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July 31, 2013

Big taxpayer pricetag ($4 million) for just one notable casualty from federal drug war

Accurately calculating either the benefits or costs of the modern American war on drugs is all but impossible.  But it is hard not to notice and lament the discovery of one particularly costly incident for both a casualty of this war and federal taxpayers as is documented in this local article headlined "DEA settles left-in-cell case for $4M." Here are the details:

Daniel Chong, the self-confessed pot smoker who was caught up in a drug sweep last year and nearly died after federal agents inadvertently abandoned him in a holding cell for five days without food or water, is now a millionaire.

Attorney Eugene Iredale announced Tuesday he reached a $4.1 million settlement with the U.S. Department of Justice, without even filing a lawsuit.  “What happened to Daniel Chong should never happen to any human being on the face of the planet,” Iredale said....

In addition to the cash payment, the lawyer said federal officials agreed to adopt new detainee procedures designed to make sure no one is left unwittingly in a holding cell again.  Iredale said he also was told the temporary lockups inside the San Diego office have been equipped with cameras to allow agents to view what happens inside.

The U.S. Department of Justice, which paid the settlement and absorbed all other liability from the local police agencies assisting in the sweep, declined Tuesday to discuss the events or the multimillion-dollar payment.

The harrowing experience for Chong, 25, an engineering major at UC San Diego, began on a Friday night in 2012, when he admittedly went to some friends’ house in University City to celebrate April 20, a special date for marijuana users.  Chong didn’t know it at the time, but the home had been under surveillance by a federal narcotics task force.

Drug agents executed a search warrant early in the morning of April 21, Among other things, they found 18,000 ecstasy pills, marijuana and several weapons in the residence, according to court papers.  The agents also found Chong sleeping on a couch in the front room and transported him and six others to the San Diego field office of the U.S. Drug Enforcement Administration for follow-up interviews.

Chong said he answered all of the agents’ questions and they agreed to send him home without criminal charges.  But instead he was returned to a temporary holding cell, where he spent the next four days without food or water.  During the final two days of the ordeal, Chong was in complete darkness, he said.  He has said he became delirious, drank his own urine, ate the broken shards of his glasses and used the glass to cut the message “sorry mom” in his own forearm.

He said he kicked the door and screamed for help but agents never came to his assistance.  DEA agents admitted later they “accidentally” left Chong in the cell and took the unusual step of apologizing publicly to the UCSD student.   “When they finally opened the door, I was happy,” Chong said Tuesday. “I thought maybe they were going to take me to a mental ward. I was screaming.”

Chong spent five days at Sharp Memorial Hospital in Kearny Mesa before he was able to return home.  Although his lawyer said Chong still suffers from post-traumatic stress, Chong indicated he is doing better overall....

Findings of an investigation of the case by the Office of the Inspector General’s Office of the U.S. Department of Justice have not been released.  Iredale said federal investigators told him they do not plan to pursue criminal charges against any of the agents involved in the task force. Iredale singled out for the first time a San Diego Police Department officer who was the last person to see Chong before the cell was locked.

July 31, 2013 at 10:36 AM | Permalink

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Comments

It has zip to do with the drug war, federal or any other. The same thing could have happened if he'd been jailed for vagrancy, drunk in public, DUI, minor domestic abuse, shoplifting, you name it.

People screw up, and this was a huge one. There should be accountability. But it has nothing to do specifically with the drug war.

Nice try, though.

Posted by: Bill Otis | Jul 31, 2013 6:06:05 PM

I love how Otis, trying to list non-serious crimes, includes "minor domestic abuse."

Posted by: HGD | Jul 31, 2013 6:19:33 PM

HGD --

A usually amicable husband and wife of many years start arguing. He loses control for three seconds and shoves her. In the following three seconds, she gets furious and calls the cops. By the time they arrive, she wishes she'd never did it and tells them to go away.

Yes, there such a thing a minor domestic abuse -- you didn't know this?

