Wednesday, April 28, 2010

Border guards rough up another Canadian

"Was that a threat?"

That's how U.S. border guards at the Lewiston Bridge border crossing responded to a Canadian shopper when, exasperated by the abusive treatment afforded to him and his wife, he asked, "what are you going to do? Shoot me?"

Moments later, the couple were in handcuffs, with American officials insisting that they'd been threatened and assaulted. Fortunately, the Canadian man -- identified only as "qtronman" on YouTube -- had recorded the incident, and he later uploaded the recording, so we know the border agents are lying.

The couple were on their way to a mall in Niagara Falls, in the United States, when they were ordered out of their car by a U.S. border guard -- apparently because they didn't care for the Canadians' impatient tone when they couldn't name the specific stores they'd be visiting.

Throughout the exchange leading to the arrest, the Canadian man comes across as exasperated but cooperative -- not out-of-line for a person dealing with other adults he considers to be acting in an abusive and irrational way. He didn't bow and scrape, though, which may have antagonized the border guards.

The officials, on the other hand, sound provocative, and even as if they're enjoying their use of authority.

Official: "We don't need any grounds."

Shopper: "Well, that's ridiculous."

Official: "That's the United States. I'm sorry. I don't know what to tell you."

Shopper: "You don't need any grounds for your actions?"

Official: "Absolutely not."

In related news, Peter Watts, a Canadian scientist and science fiction writer, has been fined roughly $1,500 by a U.S. court after he was roughed up by U.S. officials at a border crossing in Michigan.

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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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Wednesday, February 24, 2010

Judge reads elegy for the Fourth Amendment

Last week, admonishing his colleagues, who had just turned away an important search-and-seizure case, Chief Judge Alex Kozinski, of the U.S. Ninth Circuit Court of Appeals, effectively pronounced the Fourth Amendment dead. After the court signed off on police search of an apartment without a warrant, probable cause or reasonable suspicion, Kozinski said, "Whatever may have been left of the Fourth Amendment ... is now gone."

In the case of United States v. Lemus, police peacefully arrested Juan Hernan Lemus of Calexico, California, outside his home "before he could fully enter the doorway and retreat into his living room." With Lemus in custody, and without a search warrant for the apartment, police then entered the dwelling for a look around.

From the majority decision (which is written like a crime novel):
Diaz, in the living room, got Detective Longoria’s attention. Wasn’t there something sticking out from the couch? Detective Longoria thought it looked like the butt of a weapon. Since Lemus was a felon, having a gun would be a crime. Detective Longoria lifted the couch cushion to make sure, and confirmed that it was a semi-automatic handgun. It was later determined to be a Sturm and Ruger, 9 millimeter.
Unsurprisingly, Lemus's attorneys challenged the search, which was the basis for subsequent charges unrelated to the original arrest. They pointed out that precedent permits search of the immediate area around suspects arrested in their home to assure the safety of the arresting officers, and limited protective sweeps of the full dwelling to make sure no potential allies of the arrestee are lurking in the shadows. But Lemus was already in custody, having been arrested outside. Police chose, on their own, to enter the residence.

No problem, said the district court. The majority of judges at the appeals level agreed.  "Lemus was arrested in an area 'immediately adjoining' the living room, a limited search of that room was proper without either reasonable suspicion or probable cause as a protective search incident to the arrest."

But Kozinski objects (PDF):
The panel's fig leaf for this clearly illegal search is that "at most Lemus was only partially outside" of his living room door when the officers seized him. Lemus, 582 F.3d at 963. So what? Under Buie, Lemus’s location at the time of arrest is irrelevant; it's the location of the police that matters. Buie authorizes a search incident to an in-home arrest because being inside a suspect's home "puts the officer at the disadvantage of being on his adversary’s 'turf,' " ...
Frankly, the majority's reasoning seems to suggest that police can conduct a full, warrantless search of your home if they arrange to arrest you within reach of your front door. Not that they would ever game such a legal rule, of course ...

Judge Kozinski points out the startling implications of the appeals court's decision to let the lower-court decision stand.
This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency -- in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun "in plain view" -- stuck between two cushions of the living room couch -- and we reward them by upholding the search. ...

The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.
Very well reasoned. Very strongly worded.

But the majority decision in favor of the "fish bowl"still stands.

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Monday, February 8, 2010

Audi, the Schindler of our eco-totalitarian future

If you're like me, Audi's Green Police ad during yesterday's Superbowl was sort of a high point of creepiness -- and not just for its boomerific revival of a classic Cheap Trick song. No, the celebration of the right car purchase -- a "clean diesel" -- as a get-out-of jail-free card for a totalitarian eco-state sort of ruined car shopping for you while also hinting a bit too strongly at the direction in which the world is inching in its intolerant, lemming-like way.

Our friends in Britain already have to worry about government snoops pawing through their garbage and forcing their way onto private property to make sure residents of that unfortunate country are separating their glass from their plastic and doing business in officially approved ways. Maybe ... just maybe ... we're not that far off from the day when buying the the "correct" brand will count as a pass at roadblocks staffed by armed recycling fanatics.

I guess the only question is whether Audi thinks this potential Brave New fluorescently lit World is a good thing, or whether the company is warning us that it, Schindler-like, is our only hope.

The Audi advertisement glimpse of our eco-conscious (or else) future is below.

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Thursday, February 4, 2010

Reason number 97 why you should never comply with a law requiring you to register anything

I've never understood the urge that some people have to "register" allegedly dangerous objects, substances or creatures with the government. Fans of registration act shocked that anybody could object -- after all, we get to keep our dogs, guns, cars and what have you -- without acknowledging that their preferred policies fail to minimize the supposed risks of whatever they've targeted while maximizing the dangers inherent in forcing public interaction with law-enforcement.

Take the case of Joe Fiorito. He's a columnist for the Toronto Star and a citizen of the land up north where ownership of anything that goes "BANG" is tightly regulated by the government. A generally reliable fan of the expansive state, Fiorito has acquired a new-found skepticism toward gun registration after a recent run-in with the law. He wrote in his column on January 29 of events after he responded to a loud pounding on his front door:

I asked Officer K. if he'd mind getting to the point. He thought I was being difficult. Not me. I am, however, uncomfortable playing 20 Questions in the morning with armed men on the porch.

The point?

Officer K. reminded me that my firearms licence had expired. He said I could turn the gun over to them for storage, or they could take the gun and destroy it.

My gun? It is a single-barrel .20 gauge shotgun. It is 40 years old. I used to take it into the woods up north to get partridge in the fall.

The last time I used it, I was walking along a hydro cut when I surprised a deer in the long dry grass. She leapt away in slow motion, flanks rippling, nostrils flaring; too beautiful.

I haven't hunted since.

I own no shells.

But it's my gun, dammit. I guess, when the Feds began the long-gun registry, I should have lied and not bothered to register the damn thing.

Officer K. pressed me about turning the gun over, there and then, for storage or destruction. For a brief moment I thought about handing it over, if only to get rid of him and his pal.

And then it just seemed wrong:

A couple of cops show up at my door, unannounced, and the talkative one says he has reason to believe, and I'm supposed to hand over my property just like that? 
Fiorito declined the officers' request and told them to take whatever step they thought appropriate.
An hour later Officers F. and K. showed up with their boss, Officer Nicolle. He was as angry as he was pushy and he said he wanted the gun or he'd come back with a search warrant.

I was offered no options.

No one ever said, look, you have to renew your licence; we'll give you two weeks, here's the paperwork you need; and in two weeks, if you don't have the licence we'll have to ask you for the gun.

