A Tale of Snakes and Snake Handlers
by Sue Beaulieu On Wings September 1998
Over and over, the rights and freedoms of honest, hardworking American citizens are being trampled into the mud. But more and more, the victims of government abuses are beginning to speak out. Although they fear retaliation from federal agencies that are out of control, and those fears are not unfounded, the option of saying nothing is no longer an alternative for them. Time after time, the US Fish & Wildlife Service has targeted the same innocent people. They keep after them until they have wounded their victims both emotionally and financially, ruining reputations and shutting down legitimate businesses.
One person who has experienced the Service's undue attention is Bob Clark, whose only crime was that he turned a lifelong labor of love into a successful business. Bob Clark breeds pythons of rare genetic mutations, and sells them to collectors all over the world. All of Bob's snakes are captive bred. He is proud that his efforts help to decrease the demand on wild populations for the herp trade. From the young snakes which are several inches long, to the adults which range from 8 to 20 feet long and weigh up to 260 pounds, the pythons are beautifully colored and patterned.
Bob's love of snakes and other animals began when he was just a child. In fact, he still has the tiny pet store turtle he got when he was 8 years old. His interest persisted and grew, until now as an adult, Bob has received a Bachelor's degree in Biology and a Master's degree in Herpetology from the University of Kansas. This man is now an expert in his field and has traveled the world to talk to others about pythons and other snakes, as well as to buy additional breeding stock. Even though Clark's main interest is reptiles, he helps the Martin Park Nature Center in Oklahoma City with bird-banding and participates in many of their various programs. He also helps the park's naturalist., Neil Garrison, attract owls to the center as permanent residents for study and breeding. He and Neil construct owl boxes and check on the progress of the owl eggs. Clark also enjoys raising orchids and is an avid falconer.
He is very community oriented, and I heard from a business acquaintance of his that he recently played host to a young man who loves snakes. This visit was sponsored by the Make a Wish Foundation --- the boy's wish was to meet Bob Clark. However, if you breed and sell exotic animals, eventually you may be targeted and harassed by the FWS and their state counterparts. But unlike those who enforce wildlife laws in our country, Bob Clark is very knowledgeable about all the rules and regulations which govern his particular type of business. Sadly though, we apparently cannot trust government agents to administer the laws of our nation in a "fair and impartial manner."
Do You Hear What I Hear?
One morning, a week before Christmas, while the Clark family was still in bed, they had an unholy surprise visit from the feds. They were rudely awakened around 7 a.m. by a thunderous pounding on their door. Startled by the noise, Bob jumped out of bed, quickly dressed and went to see what the commotion was all about. When he opened the door, he was confronted by a group of federal agents. He vaguely noticed a number of vehicles parked in his drive and on the street in front of his house. One agent handed him a warrant to read, but the armed and dangerous men didn't wait for Bob's permission to storm into his house. Agents flashed their badges and waved their guns around. They yelled and shouted orders at Bob and Susan; they slammed doors and tore apart everything. Intimidation, the element of surprise and the use of force are always fundamental components in a federal raid. To say the least, these tactics are extremely effective.
But for those who were raised to respect the authority of police, the initial fear and humiliation soon changed into contempt and outrage, and then to disillusionment. People are beginning to question why our country needs so many armed federal agents and why those agents so often employ the unnecessary use of force. They ask, "Why has this happened to me?" "How can this happen in America?" "Who will believe that I am innocent when I received this kind of treatment?" "Where did our Constitutional rights go?" "What can I do about it?" "Where can I turn to for justice?"
During the entire five hours the agents were present in the Clark's home, the agents did not allow Bob to call his lawyer, nor were the Clarks allowed to call anyone else for that matter. Their two young children were in the house during the entire episode. In 1985, the U.S. Supreme Court ruled, in a drug related case, that government agents have authority to hold a person incommunicado, without access to family or legal advice.
Even though in Bob's case the FWS had a search warrant, this type of authority is routinely granted to federal agents whether or not there is probable cause. All that is needed is merely the suspicion that a law may have been broken. Increasingly, the feds rely more and more on this "mere suspicion" rule in every aspect of their investigations. The FWS agents bullied Bob and Susan. Yelling and screaming, the armed men demanded over and over again where they kept their guns, even after Bob and Susan repeatedly told them they owned none. Susan was still dressed in her nightshirt and robe. Even though she was nearly 8 months pregnant, one bullying agent shoved her roughly up against a wall.
