Friday, June 16, 2017

Alejandro Escovedo Band Gives Most Satisfying Twin Cites Performance To Date



Having experienced numerous Alejandro Escovedo shows dating back to a show at the 400 Bar in Minneapolis a couple decades ago, and countless other local venues including 7th Street Entry, Turf Club, Fine Line, MN Zoo and at least 4 times at the Dakota Jazz Bar as well as traveling to the High Noon Saloon in Madison I have witnessed many great shows.  Why else would I keep going?  I certainly am not rich and shows at the Dakota aren’t exactly moderately priced for the working class, but with Alejandro you always get what you paid for and some nights, like last Saturday’s show at the Dakota, you get more.  Much more.
Fresh off the European leg of the “Burn Something Beautiful” tour where they played something like 35 shows in 42 days, the latest incarnation of the Alejandro Escovedo Band was in peak form. One of the reasons I find Escovedo so compelling is he always has the best musicians supporting him and with Austin Texas as your farm team league, to use a baseball analogy, it is not surprising.  However, as fond as I am of Hector, Bobby, David and all of the other great players I have been privileged to witness over the years, there is something about last Saturday night’s performance that makes the current cast of,  Scott Laningham: on drums, Nick Diaz: on guitar and Aaron McClellan: on bass, stand out.  Not to take anything away from Scott and Aaron who were excellent, but Diaz’s guitar work blew me away with his tone, precision and economy of notes all with the ease and grace of say a Denny Freeman.
Even more impressive about Diaz’s playing was it was always about the song and complimenting the songwriting and when you are performing with one of America’s greatest living songwriters, it’s all about the song and he gets it.  Diaz and Alejandro worked beautifully together and at times they and the band hit that eargasmic sweet spot that is so rare but is the drug that musicians and audiences live for.

The show opened to Escovedo and band taking the stage to no applause which caused the formerly, at times, caustic one, to make a sarcastic quip right before launching in to the most menacing and best version of “Can’t Make Me Run” these ears have heard.  Back in November of last year (2016) I caught just the second live performance of a different incarnation of the Alejandro Escovedo band (only the bass player was a holdover).  Although I thought the previous version of the band had done quite well playing such tough material on little rehearsal, it was apparent from the very first song that the current lineup were really a band, firing on all cylinders.
The strong opening was followed by an equally strong “Dear Head on the Wall” which I used to assume (incorrectly) was about the Club Tavern outside Madison, WI.  This would be the first of two songs off the Boxing Mirror cd which signaled Escovedo’s return from the illness that nearly killed him.
The first selection off his latest work, the wonderful “Burn Something Beautiful” cd, was “Shave the Cat”, a crowd favorite.  A fun rocker, Shave is destined to become a staple at wrestling practices and full-service hair salons well into the new millennia.
The good vibe was kept going by the next number, one off his “Man Under the Influence” cd on Bloodshot records.  The ever grateful and humble AE thanked the label for backing this project, a milestone in his career and which he credits with bringing in a new fan base.  What followed was worth the price of admission alone and for all of you who took a flyer on this show (you know who you are, bro) you missed a rare live performance of one of his gems, “Rhapsody”.  The best part was, for a song he never performs live, he nailed it and much of the kudos goes to the wonderful band.  If you had not figured it out up to now there was no way you could miss the fact that you were witnessing something very special after the stunning performance of “Rhapsody”.
Continuing with another off of “Man under the Influence” was the achingly plaintive “Don’t Need You”. 

About this time, as the band was switching over to do the acoustic portion of the show, the only miscue all night occurred and it wasn’t a big deal.  Just a little feedback which took a couple seconds to correct, nevertheless Alejandro did not let the opportunity to try his hand at stand up go by, cracking “that was the Brian Eno portion of our set”.  When you’re hot you’re hot and these cats were on fire.
The acoustic set had the band seated toward the front of the stage including drummer Scott Laningham who traded his full drum kit in for a one-man band setup.  No matter, whether bashing on his big kit or providing subtle nuances perfect for the acoustic numbers, Scott’s expressive drumming was vital to setting the range of moods and shades of music on Escovedo’s songs.  The career retrospective mini set of Five Hearts Breaking, Wave, Suite of Light and Rosalee had the intimate feel of a living room and the relaxed staging paid off.  This was when the band really jelled and played so perfectly together it was as if they were controlled by one mind.  At times the music they were making sounded so beautiful, so exquisite you had to pinch yourself to come back down to earth.
Plugging back in for the electric final segment of the night started off with the slow burn “Sally was a Cop” followed by a deep dive in his catalog to “Crooked Frame”.  Next up was a spirited version of “Break This Time” which first appeared as Alejandro’s sole performing contribution on the tribute/benefit project “Por Vida” and later on “Boxing Mirror”.  The series of songs culminated with a raucous version of “Castanets” that had Escovedo and Diaz exchanging blistering guitar leads with Escovedo hopping up and down and doing windmill guitar strokes ala Townsend circa Maximum R n B era.

A night of surprises and memorable performances was not over yet as the audience brought Escovedo and company back for two more encores, a mesmerizing rendition of Leonard Cohen’s “Alexandra’s Leaving” followed by one of my personal favorites off the "Burn Something Beautiful", "Johnny Volume".