P.S. I notice you stay far away from the main point that the episode Doug is posting about has nothing to do with the drug war in particular and could have happened with a large number of crimes having zip to do with drugs. Got an answer to that?

Posted by: Bill Otis | Jul 31, 2013 6:36:30 PM

This case is like the $3.1 million that the FBI paid Randy Weaver and his 3 kids, after an FBI sniper blew the face off Mrs. Weaver, when she was standing in the doorway of a cabin in Ruby Ridge, Idaho. Although the 9th Circuit, sitting En Banc reversed a Federal Judge's removal of the homicide case against the sniper to Federal Court, where he then dismissed the charges based upon "sovereign immunity", the sniper was never held legally accountable, and went on to fire 8-9 rounds at the Branch Davidians at Waco, Texas. See, "Idaho v. Horiuchi", 253 F.3d 359 (9th Cir. 2001) (En Banc) (Kozinski, Circuit J.). While the criminal case was on appeal, a new District Attorney was elected in Idaho, and when the criminal case was remanded back to state court, he declined to prosecute it and dismissed the charges, saying that too much time had gone by for him to want to pursue it. As in this DEA case, referenced above, no one will be prosecuted or fired from his or her job.

Posted by: Jim Gormley | Jul 31, 2013 7:00:37 PM

Well, since he was arrested by the DRUG ENFORCEMENT ADMINISTRATION, which is charged with enforcing drug laws, during a drug investigation, I'm not sure it's 100% accurate to say the arrest had "nothing to do specifically with the drug war."

Sure, it's possible that it could have happened if he had been arrested for something else. Then there wouldn't be any connection to the drug war. But he was, so there is.

Nice try, though.

Posted by: vachesacree | Jul 31, 2013 7:11:30 PM

It's becoming tragi-comical to me how everything is a fight with you guys. Not specifically you two guys, although Mr. Otis does seem to be ground zero for a lot of the shenanigans (sometimes as instigator, sometimes as target).

The layout and construction of that field office is far more to blame for what happened than the "drug war," as is the lack of proper practices with regard to persons held there (or the failure to follow such practices). Anyhoo, Prof. Berman's framing of the story does seem to belie a bias/agenda of some kind, just like so many of the comments here. Not sure if it is legitimate to expect the proprietor of this blog to take a different approach than the readers...

Posted by: USPO | Jul 31, 2013 7:12:15 PM

Otis, I'm merely noting that your casual inclusion of domestic violence on a list of trivial crimes reflects the lack of comprehension, typical of law enforcement and prosecutors, that results in systematic under-reporting and under-punishment of domestic offenses. And I find it amusing that one class of criminals for whom you appear to have sympathy are men who assault their wives.

As to the "main point," obviously, but for the drug war a college student whose worst offense appears to have been passing out on a friend's couch would not have been arrested in the first place.

Posted by: HGD | Jul 31, 2013 8:16:10 PM

Otis, I'm merely noting that your casual inclusion of domestic violence on a list of trivial crimes reflects the lack of comprehension, typical of law enforcement and prosecutors, that results in systematic under-reporting and under-punishment of domestic offenses. And I find it amusing that one class of criminals for whom you appear to have sympathy are men who assault their wives.

My view of the world is pretty different from Bill Otis's, but there's nothing at all wrong with recognizing that domestic assault runs a spectrum from systematic and severe abuse up to and including murder, obviously deserving of severe punishment, and minor incidents which are best served by consequences like substance abuse counseling. He's right, and the failure among many well-intentioned activists to recognize this is problematic not just for the defendants, but often for complainants themselves, who are quite understandably not always enthusiastic about someone they care about, and often have formed a family with, facing penalties like deportation and destroyed careers.

Posted by: dsfan | Jul 31, 2013 9:51:15 PM

"A usually amicable husband and wife of many years start arguing. He loses control for three seconds and shoves her. In the following three seconds, she gets furious and calls the cops. By the time they arrive, she wishes she'd never did it and tells them to go away."

