January 2009 Archives

Call it the Great Recession meets the War on Drugs. West Virginia ponders law mandating compulsory random drug tests for anyone applying for food stamps or unemployment benefits.

The Register-Herald (WV) reports:

An Eastern Panhandle lawmaker is attempting to craft a bill for the 2009 legislative session that would require anyone on welfare, food stamps or unemployment benefits to undergo random drug testing.

Under the tentative plan in mind by Delegate Craig Blair, R-Berkeley, it would be two strikes and you're out.

"It's pretty simple," Blair said Monday, when asked why he is pursuing such legislation in West Virginia.

"If you go out here and want a good job, most of the time, we have to sign off and say, 'Hey, it's OK, I submit to random drug testing on the job. That's part of the deal you make whenever you get a job. It's sort of crazy, in my opinion, and I think in the general public's opinion, when they're on the dole with the state, we're subsidizing their income one way or another, that they don't have to submit to the same thing."

Blair wants to compel anyone collecting food stamps, welfare checks or jobless benefits to submit to random testing. If the first test proves positive, under his proposal, a second one would be mandatory in two months, allowing the recipient that much time to clean up his act, or face a cutoff of government relief.

"It's just a common sense approach to this," he said.

"There have been issues in the past. For instance, in the food stamp program, people would take a $10 stamp, buy a pack of gum, get the rest in cash and buy beer with it."

That no longer is possible, he acknowledged, but there exists the potential to spend taxpayer dollars to satisfy a drug habit.

"It's just a natural deterrent, in my opinion, that if you want that assistance program, you've got to show that you're clean," the legislator said.

"You get two marks, and you get off. You can go into a program that can help you get off the drug and then you test again. So, you would get a two-month grace period from the time that you fail to the time you get cut off financially. But you've got to be able to pass in those two months."

Blair said he must overcome one "obstacle," a ruling by the 4th U.S. Circuit Court of Appeals, that found this approach a constitutional violation.

"I'm still in the middle of how to get this drafted so I can circumvent this," he said. "Everybody I've talked to loves this idea."

Not everyone who sent him an e-mail is on board, however.

One person who contacted him said only 2 percent of people on public assistance have a drug problem, but Blair feels the number is far too low, given the substance abuse that is prevalent in the general society.

"I don't believe the 2 percent number for a minute," he said.

"You and I know there are more people hooked on drugs in the general population. I'm trying to find a way to get around this court ruling. If I feel I can't get around it, then it's just wasting the Legislature's time."

New obscenity law passed in Coweta County, Georgia bans sale of anything primarily designed to stimulate human genitals. 

AVN Novelty reports

You can buy a gun, liquor and even some drug paraphernalia items in Coweta County, Georgia, but as of Monday, you can't buy a sex toy.

In a special meeting, the Coweta County Board of Commissioners unanimously approved a new obscenity ordinance prohibiting anyone from knowingly selling "any device designed or markets as useful primarily for the stimulation of human genital organs," The Newnan Times-Herald reported.

Commissioners voted on the issue after hearing a presentation from Tennessee attorney Scott Bergthold, who is consider an expert in writing legislation to combat adult-themed business.

The newspaper reported that the new ordinance could affect not only the sale of sex toys, but also of ribbed condoms and lubricants with warming or cooling effects. At-home parties for adult novelties could also be affected.

Violators of the ordinance face up to six months in jail and/or a fine of up to $1,000.

Thanks to Eraser Girl

Or how we learned to stop encouraging scientific innovators and start prosecuting them. 

The DCExaminer.com reports

Critics who contend federal prosecutors too often go far beyond common sense and the law in enforcing bureaucratic gobbledygook, especially on environmental matters, could list as Example One the strange case of Krister Evertson, aka federal prisoner number 15003-006.

Evertson is spending 21 months in the Sheridan, Oregon, federal prison for an environmental "crime" in which no environmental harm occurred and during the commissioning of which he was trying to find a way to help the environment.

Evertson had no history of legal problems, and a long history of charitable service - especially in teaching sign language to deaf young people, a talent he learned while coping with a severe stutter that partially lingers to this day. He is described in federal court documents as a "good-natured, kind, gentle person."

Now 54, Evertson has been a science wiz since grade school, and won the Kailua Intermediate School science fair in Hawaii for research into making bio-chemical fuel cells using coconut juice.

Ever since then, he has dreamed of developing an inexpensive, mass-use fuel cell that could be used to generate power without polluting the air. His enthusiasm for the project is such that Evertson will gladly talk at length, providing scientific explanations, with citations, of why his cell will work to produce "clean energy" if only a few kinks can be worked out.

And it seems nobody doubts his basic science, only the practicality of making it available for widespread use by the general public.

Yet Evertson was convicted after being charged by federal prosecutors for allegedly violating obscure regulations of the Environmental Protection Agency by "abandoning" semi-hazardous waste that actually had been meticulously saved, sealed and stored with a friend.

"This is how we reward innovators in America?" asked senior legal policy analyst Andrew Grossman of the Heritage Foundation, his inflection turning the statement into a question. "They wind up in jail?.... This isn't the way regulation is supposed to work."

Among Grossman's assignments at the conservative Washington think tank is working with former Attorney General Edwin A Meese on the foundation's Over-criminalization Project.

The project was initiated by Meese, who heads Heritage's Center for Legal and Judicial Studies, to oppose the growing trend in government and the legal community in which trivial conduct is punished as a crime.

Evertson's story has become a favorite illustration in Meese's efforts. It is a tale that must be told in two parts, both of which ended in court rooms, which you will find here and here. And go here for additional background on groups from across the political spectrum in the legal community who are uniting to do something about over-criminalization.

Thanks to Andrew Grossman

At least as the Patriot Act is currently being applied.

LA Times reports

Reporting from Los Angeles and Oklahoma City -- Tamera Jo Freeman was on a Frontier Airlines flight to Denver in 2007 when her two children began to quarrel over the window shade and then spilled a Bloody Mary into her lap.

She spanked each of them on the thigh with three swats. It was a small incident, but one that in the heightened anxiety after the Sept. 11 terrorist attacks would eventually have enormous ramifications for Freeman and her children.

A flight attendant confronted Freeman, who responded by hurling a few profanities and throwing what remained of a can of tomato juice on the floor.

The incident aboard the Frontier flight ultimately led to Freeman's arrest and conviction for a federal felony defined as an act of terrorism under the Patriot Act, the controversial federal law enacted after the 2001 attacks in New York and Washington.

"I had no idea I was breaking the law," said Freeman, 40, who spent three months in jail before pleading guilty.

Freeman is one of at least 200 people on flights who have been convicted under the amended law. In most of the cases, there was no evidence that the passengers had attempted to hijack the airplane or physically attack any of the flight crew. Many have simply involved raised voices, foul language and drunken behavior.

Some security experts say the use of the law by airlines and their employees has run amok, criminalizing incidents that did not start out as a threat to public safety, much less an act of terrorism.

In one case, a couple was arrested after an argument with a flight attendant, who claimed the couple was engaged in "overt sexual activity" -- an FBI affidavit said the two were "embracing, kissing and acting in a manner that made other passengers uncomfortable."

"We have gone completely berserk on this issue," said Charles Slepian, a New York security consultant. "These are not threats to national security or threats to aircraft, but we use that as an excuse."

