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home : opinions : op ed columnist October 3, 2015

7/31/2014 4:10:00 PM
Sowinski case demonstrates America's growing police state

Richard Moore
Investigative Reporter

A fellow writing the other week suggested that the stories The Times published about Paul and Alvin Sowinski focused more on the actions of law enforcement than on the conduct of the Sowinskis themselves.

To recap, the Sowinskis were on-again, off-again targets of law enforcement – mostly the state Department of Natural Resources – for nearly 20 years, during which time government special agents tried every trick in the book to catch the Sowinskis poisoning wildlife. They never really did.

That is to say, they set up surveillance cameras, they sent in an undercover agent, they planted dead animals and fake animal tracks to entice them to set out poison bait piles, they used mapping and aerial imaging programs, they searched the property multiple times without warrants, and finally they charged onto the Sowinski property with throngs of armed federal and state agents.

With all that, they managed to find one probably poisoned bald eagle, which might or might not have been poisoned at a bait pile, and a video of Paul Sowinski moving a dead eagle that – wait for it – was planted on the property by DNR agents.

To gain a conviction, and a misdemeanor conviction at that, they had to finagle a deal whereby Paul Sowinski confessed to disposing of another dead eagle he found on the property and Alvin Sowinski acknowledged poisoning an eagle – some eagle somewhere – with poison bait.

That was the sum total of what the government got after no doubt spending tens of thousands of taxpayer dollars and using firepower worthy of Waco or Ruby Ridge – all to confront a man and his father, the latter of whom, in his 70s, politely showed the amassed military force around the property.  

Now, about that writer’s suggestion that the focus of the story was the conduct of law enforcement, not the actions of the Sowinskis. We plead guilty as charged. That’s because the government’s behavior is the real story in this entire farce – its unwarranted, totalitarian conduct and what it means for America. 

That’s not to excuse any illegal activity. Far from it. But when law enforcement itself resorts to illegal activities – and we believe that’s the case here – to try to substantiate other illegal conduct, that’s far more dangerous to society than an elderly man allegedly trying to rid his farm of a few predators, even if he did it.

Some will argue that illegal conduct is illegal conduct, no matter the perpetrator, and that’s true enough. But there’s another point: If law enforcement can break the law to apprehend lawbreakers, then it’s only a matter of time before they will break the law to apprehend law-abiding citizens. And it’s not all that clear that the line wasn’t crossed in the Sowinski case.

If law enforcement officers are not bound by the law, what is to stop them from framing innocent citizens whose political agendas they disagree with, or people they just don’t happen to like? Nothing. What’s to prevent them from planting drugs in a scorned lover’s car? Nothing. What’s to persuade them not to plant poisoned bait on an innocent farmer’s land? Nothing.

Forcing law enforcement to obey the same laws everybody else must obey is the sum and substance of due process. Without the constitutional right to privacy and fairness, without the right of equal protection, without the right to live free from unreasonable search and seizure, there can be no confidence that the people the police are arresting are in fact guilty of anything illegal.

They could instead be political prisoners. And that’s why the conduct of the DNR and the U.S. Fish & Wildlife Service in the Sowinski case is so important.

For starters, the wardens searched the property multiple times without search warrants. As expected, DNR legal counsel defended those searches, saying “open fields” are not subject to Fourth Amendment protection – more about that in a moment – and that state law further gives wardens the right to enter private property without permission.

To be sure, state law says any DNR officer may stop and board any boat and stop any vehicle if the officer reasonably suspects there is a violation of law. A 1926 attorney general’s opinion extended that to private land.

The question here is, were the multiple entries onto the Sowinski property reasonable? Was there reasonable suspicion?

The answer is emphatically no.

In 2007, for instance, after earlier surveillance cameras had recorded no violations in the wake of rumors and gossip, a DNR warden decided to go to the property to check out – wait for it again – more rumors and gossip.

That’s right, according to the warden himself, no specific allegation or evidence sparked Pat Novesky’s visit to the Sowinski property in 2007. Rather, he had a “hunch” about a sand pit after hearing “several nonspecific bits of information” over a period of several years. He targeted the sand pit because it was near “a large swamp that would make for easy disposal of animals and allow the bait to be covered by the canopy of trees preventing the dead animals and bait to be seen from above.”

Pardon me, I just don’t think hunches qualify as a “reasonable” justification to enter and search private land, especially when the intuition is based on idle coffee-shop chatter. The foundation of his legal reason for entry was about as solid as a house built on shifting sands.

So what did Novesky find at the sand pit? Nothing. His hunch was dead wrong, as hunches often are, which is why they shouldn’t be considered as reasonable justifications to trespass. So surely Novesky turned around and left, correct? Nope. He kept walking, and walking, until he found a dead eagle and what he considered to be bait: a dead deer. 

