Detained and Searched Law Professor Threatens to Sue DEA and SFPD

Clark Freshman, professor at UC Hastings.

Last month agents from the Drug Enforcement Agency (DEA) and the San Francisco Police Department (SFPD) executed a search warrant at a private residence in the Castro district of San Francisco.  They were looking for “proceeds” from an illegal marijuana cultivation operation.  Instead, they found a very angry law professor from UC Hastings, Clark Freshman, in his bathrobe ,who then told the agents they had the wrong building.  Agents ignored his pleas, handcuffed him, and searched his home thoroughly for contraband.  They found none.  Now Freshman is threatening to sue the DEA and the SFPD, stating that he is going to sue them until “”I see [the agents'] houses sold at auction and their kids’ college tuitions taken away from them. There will not be a better litigated case this century.”

Officer Scott Biggs from the SFPD had previously surveiled the property while looking for Mahmoud Larizadeh, the building’s owner.  Biggs described the home he eventually searched as a “two-story, one-unit” residence; a simple visual inspection of the property reveals it is actually a three-story, two-unit building.  The warrant also doesn’t mention that Larizadeh’s daughter, who is seven months pregnant, was living downstairs.  She was detained and searched when the police raided the residence.  When asked for comment the SFPD has repeatedly claimed that it had a valid warrant to search the premises and executed that warrant lawfully.

Law professors have a different take on this particular search and seizure.  There have been many previous situations where police serving a warrant to search a single residence will later find out the residence is a multi-unit building and decide to seize the entire building and all residents within.  Wrongfully detained citizens have sued municipalities for such unlawful searches and won.  Investigators tend to describe and execute warrants as broadly as possible partly because they are unsure where the contraband is and partly because they are too lazy to investigate those important details.  Peter Keane, the dean emeritus at Golden Gate University’s School of Law, described the outcome of cases of over-executing search warrants, “[i]n those cases, people have sued and collected substantial settlements. I think whomever (sic) is representing the government better get out his checkbook.”

Law enforcement needs to be very careful whenever they run into encounters with law professors, especially professors acquainted with criminal procedure.  Cambridge police came up serious scrutiny in 2009 when they improperly detained Professor Louis “Skip” Gates from Harvard at his Cambridge home.  The altercation with Skip Gates, presumably carrying racial undertones, sparked a national controversy and ended with having a beer with President Obama.  To be fair, no one expects this altercation with Professor Freshman to make waves with the White House.  While the two situations are clearly different, the lesson to law enforcement is the same: do not cross the line with professors because they know their rights and are not afraid to sue.