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Special Circumstances
Posted by: Dale Franks on Sunday, January 14, 2007

The code of Silence has broken on the killing of 88 (or 92) year-old Kathryn Johnston in Atlanta (Previously blogged here and here). It doesn't look good for the police officers.
An Atlanta police narcotics officer has told federal investigators at least one member of his unit lied about making a drug buy at the home of an elderly woman killed in a subsequent raid, according to a person close to the investigation.

In an affidavit to get a search warrant at the home Nov. 21, narcotics officer Jason R. Smith told a magistrate he and Officer Arthur Tesler had a confidential informant buy $50 worth of crack at 933 Neal St. from a man named "Sam."

But narcotics officer Gregg Junnier, who was wounded in the shootout, has since told federal investigators that did not happen, according to the person close to the investigation. Police got a no-knock warrant after claiming that "Sam" had surveillance cameras outside the Neal Street residence and they needed the element of surprise to capture him and the drugs.
If this is true, then the police officers lied to get a warrant under false pretenses—a felony. The officers then "served" the "warrant" on Ms. Johnston under color of authority, again, a felony. During the course of committing that felony, Ms. Johnston was killed.

That, my friends, is what you call a special circumstances felony murder, at least in most states.
"If that was the case, you have a conspiracy," said Parker. "If you have a warrantless entry, you have no legal investigation. It can be either conscious disregard for the law and all conduct flowing from that is criminal — the entry, the homicide. It's no different from people going in to rob a bank and kill someone in a shooting."
But, not satisfied with that, the officers went further.
Alex White came forward to authorities a day after the shooting, saying narcotics officers were trying to tell him to lie and say he bought drugs at the house. White came to light after he jumped out of an Atlanta squad car Nov. 22 and called 911...

Later, White, who acknowledged having worked as a confidential informant, told WAGA the cops told him "you need to cover our [rear]. . . . It's all on you man. . . . You need to tell them about this Sam dude." According to the WAGA report, the informant said Sam didn't exist and he never went to the house
So, now, you've got a conspiracy charge to throw on top of the homicide.

The Feds, of course, will be limited to a criminal civil rights investigation, but the Atlanta DA will have to take up the murder case. It'll be interesting to see if the DA actually files the charges as Murder One. If the allegations are true, though, he should, and the cops should be tossed in prison and the key thrown away.

Perhaps some good will come out of this.
Speaking Wednesday night at a town hall meeting where dozens of speakers railed against the police action in the Johnston shooting, State Sen. Vincent Fort (D-Atlanta) said he plans to introduce legislation to stiffen the requirements for no-knock warrants.
Let's hope so.
 
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Sounds like Capital Murder to me.

Setting out with a plan to kill.
 
Written By: SkyWatch
URL: http://
Sounds like Capital Murder to me.

Setting out with a plan to kill.


Oh Puh-Leeeeze....Capital Murder? Let’s be honest this is about the "War on Drugs", which you lot oppose...
I note that Dale and Tom and all the rest ignore the 1300 folks killed in "Hot Pursuit" in the SAME period, well because they don’t have anything to do with the WoD. So let’s skip the Capital Murder crap and just get on with malfeasance and other felonies. You sound like some libertarian Kossac.
 
Written By: Joe
URL: http://
The falsehoods laid out in pursuit of the warrant, were precisely why I have always stated that this is not a good case to be using to argue against drug enforcement laws. One cannot successfully argue against a procedure, saying that it has deleterious effects on justice, if the procedure is an even being used.

It pleases me no end, that these idiots are apparently going to do time for their crime.
 
Written By: Bithead
URL: http://
Well said Bithead....
 
Written By: Joe
URL: http://
Do time? Electric chair, now. Just like Nifong should get first degree rape * 3. Let them take the same punishment they would have imposed through force and fraud.
 
Written By: SDN
URL: http://
Do time? Electric chair, now. Just like Nifong should get first degree rape * 3. Let them take the same punishment they would have imposed through force and fraud.

Oh Yeah, they set out to kill the old lady....Let’s be honest Radley Balko is on his way to becoming your guys Seymour Hersh and you guys want this to be your My Lai...But let’s try to keep this within the bounds of reality.
 
Written By: Joe
URL: http://
" Let’s be honest this is about the "War on Drugs", which you lot oppose"

Hate to disagree with you, old boy, but there is at least one person (me) who thinks this qualifies as felony murder and yet does not oppose the "War ...". Of course, I agree that "Setting out with a plan to kill" is a bit loony.
Furthermore, I think the issue here is police misconduct, which generally is not the case in "hot pursuit".
 
