April 2009 Archives

Court, led by Scalia, supports FCC sanctions against Fox for failing to bleep out stray shits and fucks during live event coverage.

Ars Technica reports

The Supreme Court ruled today on its first indecency case in 30 years. In a 5-4 decision (PDF), the justices supported the Federal Communications Commission (FCC) sanctions against Fox for a pair of live Billboard Music Award broadcasts containing some, err, "colorful metaphors." The ruling supports the FCC's ability not only to ban floods of offensive words, but also to sanction broadcasters for "fleeting expletives" uttered at live events.

What fleeting expletives were involved in this case? The court itself is too squeamish to actually use the words upon which it is ruling hinges (Justice Scalia, who wrote the majority opinion, refers to them as the "S-Word" and the "F-Word"), but neither Cher nor Nicole Richie showed the same sensitivity during their respective time at the mic in 2002 and 2003.

The FCC has long regulated dirty words on broadcast networks, especially during hours when children are likely to be listening. The most famous case to date was 1978's FCC v. Pacifica Foundation in which a radio station played George Carlin's "seven dirty words" routine on the air. The case went to the Supreme Court, which said that the FCC was allowed to sanction the station.

But the FCC was, for the next 25 years, understood to have taken a hard line against only this sort of routine cursing; an occasional one-off cuss, especially if delivered during live broadcasting, wasn't a problem. This approach had been approved by some of the justices in the Pacifica ruling, who noted that the verdict there "does not speak to cases involving the isolated use of a potentially offensive word... as distinguished from the verbal shock treatment administered by respondent here."

The policy changed in 2006, when the FCC formally decided to censure Fox over a couple of curse words uttered on the air four years before. The move sparked a lawsuit, since the FCC had never said it was changing the rules; indeed, the agency doesn't publish any "rules" for fear of becoming a censor. Instead, it reacts after the fact, usually following complaints, in a way that critics charge is "arbitrary and capricious."


Scalia and company disagreed. "The FCC's new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious," says the ruling. "The agency's reasons for expanding its enforcement activity, moreover, were entirely rational. Even when used as an expletive, the F-Word's power to insult and offend derives from its sexual meaning. And the decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with Pacifica's context-based approach. Because the FCC's prior safe-harbor-for-single-words approach would likely lead to more widespread use, and in light of technological advances reducing the costs of bleeping offending words, it was rational for the agency to step away from its old regime."

Wait, what's that about "bleeping"? Apparently, one of the big arguments against banning "fleeting expletives" has been that it's expensive for small stations (in particular) to do this on a real-time basis; Scalia argues that it's now cheap enough not to be an issue.

Justice Breyer, who wrote the main dissenting opinion, disagreed. Although he confessed ignorance "about the prevalence of vulgarity in small towns," Breyer did point to one station manager's testimony to the FCC as evidence that a ban on fleeting expletives could decimate small time, live coverage of news and events.

"As one local station manager told the FCC, '[t]o lessen the risk posed by the new legal framework... I have directed [the station's] news staff that [our station] may no longer provide live, direct-to-air cov­erage' of 'live events where crowds are present... unless they affect matters of public safety or conven­ience. Thus, news coverage by [my station] of live events where crowds are present essentially will be limited to civil emergencies.'"

In Breyer's view, "the Federal Communications Commission failed adequately to explain why it changed its indecency policy from a policy permitting a single 'fleeting use' of an expletive, to a policy that made no such exception."

Breyer sees an obvious difference between the Carlin routine ("a monologue that deliberately and repeatedly uttered the expletives here at issue more than 100 times in one hour at a time of day when children were likely to hear the broadcast") and fleeting expletives, but Justices Thomas, Scalia, Roberts, Alito, and Kennedy disagreed. TV stations now drop the F-bomb only at their peril.

"A safe haven for families" or a First Amendment killer?

Although the ruling against Fox was made under Republican Kevin Martin, acting FCC head Michael Copps (a Democrat) praised today's decision as "a big win for families."

"The Court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations," he said in a statement. "Although avoiding the broadcast of indecent language when children are likely to be watching is one of those core responsibilities, few can deny the blatant coarsening of programming in recent years. The Court's decision should reassure parents that their children can still be protected from indecent material on the nation's airwaves."

That puts Copps on the same side as the Parents Television Council, which today lauded the ruling as an "incredible victory for families." The group, which files most of the FCC complaints related to broadcasting, said that "broadcasters must abide by the terms of their licenses. They must not air indecent material before 10:00 p.m.--the hours when children are most likely to be in the viewing audience. We must put the well-being of children first and allow certain hours of the broadcast day to be a safe haven for families."

But critics had First Amendment concerns. Andrew Jay Schwartzman, head of the Media Access Project, called the ruling "extremely disappointing. We remain hopeful that the FCC's restrictive policies will ultimately be declared unconstitutional, but there will be several more years of uncertainty, and impaired artistic expression, while the lower courts address the First Amendment issues which the Court chose not to confront today."

The point was echoed by Adam Thierer of the Progress & Freedom Foundation, who said that the court's "failure to address the constitutional issues at stake will leave the First Amendment freedoms of both media creators and consumers in this country uncertain until another case winds its way up to the court, which could take years. Practically speaking, as Justice Thomas noted, what's the point of continuing to apply a censorship regime to one of the oldest mediums--broadcast TV and radio--when kids are flocking to unregulated mediums in large numbers? At this point, we're doing little more than protecting adults from themselves and destroying over-the-air broadcasting in the process."

So, in the end, broadcasters have more clarity about "fleeting expletives," live event coverage might be reduced, and [families have been saved/First Amendment rights have been damned]. But we still don't have the answer to Nicole Richie's probing question, "Have you ever tried to get cow shit out of a Prada purse?"


E-mail to student list saying Gaza could become Israel's "Warsaw" get professor brought up on academic "charges".

Inside Higher Ed reports


A tenured professor of sociology at the University of California at Santa Barbara, Robinson said that his critics have crossed lines of fairness by equating his criticism of Israel with anti-Semitism, and that the faculty judicial system is crossing lines that are supposed to protect academic freedom by investigating him.

His critics say that he crossed a line of professionalism by sending e-mail to all of the students in one of his courses material about "parallel" images of Nazi and Israeli attacks. Some students view the material as anti-Semitic, and they quit the course and filed a grievance against him.

Faculty members are in the process of selecting a panel that will consider the charges against Robinson and determine whether to recommend that a standing faculty panel conduct a full investigation of the incident. While no action has been taken against him at this time, he views the inquiries as an attempt to quash criticism of Israel. Robinson is consulting with lawyers and may sue to block the coming proceedings.

At issue is an e-mail message that Robinson sent to the approximately 80 students in January in a course about sociology and globalization. The e-mail contained an an article criticizing the Israeli military's actions in Gaza. Part of the e-mail was an assemblage of photos from Nazi Germany's persecution of Jews and from Israel's actions in Gaza. Students were invited to look at the "parallel images." A message from Robinson argued that Gaza would be like "Israel's Warsaw."

In February, the Anti-Defamation League's Santa Barbara office wrote to Robinson to protest the e-mail and to urge him to repudiate it. "While your writings are protected by the First Amendment and academic freedom, we rely upon our rights to say that your comparisons of Nazis and Israelis were offensive, ahistorical and have crossed the line well beyond legitimate criticism of Israel," the letter said. It went on to say that the "tone and extreme views" in his e-mail were "intimidating to students," and that using his university e-mail to send "material that appears unrelated to" his course violated university standards for faculty members.

Following that letter, two students in the course dropped the class and filed complaints against Robinson. One student wrote that she felt "nauseous" upon reading the e-mail, and felt it was inappropriate. She wrote that the "demonization of Israel" is a form of anti-Semitism, and that she no longer felt comfortable in the course, after receiving the "horrific e-mail," and so dropped out.

