On Sunday, Davis resident Linda Clark described in bold terms in a Davis Enterprise op-ed what many people face on a consistent basis from ICE and other agencies. Public officials have expressed shock that it could happen here in Davis, but unfortunately it is welcome to the real world.
Writes Linda Clark, “The incident described above occurred in a quiet, family-oriented neighborhood right here in Davis. Most residents of the house are either visiting international scholars or students, or American citizens who are students. No drug dealers. No ‘illegal immigrants.’ “
What happened was that a raid was conducted by between 7 and 12 federal agents from Immigration and Customs Enforcement (ICE), one of several agencies under the umbrella of the Department of Homeland Security.
According to Linda Clark, “The warrant, shown to only one of the residents after most of the search had been conducted, was not for drugs or ‘illegals,’ or any persons, but for items and records that ‘might’ contain reference to a specific website, images of child pornography, or evidence of distribution or transmission of such images across international borders, which explains why ICE is involved.”
“Signed the previous morning, the agents had two weeks to execute the warrant based on what I was led to believe involved an alleged transmission and/or website visit that occurred more than a year ago,” she wrote. “Only one of the current residents had lived there longer than seven months. All of that person’s computer-related devices along with other items were confiscated.”
“Incidentally, the first time that person saw the warrant was when they were handed it with an attached list of items confiscated (unverified by the owner) when the search was completed,” she added.
What happened? Ms. Clark describes in vivid detail that early in the morning on April 26, at 6 am with everyone asleep, there was loud banging, “Police! Warrant”
Part of the problem was a language barrier.
A young South American man opened the front door and described, “When I opened it, a policeman pushed me against the wall while he was handling a gun, he pointed (at) me and made me turn around and put my hands in my back.”
“Several officers, guns drawn, rush in. Other residents are collected and also handcuffed,” Ms. Clark writes. “One resident attempts to explain that the two women in the front bedroom are not fluent in English. Ignoring what was said, or perhaps just not listening, several men force the locked door open.”
“They pointed guns at us. Then they ordered us to put our hands up and checked us,” says one. “I was in fear of my life. I felt very cold and tired because I was two months pregnant.
“After that, both of us were handcuffed. They ordered me to sit on the floor. We were taken into the living room. At that moment I knew that those men around us were police. There were about eight or nine policemen.”
She continues, “Though the officers are told he also was not fluent in English, a Vietnamese man in the back part of the house is punched several times on the back of the head, after he is face down on the floor, hands behind him. The entire house is ransacked.”
Three days later, the pregnant woman suffers a miscarriage.
It was just last week that Sheriff Ed Prieto, among other sheriffs, questioned the use of ICE holds for minor crimes.
Now the issue of ICE has come home to Davis. People who ordinarily wouldn’t pay attention to such things are up in arms. I have been writing about problems with ICE for some time. Maybe people will take notice now that this has occurred in their community.
The incident made it to public comment during Tuesday’s Davis City Council meeting.
Mark Graham, a Davis resident, read from the article. “I read this and I say why? Why in any city in America, but why in Davis?”
“It’s a violation of constitutional rights. It’s a violation of human decency. And it’s a violation of basic police procedure,” he continued. “This is totally unacceptable and it would be appropriate for the council to do something.”
His suggestion was for the Davis Police Department and the Yolo County Sheriff’s office to tell ICE that the California Constitution and the US Constitution prohibit that sort of a raid. “They can execute a search warrant without all that unnecessary force,” he told Council.
He further suggested that ICE allow the local agencies to execute the search warrant in Davis.
Dick Livingston, long time resident and member of the ACLU, described it as a “frightening article.” He noted, “It reminds me of so many movies we always hated of the Gestapo running into the doors and breaking into people’s houses… throwing them on the floor. It even implied bodily harm and death in the article if you read it carefully.”
No doubt Mr. Livingston was referring to the miscarriage. “As a long time member of the American Civil Liberties Union, I think it would certainly be something that would be at best somewhat curious to the ACLU as to how something like this can happen,” he said. “It’s the first time I ever heard of this thing happening. It just seems very alarming. It needs some kind of investigation, some kind of a look. This is what you call terrorism in our town.”
