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On Behalf of | Jul 16, 2018 | Firm News

The film and play A Man For All Seasons depict the final years of Sir Thomas More, the 16th-century Lord Chancellor of England who refused to sign a letter asking Pope Clement VII to annul King Henry VIII of England’s marriage to Catherine of Aragon and refused to take an Oath of Supremacy declaring Henry VIII Supreme Head of the Church of England.  There is a scene in the movie where Thomas More is told he should have arrested a man who broke no law but was “dangerous and bad.”  When More says he cannot arrest the man for those reasons, More was asked about the proposition that the devil should be given the benefit of Man’s law:

WILLIAM ROPER: So, now you give the Devil the benefit of law!
SIR THOMAS MORE: Yes! What would you do? Cut a great road through the law to get after the Devil?
ROPER: I’d cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

I have never heard a better justification for rejecting the idea that to enforce the law, we should turn a blind eye to when police lie, cheat steal or do worse all in the name of law enforcement.  To those who accept this, the ends justify any means.

Unfortunately, police officers routinely exploit your ignorance when there is a police-citizen encounter.  It is not always as blatant as the above scenario.  Here are examples of deception used by police that is judicially approved:


A good example of this when a police officer asks you questions during a routine traffic stop for speeding (for example).After you hand over your driver’s license, registration and proof of insurance, the police officer will likely chat with you and asking questions before or after your driver’s license is being “run.”If you are operating a motor vehicle and a cop pulls you over for speeding, he can ORDER you to show your driver’s license, registration and proof of insurance.Her REQUEST for you to engage in further conversation is used by the officer to determine if you are intoxicated or anotherr crime has been committed.The point is, you do not have to talk to officer after or before being arrested.Simple refusal to talk cannot serve as a basis for detention or seizure.“[Florida v. Bostick, 501 U.S. 429, 437 (1991).See also Florida v Royer, 460 US 491, 497-98 (1983) (“The person approached . . . need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.”)

A person in a free America on the street does not have to speak to the police since “the Fourth Amendment itself cannot require a suspect to answer questions” without Hiibel v. Sixth Judicial District Court of Nevada,542 U.S. 177reasonable suspicion that Hiibel had committed a crime)Kolender v. Lawson, 461 U.S. 352, 360-62 (1983) (holding that requiring a detained citizen to provide “credible and reliable” identification gives too much discretion to police officers without an identifiable standard, making it unconstitutionally vague); Brown v. Texas Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969) (“While the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.”)In Martiszus v. Washington County, 325 F. Supp. 2d 1160, 1168-70 (D. Or. 2004), the court held that refusing to provide identification, standing alone, is insufficient justification for a Terry stop. In United States v. Henderson463 F.3d 27, 46-47 (1st Cir. 2006), the court found that an officer could not demand a driver’s identifying information “for reasons of officer safety” when the officer did not perceive any danger, there was no reasonable suspicion that the defendant was engaged in any illegal activity, the stop was not in a dangerous location, and the traffic violations for which the defendant was pulled over for did not “raise the specter of illegal activity.”

Let me be clear: do not be a jerk or rude to the cop on the street.Only that the time to challenge what the police do is not on the street but in court.

Although it’s not directly at issue, it might be helpful to point out a similarly widespread but mistaken belief that officers must read arrestees their Miranda rights. There is no right to be read Miranda rights on arrest. Miranda merely impacts what statements are admissible in response to police questioning after arrest or its functional equivalent. If the police don’t want to question the person, or if they want to question the person but either don’t want to use the statements at trial or they think one of many exceptions to Miranda will apply, they are free not to read the suspect Miranda rights. See generally Chavez v. Martinez, 538 U.S. 760 (2003)
Another situation is when the police stop by to talk to you or someone in your house and ask to enter your house.The police and come to your door and make this REQUEST.However, without a warrant to enter the house, the police cannot ORDER you to allow them into your house.A search warrant is an order, signed by an impartial magistrate, permitting a law enforcement officer to search a particular location for a particular piece of evidence. The warrant clause of the Fourth Amendment sets forth the standard for the issuance of a warrant:
No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
The warrant requirement’s rationale is that the search of an individual, his home, or his possessions by the government is an intrusion of such magnitude that before the search is permitted to occur, the reasons for it should be carefully scrutinized by an impartial magistrate.Thus, in the normal course of events, where no exigency exists,and no other exceptions to the warrant requirement apply, the law requires the police to present their information to an impartial magistrate in the form of a warrant application before conducting the search. In other words, a citizen’s home is her castle and cops should stay out!