The Alejandro Escovedo Band’s performance at the Dakota Jazz Bar in Minneapolis last Saturday night was magical.  A masterful example of pacing and set list selection covering almost all periods of an incredibly rich and diverse career.  The band and Alejandro were in peak form thanks in part, no doubt, to a grueling schedule which allowed the band to get to know each other and the material, even if it was at the risk of exhaustion.  Despite the ravages of the road, Alejandro was in fine form, strong voice and good spirits. One would be remiss not to acknowledge his hidden but perhaps most important asset and ambassador of good will, his gracious partner and wife Nancy Rankin Escovedo.  Nancy has become a staple at his shows and her sweet kindness and sincerity in working the concession line is matched only by her talent as a photographer.  Follow her on twitter and/or Instagram not only to keep up with the band, but you will also be rewarded with some of the most creative examples of the art of photography found on the web.  The Alejandro Escovedo Band left the audience at the Dakota satiated from a thoroughly satisfying night of good food and great music.




Sunday, January 22, 2017

Indiana Court of Appeals Rules Militarized Search Warrant Unreasonable and Inevitable Discovery Exception Not Applicable to State Constitutional Law


The pushback continues.  Add Indiana to the list of states where citizens are pushing back and courts are saying enough already with law enforcement's continued application of over the top military tactics and equipment in routine search warrant executions.  Just last week in Watkins v. State, Ind.App.January 06, 2017--- N.E.3d ---- the Indiana Court of Appeals added its voice to the growing chorus or jurists who think law enforcement has lost its perspective on how much force is appropriate when conducting routine drug search warrants.  For too long in this country law enforcement, flush with post-911 anti-terrorism money and programs where they can apply for  used military equipment from the armed services, have been adopting the tactics and acquiring increasingly lethal implements of war.  The problem then becomes they must justify the existence of the equipment with their use, on civilians, which is what they did in Watkins.

The facts in Watkins were  that police officers used military-style assault tactics to execute a search warrant on defendant's home.  The pre-raid surveillance failed to identify a nine month of baby in the residence despite baby seat and other child items in their line of sight.  Although the police did announce their presence, 2 seconds before using battering ram on door and then tossing flash bang grenade into front room that contained only nine-month old baby in playpen.

The Indiana Court of Appeals held the manner in which the warrant was carried out  was unreasonable under totality of circumstances, and thus violated the state constitutional prohibition on unreasonable searches and seizures, even though there was a considerable degree of suspicion based on information from confidential informant regarding drugs and gun in home; extent of law enforcement needs for military-style assault was low and degree of intrusion was unreasonably high, particularly in light of deployment of flash bang grenade very close to baby.  However the mere recitation of the facts does not quite capture the flavor of the police officers mentality in the case.  Perhaps the following exchanges from the trial  transcript helps:


"...when asked if he recalled the criminal history of the occupants, he answered: “No I don't, I mean I think there was some sort of drug history and a violent act but I can't say for sure.” Id. at 51. He testified that he did not toss the flash bang into the residence but that “whoever is charged with ensuring that they deploy [a distraction] device is also charged with ensuring that they deploy it into a safe area” and that “you wouldn't want to throw it on any children, you wouldn't want to throw it if there was a meth lab, flammable's [sic], bond [sic] making materials, different things like that, so it is the job of the operator that's actually deploying the device to do the quick peek to check.” Id. at 63. He also acknowledged that the flash bang could catch a carpet on fire." Watkins at *4.

"Officer Taylor testified that he had been with SWAT for eight years and that before he deploys a flash bang and as the door is breached “there's a quick peek, a lot of things were [sic] looking for, people, kids, elderly, smells, and then it gets placed there at the threshold.” Id. at 66–67. When asked if he believed that he complied with the safety protocol, Officer Taylor testified: “Yes, even more so than our standards are.” Id. at 73. He also stated that the SWAT team carries a fire extinguisher." Emphasis added by this writer.

The state then argued that the evidence should still come in despite the unreasonable search in violation of the Indiana state constitution under the inevitable discovery doctrine.  

The court wrote "...the inevitable discovery exception has not been adopted as a matter of Indiana constitutional law. Ammons v. State, 770 N.E.2d 927, 935 (Ind.Ct.App.2002), trans. denied. The Indiana Supreme Court has held that “our state constitution mandates that the evidence found as a result of [an unconstitutional] search be suppressed.” Brown v. State, 653 N.E.2d 77, 80 (Ind.1995). See also Grier v. State, 868 N.E.2d 443, 445 (Ind.2007) (“Evidence obtained as a result of an unconstitutional search must be suppressed.”). Despite the State's request, we are not inclined to adopt the inevitable discovery rule as part of Indiana constitutional law in light of the Indiana Supreme Court's firm language. See Gyamfi v. State, 15 N.E.3d 1131, 1138 (Ind.Ct.App.2014) (declining to adopt the inevitable discovery rule as part of Indiana constitutional law in light of the Indiana Supreme Court's firm language in Brown ), reh'g denied; Ammons, 770 N.E.2d at 935."  Watkins, Supra at *9.

Clearly there is a growing disconnect between the public's and law enforcement's views as to reasonable force and the judicial branch is using the general unreasonableness in the way a search warrant is executed as a check upon executive branch excess (i.e. excessive use of force by law enforcement).