Justice Department spokesman Dean Boyd defended the prosecutions, saying that they have helped improve airline security. He added that the department has only pursued prosecution "when the facts and circumstances of a particular case warrant such action."

Indeed, the law has given airlines new flexibility to clamp down on unruly behavior. But the intent of the Patriot Act provisions was to put terrorists in violation of the law before they could execute an actual takeover, said Nathan Sales, a law professor at George Mason University who helped write the Patriot Act when he served in the Justice Department.

But Sales acknowledged that in the fervor to protect the skies, the practical application of the law has strayed.

"A woman spanking her child is not as great a threat to aviation as members of Al Qaeda with box cutters. That much is clear," he said.

For decades, airline personnel and law enforcement have had wide latitude in prosecuting unruly passengers, not only for assaults or threats but also for any behavior, including arguing, that disrupts a flight or "lessens the ability" of crew members to perform their jobs.

In practice, however, airlines have largely maintained order under Federal Aviation Administration rules, in which hundreds of unruly passengers are simply slapped with an infraction and fine each year.

According to FAA guidelines issued in 2007, "interference or intimidation of a crew member by itself is not chargeable under the [criminal] statute unless it rises to the level of physical assault, threatened physical assault or an act posing an imminent threat to the safety of the aircraft or other individuals on the aircraft."

Sept. 11, however, changed everything. Within two months of the attacks, Congress passed the Patriot Act, a sweeping attempt to improve the nation's defenses against international terrorism. It included broad new powers for law enforcement in such areas as electronic surveillance, money laundering and search warrants.

Included were two key provisions on airline security. The first defined disruptive behavior as a terrorist act, reflecting the seismic shift in airline security.

The second broadened the existing criminal law so that any attempt or conspiracy to interfere with a flight crew became a felony -- a change that allowed flight personnel to act against suspicious passengers even if they hadn't begun an actual assault.

The law gave flight personnel enormous latitude in determining what precisely posed a potential threat or disruption, and judging by some cases, there is no clear standard.

Last summer, a Boston man who took off his clothes and attempted to open an emergency exit during a flight to Los Angeles was not charged with a crime, even though the plane was forced to make an unscheduled landing in Oklahoma City.

Such was not the case with Carl Persing and Dawn Sewell, a Lakewood couple who never left their seats during the 2006 incident aboard a Southwest flight to Raleigh, N.C., that led to their arrests and four days in jail.

FBI and local investigators in Raleigh alleged that the couple engaged in a variety of sexual activities during the flight. At one point, according to an FBI affidavit, Persing was "observed with his face pressed against Sewell's vaginal area. During these actions, Sewell was observed smiling."

A flight attendant twice asked them to stop, according to the affidavit, and Persing responded, "Get out of my face," and later, "You and I are going to have a serious confrontation when we get off this plane."

But he denied making a threat. He said he did not feel well because of a chemotherapy drug and had put his head in Sewell's lap. "We were kind of confused why he was waking us up, why he wouldn't let me sleep," he said in a recent interview.

Charges were dropped against Sewell, but Persing, who had never been arrested before, was sentenced to 12 months' probation.

He almost lost his job as a Port of Los Angeles mechanic, which requires a security clearance from the Department of Homeland Security. The department initially yanked the clearance but reinstated it after a review of the facts.

The Justice Department does not keep data on how many such prosecutions or convictions have occurred, Boyd said. But according to the Transactional Records Access Clearinghouse, a Syracuse University program, the federal government has obtained 208 felony convictions for disrupting flights since 2003, when data first became available.

The single case of actual terrorism cited by Boyd involved Briton Richard Reid, who is serving three life sentences. Reid was subdued by passengers and flight attendants on a 2001 flight from Paris to Miami after he was seen trying to ignite explosives in his shoe.

Tension aboard planes has increased over the years as the number of flight attendants onboard has declined and flights have grown more crowded.

Airlines, in most cases, have provided no additional training for flight attendants to deal with unruly passengers or potentially threatening situations, said Corey Caldwell, spokeswoman for the Assn. of Flight Attendants. The amount of training attendants receive -- averaging six weeks -- has not changed since Sept. 11.

Tolerance for irrational behavior linked to mental illness has also diminished, said Ronald Honberg, legal director for the National Alliance on Mental Illness.

In a number of cases, mentally ill passengers act bizarre, falsely claiming to have heart attacks, seeing terrorists or needing to escape the plane. In other cases, including one earlier this month in Los Angeles, they use the word "bomb" or claim to have a bomb. They are typically restrained, but whether they are prosecuted depends on the widely varying judgment of prosecutors around the country.

"If you get out of your seat and walk to the front of a plane and talk about bombs, you get what you deserve," said Sales, the law professor.

On the other hand, Sales adds, "There are other sanctions than throwing the book at a person who has mental health issues."

The costs of a conviction can be enormous. In Tamera Freeman's case, it cost her custody of her children.

The confrontation on the Frontier Airlines flight to Denver was particularly harsh, recalled Amy Fleming, the flight attendant who told Freeman to stop spanking her children. In a recent interview, Fleming called Freeman the most unruly passenger she had seen in 11 years on the job.

"Absolutely she deserved a felony conviction," she said.

But at least one passenger, John Carlson, a defense attorney who was seated near Freeman, said there was no threat. "There was a nasty, loud exchange," Carlson said. Then Freeman "capitulated and offered no resistance. My sympathy shifted to her."

A spokeswoman for Frontier said the airline has provided more training for flight attendants since 2001, including classes on "ways to calm a situation before it reaches a boiling point or physical confrontation."

After three months in jail, Freeman agreed to plead guilty in exchange for being released on probation. A court-appointed attorney told her that a plea deal would be the fastest way to see her children, who had been taken back to Hawaii and put into foster care.

Her probation required her to stay in Oklahoma City, where she grew up, and prohibited her from flying. Meanwhile, legal proceedings in Hawaii have begun to allow the children's foster parents to adopt them.

Freeman has been denied permission to attend custody hearings in Maui over the last six months, court records show.

"I have cried. I have cried for my children every day," Freeman said. "I feel the system is failing me."

Thanks to Antiwar.com

Ohio school district celebrates democracy  by warning students and parents of "zero tolerace" for inappropriate political comments.

Dayton Daily News reports

Mason school officials said they are taking a proactive educational approach in advance of next week's planned Inauguration Day activities.

"Inappropriate comments that may make other students, staff or families feel unwelcome or uncomfortable in school or on the bus will not be tolerated," Superintendent Kevin Bright said in an e-mail sent to parents Monday, Jan. 12.

The district, he said, expects students and staff to show respect for President-elect Obama and the incoming administration, as well as President Bush and the outgoing administration, and recognize that "while the election is a competitive process, our nation's greatness is displayed when all sides come together for a united country."

Jeff Schlaeger, Mason High School's psychologist, said "inappropriate comments" occurred around election week when doctored pictures of Obama appeared at the school, including "derogatory caricatures" of him dressed like a terrorist and signs that read "Obama '08/Biden '09."

"There were groups of students that were worked up over the results of the election," said Schlaeger, who is a member of the district's racial equity committee and curriculum organizer for MHS Freshman Diversity Week.

The school is offering a variety of events for students at every grade level, ranging from letter-writing and books, to videos, reflection and watching the inauguration itself, Bright said in the e-mail.

