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Search warrants gone wrong · Cultural Wars | America Out Loud News

• 0:11
  Helping to secure the blessings of liberty to ourselves and our posterity.
• 0:15
  This is the Constitution Study on the America Out Loud Network with your host, Paul Engel.
• 0:31
  We probably all know that the Fourth Amendment protects our right to be secure from unreasonable searches and seizures.
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  We also know that law enforcement generally needs a warrant before they can search your property.
• 0:43
  But what happens when those search warrants go wrong?
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  Hello there, everyday Americans.
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  Paul Engel here with the Constitution Study, where we read and study the Constitution, teach the rise in generation to be free.
• 0:55
  Glad you could join us today.
• 0:56
  You know, we're going to spend the day talking about, well, primarily the Fourth Amendment.
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  And this idea of reasonable searches and seizures.
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  What makes a search or seizure reasonable?
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  And you know, it's one of those things that can often be difficult to define, right?
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  Because something many people think, and I've seen plenty of dictionaries define a reasonable search, is what a reasonable person would find reasonable, which I was taught in English class, you don't define a word by using the word.
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  So there's that whole question.
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  But most people recognize, right?
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  If the police have a warrant, they can search, but does that warrant have limitations when it comes to the search?
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  Not just in where they can search and what they can search, but how that search warrant is executed.
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  Now, I want to get into this a bit more.
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  I'm going to start actually with a case that were where oral arguments were recently heard at the Supreme Court.
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  And the case is Chattery versus the United States.
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  And it gets into the question of these, what are called the geofense warrants.
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  Now, most of you are walking around with a tracking device on.
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  It's your cell phone.
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  It's a tracking device.
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  For one thing, yeah, we all know it's got GPS in it.
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  We use it to get directions, but even the use of the phone, when the phone is turned on, the way it works is it's looking for cell towers.
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  And you know, there the cell towers are generally close enough that more than one cell tower knows um uh about the phone, and from that can figure out exactly where you are, or at least with a certain uh uh a certain amount of error.
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  Add to that the requirement that GPS be included for 911 emergencies, and your cell phone is telling your phone company exactly where you are as long as it is turned on.
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  And this is of course become an interesting question of privacy and reasonableness for searching of this data.
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  Now, the the plaintiff here in O'Kellow Chattery, uh, he complains that well, the government got what's called a geofense warrant.
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  What's a geofense water?
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  Well, picture a map and then draw a line or somewhere on that map that encloses an area.
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  Well, a geofense warrant is the digital version of that, and it says, I want information about every cell phone that was in this area during this time period.
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  In other words, remember, for a warrant to be valid, it must specify the the uh place to be searched and the thing searched for.
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  So, you know, when when the police say, I, you know, I want to know what's going on.
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  Um, you know, they're looking for cell phones in this area.
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  Now, the problem is for Mr.
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  Chattry, is apparently he was in the process of robbing a bank and he was carrying his smartphone.
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  Okay, I no one ever said the criminals were smart, right?
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  But he told the court that when the government used these geofense warrants, it violated his Fourth Amendment or his rights protected by the Fourth Amendment.
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  Now, the government, on the other hand, said, well, wait a second, it's not a Fourth Amendment violation because it wasn't Mr.
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  Chattery's data.
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  This was data that was provided by a third party voluntarily by a third party party such as Google.
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  Now, according to reports in 2019, um law enforcement sought and and received a geofense warrant from a state court seeking anonymized location data for devices within 150 meters of the bank robbery.
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  The but at this point, the data has no idea who the cell phone belongs to.
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  It just says I've got cell phones in this in this area.
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  The the owner should be anonymized.
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  Now, Google complied with this request.
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  In other words, they the data was coming from Google.
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  I'm guessing this guy has an Android phone.
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  It was tracking his location.
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  They issued the warrant to Google.
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  And this is one of the tricky areas here because this is not um Mr.
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  Chatter's data, this is Google's data.
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  Uh, so they they look for that data.
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  They then uh asked for a longer period of time, uh total of two hours, without an additional warrant.
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  And again, Google provided the data.
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  Then again, without seeking an additional warrant, they the investigators asked Google for de-anonymized subscriber data for three devices.
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  And again, Google complied.
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  Now, one of those three devices belonged to Mr.
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  Chattry, and based on that information, he was eventually convicted for armed robbery.
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  Now, even though Chattree confessed, his lawyers argue that the geofense evidence should be tossed out of court because the warrant deprived him of his Fourth Amendment rights, which guarantee the right to be secure from unregulational searches and seizures, right?
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  That was the basis of the argument.
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  I haven't gone into oral arguments yet.
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  I'm I'm gonna do it probably a deeper dive.
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  I haven't gotten to it yet.
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  But it's an interesting, there's a couple of interesting questions here because again, you're protected in your persons, houses, papers, and effects.
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  So your effects is your stuff.
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  Now, the question is is information about your location, in other words, information that your phone is sending back to some provider like Google.
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  Is that your data?
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  Or is that Google's data?
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  In other words, you voluntarily, when you signed up for uh your services, you volunteered to provide location data to Google.
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  Now, once you've provided that data, that's considered the third party exception.
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  That's what the courts have come up with that well, once you hand your data over to a third party, you no longer have Fourth Amendment protections if that party voluntarily hands over the data.
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  And that's where we're starting to get that that's where you know the Constitution can be amended to deal with changes over time.
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  The Constitution can be amended to deal with changes over time.
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  And you know, things have changed.
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  And you know, things have changed.
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  You know, it's no longer walking around simply with papers.
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  You know, it's no longer walking around simply with papers.
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  There's so much data about you that's collected.
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  There's so much data about you that's collected.
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  It's one of the reasons why I think we need an amendment to amend the fourth the fourth amendment to include data about you, but that's sidebar.
