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Seeking ammunition in his war on the war on drugs
By Stephen Deere
June 26 2016
MEXICO, MO. • A smartphone camera poked out of his shirt pocket. An attorney stood at his side. And in his right hand was a manila folder containing a printout of a law whose impotence would soon be revealed.
“Hi, there,” said Aaron Malin to a jailer behind a security window at the Audrain County Jail. “We are here for a meeting of the East Central Drug Task Force.”
Malin and lawyer David Roland were buzzed in, but then were told to leave.
“This meeting’s not a public meeting,” said a man, identifying himself as a detective.
“Yeah, it is,” Malin said.
They argued for the next two minutes, until the officer said: “You need to leave, man. I’m not going to ask you again.”
“There’s going to be statutory liability,” Malin said. Then he asked Roland: “How fast do you think we can get this filed?”
“I bet not before the meeting is over,” the officer quipped.
Ten days later, Malin filed a lawsuit. He was 21 years old, but he had already earned a reputation for attacking situations he deemed unjust with unrivaled tenacity.
Years earlier, he had concluded that the War on Drugs ruins more lives than it saves. Now he was focused on obtaining records to expose how that war is fought. Those details, he believed, would sway public sentiment.
In the past three years, Malin estimates he has filed between 500 and 1,000 records requests with the Missouri Highway Patrol, various drug task forces, and others he believed were subject to Missouri’s open records law, also known as the Sunshine Law.
Some agencies didn’t respond to the requests. Others claimed the law did not apply to them.
So he sued one agency after another, summoning the state’s top law enforcement officers to depositions and, in one case, to trial.
The litigation campaign has highlighted points of contention in an ongoing debate about access to public records.
Does a provision of the state’s Sunshine Law protect taxpayers by deterring litigation?
Or does it incentivize ignorance?
Is a law intended to inform being used to torment?
“He knows what he’s doing,” said Lt. Jason Grellner, president of the Missouri Narcotics Officers Association and a candidate for sheriff in Franklin County. “Basically he is just harassing the task forces.”
The exchange with the officer at the Audrain County Jail occurred 18 months ago and led to an unusual trial earlier this month.
The defendant — the East Central Task Force — had already admitted breaking the law. But did officials know it at the time?
Thousands of dollars in attorney fees depend on the answer.
Early start
When Malin was 8, his uncle died after overdosing on prescription painkillers.
“I think that made me realize that things maybe weren’t quite right,” Malin said. “He died of the good drugs — the ones that weren’t supposed to be bad for you.”
Malin said he was initially shy and withdrawn, until his freshman year at Marquette High School in Chesterfield, when he enrolled in a debate class. He discovered he had a lot to say and gained confidence as he honed his ability to deconstruct arguments.
At tournaments, a coin flip determined which side of an issue he would argue. Among the topics: “The abuse of illegal drugs ought to be treated as a matter of public health not of criminal justice.”
That led him to research other nations’ drug policies, including Portugal’s, where 15 years ago the use of all drugs was decriminalized. Drug use among youths fell, according to several studies, and deaths from overdoses sharply declined.
“Just the discovery of the existence of alternative drug policies doing research on this debate resolution was kind of the first step,” Malin said.
As his skills increased, so did his affinity for the marginalized.
“He doesn’t care about what anybody thinks, and he never has,” said his father, Scott, a lawyer. “Even in years when most kids are very susceptible to peer pressure, he couldn’t care less.”
Disturbed by the ridicule of some of his gay friends, he founded the Marquette Diversity Alliance in 2009. The Westboro Baptist Church showed up to protest. Malin organized a counterdemonstration. While a handful of Westboro members held anti-gay signs across the street, hundreds of students stood silently around the flagpole.
At the end of his senior year, Malin earned a spot in the National Debate Tournament in Dallas, placing 17th in the nation.
It took him two years to earn a political science degree from Truman State University. During that time, he was elected student body president and led partially successful campaigns to add sexual orientation and gender identity to the nondiscrimination policies of his school, the city of Kirksville and the state of Missouri. Then he started work on a master’s degree at the University of Missouri-Columbia.
For years, he had volunteered for Show-Me Cannabis, an organization advocating for the legalization of marijuana. At a meeting in Sedalia, he met a man who told him his father was serving a sentence of life without parole on a marijuana conviction.
Jeff Mizanskey had just turned 60 and had already spent a couple of decades behind bars — despite never having committed a violent crime.