Imagine you have been arrested for sexually assaulting someone the day before.The police take you into a small brick room with no windows where your legs and arms remain chained.A detective comes in and is pretty nice to you offering cheetos and a soda.The detective says she is worried.She says the cops have done a search an examination of the scene and the crime lab found your DNA and fingerprints at the scene.She wants to help you so the prosecutor goes easy on you by just telling her how you were involved in the offense.

More than likely the cop is lying about those forensic science results.Wisconsin crime labs are terribly backed up so for the crime lab to have your DNA and fingerprint results the next day is all but impossible. Nevertheless, if you start talking based on this lie, courts will allow your statement to be used in court.The use of trickery and deception in the questioning of criminal suspects is an undisputable foundation of law enforcement practices.Police practice a variety of deceptive techniques, masterfully designed to psychologically coerce a suspect to confess. Fake tests is one form of acceptable lie according to courts.

For instance, in People v. Mays, 95 Cal. Rptr. 3d 219, 223 (Ct. App. 2009) theCalifornia Court of Appeal considered whether a fake polygraph examination, with fabricated results indicating that the subject failed, constituted coercion so that a juvenile suspect’s statement should not be used in court. The court ruled that thismethod of interrogationdid not coercea juvenilesuspect to make subsequent incriminating statements.

Police interrogation manuals provide another general overview of the types of tactics included in the definition of trickery. These interrogation manuals instruct law enforcement officers on how to effectively elicit confessions from suspects through the use of a variety of deceptive techniques. The leading interrogation manual is Criminal Interrogation and Confessions by Fred E. Inbau, John E. Reid, and Joseph P. Buckley, which details a deceptive nine-step interrogation plan. The nine steps are strategically designed to reduce the suspect’s reluctance to confess while simultaneously increasing the suspect’s desire to tell the truth. In general, this plan relies heavily on the exploitation of the inherent power differential between the accused and the police. Scholars have emphasized that Inbau, Reid, and Buckley’s nine-step plan is inherently deceptive. The plan involves either frightening or tricking the suspect into a confession, using such tactics as offering false sympathy, blaming the victim, offering excuses, or minimizing the seriousness of the charges.

As federal court in 1998 put it, police tricky is a regrettable but frequent practice of law enforcement that is not unconstitutional.


Attorney General Jeff Sessions announced the reversal of former Attorney General Eric Holder’s policy to curb law enforcement seizures of people’s property. The Department of Justice (DOJ) is not only expanding the use of civil forfeiture at the federal level, but at the local level through partnerships that allow profit sharing among federal and local police departments.Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.

Forfeiture was originally presented as a way to cripple large-scale criminal enterprises by diverting their resources. But today, aided by deeply flawed federal and state laws, many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting. For people whose property has been seized through civil asset forfeiture, legally regaining such property is notoriously difficult and expensive, with costs sometimes exceeding the value of the property.
As reported by the National Review, one Philadelphia couple had their entire house seized after their son was arrested for selling $40 worth of heroin out of it without their knowledge, while an aspiring musician recently lost $16,000 in cash when he was stopped on an Amtrak train on his way to Los Angeles, on mere suspicion that the money was connected to drug activity. In theory, forfeiture is supposed to proceed on the basis that law enforcement can demonstrate a nexus between such property and the commission of a crime on the part of the owner, and so legitimately deprive them of their ill-gotten gains. However, in these and many other instances, such connection is never actually proven in court. Instead, due to a legal oddity in which the property itself is said to have “committed” the crime, not the individual, law enforcement is able to take and keep it under far fewer legal hurdles than would exist if the owners were charged themselves.

The National Review explains that civil forfeiture is a major source of non-appropriated revenue for government at all levels, as a 2015 report from the Institute for Justice highlights. Annual deposits into the Justice Department’s Asset Forfeiture Fund reached $4.5 billion in 2014, with only 13 percent of such forfeitures coming after criminal convictions. Annual forfeiture revenue more than doubled across 14 states between 2002 and 2013.The money derived from the Drug Enforcement Administration’s profiling efforts are no less staggering. According to USA Today, federal drug units attached to 15 of the nation’s largest airports seized over $209 million from at least 5,200 people over the last decade. Such seizures don’t necessarily ever see the inside of a courtroom. As the report details, people are usually just given a receipt and sent off to ponder how light their wallet suddenly feels — all without so much as an arrest.