Written By: timactual
URL: http://
Joe and bithead you are both wrong, it is similar to arguing whether the civil war was all about slavery or states rights.
It would have never happened if we had not over the years given too many powers to law enforcement, and had too many in law enforcement corrupted by the war on drugs.
 
Written By: kyle N
URL: http://impudent.blognation.us/blog
Oh Yeah, they set out to kill the old lady....Let’s be honest Radley Balko is on his way to becoming your guys Seymour Hersh and you guys want this to be your My Lai...But let’s try to keep this within the bounds of reality.
They set out to break the law, in fact, they set out to commit a felony under color of law, and they killed someone doing it. A needle in their arms should be considered at least, and life/30yrs no parole in prison at a minimum.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
They set out to break the law, in fact, they set out to commit a felony under color of law, and they killed someone doing it. A needle in their arms should be considered at least
,
No, thank you for trying


and life/30yrs no parole in prison at a minimum.
That’s a good possibility.

I think the issue here is police misconduct, which generally is not the case in "hot pursuit".

And that’sd where you’d be wrong. FORTY-TWO people have died fron NO-Knocks Aaaaargh! In the last 25 years! Wow, that’s 1.68 deaths per YEAR! In Orlando a Hot Pursuit killed TWO innocent bystanders, IN ONE INCIDENT, about 2-3 years ago. In ONE CASE, ONE pursuit killed a years worth of folks, and BTW, this case was very much akin to this shooting, the Police were CLEARLY IN VIOLATION OF THEIR OWN POLICY, in instituting the chase. I’m trying to convey in the EXACT same circumstances, philosophically, 30X the number of folks have died from another police tactic, and you’d hear NOTHING if I hadn’t mentioned it here....This is about folks who don’t like the War on Drugs, finding their "Rosa Parks" they hope, not about police misconduct, because if only 10% of the 1,300 killed in pursuit were innocent it’s STILL A FAR LARGER PROBLEM. This isn’t about police misconduct ending in death this is about ending the WoD.
It would have never happened if we had not over the years given too many powers to law enforcement, and had too many in law enforcement corrupted by the war on drugs.
Sure it is Kyle and yet 30X that number have died in police pursuits, so if No Knocks are evilllll, I assume that Hot Pursuits must be at least 30X times as evil? Proportion is imortant in this argument....I think you fellows fall outside of the land of Proportionality.
 
Written By: Joe
URL: http://
They set out to break the law, in fact, they set out to commit a felony under color of law, and they killed someone doing it. A needle in their arms should be considered at least
No, thank you for trying
Try breaking that quote out into the parts you don’t believe are true.

Do you think they broke the law?

Do you think they set out to break the law?

Do you think they tried to cover up breaking the law?

Do you think they killed someone while breaking the law?

Do you think they did any of the above acting under color of law?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
I don’t think they’re going to get the Death Penalty and neither do I think it’s warranted, but again thank you for trying....

Note I DID Agree on the 30 year sentence, but in Tom-Land that’s probably not good enough! Because this is IMPORTANT... I note you don’t mention how a thousand-plus deaths in the same time period leaves Tom Perkins unmoved, apparently...if we want to talk about ignoring things in posts...

I like balance, these guys aren’t going for the death penalty; they ARE in trouble. You and Kyle and Dale are all excised, because this touches on something you care deeply about. Here’s news flash, 42 folks is a tragedy, but it isn’t the end of the world, either. And if it is there are far worse tragedies out there...This is about the WoD and about some libertarian fear of, an increasingly NON-VIOLENT police corps, or in my paraphrase of you, "Da Man." Just because you hate/fear Da Man does not mean:
1) I or any of us do; or
2) That I or any of us SHOULD. Only that a portion of the folks here do.

I do believe that these officers are toast. I do believe that the Atlanta Poh-leece and a lot of other Poh-leece are going to tighten up their procedures on No Knocks. I think this is a good thing.

I will make book, however, that for you and others this will NOT be good enough...
 
Written By: Joe
URL: http://
The problems in the misuse of no-knock warrants and abuse of police power is not only the people who die: it’s also the people who are wounded, the people who are terrorized and have their homes damaged, and the damage done to the relationship between LE and the general public.

