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"Don't Let My Daughter Die, Governor!"

Radley Balko   |   September 7, 2013   12:06 PM ET

Powerful video. Gov. Christie's position on medical marijuana is inexcusable. There's just no reason for it. He's thwarting the will It's just leftover culture war crap. And people continue to suffer because of it. I'd love to hear Gov. Christie explain how politicians preventing a doctor from prescribing a drug that could not only make the lives of thousands of people more livable, but in some cases could extend lives, is consistent with a limited government political philosophy.


The Massive Racial Disparities In Arrests For Pot Possession

Radley Balko   |   September 6, 2013    2:54 PM ET

I'm a little late to this, but last week I received a copy of the ACLU report The War on Marijuana in Black and White, which was released in June. As the title suggests, it's an in-depth look at race and marijuana arrests in America, broken down nationally, then by state, and then by county. A few interesting items from the national data:

-- Marijuana arrests have been falling since 2006, but that's after a steep climb since 2001. So there are still significantly more annual arrests now that there were in the early 2000s.

-- 88 percent of marijuana arrests are for possession, and nearly half of all drug arrests are for pot possession.

-- The four states with the highest number of pot possession arrests per capita: New York, Nebraska, Maryland, and Illinois.

-- In New York and Texas in 2010, 97 percent of pot arrests were for possession (as opposed to distribution).

-- The five counties with the highest pot possession arrests per capita: Worcester, Maryland; Kleberg, Texas; Cole, Missouri; Bronx, New York; and Baltimore City, Maryland.

The uptick in arrest rates over the first half of the 2000s did not result in any significant reduction in the rate of use.

From the data on racial disparities . . .

-- Blacks are 3.73 times more likely to be arrest for pot possession than whites. The regions with the largest disparity: the Northeast and Midwest. The region with the smallest: the West.

-- The states with the highest racial disparity in per capita pot possession arrests: Iowa (blacks are 8.34 times more likely to be arrested), Minnesota (8.05), Illinois (7.81), Wisconsin (7.56), and Kentucky (5.95).

-- The black arrest rate for pot possession is below 300 per 100,000 residents in only two states, Hawaii and Massachusetts. The white arrest rate for pot possession is above 300 per 100,000 residents in only three states: Wyoming, Nebraska, and Alaska. The black arrest rate was below 500 in only 10 states. The white arrest rate was over 400 in zero states.

-- The black/white arrest rate disparity for pot possession has only grown over the last 10 years. The disparity has grown most in Alaska, Minnesota, Wisconsin, Michigan, Kentucky, Tennessee, and Ohio.

A common rejoinder to the racial disparities in arrest rates or incarceration rates is that, proportionately, black people commit more crimes than white white people. But that argument doesn't explain away these figures. These, again, are for pot possession. Meaning, these people were arrested with enough pot for personal use, but not enough to charge them with distribution. In other words, most of these people were arrested for using. And as the ACLU report points out, numerous studies have shown that blacks and whites use marijuana at about the same rate. In fact, in 2010, 34 percent of whites reported having used marijuana in the previous year, versus just 27 percent of blacks.

Looking beyond the racial data, there are some other interesting bits in the report. Montana, for example, legalized medical marijuana by ballot initiative in 2004. The measure passed with over 60 percent of the vote. State and federal authorities, however, set out to thwart the voters with aggressive crackdowns on pot users. So over the last 10 years, the number of pot possession arrests per capita over the last decade in Montana has jumped by 145 percent, more than any other state in the country.

But Montana's statewide figure pales in comparison to counties in America with the largest increase. Hancock County, West Virginia, for example, saw its rate of pot possession arrests jump a whopping 2,319 percent between 2001 and 2011. Other counties leading the way in stepping up enforcement over the last decade include the D.C. suburb of Fairfax County, Virginia (976 percent); Cole County, Missouri (669 percent); and Vanderburgh County, Indiana (583 percent).

Finally, as many states continue to face pension shortfalls and budget crunches, the report looks at the fiscal drain of pot possession arrests. The ACLU estimates that nationally, the cost of arresting people just for possessing marijuana run somewhere between $1-6 billion per year. The states that spend the most money per capita arresting pot users: New York, Maryland, Illinois, Wyoming, Nevada, Delaware, New Jersey, Connecticut, and Arizona. New York, incidentally, spends almost twice as much as any other state.

An Update In The Story Of Ann Colomb

Radley Balko   |   September 4, 2013    1:26 PM ET

Back in 2008, I wrote a long piece for Reason magazine about the Colombs, a black, working class family in Church Point, Louisiana. The Colombs' story goes back 15 years, and is pretty complex, but here are the highlights:

-- The family says they had been routinely harassed for years by local law enforcement. This harassment seemed to begin when the light-skinned Colomb boys began dating white girls, including the daughter of a local deputy. The harassment included the boys and their white girlfriends regularly getting pulled over, and on several occasions arrested on charges that never stuck (except on one occasion).

-- Church Point is largely segregated (in fact, if not in law), or at least it was when I wrote the story.

-- At some point in the mid-2000s, the law enforcement run-ins with the Colomb boys turned into a federal drug investigation. The only actual drugs ever found that could be traced to the family were 72 grams of crack found during a SWAT raid. That crack was claimed by the boyfriend of Colomb's husband's daughter. He said it was his, and that the Colombs had no knowledge of it.

-- Nevertheless, Assistant U.S. Attorney Grett Grayson pushed a federal drug conspiracy case against Ann Colomb and her sons. He was eventually able to line up more than 30 jailhouse snitches who were prepared to testify against the family -- all in exchange for time off of their own sentences.

-- The government's case was absurd. If you were to add up all the crack the state's witnesses claimed to have sold the family, the working class Colombs, who lived in a modest, one-story house with a backyard full of chickens, were buying $500,000 worth of cocaine per month for much of the 1990s. This, while the Colomb boys were attending high school.

-- The jury convicted. The family was looking at decades in prison. Ann Colomb had a diabetic attack, and nearly died in jail.

-- After the trial, it was revealed that someone had left a prosecutor's file about the Colomb case in a local federal prison. Inmates had gotten hold of the file, and were selling one another information about the case. They would then write letters to the U.S. Attorney's office offering to testify that they had sold drugs to the family.

-- Federal Judge Tucker Melancon was so outraged he dismissed the charges against the family, and ordered an investigation. The results of that investigation have not been made public. Melancon also granted me an interview about the case, almost unheard of for a federal judge.

-- Grayson went on to use some of the same informants in other cases, as have other federal prosecutors in Louisiana.

For the full details, read the entire article.

The update: I was recently informed by criminal justice reform activist Alan Bean, who has been an advocate for the family, that Ann Colomb has settled her lawsuit against local and federal government officials for $20,000. It's a paltry sum that won't even begin to cover the family's legal bills. (The case quickly destroyed their life savings. The family was eventually represented by a mix of court-appointed and pro-bono attorneys.)

But frankly, it was probably about as much as they could hope for. Given the absolute prosecutorial immunity afforded to Grayson, and the sovereign and qualified immunity enjoyed by the sheriff's department and its deputies, Colomb likely would never have gotten her case to a jury. She had a hard enough time just finding an attorney to take the case.

