Heads Up

A Weekly View from the Foothills of Appalachia

January 4, 1998
Issue #66

by: Doug Fiedor

Previous Editions at: http://mmc.cns.net/headsup.html


In the March 28 issue, Heads Up reported the story of Rodney Fletcher of Auburn, Washington. Fletcher was arrested in 1993 and charged with stealing computer equipment from a school in Seattle. The problem was, he didn't do it. The charges were quickly dropped, but not before he spent a night in the King County jail.

To get the warrant against Fletcher, Lynne Kalina, the county deputy prosecutor, filed documents that said Fletcher never had been associated with the school and did not have permission to enter it. She also said that someone identified Fletcher as the man who tried to sell computer equipment taken from the school. Both of these statements were false.

Fletcher later sued Kalina, alleging that she had made statements she should have known to be false when seeking a court warrant for his arrest. Kalina tried to have Fletcher's lawsuit thrown out based on her claim of absolute immunity. A federal trial judge, and later the 9th U.S. Circuit Court of Appeals, refused to do that.

Generally, Court rulings have given prosecutors absolute immunity when they act, even dishonestly, in initiating and prosecuting a criminal case. But, as we see, prosecutors do not have absolute immunity when they perform administrative or investigative work.

We all know that some prosecutors lie a lot. But it's not often that we get to hear attorneys from the Department of Justice admit it -- and openly try to defend it in court. That's pretty much exactly what happened, though. Lawyers told the United States Supreme Court that prosecutors who lie when seeking arrest warrants should always be shielded from being sued by innocent people who are jailed as a result.

Apparently, the Department of Justice thinks it's their right to lie, cheat and imprison innocent Americans. The Supreme Court, however, felt somewhat differently.

Kalina's lawyer said that the act should be protected because, while investigating, she was also simultaneously deciding to begin the process of prosecuting Fletcher. "The sensitive decision to initiate a criminal prosecution is what is protected," he contended.

Justice Department lawyer Patricia Millett also agreed, arguing that Kalina "was performing a hybrid function" that should qualify for absolute immunity because part of it was prosecutorial.

However, several Justices did not seem to accept that argument. For instance, Justices O'Connor and Souter, persistently interrupted Maleng, noting that a police officer carrying out the same procedure would not be entitled to absolute immunity. "It all boils down to how you analyze the function," Justice Sandra Day O'Connor said.

Justice Ruth Bader Ginsburg asked Maleng, "How can the same act be prosecutorial if done by one person but investigatory if done by another?"

Fletcher's lawyer stuck to his guns, arguing that his client deserves his day in court to prove his case against Kalina. "Our fundamental complaint is false arrest," he told the Court. "Our claim is Lynne Kalina manufactured false evidence against Rodney Fletcher."

As we reported after the oral arguments in October, "This will be a good case to watch. Look for the Court to finally open the door for citizens to take action against prosecutorial misbehavior."

And so they did. Two weeks ago, the Supreme Court voted 9-0 in favor of Rodney Fletcher. And, you can't get any better than that, folks.

Justice John Paul Stevens wrote the unanimous opinion for the court. He said that County prosecutors' practice of personally giving "sworn testimony establishing the grounds for issuing the warrant'' is not always protected. Justice Stevens wrote that the practice is not prevalent in other parts of the country, and that when police officers make that type of statement, they do not have absolute immunity from being sued. "Testifying about facts is the function of a witness, not of the lawyer," Stevens wrote. (Kalina vs. Fletcher, 96-792)

An interesting consequence of this opinion may be that a number of Justice Department prosecutors -- from Janet Reno on down -- will now be open for lawsuit based on many of their actions and public comments.


Recently, there were reports that the Federal Communications Commission pulled an early morning raid on a couple of those pesky little micro-powered radio stations becoming so popular around the country. It's not surprising that they wanted to shut the low power, unlicensed radio stations down. They've been at that task for quite some time. The problem was the way they went about it.

The two reports we received indicated that FCC, usually an unarmed agency of the federal government, sent SWAT teams to people's homes. And, in at least one instance, they even used a helicopter.

FCC has been keeping tabs on every type of radio station for years. Usually, they would park a monitoring truck somewhere near the offending transmitter, listen in for a while, and then pay a visit. When the FCC paid a visit, the station operator would usually be ticketed. If the offense was really bad, the operator might even have to go to court later. Or, if the station committed whatever offence again, FCC would come in and take the transmitting equipment.

No guns were ever needed.

But now, they use SWAT teams and helicopters. Now they pull military style sneak attacks on a private homes filled with people who committed nothing more serious than talk.

It's the same with businesses. A few years ago, a violation of an EPA or Army Corps of Engineers regulation would require a visit by a guy with a clipboard. Today, they send a military-style fire-fight team bursting in.

Yet, it's usually the same level of offense in both cases. Today, it's just a "slightly" different way of handling it by government regulators. The guy with a clipboard of a decade ago is quickly being replaced by a squad of ninja-clad warriors sporting automatic weapons.

Besides the obvious idiocy of government regulators playing army attack team, there is also a very real Constitutional problem with all this.

It begins with two common law rules that this country inherited from England. The first, which is no longer respected, was that a gentleman may be armed, but never in such a manner that could frighten the women and children nearby. Many of us should consider that rule. . . .

The second applicable common law rule is a true part of our Constitution, and supported by the "controlling legal authority" of the United States Supreme Court in "Wilson v. Arkansas" (94-5707). The rule is that, unless a threat of violence is real, an officer presenting a search warrant must knock on the door, present his authority for being there and wait to be let in.

"Knock and announce," it's called. One would think that this would preclude the current practice of armed squads of men bursting in unannounced on a group of peaceful citizens and waving automatic weapons around. And, in truth, it most certainly does!