Malin and other Show-Me Cannabis leaders were captivated by the story and began trying to free Mizanskey. Malin pitched the story to reporters, raised money for billboards that urged people to call Gov. Jay Nixon, and set up meetings between lawmakers and Mizanskey’s family. He also became Mizanskey’s unofficial spokesman, conducting hundreds of interviews.
While those efforts were underway, something else aroused Malin’s interest.
Drug task forces
In October 2013, as he exited Highway 63 to attend a Show-Me Cannabis meeting in Moberly, Mo., he encountered flashing blue and red lights of police cruisers from multiple jurisdictions.
The vehicle license and registration checkpoint was active only for the 30 minutes before the meeting, Malin said. He suspected it was an attempt to scare people away, so he filed Sunshine Law requests to find proof. He never did.
Instead, he learned of an entity called a drug task force, a federally funded, multi-jurisdictional agency established to combat drug trafficking.
He hadn’t heard of them. He guessed most people hadn’t either. And he believed that a lack of scrutiny often breeds corruption.
That year, he became Show-Me Cannabis director of research, and in his first records requests, he asked for information on how many raids they conducted and video or audio from the raids.
Missouri had 25 drug task forces at the time. At some point, more than half ignored his requests, he said. Others didn’t respond for months, quoted him thousands of dollars in fees and illegally redacted material, he said.
One maintained it was under the jurisdiction of a federal agency.
Another seemed to deny its own existence.
Ignorance gets a pass
Like most open records laws, Missouri’s Sunshine Law rests on the belief that democracy depends on an educated electorate. But it stipulates that fines and attorney fees are awarded only when defendants know they are violating the law.
In other words, ignorance is an excuse.
“It actually encourages them not to know,” said Anthony Rothert, legal director for ACLU of Missouri.
Proponents of the provision say it protects small towns that rarely receive records requests and might be susceptible to an unscrupulous attorney who sues only to get paid.
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Since 2011, the Missouri Attorney General’s Office has received 1,055 complaints over Sunshine Law violations and has sued three times.
Spokeswoman Nanci Gonder said the office prefers to mediate the complaints and has succeeded in correcting violations.
Malin said that the office’s efforts to mediate did not go far enough to correct the problems.
He filed his first lawsuit in October 2014 against the Missouri Narcotics Officers Association, claiming that it fell under the definition of a “quasi-governmental body” and was subject to the Sunshine Law.
On Feb. 9, 2015, he filed three more suits — against the East Central Task Force in Audrain County, a task force operated out of the St. Louis Police Department and one based in Kansas City.
On May 20, he sued a task force in mid-Missouri.
Two days later, Nixon commuted Mizanskey’s sentence, making him eligible for parole.
“We were celebrating his freedom at that point,” Malin said. “It was almost guaranteed.”
Malin hopped in his car and headed to the prison in Jefferson City. He wanted to make sure that Mizanskey knew.
The warden had informed Mizanskey moments before Malin arrived. They had a prison employee snap a Polaroid of them together standing in front of an American flag.
Malin smiles with pride. Mizanskey looks dumbfounded.
That July, Malin sued another task force, called NITRO, in northwest Missouri. But his legal battles would soon exact a price.
Still fighting
Last summer, as Show-Me Cannabis began its push to put a medical marijuana law on the ballot this November, Malin’s litigation appeared to threaten it.
John Payne, the organization’s executive director and treasurer, said he had heard that the lawsuits had negatively influenced some law enforcement officials’ opinion of the initiative. He also said the organization had to make hard choices about its spending.
In August, about an hour before a Show-Me Cannabis board meeting, Malin received an email from Payne. It began: “After much thought and deliberation, I have asked the board to consider severing ourselves from the litigation, which I believe will mean parting ways with you.”
That afternoon his relationship with the organization ended.
Roland, the lawyer Show-Me Cannabis had been paying, agreed to continue with the cases, knowing that he would receive fees only if he could prove “knowing” or “purposeful” violations.
Malin enrolled in law school at the University of Denver last fall, but that didn’t slow the pace of his litigation.
He sued ACT Missouri, a nonprofit group that advocates for “drug free” communities and that Malin contends receives most of its budget from state tax dollars. He followed that with a suit against the Cole County prosecuting attorney. The ACLU represents him in those cases.
In January, Malin sued the St. Louis County Multi-Jurisdictional Drug Task Force, alleging it had fabricated meeting minutes.
The Audrain County case was the first of his lawsuits to go to trial before a judge.
‘We are not the bad guys’
In the courtroom, six police chiefs and sheriffs from three counties sat on one side. They sighed and rolled their eyes occasionally.