A second student complaint accusing Robinson of being unprofessional -- also from a student who dropped the course after receiving the e-mail -- said that Robinson has "clearly stated his anti-Semitic political views in this e-mail." The first student e-mailed to ask Robinson what she was supposed to do with the material and he replied that it was for her information, although he now says that the material was part of his teaching about globalization and that his answer to her meant only that she didn't have to do anything immediately with the material.

Under Santa Barbara's faculty governance system, such complaints go to a "charges officer" and then -- if they are serious -- a committee may be formed, somewhat like a grand jury, to determine whether formal charges should be brought against the professor. Robinson maintains that the communication is so clearly covered by academic freedom that the faculty charges officer should have dropped the matter. Instead, a committee is being formed to determine whether the charges merit consideration by the standing committee that considers such allegations and can recommend sanctions against a professor.

The charges officer sent Robinson an e-mail explaining why the probe was going ahead to the next stage: "[H]ere is a summary of the allegations: You, as professor of an academic course, sent to each student enrolled in that course a highly partisan email accompanied by lurid photographs. The e-mail was unexpected and without educational context. You offered no explanation of how the material related to the content of the course. You offered no avenue to discuss, nor encouraged any response, to the opinions and photographs included in the e-mail. You directly told a student who inquired that the e-mail was not connected to the course. As a result, two enrolled students were too distraught to continue with the course. The constellation of allegations listed above, if substantially true, may violate the Faculty Code of Conduct."

He cited rules in the code that bar faculty members from "significant intrusion of material unrelated to the course" and "use of the position or powers of a faculty member to coerce the judgment or conscience of a student or to cause harm to a student for arbitrary or personal reasons."

With issues related to the Middle East setting off numerous disputes on campuses this year, students who back Robinson have created a Web site with documents on the case and are trying to mobilize support for him. Robinson's critics, meanwhile, have taken to YouTube.

In an interview Wednesday, Robinson called the charges against him "absolutely absurd." He noted that he is Jewish and said that he abhors anti-Semitism, and that his academic freedom is being violated by the university taking seriously charges that link his e-mail criticisms of Israel's government with anti-Semitism. "This is all because I have criticized the policies of the State of Israel."

Robinson said that the fact that the statements were in e-mail and not during a class session is irrelevant. "Every week I send students a tremendous amount of material by e-mail," he said. "In the age of the Internet, academic material is distributed digitally" and must have academic freedom.

He also rejected the idea that the material was not relevant to the course. "The course deals with global issues and global society," and was starting as Israel was attacking Gaza, he said. "Of course it is part of the course."


Thanks to Jonathan turley


In the land of the free the logic has apparently become that, because you're an illegal immigrant you need to be detained (often indefinitely without rights) before being deported, and, because you are detained, and therefore unable to take care of your kids, the state can declare unfit to parent and, therefore, take away your kids, for good.

NY Times reports

When immigration agents raided a poultry processing plant near here two years ago, they had no idea a little American boy named Carlos would be swept up in the operation.

One of the 136 illegal immigrants detained in the raid was Carlos's mother, Encarnación Bail Romero, a Guatemalan. A year and a half after she went to jail, a county court terminated Ms. Bail's rights to her child on grounds of abandonment. Carlos, now 2, was adopted by a local couple.

In his decree, Judge David C. Dally of Circuit Court in Jasper County said the couple made a comfortable living, had rearranged their lives and work schedules to provide Carlos a stable home, and had support from their extended family. By contrast, Judge Dally said, Ms. Bail had little to offer.

"The only certainties in the biological mother's future," he wrote, "is that she will remain incarcerated until next year, and that she will be deported thereafter."

It is unclear how many children share Carlos's predicament. But lawyers and advocates for immigrants say that cases like his are popping up across the country as crackdowns against illegal immigrants thrust local courts into transnational custody battles and leave thousands of children in limbo.

"The struggle in these cases is there's no winner," said Christopher Huck, an immigration lawyer in Washington State.

He said that in many cases, what state courts want to do "conflicts with what federal immigration agencies are supposed to do."

"Then things spiral out of control," Mr. Huck added, "and it ends up in these real unfortunate situations."

Next month, the Nebraska Supreme Court is scheduled to hear an appeal by Maria Luis, a Guatemalan whose rights to her American-born son and daughter were terminated after she was detained in April 2005 on charges of falsely identifying herself to a police officer. She was later deported.

And in South Carolina, a Circuit Court judge has been working with officials in Guatemala to find a way to send the baby girl of a Guatemalan couple, Martin de Leon Perez and his wife, Lucia, detained on charges of drinking in public, to relatives in their country so the couple does not lose custody before their expected deportation.

Patricia Ravenhorst, a South Carolina lawyer who handles immigration cases, said she had tried "to get our judges not to be intimidated by the notion of crossing an international border."

"I've asked them, 'What would we do if the child had relatives in New Jersey?' " Ms. Ravenhorst said. "We'd coordinate with the State of New Jersey. So why can't we do the same for a child with relatives in the highlands of Guatemala?"

Dora Schriro, an adviser to Homeland Security Secretary Janet Napolitano, said the agency was looking for ways to deal with family separations as it prepared new immigration enforcement guidelines. In visits to detention centers across the country, Ms. Schriro said, she had heard accounts of parents losing contact or custody of their children.

Child welfare laws differ from state to state. In the Missouri case, Carlos's adoptive parents were awarded custody last year by Judge Dally after they privately petitioned the court and he terminated Ms. Bail's rights to Carlos.

In February, immigration authorities suspended Ms. Bail's deportation order so she could file suit to recover custody. Ms. Bail's lawyer, John de Leon, of Miami, said his client had not been informed about the adoption proceedings in her native Spanish, and had no real legal representation until it was too late.

The lawyer for Carlos's adoptive parents, Joseph L. Hensley, said his clients had waited more than a year for Ms. Bail to demonstrate her commitment to Carlos, but the judge found that she had made no attempt to contact the baby or send financial support for him while she was incarcerated. The couple asked not to be named to protect Carlos's privacy.

Ms. Bail came to the United States in 2005, and Carlos was born a year later. In May 2007, she was detained in a raid on George's Processing plant in Butterfield, near Carthage in southwestern Missouri.


Failure to respond quickly enough to illegitimate police request to "get off the fucking road" gets teenage bicyclist electrified.

Bicycling.com reports

A few months ago, I received a phone call from a cyclist with an incredible story about an incident in Lawrence County, Ohio. Because the cyclist-a guy named Tony Patrick-was in need of an attorney, I hooked him up with Steve Magas, a contributing author to Bicycling & the Law, and a well-known bicycling attorney in Ohio. After hearing Tony's story, Steve took his case. More about that later; first, let me tell you about Tony.

Weekdays, Tony runs his small construction company in Huntington, West Virginia. Weeknights, and weekends, Tony, a Cat 2 racer, can often be found hanging out at Jeff's Bike Shop-that is, when he's not out on a training ride, or racing. And that's not unusual; Jeff's Bike Shop is the center of a vibrant racing scene in Huntington, the second-largest city in West Virginia, and the home of Marshall University.

That racing scene means regular training rides, all of which start out and end up at Jeff's. There's a ride every other day, each geared to a different set of riders, but the real hammerfest is the Tuesday night ride. That's the ride where the locals try, as Tony puts it, to hurt each other over the course of a 23-34 mile route that takes them across the Ohio River, into the back roads of southern Ohio, before looping back across the river into Huntington.

And that's how Tony found himself just outside of Chesapeake, Ohio, one Tuesday night in August of 2008, heading into town to take the bridge back across to Huntington. Tony was riding with "Ryan," a then-16 year old nationally-ranked racer with a 4.2 GPA. ["Ryan" is a pseudonym; I've concealed his identity because he's a minor.]