One agent was afraid of the Clark's rather large dog. Susan tried to explain that the dog was just being territorial. She asked to be allowed to put their family pet outside so that neither the agent nor the animal would be harmed. The male FWS agent, charged up from the excitement of a raid, did not use common sense or civility when he told Susan that if the dog caused any more trouble, he would just shoot it.
According to the Fish and Wildlife Service Manual, Service agents are trained to use communication skills to defuse and stabilize any dangerous situations - not their guns. During the five hour raid, the agents searched every inch of their home and seized a number of personal possessions such as family photos and video tapes of the Clark's two young children. Much to Susan's annoyance, the FWS never returned any of these items to this day.
U.S. Fish & Wildlife Service Manual 441 FW 2 Investigative Activities
2.2 Investigative Activities.
"Service law enforcement officers must at all times zealously guard and defend the rights and liberties guar-anteed to all individuals by the Constitution. Therefore, Service law enforcement officers must not engage any investigative activity which could abridge in any way the rights guaranteed to a citizen of the United States by the Constitution and under no circumstances shall such employees engage in conduct which may result in defaming the character, reputation, integrity or dignity of any citizen or organization of the United States."
The Fourth Amendment to our U.S. Constitution provides that: "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."
The Clark's personal possessions were not described in the search warrant before they were seized. Even an administrative inspection warrant requires for the seizure of property appropriate to such inspections. The federal agents were looking for business records. Family photos and videos of the Clark's children would not be "appropriate to such an inspection" nor would they "constitute evidence of a criminal offense." All executions of a search warrant require a RETURN, or itemized inventory of everything seized, with a copy left at the location of the raid, or should I say "investigation."
Further, the Fifth Amendment sets forth rights and procedures, including the prohibition against depriving any person "of life, liberty or property without due process of law." The Clarks took this matter to court and won, but still have not received the possessions that were taken from them during that December raid in 1990. (Erosion of Fifth Amendment civil liberties by asset forfeiture laws has opened the door wide open for one of the most flagrant abuses of federal power yet.
One agent told Bob that the raid was just the beginning of his problems. He further boasted that it might be appropriate for him to have the IRS audit Bob. That's right, after all that Bob and Susan had endured that day, this federal agent threatened them with an audit conducted by yet another federal agency. Soon thereafter, Bob was indeed audited. Though all his accounting was in order, the ever-creative boys at the IRS managed to contrive a charge against Bob that carried a stiff fine. They have to find something, you know. (Bob Clark was interviewed about this raid on The American Investigator television program. The segment focused on the abuses of the USFWS Division of LE "in the name of the ESA." (You can order a copy of the tape for $19.95 from the Free Congress Foundation. 800-638-0660.)
Why was Bob Clark raided? The FWS determined that Bob had sold animals without the proper state permit. Ironically, it was largely due to Bob Clark's efforts within the state's reptile lobby that the restrictive Oklahoma laws were changed. Because of the herpetology group's diligent effort, the code was changed to exempt 26 species of captive bred pythons as well as various other animals from the permit requirement involving interstate trade. Nevertheless, state fish and game agents tipped off their federal "Big Brothers," claiming that Bob had violated state laws by selling pythons across state lines. These were pythons which were captive bred and were neither threatened nor endangered species.
The repealed state law was cited on the affidavit and it was this affidavit which was used to procure the search warrant that led to the raid at the Clark's house - - a law which had been changed months before the invasion of the Clark s right to privacy and months before their civil rights were so callously violated, leading to the unnecessary assault of an innocent man and his wife.
An affidavit is a signed statement which states, under penalty of perjury; that the facts contained within are true. However, we must remember that the feds consider themselves above the laws of the land. They make up rules as they go along and blatantly disregard the ones already in place. Bob chose to face his accusers in a court of law to fight the groundless charges against him. He went to trial and won, but itcost him thousand of dollars in legal fees.
What most Americans don't realize is the charges are all too often false and unfounded. In fact, our criminal legal system encourages it. According to Title 18 of the United States Code) Rule 11 --- Pleas, Notes of Advisory Committee on Rules 1974 Amendment; ABA Standards Relating to Pleas of Guilty; pp. 1-2 (Approved Draft, 1968):
"Although reliable statistical information is limited, one recent estimate indicated the guilty pleas account for the disposition of as many as 95% of all criminal cases. A substantial number of these are the result of plea discussions."