We've all read about the DNA exonerations that dramatically clear an inmate who has spent decades in prison for murder or rape. Even those cases don't always result in the sort of compensation you'd think someone in that position would deserve. What happened to the Colombs is far less sexy, but it's how such wrongful and excessive prosecutions are more typically resolved. There is no moment of redemption. The family will never be officially "exonerated." (The settlement came with an insistence from government officials that they had done nothing wrong.) There will be no DNA test to establish the innocence of Ann Colomb and her sons. And because of that, they'll never recoup most of what they spent on their defense, much less collect for mental anguish,lost wages, damage to their reputations, and their wrongful incarceration.

The public officials who pursued them will face no discipline. And there will be no changes to the policies that allowed it all to happen.

New Study Finds That State Crime Labs Are Paid Per Conviction

Radley Balko   |   August 29, 2013   12:13 PM ET

I've previously written about the cognitive bias problem in state crime labs. This is the bias that can creep into the work of crime lab analysts when they report to, say, a state police agency, or the state attorney general. If they're considered part of the state's "team" -- if performance reviews and job assessments are done by police or prosecutors -- even the most honest and conscientious of analysts are at risk of cognitive bias. Hence, the countless and continuing crime lab scandals we've seen over the last couple decades. And this of course doesn't even touch on the more blatant examples of outright corruption.

In a new paper for the journal Criminal Justice Ethics, Roger Koppl and Meghan Sacks look at how the criminal justice system actually incentivizes wrongful convictions. In their section on state crime labs, they discover some astonishing new information about how many of these labs are funded.

Funding crime labs through court-assessed fees creates another channel for bias to enter crime lab analyses. In jurisdictions with this practice the crime lab receives a sum of money for each conviction of a given type. Ray Wickenheiser says, ‘‘Collection of court costs is the only stable source of funding for the Acadiana Crime Lab. $10 is received for each guilty plea or verdict from each speeding ticket, and $50 from each DWI (Driving While Impaired) and drug offense.’’

In Broward County, Florida, ‘‘Monies deposited in the Trust Fund are principally court costs assessed upon conviction of driving or boating under the influence ($50) or selling, manufacturing, delivery, or possession of a controlled substance ($100).’’

Several state statutory schemes require defendants to pay crime laboratory fees upon conviction. North Carolina General Statutes require, ‘‘[f]or the services of’’ the state or local crime lab, that judges in criminal cases assess a $600 fee to be charged ‘‘upon conviction’’ and remitted to the law enforcement agency containing the lab whenever that lab ‘‘performed DNA analysis of the crime, tests of bodily fluids of the defendant for the presence of alcohol or controlled substances, or analysis of any controlled substance possessed by the defendant or the defendant’s agent.’’

Illinois crime labs receive fees upon convictions for sex offenses, controlled substance offenses, and those involving driving under the influence. Mississippi crime labs require crime laboratory fees for various conviction types, including arson, aiding suicide, and driving while intoxicated.

Similar provisions exist in Alabama, New Mexico, Kentucky, New Jersey, Virginia, and, until recently, Michigan. Other states have broadened the scope even further. Washington statutes require a $100 crime lab fee for any conviction that involves lab analysis. Kansas statutes require offenders ‘‘to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services or forensic computer examination services are provided in connection with the investigation.’’
In addition to those already listed, the following states also require crime lab fees in connection with various conviction types: Arizona, California, Missouri, Tennessee, and Wisconsin.

Think about how these fee structures play out in the day-to-day work in these labs. Every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They're literally being paid to provide the analysis to win convictions. Their findings are then presented to juries as the careful, meticulous work of an objective scientist.

No wonder there have been so many scandals. I'm sure we'll continue to see more.

(Disclosure: In 2008, Koppl and I co-wrote an article for Slate on how to fix some of these problems.)

Email From A Former Cop

Radley Balko   |   August 27, 2013   10:10 AM ET

Here's another email from a retired police officer in response to my book, and an accompanying article I wrote here at HuffPost:

Although I haven't read your book yet, I'll be downloading it to my Kindle soon, your article on HuffPo really hit me.

I'm a retired police lieutenant, first woman police officer in my community, also a Army Veteran. I knew I was book smart, backed with a 4.1 at the academy, as well as years in college. It was just the unknown if I could survive street duty with male officers who pretty much informed me that I was their enemy. You pretty much hit on everything that ran though my mind when I dealt with officers who had this warrior state of mind, especially when none of them had the military experience I had . . .

. . . I can understand the thin blue line you are hitting with the LEOs and LEAs on your book. I've dealt with it first hand as a woman officer. They made my life hell . . . I've even arrested one of my own for domestic violence, and refused orders from my previous lieutenant, who wanted me to ignore state domestic violence laws. It's tough dealing with this attitude, but when you consider it the right fight, you learn to deal with them and face it head on. Fortunately for me, when my county's sheriff found out that they were purposefully putting my life in danger on bad calls, he ordered his deputies to come and back me up, no matter what.

So there are other good cops who feel the same way, that these are communities of citizens with rights, and should be treated as such. But I did just want to take this time to tell you I am very glad to see a book that addresses this issue, it's long overdue.

This former officer asked that I not included her name. I previously posted some email feedback from former cops here.


HuffPost writer and investigative reporter Radley Balko is also the author of the new book, Rise of the Warrior Cop: The Militarization of America's Police Forces.

SWAT Cop Says American Neighborhoods Are 'Battlefields,' Claims Cops Face Same Threats As Soldiers In Afghanistan

Radley Balko   |   August 18, 2013   12:36 PM ET

One of the central themes of my book is that that too many cops today have been conditioned to see the people they serve not as citizens with rights, but as an enemy. My argument is that this battlefield mindset is the product of a generation of politicians telling police that they're at war with things -- drugs, terrorism, crime, etc. -- and have then equipped them with the uniforms, tactics, weapons, and other accoutrements of war.

Over the last several days, the popular online police magazine PoliceOne site has been rolling out a series of opinion pieces in response to my book. As you might expect, most of them are critical, although a couple have been thoughtful.

One essay by Sgt. Glenn French was particularly disturbing. French serves as commander of a SWAT team in Sterling Heights, Michigan. French doesn't criticize me for arguing that too many police officers have adopted this battlefield mindset. Rather, he embraces the combat mentality, and encourages other cops to do the same. Referring to an article I wrote here at HuffPost, French writes:

“What would it take to dial back such excessive police measures?” the author wrote. “The obvious place to start would be ending the federal grants that encourage police forces to acquire gear that is more appropriate for the battlefield. Beyond that, it is crucial to change the culture of militarization in American law enforcement.”

We trainers have spent the past decade trying to ingrain in our students the concept that the American police officer works a battlefield every day he patrols his sector.

Note the choice of words. Not neighborhood, but "sector." Although I suppose such parsing isn't even necessary when French just comes right out and declares America a battlefield. Note too that French isn't even referring to SWAT teams, here. He's suggesting that all cops be taught to view the streets and neighborhoods they patrol in this way.