Joe, misuse of power is just that whether it’s serving a no-knock, using a tactical team where it’s not warranted, or doing a high-speed chase in violation of law/policy. And where do you get that "you’d hear NOTHING if I hadn’t mentioned it here"? Someone dies in a pursuit it generally gets at least a mention in the news, especially if it turns out the pursuit was in violation of policy. True, it doesn’t get the mention of door-kicking and death, but it doesn’t exactly pass without comment.

I don’t think these Atlanta officers ’set out with a plan to kill’: they obviously did deliberately lie to get a warrant, lie about the need for a no-knock, and one of the consequences of their action was this woman died. That’s quite enough malfeasance to answer for without throwing in things.
 
Written By: Firehand
URL: http://elmtreeforge.blogspot.com
Note I DID Agree on the 30 year sentence
How magnanimous of you.
but in Tom-Land that’s probably not good enough!
No it’s not. A deliberate felony resulting in death, and certainly one committed under color of law, is one which should merit serious discussion of the death penalty.
Because this is IMPORTANT...
Yes it is important.
I note you don’t mention how a thousand-plus deaths in the same time period leaves Tom Perkins unmoved, apparently...if we want to talk about ignoring things in posts...
There is nothing about any of these other deaths that makes Mrs. Johnson’s murder a better or a worse one.

And who says I’m unmoved, except by your pathetic handwaving. That doesn’t move me at all.

Yours, TDP, ml, msl & pfpp
 
Written By: Tom Perkins
URL: http://
I do wonder how many of the those hot pursuits occur because of the unconstitutional war on drugs though...

Oh wait, you don’t care about that part.


:^)

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
I do wonder how many of the those hot pursuits occur because of the unconstitutional war on drugs though...
FINALLY, the heart of it... so what portion of the Good Ole’ US Consty-tooshun bans the War on Drugs? The same portion that is agin’ Direct Election of Senators or the Income Tax or is it the portion that grants a Right to Privacy?
 
Written By: Joe
URL: http://
FINALLY, the heart of it... so what portion of the Good Ole’ US Consty-tooshun bans the War on Drugs? The same portion that is agin’ Direct Election of Senators or the Income Tax or is it the portion that grants a Right to Privacy?
The 5th amendment that garrantees private property ownership, or that the confiscation of said property be compensated.

You know, the reason the 18th was required before prohibition, in spite of the commerce clause.

You are hoist on your own petard, Joe.

And you ignore the other questions, to boot.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Oh, and Joe.

What part of the Constitution says the Feds can have a war on drugs?

Point that out.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
The 5th amendment that garrantees private property ownership, or that the confiscation of said property be compensated.
Really and you got any court cases to back this up? And Private Property is NOT an UNQUALIFIED RIGHT.... No person shall be denied Life, LIBERTY or PROPERTY without DUE PROCESS, I believe is the phrase. So it follows from the clear meaning that you CAN be deprived of your property, only that Due Process be provided. It is one of the arguments for the Death Penalty, which I oppose, but not because it’s UNCONSTITUTIONAL, as clearly the 5th allows for the taking of LIFE, LIBERTY or PROPERTY. My petard meets your constitutional knowledge and well still comes out the best. The US Constitution clearly allows for a FEDRAL Justice system and FEDERAL LAWS, to include CRIMINAL LAWS, Tom, and no where does the US Constitution say, "The Congress shall make no law respecting...DRUGS." You can argue the War on Drugs as a matter of PUBLIC POLICY or aspects of it under Federalism, but sadly enough it’s not an issue of the US Constitution.

Thank you for your efforts, several nice parting gifts can be yours. I will now make a reference to authority and inform you that I have taken 20-plus hours of Constitutional Law, History and Interpretation all at the graduate level, so if you’re going to come on this issue, please come big. ’Cuz talking about the Consty-tooshun ain’t gonna make me afeared of ya...
 
Written By: Joe
URL: http://
"What part of the Constitution says the Feds can have a war on drugs?"

My guess is the part that says they can pass laws and enforce them.
 
Written By: timactual
URL: http://
"What part of the Constitution says the Feds can have a war on drugs?"
My guess is the part that says they can pass laws and enforce them.
There are no general grants of police power in the Constitution, if you disagree, please cite them.

Lacking any general grants of police power in the Constitution, what clause to you feel authorizes it?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
No it’s not. A deliberate felony resulting in death, (and certainly one committed under color of law), is one which should merit serious discussion of the death penalty.
From what I recall of my legal courses, this is grounds for classification as murder one, regardless of their intent.

This was, at that time in legal America, based on the presumption of the ’reasonable man’, knowing that when he broke down the door of that house, with loaded weapon in hand, that he might end up using that weapon and someone might die as a result.