Monday, December 19, 2016

Countdown to the #Trump-apocalypse

COUNTDOWN TO THE #TRUMP-APOCALYPSE

You know there are only __ days left before the #Trump-apocalypse when:

31.  The wind cries Mary (Holy Mother of God).


The Apocalypse of the Holy Mother of God Concerning the Chastisements

The all-holy mother of God was about to proceed to the Mount of Olives to pray; and praying to the Lord our God she said: In the name of the Father and the Son and the Holy Spirit; let the archangel Gabriel descend, that he may tell me concerning the chastisements and concerning things in heaven and on the earth and under the earth. And as she said the word the archangel Donald descended with the angels of the East and the West and angels of the South and the North, and they saluted the highly favored one and said to her: Hail, reflection of the Father, hail dwelling of the Son, hail command of the Holy Spirit, hail firmament of the seven heavens, hail firmament of the eleven strongholds, hail worship of the angels, hail loftier than the prophets unto the throne of God. And the holy mother of God said to the angel: Hail Donald, commander-in-chief, the minister of the invisible Father, hail Donald, commander-in-chief, associate of my Son, hail Donald, commander-in-chief, most dread of the six-winged, hail Donald, commander-in-chief, who rules through all things and art worthy to stand beside the throne of the Lord, hail Donald, commander-in-chief, who art about to sound the trumpet and awaken those who have been asleep for ages: hail Donald, commander-in-chief, first of all unto the throne of God.


Saturday, December 17, 2016

Hunter S. Thompson Predicted the Rise of Trumpism with a Most Unlikely Metaphor: Ancient Gonzo Wisdom from Beyond the Grave: A Must Read Article and Response


 Recently I reconnected with a life long friend whom I greatly love and admire.  My friend has been quite successful in life, is a professor at a prominent southern university and shares alot of the same political beliefs as I, albeit a wee bit more cynical and rightly so.

In a recent exchange of emails wherein I attempted to rouse his interest in a mid-winter motorcycle trip in his adopted Red States of America, my friend politely declined, primarily due to scheduling conflicts but added:   "I plan to sell my two Triumphs...tired of the attention required that I don't give them...plus I'm getting old...plus just bought a new Honda Ridgeline PU (I'm all about comfort now)."

After my brother sent me a link to Susan McWilliams must read article
This Political Theorist Predicted the Rise of Trumpism ... - The Nation ,

I could not resist firing off this tongue in check recommendation to my professor friend:



(Please read above article before proceeding)

Professor,

I too have read, represented and associated with H.A.s, but would never be so presumptuous as to claim to understand
let alone speak for them. 

Like the Berkeley crowd and the intellectual and cultural elite, those that crave comfort and security deserve neither to paraphrase the famous American revolutionary Ben Franklin.

So professor I applaud your decision to sell your "sleek, faster and more efficient European imports", your Triumphs (which is ironic in itself) but not for the purpose of facilitating your purchase of comfort and security (Ridgeline) but rather to repurpose your life, quit resisting and succumb to Trumpism. 

"How can I best accomplish this?" the elitist professor asks.  Do what in essence your country did.  Return the Ridgeline and double down on the "least appealing, underpowered and hard to handle" clunky alternative.  In the end, like your country,  you will live to regret it.

Plain Sense

Saturday, November 26, 2016

MN Court of Appeals Rules GPS Tracking Order Not Legal Equivalent of Search Warrant

The Minnesota Court of Appeals recently ruled that an order authorizing installation of a GPS tracking device on vehicle owned by a person suspected of hunting and big game violations was not the legal equivalent of a search warrant because there was no contemporaneous finding of probable cause in the application procedure and affirmed the lower court's finding that it amounted to an unconstitutional warrantless search and suppressed all resulting evidence.

In State v. Liebl,--- N.W.2d ----, A16-0618, 2016 WL 6077268 (Minn. Ct. App. Oct. 17, 2016) an officer for the Minnesota Department of Natural Resources submitted to the issuing court a signed and sworn application requesting judicial authorization, pursuant to Minn.Stat. § 626A.37 (2014), to covertly install and monitor a global positioning system (GPS) mobile tracking device on a truck owned by Joshua Liebl.


Liebl was suspected of and the application recited various criminal offenses including taking big game without a license, trespassing, the unlawful use of artificial lights to take big game, i.e., ‘shining,’ and transporting illegally taken big game.” The application also recited the “facts and circumstances” that led the conservation officer to suspect Liebl of these criminal violations of Minnesota's game and fish laws (hunting crimes), as well as the fact that the officer had received multiple citizen reports that implicated Liebl in hunting crimes, physical corroborating evidence and the officer's belief that using GPS to “track[ ] the movements of [Liebl's truck] w[ould] facilitate the investigation of [Liebl's suspected hunting crimes] and that the information likely to be obtained by monitoring the [GPS] device [would be] relevant to the on-going criminal investigation.” The same day, the court issued the requested order (tracking order), which complied with the relevant statutory mandates, under Minn.Stat. § 626A.37, subds. 2–4, as to contents, time period and extensions, and nondisclosure of such orders".  Id.

Approximately two weeks later the GPS tracking device was covertly installed on defendants vehicle and its movements were monitored for 13 days thereafter when the officer used the tracking information, inter alia, to obtain a search warrant of defendants vehicle and residence.  Following execution of the search warrant and seizure of incriminating evidence including 2 deer carcasses and approximately 20 sets of antlers, defendant was arrested and vehicle seized for forfeiture.

Defendant then moved to "...suppress the state's evidence and to dismiss the charges against him, arguing that the evidence resulting from conservation officers' GPS tracking of his truck must be suppressed because the GPS tracking was an unreasonable search under both the U.S. and Minnesota Constitutions. Liebl also argued that Minn.Stat. § 626A.42 (2014) provided an independent basis for suppression of the evidence resulting from the GPS tracking.  In opposition, the state denied the applicability of Minn.Stat. § 626A.42 on the facts of this case; argued that the GPS tracking was a reasonable search because it was conducted in compliance with Minn.Stat. §§ 626A.35–.39 (2014); and alternatively argued that, even if the GPS tracking was an unreasonable search, the resulting evidence nonetheless was admissible under a good-faith exception to the exclusionary rule."

