Why Aren't Bivens' Actions Successful--or Are They?

     Thank you, Mr. Bivens, for suing the federal government after six FBI agents barged into your home without cause and arrested you--again without cause--back in 1971.  Thank you for refusing to accept the opinions of two lower court judges who told you you didn't have a case, and for forcing the Supreme Court to recognize, at last, what it means to have Fourth Amendment rights.
     But why hasn't the Supreme Court's 1971 decision--that you had a right to be compensated with a cash payment (since your reputation, which could be destroyed by the government, couldn't in reverse fashion, be reconstituted)--why hasn't that important legal declaration been the basis for many other corrective actions against those government agents who misuse their power?
     Surely, our government agents--being human--can't have been so perfect over the past forty-one years that they haven't ever overstepped their bounds, or run rampant over ordinary citizens, or been a little too emphatic when they decide, without the aide of a court, jury, or counsel for the defense, that some poor bugaboo is guilty and doesn't deserve the right to know of what.
     It seems to be a foregone conclusion among lawyers that anyone who attempts to do what Mr. Bivens did is going to fail.
    "You don't win when you sue the federal government," I've been told by my own lawyers.  It has been said that in the first fourteen years after the Bivens decision twelve thousand similar claims were brought against the federal government, and only four succeeded.   The usual explanation is that the feds are protected by statutes conferring immunity, based on the idea that our civil guardians shouldn't have to be afraid of making a mistake when they think someone (like a terrorist? like me?) might be about to endanger large populations.
     A 2010 Stanford Law Review analysis of Bivens cases in five district courts over three years casts some doubt on my lawyers' pessimistic statistics (Stanford Law Review, Vol. 62,  Nbr. 3. March 2010).
The success rate for Bivens suits ranges from 16% to over 40%, depending on the type of case and the zeal of the lawyers, which is much higher than the guesses of attorneys, and makes it less likely that sovereign immunity is as thick a bulletproof vest as has been assumed.
     The author of this study criticizes, along with many commentators over the past few decades, the model for getting compensated by the government if one should happen to be a victim of misconduct.  It seems that citizens who believe they have been wronged must follow an "individual liability" route, in which they act against the individual officer who is accused of violating a constitutional right.
      But just as a person who claims to be a victim of medical malpractice in the hospital can sue the doctor, the hospital, and even the corporation that owns the hospital, so should a citizen who has been wronged be able to bring an action against the larger entity within which a blameworthy federal agent works.  Otherwise, the chance of being compensated in any meaningful way is unlikely.  More importantly, a successful legal action against an individual officer is unlikely to change the system which permitted the wrongdoing in the first place, any more than a lawsuit against a doctor--but not the hospital--for, say, an avoidable, mortal infection, would force a hospital to change its protocols for infection prevention and thereby protect others from suffering similar devastation.  To make matters worse, federal agents are permitted to make an immunity defense (e.g., "I was just acting in the line of duty with the information available to me") in Bivens cases, making it much more difficult to prevail against the government.
     The Stanford study, however, challenges this longstanding belief that Bivens cases aren't successful on account of  federal agents having qualified immunity.  An analysis of data from this study, as well as data culled from similar studies, reveals the following:  of the Bivens actions that fail, most do so because the court considered the cases frivolous, or without merits, or because other means of correcting an unfairness hadn't yet been exhausted.
     "The doctrine of qualified immunity is of much greater symbolic than practical importance..." the author says.  "It may be that the prospect of qualified immunity deters lawyers from accepting the most difficult Bivens cases, thus operating as an unseen thumb on the scale in favor of maintaining the legal status quo."
     Perhaps my lawyers need a little more nudging from me.  If the raid on my clinic is an example of the misuse of government power, or laziness on the part of the prosecutors when it came to doing their homework before carrying out a raid and taking my clinic's money, or the agents' unforgivable susceptibility to a report made by a charismatic sociopath--a susceptibility encouraged by the Department of Justice's instructions to to its gun-wielding policemen that they collect money by "going after Medicare fraud"--then filing a Bivens action might be exactly what I need to do.
     "Courts assume that Bivens litigation is [nevertheless] considered a waste of time for all concerned:  the plaintiffs, the defendants, and the judiciary," the article says.  But, in fact, it shows through a painstaking assembly of cases filed with United States courts, that Bivens cases are successful far more often than I have been led to believe.
     The LSU Medical and Public Health Law Site explains, in a 4/19/2009 post:
     Absolute immunity is granted to judges, prosecutors, legislators, and the President, so long as they are acting within the scope of their duties.  Qualified immunity applies to federal officials and agents who perform discretionary functions, but may be overcome by a showing that their conduct violated a constitutional right. 
     It may be that the government's agents are not immune from a lawsuit, after all, if it turns out that they had so little cause for the raid on my clinic that they violated my rights.  Until their top-secret affidavits are unsealed, though, I can only guess how they may try to explain their motives, or justify their pillage and robbery.
         