Malin was mostly expressionless, except for when he looked out over the gallery, searching for a familiar face. Mizanskey had been paroled in September, but Malin hadn’t seen him outside of prison. Mizanskey had promise to attend the trial. After about 15 minutes, Mizanskey and his son slid past the law enforcement officials and into the back row.
“The defendants, in the very memorandum that they sign each year, acknowledge they are subject to the Sunshine Law,” said Roland, in his opening statement.
Louis Leonatti, a Mexico, Mo.-based attorney representing the task force, said the case was purely political.
“They want to make us out to be the bad guys,” he said. “We are not the bad guys. We go after the bad guys.”
Audrain County Sheriff Stuart Miller told the court that he had responded to records requests as sheriff. But he said a former prosecuting attorney told him the drug task force was exempt.
Then, he made a surprising admission. When Roland asked how he redacted documents, Miller said he deleted information that he could legally withhold, rather than blacking it out.
“And when you would modify these original documents, would you include any sort of notation acknowledging that you made the modification?” Roland asked.
“No, I did not,” the sheriff said.
During a recess, Malin emerged from the courtroom and rushed to the man whose freedom he helped win.
“It’s been too long,” Malin said, hugging Mizanskey.
Mizanskey wept.
In his closing statement, Leonatti said the task force had quickly adjusted its procedures to comply with the law.
But that wasn’t the issue, Roland argued. “You don’t escape the lawful consequences of your actions, just because you say, ‘Oh, but I’ll do better going forward,’” he said.
The judge is not expected to rule in the case for at least another month.
Malin hasn’t seen the results he first envisioned but said he has realized some victories. Task forces were receiving attention. People were asking questions. Some were filing their own Sunshine Law requests.
“I have gotten all kinds of records I never used to get,” he said.
That evening he flew back to Denver and resumed other efforts aimed at addressing addiction and the criminal justice system’s response to it. This summer, he’s volunteering for a nonprofit organization distributing needles to people who inject drugs and working at a law school legal clinic that seals criminal records.
He hasn’t chosen an area in which to specialize, but he has considered at least one possibility.
“It has occurred to me that I could spend all day long after I have a law license suing noncompliant entities, and I wouldn’t run out of entities to sue,” he said. “Like, ever.”
Cont http://www.stltoday.com/news/local/...cle_77926053-940f-5b5e-90a2-a032206327ec.html
By Stephen Deere
June 26 2016
MEXICO, MO. • A smartphone camera poked out of his shirt pocket. An attorney stood at his side. And in his right hand was a manila folder containing a printout of a law whose impotence would soon be revealed.
“Hi, there,” said Aaron Malin to a jailer behind a security window at the Audrain County Jail. “We are here for a meeting of the East Central Drug Task Force.”
Malin and lawyer David Roland were buzzed in, but then were told to leave.
“This meeting’s not a public meeting,” said a man, identifying himself as a detective.
“Yeah, it is,” Malin said.
They argued for the next two minutes, until the officer said: “You need to leave, man. I’m not going to ask you again.”
“There’s going to be statutory liability,” Malin said. Then he asked Roland: “How fast do you think we can get this filed?”
“I bet not before the meeting is over,” the officer quipped.
Ten days later, Malin filed a lawsuit. He was 21 years old, but he had already earned a reputation for attacking situations he deemed unjust with unrivaled tenacity.
Years earlier, he had concluded that the War on Drugs ruins more lives than it saves. Now he was focused on obtaining records to expose how that war is fought. Those details, he believed, would sway public sentiment.
In the past three years, Malin estimates he has filed between 500 and 1,000 records requests with the Missouri Highway Patrol, various drug task forces, and others he believed were subject to Missouri’s open records law, also known as the Sunshine Law.
Some agencies didn’t respond to the requests. Others claimed the law did not apply to them.
So he sued one agency after another, summoning the state’s top law enforcement officers to depositions and, in one case, to trial.
The litigation campaign has highlighted points of contention in an ongoing debate about access to public records.
Does a provision of the state’s Sunshine Law protect taxpayers by deterring litigation?
Or does it incentivize ignorance?
Is a law intended to inform being used to torment?
“He knows what he’s doing,” said Lt. Jason Grellner, president of the Missouri Narcotics Officers Association and a candidate for sheriff in Franklin County. “Basically he is just harassing the task forces.”
The exchange with the officer at the Audrain County Jail occurred 18 months ago and led to an unusual trial earlier this month.
The defendant — the East Central Task Force — had already admitted breaking the law. But did officials know it at the time?
Thousands of dollars in attorney fees depend on the answer.
Early start
When Malin was 8, his uncle died after overdosing on prescription painkillers.