That night, Tony and Ryan were a little tired from a hard training ride the night before, so they decided to take the shorter route. Thus, as they headed into Chesapeake, they were separated from the peloton. Just outside the town limits, they passed the library. Exactly what happened from this point forward is the subject of dispute. Both Tony and Ryan say they were the only two people on the road. But they weren't alone-in the library parking lot was a Lawrence County Sheriff's Deputy. Over the course of several interviews for this story, Tony and Ryan told their side of what happened. The Deputy's account of what happened is contained in his written report of his encounter with the two cyclists, and in his later testimony at a hearing before a judge, nearly five months after the events that occurred on that August evening.
Tony and Ryan both say that they saw a Sheriff's car in the parking lot, but did not see anybody in the parking lot. The Deputy had a different story to tell; in both his written report, and his later testimony before a judge, he said that when he first encountered Tony and Ryan, he was approaching them while traveling in the same direction; they were riding two abreast. He noticed that there were two or more vehicles following behind him. He reported following the two cyclists at a speed of about 5-10 miles per hour for about three-fourths of a mile before it was safe to pass them. He later testified that as he passed the cyclists, Tony smiled at him; he testified that he shook his head "no" at Tony, and then, after he had passed the two cyclists, watched in his rearview mirror to see whether the two cyclists went single file, or if the other cars were able to pass despite their riding two abreast. Seeing that neither was the case, he pulled ahead, into the library parking lot, intending to speak to the cyclists because they were "impeding traffic."

The Deputy reported that he got out of his vehicle, and as the cyclists approached, he told Tony to pull over, and that Tony replied "I have got as much right to the road as anyone else," and continued riding towards town. The Deputy reported that he then got back in his cruiser, hit the lights and sirens, and continued to follow the two cyclists, giving commands over his public address system, and "at times out the window."

Tony and Ryan both recall it differently; Ryan recalls that they were riding two abreast, at about 18 - 20 MPH, and had entered the city limits, where the speed limit is 25 MPH. They heard a car approaching; Tony called "car back," and they singled up. As Tony tells it:

"We were riding along, and about 300-400 meters beyond the library, this Sheriff's car suddenly pulled up alongside me and the Deputy rolled down his window and said 'You guys shouldn't be riding in the road.' I responded 'We have as much right to be in the road as you do.'"

Now, this is where it gets a little complicated. In West Virginia, as in many states, the law unequivocally states that, "Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle...." But in Ohio, there is no similar declaration of a cyclist's rights. Ohio law does define a bicycle as a vehicle, however, and so a cyclist has all the rights applicable to other vehicle operators, even if the law doesn't specifically say so. In other words, Tony and Ryan DID have as much right to be in the road as the Deputy, even if it's not explicitly spelled out in the law.
Now, this is where it gets a little complicated. In West Virginia, as in many states, the law unequivocally states that, "Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle...." But in Ohio, there is no similar declaration of a cyclist's rights. Ohio law does define a bicycle as a vehicle, however, and so a cyclist has all the rights applicable to other vehicle operators, even if the law doesn't specifically say so. In other words, Tony and Ryan DID have as much right to be in the road as the Deputy, even if it's not explicitly spelled out in the law.

Nevertheless, despite the fact that under Ohio law the two cyclists had a legal right to the road, Tony and Ryan both claim that the Deputy responded to Tony's assertion of that right by yelling "'Get off the f-king road' several times." Months later, at the hearing, when asked whether he had used profanity during his encounter with the cyclists, the Deputy replied "possibly."

Both Tony and Ryan claim that the Deputy then attempted to force them off the road with his cruiser; As Ryan recalls:

"He was trying to force us off the road with his car, but there was nowhere for us to go. The shoulder was just gravel, and dropped off into a ditch."

Both Tony and Ryan say that to keep from being run off the road, Tony quickly pulled ahead while Ryan braked and fell in behind the cruiser. Ryan says that once he was behind the cruiser, the Deputy slammed on his brakes, but Ryan evaded the imminent crash by riding around the cruiser. As Ryan cleared the cruiser, he says the Deputy opened his door and attempted to body-check him, but missed. Ryan caught up with Tony but, significantly, Tony says that Ryan didn't tell him what had just happened; unaware of what had just transpired, Tony continued riding, with Ryan following behind him. Having failed to run the two cyclists off the road, the Deputy got back in his car, and raced ahead.
Although he never reported or testified that he attempted to run them off the road, the Deputy did testify that:

"At one point, I get in front of them, I tried to put my car up in park to jump out of my car at one of them or something, then they both go around. One goes on this side, the other goes on this side of me. And they continue on up through there."

In his written report, the Deputy stated that he pursued the cyclists for almost a mile, and that:

"On several occasions the subjects stood up and shaked their butts at me taunting me."

Asked about this, Tony confirms that on occasion, they were standing on their pedals, and that the Deputy misinterpreted this as taunting. That misunderstanding aside, the Deputy's observation that the cyclists were standing on their pedals brings into doubt his observation that they were traveling at 5-10 MPH. And in fact, as will be seen, the Deputy's own later testimony would contradict his reported estimation of the cyclists' speed.

According to Tony, after the Deputy failed to force them off the road, he raced ahead to the cyclists, and as he caught up with them, hit his lights; he pulled to their right, in the parking lane, and with a profanity-laced tirade, yelled that the two cyclists were under arrest. Tony asked incredulously "What? What are you talking about?" Despite what he felt was a baffling outburst from the Deputy, Tony says that he wanted to pull over, but the Sheriff's cruiser was between him and the shoulder of the road.

At this point, according to Ryan, the Deputy raced ahead 300 meters, swung his cruiser around sideways across the lane, partway into an auto sales lot, got out, and assumed a firing stance. Ryan claims that as the two cyclists approached, the Deputy yelled out, "Stop, or I'll shoot."

With the Deputy in a shooting stance, the situation was getting dangerously out of control, so Tony says that he and Ryan rode up to the Deputy, intending to stop as he had ordered, "like 'you got me,'" Tony says. They rolled to a stop. At that moment, Tony says, the Deputy fired.
Fortunately for Tony, the officer was holding a taser, and not a gun, as Tony at first believed. Only one of the taser's electrodes hit Tony in the side; he was jolted, but not incapacitated, and he grabbed at it, yanking it out. Ryan was behind Tony now, out of taser range, watching in mounting terror as the incident unfolded. With an air of disbelief at what had just happened, Tony nevertheless maintained his composure, saying:

"Dude, you just shot me with a taser! That was totally uncalled for!"

The deputy had a somewhat different story to tell; he testified that:

"I go around them again, get my car stopped, pull over, get out, pull my Taser out of the car, tell them...to stop or I was going to tase them, and then Mr. Patrick tries to cut through the auto parts or auto sales lot."

According to the Deputy's testimony, he believed that the two cyclists were attempting to cut through the auto lot to get to the bridge and escape to West Virginia.

By now, Tony says he was doing his best to defuse a situation that was rapidly spiraling out of control, but as he explains, the Deputy just kept making the situation worse. Tony says that after the taser had failed to have its desired effect, the Deputy pulled out his telescoping baton, and began swinging at Tony. However, he wasn't having any more luck with his baton than he did with the taser; Tony says the baton failed to open fully, so the Deputy kept flailing away at Tony while trying to grab him and simultaneously attempting to hold up his pants-which were threatening to drop to the ground with each swing. The scene was both comical and deadly serious.