Councilmember Sue Greenwald agreed that the council needed a report from the police about that event.
City Attorney Harriet Steiner noted that the only way the city could have any impact would be through the consent of the different law enforcement agencies. “We only have control over our law enforcement agency,” she told the council on Tuesday. “But it’s possible that if the council wants to discuss it that the chief might bring back some suggestions at a future date.”
“First we need to know what happened and then we can decide the appropriate [approach],” Councilmember Greenwald suggested.
While this is not a new issue, the shock here is that this has occurred in Davis. The individuals involved were apparently visiting faculty and students.
These incidents are of course not limited to ICE. In May, Reason Magazine covered the story of the death of Jose Guerena, a 26-year-old former Marine at the “hands of a Pima County, Arizona, SWAT team. Guerena, who joined the Marines in 2002 and served two tours in Iraq, was killed just after 9 a.m. May 5. Guerera had just gone to bed after working a 12-hour shift at a local mine when his home was invaded as part of a multi-house crackdown by sheriff’s deputies.”
“When I came out the officers dragged me through the kitchen and took me outside, and that’s when I saw him laying there gasping for air,” Vanessa Guerena said. “I kept begging the officers to call an ambulance that maybe he could make it and that my baby was still inside.”
The little boy soon after walked out of the closet on his own. SWAT members took him outside to be with his mother.
“I never imagined I would lose him like that, he was badly injured but I never thought he could be killed by police after he served his country,” Vanessa Guerena said.
Reason Magazine reports, “The sheriff’s department maintains that Guerena was holding an AR-15 when the paramilitary force fired 71 bullets in his home, but other key parts of the government story have collapsed. While PCSD initially claimed Guerena fired the weapon he was alleged to have been holding, the department now says it was a misfire by one of the deputies that caused this deadly group panic inside a home containing a woman and a toddler: “A deputy’s bullet struck the side of the doorway, causing chips of wood to fall on his shield. That prompted some members of the team to think the deputy had been shot,” [PCSD spokesman Michael] O’Connor said.”
While it is encouraging to have response from city officials and residents, unfortunately ICE is largely outside of the city’s jurisdiction. Hopefully, this will be the kind of incident that pushes people like Sheriff Ed Prieto to stronger considerations for withdrawing from agreements with regards to turning minor criminals over to ICE for deportation proceedings.
In the meantime, Davis residents have the right to wonder if they are really as safe in their homes from the government as they thought.
—David M. Greenwald reporting
Maybe this just a prelude effort by the Council, but looking at local officials for answers and relief is not going to be productive or informative. A strongly worded letter from the City Council to our elected federal representatives is the necessary course of action.
I have not read the Enterprise piece, but did have a chance to chat with the son of Linda Clark, who owns the house that was forcefully entered by ICE Swat members. As I understand it they were serving a warrant (which was never presented until the search was well under way) in search of a computer, alleged to hold some pornography, which was owned by a tenant who had not resided in this house for approximately a year. I am told that, in the process of serving their warrant they dragged a pregnant professor from her bed. Three days later the woman miscarried.
As my country turns into a police state, I am more and more reminded of why the Second Amendment to the U.S. Constitution guarantees citizens right to bear arms.
NOTE TO LAW ENFORCEMENT: Should you ever have reason to serve a warrant at my house I suggest you knock politely at my door and wait for me to open it. ANY BODY BREAKING DOWN MY FRONT DOOR WILL BE SHOT ON SIGHT. Thank you in advance for respecting my right to live peaceably in my own house. Roger Bockrath
As I mentioned in my comments on the Enterprise website, I think this story, if true, is an outrage. It was an abuse of power. I think the judge who authorized this warrant needs to be held accountable, perhaps fired or fined, if he failed to ask the proper questions. The same punishment needs to be doled out to the ICE commander in charge.