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  It's one of the reasons why I think we need an amendment to amend the fourth the fourth amendment to include data about you, but that's sidebar.
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  But I do have a couple of issues here.
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  But I do have a couple of issues here.
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  So the officers sought a warrant to get data from Google.
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  So the officers sought a warrant to get data from Google.
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  I'm glad they sought a warrant.
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  I'm glad they sought a warrant.
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  I'm glad they didn't just send us.
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  I'm glad they didn't just send a subpoena.
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  They sent a warrant.
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  That was good.
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  But you see, then they asked for more data without getting an updated warrant.
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  I haven't read the warrant.
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  But if the warrant says that Google's supposed to provide data for half an hour or an hour, and then suddenly say, well, we want a two-hour period.
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  Well, that goes beyond the warrant.
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  But that brings into the question well, isn't this Google's data?
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  They can do with that data whatever they wish.
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  And Google has no true benefit from protecting the rights of Mr.
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  Chatry or any of us.
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  But then it went farther, right?
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  Because not only did they simply expand the time frame, they then asked for de-anonymized data for three devices again without a warrant.
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  And I think that's where the court may see some issues.
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  They got a warrant for the initial data.
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  They expanded that without a warrant.
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  That's iffy.
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  But now you're asking for personalized information, personally identifiable information without a warrant.
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  In other words, you're not looking for who was in this area.
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  You're looking for information about the owners of three devices.
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  That becomes more personal.
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  That becomes I'm, you know, you're I want to know where this person was.
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  And they did that without a warrant.
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  Now, if the data developed by the first two searches said that, well, these three people, we have a reasonable suspicion that one of or more of these three people may have been involved in this bank robbery, and they can show probable cause, supported by oath or affirmation that one of these three people we believe is the is the uh the perpetrator.
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  Why not go back and get a warrant saying we want detailed information on these three people because you've transitioned from general anonymous data to you're searching for a person?
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  You're searching for the one for searching for devices to searching for a person.
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  So when I get into the oral argument, that that's going to be what I'm kind of looking for.
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  Does the court make a distinction between anonymous data about people or devices specifically, and then personal data about the owner of those devices.
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  That again, that to me is where the the issue may ultimately reside.
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  And we'll we'll have to wait and see because I haven't dug dug into the oral arguments.
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  And of course, we're gonna have to wait for a decision later in the year by the court, but for now, um, to me, this is an interesting because it goes back to this third party doctrine, uh, which actually went back to uh old-fashioned telephones and uh bank records, where the court said, listen, nobody has a nobody believes they have any anonymous information, any sense of privacy for their their the use of their checking accounts, which I find absolutely ludicrous because I bet you that that judge would have that justice would have been all bent out of shape if he found out people were poking through his bank records.
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  But uh again, a a case where the court I think went too far.
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  I I see some of the logic, right?
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  I see the idea of I want anonymous data about devices in this area.
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  Use that to generate probable cause to say I'm looking for the owners of those of these certain devices.
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  That should be a separate warrant.
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  And in my opinion, that is what the constitution requires.
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  We'll have to wait and see if that's what the courts believe.
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  But this is not the only example of um search warrants going gone wrong.
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  I mean, we've seen it on the news, right?
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  Where the police barge into the wrong home and uh often with terrible, even lethal effects, they're serving a search warrant, but they're you know, they're they're they're Terrence Circle instead of Terrence Place.
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  You know, simple, honest mistakes that often have devastating effects.
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  And um, there was one that happened a couple of years ago that um, well, I think it's take it's worth taking a deeper look at because what we have in my mind is the abuse of a search warrant, where a search warrant was the way it was executed, deprived people of well, in one case their life, certainly their liberty and their property without due process of law, where the the one man was killed and his wife was detained in a way that they the police had a warrant, but the way they executed the warrant to me goes far beyond reason.
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  It goes far beyond uh expectations and to me delves into the point of criminality.
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  Now, I was approached by uh um a Bud Cummins, who's an attorney for the Milanowski family, the victims of this uh Bureau of Alcohol Tobacco Farms and Explosives raid.
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  Uh, Mr.
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  Melanowski was killed.
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  His wife was illegally detained, and of course, her life was destroyed as well.
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  He reached out because there are actually senators in Arkansas that have sent a letter to the president of the United States to look into an investigation into what happened to initiate an investigation.
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  Because, according to Mr.
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  Cummins, this the ATF is stonewalling.
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  They're not, they're not processing this, they're not dealing with this complaint honestly, fairly, justly.
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  And he approached the Constitution, said, Hey, would you like to hear about this?
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  Would you like would your audience be interested?
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  And I think you will.
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  And it turned into uh one of my longer interviews.
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  And I think there's a lot of information that was covered.
• 13:35
  I think there's a lot of good information here, and I will bring you that interview right after this break.
• 13:41
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• 18:46
  So before we get into that, Bud, um tell my audience a little bit about yourself and why we you got into this particular situation.
• 18:55
  Well, I think my most relevant resume credential is I'm a former United States attorney, and that is you know, probably the highlight of my career, honestly, is the five years I served as a United States attorney.
• 19:09
  And but uh in the 20 years since I've been pulled into, you know, a number of controversies involving DOJ cases I worked on that involved uh uh political weaponization, uh heavy-handed prosecution and even misconduct by federal agents and prosecutors.
• 19:34
  Uh I'm still a very pro-law enforcement guy, very pro-DOJ, but uh I think that there's been some real problems there.
• 19:43
  And and uh I'm very I spent a lot of time advocating for some reform within DOJ.
• 19:50
  You know, I I like to say the FBI has earned the bad reputation it received, but not everybody.
• 19:56
  I mean, I I tell a story.
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  I had you know two FBI agents at my house at my front door.
• 20:03
  They were professional, they were very professional, and I have nothing but I only wish I knew their name so I could give them proper credit.