Bill:

Due to the current federal malum prohibitum philosophy vs. the correct malum in se approach to "law-making", the husband now has his 2nd Amendment "RIGHTS" taken away and can receive many years in the federal pen for having a rusty, non-working bullet on a key-chain, or a shot-gun shell in his Dad's pick-up truck while he is eating Sunday Dinner with his parents.

Posted by: albeed | Jul 31, 2013 9:56:57 PM

vachesacree --

"Well, since he was arrested by the DRUG ENFORCEMENT ADMINISTRATION, which is charged with enforcing drug laws, during a drug investigation, I'm not sure it's 100% accurate to say the arrest had 'nothing to do specifically with the drug war.'"

I never said that the ARREST had nothing to do with the drug war. Forgetting about him once he was in the lockup had nothing to do with the drug war, and it was the forgetting, not the arrest, that created the problem.

Not such a nice try, since this is so utterly obvious.

Posted by: Bill Otis | Jul 31, 2013 9:59:14 PM

HGD --

"As to the 'main point,' obviously, but for the drug war a college student whose worst offense appears to have been passing out on a friend's couch would not have been arrested in the first place."

See my post above, to vachesacree. The arrest was not the problem. But you knew that. See also the comment by USPO.

"Otis, I'm merely noting that your casual inclusion of domestic violence on a list of trivial crimes..."

I view DUI as a "trivial" crime??? Do tell.

"...reflects the lack of comprehension, typical of law enforcement and prosecutors, that results in systematic under-reporting and under-punishment of domestic offenses."

I'm glad to see that in this once instance, albeit a politically correct one, at least one commenter can actually write, "U-N-D-E-R P-U-N-I-S-H-M-E-N-T." But fear not. I don't think you'll be starting a trend.

"And I find it amusing that one class of criminals for whom you appear to have sympathy are men who assault their wives."

This entry is not about what you find amusing, but since this seems to occupy your interest, I'll see you and raise you one: I have sympathy for men who are accused of rape by a drunken stripper, and whose dishonorable and corrupt prosecution is cheered on and demanded by, among others, screeching, ideologically-driven feminists.

P.S. I believe I am one of the few lawyers posting on this board who has never defended, and would not defend, an actual wife beater or rapist. You?

Posted by: Bill Otis | Jul 31, 2013 10:27:21 PM

USPO --

"Anyhoo, Prof. Berman's framing of the story does seem to belie a bias/agenda of some kind, just like so many of the comments here."

Bingo.

"Not sure if it is legitimate to expect the proprietor of this blog to take a different approach than the readers..."

My experience with Doug is that he is pretty much of an independent thinker, although he pretty consistently tends to favor the liberal and pro-defense side. But like you, I thought his framing of this entry was dubious. The drug war just doesn't really have anything to do with this scandalous episode of post-lockup neglect.

P.S. The reason I give and get a lot of fire is that I'm a generally pro-prosecution type on a generally pro-defense blog. I used to be head of appeals at the USAO for EDVA, and held politically-appointed posts in the administrations of both Presidents Bush. I'm not expecting a lot of love here.

Posted by: Bill Otis | Jul 31, 2013 10:39:07 PM

well bill i disagree. the drug war is part of this. In the fact that they seem to now be draging just about anyone off the street and are dragging so many they now can't seem to keep up with who they have arrested.

THAT is their fault. They took "X" people to the lock up and LOST ONE!

The fact that the jailers later didnt' realize the feebs had forgotten one is a problem. but the problem wouldn't have existed if the feebs had kept up with who they collared!

Especialy one they admit had been talked to and was supposed to be RELEASED! so what fuckup took him back to a fucking cell and forget it!

Sorry i think said individual and i'm sure this man knows who it was. Has every legal right to shoot the fuckup and get him/her out of the gene pool before they can breed!

