December 2008 Archives

South Carolina school district forces withdrawal of publication claiming editorial would be "disruptive" to school community. 

Myrtle Beach Online reports

A student-produced newspaper at the Academy for Arts, Science & Technology was banned from being distributed last month after students failed to clear an editorial advocating same-sex marriage with the school administration.

The principal of the academy near Carolina Forest, Ronnie Burgess, said that he was concerned that the editorial, which was printed on the front page with a picture of two male students holding hands, would be disruptive to the school.

"I had some concerns about the content of the article and how it might impact students here and what the community concerns might be when the article was distributed," Burgess said. "At the academy we encourage diversity, we don't look to silence student voices, we hope to facilitate their expression."

Horry County Schools' district policy ultimately places discretion over student publications in the hands of school principals, according to district spokeswoman Teal Britton. The students who produce the quarterly newspaper, called The Academy Post, see the issue differently. Co-editors Kyle Hertzog, 18, and Katelyn Edwards, 17, said they believe the decision is censorship. The two work on the newspaper as an independent project, without a faculty adviser, and sell ads to pay for printing costs.

"There is a clear disclaimer in the newspaper that states that the opinions in the paper do not represent those of the school or the school district," Hertzog said. "Basically everyone we've spoken to, from teachers to our lawyer, says that we're right; that we're being censored because of the content, which is clearly one student's opinion. It isn't right. What's the point of having rights if you can't exercise them?"

Parent Melanie VanSciver said she can understand the school's point of view, but ultimately she feels that students at the school are mature enough to handle the content of the article.

"I think in certain circles that's an inflammatory subject no matter what, and I don't think that it's just in school. I do know from being around my daughter's friends they're intelligent and they have lots of opinions and they know what's going on in the world," she said. "I think more than anything he was probably being overly cautious because of parents. I think since the students are seniors and juniors, not elementary kids, and they know that some of their classmates are gay, I think they probably could have handled the article. I think it was probably more a decision about the community as a whole."

Burgess said he had a lengthy discussion with the district and with legal counsel before deciding to keep the edition from circulating as planned Nov. 6. The school also gave the students $500 to reprint 500 copies of the newspaper without the article.

Hertzog and Edwards are working to get the revised issue out before students go on Winter Break on Friday, but Hertzog said the delay will make it hard to put out future issues, because advertisers might be reluctant to buy ads if they don't know when the newspaper will be allowed to be printed.

Before the reprint, the school had not provided any financial support for the newspaper, which Hertzog's lawyer said is an important distinction.

Lawyers for both the students and the school district cite a 1988 Supreme Court decision, Hazelwood School District v. Kuhlmeier, in which the court ruled that there are different levels of First Amendment protection for student publications, and upheld the right of school administrators in a suburban St. Louis, Mo., district to censor articles on teen pregnancy and divorce.

Frank LoMonte, executive director of the Student Press Law Center, a nonprofit agency that advocates for students' free press rights, has been counseling Hertzog and Edwards through the school's decision.

"Students even in a public high school have certain protected First Amendment rights that a school can't take away. The newspaper is not an official part of a school course, or sponsored by the school, or overseen by a school adviser, and that puts it into a separate category of speech," LoMonte said. "In an independent student publication, part of the Supreme Court's ruling was that there is a higher hurdle to suppress that speech. Even in a situation where a newspaper is sponsored by a school, disagreeing with the opinions presented is not enough."

LoMonte said of about 1,000 cases they've seen this year, only one has gone to court.

"This, to me, is a really clear case. We never want it to come to needing to go to court, but I don't think they would have an issue if it did," he said.

The district's lawyer in the matter, Kathy Mahoney, said the Supreme Court ruling reinforces the right of the school district to act as an editor in this situation.

"It has been designated a sponsored publication, and I am confident that the principal acted within the framework of this decision," she said.

Hertzog said he and Edwards agreed to reprint the paper without the article out of respect for Burgess, but plan on continuing the argument.

"We're right. I really believe this is a matter of free speech. It's personal for me too, because I'm gay, and this is a discussion I feel like people need to have," he said.

The two have asked the district to set aside time at the next school board meeting to discuss the article and the future of the newspaper. Hertzog said he would like to have the newspaper's designation changed to be a "public forum for student expression," to afford more free speech protection to the paper, on the advice of LoMonte.Contact CLAUDIA LAUER at 626-0301.

In 1991 Hamedeh Hassan, then a 24 year old living with her cousins who were low-level drug sellers, got caught up in the margins of their scene, as a crack cocaine user (totally uninvolved with the dealing end). She also became an early target of the draconian mandatory minimum sentencing policies being pushed by the Reagan-Bush sponsored federal war on drugs, sentenced to 27 years in prison, where she remains today. 

The D'Alliance reports

Perversion of Justice

Hamedah Hasan writes, "This experience has taught me that not one choice, action, or lack thereof is without consequence. This includes making laws without a sense of redemption -- that diminish the worth of human lives and attack the very foundation of the family unit."

She would know. In 1991, she was sent to prison, for what would be a 27-year jail sentence, for a first-time nonviolent drug-related offense. Escaping an abusive relationship, she went to live with cousins who were involved in the drug trade, and when they were all arrested she had no information to offer the cops, being only peripherally involved in her cousins' work. Because of her lack of involvement, and because they all had information with which to barter for lighter sentences, Hassan received far and away the longest sentence -- something like double that of those really involved.

Filmmaker and Unitarian Universalist minister Melissa Mummert created an award-winning short documentary with Hassan about her case. I was skeptical when I first heard about the film. A white lady in grad school telling a Black lady's story ... but in her commentary Ms. Hasan spoke a bit of their process together, and the obvious mutual respect between the two, so I am really interested in seeing it.

If you can, take a few minutes and watch the preview on the film's website: After you do, think about ordering the film and organizing a local screening. . People like to get together and watch movies anyway, so why not try it? Might even become a local tradition.

Hamedah is -- unbelievably -- still locked up. Holidays may be hard times for all kinds of folks, but can be especially difficult for those behind bars. You can write to Ms. Hassan at:

Hamedah Hasan
FCP Victorville
PO Box #5100
Adelanto, CA 92301

Vigilante Voyeurism

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Citizen surveillance system, costing $2 million and composed of 13 closed-circuit cameras turns citizenry in to "virtual deputies" surveiling the border for signs of suspicious activity and illegality.  21 thousand virtual deputies from all across the USA have already volunteered, sending over 1000 reports of suspicious activity on the border. The result: one pot smuggling bust. BlueServo, a social networking site that is hosting the video feeds, sees opportunity to roll-out this participatory panopticon nationally.

Wired Threat Level blog reports

A new $2-million citizen surveillance system installed along the Tex-Mex border has yielded just one crime bust after about six weeks in operation -- three suspects who were allegedly caught hauling 540 pounds of marijuana over the border after someone spotted them online, according to the Houston Chronicle.

The expensive system of 13 closed-circuit cameras placed along the Rio Grande -- which is billed as a "virtual stakeout" for "virtual deputies" -- involves images from the cameras that are streamed online. Members of the public are invited to serve as "virtual deputies" by watching the images and reporting any suspicious activity they see.

Although authorities wouldn't provide any details about the arrest, saying they didn't want to give information that would reveal the location of the surveillance camera that spotted the suspects, it's presumed that the arrest was the result of a citizen report.

The project is the result of a partnership between the Texas Border Sheriff's Coalition and BlueServo, a social networking site that is hosting the video. The Sheriffs Coalition insists that the system is focused on catching criminals, not illegal immigrants, although the sheriffs office may contact the U.S. Border Control to convey reports of suspicious immigrant activity as well. The executive director of the Sheriff's Coalition would not say how many referrals had been passed to Border Patrol authorities since the program was launched in November.

The exact location of the cameras is not disclosed, but according to a press release about the project, "a significant number of Texas landowners" requested that the cameras be placed on their property.

More than 21,000 people from several states, including as far away as Ohio, have signed up to be virtual deputies so far. BlueServo claims its web site has received more than 5 million hits, resulting in about 1,000 e-mail reports of suspicious activity. The average camera watcher spends about eight minutes on the site examining video.

What do virtual deputies get in return for their efforts?

Aside from the satisfaction of knowing they've done their part to combat crime, they get the opportunity to become targeted consumers.

The web site notes that "in the future, BlueServo anticipates that high volume of traffic to its website will generate advertising revenue to defray the operations cost of the Virtual Community Watch to the Texas Border Sheriff's Coalition." To sign up to become a virtual deputy, the site requires you to provide your e-mail address, age, gender, and postal code.

According to the site, "virtual deputies" can also connect their own home and neighborhood surveillance cameras to BlueServo to create a virtual neighborhood watch. Presumably this increases opportunities for targeted marketing as well.

18 Year Old Canadian student hauled from shower by cops, arrested on suspicion of running meth lab. When that assumption turns out to be all wet, they continue to hold him on suspicion of maybe being a terrorist. When that turns out to be unfounded they "release" him but forbid him from doing science on his home kit, mandating supervision by the university lab.

io9 reports

A Canadian college student majoring in chemistry built himself a home lab - and discovered that trying to do science in your own home quickly leads to accusations of drug-making and terrorism.

Lewis Casey, an 18-year-old in Saskatchewan, had built a small chemistry lab in his family's garage near the university where he studies. Then two weeks ago, police arrived at his home with a search warrant and based on a quick survey of his lab determined that it was a meth lab. They pulled Casey out of the shower to interrogate him, and then arrested him.

A few days later, police admitted that Casey's chemistry lab wasn't a meth lab - but they kept him in jail, claiming that he had some of the materials necessary to produce explosives. Friends and neighbors wrote dozens of letters to the court, testifying that Casey was innocent and merely a student who is really enthusiastic about chemistry.

On December 24, Casey was finally released into his parents' custody, pending a trial to determine whether he was building what police called "improvised explosive devices." Yesterday Casey's lawyer told local journalists:

My client is a very intelligent young man . . . he's very keen in chemistry, a very curious young person and very capable, very knowledgeable in the area and he was always curious with regard to chemistry, chemical compounds, chemical reactions, that kind of thing. So from my client's point of view, it's completely innocent insofar as he had no intention of creating any explosives or explosive devices. As people probably know, anything in your house can constitute or be used in chemical or explosive devices, including sugar and cleaning compounds, Mr. Clean, bleach, detergents, all those sorts of things.

It's unclear what made police raid Casey's house. They claim that they got a tip from a woman who sold Casey fertilizer and was concerned about it. Certain kinds of fertilizer are used in the production of crystal meth.

The case is reminiscent of the Steve Kurtz case in 2004. Kurtz is a New York artist who uses biotech equipment in his work, and police arrested him on suspicion of terrorism after discovering his home chemistry lab.

Casey is now living at home, but he is no longer allowed to engage in chemistry experiments except under supervision in school labs. He is also required to inform the chemistry department of the charges against him. His trial continues on January 26.

This is a stark example of how scientific curiosity is still regarded with suspicion - even in an era where home labs are becoming more and more common. Good luck to Casey - let's hope his next home lab is even bigger and cooler than the one he recently lost.

Thanks to Eraser Girl

Diagnosis: Police State?

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314 out of 315 ER docs agree. Police brutality is rampant.

Reuters Health reports:

In a survey of a random sample of U.S. emergency physicians, virtually all said they believed that law enforcement officers use excessive force to arrest and detain suspects.

The sample included 315 respondents. While 99.8 percent believed excessive force is used, almost as many (97.8 percent) reported that they had managed cases that they suspected or that the patient stated had involved excessive use of force by law enforcement officers.

Nearly two thirds (65.3 percent) estimated that they had treated two or more cases of suspected excessive use of force per year among their patients, according to a report of the survey published in the January 2009 issue of the Emergency Medicine Journal.

Dr. Jared Strote of the University of Washington, Seattle, and a multicenter team also found that emergency physicians at public teaching hospitals were roughly four times more likely to report managing cases of suspected use of excessive force than those at university or community teaching emergency departments.

Blunt trauma inflicted by fists or feet was the most common type of injury cited in cases of suspected use of excessive force, followed by "overly tight" handcuffs.

Most emergency physicians (71.2 percent) admitted that they did not report cases of suspected use of excessive force by law enforcement officers.

A large majority (96.5 percent) reported that they had no departmental policies on reporting their suspicions or they did not know of a policy to guide their actions, and 93.7 percent said they had received no education or training in dealing with these situations.