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  But uh, you reached out to me dealing with an incident from 2024.
• 20:15
  Um tell us a little bit about uh uh what happened to Brian and Maria uh Malankowski.
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  Yeah, it's uh Malinowski.
• 20:24
  You have to take a little practice to pronounce that.
• 20:27
  But uh in 2000, Brian Malinowski was the director, longtime director of the Little Rock Airport.
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  Uh was very well respected.
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  Uh our airport performed very well, was one of less than uh a dozen in the country that was debt-free.
• 20:44
  Uh so he was recognized as a as a good operator, a good executive in a highly regulated space.
• 20:51
  Uh he and his wife were married almost 30 years, uh, had no children, and he was kind of a hobbyist.
• 20:59
  He collected coins.
• 21:00
  He he uh uh he and his wife like to do yard sales and things, but it was a hobby.
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  He he uh uh he and his wife like to do yard sales and things, but it was a hobby.
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  He made he was the highest paid city of Little Rock employee, made over 260,000 a year.
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  He made he was the highest paid city of Little Rock employee, made over 260,000 a year.
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  He in recent years, his father had given him basically the family collection of firearms, and he got interested in firearms.
• 21:12
  He in recent years, his father had given him basically the family collection of firearms, and he got interested in firearms.
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  And Brian was kind of a wonk.
• 21:20
  And Brian was kind of a wonk.
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  I mean, when he got interested in something, he read and studied it, and he got very interested in guns and started going to local.
• 21:22
  I mean, when he got interested in something, he read and studied it, and he got very interested in guns and started going to local gun shows on occasion, buying, selling, trading the guns, and and he'd also lay out coins.
• 21:37
  He did, you know, he still was a coin collector, lifelong coin collector.
• 21:41
  And uh, and you can do that legally.
• 21:44
  Uh, the law provides that all of us can buy and sell firearms as long as we're doing it as hobbyists and collectors uh without buying a 200 federal firearm license.
• 21:57
  When you when that requirement is triggered, then you have to start doing background checks and filling out paperwork when you sell a firearm.
• 22:04
  But you can come in my garage Sunday, I can get out my grandpa's old shotgun, I can sell it to you for $300, and and you can walk away with it.
• 22:11
  And that's entirely legal.
• 22:13
  Uh Brian, ATF had developed a suspicion that Brian's activities at the gun show had exceeded this safe harbor.
• 22:23
  I can't tell you what the limits of it are.
• 22:25
  Nobody can because there's not an objective test in it.
• 22:28
  If you read the the by, you know, the brochure that tells you when you need to get a license, it's all subjective.
• 22:35
  So it would be very easy for someone to believe that they were still in within that safe harbor, and maybe they weren't.
• 22:43
  And and uh and they'll and they changed the regulation about three weeks after Brian was killed to make it supposedly tighter, but it's still extremely subjective and very confusing.
• 22:58
  It's the idea of the main reasonableness.
• 23:01
  I mean, the best definition I heard was reasonableness is what a reasonable person would define because consider reasonable.
• 23:08
  Well, to find a remedial person, right?
• 23:11
  It's hard for me to believe that it's constitutional to prosecute anybody under this regulation because it's so vague.
• 23:18
  Right.
• 23:19
  But uh, and certainly in Brian's case, one of the themes before they changed it three weeks after his death was uh is your primary motivation for selling firearms, livelihood, and profit.
• 23:32
  We don't know how much money Brian might have made in a couple of years of occasionally going to gun shows, but he made two over 260,000 a year in his full-time job.
• 23:42
  So that to him, I think it's pretty evident this was a hobby.
• 23:45
  Maybe he made three or four thousand dollars a year or uh, you know, uh at the gun shows, maybe he made five times that, but it wasn't a significant amount of income compared to his day job.
• 23:56
  Uh I think a lot of people that go to gun shows rely on that did rely on that, and that's specifically why the Biden administration changed that language because they wanted to close the loop, what they call the loophole, the gun show loophole.
• 24:12
  At any rate, they suspected Brian had had had crossed this line and should have bought a $200 federal firearms license.
• 24:19
  Instead of sending him a letter or walking up to him at the gun show where he was making no attempt to conceal his conduct, uh, and ATF has sent cease and desist letters in these situations countless times.
• 24:31
  They opened an investigation, started tailing him at night, put a tracker on his car, and then went to a federal judge and obtained a federal search warrant to search his house, and executed that search warrant at six in the morning on March 19th, 2024, over an hour before sunrise on a 32 degree morning in the dark, brought 10 carloads of agents and local Little Rock police department officers in support, not a SWAT team, not a trained SWAT team, but came with SWAT gear, tactical gear, helmets, automatic weapons, uh the big shield that says police, and then knocked on his door at six in the morning and waited a whole 28 seconds before they forced kicked the doors open and and forced their way into the house.
• 25:21
  So before he and his wife, yeah, before you go ahead, because I want to make sure my audience is following along.
• 25:26
  They they put a tracker, did they have a warrant for the tracker?
• 25:30
  No, and and uh honestly, you're gonna embarrass me as a former, I don't believe they have to get permission to use the tracker.
• 25:37
  They got a search warrant.
• 25:38
  They they what what was their probable cause that were the for the search?
• 25:44
  Well, they they wrote a very uh flowery affidavit.
• 25:49
  A lot of it was not germane to whether he but but Brian, they they documented that over, I think about a three-year period, he had legally gone out and purchased something upwards of 150 firearms.
• 26:03
  They didn't know how many of those he might have resold, but they knew he had resold some of them because five of them turned up in police reports, and this is one of the things that they legitimately look at when they're concerned that somebody's selling guns without a license.
• 26:23
  Are they turning up in the hands of criminals?
• 26:26
  It's unavoidable if you're legal.