At this point, Tony says that he told the Deputy that he was out of control, and behaving unprofessionally, and that Tony was going to sue. According to Tony, the Deputy, "should have said 'get on the ground,' but he never gave me a chance," so Tony did the only thing he could to protect himself-he raised his bike to block the Deputy's blows, while telling him "You need to calm down." As Tony explains, he wanted to get down on the ground to defuse the situation, but doing so, "would have meant getting the hell beat out of me." Faced with a choice of defending himself or taking a beating, Tony says "the situation didn't call for me to get down."

Again, the Deputy has a somewhat different account of what happened, in his report, he wrote:

"I deployed my Tazer on Anthony Patrick and it had little effect. Both subjects stopped at this point and I gave commands for them to get on the ground. Both subjects did not. I attempted to grab Patrick and he pulled away. He then moved away from me and picked up his bike to try and throw at me or hit me. I pulled my Asp baton and ordered him to put the bike down. At this time he did."
And then things went from bad to worse. Sometime during the altercation the Chesapeake, Ohio police showed up, and as Tony and the Deputy struggled, Tony was tased again, this time, by the Chesapeake police. According to the Deputy's report, the tasing occurred as "Patrick lunged at me," while according to Tony and Ryan, the second tasing occurred as Tony was resisting the Deputy's attempts to beat him. Unlike the first tasing, however, this time, the taser connected; as Tony tells it, "I shoot up on my toes like a ballerina, then fall over like a log." He landed on his right elbow, and hit his head hard enough to crack his helmet. "If I hadn't been wearing my helmet," Tony notes, "I would have cracked my head open."

Ryan says that at this point, with Tony now laying on the ground, the officer tased Tony a third time. In notes he made shortly after the incident, Ryan says that Tony was tased a total of five times by Chesapeake Police officers; Tony says we was tased "repeatedly." The Deputy's report states that:

"He went to the ground and we kept giving him commands to stay down and he tried to get up and he was Tazed for the second time. He finally became compliant and he was handcuffed."

Meanwhile, Ryan had been waiting quietly nearby, watching the entire surreal scene play out before him; now, as the officers were tasing and cuffing Tony, Ryan tried to call his mother to let her know what was going on. As he was making the call, somebody shouted "Watch out for the other guy!" Taking heed of that warning, one officer kicked the phone out of Ryan's hand, just as he connected with his mother; the phone went flying, and shattered when it hit the pavement. The officer then slammed Ryan face-first to the ground and handcuffed him.

At the other end of the connection, Ryan's mother heard him say, "Mom!...Mom!..." and the sound of sirens in the background, and then the impact of the phone hitting the pavement, before it shattered and the connection went dead. Not knowing what had happened, Ryan says she was absolutely terrified by the call.

Meanwhile, back at the arrest scene, Ryan complained that his handcuffs were too tight; he says that one of the officers remarked, "You should have thought of that before being a smart ass." That seemed to be a common theme with the officers. As Tony recalls, the law enforcement officers were "extremely unprofessional," making repeated remarks about "smart asses." Tony says that he informed them that he would be suing, and one of the officers responded, "We'll see who gets sued."
Tony was then taken to the Lawrence County Sheriff's Office for processing, but when Ryan informed the officers that he was 16, they took him to the Chesapeake Police Department, and removed the handcuffs once he was there. It is still unclear why they didn't book him in Lawrence County's office.

According to both Tony and Ryan, their bikes--Tony rides a $7,500 Specialized Tarmac SL, Ryan rides a $6,000 AeroCat--were left behind on the pavement by the departing officers. Despite these allegations of a total lack of care taken by the law enforcement officers involved, the bikes weren't stolen; a bystander who recognized Tony called a mutual friend, and the friend came and got the bikes, and then went to the police station where Ryan was being held. Ryan's parents showed up soon after.

Needless to say, they were furious about what had happened to their son, so, according to Tony, the Deputy took it upon himself to lecture Ryan's parents about their son:

"Let me tell you what your son is about. I'm on my way to a burglary, and these guys were impeding me from getting there."

Let that sink in for a moment. The Deputy was on his way to a burglary, but he had time to tase and beat a cyclist because he was "impeding" the Deputy by riding on the road? That lecture didn't make sense to Ryan's parents, but the Deputy clarified his statement, explaining that he was on his way to investigate a burglary that had been called in hours before, when he was impeded by Tony and Ryan. There were still a few problems with that story, however.

First, regardless of whether one believes the Deputy's report and testimony, or Tony's and Ryan's accounts, both sides agree that the Deputy pulled up alongside them to express his opinion that they should not be riding in the road. If they were impeding him, how was he able to pull up alongside them? And if he passed them, as he claims, in what way were they impeding him from getting to the burglary investigation?

Second, in Ohio, cyclists cannot be in violation of the impeding traffic statute if they are traveling as fast as they reasonably can. This principle was first established in a 2001 Ohio case called Trotwood v. Selz, and was subsequently codified into Ohio law in 2006, with the addition of a provision that:

"The [judge or jury], in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator."
Thus, by the time the Deputy decided to stop Tony and Ryan for impeding traffic, it had been well-established in Ohio that cyclists who are traveling at a reasonable speed cannot be cited for impeding traffic. Although the Deputy would later refer to Trotwood v. Selz during his testimony, indicating that he had finally been brought up to speed on Ohio law-by a prosecutor, in all likelihood-it was apparent on the day of the arrests that the Deputy was completely unfamiliar with the law as it applies to bicycles, and in fact, he admitted this in his later testimony:

"Before this case I was not very familiar with bicycles and just the controversy between the bicycle situation and the thing and I've researched it and stuff and, you know, from what I can gather, as long as they are traveling the speed limit and they're not impeding traffic, there's not traffic behind them, then they wouldn't be impeding traffic or if the cars can safely pass them, then they wouldn't be impeding traffic, and in the case of up north of Troutwood [sic] it actually goes to the point that the judge is the one to determine who was-whether or not a bicycle was impeding traffic. So I guess it's a-you would normally just write a ticket and the judge would decide if they was impeding traffic. I don't know."

It's important at this point to note that even at the hearing, after he had done his legal research, the Deputy STILL had the law wrong. In Ohio, it doesn't matter if cyclists "are traveling the speed limit," or "if they're not impeding traffic," or "if the cars can safely pass them." Not one of those conditions the Deputy addressed is the law in Ohio-in fact, the entire point of the Trotwood v. Selz case, and subsequent changes to the Ohio code, is that the conditions the Deputy cites have no bearing in any case of a cyclist or cyclists impeding traffic. The only legal metric is whether the rider(s) is/are traveling at a reasonable speed for a cyclist.

Back on the night of Ryan's booking, Tony says that the Deputy informed Ryan's parents that he didn't know what he was going to charge Ryan with, but he had to charge him with something, so he sat down with a copy of the code book and looked for the appropriate statute. For the next 30 minutes, the Deputy searched for something to charge Ryan with, but couldn't find anything.
Eventually, he settled on a pair of charges. First, he charged Ryan with "Operating a bike on the roadway." He also charged Ryan with "Failure to comply with an order." As the Deputy later explained in his testimony, the problem was that he wanted to charge the two riders with impeding traffic, but couldn't find the appropriate law for a bike. This was because he didn't understand that cyclists are subject to the same laws as other vehicle operators, and therefore, if they were impeding traffic, they should have been charged with impeding traffic. Instead, the Deputy believed that the law required cyclists to obey all traffic rules applicable to vehicles, and that busting Ryan for "Operating a bike on the roadway" covered violations of other laws, like impeding traffic. Ryan says that two weeks later, the prosecutor added an "impeding traffic" charge to cover the violation that the Deputy thought Ryan had committed.

Meanwhile, at the Lawrence County Sheriff's Office, Tony was also charged with "Operating a bike on the roadway"; he says that later, as the prosecutor did with Ryan, an additional charge of "impeding traffic" was added. Due to the circumstances surrounding the arrest Tony was also charged with failure to comply with an order, resisting arrest, attempted assault on an officer and obstructing official business.