French then tosses out some dubious statistics.

The fact is, more American police officers have died fighting crime in the United States over the past 12 years than American soldiers were killed in action at war in Afghanistan. According to ODMP.org, 1,831 cops have been killed in the line of duty since 2001. According to iCasualties.org, the number of our military personnel killed in action in Afghanistan is 1,789.

Cops on the beat are facing the same dangers on the streets as our brave soldiers do in war.

Even accepting French's preposterous premise here, his numbers are wrong. The U.S. has lost 2,264 troops in Afghanistan, about 22 percent more than French claims. Moreover, more than half police officer deaths since 2001 were due to accidents (mostly car accidents), not felonious homicide. Additionally, depending on how you define the term, there are between 600,000 and 800,000 law enforcement officers working in the United States. We have about 65,000 troops in Afghanistan. So comparing overall fatalities is absurd. The rates of cops killed versus soldiers killed aren't even close. And that's not factoring in the soldiers who've come home without limbs. The dangers faced by cops and soldiers in Afghanistan aren't remotely comparable.

As I've pointed out before, the actual homicide rate for cops on the job, while higher than that in the country as a whole, is still lower than the rate in about half of the larger cities in America. If cops on the beat face "the same dangers on the streets as our brave soldiers do in war," so does everyone who lives in Boston, Atlanta, or Dallas.

That is why commanders and tactical trainers stress the fact that even on the most uneventful portion of your tour, you can be subjected to combat at a moment’s notice.

I think French's choice of words in this passage speaks for itself.

What is it with this growing concept that SWAT teams shouldn’t exist? Why shouldn’t officers utilize the same technologies, weapon systems, and tactics that our military comrades do?

We should, and we will.

Again, it's hard to even respond to this. You're either alarmed to hear this kind of language from a domestic police officer, or you aren't. And if you aren't, I don't think there's much I can write to convince you otherwise. I highlight it here only to point out that it is indeed a domestic police officer who wrote this. I've been criticized at times for making the argument that too many cops in America today see their jobs in this way -- that I'm exaggerating when I write or say that some cops see American streets as war zones. Well, here it is.

Black helicopters and mysterious warriors exist. They are America’s answer to the evil men that the anti-SWAT crowd wouldn’t dare face.

The second sentence is undoubtedly true. I'm not opposed to SWAT teams. When used properly -- to defuse an already violent situation, where lives are at risk -- they perform marvelously. I am opposed to using them to raid organic farms in response to nuisance violations, or to storm animal shelters to kill baby deer. Or, more to the point, to serve search warrants on people suspected of consensual drug crimes, the reason for the vast majority of the 100+ SWAT raids conducted each day in America.

One could argue that French is merely one cop, and there's no evidence that his essay, alarming as it may be, is representative of any significant percentage of law enforcement officials. The problem is that his essay appeared on PoliceOne, one of the most popular police destinations on the Internet. It's a part of a series of essays that the editors of that site chose to run in response to my book. If French's perspective isn't representative of a significant portion of law enforcement, it's difficult to see why PoliceOne would have chosen to run it. At the very least, the editors don't appear to have found it objectionable enough to exclude from the series.

It's also worth noting that French trains other police officers. He has also written a book on policing. So his perspective and approach to the job is getting passed on to other officers. Moreover, there's ample anecdotal evidence that plenty of other law enforcement officials share his perspective. Here, for example, is the sheriff of Clayton County, Georgia in 2008:

"The war on drugs in Clayton County, as in most jurisdictions, I liken it to the Vietnam War," Hill said. "Hit and miss, there is no clear win — we don’t know if we’re gaining ground or not. What we want to do is we want to change our strategy. We want to make this more like a Normandy invasion."

Here's a Milwaukee detective and former SWAT officer writing in National Review a few years ago, chastising Berwyn Heights, Maryland Mayor Cheye Calvo for pushing for reform after his home was invaded and his dogs were killed by a SWAT team in a botched, mistaken raid:

Sorry if Calvo and his mother-in-law were “restrained” for “almost two hours.” Would you rather have them be comfortable for those two hours, and risk officers’ lives and safety? Calvo should be able to understand what the officers did and why they did it.

Municipal police departments do fight a war on the streets of this country daily. This incident should not be considered overkill (to take a word from Reason’s Radley Balko), but sound police tactics.

Here's Milwaukee Police Chief Ed Flynn, explaining how he will instruct his officers to ignore the state's gun laws:

“My message to my troops is if you see anybody carrying a gun on the streets of Milwaukee, we’ll put them on the ground, take the gun away and then decide whether you have a right to carry it.”

There are lots of examples like these. The sheriff in Orange County, Florida recently referred to his agency as a "paramilitary organization." New York Mayor Michael Bloomberg recently referred to NYPD as "the seventh largest army in the world.” I've recently written about the disturbing culture of police t-shirts, which dehumanize the citizens they serve and make light of police brutality. ("We get up early, to beat the crowds.")

Incidentally, a few notes about Sterling Heights, Michigan, where Sgt. French works. According to the city's website, in 2010, Sterling Heights was rated the safest city in Michigan with a population of 100,000 or more people. It was also named one of the 100 best cities in America to raise a family. In 2008, it had the lowest crime rate of any city in Michigan. From 2005 to 2010 (the last year data was available) it had all of 10 murders, in a city of about 130,000 people. This is the "battlefield" where Sgt. French works. I'd be curious to know what the residents of Sterling Heights would say upon learning that the commander of their city's SWAT team views each of them more as potential combatants than citizens with rights.

The lead essay for the PoliceOne series on militarization is a review of my book by Lance Eldridge. It's titled: "Police militarization and rise of the warrior journalist: Radley Balko’s new book on police militarization — and subsequent articles by him and others — signals the radicalization of America’s discourse on civilian law enforcement."

PoliceOne published an essay by a SWAT leader and police trainer that urges cops to view American streets and neighborhoods as "battlefields," absurdly claims that working as a cop in America is as dangerous as serving in a war zone in Afghanistan, and says cops should look at the citizens they serve as potential combatants.

Yet it is those of us who find all of this troubling who are the "radicals."


Radley Balko is a senior writer and investigative reporter for The Huffington Post. He is also the author of the new book, Rise of the Warrior Cop: The Militarization of America's Police Forces.


We Need A Whistleblower Prize

Radley Balko   |   August 9, 2013   12:28 PM ET

This Washington Post piece looking at what has happened to several notable government whistleblowers is sobering.

The former high-ranking National Security Agency analyst now sells iPhones. The top intelligence officer at the CIA lives in a motor home outside Yellowstone National Park and spends his days fly-fishing for trout. The FBI translator fled Washington for the West Coast . . .

. . . Peter Van Buren, a veteran Foreign Service officer who blew the whistle on waste and mismanagement of the Iraq reconstruction program, most recently found himself working at a local arts and crafts store and learned a lot about “glitter and the American art of scrapbooking.”

“What happens when you are thrown out of the government and blacklisted is that you lose your security clearance and it’s very difficult to find a grown-up job in Washington.”