"We're attempting to take a more proactive approach now and, first of all, celebrate the passing of power in our country and at the same time also celebrate this historic inauguration and the election of our first African-American president," Bright said during an interview Tuesday.

Warren County Commissioner Dave Young, who has three children in the school district, said he questions an "inappropriate comments" policy based on what makes someone feel "unwelcome or uncomfortable."

"It's not 'We're discouraging you from saying those (comments)' it's 'It won't be tolerated,' " Young said. "That's a very dangerous precedent."

Thanks to Wendy mcelroy

At confirmation hearing attorney general nominee voices support for Patriot Act provision authorizing secret FBI searches of reading records.

President-elect Barack Obama's nominee for attorney general has endorsed an extension of the law that allows federal agents to demand Americans' library and bookstore records as part of terrorism probes, dismaying a national group of independent booksellers.

Eric Holder said at his confirmation hearing Thursday before the Senate Judiciary Committee that he supports renewing a section of the USA Patriot Act that allows FBI agents investigating international terrorism or espionage to seek records from businesses, libraries and bookstores. If not renewed by Congress, the provision will expire at the end of 2009.

The searches must be authorized by a court that meets secretly and has approved the government's requests in nearly all cases, according to congressional reports. The target of the search does not have to be suspected of terrorism or any other crime. A permanent gag order that accompanies each search prohibits the business or library from telling anyone about it.

Holder said he realizes the provision has been controversial and he will seek more information from department staff before making a final decision, if confirmed as attorney general. He didn't elaborate on his support for the law, but said at another point in the hearing that his top priority would be to protect Americans from terrorism, using "every available tactic ... within the letter and spirit of the Constitution."

"I was disappointed" that Holder supports the bookstore and library searches, "although maybe not entirely surprised," Chris Finan, spokesman for the American Booksellers Foundation for Free Expression, said Friday.

The provision Holder wants Congress to renew, known as Section 215, "gives the government far too much power to conduct fishing expeditions in the records of bookstore customers and library patrons," Finan said. "We never expected that the change of administration would mean we had any less of a fight on our hands."

Finan said the Justice Department has told Congress that it conducted only 42 searches nationwide from 2004 through 2007, the last year covered by congressional reports. The law does not require the department to describe the targets of the searches, and Finan said no breakdowns on bookstore or library searches are available because of the gag orders.

Organizations of librarians and booksellers have denounced the law as an assault on reader privacy. Some libraries have posted signs warning patrons that their records are subject to government inspection, and many librarians now destroy files on borrowers who have returned their books.

Opponents of the Patriot Act provision have lobbied Congress to require that agents seeking such records obtain grand jury subpoenas, based on evidence of wrongdoing, and defend them before a judge if the record-keeper objected. So far, their efforts have failed.

Finan said the American Booksellers Association, which represents 2,000 independent bookstores, and allied groups of librarians, publishers and writers will instead try to soften the law along the lines of legislation that Obama supported in the Senate last year.

Carried by Sen. Russ Feingold, D-Wis., the bill would have allowed agents to obtain records of customers and library patrons only if they were actually suspected of terrorism, and would have authorized court challenges by keepers of the records.

Supreme Court rules that warrants don't have to be accurate in order to make  evidence police acquire "stick" in a conviction.

AP reports

The Supreme Court ruled Wednesday that evidence found after an arrest based on incorrect information from police files may be used against a criminal suspect.

In a 5-4 split, the court upheld the conviction of an Alabama man on federal drug and gun charges.

Bennie Dean Herring was arrested on what the Coffee County, Ala., sheriff's department thought was a valid warrant from a neighboring county. It turned out that the warrant for Herring's arrest had been recalled five months earlier.

Herring argued that police negligence should automatically lead to the suppression of evidence found after an unjustified arrest.

But Chief Justice John Roberts, writing for the court, said the evidence may be used "when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements."

Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas sided with Roberts.

In a dissent for the other four justices, Justice Ruth Bader Ginsburg said the ruling "leaves Herring, and others like him, with no remedy for violations of their constitutional rights."

Ginsburg said accurate police record-keeping is of paramount importance, particularly with the widespread use of electronic databases. Justices Stephen Breyer, David Souter and John Paul Stevens also dissented.

Herring was arrested after a neighboring Dale County sheriff's employee found a computer entry noting that Herring was wanted for failing to appear in court on a felony charge. The sheriff's computer database had not been updated to reflect the recall of the warrant for Herring's arrest.

Meanwhile, in a search after Herring's arrest, Coffee County deputies found methamphetamine in Herring's pockets and an unloaded gun under the front seat of his truck.

Some courts have ruled that as a deterrent to police misconduct, the fruits of a similar search may be excluded from evidence.

But the 11th U.S. Circuit Court of Appeals in Atlanta said that suppressing evidence in Herring's case would be unlikely to deter sloppy record keeping.

The case is Herring v. U.S., 07-513.

"In validating the government's wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration's repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans."

NY Times reports

A federal intelligence court, in a rare public opinion, issued a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans' private communications may be involved. 

The court decision, made in August 2008 by the Foreign Intelligence Surveillance Court of Review, came in an unclassified, redacted form.

The decision marks the first time since the disclosure of the National Security Agency's warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government's wiretapping powers. In validating the government's wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration's repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.

The Aug. 22 appeals court decision upheld a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications.

"The Department of Justice is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007," a Justice Department statement said.

The court ruling grew out of a previously undisclosed challenge from a telecommunications provider, which questioned the constitutional authority of the executive branch in ordering it to capture and turn over international communications without court approval.

The telecommunications company, which was not identified, refused to comply and instead challenged its legal basis under the 2007 law.

The FISA court rejected the telecommunication companies' challenge. It found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information.

The opinion did not directly rule on the legality of the once-secret operation authorized by President Bush between October 2001 and early 2007, which allowed the National Security Agency to eavesdrop on the international communications of Americans suspected of ties to terrorists. The disclosure of the program's existence in The New York Times in December 2005 set off a national debate on wiretapping, privacy and the limits of presidential power. Critics charged that Mr. Bush had violated a 1978 law requiring that the government obtain a court order to listen in on Americans' communications.

Still, the new ruling is expected to have broad implications for federal wiretapping law, because it is the first time that any appeals court has ruled on the constitutional question of the president's wiretapping power.

It could also influence a number of court challenges now pending in federal court in California against telecommunications companies that took part in the N.S.A. program. Last year, Congress approved legal immunity against lawsuits for the telecommunications companies, but a federal judge has yet to decide whether the lawsuits should be thrown out.

The Protect America Act was a temporary, six-month measure that gave the president the authority to collect international phone calls and e-mail messages in large batches in search of possible terrorist connections without getting individual warrants. The international communications of Americans could be collected, so long as the target of the wiretapping operations was outside the United States.

The law drew strong objections from congressional Democrats, who blocked its renewal in early 2008 despite repeated warnings from President Bush that national security would be compromised. Ultimately, Congress approved a plan last June that authorized the same basic framework for international eavesdropping -- along with long-sought immunity for the phone companies -- but added some restrictions.

One way to keep the bureaucratically lucrative business of the War on Drugs going: monopolize all research data related to proscribed drugs.

