Patterico's Pontifications

11/22/2006

Is the Search Warrant in the Atlanta Shooting Case “Public Record”?

Filed under: Law — Patterico @ 10:34 pm

In the Atlanta case where the 92-year-old was killed after shooting at police serving a warrant, the Atlanta Journal-Constitution says of the warrant in the case:

The basis for the search warrant was not known because State Court Administrator Stefani Searcy refused to release a copy of the warrant Wednesday. State law considers all such documents public record but Searcy cited “office policy” as her reason for withholding the warrant.

(Emphasis added.)

Radley Balko quotes the above passage and says:

I find this rather disconcerting. A woman is dead. Three cops were shot. There are serious questions about how and why the warrant was issued. And despite the fact that the warrant is already public information, we still don’t get to see it? Exactly whom do the police, the DA, and the courts serve?

(Emphasis in original.)

I’m not as certain as Balko and the Atlanta newspaper that search warrants are public record in Georgia. I’m certainly no expert on the issue, and I’m open to correction if I’m wrong. But I believe I have located the relevant Georgia statute, and it may well exempt such documents from disclosure:

50-18-72.
(a) Public disclosure shall not be required for records that are:

. . . .

(3) Except as otherwise provided by law, records compiled for law enforcement or prosecution purposes to the extent that production of such records would disclose the identity of a confidential source, disclose confidential investigative or prosecution material which would endanger the life or physical safety of any person or persons, or disclose the existence of a confidential surveillance or investigation;

(4) Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving said investigation and prosecution has become final or otherwise terminated;

Search warrants are obviously not “initial police arrest reports” or “initial incident reports.” They are, however, records of law enforcement agencies in pending investigations. They appear to be exempt on that basis alone.

Furthermore, search warrants often contain information from confidential informants — information that, if publicly released, could result in the informant’s being hurt or killed.

For these reasons, here in California, not every search warrant is public record. Not only that, portions of the affidavit, and occasionally the entire affidavit, are sometimes not only withheld from the public — they’re even withheld from the defense. And for good reason.

Say a confidential informant gives an officer information about drug sales from a house. Based on that information, an undercover officer buys illegal narcotics from someone in the house. Based on that buy, officers obtain a search warrant and find piles of drugs in the house.

If the prosecution is not going to rely on the testimony of the confidential informant to make its case, and the informant can’t offer any information that might aid the defense, then there is no point in releasing the informant’s name. All that would do is endanger the informant’s life, for no discernible reason. So California law requires that the defense make a strict showing to obtain such information, and disclosure rarely happens.

Is this public information? Not here.

I suspect it’s the same in Georgia. And the statute quoted above appears to indicate that I’m right.

Does the search warrant affidavit in the Atlanta case contain any information from a confidential informant? I don’t know, and I’m wagering that Balko and the Atlanta Journal-Constitution don’t either. But I’d be willing to bet that it does. If a cop made an undercover buy at the house, as reports suggest, they had to have a reason for doing that. It could be that they simply observed suspected narcotics sales through surveillance. But in my experience, search warrants based on mere surveillance are rare. It’s much more common that information will come from an informant, who has told police that the location is a good house to buy dope from.

So I’m not sure the Atlanta Journal-Constitution and Radley Balko are correct to claim that the search warrant in this case is public record. If any reader has expertise in this area, please share it.

Libertarians Jump the Gun in Story of Shooting in Atlanta

Filed under: Crime,General — Patterico @ 5:22 pm

I don’t know much about the incident in Atlanta today in which a 92-year-old woman shot three police officers executing a search warrant, and was shot and killed by police.

It looks like nobody knows much about it, but that doesn’t appear to stop the libertarians from concluding that the police did something wrong, even before they know all the facts. Instapundit’s post is a prime example. Making the mistake of relying on Radley Balko for his facts, he initially says that the woman died “in what appears to be another wrong-house no-knock raid” — yet later in the post he is quoting Radley Balko saying:

Police claim there was an undercover buy at the residence. The seller was apparently a man — obviously not Ms. Johnston.

“Suspected narcotics” were seized from the home, and have been sent to a crime lab for analysis. The assistant chief wouldn’t say how much of the suspected narcotics they found.

Maybe it wasn’t the wrong house after all! Yet Instapundit gives credence to the idea that there couldn’t have been dope dealers in the house if there was a ramp for wheelchairs out front.

Does that make sense to you?

For the last time: let’s wait until the facts come in, and save our criticism until that time.

Deal?

P.S. The fact (if true) that an earlier undercover buy was made from a man, not the old woman, doesn’t make the house the “wrong house,” as Balko and Instapundit imply. It just means that, at the time the search warrant was served, the old lady was at a house where other people had been dealing drugs. That doesn’t undercut the warrant’s validity, or show that it was served in an improper fashion.

UPDATE: I added the phrase “Making the mistake of relying on Radley Balko for his facts” to the post. I clicked Insty’s original link to see why he had leapt to the conclusion that the police had served the warrant on the wrong house, and saw that he was relying on Balko for the facts. Bad idea.