High-level whistleblowers know when they come forward that they're sacrificing their national security clearance, likely their jobs, and quite possibly their freedom. Set aside for a moment what you think about the actions of Bradley Manning or Edward Snowden. Imagine you have a top-level security clearance, and you discover in the course of your work evidence of illegal government activity. Even going through the proper internal channels carries risks, and aren't likely to change much, anyway. (Thomas Drake, remember, actually went through the proper internal channels to expose government spying -- he was prosecuted, anyway. He now works at an Apple store.) Would you risk your career, your lifestyle, your family's security, and possibly your freedom to expose it? How serious would it need to be for your to consider going public?

It needn't even be something as dire as national security. I've seen and reported on countless law enforcement officers whose careers were cut short (or worse) when they reported wrongdoing by other cops, or more systemic problems within their police agencies.

It seems to me that we're asking an awful lot of whistleblowers. We're hoping their sense of right and wrong and devotion to public service will compel them to come forward even if that likely means an end to their career in public service -- at best. If we really value whistleblowers, we need to provide them with a bit more incentive. And it needs to come from the private sector. The government certainly isn't going to reward them for exposing government malfeasance, President Obama's campaign promises notwithstanding.

A series of prizes for government employees who risk their livelihoods to shed light on government abuse might be one way to provide an incentive for more whistleblowing. It needn't just be one big prize. Think about a foundation that might give out multiple prizes, at all levels of government. Yes, it would need to be pretty well funded. The idea here would be to give out prizes significant enough to compensate for the losses of income, the foregoing of careers, and potential legal expenses. But it seems to me that there are enough people -- and enough affluent people -- concerned about NSA spying, police abuse, and government waste to make something like this happen. In fact, there needn't even be just one foundation, or one series of prizes. Perhaps conservatives aren't eager to reward someone like Edward Snowden, or have no interest in compensating a cop who exposes racial profiling or spying on protest groups. Fair enough. A conservative-oriented whistleblower prize, then, could reward government employees who expose waste, fraud, and politically-motivated regulation or application of the tax laws. Perhaps the foundations themselves could eventually be staffed and run by whistleblowers -- a way to provide them with continued meaningful employment in public service.

I suppose there may be some legal barriers to compensating whistleblowers like Snowden or Manning, who are facing or have been convicted on criminal charges. Given that politicians like Rep. Peter King are calling for the arrest of the journalists who published the information Snowden exposed, it's not inconceivable to think that some in Congress may argue that such a prize encourages law-breaking, and could work for legislation to make it illegal. Perhaps one of these foundations would need to be based overseas, then. The U.S. government could still complain, and perhaps attempt to block delivery of the prize. But the Nobel Peace Prize, for example, has often honored dissidents in countries who have deemed the laureate's activism illegal.

The point here is that if we want to encourage whistleblowing -- whether it's in select areas of government or all of them -- we need to first understand the obstacles in the way and then, independent of government, come up with countering incentives to override them.

One In 25 Americans Was Arrested In 2011

Radley Balko   |   August 7, 2013   11:56 AM ET

We've heard a lot of talk lately about mass incarceration, the stop-and-frisk policies in New York, reforming the drug laws, and mandatory minimum sentencing. There's also been discussion about over-criminalization -- that we have too many laws, too broadly enforced -- from groups as ideologically diverse as the Heritage Foundation, the ACLU, the Cato Institute, and the National Association of Criminal Defense Lawyers.

But here's a related statistic that's pretty mind blowing in and of itself: According to the FBI, in 2011 there were 3991.1 arrests for every 100,000 people living in America. That means over the course of a single year, one in 25 Americans was arrested.

The FBI also reports that the arrest rate for violent crime was just 172 per 100,000, and for property crimes, it was 531. That means that in 2011, one in 33 Americans were arrested for crimes that didn't involve violence against another person, or theft of or damage to property. More people were arrested for drug crimes than any other class of crimes -- about one in every 207 of us. One in every 258 of us was arrested for drunk driving. The FBI doesn't keep track, but presumably the remaining arrests were for crimes like prostitution, vandalism, public intoxication, disorderly conduct, and other consensual crimes and relatively minor offenses.

One major allegation levied against the NYPD's stop-and-frisk policy is that it comes with quotas encourages false arrests, with new allegations surfacing just last month. (Worse yet, tricks people into committing crimes they wouldn't have otherwise committed.) But it isn't just New York. There have been recent allegations of systematic false arrests among police departments in Florida, Utah, and Newark.

Arrests can be damaging, even if they never result in criminal charges. They generally go on your criminal record, which can be checked each time you apply for a job, housing, or credit. An arrest can also be a barrier to your ability to adopt, obtain some types of professional licenses, and obtain a visa or passport. And of course an arrest also comes with some social stigma.

Suing for damages from a false arrest is extremely difficult. It's tough to even get in front of a jury, much less actually win a favorable verdict. Even then, litigation can take years, assuming you can find an attorney to take your case. Even police who make clearly illegal arrests -- such as arresting people who attempt to record the officers in public -- are rarely held accountable. As with other areas of the criminal justice system, all of the push is in a punitive direction. There are lots of reasons and incentives for cops to make lots of arrests, and very little in the way of consequences for making too many, or for arresting someone without cause.

CLARIFICATION: A few folks have noted that the 1 in 25 figure could be misleading, given that many people are likely to have been arrested more than once. Fair enough. It's an average. The most accurate way to phrase it would be that in 2011, there were approximately four arrests for every 100 residents.

What Breaking Bad Reveals About The War On Drugs

Radley Balko   |   August 6, 2013    9:00 AM ET

Sure, Breaking Bad is fiction. But the real drug war can often be darker, more twisted, more corrupting, and more violent than the show. Still, while the show is in the national spotlight for the next couple months, it's helpful to remind the show's fans of the laws that make all the violence possible.

Here's a fun video from the Drug Policy Alliance and Beyond Bars that does just that.



Meth is often one of those drugs that even critics of the drug war have a hard time conceiving of ever legalizing. But up until 1970, it was perfectly legal. And yet somehow, society hadn't come to a screeching halt. The moment it was prohibited (or more accurately, controlled), smuggling meth immediately became a source of revenue for criminal syndicates, notably motorcycle gangs.

As with most other illicit drugs, prohibition is also to blame for the increased potency and addictiveness of meth today. Remember, nobody drinks bathtub gin anymore.

But maybe we shouldn't be too hard on the drug war. I mean, it made Walter White and Jesse Pinkman rich. And it gave Hank Schrader a nice house and and an upper middle class lifestyle, though it did leave him with a bit of a limp.

Former Cops Speak Out About Police Militarization

Radley Balko   |   August 1, 2013    9:32 AM ET

Since my book on police militarization came out a few weeks ago, it's been interesting to see the reaction from law enforcement officials. As you might expect, much of it has been negative, particularly on police discussion boards around the Internet. But it hasn't all been that way. At a Cato Institute forum on Capitol Hill last month, Mark Lomax of the National Tactical Officers Association said that as he read the book, he was nodding his head in agreement far more than he was shaking his head with disapproval. (Not exactly an endorsement, but I'll take it!)