• 26:29
  If I if you walk in my garage and I sell you my grandfather's shotgun, and you and I both know that no paperwork's required, it's unavoidable that sometimes bad guys that aren't supposed to buy guns seek out those situations and buy guns off the books.
• 26:44
  That's one of the downsides or the risk of allowing this safe harbor to people so citizens can still buy and sell guns without regulatory you know oversight.
• 26:58
  To have to have experts the right to exercise commerce without government approval.
• 27:04
  I mean, that's what you're talking about is engaging in commerce, the liberty to engage in commerce um without uh and requiring due process to infringe on that right.
• 27:16
  Um, but I want to say so he's no lot different than you know thousands of people that list probably lists this program and say, Yeah, I got some guns.
• 27:25
  Sometimes I buy them, sometimes I sell them, sometimes I trade them.
• 27:28
  And because at some point, because again, without that track, he may have sold the gun to somebody else who then sold the gun to somebody else.
• 27:37
  There's there's no trail, and this is important because I'm almost understanding.
• 27:42
  We're talking about due process, a governmental or judicial process designed to protect the rights of the individual, which apparently um is questionable at best, up to the point of we've now got a search warrant, and AFTF decided that the best time to serve the search warrant on somebody that has no criminal record because he was able to legally purchase firearms, that has no history of violence or reactivity.
• 28:00
  No criminal record because he was able to legally purchase firearms that has no history of violence or reactivity.
• 28:07
  They decided the best time to execute this search warrant was early in the morning when people are most likely to be confused in the dark when you can't see, and with I would say aggressive, if not excessive force.
• 28:07
  They decided the best time to execute this search warrant was early in the morning when people are most likely to be confused in the dark when you can't see, and with I would say aggressive, if not excessive force.
• 28:22
  That to me seems like a recipe for disaster, completely created by ATF agents.
• 28:22
  That to me seems like a recipe for disaster, completely created by ATF agents.
• 28:30
  That's my threshold observation that any any sane person would make is this was all unnecessary.
• 28:37
  This is two years ago.
• 28:38
  I've been involved in in matters of you know local public interest for 40 years.
• 28:42
  I'm used to people approaching me in the grocery store and asking me questions about this or that.
• 28:46
  I've never been associated with something that for so long, people are continuing to come and approach me two years after the fact with concern and ask me what happened here and why and what's going to be done about it.
• 29:03
  So uh but but what I wanted to tell you is to say is uh it was totally unnecessary to come with this this flash and at six in the morning.
• 29:17
  I have old ladies walk up to me in the grocery store and offer me five other alternatives they could have used to approach Brian Malinowski.
• 29:25
  He went to work every day at the same time, about 8:30 or nine o'clock in the morning.
• 29:29
  He parked in the same parking spot at the airport.
• 29:32
  He worked in a gun-free zone, he had no children.
• 29:34
  He and his wife, you know, lived in a very quiet suburban neighborhood.
• 29:38
  There's literally dozens or hundreds of ways they could have approached them if they needed to.
• 29:44
  Uh when the FBI wanted to talk to me, you know what they did?
• 29:48
  They picked up the phone and they called.
• 29:50
  And they made an arrangement of a time when they would come to my house to discuss.
• 29:55
  In this case, it was a federal subpoena.
• 29:57
  But that to me seems reasonable for the situation.
• 30:00
  Now, so that this seems like a just a disaster waiting to happen.
• 30:04
  Uh as you said, they it it legally wasn't a knock and talk, it wasn't a a no-knock raid because they knocked, but they didn't give a reasonable amount of time for anybody to answer.
• 30:15
  Because unless you're standing next to the door, 30 seconds is not enough time, even to wake up and realize that there's somebody knocking at the door.
• 30:24
  The there's some really important constitutional issues here.
• 30:29
  Uh at what happened at the front door.
• 30:33
  Clearly, the decisions to probably to get a federal search warrant and not send him a cease and assist letter are questionable.
• 30:42
  Certainly the choice to come at six in the morning with SWAT tactics and SWAT gear is questionable, if not insane.
• 30:51
  But if they they chose all those circumstances, they created those circumstances.
• 30:56
  They're the most risky to not only the occupants of the dwelling, but also to the officers.
• 31:02
  And then they executed it in our view, illegally and recklessly because the law says it's the Department of Justice is basically forbidden knocking uh no-knock warrants.
• 31:16
  Uh and they and they've also incidentally required mandatory use of body worn cameras when executing a search warrant.
• 31:25
  Those came out as a result of the Brianna Taylor death in Kentucky.
• 31:30
  Uh two years after those policies were put in place.
• 31:33
  The ATF did not wear body worn cameras on this operation.
• 31:37
  That's kind of a side note.
• 31:39
  But the law requires that for a if it's not a no-knock warrant, that they knock on the door, identify themselves as law enforcement, and give the occupants of the home a reasonable time to respond voluntarily and admit them into the home.
• 31:55
  That's the cases say the cases unfortunately don't tell us how long that is.
• 32:00
  Uh they say that it's it's varies based on the size of the dwelling.
• 32:04
  It doesn't take that long to answer the door in a motel room.
• 32:08
  If the if it's a large house, the Malinowski's had a relatively large home.
• 32:11
  I would think it was 28, 2900 square feet with a master bedroom in the back.
• 32:16
  Uh they had insulated glass storm doors outside of you know, two and a half inch wood inside doors on their front door.
• 32:26
  Uh they knocked on the exterior glass, and the Mountainowski's didn't hear him knocking, but they they knocked and then that said, ATF, open up or whatever they said.
• 32:37
  You we have a really bad audio tape of it.
• 32:40
  But they waited 28 seconds before they started breaking in the door.
• 32:44
  28 seconds.
