[comp.org.eff.news] Search Warrants & Organizations

mnemonic@walt.cc.utexas.edu (Mike Godwin) (09/10/90)

Brian Yamauchi writes:

>Perhaps some net.legal.expert can answer a question -- can Steve Jackson
>(and other victims) sue the SS (and other agencies) for his losses?  If
>he does, what are his chances (assuming he and his employees are not
>charged/convicted)?

Based on what we currently know about the warrant, the chances are
not very good. In general, the Federal Tort Claims Act bars actions
against law-enforcement agents and agencies that cause harm to individuals
while executing a lawful warrant. For a cause of action to accrue
against, say, the Secret Service, it would have to be shown that the
SS went beyond the authorization of the search warrant when they sought
and seized all that property and paper and Steve Jackson Games.

Now, the warrant was sealed, which means that few people have had
access to the warrant itself and therefore few  can say whether the 
language of the warrant has been overstepped. But since very broad
search warrants have been held to be lawful in the past, I think the
odds are fairly poor that Steve Jackson Games will recover in tort
against the federal government.

It's still possible, however, that we may all be surprised on that
issue.


--Mike



Mike Godwin, UT Law School  |"If the doors of perception were cleansed
mnemonic@ccwf.cc.utexas.edu | every thing would appear to man as it is,
(512) 346-4190              | infinite."
                            |                 --Blake

bob@MorningStar.Com (Bob Sutterfield) (09/14/90)

In article <1990Sep10.012530.4008@cs.rochester.edu> yamauchi@granite.cs.rochester.edu (Brian Yamauchi) writes:
   In article <11522@medusa.cs.purdue.edu>, spaf@cs.purdue.EDU (Gene Spafford) writes:
      The seizure of equipment at Steve Jackson Games may well turn
      out to be a terrible abuse by Federal investigators.  

   Suppose this all turns out to be a big mistake -- is the SS going
   to be held responsible for repairing all the damage it has
   inflicted?  ...can Steve Jackson (and other victims) sue the SS
   (and other agencies) for his losses?  If he does, what are his
   chances (assuming he and his employees are not charged/convicted)?

About two years ago (exact references upon request, they're at home
and I'm at the office), a small civil airplane was proceeding under
Visual Flight Rules by a private pilot between two small Florida
airports.  During his landing rollout, the pilot found his craft
suddenly and uncontrollably flipping onto its back.  Upon extricating
himself from the fuel-soaked wreckage, he was glad to see men in
uniform nearby, and he began to approach them seeking assistance.

The men in uniform were Customs agents (another branch of the Treasury
department).  They had been closely following the small airplane,
without the pilot's knowledge, for some distance.  They had just
landed their helicopter near the small airplane, and the rotor wash
caused it to flip.  Thankfully, there was no fire.

The pilot was instructed to lie on the ground while his airplane was
thoroughly searched.  When no drug-related contraband was found, the
agents bid him farewell and departed.  The aircraft was destroyed - a
total loss, useful only for component salvage.

When the pilot tried to sue the Customs Service for the damages caused
to his airplane, he was denied permission.  His insurance company
declined to pay because the damage was the result of government
action.

The main difference that I (a pilot, but not a lawyer) can see between
the airplane-flipping incident and SJG's is that, so far as I know, SJ
was never in mortal danger.

tenney@well.sf.ca.us (Glenn S. Tenney) (09/26/90)

[If there is an alias for eff.news, I don't know it. Sorry.]

Mike Godwin states that the Federal Tort Claims Act bars actions against
the federal government in cases like Steve Jackson's.  I don't have either
the knowledge or the inclination to disagree.

(pre-disclaimer. I'm not a lawyer.)

It seems to me that you could make a good case that this makes the FTCA
unconstitutional, on the grounds that it _effectively_ destroys all
protections under the first, fourth, and various other amendments. Now
I don't know the history of decisions based on effect rather than intent,
but here's one _very significant_ case: Brown v. Board of Ed. (I think
you're all familiar with that one :-).

Specifically, while the intent of segragation was (according to its
proponents and apologists) not to violate the constitution (I mean both
the original document and the amendments), its practical effect undoubtedly
violated many rights.

Also, those of you who followed the Souter nomination hearings may recall
his discussion of Miranda.  (I must say I found his comments, on this and
other issues, to be tremendously encouraging.)  He stated that the court
had _not_ created a new right, but rather that it enacted a _practical means
of protecting_ a pre-existing right. Striking down the FTCA (or various
sections?) would be a much less proactive example of this same philosophy.

Clearly, Souter's is not the only opinion, and it may not even be commonly
held. But _I_ certainly like it. :-)

---
Alexis Rosen
cmcl2!panix!alexis

ps- If Mike (or anyone else) knows for a fact the history of this type of
view, I'd love to hear about it.