In the book, I interview lots of older and retired police officers, many of them with SWAT experience. I also cite other police chiefs and sheriffs over the years who have raised concerns about militarization. The divide among police on this issue isn't political. One of the former police chiefs I interviewed -- Norm Stamper of Seattle -- is a progressive. Another -- Joseph McNamara of San Jose and Kansas City -- is a conservative at the Hoover Institution.

Instead, the divide appears to be more generational. Older and retired cops don't seem to like were policing is headed. (This is a generalization and an observation -- I haven't taken any polls.) Younger cops, who are nudging policing in a more militaristic direction, are naturally fine with it. Retired police Lt. Diane Goldstein, for example, wrote about the book and her concerns over militarization here at Huffington Post, as did retired NYPD Det. John Baeza over at Law Enforcement Against Prohibition.

And in a letter to the editor in response to a recent article I wrote on this issue for the Wall Street Journal, Jon W. McBride writes:

Police concerns about being outgunned may be a self-fulfilling prophecy and increasingly leads to local and state bureaucrats engaging in what lifetime appointed government workers do best: mission creep.

If not expressly prohibited, police managers will continually push the arms race. Their professional literature is predominately based on the acquiring and use of newer weapons and more aggressive techniques to physically overwhelm the public. In many cases, however, this is the opposite of smart policing.

Coupled with the paramilitary design of the police bureaucracy itself, the police give in to what is already a serious problem in the ranks: the belief that the increasing use of power against a citizen is always justified no matter the violation. The police don't understand that in many instances they are the cause of the escalation and bear more responsibility during an adverse outcome.

The suspects I encountered as a former police officer and federal agent in nearly all cases granted permission for me to search their property when asked, often despite unconcealed contraband. Now, instead of making a simple request of a violator, many in law enforcement seem to take a more difficult and confrontational path, fearing personal risk. In many circumstances they inflame the citizens they are engaging, thereby needlessly putting themselves in real and increased jeopardy.

An officer and leader of a SWAT team in Hamilton, Ontario also wrote a more critical letter, which you can read at the link.

In a recent interview with the Deseret News, Salt Lake City Police Chief Chris Burbank also expressed concerns about militarization.

Chief Burbank said Americans ought to know that wherever they go in the United States they can expect fair and consistent policing, “and we don’t have that now.”

“We’re not the military,” he said. “Nor should we look like an invading force coming in.”

Burbank said he emphasizes the need for his officers to be involved in the community. The city’s new Public Safety Building, which is scheduled to open next month, tries to symbolize this. It is an architecturally open building in which people may enter the first level without worrying about security.

He said police need to do more than just show up and deal with problems.

They also need to do more than scare the life out of young people or approach relatively minor problems in ways that escalate tensions and lead to the possibility of using deadly force.

In last week's Sunday Times U.K., a former LAPD officer offered similar sentiment.

Older officers are wary of such heavy-handed tactics. “Captains like to attack even the smallest problem, like a domestic dispute, with overwhelming force,” said a retired Los Angeles officer last week. “Swamping makes them feel safer but it also increases the chances of stuff going bad.”


I've also received personal email from cops. This one, for example, came from Charles J. Key, a 26-year veteran of the Baltimore Police Department. Key also wrote that agency's use of force manual.

I founded the Baltimore PD SWAT teams in 1975. I now work as a consultant in police related matters, primarily for defense and primarily in police involved shootings. Although I work primarily for defense, I call them as I see them. I was the police expert in the Plaintiffs' case in Calvo (SWAT shot two Labs) and DOJ's expert in prosecuting cops in N.O. involved in the post Katrina shootings (Danziger Bridge and the Glover shooting). I read your article concerning the militarization of police departments and the overuse of SWAT teams. I completely agree. The trend scares me to death and, in my opinion, leads to incidents such as the shootings in New Orleans. Keep up the good work.

Here's another, from a former police officer who asked me not to publish his name.

I just finished your Wall Street Journal article and him surprised I've never read any of your writings prior to now; probably because I don't read the Huffington Post but gravitate more toward National Review; I do read Reason on ongoing basis though.

I was a cop in Southern California from 1976 to 1990 . . . went from a patrol officer to Capt. and then quit to practice law.

I have watched the "whatever it takes to go home" mindset involved in modern-day policing and am frankly pretty appalled by it. The number of police officers killed in the line of duty 70s was just as high, if not higher, on a per capita basis . . . but somehow now there is this paranoid mindset. Obviously policing can be dangerous; I have had one friend shot, and three others involved in shootings, but number one on the hit parade when I was on the street and supervising street cops was not to shoot unless absolutely necessary, and to be sure that you didn't arrest somebody unless you had a good legal basis, and were pretty sure it was the right person. Don't even get me started on no knock warrants and drug enforcement.

I worked with a lot of guys who were combat veterans from the Vietnam era, and they certainly didn't have anything to prove to anybody. They were probably less likely to get involved in violent confrontations than the types of cops I see nowadays, most of whom do not have a military background, and some who are acting out, at least to some degree, video game fantasies about being a bad ass. I always thought that "Adam 12" would have been the best training video for cops to watch, rather than some of the officer survival stuff.

Don't want to sound like an old guy opining about the good old days, but I remember when most cops had revolvers and didn't discharge hundreds of bullets in a shooting situation, or light up a pickup truck with two Hispanic ladies delivering newspapers in a mindless panic. Obviously technology in firearms is much better now, but the unfortunate downside is the 16 or 18 9 mm rounds that can be cranked out of a Glock or a Beretta in just a few seconds, and the disappearance of fire discipline that was ground into us in the police Academy.

American policing really needs to return to a more traditional role of cops keeping the peace; getting out of police cars, talking to people, and not being prone to overreaction with the use of firearms, tasers, or pepper spray. Also (said the old crank) those damn polo shirts and blue jean alternate "uniforms" have got to go too. Don't get me wrong, I've been in more than my share tussles and certainly appreciate the dangers of police work, but as Joseph Wambaugh famously said, the real danger is psychological, not physical.

Prior to the book, I've received similar emails over the years from older cops. Here's a typical example, from a former officer in Riverside, California, in response to an article I wrote on the issue a few years ago:

I read and thoroughly agree with your article on SWAT . . . I was in law enforcement for thirty years . . . I was forced out of the department after being branded a traitor to the department . . . I made several speeches and op-ed letters where I called for less military hardware and a more human approach to police work at the line level . . .

I'm glad to see your article and I can attest to the accuracy of your concerns over the developing militarization of our police. When I led the transition team acquiring property from the downsizing of the former March Air Force Base in Riverside, I was contantly beseized with requests for surplus military property from helmets and M-16's to armored personnel carriers. I started out my career with a six-shot revolver, no handi-talkie and I carried a roll of dimes in my briefcase so I could call the station or dispatch. One of the first things my field training officer did to me was make me get out of the car and walk up and down both sides of a residential street and meet and talk with the residents and then walk back to him and recap the conversations. He told me I would do more talking than fighting and I would get farther with my mind than my fists. He didn't have a college degree, but he was definitely smarter than [police officials today] . . .