• 32:46
  I don't know anybody who would hear someone at their if they did hear someone knocking at their front door who in 28 seconds could determine their identity, dress themselves appropriately and and voluntarily answer the door.
• 33:00
  So we believe it was an illegal search under the Fourth Amendment.
• 33:04
  And by the way, uh, they taped over the doorbell camera.
• 33:08
  Now, I don't know if you have a doorbell camera, but if you do, I think you bought it so you could see who was at the front door, but they taped over the lens of the doorbell camera before they started knocking.
• 33:18
  So their intent was apparently not to allow the occupants of the home to know who was out there and voluntarily open the door.
• 33:25
  Yeah, because I've heard of other cases where police officers either block a camera uh or or move a camera so it can't see them.
• 33:34
  And um, that's been been found in certain cases as uh basically tampering uh with private property.
• 33:41
  It's definitely tampering private property.
• 33:42
  Isn't an attempt to manipulate evidence because you're trying to hide evidence before the fact.
• 33:49
  Well, if you're if you're if your position is we tried to give him an opportunity to voluntarily answer the door, and you tape over the the doorbell, and then you knock and 28 seconds, and we know it was less than 28 seconds when they gave the order to breach.
• 34:04
  It was probably more like 20 seconds, because one of one of the officers said, Well, we dropped the tool in the yard and had to take a second to find it when he gave the order to breach to the tool they needed to break open the doors.
• 34:17
  So uh in 20 seconds, they they made a decision.
• 34:23
  Well, we gave them a chance, and they kicked their front doors open.
• 34:27
  Um, there's no evidence that they made any additional announcements, even if they were going to kick the doors open.
• 34:33
  We've had you know, special weapons and tactics experts look at this record.
• 34:37
  They said, Well, they shouldn't have done that.
• 34:39
  But if they did, they could have stood in the open doorway and said, police, we are police, come out.
• 34:46
  They didn't do that, they just came right in.
• 34:49
  They didn't come, they had a guy in their operations plan that was supposed to have a shield that said police, a bulletproof shield.
• 34:55
  He was supposed to go in first.
• 34:56
  He set the shield down and they all just stood out there and looked at each other for a second.
• 35:00
  Second, so the the next guy went in with a gun in his hand in the dark.
• 35:00
  So the the next guy went in with a gun in his hand in the dark.
• 35:04
  So there's nothing reasonable about this search so far.
• 35:04
  So there's there's nothing reasonable about this search so far.
• 35:08
  Hang on just a second, I gotta take a quick break, but this is really important.
• 35:08
  Hang on just a second, I gotta take a quick break, but this is really important.
• 35:11
  I want to pick it up on the other side.
• 35:11
  I want to pick it up on the other side.
• 35:13
  You know, this type of story is really important because it's an example of how our rights, our liberties are under attack.
• 35:13
  You know, this type of story is really important because it's an example of how our rights, our liberties are under attack.
• 35:20
  Yes, this is the the ATF, but they're often being driven by um, well, lobbyists and and and special interest groups that don't like our.
• 35:20
  Yes, this is the ATF, but they're often being driven by um well, lobbyists and and and special interest groups that don't like our rights, and they're getting a lot of their funding from organizations, companies that you do and I do business with.
• 35:35
  It's why don't do business with certain companies anymore.
• 35:38
  Stop funding those that are attacking our right to live free.
• 35:41
  Join the only Christian conservative wireless provider this nation has, Patriot Mobile.
• 35:46
  Use your cell phone to defend your rights and the rights of your family, including your right to life, liberty, and the pursuit of happiness.
• 35:54
  Go to Pedro Mobile.com's constitution, find a plan that works for you, see if you're eligible for a discount.
• 36:00
  Everyone from uh uh first responders, veterans, even families with multiple lines are eligible for discounts.
• 36:07
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• 36:12
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• 36:17
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• 36:34
  Now, I wonder how many places you've heard this story, not just the initial story from two years ago, but the the legal battle that's going on.
• 36:42
  It's one of the reasons why I think you should make America Out Loud.news your daily news update location.
• 36:48
  Why?
• 36:49
  Because we need news we can trust, yet verify.
• 36:52
  It's more important than ever.
• 36:54
  We take programs like this, the the articles, the stories, a podcast, the videos.
• 36:58
  We don't just watch them, we don't just listen to them, we share them.
• 37:02
  It's the act of sharing it's the act of letting other people know about this type of news, the news the media doesn't want you to hear that helps secure the blessings of liberty for all of us.
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• 39:10
  Welcome back, everyday American jury.
• 39:12
  Join the Constitution study.
• 39:13
  We're still on with Bud Cummins.
• 39:14
  We're having a very detailed and I think important conversation about a true tragedy in Little Rock, Arkansas that was apparently created by ATF by the Bureau of Alcohol Tobacco and Firearms.
• 39:27
  So as of so far, we've gotten to the police, they've gotten their warrant, but even with though they have a warrant, they're not doing a reasonable search.
• 39:35
  They're covering up ring cameras, they're not giving time for people to respond.
• 39:40
  There's no logic in it so far.
• 39:42
  It's like they're looking for a fight, and they've opened the door and pick up from there.
• 39:48
  What happened?
• 39:49
  Well, Mr.
• 39:49
  Mallon asking his wife or laying in bed.
• 39:51
  They hear that the they hear the sounds of them breaking open the doors.
• 39:55
  He did what I think most people would do to protect his wife.
• 40:00
  He he got out of bed, he got his hands on a handgun, he loaded it in seconds.
• 40:06
  You know, he he opened the door to his bedroom, took three or four steps down the hallway to a corner where he could turn and see about 30 or 40 feet to his front door.
• 40:15
  And he got there just in time to see uh the silhouette of a man entering his house with a gun and obviously in his hand.
• 40:22
  So he took several shots at that person's feet, apparently trying to you know drive them back out the front door, scare them back out the front door.