In the absence of options, faced with a search warrant and outnumbered three to one, I said I'd get the damn shotgun. 
Of course, being a columnist -- even one who traditionally supports restrictive gun control -- Fiorito wrote about his unpleasant experience with Toronto's finest. The cops, apparently, weren't pleased. A few days later, he revisited the subject.
An aside: as I began to write this – on the afternoon of the day the column about the gun-snatching appeared – two cop cars spent five minutes idling in front of my house. Surely a coincidence. ...

A final aside: Officer N., the cop with the sneer, said as he was leaving that some sort of understanding might have been reached but not with a guy like me. All he knows about a guy like me is that I have a sharp tongue when I'm being bullied. If that's all he knows, he doesn't read the papers much.
That's right. The cops responded with a crude effort at intimidation -- and were open about their selective enforcement of the law. Decline to kiss their asses and they're not so nice.

Is there any wonder that Fiorito, a self-identified social democrat who opposes private ownership of handguns and supports Canada's gun registry, writes, "I guess, when the Feds began the long-gun registry, I should have lied and not bothered to register the damn thing."

Lots of people subject to arbitrary and intrusive regulations surely feel that way now -- especially those who can't easily publicize their ordeals. It's impossible to avoid drawing a conclusion from Fiorito's situation about the wisdom of submitting to any government registration scheme, whatever the subject of the registration may be -- or indeed, the wisdom of expanding government officials' authority over our lives, so that we require permission and forbearance just to get through our days.

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Monday, January 18, 2010

In Arizona, it's not a party without pepper spray

At a protest march that Arizona Republic columnist E.J. Montini described as "accommodating. Polite, even," police still found opportunity to hose the crowd down with pepper spray. Organized by Puente Arizona, the January 16 March targeted Maricopa County Sheriff Joe Arpaio's nativist-courting anti-immigration jihad, which has sent deputies crashing through the doors of homes, businesses and even government offices, and that has many hispanics who came to Arizona from elsewhere wondering if maybe the human rights record back home doesn't look so bad by comparison.

But if the protest didn't really touch on Arpaio's thuggery against people who speak out against him, it sure seemed to offer a taste of the risks of such an approach. People at the scene captured video of officers -- specifically, a female Phoenix officer on horseback -- spraying the crowd, including families with children, with a substance that appeared to be pepper spray.

In their defense, police say they arrested five "anarchists" and claim that officers were assaulted. That may or may not be true, but it's not apparent from the video of the mounted officer.


Monday, January 11, 2010

What? You mean there are consequences to calling out SWAT without a reason?

Just about anytime a journalist covers some bizarre excess of law-enforcement behavior, in which armored vehicles, or heavy weapons or military tactics are invoked in obviously inappropriate contexts, the police-state cheerleaders come out of the woodwork. They assure us that we'll regret our words when it's shown that the target of some podunk town's aerial strike to collect overdue parking tickets was a danger to the republic worthy of the harshest measures. So it's with a measure of satisfaction that I report that David Carl, the fellow on the receiving end of a SWAT raid in Cottonwood, Arizona, last summer, not only faces no charges in the wake of that raid, but the city planning department even dropped a civil action against him. Not surprisingly, Carl plans to sue.

"Helmeted officers ... armed with automatic weapons" (according to a local newspaper, the Verde Independent) crashed through the doors of Carl's Wild West Express -- a package handling and delivery service -- last summer, supposedly on allegations that  the man had abused his twin teenage daughters. Returning to town after the fact of the raid, Police Chief Jody Fanning justified a subordinate's decision to call out the troops by saying, "We didn't know if he had a safe house or fortress." Officials also said that Carl owned guns and claimed he had anti-government views.

As I pointed out at the time, though, police can always claim that you might have forted up your residence -- we all might  have done anything to prepare for a siege. "Might" is a weasel word that requires no evidence. And as for guns and anti-government views ... This is Arizona. Rural Arizona. If the Constitution were to be suspended and anti-government political views and gun ownership declared sufficient rationale for forceful police action, they'd have to build a wall around the state.

But the official story that David Carl was a threat to children and law-enforcement officers seemed flawed from the very beginning. For starters, police didn't take the guns they claimed to fear so much. And after an initial trip to the police station, they let the girls go back home.

In fact, David Carl's conflicts with local authorities are more long-standing, deep-seated -- and boring -- than the dramatic raid suggests. At the time of the raid, Carl insisted that the city was just escalating a zoning battle over signs and an occupancy permit to a ridiculous extreme. In fact, city Planning and Zoning Commission records document precisely such a conflict -- pursued, in particular, by Darold Smith, a then-board member and current City Council member.

From May 19, 2008 minutes (PDF):

Two pending Hearing Officer cases: one involving a contract post office substation owned by David Carl and operating without a certificate of occupancy; and Gardner’s recycling operation on North Main Street.

From June 18, 2008 minutes (PDF):

Commissioner Smith talked about the Code Enforcement report, boarding houses, and that it
appears that David Carl is going out of business.

From October 20, 2008 minutes (PDF):

Darold Smith questioned enforcement status of zoning violations against David Carl (Wild West
Express) and Angela Lozano (boarding houses).

From November 17, 2008 minutes (PDF):

Darold Smith asked about the David Carl case and why it has taken over a year.

From February 23, 2009 minutes (PDF):

Darold Smith asked when David Carl would be shut down. Gehlert said after the
administrative process was exhausted, it went into the criminal phase, but the City Magistrate
refused to hear it.

From March 16, 2009 minutes (PDF):

Darold Smith inquired about the David Carl zoning enforcement case. Director Gehlert said
there was nothing new. He understood they would send it back through the system.

From April 20, 2009 minutes (PDF):

Darold Smith asked about enforcement on Gila (David Karl) and group homes.
Gehlert answered that on the Gila matter they were waiting for the new magistrate to
come onboard. The group home code was on the Council agenda the next evening.

Ummm ... Did David Carl run over Darold Smith's dog? The city official's interest seems a bit ... stalker-iffic.
In any case, the April 20 Planning and Zoning minutes were the last mention I could find of Carl (or Karl, assuming that's the same person) in city records, with Darold Smith's pet case apparently going nowhere in the courts. Smith took a seat on the city council in May. And then the police raided Wild West Express on July 20.

And now, according to the latest news, "Police Chief Jody Fanning says the County Attorney's Office will not prosecute Carl at this time. There are no pending charges against Carl or the business. An earlier planning department civil case against Carl was dismissed by the city."

There may well be more to this case than the public record shows. Perhaps David Carl is truly a danger and the police screwed up with their violent raid and its aftermath -- that is, they're incompetent rather than malevolent.

But I wouldn't bet on it. Right now, I'd take the scandal in Cottonwood, Arizona, as a lesson to be careful who you're ticking off when you go head-to-head with government officials. And keep a good lawyer on speed dial.


Tuesday, December 29, 2009

Let's have some more of that failed security theater

It's worth noting that Umar Farouk Abdulmutallab was thwarted in his Christmas Day attempt to blow an airliner out of the sky, not by institutional security measures, but by an alert passenger and the cabin crew of the airplane in question. It's also worth noting that, rather than take inspiration from Jasper Schuringa's exercise of personal initiative, various government seatwarmers around the world plan more of sort of the sort of security measures that have long failed to do much more than make air travel an unpleasant chore.