I am tired of beating my head with my former associates who dismiss all criticisms with phrases such as "come work a beat before you say anything". I teach sixth graders where I know I am making a difference and a change for the better. I was trained at the Los Angeles Sheriff's Academy, I retired as a sheriff's lieutenant and held a CA POST Management Certificate. I developed the project that turned 386 acres of March AFB land into the Ben Clark Public Safety Training Center. If I can ever assist you in your work on police matters, please do not hestitate to call.

Here's another:

My father was a cop for 35 years and a police chief for 20 of that. He was the president of the International Association of Chiefs of Police. I am also a former police officer. We both discussed many times the problems with police departments becoming paramilitary forces. He was chief in a military town and had many former military on his department. He fought constantly to keep them from becoming too military like.

One of the problems we both saw in the early 90's were departments leaving the formal police uniforms with leather belts and holsters in favor of the dark blue fatigues with nylon mesh belts and holsters. This put police in a more fighting posture . . .

I worked as an officer where a college kid was recently killed [in a raid]. In the early 90's police [in my area] were heading toward the more aggressive styles of uniforms and tactics.

Thanks for the article. I do not think most people realize the value of good cops and the danger of bad ones.

Here's another, from a retired officer who also asked that I not use his name:

I was a law enforcement officer for well over a decade. I've trained police officer on a local, state and even internationally. I must state that I find your stories of the upmost importance if we as a country are retain any semblance of a free society. I'm very appalled by what I'm witnessing--a rapid (not gradual) descent into a totalitarian police state. Keep doing your best to bring this issue to the forefront of our consciousness.

One interesting thing about this generational divide is that the older cops -- the ones who seem to be more wary and concerned about militarization -- served during a period when the violent crime rate was a lot higher and the job was a lot more dangerous than it is today. With some of these guys, you get the sense that they're genuinely offended by what they're seeing. They relied on wits, talk, and emphasized deescalation and accepted the risks associated with the job. They resent that this generation of cops is prone to resort to use more force more quickly, even as the job is as safe as it's been in decades.

If You Have Nothing To Hide, Don't Have A Stroke In The State Of Florida

Radley Balko   |   July 15, 2013    3:50 PM ET

A truly awful incident in Florida:

Allen Daniel Hicks Sr., 51, was found stopped in his car on the side of Interstate 275 by a sheriff's deputy and a Florida Highway Patrol trooper the morning of May 11, 2012. Passers-by had called 911 after they saw Hicks' Chevy Cavalier swerving west into a guardrail, records of the incident show.

Speaking incoherently and unable to move his left arm, Hicks was arrested on a charge of obstructing a law enforcement officer when he did not respond to commands to exit his car. Just after noon, he was booked into the Orient Road Jail.

Hicks did not receive a medical screening, but was put in a cell where he lay facedown on the floor or tried to crawl using the one working side of his body. On the night of May 12, soaked in his own urine, his brain choked of blood, he was at last taken to Tampa General Hospital and diagnosed with an ischemic stroke. He slipped into a coma and died within three months.

Hicks' family just received a $1 million settlement from the Hillsborough County Sheriff's Office and the private company that provides medical service for the jail's inmates. The case touches on a couple of ongoing problems in law enforcement, including neglect, abuse, and inadequate medical treatment in local jails, and poor training for police in recognizing and accomodating medical conditions like stroke and diabetic shock.

HuffPost investigative reporter Radley Balko is author of the new book Rise of the Warrior Cop: The Militarization of America's Police Forces.

The Zimmerman Verdict and Reasonable Doubt

Radley Balko   |   July 14, 2013    5:51 PM ET

Abe Pafford was one of the attorneys who represented Cory Maye. He posted the passage below on his Facebook page, and I think it's worth re-posting here.

I posted this as a comment, but given that a lot of people are thinking about the Zimmerman case I thought I would post it on my status as well. This was in the context of a suggestion that the Zimmerman verdict shows that jurors take the idea of "reasonable doubt" too seriously, and there should be a national conversation to ensure that jurors do not go overboard in applying the standard in a manner that benefits defendants.

I did not follow the trial as closely, so I do not necessarily have a strong opinion on the result in the Zimmerman case. But being in the trenches on criminal defense and appellate matters on a regular basis, I believe the least of the problems in our criminal justice system is jurors taking the idea of "reasonable doubt" too seriously. Approximately 90% of criminal trials result in a guilty verdict, at least at the federal level, and I believe the conviction rate is similar in most states.

Most jurors start with an overwhelming presumption that the police always tell the truth, and (contrary to jury instructions) most jurors do hold it against the defendant (at least subconsciously) if the defendant does not testify. On top of this, in most criminal cases there is a vast resource disparity in favor of the prosecution, both in terms of the respective skills of the particular attorneys as well as the access to experts, forensic resources, etc. Most judges are former prosecutors, and it is darn near impossible for a prominent member of the defense bar to ascend to the state or federal bench.

All of these factors, and probably more, contribute to the fact that we have the highest per capita incarceration rate in the world. Every couple of years seems to bring a new wave of exonerations of people who were wrongfully convicted, often in trials where an honest review of the evidence will reveal that the reasonable doubt standard, properly applied, would have resulted in a not guilty verdict.

I can understand being upset with the Zimmerman verdict, and I agree that Zimmerman seems like the type who went looking for trouble (although I do not think that fact necessarily means the verdict was wrong). And I do feel terribly for Trayvon's family. But if you want an accurate sense of the manner in which our criminal justice devalues the lives of young black men, take a look at the population of our prisons, the unrelenting severity of our sentencing practices, and the disgraceful failure of our recent Presidents and most governors to mitigate these impacts through use of the clemency power. Whatever legacy Trayvon may have, I cannot imagine he would want it to be the further weakening of a legal standard that is one of the only protections young black men have when facing prosecution and imprisonment on a scale unheard of in virtually any other country in the world.

Questions For Virginia's Alcoholic Beverage Control Board

Radley Balko   |   July 5, 2013   12:45 PM ET

Elizabeth Daly's terrifying ordeal has gone viral. In April, the 20-year-old college student and her friends were jumped by a team of undercover agents from the Virginia Department of Alcoholic Beverage Control. The girls were jumped in the parking lot of a grocery store because the agents mistook a case of bottled water they'd purchased for alcohol. One agent pulled a gun as another jumped on the hood of Daly's car.

Incredibly, Daly was arrested, jailed and charged with assaulting a police officer because in fear, she attempted to flee her attackers, and apparently grazed one of them with her car. Daly spent a night in jail and, incredibly, didn't have the charges against her dropped until last week. Now we have the 911 audio from one of Daly's friends who was in the car at the time. You can hear the panic and fear in the women's voices. And all in response to actions taken by the government employees who are supposed to protect them.

Now that the story has percolated in the public for several days, there are a lot of lingering questions. Here are a few of them:

-- Is it standard procedure for ABC agents to jump out on college students in the parking lots of stores that sell alcohol? (According to the local paper the Daily Progress, several other students were apprehended the same way.) Is it standard procedure for them to draw their weapons?