• 40:31
  ATF returned fire, hit him in the forehead and killed him, mortally wounded him.
• 40:36
  He wasn't declared dead for two days later.
• 40:38
  Then they grabbed up his wife in her you know very flimsy night apparel, dragged her out into 32 degree weather and put her in the backseat of a police car and didn't let her out for four hours.
• 40:52
  So while her husband's been carted off and she's seen him shot in the head, they detained her for four hours in the back seat of a police car.
• 41:01
  Now, what did they claim to detain her for?
• 41:04
  Because she's not part of the gun selling stuff, right?
• 41:07
  So take a statement.
• 41:09
  It's the reasonable articulate suspicion of a crime.
• 41:12
  That's what Terry versus Ohio says.
• 41:13
  In order to detain someone, police have to have a regional article of suspicion that they were have been, were or about to commit a crime.
• 41:20
  So there's no RAS here.
• 41:23
  Now, when you when you're executing the search warrant, you can control the people that are present.
• 41:27
  You can you can detain them to the extent that you know, if it's an office, you can make all the employees go to the conference room, you can hold them there.
• 41:36
  But at some point, pretty quickly, once you have the control of this, they're free to leave.
• 41:41
  They can't stay where you're searching, but they they are free to leave.
• 41:44
  They did not let her out of that car, they didn't let her go to the neighbors to use the restroom.
• 41:49
  They they kept her there until they and required her to give a statement.
• 41:54
  It's not that they it's not that they got her out of the area so they could do their search, they detained her, they prevented her from leaving, which is in the street in the backseat of a car.
• 42:00
  They prevented her from leaving, which is a good thing.
• 42:02
  She was in the street in the backseat of a car.
• 42:04
  Yeah.
• 42:04
  Yeah, so we believe that was an illegal detention.
• 42:04
  So we believe that was an illegal detention.
• 42:07
  Yes, but going back to the search, uh there, you know, the choice of the tactics was ludicrous.
• 42:07
  Yes.
• 42:08
  But going back to the search, uh, you know, the choice of the tactics was ludicrous.
• 42:16
  There was no there was no reason there, you know, I any threat assessment that they would have done before that would not have had they wouldn't have checked one box that would have pointed to you using these tactics.
• 42:16
  There was no there was no reason there, you know, I any threat assessment that they would have done before that would not have had they wouldn't have checked one box that would have pointed to you using these tactics.
• 42:28
  But they chose those tactics.
• 42:28
  But they chose those tactics, then they executed them, we believe illegally and recklessly.
• 42:34
  They they didn't make any further announcements once they opened broke the doors down that they were police or uh to identify themselves.
• 42:42
  And Mr.
• 42:42
  Malinowski was fatally wounded.
• 42:44
  I said earlier that you know the law's not clear, and this is uh I think for anyone interested in constitutional issues, and it was interesting to me as a former prosecutor to look uh this closely at the law.
• 42:56
  There is a Supreme Court case that says 15 seconds is long enough if you have if there is an exigent circumstance present.
• 43:04
  The main one that we see most often is drugs.
• 43:08
  If you're suspecting that there's drugs in the house, people can flush drugs down the toilet.
• 43:13
  We know that drug dealers would maybe run and try to do that.
• 43:16
  And so they've allowed in the name of winning the war on drugs, which I don't think we won, uh the Fourth Amendment to be watered down to where they can knock and enter in 15 seconds.
• 43:29
  I think uh law enforcement, which I'm very supportive of law enforcement, and I have stood in the front of press conferences with guns and drugs stacked up and and taking great credit for you know taking down large drug organizations as a prosecutor.
• 43:42
  I think we've we need to take a hard look at what we're letting law enforcement do in the name of the war on drugs.
• 43:49
  The courts have basically watered down the fourth amendment, but in this case, none of those exigent circumstances exist.
• 43:56
  There was no risk of flight, there was no danger to known danger to anyone, no risk of violence, and no risk of they were searching for guns and computers and telephones.
• 44:05
  You don't flush those down the toilet.
• 44:07
  So uh there was in this case, there was no reason to go that quickly.
• 44:11
  So we've got time to get to it.
• 44:14
  Um I know a civil case has been filed.
• 44:18
  Yes.
• 44:19
  Uh you're you are have sent a or by this time sent a letter to the president of the United States and and to informing him about this, but what are you specifically asking for?
• 44:31
  It's it's not my letter, it's it's 30 of the 35 senators in the Arkansas General Assembly.
• 44:37
  Okay, I'm not a member of the Arkansas General General Assembly, but 30 of the 35 senators.
• 44:41
  They uh the members of the legislature have continued to hear from their constituents and be very concerned about this.
• 44:47
  Since it happened two years ago, ATF is stonewalled, and to date they've been successful in sweeping this under the rug.
• 44:54
  People ask me, the the members of the legislature, what happened, why did it happen, and what's been done about it.
• 45:01
  And as one senator came to me and said he said if that was legal, somebody needs to change the law.
• 45:08
  But the Department of Justice has supervisory authority over ATF, and there's been no independent investigation of this, to my knowledge.
• 45:15
  There's been no action taken, no discipline, no, you know, observations about training or or anything that might flow out of uh something this outrageous.
• 45:26
  And so uh to today, uh the Arkansas State Senate, those 30 senators have signed a letter to President Trump asking him to order the initiation of an independent investigation to try to get those answers that they've been waiting for for two years.
• 45:44
  Yeah, because this seemed like a very blatant, not just civil, but a criminal and uh criminal activity, all right.
• 45:51
  If nothing else, Section 242, right?
• 45:54
  Deprivation of rights under color of law.
• 45:55
  Uh, you've certainly got the fourth amendment.
• 45:58
  Uh, not only against again for each of them, right?