“I think that made me realize that things maybe weren’t quite right,” Malin said. “He died of the good drugs — the ones that weren’t supposed to be bad for you.”
Malin said he was initially shy and withdrawn, until his freshman year at Marquette High School in Chesterfield, when he enrolled in a debate class. He discovered he had a lot to say and gained confidence as he honed his ability to deconstruct arguments.
At tournaments, a coin flip determined which side of an issue he would argue. Among the topics: “The abuse of illegal drugs ought to be treated as a matter of public health not of criminal justice.”
That led him to research other nations’ drug policies, including Portugal’s, where 15 years ago the use of all drugs was decriminalized. Drug use among youths fell, according to several studies, and deaths from overdoses sharply declined.
“Just the discovery of the existence of alternative drug policies doing research on this debate resolution was kind of the first step,” Malin said.
As his skills increased, so did his affinity for the marginalized.
“He doesn’t care about what anybody thinks, and he never has,” said his father, Scott, a lawyer. “Even in years when most kids are very susceptible to peer pressure, he couldn’t care less.”
Disturbed by the ridicule of some of his gay friends, he founded the Marquette Diversity Alliance in 2009. The Westboro Baptist Church showed up to protest. Malin organized a counterdemonstration. While a handful of Westboro members held anti-gay signs across the street, hundreds of students stood silently around the flagpole.
At the end of his senior year, Malin earned a spot in the National Debate Tournament in Dallas, placing 17th in the nation.
It took him two years to earn a political science degree from Truman State University. During that time, he was elected student body president and led partially successful campaigns to add sexual orientation and gender identity to the nondiscrimination policies of his school, the city of Kirksville and the state of Missouri. Then he started work on a master’s degree at the University of Missouri-Columbia.
For years, he had volunteered for Show-Me Cannabis, an organization advocating for the legalization of marijuana. At a meeting in Sedalia, he met a man who told him his father was serving a sentence of life without parole on a marijuana conviction.
Jeff Mizanskey had just turned 60 and had already spent a couple of decades behind bars — despite never having committed a violent crime.
Malin and other Show-Me Cannabis leaders were captivated by the story and began trying to free Mizanskey. Malin pitched the story to reporters, raised money for billboards that urged people to call Gov. Jay Nixon, and set up meetings between lawmakers and Mizanskey’s family. He also became Mizanskey’s unofficial spokesman, conducting hundreds of interviews.
While those efforts were underway, something else aroused Malin’s interest.
Drug task forces
In October 2013, as he exited Highway 63 to attend a Show-Me Cannabis meeting in Moberly, Mo., he encountered flashing blue and red lights of police cruisers from multiple jurisdictions.
The vehicle license and registration checkpoint was active only for the 30 minutes before the meeting, Malin said. He suspected it was an attempt to scare people away, so he filed Sunshine Law requests to find proof. He never did.
Instead, he learned of an entity called a drug task force, a federally funded, multi-jurisdictional agency established to combat drug trafficking.
He hadn’t heard of them. He guessed most people hadn’t either. And he believed that a lack of scrutiny often breeds corruption.
That year, he became Show-Me Cannabis director of research, and in his first records requests, he asked for information on how many raids they conducted and video or audio from the raids.
Missouri had 25 drug task forces at the time. At some point, more than half ignored his requests, he said. Others didn’t respond for months, quoted him thousands of dollars in fees and illegally redacted material, he said.
One maintained it was under the jurisdiction of a federal agency.
Another seemed to deny its own existence.
Ignorance gets a pass
Like most open records laws, Missouri’s Sunshine Law rests on the belief that democracy depends on an educated electorate. But it stipulates that fines and attorney fees are awarded only when defendants know they are violating the law.
In other words, ignorance is an excuse.
“It actually encourages them not to know,” said Anthony Rothert, legal director for ACLU of Missouri.
Proponents of the provision say it protects small towns that rarely receive records requests and might be susceptible to an unscrupulous attorney who sues only to get paid.
Pause
Current Time 0:00
/
Duration Time 0:00
Loaded: 0%Progress: 0%0:00
Fullscreen
00:00
Unmute
Since 2011, the Missouri Attorney General’s Office has received 1,055 complaints over Sunshine Law violations and has sued three times.
Spokeswoman Nanci Gonder said the office prefers to mediate the complaints and has succeeded in correcting violations.
Malin said that the office’s efforts to mediate did not go far enough to correct the problems.
He filed his first lawsuit in October 2014 against the Missouri Narcotics Officers Association, claiming that it fell under the definition of a “quasi-governmental body” and was subject to the Sunshine Law.