Was the eagle poisoned? Well, maybe. The U.S. Fish & Wildlife lab “concluded” after testing that the eagle had been poisoned, but that language is suspicious. A test would either confirm poisoning, or not, so why would there have to be conclusions drawn, unless the results were less than convincing and less than certain.

More than that, there was no emergency prompting this warrantless visit. A  reasonable question to ask is – to determine if the warden’s action complied with the statutory mandate for reasonable suspicion – why didn’t the warden just get a warrant before his visit? Perhaps it’s because it almost surely would not have been granted.

Contrast this behavior with that of Adrian Wydeven, the DNR wolf expert, and his team when they reported that a wolf had died four or five years earlier as a result of insecticide poisoning in the area. Wydeven told inquiring wardens the wolf had traveled through potato fields on several occasions.

The insecticide in question, Carbofuran, was legal until 2009. When a wolf died from it, the DNR’s wolf experts obviously concluded it was incidental contact because they did not swarm the Sowinski farm looking for poison bait sites. But when the local yahoos “concluded” that an eagle died the same way, that sent the Barney Fife Flying Circus into action, no doubt to the joy of Madison Stalinists.

All the other searches of the property without warrants represented an equally egregious abuse of power. All were likely violations of state law.

Which underscores this point: Law enforcement lawlessness is the first sign of a rogue police state.

In addition, the DNR’s action still leaves the case ripe for constitutional adjudication. Saying the wardens did not have to have warrants to enter the property because of the open-fields doctrine – the Supreme Court has said the Fourth Amendment protects only the home and the immediate surrounding land and buildings, the so-called curtilage – is to collapse all constitutional considerations of law-enforcement conduct into one bad Supreme Court decision and to shoehorn the entire case into one amendment.

But think again. The Fourth Amendment may protect a reasonable but warrantless entry and search of the property, but when do such searches cease to be constitutionally protected and begin to become harassment and entrapment?

To wit, the DNR and federal agents were doing a lot more than searching and observing – they were actively planting traps and cameras and sending in undercover cops, all without a warrant or any shred of evidence other than hearsay. Indeed, previous surveillance – hours and hours and hours of it – had turned up nothing. 

Now I’m no Harvard scholar, but it doesn’t take one to see how various constitutional conundrums spin into play. Continued police surveillance and activity, especially when previous surveillance had turned up no wrongdoing, make the case ripe on at least three constitutional grounds: due process, civil rights, and equal protection.

The Fourth Amendment is still on the ball field as well. For in the early 1990s, the DNR set up a camera in the woods, outside the curtilage, the wardens were careful to say. But while the camera may have been outside the curtilage, the surveillance was not. It was trained on Paul Sowinski’s deck at his home – a violation of constitutional privacy if ever there was one. 

A warrantless search of a home and deck is illegal minus exigent circumstances – which did not exist here – and it shouldn’t matter whether the eyes are those of an agent standing on the deck or of a camera in a field next door.

We would be remiss if we did not discuss the firepower brought to subdue a man in his 70s. The agents storming the property at daybreak acted as if the Sowinskis were terrorists. There were more of them than the number of dead animals agents had found to that point, and they were armed to the hilt.

These military-style actions against the American people, which play out in successive scenarios across the nation, speak to the growing militarization of America’s police and government bureaucracies. These days local police walk around dressed not as the friendly cops we saw in television’s Adam-12 but as elite soldiers on the prowl for terrorists, like their military counterparts in Iraq and Afghanistan. 

Just who are these domestic military police looking for? Just who do they consider the enemy? 

It’s more than the local police, too, as this case demonstrates. Increasingly state and federal agencies have their own police divisions – their own SS, as it were – armed and outfitted for war. Each year, the ACLU reports, there are an estimated 45,000 SWAT raids – or about 124 violent, paramilitary raids every day.

Which underscores another point: Lawlessness backed up by firepower and militarized police is another sure sign of America’s growing police state.

Finally, we should mention the shameful hypocrisy of the Obama administration. The USFWS and the DNR hounded the Sowinskis relentlessly over the years. The DNR cited “horrendous” poisonings and, in announcing the arrests, all the involved agencies made much of the Bald Eagle Protection Act and of pursuing the toughest penalties for those violating it.

This is how U.S. Fish and Wildlife Service special agent in charge Gregory Jackson put it: “Indiscriminately targeting wildlife predators with poison to improve hunting opportunities is not only unethical, it is illegal. Such use of systemic poisons kills non-targeted species, such as our national symbol, and causes environmental contamination.”

Oh really. 

Well, then, why did the USFWS, as we have reported, just write a rule allowing the wind industry to indiscriminately kill birds, including eagles, for the next 30 years without fear of federal prosecution?

The juxtaposition of this case and the Obama administration’s green light to the wind industry to mutilate and slaughter eagles with impunity, and for the next three decades, is remarkable, and, to be honest, impeachable. The government found one conclusively killed eagle in five years on the Sowinski property; investigators determined that wind farms killed at least 65 eagles over the same period, a number even the scientists say is underestimated. 