However, most emergency physicians (69.5 percent) felt that it was within their scope of practice to refer cases of suspected use of excessive force for investigation and almost half (47.9 percent) felt that emergency physicians should be legally required to report cases of suspected use of excessive force by law enforcement officers.

These findings, Strote and colleagues conclude, "suggest that national emergency medicine organizations in the USA should become involved, jointly developing and advocating for guidelines to manage this complex issue."

SOURCE: Emergency Medicine Journal, January 2009.

Thanks to the Agitator

By all accounts Angel Chandler's been an ideal custodial mother to her two teen aged children since her divorce a decade ago, and her in-live in partner of several years has been judged a "positive parental influence" by the state's own psychologists. A Tennessee court, however, is using the state's "paramour law" to ban Chandler's partner from living in the household.

ACLU blog reports

I'm writing to tell you about a very important parenting case that is now in the Court of Appeals in Tennessee.  Here's the story.

Angel Chandler and Joseph Baker divorced ten years ago.  They had two children, a daughter, now 13 and a son, now 15.  They had joint custody and visitation with both children.  Ms. Chandler began seeing the woman who became her partner nine years ago, and Mr. Baker married the woman who is now his wife in 2003.

Earlier this year, Ms. Chandler and Mr. Baker went to family court to get approval for a modification of their parenting plan.  Following usual procedure, the court ordered an evaluation of both homes.  The evaluation said that Ms. Chandler's partner was a positive influence, and had a "parent-like" relationship with both of the children.

Nevertheless, the court put what Tennessee law calls a "paramour" restriction in its order approving the new parenting plan.  The order barred Ms. Chandler's partner from their home on any night when either of the children are there.  Since Ms. Chandler's daughter spends most of her time there, that meant that Ms. Chandler's partner had to move out of their home.

To maintain some semblance of their life but comply with this ridiculous order, Ms. Chandler quit her job, and she and her partner moved to North Carolina, where they could maintain two households.  Ms. Chandler's partner now sleeps in the second household whenever one of the children is present-which is most nights.

Ms. Chandler has a very clear constitutional right to raise her children as she thinks best.  And like the court-appointed expert, she thinks it would be best if her children could be in a home with both their mother and their mother's partner.  Ms. Chandler also has a very clear constitutional right to love and have a relationship with another adult.

The courts can't interfere with either of those rights without a very good reason, and there is no good reason here, where the court's own expert recommended that this family be left alone.

I wish I could say that this case was a quirk, but orders like these are not at all uncommon, particularly in the South.  Judges often deny that they are discriminatory, saying that they apply equally to unmarried gay people and unmarried heterosexuals.  In a state like Tennessee, which constitutionally bans marriage for same-sex couples, that would qualify as a bad joke if families weren't being broken up.  We hope to convince the Tennessee Court of Appeals to strike this order down, and give us the kind of strong decision we can use to start getting rid of similar orders throughout the region.

As always, I'll keep you posted.

Expectation of Privacy for Cell Phone Info?

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No, according to Kansas judge in obscure ruling from last spring unearthed by Professor Orin Kerr, which could have nasty long-term implications for the Fourth Amendment.

The Volokh Conspiracy discussion here:

Fourth Amendment Rights in Numbers Dialed Stored Inside a Cell Phone:
I recently came across an interesting Fourth Amendment case in which a district court judge ruled that a defendant has no privacy rights in the list of phone numbers stored inside his cell phone: United States v. Fierros-Alavarez, 547 F. Supp.2d 1206 (D. Kan. 2008). This conclusion is wrong, I think, and why it's wrong raises an interesting aspect of Fourth Amendment law.

  The facts of the case are simple. The defendant was arrested and taken into custody, and a cell phone was taken from him at the time. The next day, the officers began to suspect that the cell phone stored records of criminal activity. Specifically, the officers believed that the defendant was a participant in a narcotics conspiracy, and that there would be records of calls to other members of the conspiracy inside the phone. Acting without a warrant, an officer searched three parts of the phone:
He looked at its "phone book" directory that stores names and telephone numbers, and he recorded the five names found there. He checked the recent calls directory that retains the telephone numbers of missed, received or dialed calls, and he wrote down the telephone numbers for the twenty recent calls. He checked the picture and video file but found nothing.
  The evidence was later used against the defendant to prove the case against him, and he moved to suppress the evidence on the ground that the officer violated his Fourth Amendment rights in looking through the phone. To resolve that issue, the court first addressed the threshold issue of whether the officer's retrieving the phone numbers violated the defendant's reasonable expectation of privacy.

  That threshold question forced the court to choose between two different lines of cases. On one hand, there are the cases concluding that a defendant normally has a reasonable expectation of privacy in the contents of data stored in his phones, pagers, and computers. On the other hand, there is Smith v. Maryland, 442 U.S. 735 (1979), in which the Supreme Court held that it does not violate a defendant's reasonable expectation of privacy to install a "pen register," a device for recording the numbers dialed from a particular phone line, at the office of the phone company.

  The basic question for the district court in Fierros-Alavarez was whether the Fourth Amendment rule for retrieving numbers dialed for a phone should follow the precedent for the device or the precedent for the data. The court concluded that the case was governed by Smith, and that therefore retrieving the data was not a search:
The government argues the holding in Smith and the later applications of Smith logically extend to the issue presented by the facts of this case so as to preclude an expectation of privacy in the recent call directory as well as the phonebook directory. The defendant's only rejoinder is that a phone book directory may disclose more information than that revealed in a pen register. The defendant, however, has not shown that the phone book directory in his cellular telephone discloses more than the "addressing information"-the telephone number and the subscriber's name-on the same numbers appearing in the recent calls directory. On the record as it stands, the court must conclude that the defendant has not carried his burden of proving a reasonable expectation of privacy in the addressing information retrieved from the recent calls directory and in the names and numbers taken from the phonebook directory. Thus, the court denies the defendant's motion for lack of standing.
  Wrong conclusion, I think. The general rule for Fourth Amendment searches is that privacy rights are determined ex ante by the place in which the search occurs, not ex post by whether the evidence turns out to be private. If a person has a storage device like a phone, computer, or package, Fourth Amendment rights are determined by whether the person has rights in the storage device, not whether the particular information discovered was sufficiently "private" to deserve Fourth Amendment protection.

  The leading case here is probably Arizona v. Hicks, 480 U.S. 321 (1987). In Hicks, an officer entered an apartment under exigent circumstances to try to find and stop a person who was firing gunshots from inside the apartment. Once inside, the officer saw very expensive stereo equipment in what was otherwise a squalid apartment. Suspecting that the equipment was stolen, the officer picked up the equipment to see the serial numbers so he could run the numbers for hits with known stolen property. In an opinion by Justice Scalia, the Court held that moving the equipment to reveal the serial numbers was a search:
It matters not that the search uncovered nothing of any great personal value to respondent - serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.
  That rule makes a lot of sense, I think. The police shouldn't be allowed to go through your private stuff so long as they only look for and take information that is in some sense "non-private." If you write a diary entry and describe going for a walk in the park, the police shouldn't be allowed to break into your home, rifle through your stuff, read your diary, and then take the entry about walking in the park all on the theory that the fact that your walk in the park was "public."

  The same goes for the numbers dialed stored in the cell phone in Fierros-Alavarez. Sure, if the police had installed a pen register in the phone and collected the information at the phone company, then collecting the number dialed wouldn't have triggered the Fourth Amendment. But the police didn't do that. And the police can't go hunting through private things like cell phones on the theory that they're only looking for information that they could have collected constitutionally if they had only thought of it at the time. Numbers dialed that are stored in a cell phone are normally protected by the Fourth Amendment as much as anything else stored in a cell phone, and it was wrong to say that Smith required a different result.

  There's a broader point at issue here: Fourth Amendment rights are contextual. Data, whether in the form of numbers (like telephone numbers here) or text (in the case of a diary), does not have a preordained level of Fourth Amendment protection in the abstract. If you store your diary at home under your bed, you have Fourth Amendment rights in your diary because you have stored in it your home. If you go into the park and leave your diary out in the open, you lose Fourth Amendment rights in what you have left open because you have left it open. The Fourth Amendment rights derive from the steps that the government must go through to retrieve the information in context, not the essential nature of the data itself.
Thanks to Ars Technica
Plainclothes San Diego cops, without search warrant, surround and surveil home as suspected meth lab, which it turned out not to be. When the family dog goes out to inspect them they shoot it, then arrest home owner for assaulting officers,( who at the time of the shooting still hadn't identified themselves) with a deadly weapon, the dog.

SanDiego CityBeat reports

Mali, a 3-year-old American Staffordshire Terrier, balances her front paws on Demarkus Peeples' thighs, gives him a long look then returns to all fours and takes a walk around the front porch of the North Park house where she lives with her owner, Ross Meyer. She walks back over to Peeples and does it again. She's got sparkly purple polish on her nails.

Two days earlier, Peeples' dog Egypt, also an American Staffordshire Terrier, was shot by San Diego police officers who say the dog came at them in a threatening manner. Egypt was hit three times--in the paw, lower leg and shoulder--and less than an hour later, she was euthanized by San Diego County Animal Control officers, who say Peeples gave them permission to put Egypt down. Peeples said he did no such thing.

"I told them over and over, 'Do not euthanize my dog,'" he said.

"I'm pretty sure she knows" about Egypt's death, Meyer said, commenting on Mali's behavior toward Peeples.

Usually lumped in with Pit Bull Terriers, American Staffordshire Terriers, or AmStaffs, have a reputation not as fighters but as loyal family pets. Peeples said he never had any problems with Egypt, except a complaint from a neighbor that she barked too loud. Egypt loved to play with Peeples' 7-year-old son and 6-year-old nephew and would sit at the edge of Peeples' front yard, waiting for neighbors to come over to give her treats. Like her dog pal Mali, she often had polish on her nails--Meyer's mom's idea--and a matching collar. She didn't so much like the manicures, but after they were over, "she'd run around with a little pep in her step," Peeples said.

"She was the delightful nuisance of the neighborhood," said Chris Victor, who lives across the street from Peeples. "She'd see you and she'd wag from head to toe."

But for all their friendliness, AmStaffs are inclined to protect their owners and property, which could be the reason Egypt went running toward the cops.

Around noon on Tuesday, Dec. 2, Peeples was watching TV at home when he heard a knock at the front door. When he looked out the door's top window, he saw a group of men standing on his porch wearing jeans and T-shirts, a couple of them looking a little ratty. To get a better look, he went to a side window and peeked through the drawn blinds. "Honestly, they looked like they were transients," he said.

The men, it ends up, were undercover narcotics officers who were there on a complaint about drug activity at that address--Peeples was later told that it had to do with a "chemical smell." Peeples said the men--he estimates there were six--never announced who they were.

He decided not to open the door and watched as two broke off from the group and walked up the driveway that runs alongside the one-story bungalow he shares with his mom. The men opened a gate leading to the backyard and walked up to the back door. They started knocking and yelling "Hello?" through the locked security door, Peeples recalled.

Peeples was standing in the doorway of a front bedroom where he could see the men but they couldn't see him. "It looked like they were trying to case my house," Peeples said. Egypt ran to the security door and started to bark at the strangers.

Eventually the two men left the back door and returned to the front of the house. Peeples opened the back door to take a look around; when he did, Egypt ran out. Normally, she'd stop at the backyard gate, he said, but the men had left the gate's door open. With nothing to stop her, Egypt went running down the driveway and Peeples went after her. He heard gunshots and saw two men with guns drawn.

Wounded, Egypt ran to the backyard. The men pulled out their badges, told Peeples they were undercover narcotics agents, handcuffed him and told him he was being charged with assault with a deadly weapon. A police cruiser pulled up, and Peeples was stuffed in the back. "Charge him with everything you can charge him with," he remembers one of the officers saying.

San Diego Police Department spokesperson Monica Muñoz confirmed that Egypt didn't attack the officers, but she said they were within policy to shoot her.

"The animal was charging the officers," she said. "They weren't going to wait to see if [she] was actually going to bite them."

Muñoz disputed Peeples' claim that there were six officers, saying that narcotics officers work in teams of four. As to their attire--Peeples said he would have opened the door immediately and kept Egypt at bay if he saw a uniformed officer at his door--Muñoz said that's not the way narcotics officers operate.