It is easy for the feds to use mandatory penalties to coerce plea bargains. Prosecutors have the power to tell someone, "It's your choice. I can charge you with this offense which carries a mandatory sentence OR you can take a risk and go to trial. If you lose, you'll receive the mandatory amount of time with no parole. But if you plead guilty to the lesser charge and cooperate with us by becoming an informant, we can recommend a much lower sentence for you." Again, the Fifth Amendment protection of due process of law is thrown out the window along with your hope for a just and fair trial.
Not everyone has the financial resources at their disposal to wage a war against "city hall," let alone the Federal Government of the United States. Most people just want to get on with their lives and to put the entire ugly incident behind them. They also fear reprisal if they speak up for themselves, and make no mistake, our FWS does not like to lose.
In researching and preparing for Bob's case, Clark's attorney discovered a valuable piece of information. This ace in the hole toppled the Service's stacked deck. During Bob's trial, federal agent Garland Swain was asked under oath if he knew that Oklahoma's Conservation Commission rule which applied to the transport of captive bred pythons across state lines had been changed and was no longer applicable. Mr. Swain replied that he was not aware of that fact.
Unbeknownst to Mr. Swain, however, Bob's attorney had found a written transcript from another hearing where this same agent, under oath, had testified that he was aware the new rule had gone into effect in May of that year. The attorney again repeated the question, and Swain insisted he did not know the law pertaining to pythons had been changed. Swain's legal counsel also stated that he was not aware that the law had been changed. Then Bob's legal defense played the trump card and produced the copy of the court transcript from the previous trial where Garland Swain had also been a witness of record.
Mr. Swain was asked to read his own sworn testimony from that trial, thus proving implicitly that the federal witness against Bob completely lacked any credibility, not to mention ethics. The outraged Judge asked Agent Swain, "Do you mean that these animals aren't even regulated by our state?" Garland Swain replied, "No." Swain's Attorney attempted to claim that "they didn't know." Perhaps the attorney had been kept in the dark, but agent Swain knew full well that he was trying to set up and ruin an innocent man. He perjured himself in the courtroom. Case dismissed - a case that should never have been brought to court.
U.S. Fish and Wildlife Service Manual 441
Code of Conduct "1.3 Code of Conduct
B. "In my personal and official activities I will never knowingly violate any local, State or Federal laws or regulations, recognizing that I hold a unique position of traditional high public trust which carries an inherent personal commitment to uphold the laws and integrity of my profession. For these reasons, I under-stand that this code places special demands on me to preserve the confidence of the public, my peers, my supervisors, and society in general."
In civil law, this case could have been thrown out and dismissed for failure to state a claim because there was no legal basis for the lawsuit in the first place. The U.S. Court system follows procedural rules, set forth in the United States Code, which were enacted to prevent waste of time and taxpayer money on frivolous law-suits. Apparently, our federal government adheres to no such regulation.
Further, if there had been a lawsuit in which a claim had been made and had it gone to trial in the U.S. Court system, and if Bob had won the case, he would have been awarded a monetary settlement by the plaintiff which would have included court costs and attorney's fees. However, once again, the federal government bypasses the normal rules of civil procedure that apply to everyone else. Perhaps if the government was made subject to such rules, and were they held accountable for their actions, they would decide to bring only valid cases with legal merit before the courts.
According to the Fish and Wildlife Service Manual, National Policy Issuance #92-04; Law Enforcement Priorities, effective August 4, 1992:
A. 3. "Low Priority: Violations that involve permit compliance inspections, non-wildlife related activities off- Service lands, and captive-bred wildlife violations."
C. 1. "Low priority activities, or any activity that does not fall within one of these priorities [i.e. high and medium priority categories) should be initiated only after higher priority work is completed. Activities that have little or no effect on wild populations, such as the interstate sale of legally imported African elephant ivory or investigations that involve interstate shipment of non-native, captive-bred wildlife, are the lowest priority."
As the U.S. Fish and Wildlife Service, Division of Law Enforcement, Statement of Objectives and Priorities reiterates:
"Low Priority: Investigations of non-wildlife related violations that may fall within the jurisdiction of Service law enforcement officers. Compliance inspections of holders of permits issued by the Service. Investigations involving captive bred fish, wildlife and plants or those legally taken from the wild but are otherwise possessed or transported in violation of Federal regulations. Such investigations should not be initiated unless there is a clear indication that the infraction is detrimental to the wild resource. Investigations of violations of laws or regulations over which the Service does not have jurisdiction."
