OFF THE WIRE
On July 24 the Virginia State Police conducted an unconstitutional
and over-militarized search and seizure of the Wicked Few Charity
Brotherhood in Virginia. According to NBC News, “families watched
armored vehicles move into position Friday evening, investigators from
Virginia State Police executed a search warrant inside a motorcycle
clubhouse, leaving residents with few clues as to the goal or intent of
the sweeping search.” (NBC News, July 24, 2015) After
two hours and no arrests, the VSP seized club property and then pointed
AR-15’s directly at an unarmed member as he requested to see the
warrant. The request was denied.
THE VIRGINIA STATE POLICE’S RESPONSE WAS IRREFUTABLY OVER-MILITARIZED
The VSP operation was more reminiscent of a military operation than a
domestic police action. Armored vehicles, AR-15’s, drug dogs, and after
searching for more than two hours troopers made no arrests. Consider
the following description from the primary witness on the scene.
“I felt like I was in Iraq and an IED has just been found,” said Jeremiah Dabney in an interview Friday. “We watched them in and out of our house. They brought drug dogs out. They searched the property, kicked the doors in.”
But after floorboards were pulled off, and safes cracked open, Dabney said he approached troopers to ask what was happening.
“They all pointed AR-15s at me,” Dabney said. “I’m
in shorts and nothing else. I pulled my shirt off and dropped my pants
to show him that I had no weapons. I said, ‘I want to see my search
warrant.’” (NBC News, July 24, 2015)
Troopers refused to show the sealed warrant, and left the
neighborhood. “According to members of the social club, investigators
took three biker vests, a large banner displaying the organization’s
name, and a photo album.” (NBC News, July 24, 2015)
The level of militarization displayed by the VSP is unjustified and
completely inappropriate considering the known circumstances. The Wicked
Few Charity Brotherhood, as the name makes clear, is a charitable
social organization. The Wicked Few are a new club that has only been
around for two years. According to previous interviews, the club is
completely dedicated to charity and community involvement. It’s a
requirement of membership. Other than inaccurate stereotype, there is
absolutely no apparent circumstances justifying a militarized response.
The over-militarization of American law enforcement is an obvious
reality with potentially devastating consequences. Militarized police
eliminate any chance of community policing by installing fear and
mistrust in average citizens. As the relationship between law
enforcement and the community breaks down there is a much higher
probability of unjustified use of deadly force and civil liberty
violations on a massive scale. This breakdown also erodes the safety net
that has irrefutably led to mass demonstrations and even violent
rioting.
The response should be commensurate to the threat. And what we know
about this incident reveals no justifiable threat. And refusing to
reveal the sealed search warrant is a mechanism that law enforcement is
increasingly using to circumvent the constitutional requirement to
demonstrate probable cause required in legal search and seizures.
REFUSING TO REVEAL A SEALED WARRANT AFTER THE SEARCH IS COMPLETE IS UNCONSTITUTIONAL AND VIOLATES ESTABLISHED CRIMINAL PROCEDURE
The government’s most recent strategy involves motions to seal search
warrant affidavits. Despite the fact that there is no statutory
authority and precedent concluding the unconstitutional nature of sealed
search warrants, prosecutors have often persuaded judges to continue
the secrecy of search warrant affidavits long after the warrants have
been executed based on the argument that unsealing would compromise an
ongoing investigation.
Although initially sealing a search warrant may arguably preserve
investigatory integrity, the moment that property is seized the search
warrant must be unsealed. David F. Axelrod, a former an Assistant U.S.
Attorney for the Southern District of Florida and Trial Attorney for the
U.S. Department of Justice says, “Until the application has been
unsealed, it is impossible to identify any but the most obvious defects
in the warrant or its execution. In particular, it is impossible to
determine whether there was probable cause to search and, if so, for
what.” (see Litigating Sealed Search Warrants: Recent Cases Limit Indefinite Seal in Pre-Indictment Investigations)
The Virginia State Police acted unconstitutionally the
moment that they seized the Wicked Few’s property and refused to show
the warrant. Sealed search warrants become particularly problematic
after property is seized. Federal Criminal Procedure “clearly
establishes the right of a person aggrieved by the execution of a search
warrant to challenge the propriety of the seizure of his property. The
subject of the warrant suffers the deprivation of property and has more
than just an academic interest in knowing the basis for the warrant.
Without the affidavit, it is impossible to assess the legitimacy of the
warrant, and, therefore, the deprivation of property.”
Unless the search warrant application is open to review, counsel and
the property owner cannot evaluate whether the affidavit is based on
false or erroneous information. There is zero basis for the Wicked Few
to challenge the taking of their property.
The denial of access to a warrant affidavit precludes a property
owner from the most effective forms of challenging the warrant,
depriving the property owner of procedural and substantive due process.
“[M]inimum due process requirements are violated when a government
agency permits its officers to carry out a seizure . . . without
providing the owners any meaningful opportunity to challenge the seizure
at the earliest possible time.”
Recent case precedent confirms that sealed search warrants were not
intended by Congress. In the Southern District of Ohio (889 F. Supp. 296
(S.D. Ohio 1995) the court was clear that asserting an “ongoing
criminal investigation,” is not enough to justify continued sealing.
Criminal procedure “nowhere provides for the secrecy of warrant
applications. This stands in sharp contrast to Fed. R. Crim. P. 6(e),
which explicitly provides for the automatic secrecy of grand jury
materials. The failure to include such a secrecy provision in Rule 41 is
a plain indication that Congress did not intend for search warrant
applications to be kept secret.”
CONCLUSIONS
The epidemic of over-militarized and discriminatory law enforcement
actions targeting motorcycle clubs are perfectly demonstrated by the
actions of the VSP. The Wicked Few, a charitable organization, are
victims of an over zealous and constitutionally unconscious search and
seizure, conducted by armored vehicles, at the end of AR-15’s. The
pattern of evidence justifying legislative protection against law
enforcement profiling is self-evident.
Every American should be highly concerned. The Virginia State Police
must be held accountable. Every instance of over-militarized, abusive,
and unconstitutional search and seizures erodes the concept of Due
Process and risks large scale violence, unjustified deadly force, and a
general breakdown of peaceful civil society.
David Devereaux is the Spokesperson for the Washington State
Confederation of Clubs and US Defenders, The Motorcycle Profiling
Project, The Council of Clubs, and also works with the Confederation of
Clubs and US Defenders at the national level. Contact: doubled@motorcycleprofilingproject.com, motorcycleprofilingproject.com)