"Narcotics teams work undercover, work in plainclothes," she said. She referred to what they were doing as a "knock-and-talk" and confirmed that officers didn't have a search warrant. "They didn't do any surveillance.... They went out to check out the complaint."

Mike Marrinan, a San Diego attorney who specializes in police use-of-force cases, questioned the officers' decisions, starting with having two undercover cops enter an enclosed backyard.

"People have an expectation of privacy in their backyard that they might not have in their front," Marrinan said. And, obviously, leaving the gate open was a mistake, Marrinan noted. Peeples told CityBeat that if the officers had closed the gate, Egypt would never have run out.

Even more troubling, Marrinan said, is the fact that officers were so quick to draw their weapons in a residential area. Meyer, Peeples' neighbor, said he heard five shots. According to a police dispatch log, a 911 call reported four or five shots.

"Bullets can ricochet," Marrinan said. "You've got one relatively small dog, and we're shooting our guns five times?"
Handcuffed and in the back of the police cruiser, Peeples watched as an animal-control officer led Egypt, covered in blood, out from the backyard. From the trail of blood she left behind, Peeples later determined that Egypt had run up to the back door and then took refuge under some shrubs. Peeple's was approached by an animal-control officer who asked for permission to put Egypt to sleep, telling him it was the humane thing to do.

Animal Control spokesperson Dan DeSousa said Peeples' verbal authorization to euthanize Egypt was witnessed by a second officer, but Peeples insists he never gave permission. "Do not kill my dog; do everything you can to save my dog," he remembers yelling. When he saw Chris Victor, his neighbor, he asked him to make sure Egypt was kept alive. Victor said he called animal control to let them know he'd cover any cost for Egypt's care, but by the time his call got through, Egypt had been euthanized. DeSousa said the dog was put down immediately after arriving.

Though the assault charge against Peeples was dropped, Muñoz said police have filed misdemeanor charges against him with the San Diego City Attorney's office, including not having a dog license, endangering the public's safety and possession of marijuana. A search of Peeples' garage, OK'd by his mom, turned up a scale and a tiny amount of marijuana so old that it disintegrated upon contact.

Peeples went to pick up Egypt from animal control last Thursday. Victor and Meyer went with him. She was handed over in a clear plastic bag.

"They didn't know she was a sweetheart," Victor said. "Had they said 'sit,' she would have sat."    

Thanks to the Agitator

Illegal to be "Annoying"

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Michigan town passes ordinance mandating "It shall be unlawful for any person in the city to insult, accost, molest or otherwise annoy, either by word of mouth, sign or motions any person in any public place."

Livingston Daily reports

Don't annoy someone in Brighton city or you might get a ticket.
The Brighton City Council approved a more stringent code for public conduct, and those who violate the rules - including annoying someone else - could be ticketed and fined. The ordinance was modeled after one in Royal Oak, where Brighton Police Chief Tom Wightman previously was employed.

One of the sections reads, "It shall be unlawful for a person to engage in a course of conduct or repeatedly commit acts that alarm or seriously annoy another person and that serve no legitimate purpose."

Another section states, "It shall be unlawful for any person in the city to insult, accost, molest or otherwise annoy, either by word of mouth, sign or motions any person in any public place."

Two City Council members expressed concerns about the ordinance but ended up
voting for it.

Council member Jim Bohn said some of the language was subjective.

"I'm not sure what alarm or seriously annoy means," Bohn said.

Council member Jim Muzzin asked if he were to stand up and read "War and Peace," during his five-minute limit at call to the public at numerous meetings, "would I be ticketed or fined?"

Paul Burns, city attorney, responded no.

Burns said City Council chambers are considered a "bastion of democracy" and the law provides a wide breath for free speech. Burns said there could be a situation where a ticket issued violates someone's free speech, but he said his office would be reviewing these cases.

City Manager Dana Foster said enforcement would be a subjective call made by
police officers. However, Foster said the rules are aimed at those who interfere in public areas as opposed to residents who are simply annoying for annoyance's sake.

The amended ordinance takes effect 15 days from approval, which is Jan. 2, 2009.
Thanks to Jonathan Turley
Time to put up an amber alert, right? Well, except for the fact that the three "gentlemen" (sic) were undercover Galveston police on a "stakeout" of a group white prostitutes supposedly cruising black drug dealers. Emily Milburn, the girl kidnapped by the cops, was black. Oh yeah and her house was two blocks away from the scene of the alleged incidents.

The Houston Press reports

t was a little before 8 at night when the breaker went out at Emily Milburn's home in Galveston. She was busy preparing her children for school the next day, so she asked her 12-year-old daughter, Dymond, to pop outside and turn the switch back on.
As Dymond headed toward the breaker, a blue van drove up and three men jumped out rushing toward her. One of them grabbed her saying, "You're a prostitute. You're coming with me."

Dymond grabbed onto a tree and started screaming, "Daddy, Daddy, Daddy." One of the men covered her mouth. Two of the men beat her about the face and throat.

As it turned out, the three men were plain-clothed Galveston police officers who had been called to the area regarding three white prostitutes soliciting a white man and a black drug dealer.

All this is according to a lawsuit filed in Galveston federal court by Milburn against the officers. The lawsuit alleges that the officers thought Dymond, an African-American, was a hooker due to the "tight shorts" she was wearing, despite not fitting the racial description of any of the female suspects. The police went to the wrong house, two blocks away from the area of the reported illegal activity, Milburn's attorney, Anthony Griffin, tells Hair Balls.

After the incident, Dymond was hospitalized and suffered black eyes as well as throat and ear drum injuries.

Three weeks later, according to the lawsuit, police went to Dymond's school, where she was an honor student, and arrested her for assaulting a public servant. Griffin says the allegations stem from when Dymond fought back against the three men who were trying to take her from her home. The case went to trial, but the judge declared it a mistrial on the first day, says Griffin. The new trial is set for February.

"I think we'll be okay," says Griffin. "I don't think a jury will find a 12-year-old girl guilty who's just sitting outside her house. Any 12-year-old attacked by three men and told that she's a prostitute is going to scream and yell for Daddy and hit back and do whatever she can. She's scared to death."

Since the incident more than two years ago, Dymond regularly suffers nightmares in which police officers are raping and beating her and cutting off her fingers, according to the lawsuit.
Griffin says he expects to enter mediation with the officers in early 2009 to resolve the lawsuit.

We've got calls in to the officers' lawyer; we'll let you know if we hear something.

Update: This is from the officers' lawyer, William Helfand:

Both the daughter and the father were arrested for assaulting a peace officer. "The father basically attacked police officers as they were trying to take the daughter into custody after she ran off."

Also, "The city has investigated the matter and found that the conduct of the police officers was appropriate under the circumstances," Helfand says. "It's unfortunate that sometimes police officers have to use force against people who are using force against them. And the evidence will show that both these folks violated the law and forcefully resisted arrest."
Thanks to Lew Rockwell
In what will hopefully become a national precedent, county coroner, breaking with the normal pattern of ignoring taser-use by police in reports of deaths in police custody, acknowledges stun guns, pepper spray contributing causes in 2005 death of suspect.

SF Chronicle reports

The city of San Jose has agreed to pay $70,000 to the family of a Fresno man whose death in a 2005 confrontation with police was partly attributed to officers' use of pepper spray and stun guns.

The death of Jose Angel Rios, 38, marked the first time the Santa Clara County coroner listed the police weapons as contributing factors in an in-custody death.

Rios died after officers used batons, pepper spray and Tasers to subdue him in an incident that began when off-duty Officer Ian Cooley saw him arguing with his wife, Christine, at an apartment complex on Stokes Street on Nov. 18, 2005.

Rios was reaching into the passenger side of a sport utility vehicle and appeared to have his arm around his wife's neck as she screamed for help, authorities said.

Cooley drew his gun and began arguing with Rios before pepper-spraying him, according to a suit filed by Christine Rios and her son, Jose Angel Rios Jr. The officer called for backup, and Officer Steve Guggiana arrived and fired his Taser numerous times at Rios, court records said.

While he was on the ground, the officers shot Rios again with stun guns and beat him with batons, fists, knees and elbows, the family's suit said. City officials have said police used the force that was necessary to subdue Rios, who they said had been struggling and resisting arrest.

Rios was pronounced dead shortly thereafter at Valley Medical Center in San Jose.

The coroner found that the 6-foot-1, 330-pound Rios was obese and had been high on cocaine during the struggle. The coroner attributed his death to heart failure but, in a first for the county, also listed stun guns and pepper spray as contributing factors.

At least six people have died after the use of Tasers by San Jose police since 2004, when all officers in the city were given the stun guns for use on patrol, according to police watchdog groups. Lawsuits are pending in at least two of those cases.

The City Council approved the settlement with Rios' family Tuesday.

Thanks to Beren Correa

Solitary Confinement for Children

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Investigation of story of 13 year old boy who hung himself while in confinement in "seclusion room" of special ed school reveals rampant nationwide use of torture-like methods to control autistic and other "special needs" children. 

CNN reports

A few weeks before 13-year-old Jonathan King killed himself, he told his parents that his teachers had put him in "time-out."
We thought that meant go sit in the corner and be quiet for a few minutes," Tina King said, tears washing her face as she remembered the child she called "our baby ... a good kid."

But time-out in the boy's north Georgia special education school was spent in something akin to a prison cell -- a concrete room latched from the outside, its tiny window obscured by a piece of paper.

Called a seclusion room, it's where in November 2004, Jonathan hanged himself with a cord a teacher gave him to hold up his pants. Video Watch Jonathan's parents on their son's death »

An attorney representing the school has denied any wrongdoing.

Seclusion rooms, sometimes called time-out rooms, are used across the nation, generally for special needs children. Critics say that along with the death of Jonathan, many mentally disabled and autistic children have been injured or traumatized.

Few states have laws on using seclusion rooms, though 24 states have written guidelines, according to a 2007 study conducted by a Clemson University researcher.

Texas, which was included in that study, has stopped using seclusion and restraint. Georgia has just begun to draft guidelines, four years after Jonathan's death.

Based on conversations with officials in 22 states with written guidelines, seclusion is intended as a last resort when other attempts to calm a child have failed or when a student is hurting himself or others.

Michigan requires that a child held in seclusion have constant supervision from an instructor trained specifically in special education, and that confinement not exceed 15 minutes.

Connecticut education spokesman Tom Murphy said "time-out rooms" were used sparingly and were "usually small rooms with padding on the walls."

Only Vermont tracks how many children are kept in seclusion from year to year, though two other states, Minnesota and New Mexico, say they have been using the rooms less frequently in recent years.

Dr. Veronica Garcia, New Mexico's education secretary, said her state had found more sophisticated and better ways to solve behavior problems. Garcia, whose brother is autistic, said, "The idea of confining a child in a room repeatedly and as punishment, that's an ethics violation I would never tolerate."

But researchers say that the rooms, in some cases, are being misused and that children are suffering.

Public schools in the United States are now educating more than half a million more students with disabilities than they did a decade ago, according to the National Education Association.

"Teachers aren't trained to handle that," said Dr. Roger Pierangelo, executive director of the National Association of Special Education Teachers.

"When you have an out-of-control student threatening your class -- it's not right and it can be very damaging -- but seclusion is used as a 'quick fix' in many cases."

Former Rhode Island special education superintendent Leslie Ryan told CNN that she thought she was helping a disabled fifth-grader by keeping him in a "chill room" in the basement of a public elementary school that was later deemed a fire hazard.

"All I know is I tried to help this boy, and I had very few options," Ryan said. After the public learned of the room, she resigned from her post with the department but remains with the school.

School records do not indicate why Jonathan King was repeatedly confined to the concrete room or what, if any, positive outcome was expected.

His parents say they don't recognize the boy described in records as one who liked to kick and punch his classmates. They have launched a wrongful death lawsuit against the school -- the Alpine Program in Gainesville -- which has denied any wrongdoing. A Georgia judge is expected to rule soon on whether the case can be brought before a jury.

Jonathan's parents say the boy had been diagnosed since kindergarten with severe depression and attention deficit hyperactivity disorder. But his father remembers him as a boy who was happy when he sang in the church choir.

"He was a hugger, liked to go fishing with me and run after me saying, 'Daddy, when are we going to the lake?' " Don King said.

King said that he wanted to know if there were similar situations in other schools and that critics of seclusion rooms fear there could be.