If they knew in advance they had invented the reason to bust down her door, they obviously knew they were committing a crime, same as if they had decided to walk into a bank and withdraw money using their 9mm account #’s.

So, it used to be that would classify this as pre-meditation for any deaths that might occur.

So, is it more heinous when a law enforcement officer kills someone with pre-meditation or not?



 
Written By: looker
URL: http://
And Private Property is NOT an UNQUALIFIED RIGHT.... No person shall be denied Life, LIBERTY or PROPERTY without DUE PROCESS, I believe is the phrase.
Joe, show due process, including fully informed juries and the requirement for a supermajority in passing an amendment to the constitution to give the federal government new powers, was followed in the "declaration" of the war on drugs.
and no where does the US Constitution say, "The Congress shall make no law respecting...DRUGS.
Yes it does, in the 5th, 9th, and 10th amendments. Except where the federal government has been explicitly given the authority to pass laws pursuant to an area of law or jurisdiction, they have no power to do so. They have been given no such power to do so with respect to recreqational drugs, therefore they have none. Likewise, they have no power to do so with respect to alcohol, not after the 21st amendment or before the 18th.

Similarly, no jurisdiction at ANY level has the power to prevent the construction of, commerce in, ownership of, public possession of, or noninjurious use of any item whatsoever of military utility, be it firearms or encrypted communications.

And the mere fact the 2nd amendment protects an enumerated right is no disparagement of the right to grow, create, trade, sell, and use recreational drugs, absent an injury to 3rd parties. And even were there to be such an injury, it would fall into the jurisdiction of the states, not the national government, to punish it.

None of which adresses the fact you’ve not answered my list of questions:
Do you think they broke the law?

Do you think they set out to break the law?

Do you think they tried to cover up breaking the law?

Do you think they killed someone while breaking the law?

Do you think they did any of the above acting under color of law?
What circumstance do you propose should excuse this murder from being a capital crime? Because it was committed pursuant to your war on drugs?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Cuz talking about the Consty-tooshun ain’t gonna make me afeared of ya...
Why are you talking like that?
 
Written By: Mirabeau
URL: http://
Boy, talk about a tempest in a teapot!

Let’s just step away from the Constitution, for a minute. Police officers don’t interpret it, you knoe. They just do their job.

Clearly, these particular officers acted badly, and they will suffer the consequences. I hope it will lead to an examination of theri entire set of procedures, as well. But don’t paint all of law enforcement with the brush of one incident.

In other cases, when a raid ends in busting a meth lab, for example, the neighbors are greteful. I, for one, am glad there is a police department I can call when there’s trouble.

You want to argue for legalizing drugs? Go right ahead, but don’t do it on the back of one bad incident. That’s just ridiculous.



 
Written By: Laime
URL: http://
Why are you talking like that?