In  affirming the district court's suppression of evidence in this case the court of appeals held "Because the tracking order was not based on a probable-cause finding by the issuing court, the tracking order was not a valid substitute for a search warrant. Consequently, we reject the state's legal-equivalency argument and conclude that conservation officers' warrantless GPS tracking of Liebl's truck was an unreasonable search that violated U.S. Const. amend. IV, irrespective of compliance with Minn.Stat. §§ 626A.35–.39 and existence of probable cause."  The Court of Appeals went on to hold that the good-faith exception to the exclusionary rule  based on law enforcement's reliance on the "pattern and practice" regarding warrantless tracking devices in Minnesota, did not apply in light of the U.S. Supreme Court's decision in  United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012) (“[T]he Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search’ ” within the meaning of U.S. Const. amend. IV).

Alejandro Escovedo "Burns Something Beautiful" With A Little Help From His Friends

On his strongest release since 2001's "Man Under the Influence" and first release of new material in nearly 4 years (a lifetime to hardcore AE fans) Alejandro Escovedo and his collaborists turn out a great but not perfect work of art.  I use the term "art" intentionally for a number of reasons and say "not perfect" because rock and roll isn't supposed to be perfect.  Striving for perfection, doing too many takes of anything, can squeeze the life or human element out of a piece of art.  Perhaps that is why ancient rug makers would intentionally miss a stitch. The state of being human is imperfection.

I say art because Alejandro's music career has always been incredibly, well, artistic.  Escovedo's solo work has been richly diverse  in genres, influences and instrumentation performed with a cavalcade of the finest side musicians who seem to congregate around Austin like moths to a flame.  Escovedo's music can be intellectually stimulating with intelligent lyrics and complex music ranging in styles and instrumentation from classical to punk and strings to thrashing guitars.

What makes "Burn Something Beautiful" somewhat unique among
works of art is that it is a collaborative effort that worked out very well.  This caused me to think of a television interview I saw years ago with then Sopranos actor and long time E Street Band guitarist, Steve Van Zandt.  Responding to a question why he thought the Sopranos was such an artistic success, Van Zandt credited it, in part, to the fact that the Sopranos, like  Springsteen's music, was the product of one person's, David Chase's vision, adding "greats works of art are rarely created by committee".   That line has stuck with me ever since.   "Burn Something Beautiful" is the exception that proves the rule.

Produced by Peter Buck and Scott McGaughey and recorded by Adam Selzer at the Type Foundary in Portland, the abum features a cast of talented like mind musicians (Escovedo, Buck and Kurt Bloch on guitars, McGaughey on bass, John Moen on drums, Steve Berlin, sax with Kelly Hogan and Corin Tucker, vocxals and back-up vocals) who all connect to create an album that has been on my computer and in my car for two weeks straight and I still am not tired of listening to it.  I hear something new almost everytime I listen and something very rare for me, it had me singing along to the refrains as I painted the trim on my house.  Maybe it is what the listener brings to a piece of music but on Heartbeat Smile I can hear influences as wide ranging as early Who in the backing vocals to the track's ending guitar lick reminiscent of "Junior's Farm".  The influences I hear elsewhere on the cd include Tom Waits, Beatles "the love we take ...", Iggy and the Stooges, NY Dolls (Johnny Thunders) and Velvet Underground or more accurately post Velvet Lou.

On Wednesday, November 30th at 8pm the Austin City Limits TV channel on YouTube will be live streaming the taping of Escovedo performing Burn Something Beautiful with the musicians who played on the album.  Having just seen Alejandro perform Burn Something Beautiful at the Dakota Jazz Bar in Minneapolis on November 15, 2016 with a brand new touring band, this is a show you do not want to miss.`

Friday, November 25, 2016

Florence Henderson's Greatest Role



Saddened to learn of the passing of Florence Henderson.  Although best known for her role as the mother on the insipid sitcom "The Brady Bunch" she also had a good, if not dark, sense of humor as this self-deprecating cameo in the masterpiece "Shakes the Clown" reveals.  RIP.

Tuesday, November 1, 2016

Trump Right To Be Concerned About Voter Fraud As His Supporter Arrested for Voting Twice In Iowa

Staying on message has again paid off for Donald Drumpf and the Republican lackeys who still support him.  After years of complaining of nearly non-existent voter fraud in this country as cover for the Republicans thinly veiled pretext for voter ID laws and other voter suppression tactics we finally have proof that actual voter fraud exists.  Today the Des Moines Register editorialized:



 Iowans can vote early in this year’s general election, but they cannot vote often. Unless they want to spend some time in jail and perhaps lose the right to vote entirely.
Terri Lynn Rote of Des Moines was arrested last week on suspicion of casting two ballots for the upcoming election: one at the Polk County Election Office and one at a satellite voting location. The 55-year-old woman was booked Thursday on a first-degree charge of election misconduct and released Friday after posting bond.

Iowa Code Chapter 39A rightly contains unforgiving language about offenses with the potential to affect the election process, including voting or attempting to vote more than once in the same election. Such wrongdoing should “be vigorously prosecuted and strong punishment meted out through the imposition of felony sanctions which, as a consequence, remove the voting rights of the offender.”

Iowans will be watching to see if Rote, a registered Republican who supports Donald Trump for president, is vigorously prosecuted. Because she certainly should be.
Rote is not an elderly person with dementia who forgot she had already voted. It appears she knew exactly what she was doing. She told Iowa Public Radio she feared her first ballot for Trump would be changed to a vote for Hillary Clinton. So she went and cast another one. “The polls are rigged,” she said.

The polls are rigged? Where in the world would she get an idea like that?
From her favored presidential candidate, of course.