Reason.com reports

Yesterday, with a week to go in the Bush administration, the Drug Enforcement Administration officially rejected an application to establish an alternative source of marijuana for medical research, a role currently monopolized by the National Institute on Drug Abuse. The application was filed seven years ago by University of Massachusetts at Amherst plant scientist Lyle Craker and the Multidisciplinary Association for Psychedelic Studies (MAPS), which is trying to facilitate research aimed at making marijuana an FDA-approved medicine. In turning Craker down, the DEA rejected a 2007 recommendation by DEA Adminstrative Law Judge Mary Ellen Bittner, who said allowing competition with NIDA would be in the public interest. Bittner noted that the DEA's treatment of marijuana is anomalous, since every other Schedule I drug can be produced by government-licensed independent laboratories. The need to get marijuana from NIDA has prevented some researchers from performing studies even after they were approved by the FDA and the Department of Health and Human Services.

Allen Hopper, litigation director at the ACLU's Drug Law Reform Project, which supported the Craker/MAPS initiative, had this to say:

With one foot out the door, the Bush administration has once again found time to undermine scientific freedom. In stubbornly retaining the unique government monopoly over the supply of research marijuana over the objections of DEA's own administrative law judge, the Bush administration has effectively blocked the proper regulatory channels that would allow the drug to become a wholly legitimate prescription medication.

Drug warriors insist that medical marijuana advocates jump through the usual regulatory hoops to get cannabis approved as a medicine. At the same time, they do whatever they can to make that impossible. Removing these senseless obstacles to research is just the sort of moderate reform that Barack Obama--who has promised to call off the DEA's medical marijuana raids and has said doctors should be allowed to prescribe marijuana if research confirms its safety and efficacy--should be able to get behind.

Indeed, when it comes to "civil contempt" charges constitutional niceties like due process get, shall we say, murky.

The Wall St. Journal reports

One can spend a long time in jail in the U.S. without ever being charged with a crime.

It happened to H. Beatty Chadwick, a former Philadelphia-area lawyer, who has been behind bars for nearly 14 years without being charged.

Businessman Manuel Osete spent nearly three years in an Arizona jail without ever receiving a criminal charge. And investment manager Martin Armstrong faced a similar situation when he was held for more than six years in a Manhattan jail.

All three men were jailed for civil contempt, a murky legal concept. Some scholars say it is too often abused by judges, to the detriment of those charged and their due-process rights. "These results of too many civil-contempt confinements are flatly outrageous and often unconstitutional," says Jayne Ressler, a professor at Brooklyn Law School.

n some contexts, the federal system limits civil-contempt confinement to 18 months. Some states have similar limits. But in other states, judges face few restrictions on how long someone can be held in civil contempt.

A judge generally can issue either a civil or criminal contempt charge whenever he or she feels that a party has disobeyed an order or has disrupted a proceeding.

In a criminal contempt charge, which is aimed at punishing bad behavior, a defendant is afforded the due-process safeguards of the criminal system, including a possible jury trial.

Civil contempt charges, on the other hand, are meant to be coercive, issued to force behavior such as making a witness testify, compelling a journalist to reveal sources or strong-arming a parent into paying child support. Because civil "contemnors" hold the key to their own freedom -- after all, complying will spring them -- they aren't given the same due-process rights as criminal defendants.

If someone held for civil contempt can't meet the judge's order, theoretically, the confinement should end. And while long-term civil confinements are unusual, problems arise when a court doesn't believe the person. With the party and judge at loggerheads over, say, the availability of funds, it is often the contemnor who loses, forced to remain behind bars at the mercy of a skeptical judge. That has sparked cries for reform.

Consider Mr. Chadwick's case. In 1994, during divorce proceedings, a Delaware County judge held Mr. Chadwick in civil contempt for failing to put $2.5 million in a court-controlled account. He says he lost the money in bad investments; his wife's attorney claimed he had hidden it offshore. In April 1995, Mr. Chadwick was arrested and detained. Nearly 14 years later, Mr. Chadwick, who suffers from non-Hodgkin's lymphoma, is still in jail -- even after a retired judge was hired to help locate the money, and failed.

"The money is gone," says Mr. Chadwick's lawyer, Michael Malloy. "The coercive effect of this order is gone; it has turned into a life sentence."

The judge who held Mr. Chadwick in contempt in 1994 couldn't be reached for comment, but he has said publicly that he doesn't believe Mr. Chadwick lacks the funds.

Few argue that civil-contempt confinement should be abandoned altogether. "The threat of jail is sometimes the only thing that will make a person comply with a court order," says Adam Winkler, a professor at UCLA law school.

For some, including Albert Momjian, the lawyer for Mr. Chadwick's ex-wife, the theory still holds. "There's no doubt in my mind that he has the money and could walk out of jail next week if he wanted to," says Mr. Momjian.

Critics question why the burden rests with contemnors such as Mr. Chadwick to prove they don't have the money, rather than with a prosecutor to prove they do. "It runs counter to our entire system to say 'It's your burden to prove a negative,'" says Brooklyn Law School's Ms. Ressler.

Another concern: While those sent to jail for civil contempt may appeal their confinements, appellate judges often will overturn lower-court rulings only if they find an "abuse of discretion," a standard that offers trial judges wide latitude.

Reformers hope that more states enact laws limiting the terms of civil confinement, as Congress did in 1970, when it passed a statute limiting the length of civil-contempt confinement to 18 months for those who refuse to testify in federal court or to a federal grand jury. After that, if civil confinement hasn't coerced a certain behavior, the burden would fall to the government to bring criminal charges.

"As a matter of due process, I think 18 months is enough in most cases," says Thomas Sjoblom, the lawyer for Martin Armstrong. Mr. Sjoblom argued unsuccessfully that the 1970 law should have extended to the situation involving his client, who failed to produce $15 million in gold and antiquities in a civil suit alleging securities fraud. "After that, let the government prove a criminal case." Mr. Armstrong is currently serving a five-year sentence for criminal conspiracy.

Of course, such a limit might give contemnors an incentive to wait, knowing that eventually they will be reunited with their riches.

Nonetheless, some states are modifying their laws. In the midst of the situation involving Mr. Osete, who was detained in Arizona from late 2002 to late 2005 for refusing to hand over more than $800,000 in alimony and interest payments, which he said he didn't have, the Arizona Supreme Court changed its rules. Now, Arizona courts must hold hearings every 35 days for those held in civil contempt on family-law issues, and judges must find that a contemnor has the ability to comply with the order.

Thanks to the Agitator

Father and Son shopkeepers fly giant copy of First Amendment in front of their store in protest.

The St. Petersberg Times reports

A bait and tackle shop has been battling with city officials over a mural on its building that depicts game fish, which the city views as an unauthorized business sign. So the shop has covered up the artwork -- with a banner displaying the text of the First Amendment.

"I'm not trying to be difficult, but I can't just let them railroad over me," says Herb Quintero, owner of the Complete Angler at 705 N Fort Harrison Ave., who argues that the painting is a work of art and is not a sign.

Code enforcement officials say that, because the shop sells bait fish as well as tackle for fishing, its fish mural is essentially a large roadside advertisement.

The officials who have fined Quintero nearly $700 have been getting barraged with angry phone calls and e-mails about the case, with some Clearwater residents being sharply critical of the city government's stance.