"Jonathan's case is the worst of the worst, but it should be a warning. It's reasonable to think that it could happen in all the other schools that use seclusion on disabled children -- largely because the use of seclusion goes so unchecked," said Jane Hudson, an attorney with the National Disability Rights Network.

"This is one of those most unregulated, unresearched areas I've come across," said Joseph Ryan, a Clemson University special education researcher who has worked in schools for disabled kids and co-authored a study on the use of seclusion.

"You have very little oversight in schools of these rooms -- first because the general public doesn't really even know they exist," he said.

There is no national database tracking seclusion incidents in schools, though many have been described in media reports, lawsuits, disability advocacy groups' investigations and on blogs catering to parents who say their child had been held in seclusion.

Disability Rights California, a federally funded watchdog group, found that teachers dragged children into seclusion rooms they could not leave. In one case, they found a retarded 8-year-old had been locked alone in a seclusion room in a northeast California elementary school for at least 31 days in a year.

"What we found outrageous was that we went to the schools and asked to see the rooms and were denied," said Leslie Morrison, a psychiatric nurse and attorney who led the 2007 investigation that substantiated at least six cases of abuse involving seclusion in public schools.

"It took a lot of fighting to eventually get in to see where these children were held."

CNN asked every school official interviewed if a reporter could visit a seclusion room and was denied every time.

In other instances of alleged abuse:

• A Tennessee mother alleged in a federal suit against the Learn Center in Clinton that her 51-pound 9-year-old autistic son was bruised when school instructors used their body weight on his legs and torso to hold him down before putting him in a "quiet room" for four hours. Principal Gary Houck of the Learn Center, which serves disabled children, said lawyers have advised him not to discuss the case.

• Eight-year-old Isabel Loeffler, who has autism, was held down by her teachers and confined in a storage closet where she pulled out her hair and wet her pants at her Dallas County, Iowa, elementary school. Last year, a judge found that the school had violated the girl's rights. "What we're talking about is trauma," said her father, Doug Loeffler. "She spent hours in wet clothes, crying to be let out." Waukee school district attorney Matt Novak told CNN that the school has denied any wrongdoing.

• A mentally retarded 14-year-old in Killeen, Texas, died from his teachers pressing on his chest in an effort to restrain him in 2001. Texas passed a law to limit both restraint and seclusion in schools because the two methods are often used together.

Federal law requires that schools develop behavioral plans for students with disabilities. These plans are supposed to explicitly explain behavior problems and methods the teacher is allowed to use to stop it, including using music to calm a child or allowing a student to take a break from schoolwork.

A behavioral plan for Jonathan King, provided to CNN by the Kings' attorney, shows that Jonathan was confined in the seclusion room on 15 separate days for infractions ranging from cursing and threatening other students to physically striking classmates.

Howard "Sandy" Addis, the director of the Pioneer education agency which oversees Alpine, said that the room where Jonathan died is no longer in use. Citing the ongoing litigation, he declined to answer questions about the King case but defended the use of seclusion for "an emergency safety situation."

The Alpine Program's attorney, Phil Hartley, said Jonathan's actions leading up to his suicide did not suggest the boy was "serious" about killing himself. Jonathan's actions were an "effort to get attention," Hartley said.

"This is a program designed for students with severe emotional disabilities and problems," he said. "It is a program which frequently deals with students who use various methods of getting attention, avoiding work."

A substitute employee placed in charge of watching the room on the day Jonathan died said in an affidavit that he had no training in the use of seclusion, and didn't know Jonathan had threatened suicide weeks earlier.

The Kings say they would have removed their son from the school if they knew he was being held in seclusion, or that he had expressed a desire to hurt himself.

"We would have home schooled him or taken him to another psychologist," said Don King. "If we would have known, our boy would have never been in that room. He would still be alive."

Thanks to bibliophilebullpen
USMC military police will accompany the California Highway Patrol on "joint sobriety checkpoint" duty on the highways of San Bernadino County. 

DUI Blog reports

I've posted in the past about the increasing federalization of drunk driving laws and law enforcement procedures.  See Here Come the Feds and The Future of DUI.  But even I wasn't ready for the latest development...

The U.S. Marines have landed...and are apparently manning "sobriety checkpoints" in San Bernardino County in California.  Yes, Marines.  Yes, civilian DUI roadblocks. 

From an official December 10th California Highway Patrol public relations release:

CHP to Conduct Sobriety/Driver's License Checkpoint

The Morongo office of the California Highway Patrol (CHP) in conjunction with the  San Bernardino Sheriff's Department and the USMC military police will conduct a joint sobriety/driver license checkpoint on Friday, December 12, 2008, somewhere in the unincorporated/incorporated area of San Bernardino County.

As an American citizen, not to mention a former Marine, I find this troubling -- particularly in view of the clear wording of the Posse Comitatus act of 1878, described in Wikipedia:

The Posse Comitatus Act is a  United States federal law (18 U.S.C. § 1385) passed on June 16, 1878, after the end of Reconstruction. The Act prohibits most members of the federal uniformed services  (the Army, Air Force and State national Guard forces (when such are called into federal service) from exercising nominally state law enforcement, police or peace officer powers that maintain "law and order" on non-federal property (states and their counties and municipal divisions) in the former Confederate states.

The statute generally prohibits federal military personnel and units of the National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. The Coast Guard is exempt from the Act.

A follow-up call to a Marine Corps public affairs sergeant resulted in assurances that the Marines would be there "as observers".   Hmmmm.....military observers.  Isn't that how it all starts?

But whose counting, since we all know tasers are "non-lethal" and only used against imminently violent criminals, right? Not against, say, unarmed but surly citizens who argue about traffic tickets.

Raw Story reports

They are marketed as non-lethal weapons that allow police to capture suspects or criminals without causing any permanent harm.

Former New York Mayor Rudolph Giuliani and businessman Bernard Kerik made millions selling the idea to police departments across the country.

But Tasers have killed more than 400 people in the United States and Canada since 2001, according to a new study commissioned by the Canadian Broadcasting Corp.

Police departments across Canada began banning use of Tasers by their officers after the report found that Tasers deliver more power than the manufacturer says is possible.

It is unknown if U.S. police departments will follow suit.

The study includes a medical analysis that concluded someone shot with a Taser could face as high as a 50 percent chance of cardiac arrest.

The Taser company, however, still says its weapons can't kill.

"It is unfortunate that false allegations based on scientifically flawed data can create such uncertainty," Steve Tuttle, a Taser vice president, told The Arizona Republic.

Stories of Taser-related deaths have stacked up over the years, many involving police officers who never realized the harm their Taser could cause.

A man described as "emotionally disturbed" fell to his death after police Tasered him on a fire escape. Not long after, the officer who gave the order took a Glock 9mm from the locker room and shot himself in the head.

Earlier this week, police Tasered a man who had gone into Diabetic shock while driving. The officers later said they felt "extremely bad" about shocking him when they realized he wasn't drunk or high but in need of medical attention.

"Taser's marketing coup has been to convince consumers that there is such a thing as a gun that won't kill," AlterNet reported.

On the Taser Web site, a marketing slogan reads: "Who says safety can't be stylish?"

Thanks to Harold Johnson
So says the US Dept. of Energy.

Secrecy News reports

A proposed new Department of Energy regulation would eliminate the so-called "public interest" balancing test that encourages DOE officials to release information under the Freedom of Information Act even when it is legally exempt from disclosure if doing so would serve the public interest.

"This proposed rule would remove the so-called 'extra balancing test'... which states: 'To the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under [the FOIA] whenever it determines that such disclosure is in the public interest'," according to the December 9 proposal published in the Federal Register.

"This additional [public interest balancing] test requires DOE to make available records that could be withheld under the FOIA exemptions, if DOE determines that disclosure would be in the public interest.  DOE is proposing to remove the extra balancing test, because it goes beyond the requirements of the FOIA, and imposes unnecessary administrative requirements on DOE."

It is true, by definition, that the balancing test in the existing DOE regulation "goes beyond the requirements of the FOIA," because it encourages disclosure of records the release of which is not legally required.

But in an apparent non-sequitur, DOE also said that "the extra balancing test does not alter the outcome of the decision to withhold information, as DOE already incorporates Department of Justice guidance in applying exemptions when determining whether or not to make a discretionary release of information."

The difficulty with that statement is that current Department of Justice guidance on discretionary release does not require explicit consideration of the public interest in disclosure of exempt information.  To the contrary, it promotes withholding of exempt information and promises to defend agencies whenever they legally withhold such information.

In effect, the existing DOE regulation incorporates the 1993 FOIA policy enunciated by then-Attorney General Janet Reno (and long since abandoned by other agencies) which encouraged discretionary disclosures unless there was a "foreseeable harm" to a legitimate government interest.  And the proposed new DOE revision reflects the 2001 FOIA policy of Attorney General John Ashcroft, who discouraged discretionary releases (though he did not prohibit them) and urged withholding of records whenever there was a "sound legal basis" for doing so.  As noted in a November 19, 2001 Defense Department memo (pdf), under the Ashcroft FOIA policy "Discretionary disclosures are no longer encouraged."

It is interesting to observe that with the current DOE FOIA regulation in effect there has been a striking difference in FOIA implementation between the Department of Energy and other agencies.

Earlier this year, for example, President Bush ordered executive branch agencies to provide comments on the recommendations of the Public Interest Declassification Board for improving declassification practices.  Requests under the Freedom of Information Act for copies of these comments were consistently rejected by the Office of the Director of National Intelligence, the Department of Defense, the Department of Homeland Security and other agencies.  These agencies correctly noted that the comments were inter-agency deliberative materials that were exempt from disclosure under FOIA exemption (b)(5).

But one agency released its comments in full, despite the availability of an exemption:  the Department of Energy. (See "Energy Dept is 'Committed' to Improving Declassification," Secrecy News, June 5).  In other words, it appears that the public interest balancing test and the approach to FOIA that it represents do alter the outcome of the disclosure decision process at DOE.

In comments on the proposed regulation submitted by the Federation of American Scientists, we argued that "there is a widespread and well-founded expectation that the incoming Obama Administration will rescind the Ashcroft FOIA policy and define a more forthcoming disclosure policy.  In light of that probable scenario, I would urge DOE to cancel its proposed revision of [the public interest balancing test], or else to suspend action on it for six months while the new Administration prepares new government-wide FOIA guidance."

One Industry That Won't Need a Bail-Out

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Recession? Depression? Not if you're in the business of imprisonment. When you're providing private prison "services" to detain illegal immigrants it's always boom time.

Counterpunch reports

Mining, railroads, agribusiness, and, recently, construction have been among the many U.S. industries that historically been driven by an abundant supply of immigrants. But now, when the economy is imploding, most industries are shedding immigrants. The private prison industry, however, is booming, largely because of the ever-increasing supply of immigrants supplied by the federal government.

In the past, when the government detained immigrants--legal or illegal--they were placed in one of a handful of official processing centers where they awaited a hearing or deportation. The Department of Homeland Security still runs seven immigrant detention centers.

Since the early 1980s, sparked by the Reagan administration's new enthusiasm for privatization and the free market, the Justice Department and now also DHS have been outsourcing most of the immigrant detainees to private firms that own or manage scores of prisons that annually hold hundreds of thousands of immigrants.

At a time when most other industries are reporting slackening consumer demand and plunging revenues, the executives of the major private companies providing prison services attribute their fortunes to the sorry fate of America's immigrant population. They routinely tell investors that their major "customers"--Federal Bureau of Prisons, U.S. Marshals Service, and Immigration and Customs Enforcement (ICE)--keep "bed occupancy" near capacity.

To understand how well the prison business is faring and how immigrants are key to prison profits, you can listen in on the prison firms' quarterly conference calls with major Wall Street investment firms. In early November, the country's prison corporations reported soaring profits.

Corrections Corporation of America (CCA), the country's oldest and largest prison corporation, boasted that it enjoyed a $33.6 million increase in the third quarter over last year, while earnings rose 15% during the same period. Formerly known as Wackenhut, GEO Group, the nation's second largest prison company, saw its earnings jump 29% over 2007. Another private prison firm that imprisons immigrants is Cornell Companies, and it reported a 9% increase in net revenues in the third quarter.

Private prisons have been booming over the past eight years. From 2000 to 2005, the number of private prisons increased from 16% of all prisons to 23%. All of the increase in federal prisons has been in prisons owned or operated by private firms.