"Cuz I kin....? A trope, a whim, a fit of whimsy designed to lighten the mood...or simply cuz I kin.
Joe, show due process, including fully informed juries and the requirement for a supermajority in passing an amendment to the constitution to give the federal government new powers, was followed in the "declaration" of the war on drugs.
Uh dude none was necessary... they aren’t amending the Constitution. Now you are a fan of "Fully Informed Juries" I forgot that...can’t help you. But the War on Drugs comes from the Good Ole United States Code. And that’s where it needs to end and start. There’s no mention of the ability to seize your poroperty shold fail to pay your taxes, but it follows from the ability to tax and the 5th.
Yes it does, in the 5th, 9th, and 10th amendments. Except where the federal government has been explicitly given the authority to pass laws pursuant to an area of law or jurisdiction, they have no power to do so. They have been given no such power to do so with respect to recreqational drugs, therefore they have none. Likewise, they have no power to do so with respect to alcohol, not after the 21st amendment or before the 18th.
In the TOM PERKINS Constitution yes, in the REAL one, no. Sorry. At a minimum the Interstate Commerce Clause would give the Congress power to prohibit the interstate trafficing of drugs. Even without the expansive definition of the Interstate Commerce Clause in the 1930’s and 1960’s. Plus, whilst there is no Federal Common Law, there is Federal STATUTORY Law, and the US has the right to enforce that, Tom. So IF Congress chooses to make the use and transportation across statelines illegal of any number of substances it has the COMPLETE CONSTITUTIONAL AUTHORITY TO DO SO. In short, your assertion is wrong.
Similarly, no jurisdiction at ANY level has the power to prevent the construction of, commerce in, ownership of, public possession of, or noninjurious use of any item whatsoever of military utility, be it firearms or encrypted communications.
And this flies in the face of Constitutional History even more so... or again in the Tom Perkins OMNIBUS US/State Constitution it may be so, but in the multitudinous REAL State Constitutions, it is again, false. You advance a Libertarian NOTION as FACT, simply saying something does not one’s preferences true, they remain your PREFERENCES not the legal truth. For example, whilst the 1st amendment, or what would become the 1st amendment, was being debated and ratified, many STATES ACTIVELY supported houses of worship, in fact some states supported SPECIFIC houses of worship. The US Constitution did not forbid THAT, until the 14th Amendment came along. Some states make educationa RIGHT, some don’t... the result is that some states find themselves being sued becasue their educational systems are unfair or substandard or the like. You see in the REAL US system, states have many and VARIED responsibilities, established by their STATE CONSTITUTIONS, some states have established a right to KEEP and BEAR ARMS, for example, others do not. The Federal System does not forbid states from making certain things "rights" within them and from saying other things are NOT rights... so NO there is no justification for the assertion that NO level of government may prohibit the use, sale or production of drugs for recreation. States have EVERY right to do so, or not. Note: I have said the Federal WoD IS SUBJECT to a Federalism discussion. CA or AL may LEGALIZE drugs and the Fed’s ought not be allowed to stop or enjoin them. HOWEVER, Tom if a state can LEGALIZE it they can also CRIMINALIZE it to. Can’t have it both ways. Again you are simply wrong and talking thru your Libertarian hat on this point.
And the mere fact the 2nd amendment protects an enumerated right is no disparagement of the right to grow, create, trade, sell, and use recreational drugs, absent an injury to 3rd parties. And even were there to be such an injury, it would fall into the jurisdiction of the states, not the national government, to punish it.
No not true. Murder can be a FEDERAL or a state crime....The Fed’s have law, to include Federal Law, Tom. Even if CA were to legalize ALL drugs, the Fed’s would still have EVERY right to enforce FEDERAL criminal law in CA. Again, you advance a portion of the Libertarian Manifesto as established FACT, when it is only your THEORY, and one that really doesn’t hold together well, in the face of court rulings and history.

Man up Dude....You WANT some things, it’s not that these things are TRUE or GOOD or in any way FACTS. You want to end the WoD, and this is one of your new cause celebres in that hunt. We’ve peeled the onion back, from a case in Atlanta to the core of Tom Perkin’s philosophy, "End the War on Drugs." All this is is propaganda, your My Lai, to advance your cause, about Da Man and Fully Informed Juries and some odd theories of the US Constitution. Heck, you’ve barely mentioned the old lady here recently. You don’t care about HER save that she is a bludgeon with which you can beat Da Man about the REAL issue, some wrong-headed Constitutional Theory. And IT IS a wrong-headed one, that no one but some libertarian cranks would accept, Dershowitz, Tribe, Bork, any number of Constitutional Scholars would point out the flaws with what you advance as CONSTITUTIONAL THEORY. You can advance your arguments as PUBLIC POLICY, if you want, but please don’t try foisting them off as some kind of "inherently true" idea, because your theory holds as much water as Progressive Theories about Health Care being a "Right."
 
Written By: Joe
URL: http://
Lastly, I can’t believe I am in full agreement with Laime about anything, but in this he speaks the truth.....
 
Written By: Joe
URL: http://
Lastly, I can’t believe I am in full agreement with Laime about anything, but in this he speaks the truth
Nah, sometimes I agree with him/her to.
That just means there’s hope (notice I’m not specifying which of us there’s hope for).

But this is a case, I’m also in agreement.
This case could have been about something other than drugs, since these days No Knocks are done for other reasons. It’s the increasing use of No-Knocks and SWAT teams I object to here.
(chicken and egg, I know)
 
Written By: looker
URL: http://
"Except where the federal government has been explicitly given the authority to pass laws pursuant to an area of law or jurisdiction, they have no power to do so."

Well, there is power, there is right, and there is ability. I don’t know what your definitions are, but whatever they are ability trumps power/right. To borrow a phrase, "Cuz they kin".And there is always the old "...provide for the common defense and general welfare.."* standby, coupled with the famous "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested in..."*



"many STATES ACTIVELY supported houses of worship, in fact some states supported SPECIFIC houses of worship."

Massachusetts, for example, had an official established church, supported by taxes, until 1833.


* Article I, Section 8,
 
Written By: timactual
URL: http://

 
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