On Feb. 9, 2015, he filed three more suits — against the East Central Task Force in Audrain County, a task force operated out of the St. Louis Police Department and one based in Kansas City.
On May 20, he sued a task force in mid-Missouri.
Two days later, Nixon commuted Mizanskey’s sentence, making him eligible for parole.
“We were celebrating his freedom at that point,” Malin said. “It was almost guaranteed.”
Malin hopped in his car and headed to the prison in Jefferson City. He wanted to make sure that Mizanskey knew.
The warden had informed Mizanskey moments before Malin arrived. They had a prison employee snap a Polaroid of them together standing in front of an American flag.
Malin smiles with pride. Mizanskey looks dumbfounded.
That July, Malin sued another task force, called NITRO, in northwest Missouri. But his legal battles would soon exact a price.
Still fighting
Last summer, as Show-Me Cannabis began its push to put a medical marijuana law on the ballot this November, Malin’s litigation appeared to threaten it.
John Payne, the organization’s executive director and treasurer, said he had heard that the lawsuits had negatively influenced some law enforcement officials’ opinion of the initiative. He also said the organization had to make hard choices about its spending.
In August, about an hour before a Show-Me Cannabis board meeting, Malin received an email from Payne. It began: “After much thought and deliberation, I have asked the board to consider severing ourselves from the litigation, which I believe will mean parting ways with you.”
That afternoon his relationship with the organization ended.
Roland, the lawyer Show-Me Cannabis had been paying, agreed to continue with the cases, knowing that he would receive fees only if he could prove “knowing” or “purposeful” violations.
Malin enrolled in law school at the University of Denver last fall, but that didn’t slow the pace of his litigation.
He sued ACT Missouri, a nonprofit group that advocates for “drug free” communities and that Malin contends receives most of its budget from state tax dollars. He followed that with a suit against the Cole County prosecuting attorney. The ACLU represents him in those cases.
In January, Malin sued the St. Louis County Multi-Jurisdictional Drug Task Force, alleging it had fabricated meeting minutes.
The Audrain County case was the first of his lawsuits to go to trial before a judge.
‘We are not the bad guys’
In the courtroom, six police chiefs and sheriffs from three counties sat on one side. They sighed and rolled their eyes occasionally.
Malin was mostly expressionless, except for when he looked out over the gallery, searching for a familiar face. Mizanskey had been paroled in September, but Malin hadn’t seen him outside of prison. Mizanskey had promise to attend the trial. After about 15 minutes, Mizanskey and his son slid past the law enforcement officials and into the back row.
“The defendants, in the very memorandum that they sign each year, acknowledge they are subject to the Sunshine Law,” said Roland, in his opening statement.
Louis Leonatti, a Mexico, Mo.-based attorney representing the task force, said the case was purely political.
“They want to make us out to be the bad guys,” he said. “We are not the bad guys. We go after the bad guys.”
Audrain County Sheriff Stuart Miller told the court that he had responded to records requests as sheriff. But he said a former prosecuting attorney told him the drug task force was exempt.
Then, he made a surprising admission. When Roland asked how he redacted documents, Miller said he deleted information that he could legally withhold, rather than blacking it out.
“And when you would modify these original documents, would you include any sort of notation acknowledging that you made the modification?” Roland asked.
“No, I did not,” the sheriff said.
During a recess, Malin emerged from the courtroom and rushed to the man whose freedom he helped win.
“It’s been too long,” Malin said, hugging Mizanskey.
Mizanskey wept.
In his closing statement, Leonatti said the task force had quickly adjusted its procedures to comply with the law.
But that wasn’t the issue, Roland argued. “You don’t escape the lawful consequences of your actions, just because you say, ‘Oh, but I’ll do better going forward,’” he said.
The judge is not expected to rule in the case for at least another month.
Malin hasn’t seen the results he first envisioned but said he has realized some victories. Task forces were receiving attention. People were asking questions. Some were filing their own Sunshine Law requests.
“I have gotten all kinds of records I never used to get,” he said.
That evening he flew back to Denver and resumed other efforts aimed at addressing addiction and the criminal justice system’s response to it. This summer, he’s volunteering for a nonprofit organization distributing needles to people who inject drugs and working at a law school legal clinic that seals criminal records.
He hasn’t chosen an area in which to specialize, but he has considered at least one possibility.
“It has occurred to me that I could spend all day long after I have a law license suing noncompliant entities, and I wouldn’t run out of entities to sue,” he said. “Like, ever.”
Cont http://www.stltoday.com/news/local/...cle_77926053-940f-5b5e-90a2-a032206327ec.html