If you are old enough, you may remember the true life account of what happened to NYPD officer Frank Serpico who blew the whistle on police corruption, became an instant pariah and eventually was set up for the kill. But officers don’t have to envision themselves getting the extreme Serpico treatment for finger pointing abusive officers to know that their stock would plunge beneath the floor among other officers if they were tagged a stoolie by other officers.

There is a “code of silence” that exists in most police departments.“Emotions run high in closing arguments: McCann points to cover-up; defense points out holes” Milwaukee Journal Sentinel April 13, 2006; “Police officers at scene of brutal beating deny seeing any violence” COURT TV by Emanuella Grinberg, April 3, 2006 (“code of silence,” according to Milwaukee County District Attorney Michael McCann, relates to the bond among officers to cover each other’s backs”); “McCann says testimony of 2 officers reflects ‘code of silence’ in Jude beating: The jury returns.”Milwaukee Journal Sentinel April 1, 2006.See also, Bryant v. Whalen, 759 F. Supp. 410, 424 n. 7 (N.D. Ill. 1991); Spell v. McDaniel, 824 F.2d 1380, 1393 (4th Cir. 1987) (officer testified that code of silence covered up incidents of excessive force).This culture of silence can create a problem when complaining about police misconduct.

So what happens when the wall of silence meets the need of a citizen to complain about the actions of a police officer?How do you get help?Depending on the department it might not be easy.While police departments are supposed to have easily accessible complaint forms, according to an investigation in 2005, police departments from Brookfield, Germantown, Greendale, New Berlin, Racine, Wauwatosa, and Whitefish Bay were very accommodating to citizens who wished to file complaints about the conduct of a police officer.

Other departments, like Kenosha and Waukesha make a citizen who wishes to file a complaint feel intimidated.In Milwaukee, it depended on what district police station you went to.

The problem is that few police departments pound this point home to rank and file officers or for that matter to their superiors. Put bluntly, telling them and continuing to tell recruits at the academy, officers in orientation and training sessions, and in their performance evaluations that the department has zero tolerance toward police misconduct. That if an officer witnesses it they are duty-bound to report it. If they don’t they are just as guilty of law breaking as the cop that breaks the law. The blue code of silence makes it possible for bad cops and bad administrators to get away and keep getting away with abusive act.

But there is more.Contracts between police and city authorities, leaked after hackers breached the website of the country’s biggest law enforcement union, Fraternal Order of Police (FOP), contain guarantees that disciplinary records and complaints made against officers are kept secret or even destroyed.The documents date back almost two decades and include agreements from unions such as the Policemen’s Benevolent Association and the International Brotherhood of Police Officers. Many contain numerous recurring clauses that slow down misconduct investigations, prevent public access to complaints and disciplinary records, and enable the destruction of complaints and disciplinary records after a negotiated period of time.

Racial disparity runs through the criminal system from arrest to disposition of the case.  The Greater Milwaukee Human Rights Coalition in its Response to the Periodic Report of the United States to the United Nations Committee on the Elimination of Racial Discrimination (Feb. 2008) stated:

Racial discrimination and disparities are apparent within the criminal justice system in Wisconsin. This report explores recent incidents of police brutality and misconduct against people of color in the Milwaukee area. In addition, African Americans are incarcerated at much higher rates in the state than non-Hispanic whites,1 likely due largely to racial profiling and racial disparities in prosecuting and sentencing. As a result, poor prison conditions disproportionately affect people of color. Moreover, the State of Wisconsin’s low indigency threshold to qualify for public defense also has a disparate impact on minorities.[i] Disfranchisement of individuals with felony convictions who have completed their prison terms also occurs at a disparate rate for people of color.  Response to the Periodic Report of the United States to the United Nations Committee on the Elimination of Racial Discrimination, Executive Summary, p.1