"Free" Obama Healthcare

     What a surprise.  Healthcare isn't going to be free, after all.
     The Galen Institute provides us with a reality check, in a report summarizing a New York Post article on how ObamaCare will pan out for New Yorkers when it's implemented in 2014 (see the Galen Institute's "Sticker Shock" post at its online site).
     A family earning $35,000/year will have to pay $5,500 in health insurance premiums, co-pays and non-covered services.   In exchange, that family would get a policy that would otherwise cost about $12,000 a year.  A family earning $85,000/year would be responsible for $16,000 in premiums and co-pays, $8,000 of which would have to be paid whether medical services were used or not.   You could pay more, and get "better" coverage, or you could opt out of insurance altogether, and pay the mandatory penalty for declining coverage.  The penalty is, in essence, a tax that goes up each year, e.g.,   $95/year for individuals in the first year... $695/year two years later.
     I wonder what happens when people who opt out of insurance get super-sick?  Say, you decide you don't want to spend $5,000/year on insurance, preferring instead to take your chances with your health.  (Most people overestimate their general health and life expectancy, so we might as well assume that when they don't buy health insurance some of them, at least, will face very expensive "unexpected" health crises.)  What if someone who makes $30,000/year and opts out of health insurance, has a heart attack costing $60,000?  Who's going to pay the hospital, cardiologist, surgeon, and cardiac rehab specialists?  Who's going to pay for the five medications (a beta-blocker, ACE-inhibitor, Plavix, aspirin, and statin--cost:  $150/month) prescribed to every coronary patient upon discharge from the hospital?  What about the fact that many patients have a second heart attack within six months of the first?  What if the patient can't work any more, or gets hooked up to a ventilator, or ends up brain-dead?
     Aren't these costs the ones we ought to be addressing, instead of the insurance premium Obama focus, which nickels-and-dimes young, healthy people whose health needs amount to yearly check-ups, advice, and immunizations?
     Fixing America's healthcare crisis has to involve a radical overhaul of the way we think about life and death, and must also include large-scale plans for the prevention of disease.  Eliminating soda-pop and fast-food for kids, for example, would save more in healthcare costs than those 2,700 pages of health insurance legislation that got passed last year.  (Soda should be considered toxic.)  Taxing tobacco and marijuana (let's legalize it!) would add money to the healthcare coffers, and offering free addiction treatment could change the social status of people who are a drain on society to that of taxpayers.
     Mandating that each one of us put together a detailed end-of-life plan, and documenting in a national database how people wish to die (it's not after being on a ventilator in the ICU for 30 days, or falling out of bed in a nursing home where you've been stationed with Alzheimer's for the past two years)--and helping them to die (as they do in Switzerland and Sweden, when the time has come, without astronomical expense) would save enough money to immunize every child in the world times over.
     Is something wrong with us, here in America, that we can't see the obvious reasons healthcare is in crisis mode?  Focusing on insurance reform, while we keep blinders on when it comes to ubiquitous, health-sapping, denatured food, and pretending addiction is a moral failing, and building roads for cars but not bike lanes for bikes, and nurturing a death-phobia that is so pervasive even doctors can't bring up the prospect of death up without our patients saying, outraged, "I'm not gonna die!"--al this is like trying to save a mansion in them middle of a hurricane by holding up a few umbrellas.
     Come on, America, let's get real.  We don't need "free" healthcare that costs more than we can afford, we need to reform our ideas about health, and food, and addiction, and death.
       