Immigrants are the fastest growing sector of the federal detainees and prisoners, and there are hundreds of millions of dollars to be made by enterprising businesses and governments. The annual ICE budget for "detention and removal" is $1.2 billion.

In addition, the Justice Department's Office for the Detention Trustee has hundreds of contracts with local governments and private prison firms that provide beds for immigrants. Both ICE and OFDT have special offices that oversee the outsourcing of its immigrant prisoners. OFDT even boasts of its "enterprise" system of detention.

Private prison companies aren't worried that the Democratic Party sweep will mean that fewer immigrants are sent their way because of party promises of enacting comprehensive immigration reform. GEO Group's chairman George Zoley assured investors on Nov. 3: "These federal initiatives to target, detain, and deport criminal aliens throughout the country will continue to drive the need for immigration detention beds over the next several years and these initiatives have been fully funded by Congress on a bipartisan basis."

Not only has the DHS crackdown on illegal immigrants have bipartisan support in Congress, it was the Democratic Congress, say private prison chiefs, that increased the 2009 budget for the crackdown. "The president only asked for a program funding of $800 million," noted Zoley. "It was the Democratic chairman [of the Homeland Security subcommittee] ... that added another $200 million to this program."

In a post-election conference to report third-quarter revenue increases, CCA board chairman John Ferguson told Wall Street investors: "One budget that was put in place for the full year was immigration customs enforcement ... and the funding for that is for 33,400 beds--that's an increase from 32,000 in the prior fiscal year, and also that compares to a little over 31,000 detainees in [2007]."

"Just to remind everyone," Ferguson told investors, "detainee beds would be sourced from us from several places that immigration customs boys need: that's border apprehensions, people that overstay their visas, [immigrants] that are identified as criminals, and the jails and prisons [that hold immigrants] who have completed their time and will be deported."

Addressing investor fears that recent decreases in illegal immigration inflows might dampen company returns, Ferguson said, "So even though we have seen the border crossings and apprehensions decline in the last couple of years, we are really talking about dealing with a population well north of 12 million illegal immigrants residing in the United States."

The CCA chief assured investors that the company's dependence on detained immigrants is not a factor of policy but rather of law enforcement. "The Federal Bureau of Prisons, U.S. Marshals Services, Immigration, and Customs Enforcement are carrying out statutory obligations for their responsibility ... We should continue to see their utilization of the private sector to meet their statutory obligations and requirements."

The prison executives even intimate that the economic crisis will fatten their business. When asked by an investment company representative about a possible downturn in detained immigrants as a result of new government policies, James Hyman, president of Cornell Companies, said, "We do not believe we will see a decline in the need for detention beds particularly in an economy with rising unemployment among American workers."

What is more, he told investors that there exists a pool of "10 million plus illegal immigrants" the company draws from and there is an "imbalance" between the number of immigrants and number of available prison beds.

Cornell also waxed enthusiastic about the continued good prospects for its prison business based on immigrant numbers and federal commitment to enforcement and "prison beds." Hyman said, "Today, ICE has about 33,000 detention beds available, which seems small but has increased substantially from only 20,000 beds in 2005. The Federal Bureau of Prisons, which houses criminal aliens and today has about 52,000 beds in their system, including 22,000 inmates housed in the private prisons."

To illustrate the increase in business generated by immigrants, Hyman pointed out that the "Southwest Border Districts for the USMS [U.S. Marshals Service] have about 19,000 detainees today, which is over a 70% increase since the beginning of the decade"--driven by the immigration crackdown including almost doubling of the number of Border Patrol agents.

But won't the economic downturn mean decreased state and local budgets for incarceration? None of the private prison firms seem too worried.

CCA's Chief Financial Officer Todd Mullenger offered investors a rosy forecast. "The other thing that could be on the positive side," he said, "[is that] we could see some new states or existing states come to us with a more aggressive push toward privatization to help them reduce their budget shortfall." Moreover, "they might be willing to shutter some old inefficient facilities ... and outsource those inmates as a cost-cutting mechanism."

"Remember we're in two markets--the state market and the federal market," noted Zoley of GEO Group. "At the state level you're obviously hearing about states with different deficits all around the country including the Sunbelt states where our customers are primarily located. But from coast to coast we're seeing the continued need for more capacity. Florida itself has a budget deficit I think of $3 billion or $4 billion, and yet in the last month it just issued an award to us for a new 2,000-bed facility."

Full of confidence that the private prison industry is the business to be in these days, Zoley confidently added: "The federal market is being driven for the most part as we've been discussing by the need for criminal alien detention beds. That's being consistently funded."

Student suspended for vulgar language on bumper sticker on car parked in school lot.

The Walla-Walla Union Bulletin reports

The suspension of a Walla Walla High School junior over crude bumper stickers has drawn the attention of the National Coalition Against Censorship.

In a letter to Walla Walla Public Schools Superintendent Richard Carter and Walla Walla High School Principal Darcy Weisner sent Dec. 3, the agency strongly disagrees with the school's decision to suspend the student after failing to remove a bumper sticker from her car.

The girl and her family contacted the agency soon after the suspension.

The student apparently had two bumper stickers with profane words on them. One sticker drew the coalition's response. The phrase on that sticker is similar to the title of a 1990s rap song, "Boom! I Got Your Boyfriend" by M.C. Luscious. The naughty version replaces "got" with an expletive, and was covered by rapper Da Brat in 2003.

The coalition notes Walla Walla School Board policy prevents students from using or displaying offensive or vulgar language that may disrupt the educational process, either in class or in assemblies. But the coalition believes the student's rights were challenged because the questionable sticker never left a school parking lot.

The issue of students' rights to free speech was argued in a 1986 U.S. Supreme Court decision that is mentioned in the letter.
The coalition goes on to point out the guidelines for removing the bumper sticker because it was displayed in a school parking lot would also apply to the general public attending school-sponsored events.

"Taken as a whole, these actions reveal a gross disregard for the constitutional values that underlie public education," wrote Joan Bertin, executive director of the coalition, in the letter.

"While the school has considerable authority to control what can and cannot be said in classrooms and school assemblies ... its authority is not without limits," Bertin noted.

The coalition is asking the district to reconsider the suspension, repeal it, and remove it from the student's record.

In its defense, the district issued a statement explaining why the language on the stickers was unacceptable, prompting their removal and the student's suspension.

"The bumper stickers contained the 'f' word and this language is not acceptable in print or speech on school grounds," Deputy Superintendent Bill Jordan said. "The decision to have the bumper stickers removed from campus was made to maintain a safe and civil school environment. Our legal counsel is preparing a letter in response to the National Coalition Against Censorship defending our decision."


To read the coalition's letter and the School District's response, go to

Thanks to Joanthan turley

After cops interpret man's lack of response as evidence of non-cooperation with law enforcement, and use of drugs and alcohol, they taser and then cuff him, finally accusing him of "Resisting Arrest."

Raw Story reports

Luckily for a driver who went into severe diabetic shock last month in Oklahoma, police arrived on the scene and called in an ambulance.

But not before they tasered and handcuffed him.

The 53-year-old diabetic man was tasered by police after they suspected him of being under the influence of drugs or alcohol and claimed he had resisted arrest -- even though he was actually in shock. The man's truck has spun out on an interstate after he lost control of his vehicle.

The video below -- broadcast by CBS News -- shows the scene in El Reno, Oklahoma last month.

"It's unfortunate in the officers' aspect and they feel extremely bad after they learned that in fact it was a medical need and not someone who was under the influence of an intoxicant, drug or alcohol," El Reno's mayor told CBS.

"A spokesman for the agency that certifies officers says it's state law for all student officers to learn how to recognize and care for type one and type two diabetic patients," the network added.

Tallan T-Man Latz  has been playing music since age three when he received his first musical instrument, a drum kit. By four he was playing guitar and at age eight, he's played on stage with both Jackson Browne and Les Paul and plays for two blues bands. Till recently he played in public nearly every weekend, always accompanied by one of his parents, saving the money for college. The Wisconsin State Department of Workforce Development, however, has ordered him to cease and desist, as his playing is against state child labor laws covering "public exhibitions and performances in a "roadhouse, cabaret, dance hall, nightclub, tavern, or other similar place."

WISN Milwaukee reports

He's been practicing two to three hours a day since he was only 5 years old, and it shows.Tallan "T-Man" Latz is in two different blues bands and used to play in public nearly every weekend. He was always accompanied by one of his parents, saving the money for college.Tuesday, his agent got a letter in the mail saying the agent would be killed if she continued to book gigs for Tallan."I knew there would be resistance when I started booking him, just because he's a young man living his dream and being successful at it," booking agent Sharon Pomaville said.She notified police, and they're investigating, but T-Man apparently has more people jealous.Somebody else reported him to the State Department of Workforce Development, and a different letter arrived saying that he's violating child labor laws covering "public exhibitions."The statute said no one under 16 can perform in a "roadhouse, cabaret, dance hall, nightclub, tavern, or other similar place.""It feels pretty bad because that just broke my dream. My dream is to play guitar," Tallan Latz said.Tallan's father said it's ironic that a minor in Wisconsin could legally drink a beer in a tavern if a parent was right there and allowed it."But as soon as I'm in the same exact place that he can legally drink at, and I hand him his guitar, that is now considered child endangerment," Carl Latz said.The state official who wrote the letter told 12 News: "The kid is definitely a prodigy, and you'd like to see him have opportunities. But if I'm made aware of a violation, I have to enforce the statute."Tallan's dad doesn't have the money to hire an attorney to fight the ruling, but he wonders, what about Tallan's rights?"His freedom of expression is getting denied right now, and that's what this country was founded on," Carl Latz said.As for 8-year-old T-Man, he said the whole mess has only made him want to play even better."It's pretty much not how many times you fall down. It's how many times you get back up," Tallan Latz said.Carl Latz doesn't want to just let Tallan play in clubs because that would be teaching him that "We don't agree with the law so we'll just ignore it."They have canceled dozens of club engagements, and T-Man is playing fairs and festivals for now instead.But fairs and festivals are usually only in the summer months. After that, Tallan will play a lot more across the state line in Illinois, which does not have the same child labor restrictions.

An advanced English class at New Rochelle High School had the assignment of comparing the book  Girl Interrupted, a memoir of a woman's experiences at a mental hospital in 1960s Massachusetts, with the recent film adaptation of the book starring Winona Ryder. Except the book they were reading was missing pages, as selected "inappropriate material" from the book had been personally shredded by the chairperson of the school's English department. 

New Rochelle's Talk of the Sound reports

Students at New Rochelle School High School are going to find it difficult to complete their next assignment: comparing the film adaptation of "Girl, Interrupted" to the best-selling book. In the book, Kaysen recounts her confinement at a Massachussets mental hospital in the 1960's.

Pages from the middle of the book have been torn out by the school district after having been deemed "inappropriate" by school officials due to sexual content and strong language. Removed is a scene where the rebellious Lisa (played by Angela Jolie in the movie) encourages Susanna (played by Winona Ryder) to circumvent hospital rules against sexual intercourse by engaging in oral sex instead.

"The material was of a sexual nature that we deemed inappropriate for teachers to present to their students," said English Department Chariperson Leslie Altschul, "since the book has other redeeming features, we took the liberty of bowdlerizing."

Sources at the school says that after receiving complaints from an as yet-to-be-identified person or group, the school district ordered students to return the book to the chairperson of the English department who then personally tore out pages 64 through 70 before returning the books to students. Ironically, news of the school censorship first broke during the same week as the school district's annual Literary Festival.

"Bowdlerizing is a particularly disturbing form of censorship since it not only suppresses specific content deemed 'objectionable,' but also does violence to the work by removing material that the author thought integral," said Joan Bertin, Executive Director of the National Coalition Against Censorship. "It is a kind of literary fraud perpetrated on an unsuspecting audience."

The ultimate decision on whether to ban books rests with Cindy Babcock-Deutsch, the President of the School Board. Babcock-Deutsch has a well-documented history of practicing censorship in her role as chairperson of board of education meetings. She has repeatedly asserted that "privacy laws" bar criticism of senior school administrators at school board meetings. More recently she has resorted to threats, interruptions and physical intimidation to silence critics at what are public meetings in public buildings.

Ms. Babcock-Deutsch did not respond to repeated requests to explain the actions of the District in censoring the book by tearing out pages. Don Conetta, principal of the school, and Richard Organisciak, schools superintendent, did not respond to requests for comment.