Ryan says that as his trial date approached, the prosecutor offered him a deal--testify against Tony, and the charges against Ryan would be dropped. Ryan says that he refused to save himself by "throwing Tony under the bus," as he puts it. So, with the case against Ryan scheduled to go to trial, Ryan's attorney filed a motion to dismiss the charges. Tony's attorney did the same.

In its decision following the hearing on the motion to dismiss Tony's charges, the Court began by noting that the state had the burden of proving that the arrest was consistent with the 4th Amendment, but that the state must only meet that burden by a "preponderance of the evidence," rather than the higher "beyond a reasonable doubt" standard. This means that the state would simply have to prove that it was more likely than not that the arrest was consistent with the 4th Amendment; this is the easiest burden of proof.

The central question was whether Tony had been impeding traffic. If the state proved that it was more likely than not that Tony had been impeding traffic, then the order to pull over was lawful, and the arrest for failure to comply with that order was also lawful; if that was the case, the charges would not be dismissed. On the other hand, if the state failed to prove that Tony had been impeding traffic, then the order to pull over was not lawful, and the subsequent arrest for failure to comply was also not lawful, and the charges would be dismissed.

This meant that the prosecution had to show that Tony was riding at a speed that was unreasonably slow for a cyclist--a task that proved impossible, once the Deputy testified that he estimated the cyclists' speed at 15-20 MPH, but didn't really know how fast they were going, and admitted that he didn't know what the speed limit on that road is, within the city limits. There was simply no evidence that the cyclists had ever impeded traffic, and thus, the Deputy had no reason to stop the cyclists, and they could not be charged with failure to comply with his orders. The charges were dismissed.

Later, at the hearing on the motion to dismiss the charges against Ryan, the prosecutor was once again unable to prove the impeding traffic charge, and the Court reached the same decision that it reached following Tony's hearing, dismissing the charges against Ryan.
Now, although these issues are behind Tony and Ryan, for the rest of us, two issues arising from this incident still remain. First, there's a widely-held perception that if a law enforcement officer tells you to pull over, you are required by law to comply with that order, even if the order itself is unlawful. Second, what should cyclists who find themselves in similar situations do?

The first issue--whether cyclists must obey the orders of law enforcement officers--was central to the "motion to dismiss" hearings for Tony and Ryan. As the Court held, if the cyclist hasn't broken a traffic law, then the cyclist can't be lawfully arrested, and the order to pull over is itself unlawful. Therefore, if the order is unlawful, the cyclist is not required to obey the order, and can't be arrested for failure to comply. Now, this is the law in Ohio, but it is based on 4th Amendment jurisprudence, so the jurisprudence in other states should be similar. If somebody knows of contradictory 4th Amendment jurisprudence in another state, please let me know.

Those legal points aside, there's another point to consider here: Were Tony and Ryan ever actually ordered to pull over? The Deputy has testified that he ordered them to pull over, but Tony and Ryan tell a different story; according to Tony and Ryan, the Deputy told them (1) "You guys shouldn't be riding in the road; (2) "Get off the f-cking road"; (3) "You're under arrest"; and (4) "Stop or I'll shoot." If no order was given, at what point should they have pulled over? When they were told they shouldn't be riding in the road? When they were told to get off the road? If they did get off the road, as ordered, what does that say about their right to the road? Certainly, one could make the argument that, as a practical matter and all legalities aside, they should have pulled over when they were told they were under arrest, but as Tony explains, at that point, they weren't given a chance to pull over.
And that brings us to our second issue-what should cyclists who find themselves in similar situations do? That's not an easy question to answer. In Bicycling & the Law, I wrote that:

"Gaining the right to the road was the cycling cause of the late nineteenth century; securing that right will be the cycling cause of the early twenty-first century."

What happened to Tony and Ryan from the moment the Deputy first decided to say something to them is a real-world example of the challenge cyclists face in securing their right to the road. For most of us, I suspect it's easier to just quietly comply with a law enforcement officer's misguided attempts to enforce laws that don't exist. Sure, we know the officer is wrong, but do we really want to go to jail to make that point, instead of wherever it is we happen to be going at that moment?

The problem is, if everybody acquiesces to a violation of our rights, do we still have the right? I would argue that unless the right is exercised, it doesn't exist. Therefore, when a law enforcement officer is enforcing laws that don't exist, it is incumbent upon us to stand up for our rights.

But how do we do that without triggering a beatdown and a trip to jail? I think it will depend upon finding a middle way between disobeying an officer's order and acquiescing to a violation of your rights. On the one hand, cyclists shouldn't think that the lesson from Tony and Ryan's experience is that cyclists can make an on-the-spot decision as to whether an order is lawful or not, and thus, whether or not an order should be obeyed. As we saw with Tony and Ryan, if an officer believes that you are not complying with his orders, that can have potentially deadly results, even though the officer is wrong. On the other hand, cyclists shouldn't have to quietly acquiesce to violations of their rights by law enforcement. Hopefully, law enforcement officers will familiarize themselves with the laws they are enforcing, and if they are unsure of the law, have the humility to simply accept that they don't know what the law is-and then educate themselves on what the law actually is, before attempting to enforce something that may not, in fact, be the law. Likewise, cyclists can choose that middle way between acquiescence and disobeying an order, by stopping when asked, but standing up for their rights, respectfully but firmly, and accepting that the price of defending our right to the road may mean accepting a citation now and beating it in court later.

Now, as I said at the beginning of this story, Tony called me because he was looking for a lawyer; true to his word, he intended to sue the arresting officers. And as I said, I hooked him up with Steve Magas, a well-known Ohio bicycle attorney. Among Steve's many accomplishments in the practice of law, he was the attorney representing cyclist Steve Selz, in the Trotwood v. Selz case that established that Ohio cyclists cannot be in violation of the impeding traffic statute if they are traveling at a reasonable speed for a cyclist. He was also instrumental in getting Ohio's "Better Bicycling Bill" passed; this was the bill that, among other things, codified the Trotwood v. Selz ruling into the "impeding traffic" statute. Steve has agreed to take Tony's case, and is currently awaiting a response while investigating a civil action in the case. With Steve's background in establishing cyclists' right to the road in Ohio, the case promises to be "arresting."
(Research and drafting provided by Rick Bernardi, J.D.)
Thanks to Digby


Javed Iqbal, a local satellite TV entrepreneur, provided consumers in the NY area with access to over 180 global TV channels including porn, Christian bible shows, wrestling and Al Manar, a TV propaganda outlet for Hezbollah. This last, according to a federal district court, makes him a material supporter of terrorism.

The NY Times reports

Staten Island businessman was sentenced Thursday to nearly six years in prison for assisting terrorists by providing satellite television services to Hezbollah's television station, Al Manar.

The businessman, Javed Iqbal, 45, said in a statement read by his lawyer in Federal District Court in Manhattan that he was "deeply sorry" for what he called a mistake that hurt him "financially, emotionally and physically."

"I have not harmed anyone in my whole life," he said in the statement to Judge Richard M. Berman, who sentenced him to 69 months.

Mr. Iqbal, who emigrated to the United States from Pakistan as a teenager, ran his business from a Brooklyn storefront and the garage of his home in Mariners Harbor, Staten Island, which had satellite dishes in the backyard. The United States Treasury Department has designated Al Manar -- "the beacon" in Arabic -- a global terrorist entity.

Mr. Iqbal's lawyer, Joshua L. Dratel, had earlier argued that prosecution of his client for providing satellite TV services violated his First Amendment rights, but Judge Berman rejected that view, ruling that the prosecution was based not on the content of speech but on conduct -- allegations that he provided material support to a foreign terrorist group.