Yogurt and Sauerkraut: Make Your Own

Yogurt

Buy the cultures in the refrigerated section of a health food store--they're sold in a brown jar, usually, and cost about $10--enough to make twenty gallons of yogurt.

56 oz whole milk
1 1/2 tsp live active cultures

Heat the milk until almost boiling, then turn off the heat.  Pour into a ceramic, glass or enamel container and cool to the temperature of a baby's milk (108-112 degrees F).  Sprinkle the cultures over the top and stir with a wooden spoon until completely dissolved.  Pour the mixture into small jars or custard dishes and keep at a temperature of 108-112 degrees for 7 to 8 hours.  You can use a "yogurt maker" to do this (it's well worth the $20 investment), or place the jars in the oven, unheated, for 10 to 12 hours.  Your yogurt is done!  Refrigerate, and eat 6 oz a day, plain, in smoothies, or with maple syrup, honey, or fruit.  (Don't cook it, or you'll destroy the natural probiotics.)


Sauerkraut

It may be worth finding or buying one of the old glazed, ceramic, German crocks designed for the purpose of making sauerkraut, but any food-grade plastic bucket or glass jars will work, as long as they have lids.  When it's finished put it in glass jars in the refrigerator, and add it to sandwiches, or include some on your dinner plate each night.  The nutritive value of homemade sauerkraut far outstrips an enumeration of its vitamin and fiber content (which are high), because the billions of lactobacilli you get per serving, created by the fermentation process, are incalculably salubrious.

7 heads of organic cabbage, red, or green
1/2 cup salt
Brine:  heat 2 Tbsp salt in 2 gallons of water, and allow to cool

Shred the cabbages, removing old or brown outer leaves.
Don't wash them!
Layer the shredded cabbage with a sprinkling of salt in a ceramic, plastic, or glass container until it's filled to 4 or 5 inches from the top.  Cover with a layer of cheesecloth, and lay weights on top (a plate, or half-circles of ceramic designed for this purpose, or a food-safe plastic bag filled with marbles or water.  Pour the brine over the whole thing, so that 1 to 2 inches of brine cover the cabbage.  Remove stray pieces of cabbage.  Cover the container and keep it in a cool (68 to 74 degrees), dark place for 6 weeks.  Don't disturb it, because the fermentation process is anaerobic, which is why you must keep the cabbage under brine.  

Probiotics--a New Fad?