Further, the Greater Milwaukee Human Rights Coalition found that “Wisconsin has the second highest African American incarceration rate in the US—4,416 per 100,000 African Americans in the state are incarcerated. Wisconsin also has the fifth highest black-to-white ratio of incarceration at 10.6 to 1.”  Id at 5.  The Greater Milwaukee Human Rights Coalition Report went on to detail that discrimination in the Wisconsin Criminal Justice System exists in three areas: minority arrest rates, discrimination in prosecution of cases and discrimination at sentencing.  Id.  Regarding discrimination based on felon disenfranchisement, the Coalition found the policy “policies have a disparate impact on African-American voters. One out of nine African-American voters is disfranchised in Wisconsin compared to one out of fifty voters overall.  African Americans comprise 39 percent of the disfranchised population, even though they make up only 5 percent of the voting population.  In June, a bill was introduced in the Wisconsin legislature which, if passed, would restore the right to vote to those who have completed their term of incarceration for an offense.”  Id. at 8.  See also, Mauer and King, Uneven Justice: State Rates of Incarceration by Race and Ethnicity, Sentencing Project (July 2007), p.3 (States with the highest black-to-white ratio are disproportionately located in the Northeast and Midwest, including the leading states of Iowa, Vermont, New Jersey, Connecticut, and Wisconsin.  Further, Wisconsin and Vermont which have high rates of black incarceration and average rates of white incarceration) and p. 10 (An examination of the ratio of black-to-white incarceration rates by state illustrates not only the heightened use of imprisonment for African Americans, but also regional differences in how incarceration policies produce disparities. While the national black-to-white ratio of incarceration is 5.6, among the states the ratio ranges from a high of nearly 14-to-1 in Iowa to a low of less than 2-to-1 in Hawaii.13 In seven states – Iowa, Vermont, New Jersey, Connecticut, Wisconsin, North Dakota, and South Dakota – the black-to-white ratio of incarceration is greater than 10-to-1.)

The Wisconsin Office of Justice Assistance, a division of the Wisconsin Department of Administration, confirms the perception that racial disparities are found throughout the Wisconsin criminal justice system from arrest to sentencing:

Various national and state reports have documented and quantified Wisconsin’s growing disparity between white and minority citizens in the criminal justice system.  A report recently issued by the Human Rights Watch and the national Sentencing Project showed that African-Americans received prison sentences for drug crimes 42 times more frequently than whites.  And in Wisconsin’s prisons, nearly half of inmates are African-American, yet Blacks represent just 6 percent of Wisconsin’s population.  Racial disparities permeate the entire criminal justice continuum, in the number of arrests, cases charged, sentences and probation and parole revocations.  In some offense categories, like drug arrests and minor offenses, the disparity is more pronounced, while in others, like sentences for serious offenses, the disparity is reduced.  Racial Disparities  Emphasis added.

The Sentencing Project found that the rate of arrests of white Milwaukeeans for drug offenses decreased 63% from 1980 to 2003. Yet the rate of arrests of black Milwaukeeans increased 206% during those same years. The authors found no corresponding increase of drug use among African Americans to explain the changes in arrest rates. Instead, they conclude that the policies of the War on Drugs have disproportionately targeted African Americans.  Ryan S. King, Disparity by Geography: The war on Drugs in America’s Cities, The Sentencing Project (May 2008)  Likewise, Human Rights Watch found that African Americans in Wisconsin are 42.4 times more likely than whites to be incarcerated for drug offenses–the most disparate ratio in the nation.  Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs, Vol. 12, No. 2 (May 2000),  Emphasis added.

It has been determined that people perceive African Americans are arrested in Wisconsin based not on what they may have done wrong but their race.  Ten years ago a state racial profiling task force issued a 105 page report that recommended police start collecting racial profiling data.  Governor’s Task Force on Racial Profiling, Report 2000,  The Task Force defined racial profiling is “[a]ny police-initiated action that relies upon the race, ethnicity, or national origin of an individual rather than the behavior of that individual, or information that leads the police to a particular individual who has been identified as being engaged in or having been engaged in criminal activity.” Report 2000, at p. 79.  The report, prepared by a 17-member task force, chaired by Milwaukee County Judge Maxine A. White, was created by former Gov. Tommy G. Thompson.  Report 2000, Executive Summary at 1. The Report set forth sufficient anecdotal evidence of racial profiling existing in Wisconsin to cause Gov. Scott McCallum to sign his first executive order, requiring all law enforcement agencies in the state to ban the controversial practice and to carry out the report’s recommendations.  Mark Johnson, “Governor bans racial profiling” Milwaukee Journal Sentinel, March 7, 2001.  Effective January 1st, 2011, all Wisconsin law enforcement officers will be required to collect data at traffic stops that will be used to determine whether vehicles operated or occupied by racial minorities are disproportionately stopped.  Traffic Stop Data Collection

Officers who are accused of disproportionately targeting African‑Americans or other minorities typically defend their conduct by citing statistics that show higher rates of crime and arrests among minorities. See, “Developments in the Law‑‑Race and the Criminal Process, Racial Discrimination on the Beat: Extending the Racial Critique to Police Conduct,” 101 HARV. L. REV. 1494, 1496 (1988) (“[P]olice defend the use of race as a basis for forming suspicion precisely because of racially disparate arrest patterns: because members of racial minorities commit more crimes, police argue, it is not invidious discrimination to treat minorities differently.”).