Abdulmutallab, a 23-year-old Nigerian dubbed the "Fruit of the Loom bomber" by some wags, attempted to detonate a bomb he'd smuggled on board Northwest Airlines Flight 253 from Amsterdam to Detroit as it approached its destination. He'd been allowed to board even though he'd been placed on one of the U.S.government's myriad lists of suspicious persons with terrorist ties after his own father, a prominent Nigerian banker, warned U.S. authorities that Abdulmutallab is dangerous.

Abdulmutallab was brought up short only when passengers on the plane noticed flames after the terrorist ignited his explosive device. They jumped the would-be-bomber and doused the fire. Dutch video director Jasper Schuringa is credited with putting Abdulmutallab in a headlock and stripping and subduing the terrorist with the assistance of flight attendants.

"We had to do something," Schuringa told reporters. Well, yes -- they did. It's very likely that the passengers and crew escaped harm because they quickly reacted to circumstances that they couldn't have foreseen as they happened.

It's difficult, really, to imagine a better defense than people willing and able to take initiative. Dutch authorities have taken a lot of flack for letting Abdulmutallab slip his explosive device through security, but terrorists have had decades to adjust their techniques to ever-tightening security measures at airports. American officials have been called on the carpet to answer for allowing Abdulmutallab to board a U.S.-bound flight when he's listed as a terrorism suspect, but the list he's on -- the Terrorist Identities Datamart Environment list -- reportedly contains 550,000 names.

There comes a point of diminishing returns, when you've listed so many potential threats that there's no possible way to react to them in any effective manner. I suspect that point comes somewhere before you tally up a half-million terrorism suspects.

But Abdulmutallab was stopped -- on the plane, by passengers and crew. While the fact that the terrorist plot got that far is being treated as a failure in many quarters, it may have run up against the most effective security measures that there can ever be -- people at the scene who take responsibility and initiative as a threat materializes.

That's the most effective security measure there can ever be because its really the only measure that can't be easily anticipated or evaded by plotters. After all, if they want to harm people, terrorists have to be near people. And those people have the potential to react on the spot, as needed.

That security officials appreciate the value of such flexibility is clear from the Transportation Security Administration's announcement that it will "surge resources as needed on a daily basis" and that "[p]assengers should not expect to see the same thing at every airport."

OK. Flexible is good.

But TSA officials aren't the targets. They're the people the terrorists are evading. No matter how many new checkpoints or measures they put in place -- millimeter-wave scanners, extra baggage checks at gates, behavior detection, dogs, bans on putting anything on your lap or moving around the cabin -- the most officials can do is create hurdles that terrorists must plan for, and that seriously inconvenience anybody who still chooses to travel through the police state that air travel has become.

That government officials know that they engage more in security theater than actual security is pretty clear. The Government Accountability Office has called the TSA on the carpet in the past for implementing procedures without ever bothering to investigate their effectiveness. In a 2007 report, the GAO recommended:
[T]he Secretary of Homeland Security should direct the Assistant Secretary of Homeland Security for TSA to develop sound evaluation methods, when possible, that can be used to assist TSA in determining whether proposed procedures would achieve their intended result...
In March 2009, the GAO followed up, finding (PDF):
TSA has taken some actions but has not fully implemented a risk management approach to inform the allocation of resources across the transportation modes (aviation, mass transit, highway, freight rail, and pipeline). ...
Without effectively implementing such controls, TSA cannot provide reasonable assurance that its resources are being used effectively and efficiently to achieve security priorities.
The latest measures will almost certainly be implemented with the same disregard for effectiveness, because they are and can only be primarily for show. Real security doesn't come from lumbering institutions, uniformed snoops and high-tech scanners, it comes from people who take responsibility for themselves.

But what bureaucrat wants to admit that there's only so much he can do? Who wants to put himself out of a job by telling scared travelers that real security comes from emulating Jasper Schuringa?

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Friday, December 18, 2009

Video advice for dealing with police due out in January 2010

Unlike most civil liberties groups, Flex Your Rights is dedicated to trying to prevent civil liberties violations instead of addressing them after the fact in the courts. To this end, the organization engages in educational efforts so that people are better prepared to navigate the spiderweb of laws that entangle our country, and to properly handle themselves during encounters with the myriad government employees tasked with enforcing those laws.

In January 2010, Flex Your Rights will release a new 45-minute video advising people on how to handle themselves when dealing with law-enforcement officers. The full-length 10 Rules for Dealing with Police will be sold for $15 per copy, with a substantial discount for bulk orders. A preview is posted below.

If you balk at spending money for advice on dealing with police encounters (and how much will a lawyer cost if you need one?), don't miss the completely free video presentations on handling yourself in such situations from Professor James Duane of the Regent University School of Law and Officer George Bruch of the Virginia Beach Police Department.


Thursday, December 3, 2009

Generalissimo Joe poised to turn Arizona into a Banana Republic

A law-enforcement officer is filmed stealing documents from a defense attorney. Ordered to apologize in public, the officer, with the encouragement of his high-ranking boss, refuses. The judge who jails the officer as punishment for his defiance then faces retaliation in the form of a bomb threat, striking police and official complaints filed by that high-ranking official, all in support of the transgressing officer. Just another day in Zimbabwe, right? Or maybe Venezuela. But no -- it's actually the latest headline-grabber in Maricopa County, Arizona.

Detention Officer Adam Stoddard made the national news when he was caught on camera helping himself to confidential documents belonging to defense attorney Joanne Cuccia. Found guilty of contempt of court for his actions, Stoddard was ordered by Judge Gary Donahoe to make a public apology or face jail time -- a sentence likely intended as light slap on the wrist for a cop, but one which brushed up against constitutional free-speech protections.

That's all Sheriff Joe Arpaio -- the self-proclaimed "America's toughest sheriff," and the man most likely to turn Arizona into a Banana Republic -- needed. Saying, in essence, "they can't do that to our pledges! Only we can do that to our pledges", Arpaio basically forbade Stoddard to comply with the judge's order.

Sure enough, Stoddard held a press conference only to flip the middle finger to Judge Donahoe, and was ordered to jail the next day -- a a jail managed by Sheriff Arpaio, by the way (so we have to take his word about any given inmate's whereabouts).

Now, with Sheriff Arpaio's support, officers who protect the Superior Court where Judge Donahoe works are calling in sick in sufficient numbers to shut down business. The courthouse was also evacuated when a bomb threat against public defenders was phoned in (Cuccia is a public defender).

And Arpaio has filed a complaint against Judge Gary Donahoe, along with three other judges. Against Donahoe (PDF), "the complaint alleges possible obstruction of justice, stymieing a criminal investigation, and open hostility towards courtroom staff."

Further complicating this picture is that Sheriff Joe Arpaio, despite erratic and confrontational conduct that has repeatedly put him at the wrong end of lawsuits and press coverage, is immensely popular with Maricopa County voters. In fact, recent polling suggests that the governor's office is his for the asking. He's a favorite for the Republican nod and an apparent shoe-in in the general election.

Given the level of his support for the sheriff even after costing taxpayers tens of millions of dollars in lawsuit settlements over abuses committed by his department, and after revelations that he is under FBI investigation for misusing his power to punish critics, it's not too great a stretch to suggest that Arpaio might win popular acclaim if he were to forego the cost and hassle of an election and just unilaterally park his uniformed butt in the governor's office.

That kind of support for even the worst behavior creates an environment in which police feel free to punish judges for penalizing a fellow officer's crimes. It's still an open question as to who will ultimately win this showdown.


Tuesday, December 1, 2009

Will Arpaio jail one of his own officers?