• 46:01
  So you've got the the illegal entry into the house, the unreasonable search, the uh unreasonable seizure of Mrs.
• 46:08
  Malik uh Malawski.
• 46:10
  There's a lot going on here.
• 46:11
  And one of my frustrations is everybody talks about suing what is actually criminal activity.
• 46:17
  Suing's leading, and I understand the civil case, it's easier to win.
• 46:21
  I understand all that, but until we see some criminal uh charges, because a um, yeah, what they did was a crime individually.
• 46:32
  That person broke the law.
• 46:34
  Um, yes, it's harder to prove, but guess what?
• 46:36
  It's not subject to qualified immunity.
• 46:38
  Granted, qualified immunity should be blown out of this uh easily.
• 46:42
  But again, you're trying we're trying to fight the federal government, which is not easy.
• 46:46
  I'm actually quite I live over in Tennessee, and I'm very happy to see that the state legislators saying we need to protect our citizens.
• 46:57
  The federal government has abused our citizens, and we need to seek a redress of that grievance.
• 47:05
  Um, and and and you make a good, I mean, that I I'm not sure I completely agree with I would be very slow to use criminal prosecution against law enforcement officers because I do know how hard that job is.
• 47:16
  Now, you know, when you're talking about a street cop on a Saturday night approaching a car with tinted windows and things get that's one thing, these guys designed this whole scenario, they created it at a whole cloth and then screwed it up.
• 47:27
  So I have a little bit different feeling.
• 47:29
  But there is a manslaughter statute in Arkansas that simply says if your reckless conduct causes the death of another, that's called manslaughter.
• 47:36
  It's a criminal statute.
• 47:37
  The local prosecutor didn't examine that.
• 47:40
  He he called this self-defense.
• 47:42
  He his whole analysis said, Well, they were standing in the front hallway, and Mr.
• 47:46
  Malinowski shot at him, they returned fire, and that's called self-defense.
• 47:50
  Well, he looked at it through a straw.
• 47:52
  He didn't look at any of these other issues.
• 47:54
  In every state in the union I'm aware of, the use of lethal force and self-defense requires that you not be the initiator of the conflict, right?
• 48:04
  You can't be the guy pulling the gun and then claim self-defense shooting back, which is exactly what the ATF did.
• 48:11
  Uh so yeah, I mean, it's it's but as I said, I agree.
• 48:15
  I mean, we shouldn't be be criminalizing every every mistake by police.
• 48:19
  This is an egregious uh uh of uh this is egregiously criminal activity, and like multiple accounts.
• 48:28
  And you mentioned the civil suit, and I we I do represent the estate, and we did file a civil suit, and I I've gotten some real very in fact.
• 48:36
  My colleague Nathan Garrett, a law firm and and uh Grace Garrett, Kansas City agreed to work on this with me.
• 48:44
  Nathan's uh very unique, he's a former state trooper in Missouri, former FBI agent, former assistant United States attorney, and most recently served as a police commissioner on the Kansas City, Missouri Police uh commission.
• 48:56
  He's about as look pro-law enforcement as you can get.
• 49:00
  He was a SWAT on the SWAT team at FBI, a trained SWAT team guy, and he looked at this and he said reluctantly, you know, usually I defend cops, but I think this is a case that we need to pursue because it it's it hurts all law enforcement when somebody goes out with this heavy hand and acts this recklessly, it puts every law enforcement officer in danger.
• 49:00
  He was a SWAT on the SWAT team at FBI, a trained SWAT team guy, and he looked at this and he said reluctantly, you know, usually I defend cops.
• 49:09
  But I think this is a case that we need to pursue because it it's it hurts all law enforcement.
• 49:15
  When somebody goes out with this heavy hand and acts this recklessly, it puts every law enforcement officer in danger.
• 49:23
  It's not that easy to sue federal agents.
• 49:23
  It's not that easy to sue federal agents, and the lawsuit is that that we know we can only challenge.
• 49:25
  And the lawsuit is that we know we can only challenge is the things I described.
• 49:31
  What happened at the front door?
• 49:33
  Was it unconstitutional and was it recklessly negligent to get through the qualified immunity?
• 49:39
  There's layers and layers of immunities and defenses for federal.
• 49:42
  And there should be, because we don't want everybody that gets arrested to get to sue an agent.
• 49:47
  But we we don't want the the uh get out of jail free card for government actors because it encourages exactly this type of activity.
• 49:55
  I don't have to worry about is what I'm doing reasonable because I'll never be held accountable for it.
• 50:00
  It's you know, it's that that tension between the thin blue line and the rights of the citizens.
• 50:07
  And you know, I I agree it's not always an easy line to walk, but I think it's important that uh when you give someone the authority to detain the authority to use lethal force, that must come with an added expectation of responsibility for what you do.
• 50:25
  This is the same reason as the the citizen on the street who's carrying a firearm is responsible for their actions, and it they're responsible to know what the law is, to follow the law, and if they don't, they suffer the consequences.
• 50:38
  I don't think you get out of jail, get you get uh again on a jail free card simply because you have a government paycheck.
• 50:45
  No, I I don't disagree with you.
• 50:47
  And you know, interestingly, Congress is has provided a mechanism to hold state and local law enforcement accountable when they violate your constitutional rights 42 USC 1983.
• 51:00
  That's that's the statute you would sue a local policeman or a state trooper under, but they've never seen fit to pass a similar statute authorizing lawsuits against federal actors.
• 51:11
  So you're basically your your main avenue of relief is the Federal Tort Claims Act, which is only a trial to a judge with no punitive damages even awarded.
• 51:21
  And it's limited three limited, does 1983 actually protect uh or not include it?
• 51:29
  Doesn't it only include state state actors?
• 51:34
  Um I I don't remember the language off the top of my head.