UPDATE x2: CNN says:

The officers had gone to the old woman’s house with a search warrant after buying drugs there from a man known only as Sam, police said.

. . . .

Investigators also said they found drugs in the home after Johnston was killed.

The Atlanta Journal-Constitution has a similar account.

Does anyone have actual evidence that the police did anything wrong, other than the patently ludicrous theory that a bullet from the gun of a 92-year-old is somehow less lethal than one fired from the gun of a younger person??

UPDATE x3: Balko, relying on a newspaper report, is now claiming that search warrants are public information in Georgia. Maybe they are, but it doesn’t look that way to me. I discuss the issue here.

UPDATE x4: Note that the second-guessing geniuses are coming out of the woodwork, and Insty is enabling at least one of them, by quoting this idiot statement:

For a 92 year old lady to hit 3 fast-moving with a handgun in a surprise no-knock probably means that the detectives were less than 10 feet from her. If this is the case, then I would think that the relative positioning of everyone and time/distance would have let at least one detective overwhelm her.

When someone is shooting at you (and doing a good job of it), you don’t “overwhelm” them. You shoot back.

Surely Glenn Reynolds realizes this. Having quoted this ridiculous point of view, why doesn’t he soundly refute it?

UPDATE x5: Balko has a lengthy screed that distorts my position in several respects. I note the numerous inaccuracies of his post here.

UPDATE x6: If you have been living under a rock, you might have missed the fact that the cops lied their way into the house. I reported that fact immediately, even before Radley Balko did, in this post. But his acolytes are pointing out that I never updated this post. I issue corrections even when the people who point them out are jerks — like Steve Verdon, one of the Internet’s most rabid and dishonest libertarians. Hence this update.

Meet Captain Ed (and Patterico)

Filed under: General — Patterico @ 5:10 pm

Ed Morrissey is in town and is inviting his readers to come meet him for lunch this Friday, at the El Torito in Fullerton.

I’ll be there.

Details here.

Black Firefighter’s Racial Bias Settlement Scuttled: Tennie Pierce Will Not Get $2.7 Million for a Mouthful of Dog Food

Filed under: General,Race — Patterico @ 6:24 am

The Dog Food Guy may not be getting $2.7 million after all.

It seemed like a slam-dunk when the Los Angeles City Council made a near-unanimous decision to pay black firefighter Tennie Pierce $2.7 million to settle a racial harassment lawsuit that claimed he had been tricked into eating dog food by station mates, then taunted for months.

But the mayor vetoed the settlement — and with good reason.

Firefighters, angry that their department was being maligned, began calling in to the radio program, and several sent along old photos of Pierce — shirtless and beaming — participating in crude firehouse pranks that involved half-naked men, shaving cream and what appeared to be mustard.

I love that phrase: “what appeared be mustard.” I’m going to remember that.

Amazingly, the City Attorney’s Office appears to have known about the photos:

The office said the council was told about the photos of Pierce. Council members, in turn, said there was a brief mention of the photos — in a closed-session discussion of the case in June — but added that they had not seen them and were not fully aware of their content.

Not only that, there is apparently a non-racial reason that Pierce was given dog food:

Councilman Dennis Zine, a reserve Los Angeles police officer, was the lone council member to oppose the settlement, contending that the price tag was too high for what he believed to be a prank.

Pierce “has been a firefighter for 20 years, and now all of a sudden he wants to throw in the race card,” Zine said. “They didn’t feed him dog food because he was African American. It was because he called himself the ‘Big Dog.’ “

I was discussing this case the other day with someone in a police agency that shall go unnamed. The guy I was talking to, who is black, said that he couldn’t understand why someone would sue over this kind of thing, as hazing incidents are so common in law enforcement circles. He told me about a story involving someone being given dog food. In that case, the consumer of the dog food was white.

This firefighter Tennie Pierce wants $2.7 million for a single mouthful of dog food? I’ll eat a whole can for half that. True story: when I was a younger man, a friend of mine offered to pay me $20 for the amusement of watching me eat 20 kibbles of cat food. I did it. Granted, I’d had a few drinks at the time, as had my friend who made the offer. But the principle stands: $2.7 million is quite high for a mouthful of Alpo. Plenty of people would eat much more, for much less money.

It looks like there’s a good chance this guy won’t get to retire in luxury due to having been the victim of a minor prank. Common sense just may prevail for once in our lives.

UPDATE: By the way, it took talk radio’s John & Ken Show to expose Pierce’s own history of engaging in pranks. The initial L.A. Times story about the settlement cataloged, over the course of several paragraphs, the long history of racism at the Fire Department. It was packed with quotes from people sympathetic to Pierce and his claim of racial discrimination. Apparently, our fine local newspaper didn’t have too much motivation to dig deeper into the story, the way John & Ken did, and unearth photos like this.

UPDATE x2: Commenter Mike K. says:

Larry Elder did a show on this, as well, and had several firefighters call in. This guy was a bully and had a favorite taunt when bullying. It was “You’ve got to feed the Big Dog!” So they did.

All of a sudden, the prank makes perfect sense.


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