On October 19 of this year, Maricopa County, Arizona, Detention Officer Adam Stoddard was caught by surveillance cameras helping himself to a document from a defense attorney's files. He and his colleagues photocopied the document before returning it to attorney Joanne Cuccia. Responding to a formal complaint, Judge Gary Donahoe ordered the errant lawman to apologize at a press conference. Egged on by the county sheriff, Stoddard publicly refused. Now the officer has been ordered to jail. But will he go?

The showdown may have been inevitable as soon as Judge Donahoe issued his unusual (and possibly unconstitutional) order in what may have been a misguided attempt to spare the officer a fine or jail time -- the usual penalties for contempt of court. But Maricopa County's Sheriff Joe Arpaio -- the self-proclaimed "America's toughest sheriff" -- isn't known for apologizing, or for observing legal niceties. Arpaio announced, "My officer was doing his job, and I will not stand by and allow him to be thrown to the wolves by the courts because they feel pressure from the media on this situation." He added, "I decide who holds press conferences and when they are held regarding this Sheriff's Office."

Adhering to Arpaio's line, Stoddard held a press conference on the last day allowed by Donahoe's order, but what he said wasn't exactly what the judge had in mind.
I am Maricopa County Detention Officer Adam Stoddard. I work in the Court Security Division of the Sheriff’s Office and have been with the Sheriff’s Office for five years.

Recently, Superior Court Judge Gary Donahoe ordered me to hold a press conference to publicly apologize for doing the job I have been trained to do.

Part of my job in providing security to the court is to inspect documents brought into the courtroom. On October 19th, I saw a document that I had not yet screened, and that raised security concerns. I retrieved that document in plain sight and had court personnel copy it to preserve it as evidence in case it was a security breach.

It was a split second decision and I do not regret my actions.

Judge Donahoe has ordered me to feel something I do not and say something I cannot. I cannot apologize for putting court safety first.

The judge therefore puts me in a position where I must lie or go to jail. And I will not lie.
See a video of the conference below.
Now, surprise, surprise, the Maricopa County Superior Court says that Officer Stoddard will have to do what any mere civilian would have been forced to do to begin with -- report to jail to serve out the usual sentence for his offense.

But ... the jails in Maricopa County are run by Stoddard's boss, Sheriff Joe Arpaio -- the same guy who instructed his underling to flip the bird to Judge Donahoe to begin with. Will Arpaio actually cooperate with the court and throw the officer behind bars?

And what about making escaping a stretch in jail conditional on obeying a kiddy-time order to apologize? Judges normally can't compel people to espouse opinions they don't hold; will that complicate matters as Stoddard and company appeal the sentence up the judicial food chain?

Stay tuned to developments in Maricopa County to see whether the police will agree to submit to punishment for an act the court has already held to be a crime.


Thursday, November 19, 2009

Sheriff Joe faces off with judge over deputy's courtroom document theft

There aren't too many ways to evoke sympathy for a law-enforcement officer who was recorded stealing documents from a defense attorney, but in Arizona, Maricopa County Superior Court Judge Gary Donahoe may have stumbled on the trick. In the case of Detention Officer Adam Stoddard, who was caught by a security camera swiping documents in a courtroom from defense attorney Joanne Cuccia while her back was turned, Judge Donahoe found the offending officer guilty of contempt. But rather than slap Stoddard with an adult penalty for an adult crime, he channeled his schoolyard days and ordered the officer to make a public apology -- and probably violated his rights in the process.

The problem is, while it may lie within the power of kindergarten teachers to order their charges to voice insincere sentiments to one another as a means of settling disputes, that's not a widely accepted use of, admittedly far-reaching, judicial power. Judges can fine people and toss them in the can, but ordering them to state predetermined opinions would seem to run afoul of First Amendment protections.

In Stoddard's case, Judge Donahoe had already dismissed as unacceptable the officer's claim that the reason he grabbed Cuccia's documents and photocopied them was because he saw a few suspicious words on the page. The documents clearly were covered by attorney-client privilege, he ruled. Yesterday, he found Stoddard guilty of contempt for his sticky-fingered grab at confidential information. Penalties for contempt usually consist of fines or imprisonment.

But ... as we've come to know, judges often hold police officers to be a somewhat higher breed of human than the rest of us. That's the best guess as to why Judge Donahoe decided to get creative in this case. Rather than deplete Stoddard's bank account or subject the officer to the shoddy prisons run by his own boss, the judge ordered a public, but meaningless, display of faux regret: a press conference to be held by November 30, at which a verbal and written apology is to be expressed by Officer Stoddard. If Ms. Cuccia is satisfied, the matter is then laid to rest.

After which, presumably, milk and cookies are to be served to all.

But the judge made a big error: Adult transgressor aren't toddlers; you can't make them voice opinions they don't hold, even when trying to do so seems to constitute a much lighter penalty than the alternatives. And Stoddard clearly isn't sorry, and neither is his grandstanding boss, Sheriff Joe Arpaio, who has already announced that the officer won't comply with the order, saying in a press release, "My officer was doing his job, and I will not stand by and allow him to be thrown to the wolves by the courts because they feel pressure from the media on this situation." He added, "I decide who holds press conferences and when they are held regarding this Sheriff's Office."

Having stepped off on the wrong foot, Judge Donahoe is now back to what he should have done to begin with: handing Officer Adam Stoddard an adult penalty for violating attorney-client privilege and interfering with the rights of criminal defendants in the courtroom.

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Monday, November 16, 2009

He would have been better off shooting first

Most of us would probably think that a man who found himself being followed down a dark street by two people at midnight and turned to ask, "why are you following me?" while holding a folding pocket knife pointed down along his leg was just being careful. His actions seem especially reasonable when you know that he put the knife away upon hearing that his apparent stalkers actually meant no harm. But in New Hampshire, Dustin Almon was convicted of a misdemeanor because the two fellow pedestrians were plainclothes police officers.

According to SeacoastOnline:
Officer Anthony Cattabriga, said he was walking behind Almon on Chapel Street on Nov. 8, 2008, when Almon turned around three times to look at him and a new officer he was training. It was dark and Almon was twenty feet away when he displayed a knife with a two-inch blade the third time he turned around, said Cattabriga.
"He pointed it down by his side," the liquor officer testified, while demonstrating with Almon's seized pocket knife.

When he responded by yelling "police," Almon folded the knife, clipped it to his belt and complied with all subsequent police orders, Cattabriga testified.
The two state liquor enforcement officers were "in plain clothes without any indicators that they were members of law enforcement." They both carried concealed handguns and Tasers.

So neither Almon nor anybody else who might have happened along had any easy way to distinguish these two from the sort of common criminals who frequent dark, late-night streets. And Almon quickly dropped his challenge once the police did identify themselves.

It's hard to avoid the conclusion that Almon was charged -- first with that  catch-all offense, "disorderly conduct," and later with the harsher "criminal threatening with a dangerous weapon" -- because he caused these two well-armed officers to stain their pants. Despite his gun and Taser, Cattabriga insists, "I feared for my safety."

Perhaps concerned about appearing too solicitous of excitable law-enforcement officers, Judge Sawako Gardner insists that the officers' government-employed status isn't a factor -- Almon would have been sentenced to 30 days in jail (suspended pending a year of good behavior) and a $500 fine (half suspended) no matter who he confronted.

Really? But New Hampshire law explicitly allows for the use of actual force in self-defense -- deadly or non-deadly depending on the circumstances, "a degree of such force which he reasonably believes to be necessary for such purpose."