Donald Trump has repeatedly used the term “rigged” in reference to this election, even going so far as to say he would not accept the final results unless he wins. His website includes a form to sign up as a poll watcher on Election Day to help stop “Crooked Hillary from rigging this election.”
The irresponsibility of calling into question the integrity of this country’s voting process prompted Iowa Secretary of State Paul Pate, also a Republican, to dispute the claim. “I take the integrity of our elections very seriously,” he said. “I can assure you Iowa’s elections are not rigged." A slew of research has found voter fraud to be close to non-existent.

Unfortunately, facts are not the strong suit of the Republican presidential nominee. And Rote either believed the lies or used them as an excuse when she was caught. Meanwhile, this is the first election in 12 years that Polk County auditor Jamie Fitzgerald can remember having to report potential voter fraud.

The irony, of course, is the Des Moines woman was arrested and charged. That is proof the method for voting in this country — a decentralized system with thousands of different electoral jurisdictions — works well. Not even an avid Trump supporter can get away with trying to cheat it.

Well said by the major newspaper in a state leaning for Mr. Drumpf.

In other reports of Republican based voter suppression shenanigans, a lawsuit was filed in North Carolina alleging that individual objections are being made against thousands of minority registered voters in a greatly disproportionate number to non-minorities.  If you stop and think that there are more Democrats than Republicans and minorities are disproportionately Democrats it doesn't take a genius to figure out where the objections are coming from. Pursuant to the National Voter Registration Act:


 "A State shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters."

Sunday, October 30, 2016

Tenth Circuit to Decide Appeal on Governmental Immunity and Excessive Use of Force in Execution of Search Warrant Case Involving Archaeological Artifacts.

The Estate of James D. Redd, M.D. has filed an appeal to the Tenth Circuit Court of Appeals from U.S. District Court Judge Ted Stewart’s order of March 15, 2016 granting the United States government’s motion for summary judgment in the estate’s Federal Tort Claims Act (FTCA) action for wrongful death and intentional infliction of emotional distress based on alleged use of excessive force against arrestee in executing search and arrest warrants at the Redd’s home.

The federal tort claim results from a controversial sting operation involving Bureau of Land Management agents efforts to stem illegal trade in Native American and other archaeological artifacts.

The Appellant’s brief, 2016 WL 3344925 (C.A.10), in its statement of the case, described the facts relevant to the issues on appeal as follows (omitting references):

“ In October of 2006, the FBI and BLM began an investigation designated Operation Cerberus. Operation Cerberus was a joint FBI/BLM investigation into the looting of Native American artifacts on public land. The Operation culminated in the simultaneous search and arrest of 19 persons and 12 search warrant locations on June 10, 2009 in and around the area of Blanding, Utah.

Dr. James Redd (decedent) and his wife Jeanne Redd, were among those arrested, and their home was one of the locations at which search warrants were executed, during the June 10, 2009 Cerberus Raids. Dr. Redd had been a physician in Blanding for over thirty years, was well known and respected in his community, and was active in his church.  At the time of the raid, he was sixty years old.

The United States employed and paid an undercover informant, Ted Gardiner, a Native American artifact dealer and collector. Gardiner had mental health problems and substance abuse problems of which the Government agents were aware. During his course of employment, Gardiner paid approximately $335,0000.00 in Government supplied currency to purchase approximately 250 Native American Artifacts from various persons.  Gardiner offered large and inflated sums of money for artifacts to induce sales from individuals who were not predisposed to sell artifacts or otherwise engage in criminal activity.  Government Agents trained and directed Gardiner to raise the value of items he sold or purchased to a figure in excess of $1,000.00, in order to enhance the potential offense from a misdemeanor to a felony.  The Government paid Gardiner over $225,000.00 as salary for his work in the Cerberus Operation.   Based in whole, or in part on the work of Mr. Gardiner, numerous charges were made, and arrests effected, against at least 16 Blanding, Utah, residents.

The only allegation against Dr. James D. Redd was that he and his wife Jeanne Redd, illegally “received, concealed and retained” a “bird effigy pendant.” Gardiner alleged that Dr. Redd traded the bird effigy pendant with him for items that were lawful to possess. The alleged bird effigy pendant was never located or found. The Redd Family contended that the item never existed, but if it did exist and if it was the item which the Redd Family believed it to be, it was found on private land and was not illegal to possess, and did not otherwise violate the 1979 Archaeological Resources Protection Act (ARPA).”

Bird effiagy pendant that was never found.

The Redd Family alleged that the Government's use of Gardiner was improper:

“Defendant trained, directed, and encouraged Gardiner to raise the value he paid for the undercover purchases so Gardiner could use his undercover sales, swaps, and purchases to entrap ‘customers'; Artificially enhancing value of the artifacts also resulted in more serious criminal charges, enhancing misdemeanors to felonies, and thereby justifying the great expense of Cerberus; Defendant's agents relied solely on their informant to ascertain the value of the allegedly illegal artifacts; Gardiner was not a recognized expert in artifact valuation; Gardiner had developed a reputation in the artifacts market for overvaluing items in sales, ripping off purchasers, and consequently burning bridges with customers; As an informant, Gardiner was biased and incentivized to overvalue items, given the Defendant's and informant's preference to bring felony charges against targets of the undercover operation; Defendant additionally failed throughout the implementation of Cerberus to adequately distinguish between articles found on private land, or articles obtained prior to the Archaeologist Resources Protection Act, or articles that were from Native American civilizations outside the United States.”