Why is it OK for the wind industry to kill birds in defense of its profits – or, since it has none, in defense of its subsidized survival – when a farmer cannot?

One can argue the merits of allowing wildlife kills for the sake of industry, pro and con, but one cannot dispute the need for consistency, fairness and equal protection if it is allowed. The method of death is irrelevant, since the wind industry knows it is killing birds, including eagles, and they know they are expanding into territories inhabited by eagles, which will increase these kills.

In other words, the wind industry is intentionally killing eagles, and, unlike the Sowinskis, the industry says unrepentantly that it intends to continue to do so and to kill even more. The Obama administration winks and says that’s OK, but sends out the cavalry to subdue the highly dangerous Sowinskis. 

These grievances constitute the highest charges against the DNR and the USFWS, but there’s a litany of other offenses. For example, we see repeatedly in the case reports attempts by the DNR to profile, characterize and read the body language of those they are surveilling or interviewing. We wonder, what training do they have to do that, and what is their motive?

For example, agents characterized Paul Sowinski as unkempt – not surprising when they knocked on his door at 6:30 in the morning – and Alvin Sowinski as anti-government. They classified others – in writing and in official reports – as dishonest or evasive based on their reading of body language.

Again, what training did they have? Why wouldn’t they think that nervous actions were ... just nerves, nothing more, given that the feds had knocked on their door at 6:30 in the morning?

The arrival time is one more example of brute force and intimidation – as was the establishment of perimeter security posts and checkpoints. It was as if bin Laden was inside.

But what it was was an inexcusable military-style invasion of American citizens, which we supposedly stopped in the War of Independence, without regards to those Americans inside. There were children present in Paul Sowinski’s home, for one thing, but agents were determined to show off their might in the pre-dawn light. They could simply have waited until later, after the children had left for school, or paid a respectable and dignified visit to the Sowinski office when it opened. 

After all, the investigation had lingered on for years. What were the Sowinskis going to do that morning that required a pre-dawn armed raid?

What’s more, the agents repeatedly tried to put words in the mouths of the Sowinskis, particularly Alvin Sowinski, as they recounted alleged conversations. If Sowinski used the term ‘bait,’ for example, the warden explained that meant poison. The only problem is, that’s not what Sowinski said. 

The issue is important because, while Sowinski had allegedly admitted explicitly to using poison in at least one conversation, the agent implies he is making extensive admissions of guilt, both about baiting and poisoning, rather than simply making an observation about bait.

Were any of these conversations recorded? Were wardens fabricating conversations to justify more invasions without warrants? Bogus profiling to build fake excuses for further official but illegal activity – that sure sounds like a police state to me.

Finally, those who are tempted to say the government wouldn’t do such a thing to them because they are law-abiding citizens, consider again. The Sowinski raid touched not only that family but associates and friends. License plates were run. Properties were checked on the basis of association alone. Agents arrived at one man’s door, also at 6:30 in the morning, and tried to badger him into a confession of complicity. He wasn’t even named in a warrant. Another man was hammered on business violations after agents there had an equally unproductive conversation. 

In the end, no eagle was ever proved to be intentionally poisoned. No one ever witnessed or recorded the Sowinskis doing anything illegal. The undercover agent for the DNR could never entice the Sowinskis into illegal federal activity. The only evidence that exists is that of law-enforcement misconduct.

The Sowinski case is a textbook example of police-state tactics and overreach in a volume of examples that is growing ever larger. If the government can get away with such acts against its own citizens, no constitutional right of privacy or due process or equal protection remain; the Fourth Amendment might as well be shredded.

The focus was indeed on the DNR and the USFWS because of the gravity of their conduct, and now the federal and state Departments of Justice should scrutinize this conduct as well. 

If crimes were committed, agents should be charged. At the very least, those who concocted and carried out this witch hunt should be fired.

The DNR wanted a lot of credit for this operation; we should all work now to make sure they get it.

Reader Comments

Posted: Tuesday, August 19, 2014
Article comment by: Joe Thompson

I'm sure the next big story will be around the overreach of government via the War on Drugs, right?

Posted: Saturday, August 16, 2014
Article comment by: Jim Dummer

I hope the writer shot down to Ferguson so he could see what a real police state looks like.

Posted: Monday, August 11, 2014
Article comment by: Ron Ford

Richard Moore demonstrates America's growing number of paranoid nut cases. You need to get a reality app.

Posted: Monday, August 11, 2014
Article comment by: Sally Vandergrift

Don't agree w/the writer at all. Animals are always taking the backseat to mankind. So much animal abuse and OVERKILLL of wildlife!! There needs to be an example of strong law enforcement fines and punishment to TRY to stop the abusers of hunting/fishing laws. There are too many abuses going on all over with mankind killing wildlife and not following the laws. Good fine and punishment for the family who killed the wildlife!!

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