Although Mr. Iqbal faced up to 15 years in prison, he and the government agreed in a plea deal that a term of about five to six and a half years would be reasonable. He pleaded guilty to a single count in December.

In court, Mr. Dratel asked for the lowest end of that range, saying that his client's conduct was not the product of ideological support for Hezbollah and was a "discrete and narrow aspect of an otherwise legitimate" business.

He said Mr. Iqbal's business had offered a variety of programming, including Christian broadcasting and adult entertainment, which he said was "180 degrees from Islamic fundamentalism."

But a federal prosecutor, Eric Snyder, disagreed, calling Hezbollah a "sophisticated terrorist organization in all respects," which had used its 24-hour channel to recruit members and suicide bombers and to raise money for weapons and operations.

"He was, in a very real sense, Hezbollah's man in New York City," Mr. Snyder said.

The United States has designated Hezbollah a foreign terrorist organization.

"He did all this," Mr. Snyder said, "to bring the Hezbollah operations to our shores, to allow Hezbollah to have their operations here in New York City. That's a very dangerous thing. That's what this crime is about."


CCSC Does it Again

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Connecticut State College where, you may recall, a few months ago a conservative student got reported for daring to write a paper arguing in favor of gun free zones on campus, now  as  an equal opportunity denier of first amendment rights, witnesses another travesty, the removal of an opinion page editor for expressing the wrong, in this case pro-socialist and anti-Israeli, opinions.

Marissa Blaszko (the editor in question) writes:

On January 15, 2009, following a Recorder staff-training meeting, I was taken aside to meet with the paper's Editor-in-Chief, Melissa Traynor, and Managing Editor, Peter Collin. They informed me that they were aware I had been involved in recent demonstrations against the Israeli invasion of Gaza and told me that my involvement was a "conflict of interest." I was allowed to leave the office without being fired, but it was made clear that my activity outside of the paper was being watched. Less than a week later, I met with the paper's advisor, Dr. Vivian Martin, who then spoke to the editor-in-chief; I got a phone call later from the editor, saying she hadn't meant to threaten my job.


Nothing else was said about the incident until Tuesday, March 10, when the same two editors called me into the office once more. The conversation was almost identical to the first--the difference, however, was that this time I was asked outright to choose between my involvement with the Youth for Socialist Action or The Recorder. In addition, if I chose to stay with The Recorder, I would be limited to writing about only campus issues. My personal beliefs were not at issue, they claimed, but that I had acted on those beliefs. I was accused of using the Recorder as a "soap box" for my socialist beliefs, and that my voice and opinion was too consistent. I asked to have some time to think about the decision, and left the office.


Once again, I met with the advisor, along with Sue Sweeney, Assistant Director of Student Affairs. Again, I was assured that the paper could not present me with this ultimatum.


At this point, it should be noted that I had been the Opinion Editor for over a semester. Even before being hired by the Recorder, I gave full disclosure of my socialist politics--as well as my involvement in antiwar and human rights organizing--to the editor-in-chief, as well as the advisor. Since giving this disclosure, I was baited by both the staff and the advisor, for being a "communist," drinking Starbucks, and not being a "good little socialist." Previous to this admission, however, the editor-in-chief told me explicitly that I would be allowed to write about anything. "We like anything- topics that are important to the students, CCSU, the nation, whatever and then narrow something down to the point where we have a unified stance and you can write it from there," the editor-in-chief said in the email informing me that I was their top choice for the position. All of the articles I had written for the section up until that point were national, political, and obviously left-leaning, but nothing had been said about it.


Within 24hrs of being given my ultimatum, the editor-in-chief had called an "emergency meeting" scheduled for Wednesday, March 11 at 6:00pm. Upon arriving at the meeting however, I realized that the lock codes had been changed to deny me entry. The editor-in-chief promptly walked up to the door and invited me in, making it clear that the meeting had been canceled, and that she wanted to meet for a third time with only the managing editor and me. Given the circumstances, however, I declined the offer and left.


As a voting member of the editorial board, I decided to take action at the next regular meeting of the Recorder, Sunday, March 25. I submitted two amendments to the paper's constitution--one stating that "political, religious, or personal affiliations or beliefs" were not grounds for hiring or firing at the paper, and the other stating that any hiring or firing of paid positions should be voted upon by the members of the paper, instead of by appointment from the editor-in-chief. The staff made it clear that both were unwelcome, and I was asked to leave the meeting after being told that I had been fired sometime during the course of the past few days. I had never been informed of that action.


After being sent an email from the editor-in-chief stating that, "I have decided that I am not going to submit to you or anyone else a written statement from The Recorder detailing your being removed from office," Sue Sweeney initiated a meeting that would force the paper to give me due process, as well as the opportunity for me to formally state my opposition to the decision.


This time, the reasons for my now "multifaceted" firing had been changed dramatically. I hadn't been doing my job, the editor-in-chief told me. My work wasn't up to their standards, I didn't lead enough editorial board meetings and I wasn't attending the weekly self-critiques. In closing, the editor-in-chief commented that it wasn't that my political affiliations were a conflict of interest, but that they had the chance of becoming one. In addition, staff members and section editors accused me of wasting their time to challenge the decision to remove me; attempting to get prior review of a news article written about the YSA; claiming to represent the paper at antiwar events; and having a "radical liberal agenda"--all of which, I pointed out in the meeting, are false charges. They ultimately upheld my removal.


Controversy regarding free speech and the Recorder, as much of campus knows, is not new. Unfortunately, that controversy is now being used to justify censoring writers. The paper's code of conduct--which admits in the editor's note that "much of what was put into this code of ethics was based on experiences at the newspaper in 2007"--has institutionalized censorship. One example that resulted from this code includes: "Editors of The Recorder shall not participate in any form of student, local or national government and should be free of any ties to any political organization, campus-based or otherwise. Participation in government or political organizations may give off a false sense of favoritism that would harm the credibility of the newspaper."


This unconstitutional and undemocratic provision has allowed the past three editors to systematically exclude writers with differing political views. PRIDE Vice-President Erin McAuliffe was denied a promotion after refusing to support an editorial attacking the club; Progressive Student Alliance members Kari and Wes were both marginalized and censored while working as writers for the paper.


The double standards are obvious. College Republican Shauna Simone--my assistant editor, who now holds my title--was offered a conservative column; when I asked if I would get a socialist column, the idea was quickly dropped. Green Party National Committee Representative Tim McKee was allowed to publish a "special to the Recorder" article on former Green Party presidential nominee Cynthia McKinney's visit to Central; an article I submitted to the next issue about Framing of Mumia Abu-Jamal author John O'Connor's visit to campus, was never published. Although staff writer Joe Zajac was involved with the Anonymous protests against Scientology and has been able to publish multiple articles attacking that institution, it was made clear to me that articles on Iraq, Afghanistan, or Gaza written by me were not welcome.


For the record, there has only been one article about socialism printed by the Recorder during my tenure as Opinion Editor, and it was written as a Q&A by the editor-in-chief after the senate candidate from the Socialist Workers Party paid an unannounced visit to our office. I had no prior knowledge of the visit, though I was accused of "setting up" the editor-in-chief.

The actions I am willing to take in order to fight my removal are not against the Recorder, but against its undemocratic and unconstitutional policies. For students, an independent, democratic, and uncensored publication is a necessity. But at the Recorder, although the editor-in-chief is voted in, he or she has the power to refuse to publish writers' articles, thus stripping them of their ability to vote. The fundamental right of students to democratically run their paper is weak at best, as the editor-in-chief is then allowed to make almost every decision pertaining to the paper.