     Probiotics are the new fad.  Should you take them?  Will they "boost your immune system" (whatever that means)?  Will they help you live longer?  Do we all have to eat yogurt every day for the rest of our lives to be really healthy?  Is yogurt a good source of probiotics, or is that a bunch of hype? Can you take a pill instead of eating yogurt?
     "Pro"-biotics are the opposite of  "anti"-biotics:  they "pro"-mote bacterial colonization in the body.  The bacteria they promote are supposed to be "good" bacteria.   Human beings are not individuals, but conglomerates.  We carry around with us trillions of consensual organisms, like barnacles, each with its own life cycle and pattern of expression.  Mostly, we're unaware of these critters, who crawl like parasites (without the life-draining qualities) under our fingernails and all over our hair, skin, mouths, noses and intenstinal tracts.
     Some body parts are supposed to be free of weird organisms--they're sterile--and these include the brain, liver, spleen, heart, pancreas, ovaries, prostate, muscles, chest cavity and peritoneum (the slippery, hollowed-out abdominal space within which all our internal organs slide around).   But, in fact, these organs in turn are made up of cells which probably think of themselves as "independent," because they have little brains (nuclei) and energy storehouses (mitochondria) and internal "organs" (ribosomes, Golgi bodies), and they operate within their own time-frames, not takng orders from anyone except the big boss (sometimes) via hormones secreted by the brain.  And within these cells, it's reasonable to suppose that the ribosomes and mitochondria and multitudinous other subcellular structures consider themselves independent, since they're able to operate on automatic pilot in ways that correlate with how we humans live our separate lives within the macrocosm of the human race.  It's possible to follow this line of reasoning down to the very atoms that are the nuclear basis of our cells, and to imagine that they, too, are spiralling independently within the molecules they comprise, and that their electrons, neutrons and protons have the same perspective, and so do the six flavors of quarks that are the sub-elements of these hadrons. 
     The point is, individual humans are giant, vibrating communities of living creatures, gazillions of them, hanging out together on one big moving framework, like a many-roomed passenger ship--your body--as it cruises around the world.
     Probiotics are those passengers who set up house in our gastrointestinal tracts, minding their own business, using the airless spaces along the colonic villi as peaceful abodes for carrying out their metabolic processes in the same way that various mushrooms, mosses and lichens attach themselves to the gnarly bark of giant oaks and live out their private lives without partying too much, or otherwise getting out of control.
     Probiotics go by many names, often ending in "bacillus" (lactobacillus reuteri, lactobacillus rhamnosis, lactobacillus acidophilus...but also bifidobacterium animalus, escherichia coli, and lactococcus lactis) because they are elongated, tubular bacteria that look, under the microscope, like an unconventional pasta salad with elbow macaroni, fetuccini, and linguini.  The bacteria become enrobed in purple when crystal violet is used during gram staining to see and count them under the microscope.  This is something I do every day in my office, on vaginal specimens, which have lots of lactobacilli they borrow, presumably (physicians haven't been able to map out the route) from the intestinal tract.
     We are so well-adapted to our environment that our bodies have become friendly to the point of dependent on these bacterial squatters--in fact, our very lives depend on them.  Over millennia, probiotic bacteria have been easy for humans to ingest and harbor, because they live on the surface of practically every plant in the wild.  Cut up a cabbage, or pluck an apple from a tree, or a Japanese plum, or a nasturtium blossom, and eat them without scrubbing or disinfecting their surfaces, and you'll have taken in a good supply of probiotics.   No need to gulp down yogurt as a medicinal supplement, or take expensive refrigerated capsules of probiotics.