In Bob's case, the FWS raided his house based on a state law -- A state law that was no longer in effect! Because the supposed crime involved interstate commerce, however, the federal agency would have had jurisdiction. The expansion of the "interstate commerce clause" in the Constitution has allowed the U.S. Congress to delegate ever greater amounts of control and authority to the administrative agencies. Now is time for Congress to reign in the feds and curb the flagrant abuses of power.
Through Congressional Investigations and Oversight Hearings, Congress will have a voice in determining what the agencies can and cannot do. Unlike our Senators and Representatives in Congress, federal agencies are made up of unelected bureaucrats and law enforcement officers. Congress must place limitations upon the legislative powers they have delegated. It is in their power to do so and it is in our power to tell them to do so.
If this raid, which was completely unnecessary to begin with, was considered a low priority, it frightens me to imagine what the Service would do in a situation they considered to be a high priority. If Bob and Susan did not know the laws pertaining to their business as well as they did, and if they had not had the courage to stand up and fight for their legal rights, they would have been fined, perhaps received jail or prison time, probably had their children taken into protective custody and would have had their reputations forever tarnished.
Many people in the animal trade consider it a prudent business decision to give in, make a plea, pay the fine and do the time. Rather than have their business affairs tied up and have their accounts financially drained during the long legal process of fighting the government claims against them, they take the path of least resistance. In this particular incident, and in many others like it across the nation, Bob had broken no law. Yet despite that fact, he was intimidated and harassed; his pregnant wife was physically abused; and he was threatened not once, but several times.
In addition to the IRS audit he received, Bob was told that even though he proved his innocence in court, that was just the beginning of his problems. Unfortunately for those who own, buy and sell animals, even when one battle is won, the war continues. Bob's trial actually was the culmination of many, many incidents where he was harassed by various state and federal agents for doing nothing more than running a legitimate and legal business. Once they have you in their sights, they will stop at nothing to try and bring you down, it seems.
Regardless of what their internal directives state, you are their top priority. Bob's shipping agent resides in Chicago, which means that the Chicago FWS office at O'Hare Airport is responsible for inspecting his international shipments. On numerous occasions Bob has had the unpleasant experience of dealing with Agent Dave Kirkby, one of the FWS inspectors at the O'Hare office. Kirkby once called Bob to inform him that he was in violation of IATA rules and that they were holding an improperly crated tenrec until he paid a $500 fine.
Never mind that Bob did not crate and send the animal, or that Bob could not see for himself if the animal had been improperly crated. The tenrec, which is a small hedgehog-like creature, could very well have been shipped in a box too small for the requisite IATA handles, but did common sense or courtesy, or even concern for the animal, matter to this agency? While Kirby waited for his money, the life of the little animal was in jeopardy.
Flora and fauna are simply pawns in their unrelenting search for 'crimes' and 'criminals,' even where none exist. The tactics they use to gain compliance with their arbitrary rules, and in the collection of their requisite fines, are very similar to extortion and blackmail. Bob tried to fight the charges, but he was told he owed the fine since he was the one who bought the animal. In this instance, upon the advice of his attorney, it made better business sense to just to pay the fine, save the animal and move on.
In another incident, one of Bob's shipments destined for overseas was handled by his shipping representative in Chicago. Federal FWS agent Kirby inspected the consignment, whereupon it was discovered that it contained 51 very young pythons rather than the 50 permitted for. It was not taken into consideration that a very busy python breeder could miscount a wriggly, writhing heap of snakes that were only several inches long. These snakes are not even CITES regulated, but because his export permit stated 50 rather than 51 animals, Clark was fined $300 for the extra snake that had accidentally slipped into the tangle.
The Service in general, and this agent in particular, are not interested in working with the public they are supposed to serve. Rather than acknowledge that Bob made a mistake, or attempt to work out a reason-able solution, Agent Kirby ranted and raved at Bob over the phone and accused him of trying to get by with something. Each and every encounter Bob has had with this Chicago agent has been confrontational in nature and counterproductive to running a legitimate business. Ever the professional, Bob asked that they simply ship the young python back to him. Of course, the cost of shipping this one snake to and from his freight agent, added to the $300 fine, was much more than the monetary value of the animal.