• 51:37
  In fact, I'm looking at it, I'm looking it up really quick because I I didn't think it was limited in that way because it says if you go to the every person who, under the color of any statute, ordinate regulation, customer usage of any state or territory.
• 51:50
  You're right, it does say state or territory.
• 51:53
  Um that's it.
• 51:54
  That's very interesting.
• 51:55
  I didn't realize that.
• 51:56
  Okay.
• 51:56
  So it's even harder to get to uh a lawsuit if you could get this case in front of a jury, but but it's very likely we won't because there is no authorized mechanism to sue the federal government uh in a case like this.
• 52:12
  And you know, the institute for justice is one uh uh organization that has focused on that issue, and you know, they think it ought you ought to be able to hold your government accountable when they come out and and interview you like this.
• 52:24
  And uh, and I agree with that.
• 52:26
  So I hope that someday Congress takes a hard look at the you know, authorizing case uh lawsuits against if not criminal prosecution, they ought to at least provide some civil relief.
• 52:38
  Miss Malinowski's husband made 260,000 a year.
• 52:41
  He's dead.
• 52:41
  Yeah, she's that she's uh stay-at-home wife.
• 52:44
  She doesn't make any money.
• 52:46
  So uh for two years, she's been without any income at their home.
• 52:50
  So uh somebody somebody should be accountable for that.
• 52:53
  So but I'd love to talk to you some more, but we're running out of time.
• 52:57
  Where can people find this letter?
• 53:00
  Where can people follow along and and help move the and help keep track of what's going on with this case?
• 53:06
  Well, I tell you, uh, they they can use Google and Brian Malinowski, M-A-L-I-N-O-W-S-K-I.
• 53:14
  Uh the the state senators in Arkansas are asking the president to initiate an investigate in an independent investigation into this.
• 53:22
  So ATF can't continue to stonewall it.
• 53:24
  Uh they could they can notify their their local you know, congressmen and ask them to do the same.
• 53:30
  I think everybody in the country that goes to bed at night, not wanting somebody to kick their front door in at six in the morning with automatic weapons, should be concerned about this case and uh uh should should encourage their elected officials in Congress to press for a full investigation.
• 53:49
  Yeah, I you know, I I for I'd love to hear more.
• 53:53
  You are you have my email address.
• 53:55
  Let me know when there's news.
• 53:56
  I'll have to be happy to have you on and find out more because it's this is an egregious abuse of rights, and I think it's something that my audience would truly enjoy.
• 54:04
  Uh, but it's been a pleasure, it's been educational as as uh I hope it continues, and I look forward to seeing you again in the near future.
• 54:11
  Thank you so much for having me on.
• 54:14
  Well, I hope you enjoyed that interview.
• 54:16
  I I let it go into detail uh in large part because I think it's important, not only because of the life that was lost and the life that was destroyed, but the understanding of the issue of uh an out-of-control government, a government that is not securing our rights but infringing on them, and I thought it's something worth spending some time on.
• 54:35
  Now, uh, if you're trying to figure out, you know, what do you want to do next?
• 54:39
  I mean, hopefully, this inspires you say, I need to know more about the constitution, I need to know more about my rights and how I defend them.
• 54:46
  Well, the problem is it the the what you do next really depends uh on who you are, where you are, what your goals are.
• 54:53
  It's why I created the constitution study wizard.
• 54:56
  Just go to constitutionstudy.com/slash wizard and answer a few questions uh about how you've how often have you read the constitution, what are your goals?
• 55:05
  What other things have you looked at?
• 55:07
  The based on that, the system will generate some errant answers as to what you might want to look at next.
• 55:13
  They're just suggestions, you know, you don't have to pay the wizard is free.
• 55:16
  Most of the suggestions have free options and and they're just again suggestions.
• 55:20
  If you don't like them, don't follow them.
• 55:23
  But it's meant to give you those ideas of things you may want to consider as we approach the 250th anniversary of the declaration of independence.
• 55:30
  I think it'd be a really good time for us to bone up on understanding our rights.
• 55:35
  So again, head to constitutionstudy.com slash wizard, take the wizard.
• 55:39
  And oh, by the way, I look at every submission.
• 55:41
  So if I see something specific, I'll email you directly with uh what I think you may want to take a look at.
• 55:47
  Now, I also hope you come back and listen to the Constitution Study on America Out Loud Talk Radio Heard in the IHot Radio Network every weekday, 4 p.m.
• 55:56
  Eastern.
• 55:57
  Listen on our media player or our app for Apple Android or Lexa.
• 56:00
  Android or Lexa.
• 56:00
  And of course, you can also listen via podcast.
• 56:00
  And of course, you can also listen via podcast.
• 56:03
  It does take a day or two for an episode to go from talk reader to podcast, but you get to listen in your favorite podcast app.
• 56:03
  It does take a day or two for an episode to go from talk reader to podcast, but you get to listen in your favorite podcast app.
• 56:10
  Uh do me a favor though, subscribe to the show.
• 56:10
  Do me a favor though, subscribe to the show.
• 56:12
  Leave it a rating, especially on Apple Podcasts.
• 56:12
  Leave it a rating, especially on Apple Podcasts.
• 56:15
  It helps the algorithm show the Constitution Study to more places.
• 56:15
  It helps the algorithm show the Constitution Study to more places.
• 56:19
  So, well, then more people can see it, hear it, and join us here.
• 56:19
  So, well, then more people can see it, hear it, and join us here.
• 56:23
  You can find all the links you need at the homepage at AmericaOut Loud.news.
• 56:23
  You can find all the links you need at the homepage at AmericaOutloud.news.
• 56:27
  But please share those links, share the story.
• 56:27
  But please share those links, share the stories and the podcast and all this great information.
• 56:32
  That's how we share the blessings of liberty to everyone who calls this great nation home.