But inspectors say they're only enforcing Clearwater's strict sign ordinance, which limits the number and size of the signs that a business is allowed to display. The city's rules forbid murals on the outside walls of a business that depict a product that the business is selling.

Quintero, who started getting cited by code enforcers last June after his mural went up, disagrees with the city's premise.

"As passionate as they are that it's a sign, I'm that much more passionate that it's not," he said. "If it doesn't have text or a logo, how can it be signage?"

Jeff Kronschnabl, the city's director of development and neighborhood services, says inspectors have cited businesses for their murals before.

He argues that the city has no choice but to enforce its codes consistently and impartially, without making any exceptions. If not, he said, then something like an adult entertainment business could display a large mural depicting its products.

A mural like that would spark complaints. But, Kronschnabl said, if the city cracked down on a racy mural and gave a fish mural a pass, then the city would be trying to dictate the content of murals, and that would be a First Amendment issue.

"If he can do that, then that means everybody else has a right to do that," Kronschnabl said.

The Complete Angler's mural consists of simple paintings of six game fish such as grouper and snook. Quintero covered it up because, if he hadn't, he would have been cited again on Monday. He can't afford to keep paying fines indefinitely.

Mayor Frank Hibbard defends the city's sign ordinance, which forced many Clearwater businesses to downsize or lower their signs beginning in the 1980s. The rules are credited with reducing visual clutter and improving the look of main thoroughfares such as Gulf-to-Bay Boulevard.

Hibbard said the city has asked the Greater Clearwater Chamber of Commerce to poll its members and suggest changes to the sign rules if businesses want them to be more flexible.

Like Kronschnabl, the mayor argues that the city has to be consistent in enforcing its sign code.

"Let's say a ladies' lingerie shop puts up a mural -- pictures of women in lingerie. That breaks the code and it's a problem," Hibbard said. "You can't pick and choose."

For his part, Quintero says this isn't over. He points to other businesses' murals around the city that he says code enforcers are leaving alone.

Although Quintero pleaded no contest to his city code violations in Pinellas Circuit Court last month, he's aware that another business owner challenged Clearwater's sign ordinance in court and won.

In 2006, the city fined what was then an Egyptian-themed restaurant named Piramida for etching large hieroglyphics onto its building on Gulf-to-Bay Boulevard. The restaurant's owner successfully appealed in court.

But the city's lawyers say that court rendered a narrow ruling that dealt only with the Piramida case. They say Clearwater is on firm legal footing in the case of the Complete Angler.

"The court didn't strike down the city's ordinance or rule it unconstitutional," said Assistant City Attorney Leslie Dougall-Sides. "Each case has different facts, and we look at each case separately."

New law to protect children from lead in toys contains criteria so stringent it may mandate lead testing for all children's books currently on the nation's library shelves.

The Boston Phoenix reports

Is it possible that Congress has just inadvertently turned millions of children's books into contraband? At the moment, anything seems possible with regard to the sprawling, 62-page Consumer Product Safety Improvement Act (CPSIA), passed this past August with overwhelming margins in both the House (424-1) and the Senate (89-3).

The CPSIA, intended to keep lead out of toys, may well also keep books out of libraries, says Emily Sheketoff, associate executive director of the American Library Association.

"We are very busy trying to come up with a way to make it not apply to libraries," said Sheketoff. But unless she succeeds in lobbying Capitol Hill for an exemption, she believes libraries have two choices under the CPSIA: "Either they take all the children's books off the shelves," she says, "or they ban children from the library."

On February 10, the new law gets teeth. After that day, all products for children under 12 -- books, games, toys, sports equipment, furniture, clothes, DVDs, and just about every other conceivable children's gadget and gewgaw -- must be tested for lead, and fall below a new 600 part-per-million limit, or face the landfill. Thanks to a September 12 memo from the Consumer Product Safety Commission (CPSC), the lead limit applies not only to new products, but also to inventory already on store shelves.

"Under this new regime, you are suspect until proven safe," says Allan Adler, the American Association of Publishers' vice president for legal and governmental affairs.

As the February 10 deadline approaches, the CPSIA has been causing increasing consternation -- and, at times, hysteria -- among makers and sellers of children's products, who are just beginning to realize the financial and logistical nightmare they face in trying to comply. Lead testing promises to be expensive -- from several hundred to several thousand dollars per test, depending on the product. And each batch of each item must be tracked and tested, making compliance brutally expensive for items with small runs.

Historically, books have been considered more dangerous to read than to eat. Regardless, a memo from the CPSC, issued the day before Christmas Eve, explicitly quashed any hope that books might escape the new law. To make matters worse, even publishers that have already had their products tested for lead will be forced to retest. In the same memo, existing test results based on "soluble lead" -- a measure of whether lead will migrate out of a product -- were rejected by the CPSC because they did not measure "total lead content."

The CPSC has not issued any ruling on whether libraries, schools, and other institutions that loan -- rather than sell -- books will be subject to the law. Without such clear guidance, says Adler, schools and libraries should assume they have to comply. 

"If [the CPSC is] going to say that we're being alarmist," says Adler, "that's fine, as long as they provide an explanation that we can understand and rely on. That's what's been missing from this entire discussion."

Regardless of whether libraries and schools are affected, the CPSIA is poised to take a massive bite out of the book industry. Large retailers are beginning to demand that publishers comply, even in advance of the law's deadline. This Wednesday, Amazon.com sent a general letter informing its vendors that, if they did not certify their products by January 15, the items would be returned at the sellers' expense.

Like their peers in the toy and garment industries, many sellers of children's books are just beginning to try to understand how the CPSIA will affect their businesses.

"All of us are totally in the dark," says Terri Schmitz, owner of the Children's Book Shop in Brookline. "I can't make a decision, because I don't know what the regulations are. We're all sort of in limbo here."

Libraries may yet escape unscathed. The CPSIA is changing rapidly as the CPSC scrambles to clarify the confusing lead law before it goes into effect. Thrift stores, consignment shops, and other used-goods stores got a partial reprieve yesterday in a hastily drafted CPSC memo: While resellers still face stiff civil and criminal penalties if they sell lead-contaminated items, used goods will not have to be tested for lead.

In lieu of actual testing, the memo urged resellers to "pay special attention to certain product categories," like jewelry and painted toys, which are "likely to have lead content."

Which prompts the obvious question: If other children's products aren't likely to contain lead, why is the CSPC regulating them?

From the sweeping language of the law, it appears Congress left them no choice. The Act covers any "consumer product designed or intended primarily for children 12 years of age and younger."

"Consider for a minute that a twelve-year-old is a junior high school student," says Adler. "This is not somebody who is likely to be chewing or sucking on a book."

Thaks to Wendy McElroy

Outgoing, but not gone yet, Attorney General Mukasey rules immigrants deported due to lawyer errors, have no right to retrial.

NY Times reports

The Bush administration has issued a ruling that illegal immigrants do not have a constitutional right to effective legal representation in deportation hearings, closing off one of the most common avenues for appealing deportation decisions.

The ruling, by Attorney General Michael B. Mukasey, concerns three appeals by people ordered to be deported who said their cases had been hurt by mistakes by their lawyers. Mr. Mukasey wrote in an opinion released late Wednesday that "neither the Constitution nor any statutory or regulatory provision entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer."