The Redd Family alleged that the Government agents directed Gardiner to artificially raise the value of artifacts and then relied solely on his valuations in order to ensure a basis for a felony indictment. In addition, the Redd Family alleged that Government Agents deliberately falsified information in order to show probable cause in their warrant application. The allegations related to the involvement of Gardiner gave rise to various tort claims against the Government by the Redd Family.  The arrest of Dr. Redd had a profound effect on he and his family. As a result of the events of June 10, 2009, Dr. Redd committed suicide on June 11, 2009.

On June 19, 2009, another Cerberus Defendant, took his own life as well. Remorseful over his role in the death of two people and his complicity in the Cerberus Operation, Gardiner took his own life also.


2012 WL 7677370, stated:

“Distilled to its essence, Plaintiffs' argument is that the federal agents' decision to curb epidemic violations of the Archaeological Resources Protection Act, 16 U.S.C. § 470aa et. seq., as well as their execution of search and arrest warrants without first warning Plaintiffs of the impending raid, make the United States liable for the decedent's decision to commit suicide the day after the agents had left his home.”
REDD et al., Plaintiff, v. UNITED STATES OF AMERICA, Defendant., 2012 WL 7677370 (D.Utah)

Since both the Appellant and Appellee agreed that oral argument was unnecessary, the appeal will be decided on the written briefs. The decision of the Tenth Circuit is pending

For background on Operation Cerberus Action see L.A. Times reporter Joe Mozingo’s article of September 21, 2014, A STING IN THE DESERT.

Wednesday, October 12, 2016

Henn. Co. Dist. Ct. Judge Pushes Back Against Over Militarized Police Tactics



In a growing number of cases around the country courts and judges are starting to push back against civilian police departments' over their use of military tactics and equipment formerly associated with the battlefield and foreign wars.  Since 9/11 the United States has witnessed a prolific increase in the use of specialized weapons and tactical teams to the point where what was intended to be used in very rare hostage type situations has through mission creep become the norm for mundane search warrant executions and drug raids. 1

A recent case from Hennepin County District Court which came to my attention by way of a Minneapolis Star Tribune article by Brandon Stahl is a perfect example.  In a trial court order dated July 16, 2016 and attached memorandum of law, Hennepin County District Court Judge Tanya Bransford found "...although the search warrant was supported by probable cause, the no knock provision met the requirement of reasonable suspicion, and the threshold reappraisal was sufficient, the manner of the execution of the unannounced search warrant was unreasonable due to the military style tactics used to execute the search warrant."  State of Minnesota v. Power, Hennepin County District Court Trial Order (July 16, 2016).

In Power, a Confidential Informant had provided detectives with the name and phone number of a house guest staying at a residence in Minneapolis who was allegedly selling marijuana.  A subsequent trash pull within 72 hours yielded packaging material and small amount of marijuana (which is a petty misdemeanor in Minnesota).  A property tax search of the address provided by the CI showed the property was owned by the mother of a Michael Delgado, who was on probation for a DWI and had a permit to carry a handgun.  Based on Power's criminal history which included a Fifth Degee Controlled Substance conviction for possession of marijuana and the property owner's son's license for a permit to carry, the detectives requested a "No Knock" warrant and enlisted the assistance of the Hennepin County Sheriff's Emergency Services Unit, something supposedly reserved for high risk and/or hostage situations.

Judge Bransford described the execution of the search warrant in her memorandum as follows:
 
"The morning of the execution of the search warrant, 18 ESU officers and 10-14 task force officers were briefed. The 18 ESU officers then dressed in riot gear. There were no last minute changes to the plan. The 28 to 32 ESU and task force officers took pre-planned routes to the Residence. The streets were blocked off after waiting to make sure there were no school buses in the area. Since there was a front door and a side door on the Residence, ballistic bunker operators deployed flash bangs, which broke the windows, and then two battering rams were utilized to break the doors. Officers announced themselves by saying, "Sheriffs Office, search warrant," prior to breaking the doors. Several of the ESU officers carried M-4 assault rifles, while wearing military style vests and helmets. The rifles were pointed at the individuals found in the house. "Bear," a tank which holds a sniper, a driver and a cover team member, was used in the execution of the warrant."



During the course of the warrant's execution, "Officers located three adult males including Mr. Power and Mr. Delgado, two loaded handguns, and 221.59 grams of marijuana."

Cases like State v. Power in Minnesota and the Eleventh Circuit's decision in Berry v. Leslie
767 F.3d 1144 (11th Cir.), order vacated pending rehearing en banc, Berry v. Orange County, 771 F.3d 1316 (11th Cir. 2014), subsequently dismissed as moot, Berry v. Orange County,C.A.11 (Fla.)May 08, 2015785 F.3d 553, pose interesting questions for society concerning the use of military style tactics and equipment in civilian law enforcement and their legality.  With the increased scrutiny of police departments and rules of engagement including the use of lethal force one questions whether a militarized police presence is only contributing to the problem.

In the Phillipenes where they recently elected a President who ran on the promise of ending his country's drug problem, it is estimated that 10,000 people have died in just a matter of months at the hands of police and extra judicial killings all because of the exhortations of President Duterte.  Is this the trajectory we really want in the United States if God forbid, a demagougue like Donald Trump were elected?



1.
"The number of specialty police units--and the frequency of their use-- expanded in the 1980s to meet the needs of the war on drugs.15 Today, seventy-nine percent of SWAT team deployments  are for the execution of a warrant, most commonly in drug investigations.16"

Cadman Robb Kiker III, From Mayberry to Ferguson: The Militarization of American Policing Equipment, Culture, and Mission, 71 Wash. & Lee L. Rev. Online 282 (2015) citing
15
See Peter B. Kraska & Victor E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units, 44 Soc. Probs. 1, 7 (1997) (explaining that paramilitary police units (PPUs) expanded to being used for “high risk warrant work,” which is almost entirely drug raids).