In the meantime, the ever zealous Kirby seized three more snakes from that same shipment because he could not identify what species of snake they were. Bob had properly identified them on the export document. Nonetheless, because the FWS personnel were not sure what they were, they seized them. Remember, Bob holds a Master's degree in herpetology, not to mention the fact that he is a law abiding and respectable businessman. The three snakes were with-held from the rest of the shipment, pending further investigation. Eventually, the identifications checked out and two were shipped back to Bob, all at his expense and to the inconvenience of his customer. When Bob called to inquire where the third snake was, he was told "they lost it."
Further questions revealed that the snake was put in someone's desk as a practical joke. Apparently, it must have slithered off to hide and to this day, it has never been found. Its survival is doubtful. This was a $400 snake. This animal was Bob's private property. The Service has no respect for people, let alone their personal belongings. They certainly were not interested in the well being and proper care of the snake. The only wildlife crime in this instance was allowing a snake to die while federal employees were busy playing a "practical joke" on taxpayer's time.
Did you know that the Secretary of the Interior is responsible for what ultimately happens to animals that have been abandoned or forfeited to the Service? Whether by loan, gift, sale or destruction, this rule is usually carried out by those under Babbitt. I doubt that he is aware of, or cares about, what happens to every animal that is in the Service's possession. So how are we to know what the Service really does with them? In dealing with the Chicago FWS LE office, Bob has received nothing but disrespect and rudeness. He has been told that he must be doing something illegal because the only people they ever talk with over the phone are people who are trying to get by with something illegal.
Yes folks, this is the attitude of the FWS, whose salaries are paid by our hard earned tax dollars. These people are civil servants, but they are anything but civil. They act as if they are autocrats, and that is what they have become. (An autocrat is defined in Webster s new World Dictionary as (1) A ruler with absolute power; a dictator, a despot. (2) Anyone having unlimited power over others, (3) Any domineering, self-willed person.)
Fish & Wildlife Service Manual
443 FW 1. General Guidance
1.3 "Interpretation of Policies and Procedures. Service law enforcement officers are often asked to respond directly to individuals or groups who ask for various interpretations of policies, regulations, and statutes. In order to provide uniformity, Service law enforcement officers should assure themselves that a policy has already been established, or a statutory interpretation has been furnished by the Service to the field. In the event that queries are received concerning law enforcement related policy issues that have not been formally interpreted by the Service, they should be forwarded to an appropriate Assistant Regional Director for Law Enforcement for subsequent transmission to the Chief, Division of Law Enforcement. That office will determine if a policy interpretation or statement is appropriate. If appropriate, the field will be furnished with any policy statement that results."
When honest people, intent on following the laws of the land, contact the Service in order to find out how to comply, they are all too often given misinformation. Sometimes they are given incorrect information in order to "set them up" but most of the time the Service personnel do not know or fully understand the laws they are responsible for enforcing. This is no exaggeration and it happens all the time. Bob has asked Agent Kirkby many questions about a recent shipment of his that was detained. Bob is told repeatedly that he is not on their priority of things to take care of. (That is, unless they can accuse him of a crime. Then, you better believe that Bob will be Kirkby's main priority.)
Kirkby has told Bob that he works on his timetable, not Bob's, and that the matter will be taken care of when he is ready to handle it, and not before. In the meantime, the snakes continue to be held in the custody of the FWS. Many times animals have been held for months or years "just in case" an administrative ambush can be arranged. Kirkby, and the rest of the Service, are allowed to get by with everything -- the unjustified raids, the unnecessary force, the snotty attitudes, the improper care of animals, the illegal procedures -- all because there is no effective oversight of federal agencies.
Though the FWS has a manual full of guidelines, none are followed or enforced. I used to believe that perhaps the problem was regional in nature, but I no longer believe that. The mindset of our FWS LE is the same throughout the country. Everywhere that people in the animal business must deal with this agency, you will hear about similar occurrences, which have all too predictable outcomes. I know of no internal FWS office where a viable complaint can be lodged that would ensure satisfactory resolution for those who are regulated by the many laws, rules and regulations which the Service enforces. It doesn't matter that private breeders are endangered species' best friends. The ESA has not saved a single species because it is regulated and enforced with irresponsible abandon, vengefulness and ulterior motives.
As we have read time and again, animals listed under the ESA are more likely to be destroyed due to the elaborate restraints imposed through ridiculous "takings" rules. To discover that one of these insects, birds, reptiles or mammals exists on your property is truly a curse and a financial nightmare.