Immigration courts operate within the Justice Department and are not part of the judicial branch, so Mr. Mukasey's ruling has the effect of the highest immigration authority. Any challenge would have to take place in the federal appeals courts. Immigrant advocates said Thursday that they expected the ruling to be appealed.

A long line of decisions in the federal courts and the Board of Immigration Appeals, a unit of the executive branch that reviews the rulings of immigration courts, had found that immigrants whose lawyers had failed them could ask that their cases be reopened on constitutional grounds, including in a case, In re Assaad, decided by the Board of Immigration Appeals five years ago.

The Bush administration, however, has argued successfully in several more-recent cases in federal appeals courts that there is no constitutional right to have a deportation case reopened because of ineffective legal representation.

"The law was settled until the Bush administration came in," said Lucas Guttentag, the director of the Immigrants' Rights Project for the American Civil Liberties Union, one of several groups that had urged Mr. Mukasey to take more time to decide the matter.

Angelo A. Paparelli, an immigration lawyer who practices in New York and California, said it was "shocking and outrageous that the attorney general, in the twilight of his holding that position, reaches out and usurps from the Obama administration an opportunity to render a judgment to affirm that aliens in removal proceedings have truly robust constitutional protections."

The Obama administration could overturn the Mukasey decision, but Mr. Paparelli suggested that "thousands of people may be ordered removed" before Mr. Mukasey's successor might address the matter. Nick Shapiro, a spokesman for the Obama transition team, said, "President-elect Obama will review all 11th-hour regulations once he is president."

Kris W. Kobach, a law professor at the University of Missouri, Kansas City, who was a counsel on immigration law to John Ashcroft when he was attorney general, called the ruling "a balanced opinion" based firmly in the law and in the powers of the attorney general.

"This opinion is not a dramatic or radical reshaping of the rules governing immigration appeals," Mr. Kobach said. "This represents a tinkering with the requirement to reopen, in order to reduce frivolous motions."

Accusations of ineffective counsel, he said, are often used as a delaying tactic. "The ways in which this opinion ratchets up the threshold are eminently reasonable," he said.

More often, immigration experts say, poor work by lawyers is a sad fact of life. The United States Court of Appeals for the Ninth Circuit said in an opinion last year that all too often "vulnerable immigrants are preyed upon by unlicensed notarios and unscrupulous appearance attorneys who extract heavy fees in exchange for false promises and shoddy, ineffective representation."

In explaining his ruling, Mr. Mukasey said that the Sixth Amendment right to a lawyer applied only in criminal cases and that deportation was a civil action. He wrote that the due process clause, part of the 5th and 14th Amendments, applied in criminal and civil proceedings but that the guarantee of due process applied only to actions of government and not to actions by private individuals like an immigrant's lawyer.

"There is no constitutional right to counsel, and thus no constitutional right to effective assistance of counsel, in civil cases," he wrote.

Mr. Mukasey did leave open one avenue of appeal for illegal immigrants who have been wronged by their lawyers. He said the immigration courts could allow an immigrant to reopen a case "as a matter of administrative grace" in cases of extreme lawyerly error that probably changed the outcome of the initial removal proceeding. The 33-page opinion included detailed rules for reopening a removal order.

Mr. Guttentag of the A.C.L.U. said the discretion given to the immigration courts could make review by the federal courts more difficult because in such cases the immigration agency argues that its discretionary acts are not reviewable.

AKA- Living While Black in an Upscale white burb.

CNN reports

Robbie Tolan sits in a Houston, Texas, hospital bed with a bullet from a police officer's gun lodged in his liver. The son of a famed baseball player was shot in his own driveway.

But how this unarmed 23-year-old and his cousin ended up in the cross-hairs of an officer's gun, suspected of stealing a car, is a question sparking allegations of racial profiling.

"There's no doubt in my mind that if these had been white kids this does not happen," said David Berg, Tolan's attorney.

It was 2 a.m. on December 31 when Tolan and his cousin, Anthony Cooper, were confronted in the driveway of their home by Bellaire, Texas, police officers. Police officials say the officers suspected the two young men were driving a stolen car.

Bellaire is a prominent, mostly white suburb in southwest Houston.

Robbie Tolan is the son of a once-prominent professional baseball player. His father, Bobby Tolan, had a 15-year career for the St. Louis Cardinals and Cincinnati Reds, spanning 1965 to 1979. He played on one of the most-heralded Cardinal teams ever: the 1967 World Series champs.

The younger Tolan is just starting to develop his own baseball career. He's played in the Washington Nationals minor league system and spent part of last season playing for the Bay Area Toros of the Continental Baseball League.

Tolan's relatives say the two young men had just arrived from a late-night run to a Jack-in-the-Box fast food restaurant.

As they walked up the driveway to their home, Anthony Cooper said an unidentified man emerged from the darkness with a flashlight and a gun pointed at them.

"We did not know it was a police officer," said Cooper. "He said, 'Stop. Stop.' And we were like, 'Why? Who are you?'"

The officers ordered both men to lie down on the ground. Tolan's parents heard the commotion and came outside. Police will only say an "altercation" took place. Tolan's family say it involved his mother.

"The cop pushed her against the wall," said Tolan's uncle, Mike Morris.

Relatives say Tolan started to lean up from the ground to ask the officer what he was doing to his mother. That's when the family says Tolan was shot in the chest, the bullet piercing his lung and then lodging in his liver.

But Tolan's SUV wasn't stolen. Both men were unarmed and relatives say they were hardly a threat to the police officer. Anger over the shooting has been building over the last week.

"He was the victim of the worst case and worst kind of racial profiling," said community activist Quannel X.

The Bellaire Police Department has called the shooting "tragic" and put the officer involved in the incident on administrative leave.

"Anytime someone is injured we take it very seriously," said Byron Holloway, Assistant Chief of the Bellaire Police Department. "But any allegation of racial profiling, I don't think that's going to float."

The police department is investigating and the district attorney's office in Houston is also looking into whether charges will be filed against the police officer.

The policeman is a white, 10-year veteran of the force whom police say has an excellent record.

Bellaire Police officials are no longer talking publicly about the case. The department's assistant chief says they're investigating how the officers on the scene mistakenly determined that the SUV Tolan and his cousin were driving had been stolen.

Robbie Tolan remains in a Houston hospital. Relatives say he is in severe pain but is expected to recover. But his attorney says that Tolan's baseball career might be over.

Tolan's father isn't worried about that.

"I'm not concerned about his career as a baseball player. I'm concerned about his health," said Bobby Tolan.

Thanks to Bibliophilebullpen

Forget about public transparency, and we'll take care of accountability behind closed doors, says city government.

The Baltimore Sun reports

Baltimore police will no longer release the names of officers who kill or injure people, changing a long-standing practice that the department believes put officers at risk.

The decision is prompting criticism from several Baltimore leaders, who said withholding officers' names will only endanger an already tenuous relationship between the police and the community. Baltimore police shot 21 people last year, 13 of them fatally - the same number killed by police in 2007, when 31 people were shot. Those numbers are up from 2006, when 15 were shot and five killed.

"If we're ever going to get to a point where the community trusts the police, we need to have some transparency and full disclosure about what's happening," said state Sen. Lisa A. Gladden, a West Baltimore Democrat who is a public defender.