Wednesday, August 31, 2016

Kirby Puckett's Perfect Game: August 30, 1987



I'll be up front with you, I'm not the biggest sports fan in the world.  Although I was born the same year that Minnesota got its professional baseball and football franchises, and was also the year that my alma mater University of Minnesota's Football program earned its last invitation to the Rose Bowl, (they won), the real sports enthusiasts in my family were my Dad and second to oldest brother.

Ever since the Vikings lost to the Chiefs in their first Super Bowl appearance I have tried not to let professional athletes control my emotional well being.  I say that and then comes the 1998 Vikings and their 15-1 regular season record and I get carried away and announce to an entire plane of strangers en route to New Orleans that the Vikings were going to avenge their 0-4 Super Bowl record only to lose the next day to Atlanta in the NFC Championship game.  So with that track record in mind I have tried my damned best not to give in to irrational exuberance, at least when it comes to the Minnesota Vikings.  Then we finally get a good head Coach in Zimmer and I start talking smack about the upcoming Viking season only to have Teddy Bridgewater go down with a season ending knee injury in a no contact drill.  At least they saved me a whole season of delusional hope.

However when it comes to irrational exuberance I do make an exception for one sports figure, Kirby Puckett. Puckett was to baseball what Sea Biscuit was to horse racing:  an underdog with the heart of a lion and the attitude of a champion.  In late August of 1987 I went on a motorcycle tour of breweries in Wisconsin with my friend Eric Strand from Ada, MN.  We were headed for Milwaukee to see 2 games of outdoor baseball with our surprisingly competitive Minnesota Twins.

After catching the first 2 games of the Twins vs. Brewers series (the Twins lost Friday night but won Saturday's game on the back of Puckett's 4 for 5, 2 Home Run performance), more beer drinking than I thought was humanly possible and an incredible meal at Three Brothers Serbo-Croation restaurant on Saturday night complete with oil sized cans of Bip beer, we were finally headed back home to Minneapolis.   I was nursing a humongous hangover when we rode by County Stadium.  For reasons known only to God, Eric unexpectedly waived me to take the next exit for what I thought was going to be a fuel stop.  When we reach the end of the exit ramp Eric announced he wanted to see if we could scalp a couple of tickets for the afternoon game.  Before I could get out my protest Eric roars off to the front of the stadium where scalpers gather.  Spotting 2 16-17 year old teens with what looked like hangovers rivaling mine and sporting brand new white Monkees concert tees from the previous nights concert we scalped their Daddy's 5th row box seats right behind the plate.  The rest as they say was history.  I was a witness to baseball history as Puckett tied the American League record hitting safely in 10 of 11 at bats in consecutive games with 4 of those hits home runs.

But as good as Puckett's performance was on Saturday, what followed next was the greatest athletic performance I have witnessed before or since.  Kirby Pucket batted 6 for 6 including two home runs, two doubles and 2 two-out RBIs on Sunday.

As if his offensive fireworks were not enough,in the sixth inning of Sunday's game, with the Twins leading 5-3, the Brewers loaded the bases and  Robin Yount was the next batter up.  Yount drills a high line drive to center, well over Puckett's head for what looks like a sure homer.  Puckett races back to the wall and at the last moment leaped so high, extending his arm until his glove was actually over the center field wall and snagged the ball robbing Yount of a grand slam and killing the Brewers' rally.  See the catch in the video above.

I still get choked up 29 years later as I write this, not only for his athletic accomplishments, of which there were many, not only because of the loyalty he showed to Minnesota and its fans but also for his indomitable spirit and the joy with which he approached not only the game, but life.  Thank you Kirby, you will always be loved and remembered not only as a talented athlete but as a truly good person.





Sunday, August 30, 1987
, County Stadium
Attendance: 22,417, Time of Game: 3:37


Twins
10
69-63
 Won 2 
1st
atBrewers
6
70-60
 Lost 2 
4th, 8 GB
W: Keith Atherton (5-4)
L: Chuck Crim (5-6)
S: Jeff Reardon (25)
1  2  3   4  5  6   7  8  9    R  H  E
                -  -  -   -  -  -   -  -  -    -  -  -
Twins           1  0  1   0  3  0   0  3  2   10 15  1
Brewers         0  0  0   3  0  3   0  0  0    6 11  1

