Your Government in Action

Oct. 1, 2000

Your Government in Action

Outrageous and unnecessary conduct

By Stephen P. Prentice October 2000

Every law student can recite Article IV of our Constitution by heart simply because it is one of the most important articles. Remember your history. Back when the redcoats controlled the Colonies, it was routine to simply walk into a colonist's home or business, search at will, take what they wanted, and in some cases, house soldiers in the home.
It is interesting to note further that a Federal Appeals Court, citing strong support for the Fourth Amendment, recently slapped law enforcement for even invading the homes of probationers (ie. convicted criminals) under the guise of pursuing new crimes. This was held to be illegal.
The founding fathers of this country, and as noted, most of today's federal judges, feel strongly that Government should not be allowed to enter a home or business except under very narrow circumstances and then only when approved by a judge. They wanted a Judge to look into the reasons for any search to make sure there was probable cause that a crime had been committed and that evidence would be found at the site covered by the warrant. In addition, any data presented to a Judge should be from a competent and sworn source. So much for the law.

The event
It's nine-o'clock in the morning and you see some trucks and vans pulling up in front of your business. You wonder aloud about the traffic but assume it is nothing out of the ordinary. In short order, armed men come crashing through your doors and into your business, and loudly announce that they are U.S. officers and they have a court order (commonly called a search warrant) to search your business and seize things. When an employee asked to see the warrant, they stated it would be provided later. Now mind you, this was not a drug den or a gambling hall or some other illegal activity. It was an ongoing business establishment. Yes, a fixed base operation, with repair shops, offices, hangars and a large number of employees.
The employees were intimidated and told to stand against the wall. There were some 60 agents, including drug sniffing dogs, present. They were on the business premises all day collecting every piece of paper, computer data, and photo that they could find.
In the hangar, all the records of aircraft being worked on were confiscated. Repair orders and work sheets were included. Technicians' toolboxes, work stands, and roll-aways were searched and every piece of paper was collected, including pictures and other personal items. In one case, personal training records were taken.
Employees were taken aside and interrogated. Needless to say, no company or personal lawyers were invited by the agents to counsel the employees or at least be present.
This business was, for all practical purposes, shut down. They had no records with which to conduct daily business. They could not sell fuel, operate their shop, or conduct any flights. The warrant and actions in this case were tantamount to throwing these citizens against the wall like criminals.

The reasoning
The FBI agents and representatives of the DOT and Justice Department took the company officers aside and directed their attention to four aircraft on the premises. Since there had been a high profile accident with one of their aircraft, they accused the company of "cutting corners" on repairs. By cutting corners in the repair of their aircraft, the officers alleged that they were committing crimes and violating federal air regulations. The agents were politely told that the company did not own any of the aircraft and thus had no reason to cut corners on maintenance (ˆ la ValuJet, Alaska, and others). Aircraft were leased from owners - a common practice in the charter business. The Feds were surprised when they were told this since they thought they had another big case of shoddy maintenance practices.

The bright lights come on!
When the agents learned that these aircraft were not owned by the company, their case for the raid seemed to collapse but they continued looking for anything out of order. Now, they had better find something wrong or they would look incompetent. This is called a fishing expedition in the law and is generally prohibited.

The bottom line
The agents were acting on inaccurate information from very questionable self-serving sources. They could easily have determined ownership of aircraft with a couple of simple keystrokes on their computers. "N" numbers are easy to chase down and the real owners could have been found on any government computer and interviewed in person. Believe it or not, the agents had not checked ownership on the aircraft. They assumed that because they were being operated by the company, they were owned by the company and thus there was some incentive to cut corners (save money on maintenance). This company was in business to make money, not cut corners. They had a certified repair station in which to perform maintenance for a profit. Their customers, the owners of the aircraft among others, paid the bill for repairs. Why would they cut corners?
Anytime the federal government's justice department dispatches its agents with gas masks and machine guns to invade the home or business of a private citizen, as they did in the Gonzalez saga, we had better start asking some questions.
I doubt that the men who wrote the Fourth Amendment to the Constitution would accept uncorroborated statements of disgruntled former employees for example, as a basis for government conduct, but they did in this case. The reason for this raid should have been put to a federal judge. We should note that a federal judge in the Gonzalez case denied the Government's request for a warrant. As we all know, they crashed the house and grabbed the kid anyhow, without a warrant.
In this FBO case, additional supporting data should have been required for such a serious invasion of the business premises. The raid violated a basic principle of our society, a principle whose preservation lies at the core of ordered liberty under the rule of law. Between this case, the Gonzalez case, and others, many have commented that some aspects of federal justice are out of control.
More to the point, there was no necessity for this raid on the FBO. It seems that it was all about putting on a show for the press who were informed and showed up on the scene. Many commentators feel that certain federal agencies have found a new venue, namely, aviation accidents, to expand and enlarge their oversight responsibilities and perhaps increase their budget allocation.

