University of California, Irvine law School Dean Erwin Chemerinsky joined me today to discuss this case which my law partner former federal judge Stephen Larson is bringing on behalf of the victims. Given my obvious conflict-of-interest, I asked Dean Chemerinsky to comment given his long history of expertise in police abuse investigations. I’m about as pro-police as anyone on the air, but this kind of stuff shocks the conscience:
HH: Playing Ventura Highway for a reason. Over the weekend, I was in Iowa. I came back, and I was talking to my law partner, former federal judge Stephen Larson, and he told me a story which I could not believe. I couldn’t believe it, and then he is representing parties in the case, so he can’t be on to talk about it. That’s a conflict. But I thought of my pal, Erwin Chemerinsky, who is the dean of the UCI Law School, and who has been on more commissions than I have. He was on the Rampart Commission for the LAPD, he’s been, Erwin, welcome, how many commissions have you been on in your years of this stuff?
EC: I’ve probably been on a lot of commissions over the years, and it’s always been an incredible opportunity for me to learn and try to do some public service.
HH: Well, this one is very upsetting to me. The District Attorney’s offices are developing their own investigatory staffs, and I’ll let you take it over from there. What happened in Ventura County?
EC: Well, there was a fire at a place called Santa Clara Waste Water Company, and the official of that company made comments that perhaps it was because of improper training within the fire department that three firefighters got hurt. And once the person said this, apparently there was an immediate response saying that they were going to get this person, that…and they sure did. Once this man was overheard making the comments, two dozen personnel with the DA’s office and a SWAT team, including eight in full tactical gear with guns and riot shields drawn, executed a search warrant. Now this wasn’t a case where there was any suspicion of drugs. It wasn’t a case where there was any suspicion of terrorist activity. 20 police and DA vehicles descended on his house at 6AM. 30 personnel were involved in the raid of the home. His wife and his six year old daughter were hauled out of the house in their pajamas. And the six year old was literally taken out of the house with guns drawn, and she was detained in a SWAT vehicle. On July 31st, the DA’s office and the SWAT team, including officers in full tactical gear, and this was with assault rifles, guns drawn, riot shields and a battering ram, executed another early morning search at another person’s house. This official of the company and his wife who was recovering from cancer treatment, his kids, a guest, were all hauled out of the house, forced to wait outside in their underwear for two hours in front of onlooking neighbors. There’s been no charges filed.
HH: Now when Judge Larson told me this, I stopped him, and I said is this a civil case? And he assured me it is. It’s got no criminal overtones to it.
EC: As of now, there have been no charges filed. There’s no criminal prosecution. What I’m describing is a civil suit for money damages against the police for excess of force. And as best I can tell as an outsider, this person angered the law enforcement establishment in Ventura County, and they really came down hard on him.
HH: Now Erwin, I defend law enforcement every day, in the Ferguson matter, in chokehold issues. I am pro-blue. I am nevertheless very upset if DA offices are up-militarizing their investigatory practices against people they pick out. Is that what’s happening here, in your view?
EC: From everything we know at this point, and what we know is what’s written in the press, what’s written in the complaint, that’s exactly what’s happening. And all of us are pro-police. But being pro-police doesn’t mean we excuse when there’s excess of force and wrongdoing. And from what we know to this point, this is really blatant excess of force. There’s never an excuse for taking a six year old out of her house at 6AM in the morning with guns drawn and putting her in a SWAT vehicle. There’s no excuse unless, I mean, if there’s a serious crime, to force people to stand outside their house for two hours in their underwear.
HH: Now I had a…Now I had a prosecutor here yesterday, a guy from Riverside County who’s a friend of mine, and I’m very pro-prosecutor. He couldn’t believe this, either, but evidently, the Daily Journal, which is a legal newspaper, published a story in January that several district attorney offices in California have SWAT-like units labeled Special Response teams. So they’re not even police departments.
EC: And to me, that’s really troubling. As you mentioned, I was involved on an oversight commission with regard to the Los Angeles Police Department. I chaired the charter commission for the City of Los Angeles looking at the police. And I think it’s so important that when you have police or sheriffs, that there be civilian oversight. The idea that the DA’s offices on their own have these investigative teams to do this, who’s overseeing them? And of course, often in these instances, the usual structures that exist with regard to police or sheriff’s departments don’t exist.