Sources at the District who declined to be identified confirmed that the district does have a book selection and book challenge process but those same sources claim the district failed to follow those policies in this case.

"We should either teach a book or not teach book," said one New Rochelle teacher who disagreed with the District's decision. "What sort of message do we send our students when we vandalize books?" While agreeing the content is not be suitable for all students, the teacher pointed out that the student involved were mostly 12th graders including some who were over 18 years of age. "Does someone in the school think these kids don't know about sex?"

The book was originally added to the curriculum at the request of a teacher no longer employed by the district. It was taught without incident at least one year prior to the complaint. The chairperson has admitted she did not read the book before approving it for use and only acted after receiving a complaint.

"The most shocking part of this story," said Chris Finan, President of the American Booksellers Foundation for Free Expression, "is that an English teacher in the 21st century would consciously emulate the example of Thomas Bowdler, a 19th century man who is infamous for his expurgations of Shakespeare!"

For her performance as Lisa in the film "Girl, Interrupted", Angela Jolie won an Oscar for best supporting actress. Jolie also won a Golden Globe Award and a Screen Actor's Guild Award for the role.

If you would like to share your thoughts on the decision of the school district to censor Girl, Interrupted you can reach school district officials here:

Cindy Babcock Deutsch
Board of Education
City School District of New Rochelle

Thanks to jgodsey

Now 16 teenager faces prospect of lifelong registration as a "sex offender". 

Citizens for change reports

At 10 years old, J. G., was diagnosed as educable mentally retarded, was found rubbing himself against a girl, 8, in his mother's care at his home in Mercer County. Both children were wearing only underwear.

J. G., as he is identified by New Jersey's courts, is 16, trying to finish high school and hoping to clear his record of something he did when he was 10. But that may be impossible, because J. G. committed a sex offense, and for sex offenders the rules are different.

In fact, the rules collectively known as Megan's Law, establishing a register of sex offenders and publicly identifying those considered most dangerous, are meant to keep the past in view.

And as New Jersey legislators respond to a voter referendum allowing the posting of offenders' names and photographs on the Internet, J. G. has presented the State Supreme Court with the question:

Can this law be applied to a 10-year-old?

The issue, being raised around the country at a time that all 50 states have passed some form of sex-offender-notification law, shows a tension between two deeply held goals. While sex-offender laws seek to give the widest possible publicity to sex crimes, the juvenile justice system seeks to give the widest possible protection to young offenders.

And while New Jersey's juvenile system ensures that no one enters adulthood with a criminal record, the state's sex-offender-registry law, depending on the offense, stigmatizes offenders for many years or for life.

''Too few people understand how broad these laws are in their reach,'' said Hunter Hurst Sr., the director of the National Center for Juvenile Justice.

''We've got all these ugly laws we passed when we were in a bad mood, and this is one of them.''

Of the 7,447 people registered under the sex-offender law in New Jersey, it is not clear how many were juvenile offenders, since the state does not systematically keep track of their ages.

Prosecutors and public defenders estimate that 10 percent to 25 percent of the offenders are under 18, with many fewer under 14 and only a handful as young as 10.

Offenders are ranked, regardless of age, according to the likelihood of committing another crime. Fewer than 200 of the 7,447 are deemed high-risk offenders, whose names are given to local residents, and the rest are identified to police agencies and sometimes to schools and child-care providers.

The case, called In the Matter of J. G., began with an incident that no one wants to talk about in detail and it continued in closed proceedings because he is a juvenile. The Supreme Court has even impounded the briefs filed in the case, which is to be decided soon.

But limited information from the boy's lawyers and other sources yields this account:

At 10, J. G., diagnosed as educable mentally retarded, was found rubbing himself against a girl, 8, in his mother's care at his home in Mercer County. Both children were wearing only underwear.

The boy, whose primary language was Spanish, had some trouble with investigators' questions; his lawyers say he equated the term sex with kissing, although prosecutors say that he understood what investigators were asking.

In juvenile court, J. G. pleaded guilty to second-degree sexual assault. A doctor's examination of the girl found no evidence of penetration, but it is not clear what other evidence was presented. 10 year old charged with sexual assault for rubbing up against an 8 year old while they both were in their underwear.


The boy's lawyers, Craig J. Hubert and James M. Graziano, contend that a 10-year-old should not be subject to the sex-offender law at all -- an argument that becomes especially important if the Legislature allows any Internet access to the names of moderate-risk offenders.

While the notification law in New Jersey clearly applies to juveniles, or those ''adjudicated delinquent'' for an offense that would be a crime if committed by an adult, the Supreme Court has never considered an offender as young as 10. J. G.'s lawyers would draw a line at 14, the minimum age for transfer to adult court.

The enforcement of New Jersey's Megan's Law, named for a 7-year-old who was murdered by a convicted child molester in Hamilton Township, not far from J. G.'s home, has been limited for years because of court challenges.

But as written, the New Jersey statute remains relatively strict for juveniles. Many states have age limits for their notification laws, typically 14 or 15, or apply them only to those convicted in adult court.

A few states identify juveniles on Web sites; the Kansas site, for example, pictures a few who registered as sex offenders at 12 or 13, and one boy who at 11 participated in the gang rape of two 6-year-old girls.

Mark Soler, president of the Youth Law Center in Washington, said the New Jersey case ''cries out for looking at individual circumstances.''

''This is not a 17-year-old who committed a forcible rape,'' he said. ''This is a young boy who apparently rubbed up against some girls in an inappropriate way, has done well since.''

But Cynthia Liccardo, the head of the Megan's Law unit in the Mercer County Prosecutor's Office, said that J. G. had molested more than two young girls and that ''this was not a scenario even close to two kids playing doctor.'' ( And this has been verified and proven in court??? NOT, this is just hearsay!)

Ms. Liccardo said that ''that stuff clearly gets filtered out'' as prosecutors rely increasingly on psychologists and social workers to evaluate young offenders before charges are brought.

Lee Solomon, the Camden County prosecutor, said prosecutors had little latitude in bringing charges. ''If the offense qualifies as a Megan's Law offense, we believe they should be treated as adults until the Supreme Court tells us otherwise,'' he said.

''I don't think the exercise of prosecutorial discretion includes looking the other way when a crime has been committed.''

One woman in Burlington County, who spoke only on the condition that no names be used, said her family was devastated when her stepson, 13, was charged with sexually molesting his sister, 8, and then compelled to register under sex-offender law.

''His sister even wrote the judge a letter saying, 'I don't want my brother to be a criminal,' '' the woman said, even though ''she wasn't entirely sure she could forgive him.''

Now, she said, the family fears that if offenders' names are accessible on a Web site, the boy's chance of a normal life will be threatened and people will know his sister was the victim. 

Concerns like this have given legislators pause. The State Assembly has approved a bill to post names and pictures of high- and moderate-risk offenders and set up a second site making the names of low-risk offenders available to some potential employers, like school districts.

Thanks to the Agitator

Michigan State: No Political E-Mails Allowed

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University disciplines student leader for sending out mass protest e-mail to faculty members. Its rationale: School's bulk email rules characterize any emailing to more than 30 people as "unauthorized spam". The student, Kara Spencer and a host of student groups on campus, along with the Foundation for Individual Rights in Education, or FIRE, are protesting the policy as an infringement by a state university of free political speech.

CNET reports

Most schools encourage students to become active in campus politics. Not Michigan State University, which has filed disciplinary charges against a student leader who sent e-mail criticizing an abbreviated fall semester.

Kara Spencer's encounter with MSU's disciplinary apparatus started in September, when the student government member began discussing the shortened fall 2009 schedule with a small group of faculty members and administrators. She followed up by contacting 391 faculty members by e-mail, saying that professors should be aware of the "burden for class schedules and syllabi" the change would involve.

The e-mail irked a single faculty member, Katherine Gross, who teaches plant biology. Gross complained to the university administrators, who summoned Spencer to a mandatory meeting and informed her that she would face disciplinary charges.

A formal letter listing Gross as a "possible witness" to the offense said that the e-mail violated university policies saying that students can use the network only for "authorized purposes."

"Students on campus have been supportive," Spencer told CNET News. So has the Foundation for Individual Rights in Education, or FIRE, a nonpartisan group in Philadelphia that urged MSU President Lou Anna Simon to halt the disciplinary process in advance of a hearing that was scheduled to take place on Tuesday.

It didn't work: The president rebuffed FIRE and the hearing took place as scheduled. A decision is expected soon.

"To date I have not received any notification from the judicial board regarding the case," Spencer said on Thursday. "The board may take up to seven days to render a ruling, so at this point I am just waiting for their notification."

Gross, the biology professor who complained, did not respond to multiple requests for comment.

MSU's bulk e-mail rules say that e-mailing more than a "small set of recipients"--with the maximum number set at 30 people--is verboten. In a statement on Friday, MSU said: "It is clear that this policy is content neutral and is a set of procedural requirements that apply to all bulk use of the e-mail system, as opposed to a policy that makes distinctions based on the content of particular e-mails. It is our belief that such a policy does not impose unlawful restrictions on free speech." MSU declined to comment on specifics, citing privacy laws.

If MSU were a private school, such strict limits would be a matter of its contract with students and faculty: objectionable and inconsistent with academic freedom, perhaps, but not necessarily illegal. But because MSU is a public school, it is legally obligated to provide students with due process rights and it must protect their free speech rights.

And that's what FIRE thinks has gone wrong with MSU's disciplinary prosecution of Spencer.

Adam Kissel, director of FIRE's individual rights defense program, believes this is the first time he's heard of antispam rules being applied this broadly on campus. "The rule should be: if it's not disruptive, then you can do it," he said.

"The question is: does bulk unsolicited e-mail count as inherently disruptive to the campus?" he said. "I would say no, it doesn't, especially when the message is something that's directly relevant to everything on campus."

FIRE's letter to MSU on November 26 calls on President Simon to halt the "erroneous prosecution of Kara Spencer, who has been under investigation for more than two months for her clearly protected expression. If e-mailing faculty members about common concerns is outside the parameters of acceptable speech at MSU, surely no member of the MSU community can feel safe contacting another about any relevant matter of concern. Is this truly the lesson that MSU wishes to teach to students who will soon be entering into civil society at large?"

Maurizio Biasini and his two sons Dario and Andriano were at a Northern California beach. When the father fell into the ocean and was swept out to sea, literally fighting for his life in the choppy waters, police who came to the scene delayed a rescue operation to wait for Coast Guard help. After the two sons began to argue with police about the decision not to go in the ocean and one son began to head for the water himself to attempt a rescue, one son was thrown to the ground and tasered twice. 

The Ukiah Daily journal reports

A San Francisco man was swept off the Mendocino Headlands Saturday afternoon, during a family outing with his wife and 18-year-old twin sons. A scuffle with police during the rescue efforts resulted in a California Highway Patrol officer using a taser on one of the sons and Sheriff's deputies putting both under arrest.

Presumed lost at sea is 54-year-old Maurizio Biasini, of San Francisco.

According to CHP Sgt. Jim Kerr, a 911 call went out after Maurizio Biasini was somehow swept off the Mendocino Headlands by a rogue wave at around 1:45 p.m. It is still unclear if he was up on top of the bluffs or had gone down onto the rocks.

Once rescuers from the Mendocino Fire Department, the Mendocino County Sheriff's Department, the Coast Guard and Cal Fire arrived, it was clear that the only possible search and rescue operation would have to be done from the air and sea, not from shore, explained Kerr.

In the meantime the twin sons, Dario and Andriano Biasini were frantic about their father, while some 50 or so onlookers began to gather at the scene. Kerr said the CHP went to the scene after a call for law enforcement assistance because, according to the request, the "lookee-loos are hampering the rescue effort."

At some point around 2:15 p.m., Dario and Andriano apparently began to argue with rescuers, because they believed there wasn't enough being done to find and rescue their father.

Law enforcement stepped in to try to calm the two men but, according to Kerr, the twins got into a pushing match with Sheriff's Deputy Jesse Van Wormer near the cliff's edge and CHP Officer Thad Williams stepped in to try to stop it. A video of the incident taken by a bystander shows Dario wrestling with a Sheriff's deputy near the cliff edge and Andriano pushing and waving other rescuers away and appearing to get involved in the struggle. Williams tries to get Dario to stop the fighting and appears to taser Dario in the arm which momentarily immobilizes him after which he was told to stay put on the ground, but Dario began to get up and Officer Williams used his taser on him again. Meanwhile Dep. Van Wormer and one of the emergency medical technicians at the scene were able to get Andriano under control and handcuffed.