I challenge the Recorder and the Media Board to not only reinstate me, but to strike down the previous decisions that led to my unjust removal. First, to state--in the Recorder's constitution--that discrimination based on any aspect of a student's life will not be tolerated. This should include, but not be limited to, political and religious beliefs or affiliation, gender, sexual orientation, race, or nationality. Second, to grant full democratic control of the paper to its members--a student who, as defined in the constitution, "devote a minimum of one hour of journalistic participation per weekly publication; for at least one month." This would mean obtaining a 2/3 majority vote for the hiring or firing of any paid staff members; a democratic appeal process that members could use to settle disputes fairly; and the ability of the members to remove an editor-in-chief during the semester.


It is my goal to present Central students with a way to make The Recorder the voice of our university, instead of the voice of a few. Together with students of color, the GLBT community, independent women, progressive students, interfaith groups and all other groups that have been either censored or excluded by our student newspaper, there is no reason we cannot use this opportunity to strengthen our freedom of speech on campus.



Thanks to the National coalition on censorship blog
From the that's what they always say dept.  The FBI, in one of those subtle bombshell stories that get leaked for the sleepy Saturday editions, gets set to radically escalate its library of DNA material, collecting nearly 2000% more genetic samples to store, including, no longer just convicted violent felons, but those convicted of non-violent crimes, petty offenders and, but of course none dare call it mission creep, immigrant detainees, and people arrested but not convicted.

The NY Times reports:
Law enforcement officials are vastly expanding their collection of DNA to include millions more people who have been arrested or detained but not yet convicted. The move, intended to help solve more crimes, is raising concerns about the privacy of petty offenders and people who are presumed innocent.

Until now, the federal government genetically tracked only convicts. But starting this month, the Federal Bureau of Investigation will join 15 states that collect DNA samples from those awaiting trial and will also collect DNA from detained immigrants -- the vanguard of a growing class of genetic registrants.

The F.B.I., with a DNA database of 6.7 million profiles, expects to accelerate its rate of growth from 80,000 new entries a year to 1.2 million by 2012 -- a 17-fold increase. F.B.I. officials say they expect DNA processing backlogs -- which now stand at more than 500,000 cases -- to increase.

Law enforcement officials say that expanding the DNA databanks to include legally innocent people will help solve more violent crimes. They point out that DNA has helped convict thousands of criminals and has exonerated more than 200 wrongfully convicted people.

But criminal justice experts cite Fourth Amendment privacy concerns and worry that the nation is becoming a genetic surveillance society.

"DNA databases were built initially to deal with violent sexual crimes and homicides -- a very limited number of crimes," said Harry Levine, a professor of sociology at City University of New York who studies policing trends. "Over time more and more crimes of decreasing severity have been added to the database. Cops and prosecutors like it because it gives everybody more information and creates a new suspect pool."

Courts have generally upheld laws authorizing compulsory collection of DNA from convicts and ex-convicts under supervised release, on the grounds that criminal acts diminish privacy rights.

DNA extraction upon arrest potentially erodes that argument, a recent Congressional study found. "Courts have not fully considered legal implications of recent extensions of DNA-collection to people whom the government has arrested but not tried or convicted," the report said.

Minors are required to provide DNA samples in 35 states upon conviction, and in some states upon arrest. Three juvenile suspects in November filed the only current constitutional challenge against taking DNA at the time of arrest. The judge temporarily stopped DNA collection from the three youths, and the case is continuing.

Sixteen states now take DNA from some who have been found guilty of misdemeanors. In South Carolina in 2007, a court ordered a DNA sample to be taken from a man found guilty of loitering for the purpose of prostitution.

As more police agencies take DNA for a greater variety of lesser and suspected crimes, civil rights advocates say the government's power is becoming too broadly applied. "What we object to -- and what the Constitution prohibits -- is the indiscriminate taking of DNA for things like writing an insufficient funds check, shoplifting, drug convictions and other cases where police don't have a need to obtain DNA because it's not relevant to charges facing them," said Michael Risher, a lawyer for the American Civil Liberties Union.

This year, California began taking DNA upon arrest and expects to nearly double the growth rate of its database, to 390,000 profiles a year from 200,000.

One of those was Brian Roberts, 29, who was awaiting trial for methamphetamine possession. Inside the huge Twin Towers Correctional Facility in Los Angeles last month, Mr. Roberts let a sheriff's deputy swab the inside of his cheek.

Mr. Roberts's DNA will be translated into a numerical sequence at the F.B.I.'s DNA database, the largest in the world.

The system will search for matches between Mr. Roberts's DNA and other profiles every Monday, from now into the indeterminate future -- until one day, perhaps decades hence, Mr. Roberts might leave a drop of blood or semen at some crime scene.

Law enforcement officials say that DNA extraction upon arrest is no different than fingerprinting at routine bookings and that states purge profiles after people are cleared of suspicion. In practice, a number of defense lawyers say this is a laborious process that often involves a court order. (The F.B.I. says it has never received a request to purge a profile from its own database.)

When DNA is taken in error, expunging a profile can be just as difficult. In Pennsylvania, where DNA cannot be taken from juveniles for misdemeanors, Ellyn Sapper, a Philadelphia public defender, has spent weeks trying to expunge the profile of a 14-year-old boy guilty of assault and bicycle theft -- his first misdemeanor. "I'm going to have to get a judge's order to make sure that all references to his DNA are gone," she said.

The police say that the potential hazards of genetic surveillance are worth it because it solves crimes and because DNA is more accurate than other physical evidence. "I've watched women go from mug-book to mug-book looking for the man who raped her," said Mitch Morrissey, the Denver district attorney and an advocate for more expansive DNA sampling. "It saves women's lives."

Mr. Morrissey pointed to Britain, which has fewer privacy protections than the United States and has been taking DNA upon arrest for years. It has a population of 61 million -- and 4.5 million DNA profiles. "What you find is that about 8 percent of the people commit about 70 percent of your crimes, so if you can get the majority of that community, you don't have to do more than that," he said.

In the United States, 8 percent of the population would be roughly 24 million people.

Britain may provide a window into America's genetic surveillance future: As of March 2008, 857,000 people in the British database, or about one-fifth, have no current criminal record. In December, the European Court of Human Rights ruled that Britain's practice of collecting DNA profiles from innocent people, including children as young as 10, violated international privacy protections.

Critics are also disturbed by the demographics of DNA databases, and again Britain's example is instructive. According to a House of Commons report, 27 percent of black people and 42 percent of all black males are genetically registered, compared with 6 percent of white people.

As in Britain, expanding genetic sampling in the United States could exacerbate racial disparities in the criminal justice system, according to Hank Greely, a Stanford University Law School professor who studies the intersection of genetics, policing and race. Mr. Greely estimated that African-Americans, who are about 12 percent of the national population, currently make up 40 percent of the DNA profiles in the federal database, reflective of their prison population. He also expects Latinos, who are about 13 percent of the population and committed 40 percent of last year's federal offenses -- nearly half of them immigration crimes, including illegal entry -- to dominate DNA databases.

Enforcement officials contend that DNA is blind to race. Federal profiles include little more information than the DNA sequence and the referring police agency. Subjects' names are usually kept by investigators.

Rock Harmon, a former prosecutor for Alameda County, Calif., and an adviser to crime laboratories, said DNA demographics reflected the criminal population. Even if an innocent man's DNA was included in a genetic database, he said, it would come to nothing without a crime scene sample to match it. "If you haven't done anything wrong, you have nothing to fear," he said.





Song of the Open road

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Baptist pastor's account on youtube of a leisurely sojourn on an Arizona highway, inside of a hundred miles from the border (where it's constitution free, you see), and how he was stopped  tasered and shoved in glass.. for... well, seeming suspicious... like he may have drugs or a body hidden in his car. Eleven stitches later Arizona Dept. of Public Safety searches car and discovers, nothing. 

