the DOC could just send the records he seeks to jail staff with no obligation to actually let him see them.

Topics: Civics 101

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No Warrant, No Search

Posted June 5 at 9:51 am by Laura Onstot

The U.S. Constitution famously protects against unreasonable search and seizure, but the Washington State Constitution is far more narrow, requiring a warrant in all but a handful of exceptions to conduct any search, reasonable or not. For that reason, the state Supreme court threw out Jason Eisfeldt's conviction for operating a marijuana growing operation at a house in Lacey.

In August 2003, Eisfeldt called in a repairman to fix a diesel spill on his living room floor. Michael Piper arrived and in the process of cleaning up, went into the attached garage to open the door and vent the fumes. The garage had a foam sealant around it, which Piper broke. Once inside, he found a garbage bag filled with pot. Piper called the cops, let them into the house, and showed them the bag. Then the officers called in for a warrant, which they got, allowing them to search the rest of the house. They found a growing operation and arrested Eisfeldt.

In today's Supreme Court decision, the nine justices agreed that the cops never should have been allowed in the house in the first place. In the majority opinion, authored by Justice Richard Sanders, the court points out that even if the initial search was reasonable, it violated the state constitution when the cops failed to seek a warrant before going into the garage in the first place.

Additionally, the search of an Olympia home based on a warrant obtained from the search of Eisfeldt's home was ruled unconstitutional due to the "poison tree" doctrine. Because the first search was illegal, any search warrants obtained from the first search are also unlawful.

While the court was unanimous in its ruling, Justices Barbara Madsen and Charles Johnson filed a separate opinion. They argue that while they agree with the outcome, Piper's initial search of the property wasn't unlawful and could have been used as evidence to lead to prosecution if the cops hadn't violated Eisfeldt's rights under the state Constitution in the first place.

Topics: Civics 101

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Civics 101: Just Because the Deer You Illegally Shot Didn't Die Right Away Doesn't Mean You Didn't Kill It

Posted April 16 at 10:21 am by Laura Onstot

U.S. Bureau of Reclamation

The state appellate court ruled yesterday that when Dean Richard shot a deer illegally, the fact that the fatal blow was delivered by someone else to the dying buck was irrelevant to his guilt in an illegal hunting case.

In 2005, Richard was out hunting in Columbia County, located in the sparsely populated southeast corner of the state, when he took a shot at a three-point buck (the points, for all you vegetarian animal lovers, refer to the number of points on each antler.) At least he thought it was a three-pointer, he told the court. It turned out to be a two-point buck, so shooting it wasn't legal.

Someone witnessed the shooting and called it in. Two wildlife officers stopped Richard on his way out of the park. He told them he had shot a deer and was looking for help to retrieve it. It was too dark to do anything about it at the time, but the next morning, wildlife officer Michael Johnson found the deer, downed through not quite dead. He put it out of its misery, cut off the head and showed it to Richard. Showing only two points, Richard was charged in Columbia District Court. He was convicted by a jury of his peers of illegally killing the animal and imposed a $2,000 fine.

Richard appealed his case, not on the facts of the incident, but saying that even if he did shoot the deer illegally, he wasn't the one who killed it. Officer Johnson was. The appellate court ruled that because Richard didn't raise such an issue at trial, he was too late—the big game version of "you break it you buy it."

Topics: Civics 101

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