The “plant drugs on the perp” hand signal

… is revealed here, starting about 1:13. This video is particularly amazing, if only because of how blatant the planting is (in addition to the hand signal and the digging around in the cop’s pocket before finding the weed on like the 6th search, the “Woah carlos! A bit of weed, bro! Now you got you another freaking charge! How ’bout that!” is a precious gem), and also because the guy was already wanted, so the cops had quite enough of an excuse to arrest him.

Of course, the cop could have just planted some oregano, like Bryan Lampard did. (Jeff, when am I going to get my song title?)

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6 Responses to “The “plant drugs on the perp” hand signal”

  1. Steve M. Says:

    Obviously, lawsuits under section 1983 and state 1983-equivalents haven’t worked to deter this sort of behavior, at least at the state and local levels. (FBI agents don’t do this. I suspect that it’s because they value their reputations and careers. The FBI pays well, you get a lot of respect, and tons of smart people work there.) It’s not clear to me why that’s the case. I suspect that it’s actually not qualified immunity law, by itself — though it certainly plays a role. My best guess is it’s the fact that it’s legal for states and municipalities to indemnify officers for damages judgments, and not just to pay the costs of the defense. There’s a similar story to tell in the corporate world, although I believe corporate officers are generally required to prove that they observed minimal standards of loyalty and due care before the corporation can indemnify for a judgment. (And, as a practical matter, the corporation’s liability insurers can insist on stronger standards.) One could argue that qualified immunity plays a similar role, but I don’t think that’s right. The standards are different, and, since qualified immunity asks whether the law is clear, you can always borrow a page from Karl Llewellyn and argue that there’s never been a case specifically dealing with red-headed Walpoles who planted heroin, so the law just wasn’t clear. Look at the school strip-search case from this last term.

    So what’s the fix? My instinct is to be harsh and unforgiving — this sort of thing corrodes the foundations of society. But the nation has its politics, not mine. So what reforms are actually politically possible? Abolishing qualified immunity? Statutes prohibiting damages-indemnification? I hesitate to say “never,” but I don’t see Congress ever doing the former. Maybe the latter? I’m sort of intrigued by the Randy Barnett solution — establish a rough-and-ready court of claims sort of procedure. In the Mark Kleiman spirit (swift and certain penalties), you could establish a separate court to decide, on summary procedures, whether the officer did something wrong and make officers personally liable for moderate-sized fines for each violation. Forbid indemnification. Since the pseudo-court of claims sees the same officers over and over again — and, for that matter, the same claimants — you wouldn’t have the swearing-match problem, where judges and jurors just credit police officers because they’re police officers, or at least not as much of one. Also, less expensive litigation! And if you are uncomfortable with a really broad exclusionary rule, and this works, you could get rid of it (though you wouldn’t have to).

    Law nerdery follows: There’s a danger of capture, especially if you set it up at the state or local level. But maybe you do? Laboratories of federalism and all that, but you’ll probably have to trundle out he highway-funding threat to make Alabama set one up. If you want to go federal, it’s more complicated. This is just thinking out loud, but why not make it an independent federal agency or an Article I court? (I’m just assuming that regular-service Article III judges wouldn’t be made to serve on this court for limited terms — and that would eliminate half the benefits.) You’d have to decide what to do with 1983 suits, because if this was an exclusive remedy you might freeze 1983 law — the Supreme Court is not going to take these cases. Or maybe a disgruntled claimant or officer has to file a 1983 suit against the agency in the District Court to seek review? Or maybe the special court/agency’s decisions are reviewable under the APA in the Courts of Appeals? (Not sure how comfortable I am with Chevron, &c., in this context, but, again, thinking out loud.) Maybe you say it’s like the Magistrate’s Act and you appoint them to the same term as U.S. magistrates? I don’t know.

  2. mariana Says:

    In my country is one of the most common things in the world that police puts you pot in your pockets,I think half my friends had that done to them, you are more at risk if you look a little weird, and if you are young.
    They do it mostly for you to give them kmoney, to brive them, remember this is a third world country.

  3. Jeff Albert Says:

    Paul, I am writing some new tunes right now, for the debut of a new group Aug 18. “Oregano with Intent” might be among them.

  4. Paul Gowder Says:

    Steve: does your quickey-court still apply the qualified immunity standard?

    Forbidding indemnification seems like the most politically plausible first step of all of this (getting a special court would probably be just as difficult as getting rid of qualified immunity). But I suspect that even then it would require some huge outrage — like a Rodney-King level thing where the cops get sued, lose, and then get indemnified.

    Mariana: many cities in the U.S. operate under similar principles. I’m sure the New Orleans cop who incompetently tried to plant on me was jonesing for a bribe.

    Jeff: You’ll be my hero. Especially if I get a mention on the album cover…

  5. Mike Says:

    Re: Indemnifcation. Oh, it’s worse than that.

    In Sec. 1983 case, you move for punitive damages. You, as a lawyer, are NOT allowed to present evidence of indemnification.

    So the D lawyer says, “Hey, this cop is poor. Go easy on the punies. It won’t take much to deter him. He’s poor!”

    You object. “But indemnification!” D lawyer will say, “Our city has the discretion to deny indemnification. As of right now, the city has not decided whether to identify.”

    P lawyer says, “Bullshit! They indemnify in 100% of cases. This is manipulation.”

    Objection overruled!

  6. Steve M. Says:

    I think getting rid of qualified immunity would be part of the deal, or people who push this usually say that it is. You make damages in the order of, what, $500 or $1000 in exchange for making liability actually possible and, without indemnification, meaningful. But even if you didn’t get rid of it, there could be some benefits from requiring people who make false claims to make them repeatedly to the same person. “Hey, ever notice that everyone just happens to give Officer X consent to search, and to do it just off camera?” And always explained on the stand through the same exact words? So, too, with defendants who, it just happens, are always searched illegally. (Again, always described in the same magic words!) In theory, prosecutors’ offices and public defense offices could keep track of this stuff, but in practice they can’t.

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