     How many cabbages, apples and nasturtium blossoms have you eaten today? 
     None?
     That's the problem.  There are no probiotics in pasteurized, hot-packed, dehydrated, or canned foods.  Both toxic and beneficial bacteria are killed by pesticides and processing.  There aren't any probiotics in Krispy Kreme donuts, or drive-through cheeseburgers, or fried chicken from the grocery store delicatessen.  When you wash your organic fruits and vegetables before eating them, you wash off the probiotics.
     There aren't even probiotics in most yogurt, which is supposed to be made with live, cultured, probiotic bacteria.  If you don't believe this, try using that yogurt as a starter for making your own batch of yogurt at home.  You'll discover that the milk doesn't "set," because there aren't enough probiotics in that so-called healthy yogurt to make flea-saliva curdle.  Therefore, commercial yogurt isn't replenishing your GI tract with the organisms you think you're getting.
     I'm not willing to make broad-reaching claims for the miraculous, health-giving benefits of probiotics.  I will say, as a self-named anthropologist and as a physician, that it's dangerous to stray too far from the biological roots of our being.
     Which means:  the closer you adhere to the diet your ancestors followed a hundred or a thousand years ago, the better.  Isn't this common sense?  Our genes can't alter, via beneficial mutations, our overall physiology at the accelerated rate our lifestyles have changed, so we're probably suffering--in vague and not so vague ways--from a host symptoms and illnesses (especially auto-immune diseases). Our intestinal tracts don't know how to get along without those friendly cohabitants to whom they've rented space for twenty thousand years, and our neuronal structures don't know what avalanche has befallen them in the form of twenty-first century techno-electro-satellite-transmitted assaults and impetuses.  Our poor muscle fibers, twitching like housebound puppies in anticipation of hours of stretching and galavanting across great stretches of savannah--activity that has been biologically programmed to the point of becoming an imperative for healthy functioning--don't know why they're stuck, day after day, it seems, paralytically, to the seat-cushions of our office chairs and TV sofas.  What's going on?--they must be screaming.
     And so are our GI tracts--crying out for the friendly bacteria that have made quick work of digestion since the dawn of mankind, and have contributed to our immune functioning in ways we are only beginning to understand.  
     Probiotics are like the grass in your lawn.  If you eradicate it, you get a mess of weeds.  If you seed the lawn with grass, the weeds are kept in check.  When I look at slides of the mucosal elements inside my patients, three out of four have no lactobacilli--a shocking statistic.  It's a little like saying that three out of four people don't have arms, or legs, or part of their brains.  In fact, lactobacilli operate a little like the brains of digestion, making decisions about which foodstuffs are worth absorbing, and which should be detoxified and sent out the back door.
     You can't function normally without probiotic organisms lining your gut, from top to bottom, and are especially populous in the lower intestinal tract.  And the best way to get these organisms is not to take pills, but to make yogurt at home, and sauerkraut, and pickles, and olives, and to eat fruit right off the tree, and to walk around your organic garden--or someone's organic garden--plucking tomatoes and arugula, popping blueberries, munching on pears and sweet peas, and having faith that these edibles, with their patina of soil-dust, are not "dirty" or "dangerous" because they haven't been washed, but as natural and health-enhancing for us as they are for the squirrels and chipmunks and other wild, energetic creatures who make a steady diet of unwashed foodstuffs, and seem awfully healthy to me.   