New Hampshire law also allows people to engage in otherwise illegal conduct if it's necessary to prevent a greater harm. The law states:
Conduct which the actor believes to be necessary to avoid harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged.
So even if holding a knife by your side could, by any stretch of the imagination, be defined as "criminal threatening with a dangerous weapon," it's hard to see how doing so would not meet "ordinary standards of reasonableness" when you're alone, at night, and concerned that two people following you intend to mug and, maybe, kill you.

Dustin Almon's actions seem perfectly justifiable according to existing law, without having to reach further afield for moral justifications for deterring potential assailants. Judge Gardner would apparently strip the people of New Hampshire of rights they possess under current law rather than allow the occasional law enforcement officer to suffer from a moment of inconvenience.


Tuesday, November 3, 2009

Arpaio's goons have an interesting take on attorney-client privilege

Arizona Defense Attorney Joanne Cuccia was in court at the podium arguing on behalf of her client during a sentencing hearing when that client, Antonio Lozano, noticed two detention officers pilfering a document from Cuccia's fies behind her back. The incident, captured on video, interrupted the hearing, enraged defense attorneys and, unbelievably, spurred the Maricopa County Sheriff's Office to defend the officers' actions.

Legal documents are privileged information, as well as private property, and so protected from casual pawing by agents of the state. But that didn't prevent Officer Adam Stoddard from casually strolling over to the table where Cuccia's files were laid out, extracting and reading a document, and then handing it to a colleague to be photocopied. His actions were recorded by security cameras.

Court officers are allowed to screen files to make sure that they don't contain contraband, and the Sheriff's office claims that was what Stoddard was doing -- examining a document that had escaped the screening process. But unless a pistol is duct-taped to a letter, officers aren't permitted to help themselves to confidential memos, briefs, motions, letters or any of the other contents of an attorney's files.

Sheriff's Deputy Chief Jack MacIntyre insists that nothing improper was done with the photocopied documents, which a judge has since determined were in fact subject to attorney-client privilege. MacIntyre told Phoenix's Channel 12, "The original papers were given back to the defense attorney, and the copy that was made was sealed in an envelope and given to county counsel. When county counsel read them, they gave them back to the defense attorney. Nobody from the Sheriff's Office ever read them."

We'll have to take the Sheriff's Office's word for that.

Maricopa County Sheriff Joe Arpaio has been notorious for years for using his power to spy on opponents, and even arrest journalists -- executives with the weekly Phoenix New Times -- who have been critical of his conduct. Arpaio and the Sheriff's Office are reportedly being investigated by the FBI for using threats and intimidation to settle political scores. Among those known to have been scrutinized, arrested or raided by Arpaio's deputies are candidates who ran against Arpaio, a civil liberties attorney and many political opponents in county and state office.

Judge Gary Donahoe is scheduled to rule on the defense documents case on Thursday.


Thursday, September 10, 2009

Joe Arpaio's boys are 'up here,' while the rest of us are 'down here'

In Arizona, the shenanigans of the Maricopa County Sheriff's Office are an open embarassment. Well, I take that back. Some people actually cheer on Generalissimo Sheriff Joe Arpaio and his merry band of third-world-style goons, but the fact that they abuse prisoners, stage events for the camera, spy on opponents and engage in overall civil rights violations is no secret. So there's little surprise when an MCSO officer tells a journalist, "We're not on the same level, here. I'm up here, you're down here," right before stealing his equipment.

Too bad for the officer that modern technology ensured the video remained secure and accessible to Radio KASA's Carlos Galindo, even as the equipment was confiscated.

The MCSO's excuse for taking the equipment was to protect the identity of supposed undercover officers sweeping through Phoenix's Gran Mercado. But not only is the "undercover officer" claim one that is wielded all too frequently, without regard to the actual presence of such officers -- it's one that, in the end, is a police concern, not a public directive. People are free to photograph and videorecord police in public spaces so long as they stay out of the way. It's up to the cops to cover their faces.

Though you wouldn't always know that from official conduct.

View the video yourself and make up your own opinion.

Incidentally, this isn't Galindo's first go-round with the MCSO. As an immigrant-rights activist as well as a journalist, he's almost certainly on Arpaio and company's radar.


Friday, September 4, 2009

Talk about your police department vs. fire department rivalry!

In the wake of the recent "disorderly conduct" arrest of Harvard Professor Henry Louis Gates after a confrontation with a police officer, noted civil libertarian Harvey Silverglate wrote in Forbes, "There is a serious problem in this country: Police are overly sensitive to insults from those they confront." Right he was -- but even Silverglate can't have anticipated the shooting of a man in Jericho, Arkansas, for objecting in court, to a traffic ticket.

Don Payne, the assistant fire chief, was in court for the second time that day, on August 27, for traffic tickets, and vocally objected to Judge Tonya Alexander over the speed traps maintained by the seven-officer police force in the town of (according to various reports) between 150 and 175 people. Police officers in the courtroom apparently took offense to Payne's criticism. Report's MyFoxMemphis:

Investigators say even though Payne was unarmed one of the police officers pulled out his weapon and fired, hitting Payne in the back and a fellow officer in the finger.

The Associated Press says that seven officers were in court that day -- which suggests the town's entire force had turned out.

The shooting has drawn international attention, and the local police force has, at least temporarily, been disbanded as a result of the incident. Payne is in the hospital recovering after the removal of a .40 -caliber bullet from his hip. Not everybody seems to appreciate the seriousness of the matter, though. Prosecutor Lindsey Fairley told the AP that no felony charges are contemplated against the officer, but that Payne may face a misdemeanor charge.

There's plenty to be said about the town of Jericho, which is so obviously being run as a racket that Thomas Martin, chief investigator for the Crittenden County Sheriff's Department, tells the AP, "You can't even get them to answer a call because normally they're writing tickets."

Jericho cops even go so far as to park their vehicles out of town at sheriff's department facilities, so that town residents won't vandalize the cars in retaliation.

But Jericho isn't so much a special case as an extreme case, and an illustration of the importance of training law-enforcement officials to understand that they're no more immune to argument or criticism than are car mechanics or physicians. In Jericho, police officers took the same umbrage at criticism as did Cambridge Police Sgt. James Crowley, the man who arrested Professor Gates. But since the Cambridge city government isn't completely out of control and hasn't given its employees completely free rein, Crowley confined himself to punishing Gates's harsh words with handcuffs and a disorderly conduct charge. The important fact here is that, even in Cambridge, a public official felt entitled to punish verbal opposition.

That sense of entitlement, set loose, logically results, in extreme cases, in incidents like the shooting in Jericho. If it's OK to punish criticism, then public officials with short tempers will frequently resort to the harshest measures tolerated by the local culture. That's offensive when the punishment involves the humiliation and expense of an arrest. It's potentially lethal in a completely perverted political culture, like that prevailing in Jericho, Arkansas.

So even if you're not a free-speech absolutist, it should be clear why it's never OK for powerful public officials to punish criticism. We don't want to normalize the idea that government employees can penalize their critics, if only so we aren't confronted with police officers opening fire on their antagonists in crowded courtrooms.


Friday, July 31, 2009

Wait, is that camera on?

Four Hollywood, Florida, police officers and a crime scene technician are suspended with pay -- and probably contemplating career changes -- after being recorded by a police dashboard camera conspiring to frame a civilian driver for a crash. Alexandra Torrensvilas was arrested for driving under the influence only after a police officer rear-ended her at a traffic light, and that officer and his colleagues openly discussed, within range of the camera's audio pickup, doctoring their stories and the evidence to blame the woman for the collision.