The Police Department is asking residents to become more engaged in their neighborhoods and to work with police to solve crimes and overcome a "Stop Snitching" culture. Marvin L. "Doc" Cheatham Sr., president of the Baltimore chapter of the NAACP, said he wouldn't want police to give out information that endangers officers, but he said the new policy "doesn't help" improve community relations.
"We've got to find more and better ways to bring the community and police together," he said. "This may not sit too well with many of us."

Police Commissioner Frederick H. Bealefeld III declined to comment on the change, saying he left the decision to new department spokesman Anthony Guglielmi. The new policy mirrors those of some other departments and is designed to protect officers from retaliation, Guglielmi said.

A spokesman for Mayor Sheila Dixon said she will not interfere with the department's decision.

Regionally and across the country, police agencies differ in their disclosure of police-involved shootings; some release the names within hours and others withhold the information altogether.

The police union applauded the policy change. Robert F. Cherry, president of the Baltimore police union and a former homicide detective, said the department vigorously investigates shootings that involve officers.

"If anything, the investigation is more intensive than for the average citizen," Cherry said. "The only thing the department is doing differently is choosing not to release their name. ... I'm surprised we haven't gone to this earlier."

Talk of the change surfaced nearly a year ago in February, but officials in the mayor's office said they had not been briefed and promised the issue would be thoroughly vetted. Over the summer, police informally stopped releasing names of officers involved in shootings.

Six people were shot by officers during that span, and only one officer was identified. Four victims were identified.

Among the last officers whose names were released was Officer Tommy Sanders, who has since been indicted on manslaughter charges in connection with the death of Edward Lamont Hunt at a Northeast Baltimore shopping center. Hunt was shot several times in the back after he attempted to flee. Sanders, 38, is scheduled to go to trial next month.

Guglielmi, who joined the department last month after a stint with the federal Office of the Special Counsel, said the change is not a departmentwide rule but a policy of the public affairs office, which disseminates information.

Guglielmi said the department will release the names of officers only if they are found through an internal investigation to have erred - though that could require a policy change as well, since the department currently does not notify the public about the results of internal investigations.

"After doing a couple ride-alongs [with officers], I sincerely believe there are some security implications for identifying officers unless they were found in the wrong," he said.

Guglielmi cited backlash against Officer Salvatore Rivieri, the Inner Harbor patrol officer who was videotaped berating a teenage skateboader. The video was posted on YouTube and appeared on national television, and police said Rivieri has received death threats at his home.

But Doug Ward, director of the division of public safety leadership for the Johns Hopkins University and a former state trooper, said the Rivieri case is a perfect example of the public's right to know about a potential problem officer. He said police must provide a certain amount of transparency for the public to trust that their internal investigative process is responsible.

"I understand that they're trying to protect their own and that kind of thing, but I'm not sure that's good public policy," Ward said.

A spokeswoman for Baltimore State's Attorney Patricia C. Jessamy said last year that she had concerns about the prospect of withholding officers' names and "would not do anything to jeopardize the progress that we have made with our relationship with the community." The spokeswoman, Margaret T. Burns, said yesterday that Jessamy's position had not changed.

Thanks to Lew rockwell.com

Tipsy joke to flight attendant gets St. Louis man carried out by federal marshals and put in solitary confinement for 2 and a half days.

KMOV reports

A St. Louis man who was jailed and charged with making a threat about a shoe bomb was released Tuesday.

 

Michael Shafermeyer, 30, was arrested Saturday boarding a flight at Lambert Airport Saturday.

 

After spending 3 ½ days in jail, he spoke with News 4 to give his side of the story.

 

Shafermeyer said he was flying to Maryland to get married and because he was anxious about the wedding and nervous about flying, he had a few drinks before getting to the airport.

 

His friends describe him as a guy with a non-stop, quirky sense of humor.

 

When a flight attendant asked him to close his laptop after boarding, Shafermeyer says he was just trying to make a joke when he asked her, "Are you the one who checks for shoe bombs?"

 

He said within minutes federal agents whisked him off the plane and he spent the next 2 ½ days in solitary confinement at the St. Louis County Jail.

 

The final day in jail, he was put in general holding with 20-30 other people, who he said stood and gave him a standing ovation when he first walked into the room.

 

Shafermeyer said he's charged with making a false bomb report.

 

He still plans to go to Maryland to get married, but will take the train to get there.

22 year old unarmed man, suspected of being involved in a subway train scuffle, is dragged face down on platform, and after being roughed up, shot in the back, execution style. 

Contra Costa Times reports

A BART police officer struggling to handcuff a 22-year-old man stood up over the facedown Hayward resident and fired a single shot into his back while a handful of officers watched, a video taken by a train passenger apparently shows.

The attorney for the family of Oscar Grant III, fatally shot by an unidentified BART officer early New Year's Day, said Sunday he plans to file a $25 million lawsuit against the department and asked prosecutors to consider filing murder charges against the officer.

The shooting occurred shortly before 2 a.m. Thursday after five officers responded to the Fruitvale station to reports of a fight on a train, officials said, though they have not confirmed whether Grant was involved in the fight.

The new video, obtained by television station KTVU, shows two officers restraining a struggling suspect. While the man is lying face down on the ground, one officer appears to be seen pulling out a gun and firing a single shot into his back.

Civil rights attorney John Burris, known for his work in several high-profile cases involving police abuse and corruption, said at a Sunday news conference that the shooting was "the most unconscionable" he has ever seen. He said the Alameda County district attorney should consider filing charges of second-degree murder or manslaughter against the officer.

"I've drafted a notice of claim against BART for $25 million I plan to submit officially," Burris said, adding that the officer had violated Grant's civil rights and wrongfully caused his death.

The Police Department is in the early stages of a thorough investigation, BART police Chief Gary Gee said Sunday at a news conference. He declined to discuss many details, as doing so "before all the facts are in could compromise individual recollections and do disservice to the truth and the answers we're all seeking."

BART police are cooperating fully with a parallel investigation by the Alameda County district attorney's office, Gee said.

Gee declined to identify the officer but said he is a two-year BART police veteran. The officer was given drug and alcohol tests before being sent home on administrative leave Thursday, Gee said.

The last BART officer-involved shooting occurred in May 2001, Gee said.

Mario Pangelina Jr., whose sister had a 4-year-old daughter with Grant, said he was on the same train as Grant that night, but on a different car. He said he saw Grant's interactions with police immediately before the shooting.

"First, an officer grabbed Oscar by the neck and pushed him against the wall," Pangelina said. "Oscar didn't fight him, but he didn't go down either. He was like, 'What did I do?' Then another officer came up with his Taser and held it right in his face. Oscar said, 'Please don't shoot me, please don't Taser me, I have a daughter,' over and over again, real fast, and he sat down."

Grant was the only man in a small group sitting against the wall who was not handcuffed, Burris said, so officers grabbed him away from the wall and pressed him belly-down onto the ground.

"One officer was kneeling over his neck and head, and another standing over him," Burris said. "He was not kicking, and one officer was pulling on his arm. The standing officer pulled out his weapon and, within moments, fired the gun into Mr. Grant's back."

Burris said the bullet went through Grant's lower back and ricocheted off the ground up into his lungs, killing him.

BART's 206 sworn officers attend the same academies and training programs as city police and sheriff's deputies. According to BART's Web site, its requirements go beyond state guidelines, as every officer applicant must have completed at least a year of college.