I don’t see this case so much as one of “my country turning into a police state” (as that happened years ago when we decided to fight our assinine ‘drug war’*); I think this story, like the Guerena case in Phoenix, is a perfect example of human/governmental incompetence. It demonstrates to me that ICE (and likely the FBI and the T-Men) cannot do their job without f#ck-ups. Situation Normal, All F#cked Up, as they say in the Army. A snafu.
It’s good evidence of why the paranoid 911-truthers ([url]http://www.davisenterprise.com/opinion/letters/reveal-the-real-truth-about-911/[/url]) (Davis seems to have a contingent of them) are full of nonsense. The police in our country can’t pull off a simple raid without a major screw up. How in hell could our government competently and furtively plant hundreds of explosives in a half dozen buildings and then coax 19 jihadis to hijack airplanes and fly them into those skyscrapers with not one of the hundreds of conspirators in this nefarious plot from peeping a single word about it?
The fact is that governments are never all that competent. That is why you want to constitutionally limit their powers, to restrict them to doing only what is truly necessary and doing that in the most open way possible.
*The drug war, of course, is simply a replay of the assinine alcohol war of the 1920s, which itself created a police state.
From law collective.org:
“Search warrants allow law enforcement agents to search a particular place (or vehicle or person) and seize items that might have evidentiary value. To obtain a search warrant, an officer must show a judge that there’s probable cause that a crime has been or is being committed. The officer’s “affidavit,” or statement of probable cause, is usually submitted to the court in writing, but sometimes an officer gives her affidavit orally, usually when calling from a crime scene to request a warrant. (For an example of probable cause, see Arrest)
The general rule is that the police are required to “knock and announce” when serving a search warrant, as in: [knock, knock] “Ma’am, this is the police. We have a search warrant for these premises.” If you then refuse to let the officers in, they have the right to force the door open.
The police are allowed to skip the knock and announce part when they reasonably believe that officers would be endangered or evidence destroyed, should the occupants have any warning.1 Even when they do knock and announce, they may only wait a few seconds before bursting in.
If police knock on your door and state that they have a search warrant, step outside and close the door behind you, then ask them to give you the warrant so you can read it. (If you stand inside with the door open, the police may just push past you before you can react.) Make sure you actually get your hands on the warrant so you can read it properly. Don’t let the officer just wave it in front of you.
You’re looking for three things, to be sure it’s a valid warrant:
• the address
• the date
• the judge’s signature”
From what I can tell, the only unlawful action by ICE based on the information above, was possibly the battery to the occupant’s head – assuming the occupant was not resisting – which we have no way of knowing. As for the miscarriage, fear alone from a lawful search could have caused it, or not. There is no real definitive way of knowing what caused the miscarriage.
Harsh as it sounds, based on my reading of the law, the only possible wrongdoing on the part of ICE here would have been the assault on the occupant if he was not resisting. And I believe the occupant is free to sue the federal gov’t for assault under color of authority…
Clarification: From http://www.lawcollective.org...
ERM, the link works only if you delete the … at the end. http://www.lawcollective.org. I agree with Rifkin–this level of force for a hard drive? I suspect the officers decided they wanted to be Navy Seals. The Robocop mentality exists even in our fair city. How long ago was it that a teenage girl was forced into the back of a police car in her nightwear because of a parking lot incident? Other than complain about it when it happens, what can we do?
One of the lesser know things is that judges don’t review warrants are carefully as you would like. Judge Fall often tells the story about getting calls at 4 am to sign a warrant. He’s probably someone who would read every detail, but my guess is most judges do not especially at that time.
I think the question is whether the police use excessive force when executing the warrant, from the description, it would seem yes.
There are also questions about executing that kind of warrant when the individual had not even resided on the residence for a lengthy period of time.
Imagine if someone who did not speak English and not understanding US laws, reacting the wrong way and getting shot and killed. Seems there needs to be some more protection here from mistaken identity and wrong homes.
ERM: Has there ever been a police action you have been critical of?
ERM
A question. Are there no rules about proportionality of behavior in these searches?. It seems to me that if what is being sought are guns or bomb making materials, this kind of approach might be reasonable. But looking for a hard drive with pornography……. Really, is this warranted in your view?