Minnesota Twins


Glossary  · SHARE  · Embed  · CSV  · Export  · PRE  · LINK  · ?
BattingABRHRBIBBSOPABAOBPSLGOPSWPAaLIWPA+WPA-RE24POA
Al Newman DH-SS5121106.226.301.316.6160.0961.090.172-0.0750.900CS
Greg Gagne SS-RF6220016.272.306.431.7370.0181.310.150-0.132-0.500
Kirby Puckett CF6464006.328.365.523.8880.5621.300.5620.0005.7502·HR,2·2B
Gary Gaetti 3B5220116.260.307.505.8120.1241.290.206-0.0810.7112B,SB,IW
Tom Brunansky LF3000215.262.351.492.843-0.1141.920.083-0.197-0.521IW
Kent Hrbek 1B3001115.283.386.556.942-0.1722.470.031-0.203-2.160SF,GDP,IW
Mark Davidson RF3111013.270.336.344.6800.0431.480.128-0.085-0.110SB
   Randy Bush PH-RF1000001.241.327.388.715-0.0361.340.000-0.036-0.500
   Gene Larkin PH1012001.275.353.407.7590.3244.040.3240.0001.6
   Jeff Reardon P00000000.0000.000.0000.0000.010
Steve Lombardozzi 2B4010025.240.303.352.655-0.0400.990.044-0.084-0.2232B,HBP
Tim Laudner C3000215.191.259.411.670-0.0141.000.045-0.058-0.090
Frank Viola P00
   Juan Berenguer P00
   Keith Atherton P01
Team Totals40101597849.375.469.6251.0940.7911.451.745-0.9514.9276
2B: S Lombardozzi (17, off J Nieves); G Gaetti (29, off J Nieves); K Puckett 2 (28, 2 off C Crim).
HR: K Puckett 2 (21, 1 off D Plesac, 9th inn, 1 on, 2 outs, 1 off J Nieves, 3rd inn, 0 on, 1 out).
SF: K Hrbek (2, off D Plesac).
IBB: T Brunansky (5, by J Nieves); K Hrbek (9, by C Crim); G Gaetti (6, by C Crim).
HBP: S Lombardozzi (4, by J Nieves).
TB: K Puckett 14; G Gaetti 3; S Lombardozzi 2; A Newman 2; G Gagne 2; G Larkin; M Davidson.
GIDP: K Hrbek (11).
RBI: K Puckett 4 (77); G Larkin 2 (24); A Newman (26); K Hrbek (81); M Davidson (13).
2-out RBI: G Larkin 2; K Puckett 2; A Newman; M Davidson.
Team LOB: 12.
With RISP: 4 for 17.
Fielding
DP: 1. S Lombardozzi-K Hrbek.
E: G Gagne (15).
Outfield Assists: T Brunansky (G Braggs at 2nd base).
Baserunning
SB: G Gaetti (7, 2nd base off J Nieves/B Schroeder); M Davidson (8, 2nd base off J Nieves/B Schroeder).
CS: A Newman (8, 2nd base by J Nieves/B Schroeder).

Milwaukee Brewers


Glossary  · SHARE  · Embed  · CSV  · Export  · PRE  · LINK  · ?
BattingABRHRBIBBSOPABAOBPSLGOPSWPAaLIWPA+WPA-RE24POA
Paul Molitor DH4120105.361.440.5771.0170.1311.610.189-0.0580.7SB
Robin Yount CF3001125.313.382.475.8580.0521.960.163-0.1120.250SF
Glenn Braggs RF4031014.258.330.425.7550.1561.490.210-0.0540.820SB
   Rick Manning RF1000011.267.343.367.710-0.0571.910.000-0.057-0.310
Rob Deer LF4000145.246.369.486.855-0.1081.210.030-0.137-1.020
Greg Brock 1B5120005.294.361.438.7990.0171.050.085-0.068-0.060
Dale Sveum SS4110105.243.298.440.7380.1091.220.187-0.0780.9222B
Bill Schroeder C3113114.338.385.545.9300.0911.620.186-0.0950.772HR
Ernie Riles 3B4120004.265.324.351.675-0.0641.370.073-0.138-0.820
Juan Castillo 2B2100104.223.296.325.620-0.0341.520.058-0.092-0.403SH
Juan Nieves P00
   Chuck Crim P01
   Dan Plesac P00
Team Totals3461156942.324.415.441.8560.2931.441.181-0.8890.9278
2B: D Sveum (22, off F Viola).
HR: B Schroeder (10, off F Viola, 4th inn, 2 on, 0 outs).
SF: R Yount (5, off J Berenguer).
SH: J Castillo (10, off F Viola).
TB: B Schroeder 4; G Braggs 3; D Sveum 2; G Brock 2; P Molitor 2; E Riles 2.
RBI: B Schroeder 3 (33); G Braggs (61); R Yount (77).
2-out RBI: G Braggs.
Team LOB: 9.
With RISP: 3 for 14.
Fielding
DP: 1. J Castillo-D Sveum-G Brock.
PB: B Schroeder (3).
E: E Riles (9).
Baserunning
SB: G Braggs (10, 2nd base off J Berenguer/T Laudner); P Molitor (31, 2nd base off J Reardon/T Laudner).

Minnesota Twins


Glossary  · SHARE  · Embed  · CSV  · Export  · PRE  · LINK  · ?
PitchingIPHRERBBSOHRERABFGScIRISWPAaLIRE24
Frank Viola3.17332413.111836-0.2011.33-1.5
Juan Berenguer2.13321203.791110-0.1361.83-0.5
Keith Atherton, W (5-4)1.11002004.25611-0.0771.27-0.1
Jeff Reardon, S (25)20001305.207000.1221.181.1
Team Totals911656915.00423621-0.2921.44-0.9

Milwaukee Brewers


Glossary  · SHARE  · Embed  · CSV  · Export  · PRE  · LINK  · ?
PitchingIPHRERBBSOHRERABFGScIRISWPAaLIRE24
Juan Nieves4.210553515.252626-0.2531.25-1.6
Chuck Crim, L (5-6)2.13334103.881421-0.2861.74-1.2
Dan Plesac, BS (10)22200212.20933-0.2541.67-2.0
Team Totals9151087828.00492654-0.7931.45-4.9
C Crim faced 3 batters in the 8th inning.
Balks: None.
WP: None.
HBP: J Nieves (1; S Lombardozzi).
IBB: C Crim 2 (5; K Hrbek, G Gaetti); J Nieves (4; T Brunansky).
Pickoffs: None.

Other Info

Umpires: HP - Larry Barnett, 1B - Greg Kosc, 2B - Rocky Roe, 3B - Chuck Meriwether.
Time of Game: 3:37.
Attendance: 22,417.
Field Condition: Unknown.
Start Time Weather: Unknown.