Police have one video of the incident in evidence, different from the video that local media have released, and the quality of that video makes it hard to reach a sure conclusion, Gee said.

"It's not clear to me why the officer felt he needed to shoot. I don't know, and from my perspective it doesn't matter," Burris said.

Two authorities on police use of deadly force, both former law enforcement officers, said the newly discovered tape leaves unanswered questions.

"Strictly on the basis of this video, it is impossible to determine whether the shooting was justified because the officer who fired the shot might have seen some imminent threat to his or others' lives that the camera does not detect at that distance, angle and resolution," said Michael Scott, a University of Wisconsin law professor, former police chief in Florida and co-author of "Deadly Force: What We Know."

Scott said he watched the video several times. If there was a threat, he wrote in an e-mail to the Times, it "would most likely have to be a firearm or other weapon in the possession of Mr. Grant. However, if it turns out that Mr. Grant had no such weapon, it is awfully difficult to imagine what might have justified the use of deadly force."

Curtis Cope agreed that the tape doesn't show enough to draw clear conclusions.

"There are so many things we don't know," said Cope, a former 30-year law enforcement officer who has conducted police training and provides expert testimony in police procedure cases. "We certainly don't know the reason why they decided to put him prone on the ground. We don't know what reactions were taking place, what orders were being given and whether or not he is then complying or not complying. "... You need to look at every possible angle of it. Those angles all take time."

Grant was a butcher at popular Oakland grocery store Farmer Joe's and a loving father, family members said Sunday.

"He was so happy with his daughter," said Lita Gomez, sister to the mother of Grant's child. "You could see he was just so happy when he looked at her. Now, he's not going to be there for kindergarten. He's not going to be there for her prom. He's not going to be there for her wedding. She was robbed of that."

Family members erected a memorial for Grant outside the Fruitvale BART station Saturday night, where they said they plan to continue honoring his memory for 10 days.

A public funeral service is planned for 11 a.m. Wednesday at Palma Ceia Baptist Church, 28605 Ruus Road in Hayward, family members said.

Gee asked anyone with information on the shooting to call BART investigators at 877-679-7000, ext. 7040, or the Alameda County district attorney's office at 510-272-6222.

Video here.

Thanks to RJ Horstmann

As the Amtrak marketing dept. invites photographers to "Picture Our Trains" Amtrak cops harass photographers who take them up on it.

NYCPhoto Rights reports

City's outdoor billboard ban targets local artist/entrepreneur's Statue of Liberty murals. 

Artist responds

 The following statement is being
issued today by artist Michael McNeilly --
    Murals of the Statue of Liberty have appeared on hi-rise buildings
throughout Los Angeles.  City officials in Los Angeles have cited the artist
and have threatened to file criminal charges.
    Councilman Jack Weiss who represents West Los Angeles and Hollywood,
stated the city should file charges against McNeilly.  "People shouldn't be
doing this. And the city attorney should go after them aggressively and throw
the book at them," he said., according to David Zahniser in the Los Angeles
Times, Jan. 1, 2009.
    "The murals of the Statue of Liberty are an artistic and political
expression protected by the First Amendment. The series of murals depict the
iconic symbol of freedom and liberty and the year 1969, a year of great
accomplishments and change in America. The seeds of the Internet sewn,
Woodstock, Vietnam war divides America and Apollo 11, man's first steps on the
moon. The three colors of the sky behind "Liberty" represented for the crisis
and challenges America faces now, white for clarity in seeing truth and
justice and blue for hope and change. The tear in the eye of Liberty is for
the sacrifices made by our soldiers, first responders and veterans protecting
our security, rights and freedom," responds artist Michael McNeilly.
SOURCE  Michael McNeilly

Brett Caruso, info@liberty1969.com for Michael McNeilly

Missouri state legislature moves to make sale of lighters that look like cartoon characters, animals, vehicles or food products illegal.

The Columbia Tribune reports

It has all the makings of a holiday toy: a miniature Santa Claus that lights up, chuckles "Ho, ho, ho" and sings a Christmas carol.
But there's a catch: To activate those cool features, a person has to flick the lighter switch and spark a flame. And that is why there's an effort to ban it, along with other novelty lighters.

State Rep. Ed Wildberger, a Democrat from St. Joseph and a former firefighter, has pre-filed a bill that would make it illegal to sell novelty lighters in Missouri. The proposed law would specifically prohibit lighters that look like cartoon characters, animals, vehicles or food products. Lighters that play music or have flashing lights also would be outlawed.

Fire groups across the country support such a ban because the entertaining lighters pose a risk to children. "One of the things that concerns us about novelty lighters is they look like toys, and that causes children to treat them as toys, increasing the potential for accidental fires to start," said Battalion Chief Gale Blomenkamp of the Boone County Fire Protection District. "When you see a lighter that looks like a football or a toy, kids are going to be more apt to play with them."

To demonstrate just how fun they appear to be, Columbia fire Battalion Chief Steve Sapp has a collection of novelty lighters he uses to educate parents. In addition to the singing Santa, Sapp has lighters that resemble a deer, a pig, a ladybug, a motorcycle and a race car hood. Many of the lighters make noises or flash lights, but not until there's a flame.

"Once there's an open flame, kids can get a little experimental," Sapp said. "They might burn little scraps of paper. Then, unfortunately, and sometimes unknowingly, they set other products on fire unintentionally."

Sapp said he understands that to adults, the lighters are simply novelty items. "But they're almost too tempting for a child to want to play with," he said.

Not everyone is on board with banning the items. Randy Trierwieler, manager of Midway Truck Plaza, where novelty lighters are a big seller, thinks it should be a parent's responsibility - not a lawmaker's - to keep lighters out of little hands. "If you have a Bugs Bunny lighter and a 3-year-old, don't leave it out," Trierwieler said. "I don't think it's something you need to pass a law for. There are a lot more serious problems in this country than passing legislation determining what can or can't be on a lighter."

Missouri isn't the only state where a ban has been proposed. Maine and Tennessee prohibited novelty lighters this year, and a few other states and localities are considering similar proposals, according to the U.S. Fire Administration.

There aren't a lot of data to illustrate just how dangerous novelty lighters are because fire departments don't separate them from standard lighters when tracking causes of fires, Missouri State Fire Marshal Randy Cole said. The state does track fires set by children, though, and last year 26 of the 76 fires caused by lighters were set by juveniles younger than 16. In 2006, 29 of 75 fires blamed on lighters were started by juveniles, Cole said, noting that not all fire departments report incidents into the state's system.

There are a handful of anecdotal reports from around the country in which children have been hurt playing with novelty lighters. Among the incidents cited by the U.S. Fire Administration:

● In 2007, a 15-month-old and a 2-year-old in Arkansas died after setting their family's apartment ablaze with a motorcycle-shaped lighter;

● A 6-year-old in Maine last June picked up a miniature baseball bat lighter in a grocery store, flicked the switch and burned part of his face.

● One child died and another was injured in Oregon after playing with a lighter that resembled a toy dolphin.

Until a ban on the lighters is adopted in Missouri, Blomenkamp urges parents to keep them away from youngsters. "Keep them out of sight and out of the minds of children," he said. "Kids are going to be curious, and if it looks like a toy, kids are going to play with it like a toy."

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