-- Even if that is standard procedure (and if it is, that's outrageous), how did these particular agents know that Elizabeth Daly was underage? Since she wasn't purchasing alcohol, she wouldn't have been carded in the store. Did an agent check her license plate, and somehow cross-check that with her date of birth? If not, it means that not only did these agents dressed in street clothes jump and pull a gun on a group of college women in a parking lot after dark for the petty crime of purchasing alcohol before the age of 21, and not only were they wrong about the fact that that crime had been committed, they jumped these women before they even knew for certain that they were underage.

-- If Daly hadn't realized the men who just confronted her were cops, and if she'd attempted to drive away, would the agents have fired their guns at her? If they had, would the ABC have considered them justified in doing so?

-- Why are ABC agents armed in the first place?

This is only the latest incident in the creeping use of more police force to enforce increasingly petty crimes. In fact, just a couple weeks ago, a dozen government officials -- some of them armed police officers -- raided the Family Wash bar in Nashville in what police claim was an inspection to be sure the business was complying with the state's alcohol regulations. Owner Jamie Rubin told the Tennessean, "They may want to call it a ‘spot check.’ But you can talk to anybody that was in there – employees, patrons – it was a raid. That’s what it was.”

A few years ago, I wrote about a 50-man police raid of a Manassas Park, Virginia, pool hall on lady's night. Here's what it looked like:



The raid was clearly a drug search, but the police didn't have enough evidence to get a search warrant. Instead, they brought along inspectors from that same Virginia Alcoholic Beverage Control board, which they claim made the raid not a criminal search, but a regulatory inspection. Owner David Ruttenberg's subsequently filed a lawsuit alleging that sending a 50-member police team -- some in ski masks carrying shotguns -- was an unreasonable amount of force to bring for an alcohol inspection. The 5th Circuit Court of Appeals disagreed. They dismissed his lawsuit.

In 2010, police in New Haven, Connecticut sent a SWAT team to raid a bar that investigators suspected wasn't being vigilant enough about underage drinking. And it isn't just alcohol. I've also written about other examples of using this sort of force for other regulatory inspections, such as occupational licensing.

The other issue here, though, is that Daly was initially charged with assaulting a police officer. I wonder, would that charge still have been dropped if Daly had just illegally purchased alcohol? And when cops in street clothes jump out on citizens with their guns waving, how are we to know that they're actually cops? Are we really supposed to wait to see if the men running at us with guns might be law enforcement before we attempt to flee? Daly's attorney pointed out that she had just attended a symposium about sexual assault on campus. Is the Virginia ABC telling college women in Virginia that if one or more armed men run at them in a parking lot after dark, they should stay put in their cars, just in case the men might be law enforcement officers enforcing the state's underage drinking law?

It's an extraordinarily absurd use of force in and of itself. But it also isn't difficult to see how these sorts of tactics could lead to tragic outcomes. A good example is the story of Jonathan Ayers.

Ayers was a Georgia pastor who made the mistake of counseling and ministering to troubled women who also happened to be under investigation for drug offenses. In 2009, an undercover team of cops who had the woman under surveillance saw Ayers pick her up and give her some money. Ayers was actually giving her the cash out of his wallet to help pay her rent, so she wouldn't be evicted. But suspecting they now had a more upscale suspect, the police followed Ayers as he left the motel where the woman was staying. They followed him to a convenience store, where withdrew some cash from an ATM.

When Ayers returned to his car, a black SUV screeched into the parking lot, and a team of narcotics cops toting guns and dressed in street clothes ran at his car. Ayers threw the car into reverse and attempted to escape. The police opened fire, killing Ayers. According to a nurse at the hospital where he died, Ayers' last words were that he thought he was about to be robbed.

A subsequent investigation of the incident by the Georgia Bureau of Investigation -- which the local DA claimed went to "very extraordinary lengths" -- cleared the cops of any wrongdoing. The report concluded that Ayers was mostly to blame, and that he should have known by the badges hanging from their necks that the men running at his car were cops. Here, by the way, is what one of the agents was wearing that day:

copshirt




There's one other lesson from the Ayers story. The Virginia ABC board apparently already reviewed a complaint from Daly and determined that its officers had done nothing wrong. That means that either this sort of action is either standard procedure, or at the very least doesn't violate any Virginia ABC rules or guidelines for alcohol enforcement. They've now agreed to look at the incident again, in light of media scrutiny. That second review is ongoing.

With Ayers, recall that the Georgia Bureau of Investigation review found no wrongdoing on the part of the cops who killed the young pastor. But an investigator hired by Ayers' widow later discovered that the police officer who shot the pastor wasn't even legally authorized to arrest him. He hadn't completed the necessary training. Here's the kicker: The officer had also yet to receive any training on the use of lethal force. For some reason, the investigation that went to "very extraordinary lengths" to look at the case impartially had failed to turn any of that up.

The state of Virginia needs to take a long, hard look at the tactics used by its alcohol enforcement officers. If the Virginia ABC board again determines that its agents did nothing wrong, then the state's politicians need to step up and reform the Virginia ABC Board. If something doesn't happen, it's probably only a matter of time before the state produces a Jonathan Ayers of its own.

Radley Balko is author of the new book Rise of the Warrior Cop: The Militarization of America's Police Forces.

James Otis, Jr., General Warrants, And NSA Spying

Radley Balko   |   July 4, 2013   12:49 PM ET

Today is a day when we Americans reflect on the people and principles that led to our founding. I'd like to write a bit about one of my favorite founding fathers, an 18th-century Boston lawyer named James Otis, Jr. Because he did most of his important work well before the American Revolution, Otis is often overlooked. But no less than John Adams credited Otis' activism with laying the philosophical foundation for American independence. Moreover, the specific abuses by the British crown that most outraged Otis are particularly relevant given the recent revelations about warrantless NSA spying and data collection.

Starting in the early 1760s, the British courts that had been established in the colonies began issuing a general warrant called a writ of assistance. General warrants authorize broad search powers. For example, a general warrant might give authorities permission to conduct searches to enforce an entire class of crimes rather than authorizing them to search a specific person or residence for evidence of a specific criminal act.

Writs of assistance were a type of general warrant issued specifically to inspect for smuggled goods.The writs gave customs officials the power to enter private homes and business to search for smuggled or untaxed goods. These warrants were first authorized by the British Parliament in 1660, but they were rarely utilized in Britain. And they weren't really issued in the colonies either until a century later, when England instituted a new round of taxes and import restrictions. Writs of assistance not only gave British customs agents the power to search for illegal imports, but as the name suggests, it allowed them to command other government officials -- and even private citizens -- to assist them. A writ also gave its holder the power to search any building or residence and confiscate any suspected contraband. He could also transfer the writ to another party. Compared to modern search warrants, writs of assistance were essentially permanent -- they remained in effect until six months after the death of the King in power when they were issued.

The colonist despised the writs, particularly in port cities, and particularly in Boston, a hub of revolutionary fervor. The Massachusetts legislature banned general warrants in 1756, but of course Massachusetts law was superceded by English law. And so English continued issuing and enforcing the warrants.