A Bivens Action

     Can a person sue the federal government for civil rights violations--for example, a raid on a medical clinic without adequate cause?
     In 1971, such lawsuits became possible with the Supreme Court decision in Bivens v. 7 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971). 
     Webster Bivens filed a lawsuit against the government for violation of his Fourth Amendment rights after six FBI agents searched his house for narcotics and arrested him without a warrant and without reasonable cause.  The Fourth Amendment protects us from unreasonable search and seizure. 
     Up until this time there had only been in place a state law protecting citizens from invasion of privacy, not a federal law, so the FBI claimed that Bivens had "no cause for action" against federal employees.  The District Court agreed and dismissed the lawsuit.  (If there isn't a law in place, a litigant can't claim a law has been broken, despite a Bill of Rights amendment that implies certain protections, such as that of privacy.)  Bivens appealed the case and the Second Circuit upheld the lower court's decision, saying again that Bivens didn't have a claim because a federal law had not been broken.
     But Bivens persisted, claiming that his Fourth Amendment right to protection from unreasonable search and seizure implied by the Fourth Amendment in the Bill of Rights had been ignored by FBI agents.  The Supreme Court agreed to hear this case because it needed to establish whether a plaintiff could bring a claim against federal agents for violating the Fourth Amendment.  Prior to this, federal government employees had enjoyed a certain immunity from such lawsuits, based on an assumption that a government of the people can't be sued by the people, any more than a person could sue himself.
     Bivens v. 7 became important case law when the justices overturned the lower courts' decisions, and established that if a person's constitutional rights have been violated by federal officials, that person may recover damages under a civil action against the government.  Their decision was based on a right to redress that had been previously established in state courts when an individual's constitutional rights had been violated--not having a similar federal right seemed inconsistent.  Three justicies (Burger, Black and Blackman) disagreed, saying that such a decision would lead to "another avalanche of new federal cases," in which people would claim the right to monetary damages after unreasonable searches and seizures.
     But why should there be an avalanche of cases against the government, if its officials are staying within the bounds of the law?  There's the problem:  when people are invested with power, it is often the case that they abuse that power, unless there are restraints (such as a citizen's right to redress) in place to curb abuses of power.
      As it turns out, Bivens actions are rarely successful.  My lawyers tell me that fewer than 3% of the lawsuits brought against the federal government for violations of constitutional rights are successful.  There is one report, possibly anecdotal, that of the twelve thousand Bivens lawsuits brought against federal agents from 1979 to 1985, only three were ruled in favor of the plaintiff.  Most Bivens actions have been waged against law enforcement agents--police, FBI employees, and other criminal justice employees.  Bivens actions may apply to violations of the First, Fourth and Sixth Amendments, but there is a curious, irrational provision that restricts federal employees from filing Bivens cases against their superiors (a result of the decision in Caryl Leventhal vs. Janet Reno, where the court decided that federal employees had other ways to seek compensation within the parameters of the employment contract).
     Why do so few plaintiffs prevail when they bring a Bivens action against a federal agent?  Why should people who work for the federal government in positions of power (like prosecutors, FBI agents, and judges) ever be immune from penalties when they commit crimes against citizens, by abusing them (in cases of police brutality) or otherwise violating their rights?  Federal immunity seems especially unfair given that state government officials can be sued much more easily for violating citizens' rights under 42 U.S.C. [Section] 1983 (6).
      The Supreme Court implied that people like Bivens, had a right to seek damages against an unfair federal government--and it's this idea of something being implied that creates controversy, thereby allowing federal courts to sidestep punishments for federal employees who violate the rights of American citizens.  It is likely that very few Bivens actions are brought against federal employees because lawyers like mine tell their clients that they might as well forget about filing a Bivens lawsuit, since the chances of success are slim and the cost of waging a case is so high.  (Bivens himself was represented, pro bono, by his lawyer at the time, Stephen A. Grant.)
     "You might as well forget about trying to sue the government for the raid on your clinic," my lawyer, Gilbert Schaffnit, told me.
     "Why?"
     "Because they're rarely successful."
     "But, what if I think the search and raid were unjustifiable?"
     "You're still unlikely to win."
     "What if I think my Fourth Amendment right was violated?"
     "You'd have to prove that."
     "So?  Isn't that why I have attorneys?"
     "It might cost as much as a million dollars."
     "How can I prove it, without seeing the affidavits the FBI presented to Magistrate Jones?"
     "That's another problem."
     "Can we force the government to open the affidavits in my case?"
     "Yes, maybe, if we appeal to a higher court on the basis that your prosecutors have dedicated enough time to this investigation, and should not make you wait any longer."
     "But if you do that," said my other lawyer, Mark Thomas, "you open up the possibility of being indicted, or you may get all the patients' medical records back just when you've decided to close the clinic."
     "How can I be indicted, if there wasn't 'reasonable cause' for the raid in the first place?"
     "We don't know," the lawyers both said.
     "Why aren't Bivens actions successful?" I asked.
     "They just aren't," Schaffnit said.   