HH: Now Stephen Larson, my partner, is a former head of organized crime in the U.S. Attorney’s Office, and was a federal judge for a long time. He’s stared down a lot of bad guys. They attempted to intimidate him when he was announcing the filing of this suit by showing up in tactical gear, and he’s not the guy, he’s like David Carter in Orange County. This is not the kind of guy you try and intimidate. But how often do you think this happens across the United States?
EC: Obviously, none of us know. I follow pretty closely the excess of force cases that are reported in other places. There is a problem with excess of force. The idea that now it’s coming from units within district attorney offices, that, to me, is unprecedented. And you know, I had not known the story you just told of they’re trying to intimidate Stephen Larson, but you and I both know he was my student at USC Law School. This is somebody who is a longtime federal prosecutor, a magistrate judge, a federal district court judge. That they think they could intimidate him into not doing what he thinks is right is really laughable.
HH: Now the question becomes why doesn’t the prospect of civil damages restrain, this is, I’ve always been a theorist that police departments’ best interest is never, or DA’s, is never to over-respond, because the damages are too high. Why is that breaking down as a restraint on some departments?
EC: It’s very difficult to successfully sue the police. The reality is that it’s expensive to bring suits like this. And often, people don’t have the resources or can’t find the lawyers to do them. It’s also the reality that juries, understandably, give every benefit of the doubt to the police. And so such suits are hard to win. And if they’re hard to win, then it’s harder for them to have this kind of a deterrent effect. I’ll be very interested to see how the Ventura County DA’s office responds to this, and how they defend what they’re doing. I wouldn’t be surprised that these facts are even remotely close to the truth, and I have every reason to believe they are true, that this is the kind of case that would settle.
HH: I want to come back and ask you one more question about body cavity searches, because apparently, it is alleged these occurred in a civil setting document production process that we’re talking about. And if that’s going on, everyone’s hair is going to stand up on their neck. Don’t go anywhere, America.
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HH: I wanted to hold over my friend, Erwin Chemerinsky, who’s doing me a solid today, because I can’t talk about this case, because it’s been brought by my partner, Judge Stephen Larson, and I can’t do it objectively, but I’m shocked by it. And I’m shocked by one thing in particular, which always gives me the willies, which is when body cavity searches are conducted, they’re bad enough when bad guys are involved. But Erwin, can you understand the need for such a thing when it’s a civil matter involving document production?
EC: Of course, not. Now let’s be clear. The Supreme Court has said that if a person is taken into physical custody, jail or prison, then body cavity searches are permissible to make sure that somebody is not smuggling in a weapon or contraband. But apart from that, body cavity searches are virtually never permissible. In fact, there was a Supreme Court case in 2009 that involved a strip search without a body cavity search of a girl in an elementary school, and the Supreme Court, 8-1, said that that’s unconstitutional. You can’t do strip searches, let along body cavity searches, without there really being an extraordinary justification. And the idea that here in a civil case, in the context of document production there’s a body cavity search, that’s the kind of thing that leads, and should lead to punitive damages against the officers, assuming it’s true.
HH: And in addition to that, is there any requirement that they be done in private, because Judge Larson tells me one of the allegations is that they were done communally.
EC: Yes, they have to be done in private, even in the context of a jail. The Supreme Court has made it clear that the body cavity search should be done in the way that’s least likely to be degrading, though it’s inherently degrading, and be done in a way that’s least likely to be embarrassing. You can’t do a communal body cavity search. And again, assuming this is to be true, it’s outrageous. It’s, to use the phrase that law sometimes applies, it shocks the conscience.
HH: Last question, if you were in the position of the Ventura County District Attorney, or any other law enforcement that had a charge like this against them, wouldn’t you immediately reach out and find someone to come in and become the third party arbiter like you did for Ramparts?
EC: Absolutely. This is a case that the allegations are so serious, if I was the DA, I would in response say I’m going to create an independent commission to get to the bottom of this, and find the facts, and make recommendations to make sure that something like this doesn’t happen again. Or I think there’s a responsibility on the Attorney General of California, Kamala Harris, in light of these allegations, to say we’re going to conduct an investigation of the district attorney’s office. You can’t really leave it to the DA’s office to investigate itself. It’s the position I’ve been taking with regard to the scandal in Orange County. I think that’s the responsibility of the Attorney General, and maybe even here the United States Department of Justice.
HH: Erwin Chemerinsky, thanks for getting us off to an early start. I’ll continue to update this case, but always with a third party so my conflict doesn’t intrude. Thank you, Erwin.
End of interview.