One of the officers can be heard saying, "I don't want to make things up ever, because it's wrong, but if I need to bend it a little bit to protect a cop, I'm gonna."

Also recorded was, "We'll do a little Walt Disney to protect the cop because it wouldn't have mattered because she is drunk anyway."

Suspended in the incident are Officers Joel Francisco and Dewey Pressley, Sgt. Andrew Diaz, community service Officer Karim Thomas and crime scene technician Andrea Tomassi.

Besides blowing the DUI case against Torrensvilas out of the water (charges were dropped,) the officers have compromised every case on which they worked. Since they're on record falsifying testimony, past and present cases in which they testified or were scheduled to testify will have to be reviewed. Some convictions may be overturned and pending charges will likely be dropped.

Broward County Chief Public Defender Howard Finkelstein has also called on state investigators and the FBI to get involved.

Up for discussion: The potential benefit to be had by making sure that all police conversations are recorded.


Thursday, July 30, 2009

Behind the spin on Cottonwood's SWAT raid

Referring to the controversial deployment of a SWAT team on July 20, the Cottonwood, Arizona, Police Department issued the following statement:

On Monday Cottonwood Police Department conducted a search warrant at 404 N. Main Street, Wild West Express, and the residence conjoined with that business. Officers of the Verde Valley SWAT team assisted in the warrant service due to the unknown number of individuals residing there. After being notified of the search warrant through a public address system, all occupants exited the residence without incident. SWAT officers deployed a noise flash diversion device to help curtail an aggressive dog within the residence. Numerous items of evidence were obtained in regard to the search warrant and are currently being examined. No arrests were made in regard to the search warrant. This incident remains under investigation pending the results of the examination of evidence.

Returning home to discover that Police Commander Tim Pierce had authorized a paramilitary raid over allegations of child abuse on a business in his absence, and that business owner David Carl was protesting the raid, including the use of a grenade on his dog, to everybody who would listen, Police Chief Jody Fanning has gone into instant there's-nothing-to-see-here mode. Fanning told the Verde Independent, "I had confidence that Commander Pierce made the right decision."

Well ... maybe. But it's easy to imagine that Chief Fanning's homecoming went something like this:

Commander Tim Pierce: Hey Chief! Welcome back. We had a little excitement in your absence.

Chief Jody Fanning: Yeah, Tim. I heard. Look, I have a few questions.

Pierce: Ask away, Chief. We covered our bases on this one.

Fanning: About that ... Why exactly did you send SWAT?

Pierce: Hey, child abuse is a serious matter. We couldn't leave those girls at risk if the allegations are true.

Fanning: Don't you think sending an armed team through the door might have put the girls at risk all by itself? And the flash-bang grenade could have torched the place. That's a little risky.

Pierce: Oh. Well, there was the dog. We had to neutralize the dog.

Fanning: Didn't everybody walk out peacefully? Why didn't you have the owner leash the dog and lead it out?

Pierce: But Carl owns guns! We couldn't let him near the guns.

Fanning: Tim, this is Arizona. Everybody owns guns. Send a cop with the owner to watch him. Speaking of which, where are the guns now?

Pierce: Umm ... Carl still has them. I mean, they're his guns.

Fanning: That doesn't really help the "Carl is dangerous" case, though, does it?

Pierce: Well ... Carl has had run-ins with city inspectors. He even threatened them.

Fanning: Really? Was he ever charged?

Pierce: Well ... no. But somebody mentioned to me that he got in their faces--

Fanning: So David Carl is so dangerous that he was never arrested for the threats he supposedly made and we let him keep his guns?

Pierce: Oh ...

Fanning: And has he been charged with child abuse yet?

Pierce: Not yet. CPS says they still have to put together a case--

Fanning: Look, this isn't going to go well unless we spin it right. Tell you what, instead of focusing on what Carl did, let's talk about what he might have done.

How about this. I'll say ... umm ... "We didn't know if he had a safe house or fortress inside the building. We would rather be prepared than have a barricade." I'll even throw in those supposed threats he made to the inspectors. We'll make him out as a hothead and a menace.

Pierce: Hey, can't we say, "We didn't know that he wasn't a potential terrorist?" Terrorism is big, and we don't know that he's not a terrorist.

Fanning: Tim, If I call the guy a terrorist, we'll have the feds here in no time.

Pierce: You think they'll give us trouble about the use of SWAT?

Fanning: No, I think they'll kick in doors right and left looking for mad bombers. They're crazier than you are.

Pierce: Uh ... Sorry.

Fanning: The idea here is to minimize the damage and make this situation look as reasonable as possible.

Oh, and Tim.

Pierce: Yeah?

Fanning: The next time you send out SWAT when there's no good reason, I'm going to stuff a flash-bang grenade up your ass.

Of course, the above exchange is pure fantasy. I have no way of knowing whether Chief Fanning and Commander Pierce ever really conspired to put the best face on a bad situation. In fact, my encounters with Cottonwood police have so far been positive, and the officers I've met have been professional.

But the Cottonwood raid illustrates just how rote the use of paramilitary tactics has become. Not to minimize the seriousness child abuse, but there's no particular reason why an investigation into allegations of such a crime should involve violent and risky tactics that, all too often result in injury and death for innocent people. If you're worried about mistreated children, wouldn't you try to minimize further trauma to the kids by keeping official intervention as peaceful as possible?

In the absence of an actual barricade, send a couple of cops and a CPS worker to knock on the door. "We didn't know if he had a safe house" is an all-purpose excuse that could apply to anybody. They also didn't know if he had a nuke, a platoon of North Korean troops or an orbital death ray. But there was no evidence that David Carl had any of the above.

Frankly, if "we would rather be prepared than have a barricade" and "we were told he was a gun collector and enthusiast" are good enough reasons to send SWAT, then flash-bangs could be tossed at just about anybody cutting a traffic light too close.

And, once again, what is it with cops and dogs?


Mouthing off to a cop really is constitutionally protected

Harvey Silverglate is a First Amendment scholar and free speech advocate who even conservatives can love; he co-founded the Foundation for Individual Rights in Education which, among other duties, defends free-speech against college speech codes, and he frequently criticizes political correctness. He's also a neighbor of Henry Louis Gates, Jr., who thinks Gates's charges of racism in his treatment by Cambridge police are ill-founded. Nevertheless, he considers Gates's arrest a constitutional violation and an abuse of police authority.

I'm happy to say that Silverglate's take is a more sophisticated version of the conclusion I reached last week. Then, I wrote:

Having determined that the man forcing the door was legally authorized to be in the house and to jimmy any stuck lock in the place if he so desired, police were free to leave to escape any unpleasant accusation directed at them by Gates. Even if the man had truly slipped into full-on loud-and-defensive mode, so what? It's his house, and so long as he doesn't get violent, he can speak any words, in any tone, that he pleases.

If you don't like it, leave.

But that's not the inclination of modern police officers, who all too often act as if the worst crime of all is to fail to defer to a badge.

And again:

It doesn't matter how confrontational, loud or tumultous Gates was. He had already demonstrated that he was in his own home. Having determined that no crime had been committed, police were free to leave -- unless their egos got in the way.

Gates's claim that racism was at work can't be proven or disproven unless officers confess to bigotry. But it's likely that Gates was arrested for "contempt of cop" -- an unspoken, unofficial crime that has ensnared thousands of Americans at one time or another, no matter their color.