And as an aside since this is my area of expertise, you are completely correct that there is no way of knowing about the cause of the miscarriage so “causing death” is not a reasonable conclusion. Although my bet is that these events will be forever linked in the mind of the woman and her family who will most likely always be distrustful of law enforcement. A real and preventable pity.
[quote]ERM: Has there ever been a police action you have been critical of?[/quote]
I am very critical of what happened – notice the words “Harsh as it sounds…”. The point is ICE was pretty much following the law. If you don’t like the law, you have to change it. And yes, I have been critical of law enforcement actions in other cases, e.g. Gutierrez shooting and Galvin brothers assault. I also believe what was done in the Buzayan (correct spelling?) case was completely unwarranted (pardon the pun)…
[quote]A question. Are there no rules about proportionality of behavior in these searches?. It seems to me that if what is being sought are guns or bomb making materials, this kind of approach might be reasonable. But looking for a hard drive with pornography……. Really, is this warranted in your view? [/quote]
There doesn’t seem to be any “proportionality” component of the search and seizure “knock and announce” law. There probably should be, but there isn’t. What that means is that it is completely up to the discretion of law enforcement how they carry out the search warrant. The excuse for the “violent break-in” I’m sure was that if they didn’t make such sudden entry, someone inside the house might have destroyed evidence before law enforcement could seize it. The other thing is that I doubt the warrant has any specifics in it as to exactly how law enforcement is going to carry the warrant out when the judge signs it.
[i]”The point is ICE was pretty much following the law.”[/i]
Except they weren’t. This search warrant violated one of the primary standards that all valid search warrants require:
[b]Use of Current Information ([url]http://www.utcourts.gov/courts/just/onlinelearning/Warrants/requirements.htm[/url])
An affidavit must present timely information. The facts must indicate “present probable cause.” [/b]
The court which authorized this search warrant clearly did not know that the person and computer which ICE wanted to arrest and seize had not lived in that house for 7 months or more. If the police had no present information that this person and this computer were in that house or recently had been in that house, the warrant was illegal. The burden of proof that the person and computer were likely still there is on the police and the courts. It seems likely that ICE did nothing to confirm that the person they wanted still lived in that house a year after the supposed crime took place.
[i]”Search warrants require probable cause, oath or affirmation, and a particular description of the place and object of the search to meet constitutional requirements. A judge may issue a search warrant only after reviewing a sworn statement of facts showing probable cause to search a particular place for particular items. The standard for probable cause is objective, meaning that there is sufficient information to persuade a reasonable person that a certain place contains evidence of a crime.”[/i]
[quote]The court which authorized this search warrant clearly did not know that the person and computer which ICE wanted to arrest and seize had not lived in that house for 7 months or more. If the police had no present information that this person and this computer were in that house or recently had been in that house, the warrant was illegal. [/quote]
Nice observation, which indicates to me the judge was not doing due diligence here. It was up to the judge, AFAIK, to make a determination if there was probable cause. I suppose law enforcement could have misled the judge, in which case that is on them (law enforcement). I’m assuming if the agents in this case are sued by the resident who was assaulted, the facts of the case and who knew what will come out…
Just as an aside, this sort of search can result in horrendous tragedies. I remember a case (cannot remember the state) in which a SWAT team broke into the wrong house, and killed the resident, who reached for a gun when he thought burglars were breaking in. I understand the reasons behind allowing SWAT teams this sort of power, but are the downsides worth it? I think society has to do some real soul searching here, and perhaps tweak the laws on the books…
EMR
I would agree with you about the advisability of both soul searching and “tweaking in this regard.
A very modest proposal might be to have some sort of tiered approach such as,1) no physical force or threats in a case where no weapons or hazardous materials ( explosives, firearms, biological weapons ) are suspected and in which there is no resistance 2) non lethal force in cases
Where there may be some suspicion but no significant or only passive resistance is made 3) Force with potential for serious injury or death should be reserved for self defense or to protect innocent bystanders only.
I simply do not believe that finding alleged pornography should ever have so strong a priority as to place someone’s life or health at risk even if there is concern that the evidence might be destroyed.
What say you?