The Fourth Amendment

     The Fourth Amendment is part of the Bill of Rights, which in turn is part of the United States Constitution.
     The Fourth Amendment protects Americans against invasion of privacy, especially from searches and seizures by government agents.  In most cases a warrant must be obtained from a judge who thereby permits agents to search, seize, forfeit or arrest an individual or corporation.
     Here's the actual wording of the amendment:
  
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

     A key problem surrounds the interpretation of the terms "unreasonable" and "probable cause," and therein lies the history of this amendment.
     The authors of our Constitution used as a basis for outlining its tenets their understanding of English law.  Concerning the privacy of the state's inhabitants, Sir Edward Coke said:

"The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose."

In one important case, Entick v. Carrington (1765) the Early of Camden ruled that a search and seizure of a British author who had been accused of writing "seditious papers," had been unwarranted because the king's henchmen "lacked probable cause to even justify the search.  Entick established the English precedent that the executive is limited in intruding on private property by common law" (Wikipedia, "Fourth Amendment").
     Our forefathers were concerned about the possibility that, however they structured the Constitution, men in power might become so bloated with authority that they would misuse it, and the Bill of Rights was formulated with the express purpose of protecting individuals against such big-headed, gun-wielding representatives of the government, those badge-wearing public servants (we've all experienced them) who see themselves as avatars of governmental power with a capital "P" rather than as humble agents for the good, purposeful and mostly passive oversight of the rights of Americans.
     In its original form the Fourth Amendment applied only to federal raids, but in 1961, with the case Mapp v. Ohio, 367 U.S. 63, the Supreme Court said that states must abide by the Fourth Amendment, too.
     My clinic was raided by federal agents, but there were state agents there, too, as well as members of the Gainesville Police force.  My lawyer, Mark Thomas, said this meant that the government was taking a shotgun approach, looking for anything and everything (perhaps because its agents feared they would find nothing, and didn't want to embarrass themselves?)--"If they can't find any federal laws you've broken, they'll surely be looking for civil offenses."  This means that if the federal government didn't have cause for the raid, they hoped the State of Florida could find something to apprehend.
     Given the hieroglyphic complexity of the coding and billing requirements for Medicare (federal) and Medicaid (state) insurance claims, it must have seemed to the federal agents and their supervising prosecutors--and to the corresponding state agents--that they could hardly fail to find something I did wrong, something, somewhere in the fine print of all that writing we docs are forced to do whenever we send a bill for seeing and treating a patient.  Where is it, I keep asking?  Come on, I want to say, the party's over, open the package!  What did I do wrong?  Does whatever you "found," then, justify the search, seizures, forfeitures, guns, and pomp of that sunny June day?
     What is a "reasonable" search and seizure?
     Did the government violate my Fourth Amendment rights by invading my clinic "beyond a reasonable cause," without evidence to support an suspicion that I was committing a criminal offense or had in the past committed such offenses, and thereby posed a threat to society?
     Not only are government officials forbidden from raiding a place without reasonable suspicion, but they "may not detain an individual even momentarily without reasonable and articulable suspicion" (Wikipedia).  I am told that "momentarily" means something like fifteen minutes.  During the raid on Colasante Clinic, my employees were detained for three to eight hours--far in excess of the law, unless they had "articulable suspicion."  Where is documentation of their suspicion?  In what way could a file clerk or nursing assistant be considered so suspicious their rights could be violated in the way they were on June 16, 2011?
     On that day, federal agents had obtained a warrant for a seizure, from Magistrate Judge Jones.  Who, then, should be held accountable for the mayhem at my clinic, and for subsequent damages to my professional reputation?  The prosecutors, Corey Smith and Bobby Stinson?  The FBI agents, Robert Murphy and Carissa Bowling, and their three dozen crew?  Judge Jones himself?
     My lawyers tell me that it's very easy to obtain a warrant for a search and seizure from a judge.
     Why should it be so easy?  Does the judge not require a heavy enough burden of proof from government agents before granting a warrant?  Don't our prosecutors, agents and judges appreciate the extent of the damage they do when they conduct searches and seizures--damage to a person's reputation in the community, and self-image, and willingness to continue working, and faith in our justice system?
     Do prosecutors and agents exaggerate what they think they know, so that judges have no recourse but to grant warrants as a protection for society?  Aren't judges smarter than that?   Or are prosecutors banking on winning, calculating the odds:  Look how much we can take!  It's likely this little lady will be cowed by our authority and weaponry!  She won't retaliate, especially if she's got something to hide, however small.
     Sorry, guys.  I don't have anything to hide.  And I'm not a "little lady."  I'm a hardworking citizen, like you, with rights, just like yours.  And one of my rights is to be protected from your overzealous, gun-twirling, "I'd shut you down today, if I could," invasion of my clinic, my "castle and fortress."
     What if I'm not a criminal?  Then what?  What?  Do these agents simply go back to their offices and calculate their odds with some other innocent American citizen--someone who's got enough cash in the bank to seize, someone who's life and rights are irrelevant to a government hell-bent on flexing its muscles?
     I'm rolling the smooth surface of the Fourth Amendment in my palm, like a polished pink crystal-- rose quartz, perhaps, which has metaphysical qualities.   A violation of the Fourth Amendment has big implications:  if the government can't prove it had enough evidence to justify its raid and forfeitures--and I doubt if it can--I may have recourse to restitution, whatever that might entail.        

  

Curried Black-Eyed Peas with Spinach

Standard fare at my house on January 1st for a year of good luck, black-eyed peas are never old or mealy at the supermarket today, because so many people buy them (in fact, they may be sold out!)--make enough for a crowd.  (I'm eating double helpings today--don't I need it?)

2 pounds black-eyed peas, dried
10 bay leaves
2 Tbsp salt, more or less to taste
3/4 cup olive oil
2 large or 6 small yellow onions, chopped
6 cloves garlic, chopped
2 pounds spinach, fresh, washed, or 4 boxes frozen chopped spinach
4 Tbsp curry powder
Salt to taste

Wash black-eyed peas three times, cover with three times as much cold water, add bay leaves, and bring to a boil over medium-high heat.  Reduce heat to simmering and cover beans.  Cook until beans are soft, about 1 1/2 hours.  Remove bay leaves and drain beans, reserving the cooking liquid by pour through a colander into another bowl.

Heat olive oil, add onions and garlic, and stir until translucent.  Stir in curry powder, cooking for a few minutes to bring out the flavors.  Add spinach, small amounts at a time, until wilted.  Stir in black-eyed peas, adding bean water to make a creamy base.  Serve with homemade whole-wheat biscuits, or brown rice.