Sergeant James Crowley's arrest of Gates on a "disorderly conduct" charge based on the professor's use of charges language against the police officer in his home and on the porch was rooted in the "fighting words" exception to First Amendment protection. Unfortunately for police officers, that exception doesn't mean what they often think it means -- in fact, it may mean nothing at all. That could explain why the charge was so quickly dropped after the arrest. In Forbes, Silverglate puts it thusly:

Supporters of Sgt. Crowley's power and right to arrest Professor Gates--assuming the worst version of what Gates spewed at the officer--rely on the "fighting words" doctrine. But there is a problem with such reliance: The Supreme Court's affirming of a conviction for disturbing the peace based upon "fighting words" directed to a police officer has never been replicated since the original 1942 fighting words doctrine was announced in Chaplinsky v. New Hampshire.


[T]o the extent that tossing an expletive at some hothead on the street might conceivably produce a violent reaction, surely such words directed to a trained police officer should not be expected to incite such a response. To be sure, much of police training is specifically directed at producing a peace officer who knows how and when to keep a violent response wrapped under a highly polished discipline. It would be an insult to any law enforcement agent to assume that he or she would respond, with violence, to unpleasant--even offensive--words. Hence, even at its worst, Gates' reaction to the officer's presence and questioning cannot by any stretch be deemed grounds for an arrest. Professor Gates, in other words, was fully protected by the First Amendment. It was the officer's duty to restrain his own response, particularly the exercise of his official powers of arrest.

Indeed, the expansive nature of First Amendment rights, even in a confrontation with official power, was made vivid in the 1971 Supreme Court case, Cohen v. California. Paul Cohen was arrested in the Los Angeles County Courthouse for wearing a jacket emblazoned with the words "Fuck the Draft." He was convicted for "offensive conduct" because, the state court ruled, "offensive conduct" meant "behavior which had a tendency to provoke others to acts of violence." Even though no one actually threatened Cohen, said the state court, an attack was "reasonably foreseeable."

The Supreme Court reversed. The great conservative justice John Marshall Harlan wrote that "Fuck the Draft" was not "obscene" and that its offensiveness did not render it unprotected--even in the corridors of a courthouse!

Silverglate goes on to criticize police officers across the country -- and elsewhere -- for being "overly sensitive to insults from those they confront." And being police officers, they act out their sensitivity not by crying in their beer, but by using their extensive powers to punish people who direct verbal abuse or mere objections their way.

But the laws law-enforcement officers rely on for pressing "disorderly conduct" charges against people who verbally challenge and insult them have shaky foundations. One good First Amendment challenge, lodged, perhaps, by a prominent Harvard professor with an army of constitutional scholars on his side, could totally undermine the ability of the police to haul people away in handcuffs for what they say.

In fact, the legal basis for such a challenge is already well-founded, with plenty of free speech red meat siting in the casebooks. In 1990, Judge Alex Kosinski of the 9th Circuit Court of Appeals wrote in a case that is relevant to that of Gates:

Duran's conduct is not totally irrelevant, however, as it suggests a possible motive for his detention, one upon which law enforcement officers may not legitimately rely. The Durans contend, and the district court held, that Aguilar stopped their car at least partly in retaliation for the insult he received from Duran. If true, this would constitute a serious First Amendment violation. "[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." Hill, 482 U.S. at 461, 107 S.Ct. at 2509. The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state. Id. at 462-63, 107 S.Ct. at 2510. Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.

Duran ultimately won that case (in fact, the court of appeals upheld his earlier victory in the district court). In his own home, Gates would very likely have prevailed on the same grounds. So should we all -- when our free speech rights are fully respected and "contempt of cop" is no longer an unwritten crime.

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Thursday, July 23, 2009

Libertarian journalists barred from Canada

The libertarian journalists of The Motorhome Diaries were detained at the Canadian border and denied entry into the Great White North. Apparently, the abuse they sustained at the hands of authorities in Jones County, Mississippi was cited as a reason to bar them from the country. That, and the "heinous propaganda" they were carrying.

Says Xaq Fixx:

A box of literature from the Alliance of the Libertarian Left was taken, and a copy of Crispin Sartwell’s “Against the State” was left out on the counter. The RV was ransacked but thankfully not to the point it was in Jones County, Mississippi. Their laptops are now in the possession of the state agents, and those agents are reading about fr33 Agents, The Free State Project, and Jason & Pete’s former employer. One agent has accused them of ’spreading misinformation.’

The guys have been told that the state agents are looking for “Pornography or Heinous Propaganda.” When asked for a definition of “Heinous Propaganda” or the applicable statute they were told it was available online, but they don’t have computers or Internet access.

For those keeping score, the Canadian encounter was less violent than the Mississippi encounter, since it involved neither pepper spray nor confinement in a cell.

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What's the price of a uniformed temper tantrum?

Oklahoma Highway Patrol Trooper Daniel Martin, the infamous star of a viral Internet video that shows him pulling over an ambulance transporting a patient to the hospital and assaulting paramedic Maurice White, has been suspended without pay for five days and ordered to anger assessment. The relatively light penalty for an officer fired in the past over allegations of bullying comes after a period of public outrage, with a lawsuit pending.

Oklahoma Crime Examiner Patricia Phillips has followed this case from the beginning, and you can find details of the case in her columns. It's worth noting, though, that while Martin's suspension letter from the OHP goes out of its way to justify the traffic stop of an ambulance and to condemn White's conduct that day, it concedes some egregious conduct on the part of the officer.

The letter, from Commissioner Kevin L. Ward, points out that Trooper Martin was "twice advised that a patient was on board the ambulance and that the ambulance was headed to the hospital." Nevertheless, "in spite of the knowledge of the patient and the length of time of the stop, you made no inquiry of the patient or any other person regarding the status or welfare of the patient on board the ambulance."

Ward advises Martin that it would have been more appropriate to have allowed the ambulance to continue to the hospital and conclude the traffic stop there.

Ward also points out, diplomatically, that Martin seemed to be spoiling for a fight.

"On at least one occasion, you withdrew from the altercation, only to place yourself in a position for a subsequent altercation with Mr. White.

Finally, your manner when approaching Mr. Franks, the driver of the ambulance, was unnecessary and unprofessional. Your demeanor and language at the scene was also unprofessional."

Ward then cites the OHP Operations Manual to characterize Martin's behavior as "conduct unbecoming an officer" and quotes statutes allowing for Martin to be "discharged, suspended without pay for not to exceed sixty (60) calendar days or demoted..."

Ward then states, "your conduct and disregard for the welfare of the patient justify severe discipline." And that "severe discipline" turns out to be ... five days suspension without pay and an anger assessment?

Oh, please. "Anger assessment" is that greatest of meaningless institutional butt-coverings. It allows organizational higher-ups to tell the lawyers that they're doing something without actually doing something. It's nonsense.

What needs to be assessed in a police officer who was fired in 2000 as Chief of Police in Fairfax, Oklahoma, for violent and bullying behavior, and who then endangers a patient in an ambulance and picks a fight while in uniform?

Daniel Martin was out of line, acting like a cartoon cop outraged that somebody didn't "respect mah authoritah." While letting his bruised ego run wild, he behaved unprofessionally and, potentially, put a life at risk.

Five days without pay and a bit of psychobabble are an awfully light slap on the wrist for that sort of misconduct.


Friday, July 3, 2009

Why not punch a nun while you're at it?