Popular action against
corporate America
It is a fact that search and seizure warrants are commonly used today to investigate corporate America. We might recall the raids on Archer-Daniels Midland Co. and Northrop Grumman Corporation among others. Even prestigious American Airlines is not exempt from such treatment. Their cargo facility in Miami was raided by what was described in the papers as Government gangsters, bullying and scaring everyone on the premises. Sound familiar?
The number of search warrants issued by federal magistrates is up markedly in many jurisdictions - some over fifty percent in recent years.
Although prosecutors could use subpoenas to get what they want, it can take a while. With a search and seizure warrant, they get what they want immediately.

Unlawful conduct -Alaska Airlines connection
Federal agents cannot interview or interrogate people when they know or should know that these people, employees for example, have a company lawyer either on or off premises who is available to counsel them and the company. Federal prosecutors and their agents are required to abide by the ethics rules of the state bar where they are conducting investigations.
This means that prosecutors or agents acting on their behalf cannot interview or interrogate your employees, management, mechanics or office staff, without counsel being present. And, if they do, they are individually subject to sanctions because of their conduct. This is called the McDade Law.
In the ongoing Alaska Airlines investigation, federal agents claim that they were prevented from interrogating mechanics in a timely fashion because of the requirement that they had to contact the mechanics' lawyers and advise them accordingly. Federal agents were blocked at the Alaska Airlines facility in Oakland, CA by company lawyers who represented the employees. Later on, when these employees were served with grand jury subpoenas, attorneys were able to delay appearances by insisting on grants of immunity from prosecution. This immunity, by the way, should include not only criminal prosecution but also FAA certificate action, which may be conveniently left out of any agreement.
The FBI knows very well that early simultaneous interviews of several employees without a lawyer present is most fruitful in providing incriminating information. Under current law, however, it is an unlawful practice and could result in direct disciplinary action against prosecuting attorneys and their agents including those of the DOT.

The McDade law
The McDade law, or more precisely, the "Citizens Protection Act of 1998" (28 USC 530B), was passed by Congress and supported by all the bar associations. It is named for Representative Joseph McDade (R-PA ) who was the victim of an investigation that many believe had run amok. Mr. McDade was subsequently found not guilty. He claimed he was substantially damaged (not surprising) by prosecutors and their agents. Many agree with him.
Another result of this law is to curtail the common police practice of "wiring" an informant with a body mike, called consensual monitoring. This conduct can now lead to disciplinary actions against prosecutors and or their agents in many states.
In addition, interviews with corporate "whistle-blowers" are hampered because of the necessity to include the company lawyer in the interview process. It is very likely that in this FBO case, it would have prevented the raid in question. When a disgruntled employee decides to go to the Feds with testimony of alleged illegal activities at a company, the agents are required to contact company counsel and have him or her present during any interview of the disgruntled employee.
Needless to say, the defense bar praises this law for protecting the right of citizens to have the advice of counsel when being interrogated by government agents. On the other hand, the federal prosecutors and their agents detest it because it prevents their interviewing any employee until counsel is present or consulted.
FAA powers
FAA inspectors have the right, at any time, to inspect, seize, and copy any records they want from an air carrier. They don't need a search warrant or any other authority, much less probable cause. So, the question is asked, "Why not simply ask the FAA to drop by and get what the FBI wanted?" An interesting question that has everything to do with politics and little to do with the merits of any case.
Aircraft records are routinely inspected, copied, and retained by FAA inspectors. There are no secrets in the aircraft maintenance field and there is no reason for raids by FBI agents or other law enforcement agencies to gather evidence. Many have suggested that the only reason for these raids is to raise the political profile of the agencies concerned. Go figure.

The rest of the story
Some six months before this raid, an aircraft operated by the company had crashed due to fuel exhaustion after all aboard were presumed dead or incapacitated. No specific cause for the crash has been found by the NTSB. Many will speculate, but to date there is no finding whatsoever of any negligence on the part of the carrier or anyone else relevant to the accident.

Equal Access to Justice Act
Finally, keep this useful law in mind.
If you can show and it is found that an individual or a company was wrongly targeted and never charged with any substantial crime, there is recourse. A petition can be filed under the Equal Access to Justice Act for damages, including attorney fees. Some companies have recovered in this manner after their business has been damaged by irresponsible and or unnecessary actions of Government agents.
Keep in mind that your only contacts in Government in these matters are the Federal Court Judges, the Magistrates, and your local Congressman. You can also complain to the United States Attorney for the District. Find out who they are, keep their phone, fax and e-mail address handy and don't be afraid to call or write to them and voice your thoughts. They can exert pressure on your behalf - that's what you pay them for!