Justice Thomas writes for the unanimous Supreme Court: "'Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable,' (New Jersey v. T. L. O.), our effort to give content to this term may be guided by the meaning ascribed to it by the Framers of the Amendment. An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering."

The Court explains that a police officer may break in the door if no one opens up: "But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors . . . , for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it." . . .

"Given the longstanding common law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer's entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure."

In other words, officers must walk up to the door, knock, state their reason for being there, show their authority (the warrant), and wait to be let in. The citizen must, however, let them in within a reasonable length of time or the officers may enter forcibly.

But wait, there's still more. . . .

The "Wilson" opinion demands that a peaceful citizen be informed of the search warrant 'before' it is executed. We believe this opens up a whole host of violations by the federal government. For instance, what if the FBI gets a warrant to check someone's credit, medical, bank or employment records? Or, how about if they obtain a warrant to monitor someone's computer activity and/or tap their telephone? Would these be any less a violation of the Fourth Amendment if that person were not notified before the warrant was executed? Probably not.

For all of the above reasons, we recommend that everyone study the "Wilson" opinion and provide copies of it to your local police departments.


The environmental wackos are asking for another round of new regulations again. And, of course, the regulations are to protect our kids. This time it's the Natural Resources Defense Council, and their report on environmental threats facing U.S. children. This stuff is really getting old, folks. But it's our job to warn you of what's coming at us next year.

Let's do this a little differently, though -- like, start right out poking holes in their story:

They start out with that old saw about lead: "Some 900,000 children in the United States aged 1 to 5 carry lead levels in their bloodstreams higher than levels of concern set by the Centers for Disease Control and Prevention."

Lead, they say, causes slow learners. And it's true. Lead can cause a decrease in mental ability. However, it takes quite a lot of lead to produce a measurable difference in intelligence.

So, we got rid of the lead in gasoline. We got rid of the lead in paint. We got rid of the lead in water pipes. And, what was the benefit? Anyone see kids learning more in school now than they did in the 1950's when we had all that ambient lead poisoning our minds? I don't. In fact, many of today's college kids cannot pass the test eighth grade kids had to pass in order to get into high school back in the 1950's. What caused that? Most of the lead is gone.

So as not to leave anything out, they then toss in air quality: "In 1995, some 18 million children younger than 10 lived in areas that have failed to meet federal air quality standards."

Again, this gets very interesting when you know the actual facts. Today's American kids are larger and healthier than at any time in our history. How in the world did that happen with all that bad air and lead messing up their bodies?

Then they start on us bad parents: "An estimated 47 percent of households store at least one pesticide within reach of small children. And a 1993 report from the National Academy of Sciences finds that government limits for pesticide residues may need tightening to account for the special risks to children." And, "Forty-three percent of children younger than 11 live in households where at least one smoker exposes them to second-hand tobacco."

It seems rather amazing that those of us over 40 years of age ever grew up, what with all the smokers, DDT, dioxin, Allar, and the dozens of weed and bug killers used around the house when we were kids. Today, Americans can actually be put in prison for simple possession of the mosquito repellent we splashed all over ourselves every summer.

Then, of course, there's the water: "In 1994 and 1995, 45 million people in the United States, including adults and children, drank from water systems that flunked federal standards."

That could be. A couple million people have cisterns and wells, rather than "piped in city water." On the other hand, many of these people live out in the country, get a lot of exercise, and consequently are healthier than many of their urban relatives. When we point to an example of bad water, we usually point to our nation's capitol. The government supplied water piped to homes in Washington, D.C. is dirty and totally unsafe to drink.

Anyway, it seems that the National Resources Defense Council has a room full of lawyers and nothing better to do. So, they are calling for "federal guidelines," (read regulations) to determine what levels of exposure are unsafe for children. And, of course, they want money for a series of scientific studies to address the long-term health consequences of dozens of common products on children.

Control and money. Money and control. That's what they want. It never seems to end.


By: Lloyd K. Rogers (used with permission)

Can anyone remember the real America?

When you left your front door open. When riots were unthinkable. When socialism was a dirty word. When the flag was a sacred symbol. When criminals went to jail. When you knew the law would be enforced and you would be protected. When the law meant justice, and you felt safe when you saw a policeman. When you weren't afraid to go out at night.

When taxes were only a necessary nuisance.

When a boy was a boy, and dressed like one. When a girl was a girl, and dressed like one. When gay meant to be happy. When children were disciplined without government intervention. When mothers stayed home to attend to their children, and most children had a father living at home.

When children learned in school and were able to read their diploma. When it was OK to mention God in school or see the Ten Commandments hanging on public building's walls. When children carried frogs to school, not guns.

When the poor were too proud to take charity. When clerks and repairmen tried to please you. When college kids swallowed goldfish, not acid. When lawyers were held in high esteem. When songs had a tune, and words that made sense.

When young men tried to join the Army and Navy. When people knew what the Fourth of July stood for. When you never dreamed our country would lose. When people respected the office of President of the United States. When politicians proclaimed their patriotism and meant it.

When a Sunday drive was a pleasure trip, not an ordeal. When you bragged about your hometown or state. When everyone didn't feel like the government owed them a living or a college education.

When people expected less and valued what they had more. When everyone knew the difference between right and wrong. When things weren't perfect -- but you never expected them to be. When you weren't made to feel guilty for enjoying dialect comedy. When our government stood up for Americans, anywhere in the world. When you considered yourself blessed to have a good job, and proud to have it. When freedom of speech did not mean hate talk. When the role models were parents or great Americans, not self-centered druggies of the sports world.

When America was a land filled with the free, proud, brave, confident. hardworking people!

Lloyd Rogers is retired Campbell County, KY Judge-Executive and a free lance writer. The above piece was originally published with the title, "America the proud has lost her way."

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