Such argument are reminiscent of those advanced in Brown, supra., to justify segregated schools.  The questionable tendency to seek justification in disproportionate arrest statistics has had the unfortunate effect of perpetuating a fallacy, generating more unbalanced arrest patterns that consequently provide a basis for continued selective enforcement.  101 HARV. L. REV. at 1508-09.  This creates a “separate but equal” criminal code- one for blacks and one for whites.  Thus a Presidential Council recently concluded:

Discriminatory behavior on the part of police and elsewhere in the criminal justice system may contribute to blacks’ high representation in arrests, convictions, and prison admissions. Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin (Council of Economic Advisors For the President’s Initiative on Race, September, 1998) 57.

The problem of the self-fulfilling prophecy and profiling was recently addressed by the Attorney General of the State of New Jersey.  Attorney General Peter Verniero, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling, (April 20, 1999)(Verniero Report).  After first explaining that racial profiling is a national problem, the report demonstrated the tautological nature of using proactive arrest numbers:

[S]ome law enforcement executives have argued that it is appropriate for police officers on patrol to rely upon racial characteristics provided that objective crime trend analysis validates the use of these characteristics as risk factors in predicting and responding to criminal activity…Many of the facts that are relied upon to support the relevance of race and ethnicity in crime trend analysis, however, only demonstrate the flawed logic of racial profiling, which largely reflects a priori stereotypes that minority citizens are more likely than whites to be engaged in certain forms of criminal activity.  This form of scientific analysis, in other words, is hardly objective… some of the numbers they rely upon are self-selected and thus inherently misleading.  Verniero Report at 65, 66.
The Verniero report proceeds to explain that the fact that a disproportionate percentage of drug arrests are minorities does not mean that any particular minority citizen is more likely than a non-minority citizen to be committing a drug offense. Verniero Report at 67-70.  The report than states:

To the extent that [] police and other law enforcement agencies arrest minority motorists more frequently based on stereotypes, these events, in turn, generate statistics that confirm higher crime rates among minorities, which in turn, reinforces the underpinnings of the very stereotypes that gave rise to the initial stops.  In short, police officers may be subjecting minority citizens to heightened scrutiny and more probing investigative tactics that lead to more arrests that are then used to justify those same tactics.  This insidious cycle has served to create an ever-widing gap in the perception of fairness that persons of color and whites have about law enforcement and the criminal justice system…[U]sing profiles that rely on racial or ethnic stereotypes is no better, and in many respects is far worse, than allowing individual officers to rely on inchoate and unparticularized suspicions or hunches. Verniero Report at 70-72.

Wisconsin’s Racial Disparity Commission draws a conclusion similar to the Verniero report: “[S]erious concerns were expressed that enforcement strategies that target particular neighborhoods or that target open-air drug trafficking are not productive.”  Commission on Reducing Racial Disparities in the Wisconsin Justice System, Final Report, Prologue, p. 2.  Likewise, the Wisconsin Sentencing Commission found that “[to the extent that police focus on high-crime neighborhoods, and to the extent that such neighborhoods also happen to be disproportionately minority, arrest over-estimates minority participation in criminal activity.”  Wisconsin Sentencing Commission, Race and Sentencing in Wisconsin: A Monograph Series p.13 (November 2004),

You may respond with a shrug of the shoulders while saying “So what?” about police using deception to enforce the law.  The so what about police approved deception was answered by a story told by President Obama.  During World War II, London was being bombed to smithereens, and had 200 or so detainees. Asked whether the detainees would be subjected to torture to get some answers, Churchill said, “We don’t torture,” when the entire British — all of the British people were being subjected to unimaginable risk and threat.  Churchill understood, that if you start taking short-cuts, over time, that corrodes what’s — what’s best in a people. It corrodes the character us as a people.  It may be harder, but part of what makes us, I think, still a beacon to the world is that we are willing to hold true to our ideals even when it’s hard, not just when it’s easy.