Both Dario and Andriano were arrested but cited and released. No prosecution is expected. Mendocino County Sheriff Tom Allman said that he can understand that the twins were upset having had their father just swept away to sea.

"Our hearts are very much with the family, we offer our condolences, this is a very unfortunate situation," he said.

Thanks to jonathan turley

Homeland security not required to provide any information about what guidelines or limits on agents' interrogations of travelers about religion and politics exist, or whether there even are any.

The San Francisco Chronicle reports

The government doesn't have to disclose its policies for questioning travelers to the United States about their religious and political views, a federal judge has ruled in dismissing a Freedom of Information Act lawsuit by two San Francisco legal groups.

The Asian Law Caucus and the Electronic Frontier Foundation filed the case in February, saying more than 20 people, mostly South Asian and Muslim, had complained of being interrogated repeatedly at U.S. airports on such subjects as their views on American foreign policy, whether they hated the government and which mosques they had visited abroad.

The suit also sought information on customs agents' searches of travelers entering the country. In response, the Department of Homeland Security provided records this summer showing that the Bush administration has authorized customs agents to read and copy documents without requiring evidence that a traveler has done anything wrong, the legal groups said.

The plaintiff organizations said the government had not responded to their request for guidelines or limits on agents' interrogations of travelers about religion and politics. The nonresponse, they said, was evidence that no such limits exist.

They renewed their request that Homeland Security reveal which topics customs agents are allowed to bring up with travelers, saying the information might show that the government was systematically interfering with free speech.

But U.S. District Judge Claudia Wilken, in a Nov. 24 ruling in San Francisco, said the government is not required to disclose records that could help people coming to the country for illegal purposes.

Wilken said the department had given her documents for private review that described the subjects about which customs agents could question travelers. She said she had concluded that releasing the information could help people break the law.

On another issue in the suit, Wilken said Homeland Security isn't required to identify the databases that customs agents use in assembling watch lists of hundreds of thousands of names of people who are supposed to be stopped at borders and airports.

She rejected the legal groups' argument that the information should be made public because the government's use of watch lists is common knowledge. The public knows that the lists exists, Wilken said, but lacks information about the investigative techniques' that the government uses and is entitled to keep secret.

Shirin Sinnar, an Asian Law Caucus attorney, said the legal organizations hadn't decided whether to pursue the case further.

"Some serious First Amendment issues have been raised by reports we're getting from travelers," she said. "I believe questioning people on religious practices and political concerns has a chilling effect on people's willingness to engage in lawful activities."

Thanks to

The charge of public intoxication was later dismissed in court. Now George William Roberts is accusing Roanoke Va. police of trespass, assault and battery.

The Roanoke Times reports

A Roanoke man is asking for $10 million in a federal lawsuit that says city police officers improperly arrested him.

The lawsuit that George William Roberts filed Thursday stems from a May 11 incident in which Roberts was charged with public intoxication. The charge was later dismissed in General District Court.

Melvin Williams, who is representing Roberts, said court testimony indicated that police were answering a call about someone disturbing the peace. After speaking to neighbors, they went to Roberts' door in the 800 block of Peck Street.

According to the lawsuit, Roberts' girlfriend answered and when asked if anyone else was home, she told them Roberts was getting dressed in a back room. As she spoke, Roberts walked into the living room where he could be seen from the door.

Officers pushed into the house, seized Roberts, dragged him outside and charged him with being drunk in public, the lawsuit says.

The lawsuit says police trespassed and committed assault and battery, and that they violated both the U.S. Constitution's prohibition of unreasonable search and seizure and Virginia law by entering without a warrant.

Roanoke police spokesman Capt. Chris Perkins said Wednesday that he had not yet seen the lawsuit.

Thanks to the Agitator

US Military Build-Up Continues as Mission Expands

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Sound familiar? Only this time the "escalation" we're talking about is in the US.

The Washington Post reports

The U.S. military expects to have 20,000 uniformed troops inside the United States by 2011 trained to help state and local officials respond to a nuclear terrorist attack or other domestic catastrophe, according to Pentagon officials.

The long-planned shift in the Defense Department's role in homeland security was recently backed with funding and troop commitments after years of prodding by Congress and outside experts, defense analysts said.

There are critics of the change, in the military and among civil liberties groups and libertarians who express concern that the new homeland emphasis threatens to strain the military and possibly undermine the Posse Comitatus Act, a 130-year-old federal law restricting the military's role in domestic law enforcement.

But the Bush administration and some in Congress have pushed for a heightened homeland military role since the middle of this decade, saying the greatest domestic threat is terrorists exploiting the proliferation of weapons of mass destruction.

Before the terrorist attacks of Sept. 11, 2001, dedicating 20,000 troops to domestic response -- a nearly sevenfold increase in five years -- "would have been extraordinary to the point of unbelievable," Paul McHale, assistant defense secretary for homeland defense, said in remarks last month at the Center for Strategic and International Studies. But the realization that civilian authorities may be overwhelmed in a catastrophe prompted "a fundamental change in military culture," he said.

The Pentagon's plan calls for three rapid-reaction forces to be ready for emergency response by September 2011. The first 4,700-person unit, built around an active-duty combat brigade based at Fort Stewart, Ga., was available as of Oct. 1, said Gen. Victor E. Renuart Jr., commander of the U.S. Northern Command.

If funding continues, two additional teams will join nearly 80 smaller National Guard and reserve units made up of about 6,000 troops in supporting local and state officials nationwide. All would be trained to respond to a domestic chemical, biological, radiological, nuclear, or high-yield explosive attack, or CBRNE event, as the military calls it.

Military preparations for a domestic weapon-of-mass-destruction attack have been underway since at least 1996, when the Marine Corps activated a 350-member chemical and biological incident response force and later based it in Indian Head, Md., a Washington suburb. Such efforts accelerated after the Sept. 11 attacks, and at the time Iraq was invaded in 2003, a Pentagon joint task force drew on 3,000 civil support personnel across the United States.

In 2005, a new Pentagon homeland defense strategy emphasized "preparing for multiple, simultaneous mass casualty incidents." National security threats were not limited to adversaries who seek to grind down U.S. combat forces abroad, McHale said, but also include those who "want to inflict such brutality on our society that we give up the fight," such as by detonating a nuclear bomb in a U.S. city.

In late 2007, Deputy Defense Secretary Gordon England signed a directive approving more than $556 million over five years to set up the three response teams, known as CBRNE Consequence Management Response Forces. Planners assume an incident could lead to thousands of casualties, more than 1 million evacuees and contamination of as many as 3,000 square miles, about the scope of damage Hurricane Katrina caused in 2005.

Last month, McHale said, authorities agreed to begin a $1.8 million pilot project funded by the Federal Emergency Management Agency through which civilian authorities in five states could tap military planners to develop disaster response plans. Hawaii, Massachusetts, South Carolina, Washington and West Virginia will each focus on a particular threat -- pandemic flu, a terrorist attack, hurricane, earthquake and catastrophic chemical release, respectively -- speeding up federal and state emergency planning begun in 2003.

Last Monday, Defense Secretary Robert M. Gates ordered defense officials to review whether the military, Guard and reserves can respond adequately to domestic disasters.

Gates gave commanders 25 days to propose changes and cost estimates. He cited the work of a congressionally chartered commission, which concluded in January that the Guard and reserve forces are not ready and that they lack equipment and training.

Bert B. Tussing, director of homeland defense and security issues at the U.S. Army War College's Center for Strategic Leadership, said the new Pentagon approach "breaks the mold" by assigning an active-duty combat brigade to the Northern Command for the first time. Until now, the military required the command to rely on troops requested from other sources.

"This is a genuine recognition that this [job] isn't something that you want to have a pickup team responsible for," said Tussing, who has assessed the military's homeland security strategies.

The American Civil Liberties Union and the libertarian Cato Institute are troubled by what they consider an expansion of executive authority.

Domestic emergency deployment may be "just the first example of a series of expansions in presidential and military authority," or even an increase in domestic surveillance, said Anna Christensen of the ACLU's National Security Project. And Cato Vice President Gene Healy warned of "a creeping militarization" of homeland security.

"There's a notion that whenever there's an important problem, that the thing to do is to call in the boys in green," Healy said, "and that's at odds with our long-standing tradition of being wary of the use of standing armies to keep the peace."

McHale stressed that the response units will be subject to the act, that only 8 percent of their personnel will be responsible for security and that their duties will be to protect the force, not other law enforcement. For decades, the military has assigned larger units to respond to civil disturbances, such as during the Los Angeles riot in 1992.

U.S. forces are already under heavy strain, however. The first reaction force is built around the Army's 3rd Infantry Division's 1st Brigade Combat Team, which returned in April after 15 months in Iraq. The team includes operations, aviation and medical task forces that are to be ready to deploy at home or overseas within 48 hours, with units specializing in chemical decontamination, bomb disposal, emergency care and logistics.

The one-year domestic mission, however, does not replace the brigade's next scheduled combat deployment in 2010. The brigade may get additional time in the United States to rest and regroup, compared with other combat units, but it may also face more training and operational requirements depending on its homeland security assignments.

Renuart said the Pentagon is accounting for the strain of fighting two wars, and the need for troops to spend time with their families. "We want to make sure the parameters are right for Iraq and Afghanistan," he said. The 1st Brigade's soldiers "will have some very aggressive training, but will also be home for much of that."

Although some Pentagon leaders initially expected to build the next two response units around combat teams, they are likely to be drawn mainly from reserves and the National Guard, such as the 218th Maneuver Enhancement Brigade from South Carolina, which returned in May after more than a year in Afghanistan.

Now that Pentagon strategy gives new priority to homeland security and calls for heavier reliance on the Guard and reserves, McHale said, Washington has to figure out how to pay for it.

"It's one thing to decide upon a course of action, and it's something else to make it happen," he said. "It's time to put our money where our mouth is."

Tasers: Defining the "Dangerous Suspect" Down

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Remember when Tasers were introduced as a less-lethal alternative to guns for those special situations where police were faced with clearly dangerously aggressive, imminently violent criminals. A new study shows how frequently the line between dangerously aggressive and simply "non-cooperative" has blurred. 

The Portland Mercury reports

If you think you've been hearing a lot about Tasers over the past year--you're right. The Mercury has run more stories about Tasers than any other type of force used by the Portland Police Bureau. However, is Taser usage actually on the rise?

Last Tuesday, November 18, the City of Portland's Independent Police Review Director Mary-Beth Baptista reconvened its "Use-of-Force Task Force" to begin looking at the police bureau's use-of-force data from January 2007 to the present. The Mercury asked if the press would be allowed into the meeting, but was told by Baptista the get-together was private.

Baptista's group is likely to present its force findings to the public in spring 2009. But prompted by the rash of Taser stories printed this year--suggesting Portland Police may have been turning more to Tasers in certain situations than in years prior--the Mercury decided to get an early start and take a hard look into this aspect of the bureau's use of force.

First, the Good News

Perhaps surprisingly, it appears Portland Police are actually deploying Tasers less than they used to. When the Mercury filed a public records request to find out the number of cases where Tasers were deployed by Portland Police, the early numbers--which are yet to be formally audited by Baptista's task force--show a steady drop: From 541 cases in 2006, to 476 in 2007, and in 2008, we're on course for a total of 392 cases, if you extrapolate November and December averages from the first 10 months' total of 327 cases. That's a likely 27.5 percent drop in Taser use within three years.

Great news? Don't celebrate yet: Remember, this is only the number of cases where Tasers were used--it's possible Tasers may have been deployed more than once during the course of each case, so these numbers are only one indication of the way Tasers were utilized. But the bureau couldn't supply those broken-down deployment numbers for 2008 without charging big bucks to have an analyst extract them from all the use-of-force reports for each case--a task that will ultimately be fulfilled by the Use-of-Force Task Force in the spring. In the meantime, we took what we could get.

A couple of explanations could account for the lower Taser numbers: Police Chief Rosie Sizer has made some significant changes to the bureau's use-of-force policies over the last two years, issuing new use-of-force regulations in March 2008, directing officers, "when practical," to use "less force than the maximum allowed by law" to resolve confrontations with suspects. She also expanded the bureau's Crisis Intervention Training (CIT) program in early 2007, which teaches de-escalation techniques to officers when dealing with those in mental health crisis.