Aggrieved Bostonians eventually found a champion in Otis, a rising, blustery Boston attorney who had just resigned as Advocate General of the Admiralty Court. Significantly, that court had jurisdiction over ships containing import goods. Otis had resigned over his objection to the writs of assistance. When Otis then began advocating against the writs and offering free legal representation of Bostonians who challenged them, both Boston and the British took notice.

In 1761, Otis agreed to represent a group of prominent Boston merchants in a lawsuit aimed to publicize and generate opposition to the writs. Known as Paxton's Case, Otis used the platform of the court proceedings to deliver an impassioned, wide-ranging, five-hour polemic against the practice of general warrants. In one passage, he called writs of assistance “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book.” Otis also invoked natural rights, the Magna Carta, and the Castle Doctrine. But pay special attention to his objections to the broadness and lack of specificity with general warrants:

I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is . . .

Your Honors will find in the old books concerning the office of a justice of the peace precedents of general warrants to search suspected houses. But in more modern books you will find only special warrants to search such and such houses, specially named, in which the complainant has before sworn that he suspects his goods are concealed; and will find it adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer . . .

Otis lost in court, as he expected he would. But his speech likely changed the course of history. Sitting in the courtroom gallery that afternoon was a 25-year-old attorney named John Adams. He would of course go on to become America's second president. Later in his life, Adam's recalled the enormous and lasting impact Otis' speech had on him. He praised Otis' grasp of history, his fiery defense of the rights of man, and pointed out that, quite ahead of his time, Otis even declared that black men had the same natural rights as white men, including the right to own property. Adams credited Otis and his diatribe against British abuses as the first knocks of the American Revolution. “Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistants,” Adams wrote. “Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born.”

The next major fight over writs of assistance came in 1766, when British customs comptroller Benjamin Hallowell, deputy collector William Sheaffe, and Suffolk County deputy sheriff Benjamin Cudsworth attempted to serve a writ at the Boston home of Captain James Malcolm, a former ship captain who had retired to run a small mercantile out of his home.

The search was based on a tip from a confidential informant that Malcom possessed wine and spirits in violation of the Stamp Act. Malcolm permitted the search, but refused to allow Hallowell to search a locked cellar, which he said belonged to his business partner, William MacKay. When summoned for the key, MacKay objected, protesting that these were “very extraordinary proceedings to search private dwelling houses.” More men showed up from British customs, and MacKay and Malcolm grew agitated. As the discussion heated into a quarrel, Malcolm finally proclaimed that the customs officials had no legal authority to open the cellars, and if any one of the men tried, he'd “blow his brains out.” Malcolm then donned a sword and two pistols and repeated the threat. After a couple more hours of confrontation, the officials left. They came back in the afternoon, this time armed with a more specific warrant for the cellar. But by the time they returned, Malcolm had locked up his entire home, and refused to grant them entry. And now a crowd sympathetic to Malcolm had gathered around his home.

Malcolm then defended himself with specific recitations of British common law. Some historians havesuggested that the standoff was orchestrated, and that Malcolm and other merchants were working with Otis to mount another legal challenge to the writs. This seems likely, given that Otis was Malcolm's personal attorney.

The standoff continued, and the crowd swelled. Once night fell, the customs officials and Cudsworth left, since the warrants couldn't be served after dark. Malcolm had won, at least for the moment. He celebrated by sharing his wine with the crowd.

The standoff at Malcolm's home was portrayed in London as a riot, and the crowd that had gathered there as a mob. But it also won some favor with British officials. The English attorney general denied Hallowell's appeal, argued by Otis, and ruled that colonial courts did not have the authority to issue writs of assistance. But Malcolm's stand also further increased tensions between the Crown and the colonies, and in part paved the way for more hated laws, including the Townshend Acts of 1767, which in addition to expanding the Crown's power to tax the colonies, also reaffirmed the legality of writs of assistance.

An interesting little side note: By some accounts, the informant against Malcolm was Ebenezer Richardson, notorious around Boston as a prolific snitch for British customs. In February of 1770, a crowd protesting the Townshend acts turned its anger on Richardson, by then well known for giving up his fellow Bostonians, and began throwing stones at his house. Richardson responded by firing his musket into the crowd, killing 11-year-old Christopher Seider. The child Seidel's funeral was attended by 2,000 Bostonians, including Patrick Henry and John Adams. Samuel Adams covered the costs of the funeral for Seider's family. Seidel's death stoked tensions to a flame, culminating in the Boston Massacre two months later. After the war, some early American writers dubbed Seider the first martyr of the American Revolution.

A slow mental deterioration that began in the mid-1760s, eventually ended James Otis, Jr.'s fight against the writs of assistance. His “lunacy,” as it was diagnosed at the time, may have been accelerated by a 1769 coffeehouse brawl with a British customs official which ended with the official striking Otis' head with a cane. Otis was killed by a bolt of lightning in 1783.

Writs of assistance and the customs bureaus that carried them out would be among the specific complaints the signers of the Declaration of Independence laid out against King George III: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

The Virginia Declaration of Rights, written mostly by George Mason in 1776, also included a specific prohibition against general warrants, calling them “grievous and oppressive.” Massachusetts followed in 1780 with a ban in its own declaration of rights, written by John Adams. Anger from the colonists' experience with the writs continued to linger for more than a decade, well after the American Revolution, until in 1791 the Fourth Amendment was added to the U.S. Constitution as part of the Bill of Rights. The amendment prohibits general warrants (at the federal level, later applied to the state through the Fourteenth Amendment) by requiring that warrants not be issued without reason and probable cause, that they be sworn with an oath and affirmation, and that they include particular information about the place to be searched, and the person and items to be seized.

A number of commenters and privacy advocates have argued in recent weeks that the power the NSA has claimed to vacuum up enormous swaths of information from millions of unnamed citizens for an unspecified list of crimes is merely a more modern incarnation of the general warrant, including the Electronic Frontier Foundation, Digital Fourth, and the ACLU.

The ACLU in fact notes the strikingly similar circumstances faced by Otis and Edward Snowden. Otis, remember, gave up a prestigious, high-paying job with the British government in order to expose and argue against what he felt were egregious abuses committed by that government. As did Edward Snowden. From Kade Crockford at the ACLU of Massachusetts:

Why did James Otis throw away his career as the top lawyer in the colony, risking his future and his family’s stability?

“The only principles of public conduct that are worthy of a gentleman or a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country,” he told the court.

That sounds eerily familiar to what Edward Snowden said yesterday. When asked what he would tell people like him, “in a position to leak classified information that could improve public understanding of the intelligence apparatus of the USA and its effect on civil liberties,” Snowden simply replied:

“This country is worth dying for.”

Mark Twain once wrote, "patriotism is supporting your country all the time, and your government when it deserves it." Independence Day isn't for celebrating the American government and whoever happens to be currently running it, but for celebrating the principles that make America unique. And in fact, celebrating the principles that animating the American founding often means celebrating the figures who have defended those principles in spite of the government. Today, the American government is hunting down Edward Snowden. My guess is that a generation or two from now, we'll think of him more as a James Otis than a Benedict Arnold.

Note: Portions of this post were taken from my forthcoming book from my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces, available in stores July 8th.