Tuesday, March 23, 2010

Criminal questioning of a border guard

Peter Watts, a science fiction writer and marine biologist who was arrested in December after an argument with a U.S. border guard while driving back to his home in Toronto, has been convicted by a Michigan jury of a felony. Watts faces up to two years in prison -- potentially three, if prosecutors succeed in tagging him as a habitual offender over a 19-year-old conviction in Canada.

On December 8, 2009, while returning home to Toronto after helping a friend move, Watts was stopped at the border crossing for a random search -- a warrantless intrusion common at the border, where constitutional protections for individual rights are minimal. Watts apparently stepped out of his vehicle to inquire as to the reason for the inspection. An argument ensued, during the course of which Watts was ordered back into his vehicle, beaten and pepper-sprayed -- not necessarily in that order.

Several media outlets have reported that Watts was convicted of assaulting a police officer, but that appears to be a misunderstanding; the Michigan statute under which he was charged is something of a grab-all legal bludgeon, saying "an individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both." In fact, while Watts was convicted under that law, his actual offense revolved around failure to follow orders given by a Border Protection officer, with prosecutor Mary Kelly comparing his transgression to a refusal to take off shoes during security checks in airports.

The statute under which Watts was charged is clearly very broad, and would seem to potentially allow conviction for anything that might rub a law-enforcement officer the wrong way. As Watts wrote on his blog:
What constitutes “failure to comply with a lawful command” is open to interpretation. The Prosecution cited several moments within the melee which she claimed constituted “resisting”, but by her own admission I wasn’t charged with any of those things. I was charged only with resisting Beaudry, the guard I’d “choked”. My passenger of that day put the lie to that claim in short order, and the Prosecution wasn’t able to shake that.
Watts's real crime, he says, is that the law is so inflexible as to ban simple questions.
[T]he law doesn’t proscribe noncompliance “unless you’re dazed and confused from being hit in the face”. It simply proscribes noncompliance, period. And we all agree that in those few seconds between Beaudry’s command and the unleashing of his pepper spray, I just stood there asking what the problem was.
After the trial, one person claiming to be a juror responded to a news report about the case, saying:
As a member of the jury that convicted Mr. Watts today, I have a few comments to make. The jury's task was not to decide who we liked better. The job of the jury was to decide whether Mr. Watts "obstructed/resisted" the custom officials. Assault was not one of the charges. What it boiled down to was Mr. Watts did not follow the instructions of the customs agents. Period. He was not violent, he was not intimidating, he was not stopping them from searching his car. He did, however, refuse to follow the commands by his non compliance. He's not a bad man by any stretch of the imagination. The customs agents escalted the situation with sarcasm and miscommunication. Unfortunately, we were not asked to convict those agents with a crime, although, in my opinion, they did commit offenses against Mr. Watts. Two wrongs don't make a right, so we had to follow the instructions as set forth to us by the judge.
Despite these doubts about the wisdom of law-enforcement actions, the juror in the case didn't exercise the right of jury nullification -- that is, to refuse to convict a defendant who may have broken a law that jurors find offensive or wrongly applied. That leaves Watts with a felony conviction -- and facing possible prison time. Prosecutors are trying to use a 1991 conviction for obstructing a Guelph, Ontario, police officer asgrounds for tagging Watts as a "habitual offender" subject to enhanced sentencing.

Case details are available via a search at the St. Clair County Court Website.

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Blogger Vadim said...

So, in light of this sentencing, would you like to reconsider your own article "Do police deserve deference"? If making the officer to repeat the order twice is enough for 2 years in jail, then it's easy to see how any of the suggestions about questioning the police made in that article, would have the same result.

April 22, 2010 7:10 AM  
Blogger J.D. Tuccille said...


No, that piece stands. The point I made was that you should be able to question police, not that it is safe to do so under the current regime.

April 28, 2010 2:12 PM  

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