At the same time, the number of officers injured in the line of duty has decreased, too--from 216 for the 2005-2006 fiscal year, to 196 for the 2006-2007 fiscal year, to 192 for the 2007-2008 fiscal year, according to the city's Fire and Police Disability and Retirement Bureau. That's a drop of 11 percent over a broadly similar three-year period, suggesting officers aren't getting injured more in exchange for using their Tasers less, and police oversight activists are pleased.

"Any reduction in use of weapons is a good sign that community policing is occurring," says Jason Renaud of the Mental Health Association of Portland. "But we can't say that this reduction in Taser use comes from crisis intervention training or anything else, because the police bureau hasn't released any information on the outcomes associated with that training."

Now, the Bad News

Renaud touches on an important point, because while the Portland Police Bureau's Taser stats appear to be dropping--perhaps as a result of crisis intervention training and changes to its use-of-force policies--it is difficult, without more information from the bureau, to pinpoint exactly why. Meanwhile, there appears to be a separate trend emerging both here and across the country: Tasers are being used more often by officers to gain compliance from uncooperative subjects, and less often as a "less-lethal" alternative to deadly force in situations where a gun might otherwise have been used.

Perhaps the best example of this shift in the Taser's place in America is the infamous "Don't Tase Me, Bro!" incident, captured on video at the University of Florida on September 17, 2007. Toward the end of a contentious question-and-answer session with Senator John Kerry, police removed student Andrew Meyer from the audience microphone, restraining him and Tasering him in apparent retaliation for asking unusual questions and refusing to sit down. Senator Kerry can be heard in the background urging everybody to "calm down," shortly before Meyer screams in agony on application of the weapon. The incident is quite funny to a casual observer--until you stop to think about what it might mean.

While Portland Police may be using their Tasers less often, there is alarming anecdotal evidence to suggest that--like the cops in Florida--they may well be using the weapons in a different manner than in previous years.

History Unrepeating

Tasers were first given to Portland Police officers in June 2002, following the officer-involved shooting in 2001 of José Santos Victor Mejía Poot (a man suffering from epilepsy), and subsequent recommendations made by the Police Assessment Resource Center to buy "less-lethal" weapons.

Former Police Chief Mark Kroeker bought just 12 Tasers back then, but as early as August 2002, Portland Copwatch activist Dan Handelman was warning readers in the organization's People's Police Report that "the new devices, once readily available, will be misused as compliance, crowd control, or torture devices."

Were the Tasers initially used simply as a new way to hurt people? In September 2004, 71-year-old Eunice Crowder received $145,000 in a legal settlement from the city after her glass eye fell out as she was struck on the head, and Tasered twice in the back and once in the breast by overzealous officers. (The incident escalated after Crowder challenged a city employee who was forcibly cleaning her yard based on a search warrant.) In October 2006, Portland cops used a Taser on an 11-year-old student "wielding a compass" at Buckman Elementary School, and in March 2006, Tim Grant, 46, actually died after being Tasered twice on NE 24th and Sandy (the cause of death was listed as a cocaine overdose by the state medical examiner, Karen Gunson). Later that year, a 15-year-old boy with severe autism, Sir Millage, was Tasered at least 13 times by officers at the Pearl District end of the Broadway Bridge after failing to comply with their commands. Perhaps the most controversial deployment of the Taser happened in September 2006 when officers Tasered 42-year-old James Chasse Jr. on the sidewalk opposite the Bluehour restaurant at NW 13th and Everett. Chasse, in the midst of an apparent mental health crisis, later died in police custody.

While cops are now less likely to injure people in such a manner, judging from the numbers, it appears the Taser is being used on a different kind of victim: Young men, mostly, who don't like doing what they're told.

No Time to Comply

In October 2007, Frank Waterhouse filed a $30,000 lawsuit against the cops for shooting him with a beanbag gun and Tasering him without a verbal warning--apparently in retaliation for videotaping their activities ["Crowded Courthouse," News, Oct 18, 2007]. At the deposition, "Some of the officers said they needed to escalate the situation because they were afraid that [Waterhouse] would run off to his right," says Benjamin Haile, Waterhouse's attorney. "But other deposition testimony revealed that there was an officer standing to his right with a gun drawn, which suggests there was no danger of him running away.

"In a way it's a classic example of how the availability of these so-called 'less-lethal' weapons cause things to escalate quickly," Haile continues. "There was clearly no need for lethal force in this case. Instead of taking the time to talk to or physically restrain Mr. Waterhouse, the officers quickly escalated to less-lethal weapons as a compliance tool. It's a massive escalation of force that doesn't need to happen."

In June 2008, Phil Sano was Tasered on SE 7th and Alder, allegedly without warning after he failed to stop for an officer who noticed he didn't have a bike light ["Night Light Fight," News, June 19]. Also in June this year, Dan Halsted was walking home from a bar along NE 26th when he was allegedly jumped and Tasered by police officers, again, without a verbal warning ["Jumped," News, July 3]. On June 7, Clifton Brooks was Tasered by police officers on SE Belmont after calling them to assist him at the scene of his earlier assault by two strangers. "I approached them, but within seconds they were arresting me, and I didn't have a chance to tell them anything," Brooks later told the Mercury ["The Wrong Guy," News, Oct 9].

There is also disturbing evidence to suggest that while Portland's cops now recognize the dangers of repeated Taser application, they may be finding new ways to cover for having accidentally Tasered someone more than once--like allegedly perjuring themselves on the witness stand ["Taser Eraser," News, Sept 4] or omitting a second Taser cycle in their arrest reports ["Conflicting Reports," News, Oct 30].

"Tasers were initially introduced to provide police with an alternative to using lethal force in extremely high-risk incidents," says a 114-page report on global Taser use issued this month by the ombudsman's office for the state of New South Wales, Australia. "However, in many jurisdictions, Tasers are increasingly being used by police in situations where high levels of risk are not present, and police could likely manage the situation effectively without resorting to force."

"Mission Creep"

The New South Wales report calls this phenomenon "mission creep."

"For example," the report continues, "On some occasions Tasers are being used in the first instance on people who are being uncooperative or non-compliant, but who are not acting in an aggressive or threatening manner."

For some, like Dalia Hashad, director of the USA program for Amnesty International, this is the change that's perhaps most worrying about Taser use over recent years.

"I think the entire discussion on how policing takes place is changing, and Taser is a huge part of that," she says. "If you look at the way police officers are using the weapon across the country, it's not in situations that require use of lethal or deadly force. I think instead we're seeing police use it as a tool of compliance--as a weapon of first resort, not of last resort."

Along with mission creep, it seems the public is becoming increasingly tolerant of Tasers as a part of everyday life. At the 2008 Consumer Electronics Show in Las Vegas, for example, Taser introduced a personal "Taser C2," which can hold one gigabyte of music in its holster. The weapons are available in "red hot," "fashion pink," and leopard print, according to the Associated Press. In Arizona, Taser parties are being held at which women take turns firing the weapon over "light conversation and snacks."

Respect My Authority

"If you have a uniformed police officer pointing a weapon at you, that is not the time to explain something," says head of the Portland Police Association, Scott Westerman. "The officer has clearly drawn their own conclusions based on what they've perceived, and they're very likely to be different from what the suspect has perceived in that situation."

In other words, when an officer is pointing a weapon at you, that's not the time to explain yourself, Westerman thinks. That's the time to comply with an officer's commands.

"As more and more people mistakenly believe it's socially acceptable to publicly challenge the police, it creates an environment where people think that it is okay to ignore a uniformed police officer giving them commands," Westerman continues. "The environment in Portland allows this more frequently than in other cities."

"Citizens have the right not to give their names if they're not suspected of any criminal activity," counters Handelman, from Portland Copwatch. "And if they are suspected of criminal activity, they don't have to say anything else. It's a question of how we balance our rights as citizens to be free from unwanted police contact with the officers' efforts to do their jobs. If they're not giving a legal command and then they escalate by introducing a level of force like the Taser to try to control a suspect, that's highly inappropriate and very dangerous."

Chief Sizer declined comment for this story.

"Without good governance, policies, and training, you are not going to have a good Taser program," says Steve Tuttle, a spokesman for Taser International. "We're no stranger to controversy, but you can't forget about the planes landing safely. The media tends to focus on the planes that crash.

"The Taser is such a misunderstood device right now because of the headlines out there that are really hard to combat," Tuttle continues.

Tasers were initially introduced in Portland following a high-profile officer-involved shooting--suggesting the intention they would be used instead of drawing a gun. However, another major city's experience does beg the question: Are Tasers necessary at all?

"We don't have Tasers," says Sergeant Lyn Tomioka, public information officer for the San Francisco Police Department, when I call to compare Portland's statistics with theirs. "The idea has been presented to us, but I guess the statistical research has not been worth spending that much money on them."

Asked how many officer-involved shootings there have been in San Francisco over the past year, Tomioka says "two."

The exact same number as Portland.

Thanks to Alternet

Soap is Dope

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Germs' punk rocker Don Bolles was pulled over by Newport Beach, Calif. police on a broken tail light violation last year and arrested for possession of what police claimed based on their filed tests that Bolles' liquid bottle of Dr. Bronner's organic soap was the "date rape" drug GHB. Turns out that not only were their tests inaccurate, but that all natural soaps test false positive for GHB, a fact documented by Dr. Bronner himself.

Dr. Bronner's Magic all in One reports

The Bronner family, makers of the popular organic Dr. Bronner's Magic Soaps, have released a new video of NarcoPouch® 928 field drug tests of its soaps and other brands. The results prove that the test kit which was used to jail Don Bolles, drummer for the legendary punk band The Germs, on April 4, 2007 will always give a false-positive for the drug GHB (Gamma Hydroxy Butyrate) if used on any true natural soap. However, in an interesting twist, the kit will test negative for fake, mislabeled "liquid soap" products that are actually detergent-based, not soap-based. The new video features David Bronner, President of Dr. Bronner's Magic Soaps, using the NarcoPouch® 928 on a wide variety of common natural soaps as well as detergent-based fake "soap" products.

"Our testing shows that real soaps which are made using the ecological time-honored process of saponification of vegetable oil will always test positive for GHB, while complicated synthetic detergent-based so-called 'liquid soaps' will test negative," says David Bronner. "The NarcoPouch® 928 is a great test for determining if a product labeled 'Soap' actually contains real soap or not. It's ironic that the flawed GHB field test used by cops shows in a graphic and immediate way true versus fake soaps. Fortunately for Don Bolles, the much more accurate confirmation drug-testing by the Orange County crime lab proved our soap did not contain the drug GHB."

Detergents in fake soap products are usually made in part, or even entirely, from petroleum along with vegetable feedstocks. For instance, Sodium Myreth Sulfate, the main ingredient in JASON's so-called "Pure, Natural & Organic Soap," is made by attaching ethylene oxide groups from petroleum to a vegetable fatty acid, which also produces trace 1,4 dioxane as a side reaction. Olefin Sulfonate, the main ingredient in both Nature's Gate ORGANICS "Soap" and Kiss My Face ObsessivelyOrganic "Soap," is made entirely from petroleum. Cocamidopropyl Sultaine, the main ingredient in EO's so-called "Soap," is for the most part petroleum-based.

Bronner laments that "Companies mislead consumers by conflating their detergent-based products with ecological biodegradable soaps, even calling these synthetic detergent products 'organic.' Dr. Bronner's Magic Soaps are real soaps made from real organic oils, while these other so-called 'soap' products are in fact detergents made from petroleum and conventional vegetable material. They are not soap, they are not organic, and they are not natural."

The crime lab confirmation test that exonerated Don Bolles and Dr. Bronner's soaps of GHB, uses the GC-MS method which is much more accurate than the field drug test kits used by the Newport Beach Police. "Police departments nationwide should immediately stop using the NarcoPouch® 928 field test for GHB, as it is not accurate when used on soaps, and who knows what other common household products," urges Bronner. ODV, Inc., maker of the NarcoPouch® 928, is a subsidiary of Armor Holdings, Inc. The company has done nothing to alert police departments about the false positives when used on natural soap.

According to retired FBI agent and forensics expert Dr. Frederick Whitehurst, "There is no effort by the National Academies of Science to validate forensic science protocols, and there are no national standards for presumptive field drug tests. I believe our freedoms are being infringed upon because of fake science."

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