Posted by: rodsmith | Jul 31, 2013 11:52:40 PM

If one of my clients, say, an alien transporter, happened to forget about someone locked in an enclosed room for four days, even if it was truly accidental and done without any intent or malice, he would still be facing prison time because of it. If a harried mother running errands forgets her toddler is in the back seat of the car, she is charged with child endangerment at the very least and with much harsher penalties if something happens to the poor kid, even if she honestly did not remember that her child was there.

In other words, if you have custody over someone, legally or illegally, you have a duty to ensure their welfare, and you can be held criminally liable for failing to do so.

Unless, apparently, you are a DEA agent.

Posted by: C.E. | Jul 31, 2013 11:58:07 PM

C.E. --

In other words, the DEA agents got the very disposition for which you would zealously argue in behalf of the other potential clients in similar circumstances, is that correct?

Posted by: Bill Otis | Aug 1, 2013 1:13:16 AM

"Chong spent five days at Sharp Memorial Hospital in Kearny Mesa before he was able to return home. Although his lawyer said Chong still suffers from post-traumatic stress, Chong indicated he is doing better over all...."

What is the damage, and how is it worth $4 million? Should a plaintiff be allowed to profit from a crime?

Posted by: Supremacy Claus | Aug 1, 2013 7:18:35 AM

Of course, Bill, other police agents could make a mistake like this, just like a US soldier could get caught in friendly fire in any military action. But if it happens on the battlefield during Operation Desert Storm, I think it fair to call that soldier a casualty of the Iraq war. Similarly, I think the kid here is fairly called a drug war casualty.

As most know, I am troubled by big government that seems to hurt more people than it helps. This case goes in the hurt column both for this kid and federal taxpayers. Is it DEA or AG Holder or Prez Obama who should have to take responsibility? Would they not admit these kinds of mistakes are unavoidable in wars?

Posted by: Doug B. | Aug 1, 2013 12:45:00 PM

USPO stated: "It's becoming tragi-comical to me how everything is a fight with you guys." No it is not. I strongly disagree! It almost never happens.

Posted by: Tim Holloway | Aug 1, 2013 1:00:18 PM

Doug --

"Of course, Bill, other police agents could make a mistake like this..."

Correct, so why not call it a "casualty from the war on crime" instead of a casualty "from the federal drug war"? Giving it the title you chose makes no more sense than calling is a "casualty of San Diego-based law enforcement blunders." Such a title would be technically correct, but it would seem to single out San Diego for something that could just as easily happen in Duluth.

I know you have serious doubts about drug criminalization (or at least pot criminalization; your stance on the harder drugs isn't clear to me), but trying to pin this on "the drug war" when, as you correctly acknowledge, it could just as easily happen to cops investigating a bank heist, seems pretty tendentious.

Posted by: Bill Otis | Aug 1, 2013 1:52:22 PM

Tim Holloway --

This is quite a good site in my view. It would be better if you commented more often. As I recall, you and I have had some entertaining and substantive back-and-forth.

Posted by: Bill Otis | Aug 1, 2013 1:57:17 PM

Bill,
It is a valuable site. I was throwing a little humor into the mix --- although some of the things USPO commented about does tend to make one not visit it as often.

Tim Holloway

Posted by: Tim Holloway | Aug 1, 2013 2:01:02 PM

Bill, I strongly disagree with your assertion that this event "could just as easily happen to cops investigating a bank heist" or in investigations of other traditional common-law crimes. My sense, and your experience would allow you to let me know if this sense is right, is that fighting the federal drug war --- like, say, fighting the war on terror --- requires specialized federal agents to use tactics and develop attitudes that differ in many ways than what is required when fighting other parts of the "war on crime." (For example, I suspect that someone sleeping on the couch in the house of persons suspected of a federal bank heist would not get taken in to custody by federal authorites, nor be presumed to be guilty of something serious, as seemed to have happened here.)