From the Associated Press, via the New York Daily News:

Police used a Taser on a pastor and pepper spray to disperse his congregants Wednesday after the pastor allegedly interfered with a traffic stop in the church parking lot.

Congregants say they were in the Iglesia Profetica Peniel church for an early morning prayer when pastor Jose Elias Moran went to assist the stopped driver, a church member, by asking the police what had happened.

An incident report on the Webster police department's Web site said Officer Raymond Berryman tried to calm Moran and arrest him. But police say he pushed the officer, went inside the church and returned with 40 other congregants.

The congregants say Moran fled into the church when the officer grew angry and began to yell, and Moran's family disputes that the pastor touched the officer.

Moran's son Miguel said 30 witnesses saw the officer turn aggressive and repeatedly kick the church door. Several members were hit with pepper spray and children were present, Miguel Moran said.

Obviously, we don't know the full story yet. Maybe the pastor and his flock were out of line. But if 30 people really saw the officer flipping out, I'm curious to see how the PD will try to put a positive spin on this.

If you want a disturbing insight into what's wrong with this country, look at the knee jerk support for the boys in blue in the comments to an article on the incident at the Houston Chronicle. It seems that Tasers and pepper spray may not have been enough; perhaps the riot guns should have been broken out to teach proper respect for authoritah.

Tomorrow may be Independence Day, but not too many people are still independent of the disease of uniform-worship.


Monday, June 22, 2009

TSA encounter sparks lawsuit

In April, Transportation Security Administration agents detained Steve Bierfeldt at Lambert-St. Louis International Airport for no other reason than that he was carrying $4,700 in cash. The move immediately proved to be something of a public relations disaster, since the cash belonged to Rep. Ron Paul's libertarian-oriented Campaign for Liberty, of which Bierfeldt is the director of development, and the political activist used his cell phone to record the incident (mp3), including abusive language directed his way. Now the confrontation has sparked a lawsuit against the TSA, with the American Civil Liberties Union arguing Bierfeldt's case.

In the wake of Bierfeldt's detention, TSA brass made it clear they knew they had stepped in a PR mess as the confrontation immediately made the rounds of the Internet and television. On its official blog, the TSA conceded:

A Transportation Security Administration (TSA) employee and members of the St. Louis Airport Police Department can be heard on the audio recording. The tone and language used by the TSA employee was inappropriate. TSA holds its employees to the highest professional standards. TSA will continue to investigate this matter and take appropriate action.

But the TSA never backed down from the idea that carrying cash is enough reason to detail travelers or corrected its agents' refusal to answer Bierfeldt's pointed but polite questions about the legitimate scope of their authority. That suggests that the practice will continue, moderated only by the occasional apology directed to politically connected victims. That's not enough for Bierfeldt. He says:

"Most Americans would be surprised to learn that TSA considers simply carrying cash to be a basis for detention and questioning. I hope the court makes clear that my detention by TSA agents was unconstitutional and stops TSA from engaging in these unlawful searches and arrests. I do not want another innocent American to have to endure what I went through."

The ACLU is involved for the same reason -- to make sure the TSA goes beyond an embarrassed mea culpa and alters its procedures so that other travelers are no longer at risk of suspicionless detention and questioning. Larry Schwartztol, a staff attorney with the ACLU National Security Project, protests, "Mr. Bierfeldt's experience represents a troubling pattern of TSA attempting to transform its valid but limited search authority into a license to invade people's privacy in a manner that would never be accepted outside the airport context."

The ACLU's complaint (PDF) against Janet Napolitano, in her capacity as Secretary of Homeland Security, points out that the TSA's authority to search airline passengers is limited to specific threats such as guns and bombs. Suspicionless searches of people who pose no apparent danger fall outside that limited, court-recognized exception to the Fourth Amendment.

The lawsuit asks the court to declare the TSA's actions to be in violation of the Constitution and to permanently enjoin the government "from authorizing or conducting suspicionless pre-flight searches of passengers or their belongings for items other than weapons and explosives."

The suit also seeks legal costs and any other relief deemed proper by the court.

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Tuesday, June 16, 2009

Forensic science -- it ain't CSI

William Dillon spent 27 years behind bars for a crime he didn't commit. Wilton Dedge spent a similar stretch behind bars before finally being exonerated. Juan Ramos was sentenced to death before being freed from prison over a crime he didn't commit. The three men are linked not just by their innocence, but by the role played in their cases by dog handler John Preston, a one-time Pennsylvania state trooper, and his amazingly talented dog, Harass II. Preston was only one of many "scientific" experts later exposed as a fraud, some of whose victims may still wait to be revealed.

Scott Maxwell of the Orlando Sentinel has the details regarding Preston and the wreckage he left behind. But the fact that Preston and his "wonder dog" were so relied upon by prosecutors and courts until exposed in the media and humiliated by one judge demonstrates just how much suspension of disbelief (or outright dishonesty) is behind the acceptance of "forensic science" that too often turns out to be either poorly applied -- or even pure hocum.

Reason magazine's Radley Balko has made justified waves in recent years by exposing the nonsense disguised as medicine peddled by Dr. Michael West, a dentist who offered scientifically implausible evidence of guilt (in several cases, of defendants later proven innocent), based on his exclusive bite-mark "technique."

Balko was also largely responsible for (hopefully) ending the career of the notorious Dr. Steven Hayne, a medical examiner without credentials who seemed to customize his testimony to meet the needs of prosecutors.

But it's not just corrupt individuals who deserve skepticial consideration -- so do whole areas of forensic "science." Drug testing, for instance, is a highly subjective "science" that has a lot to do with the skill -- and honesty -- of technicians. It's not at all uncommon for ordinary soap to test positive for illegal intoxicants.

A report on the state of forensic medicine for the National Academies of Science concedes that "The fact is that many forensic tests -- such as those used to infer the source of toolmarks or bite marks -- have never been exposed to stringent scientific scrutiny."

Overall, says the report:

[I]n some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence.

"Faulty" science has to include the evidence of dogs, which have become so ubiquitous in recent years because of their supposed ability to connect defendants to crime scenes, or to simply detect forbidden substances.

But, despite the legendary power of their noses, canine-based evidence has to be taken with a grain of salt. For starters, dogs' "testimony" is highly dependent on the word of their handlers. In fact, there's no standard way for a dog to tell us that something has been detected. Some dogs just sit, others jump up and bark -- interpretation is in the eye of the handler.

Dogs, also, are notoriously easy to manipulate, since they develop close bonds with their handlers. For a 2004 report on the unreliability of detection dogs, Auburn University professor Larry Myers, a leading expert on canine detection programs, told CBS News, “They can tell you that something's there, that's not there, simply to get praise, to get food, to get whatever they're working for.”

Through improperly training his dogs, or simply lying about their alerts, it was easy for John Preston to manufacture evidence of the guilt of innocent men.

But fallibility can be as dangerous as fraud. The U.S. Court of Appeals for the Eighth Circuit ruled in 2007 that canine testimony was acceptable in a case where the dog was only 54% accurate.

How many years of prison time are we willing to let ride on a 54% accuracy rate?

None of this is to say that forensic science is worthless. Properly used and understood it's absolutely necessary. After all, William Dillon and Wilton Dedge were freed of the shackles placed on them by bogus canine testimony because of the more rigorous standards set by DNA evidence.

But presenting fallible and sometimes fraudulent evidence as if it's beyond question runs the risk of discrediting good science along with the bad. The damage done by the John Prestons of the world can only be undone if we treat science as an imperfect part of an imperfect world -- not as the magic so-often peddled by charlatans.

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