I do not want to get too wrapped up in semantics, but I do think it is your sharp disaffinity for criticism of the federal drug war, rather than my labeling here, that really prompts your comments. Please know, you and others are always welcomed/encouraged here to espouse what you see to be the benefits of the federal drug war. Indeed, I would genuinely like to be convinced that the economic and human costs/energies invested in this 40+ year war have done more good than harm. But I still feel this story counts as one notable cost/harm/casualty of the federal drug war when I do my own personal cost/benefit calculus about the heavy investment by federal authorities to use the federal criminal system to stop people from using certain drugs.

You and others may be right that my own (biased?) concern about the costs of the federal drug war prompted me to notice this story and blog about it. But I suspect it would be just as accurate to suggest it is your (biased?) concern about criticisms of the costs of the federal drug war prompted your responses. No?

Posted by: Doug B. | Aug 1, 2013 2:31:31 PM

Doug B. stated: "My sense, and your experience would allow you to let me know if this sense is right, that fighting the federal drug war --- like, say, fighting the war on terror --- requires federal agents to use tactics and develop attitudes that may be different in many ways that those who fight other parts of the "war on crime.""

I am sure you realize that it is your burden to prove and not Bill's to disprove.

You state: "(In this case, for example, I suspect that someone sleeping on the couch in the house of someone suspected of federal bank heist would not get taken in to custody by federal authorites, nor be presumed to be guilty of something serious, as seemed to have happened here.)"

LOL I am also sure that you realize your analogy is bogus. Compare apples to apples instead of apples to sofas. There were 18,000 ecstasy pills, marijuana, and weapons in the house (and it was also a "special date for marijuana users."). If the person in your analogy was sleeping among guns and stacks of stolen money, you bet he would be detained and "presumed to be guilty of something serious.

Posted by: TarlsQtr1 | Aug 1, 2013 2:50:01 PM

Doug --

"My sense, and your experience would allow you to let me know if this sense is right, that fighting the federal drug war --- like, say, fighting the war on terror --- requires federal agents to use tactics and develop attitudes that may be different in many ways that those who fight other parts of the 'war on crime.'"

Nothing that I know about the mechanics of enforcing drug laws makes DEA agents or local cops (and the story suggests, without really saying, that a San Diego cop was the one principally responsible) more likely to be forgetful than any other law enforcement people (or any other members of the human race, for that matter). And forgetting is what happened in this case. As C.E. notes, every now and again, you see a story where a mother simply forgets that her infant is in the really hot car, or a father forgets that his toddler is behind the SUV when he backs up.

Such forgetfulness can have awful consequences, and it did here, but, as I said, it could just as easily happen in the investigation of a bank robbery or any other crime.

P.S. I have no "disaffinity for criticism of the federal drug war." Indeed, there are those who say I thrive on disaffinity about drug laws and a whole bunch of others. I would also note that USPO, who is pretty much neutral in his comments, in this case shares my view that the headline of this entry is problematic and tendentious.

Posted by: Bill Otis | Aug 1, 2013 2:52:19 PM

' Got an answer to that?'

this person was held in a lightly manned special auxillary holding area offsite from the main lockup and these agents just walked away and showed a severe dereliction in performing their duties, they should have been fired or severely reprimanded to boot

Posted by: Jon | Aug 1, 2013 7:09:35 PM

Perhaps you all are right that my bias against the federal drug war is showing here, and Tarls makes a good point, too.

But this thread leads me to still find curious and remarkable the eagerness to defend big government in this setting. I continue to hope folks concerned about my bias here will help showcase for me the tangible benefits of the federal drug war so that I will not be so bothered by what I see as the costs.

Posted by: Doug B. | Aug 2, 2013 7:51:48 AM

I'd be stunned if this was just an accident/oversight. The guy was left in there for 4 DAYS. Those responsible should be held criminally accountable, not just civilly accountable. I'm no great fan of imprisoning people, but those who kept this guy alone in a box/cage for 4 DAYS should have their freedom taken away for a period of time.

Posted by: Dan Jensen | Aug 2, 2013 1:17:08 PM

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