You tube account here

Thanks to jgodsey

Don't Mention Cat Shit in Texas City

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Texas City, Texas man gets ticketed for complaining to his neighbor about his neighbor's cat shit on his lawn.

Houston.com reports

Joseph Loflin said he found cat poop in his lawn.  He suspected the neighbor's cat was responsible. The former police officer told the neighbor. "'Your cat has been back there defecating in my back yard,'" Loflin said he told his neighbor. "I used the slang word, the four-letter word to describe what the cat was doing." "He said, 'Well, I'm getting tired of cleaning up the cat mess out of my back yard," neighbor Michael Rainey said Loflin told him. Both men agree that Loflin used the "s" word. Rainey said his 13-year-old daughter was nearby. "I said, 'Look, I've asked you twice. This is the third time. Don't use that language in front of my daughter,'" Rainey said he told Loflin. "That's when he responded, 'There's nothing wrong with the word, and if I want to use the word, I'll use the word.'" The men live two doors apart and have different versions of the story. "I didn't call him a filthy name," Loflin said. "I didn't call him ... I didn't use any profanity towards him.  I used it as a noun, then I used it as an adverb to describe what his cat was doing.  I think it was greatly taken out of context." After Loflin threatened to get a trap, Rainey called the police.  The police wrote Loflin a ticket for disorderly conduct because of language.  Loflin is fighting the ticket. He is scheduled to go to court on April 22.
Thanks to jgodsey
Police say handling of sit-in arrests was done in an orderly fashion, but witnesses say students were prevented from leaving building, with exits barricaded, as cops sprayed gas into corridors.

The NY Times reports:

Scores of police officers wearing helmets and carrying riot gear stormed a New School building at 65 Fifth Avenue around 11 a.m. Friday, arresting 19 protesters who had occupied the building as part a determined protest aimed at the university's president, Bob Kerrey.

"The Police Department was asked to arrest individuals trespassing on the property," said Paul J. Browne, the department's chief spokesman, who said the operation "was done in a very organized, orderly fashion."

However, students at the scene described a tumultuous situation in which protesters were pepper-sprayed before being placed in handcuffs and loaded by police officers into the back of a white van, around 11:30 a.m. Mr. Browne said it was "untrue that pepper spray or mace were used in effectuating the arrests."

Witnesses said that the protesters had sought to leave the building by a side door, but were pushed back and pepper-sprayed. The witnesses said that several students pushed open a door that exited onto 14th Street, and that police officers stationed outside that door applied pepper spray onto the students in the corridor and slammed the door shut.

"The students tried to open the door," said Kristina Monllos, a sophomore at Eugene Lang College, part of the New School, and a reporter covering the scene for the New School Free Press. "When the students pushed the door open, the police sprayed pepper spray inside and pushed the door closed."

Mr. Browne, however, said that if some students believed they were unable to leave, it might have been because they had used a chain to lock themselves inside, which officers then had to cut through.

A videotape shot by a freelancer, Brandon Jourdan, showed about half a dozen police officers standing near the door on 14th Street when it was pushed open from inside. The footage then shows officers shaking cans of pepper spray as they hold the door back, spraying inside the corridor, and then slamming the door shut. The footage showed an officer, a few moments later, lunging toward Mr. Jourdan's camera, before swerving toward a young man standing on the street shouting. In the footage, the officer pushed the man's face and knocked him to the ground before arresting him.

Told about the video, Mr. Browne asked to see the footage.

As senior police officials, firefighters and emergency medical technicians looked on, the police officers surged into the building around 11 a.m., carrying bunches of white plastic handcuffs attached to their belts. Moments later, several were seen leaning over the parapet; the banners that the three dozen or so students occupying the building had hung were removed.

"The New School contacted the Police Department and asked us to eject these individuals for trespassing," said Mr. Browne.

He said the New School had asked the Police Department "to arrest the individuals who had trespassed there." Whoever stole the radio might also face robbery charges, he said.

Officers from the Emergency Service Unit cut the chains and then officers from the Manhattan South Task Force entered the building around 11 a.m., and "began to make arrests in an orderly fashion," Mr. Browne said. He added: "Reports that the police used tear gas or mace are false."

He did not, however, immediately address the use of the pepper spray.

Mr. Browne said that the 19 people arrested -- 15 men and 4 women -- were to be charged with trespassing; he could not immediately say if they were New School students or not.

The students had occupied the building around 5:30 a.m., planning to stage a takeover similar to one carried out at the university in December. A graduate student who spoke to a reporter at 5:55 a.m. from the outside of the building said, "The students just entered the building, and the police are already here."

Mr. Browne, the police spokesman, said the people who occupied the building ejected a maintenance worker, stole his radio and chained the doors locked.

Around 7 a.m. several dozen students, standing on the sidewalk on Fifth Avenue, erupted into cheers when several masked people appeared on the roof of 65 Fifth Avenue, waving red and black flags and lifting clenched fists in the air. The students on the roof, draped banners over the side of the building that read, "Kerrey and Murtha resign now!"

Police officers were already on hand, and as the morning went on, the numbers increased until dozens of officers stood on all sides of the building and the streets surrounding the building held mazes of metal barricades and yellow police tape. Students on the sidewalks outside the building said they were members of various groups -- all of whom were disgruntled with the administration.

A woman who identified herself as Alex Johnson, a fourth-year politics major, said she was a spokeswoman for the students inside, and spoke to a reporter by phone from what she said was an undisclosed location. Asked how long the students intended to remain inside the building she said, "As long as they can."

Asked what it would take to make the students to leave voluntarily, she replied, "It would take Kerrey and Murtha resigning."

Among the students watching from across the street was Andy Folk, 21, a junior at Eugene Lang College, studying fiction and philosophy. "I'm here to show solidarity and support," he said. "We and much of the faculty continue to have no confidence in Bob Kerrey." Mr Folk added that he thought Mr. Kerrey wanted to soften the radical legacy of the school.

As senior police officers and fire official arrived on the scene the masked students on the roof used a megaphone to address the crowd below. One of the masked figures read a lengthy critique of capitalism and contemporary life, which a student below identified as an essay, "On the Poverty of Student Life," that originated at the University of Strasbourg.

By 10:30, the part of Fifth Avenue below 14th Street, as well as adjoining side streets, were filled with city vehicles. There were police vans, an emergency services unit truck and a mobile fire department command center and fire department ambulance. Paramedics stood at the ready and police officers, holding what appeared to building plans, huddled together.

A group of police officers, one holding a sledge hammer, then walked toward the building.

Elsewhere, tensions rose shortly before 11, when a crowd of people rallying in support of the students dashed east on 14th Street, pursued by police. Police officers and about 40 protesters faced off on the south side of 14th street. A line of officers advanced toward the protesters, who retreated towards Union Square, some shouting at the officers.

At the same time, on Fifth Avenue, about 70 police officers wearing visor helmets and carrying long plastic shields lined up in front of the main entrance to 65 Fifth Avenue. An officer made a announcement through a megaphone that police officials said was designed to let students know that officers were about to enter the school.

Other officers on horseback patrolled surrounding blocks where, by 11 a.m., more than 100 police vehicles were parked.

The December takeover lasted about 30 hours. Then, students barricaded themselves inside a ground-floor cafeteria at the building, protesting a host of issues, many connected to the administration of the university's president, Bob Kerrey.

The students adopted a list of eight demands including a greater student voice in university affairs and the resignations of Mr. Kerrey, a former senator from Nebraska; James Murtha, the executive vice president; and Robert Millard, treasurer of the board of trustees, who students said was connected to a private security company working in Iraq.

That action ended after negotiations, but a students group calling itself the New School in Exile promised further disruptions if Mr. Kerrey did not accede to their demand to resign by April 1.

"With their demand still unmet as of this date, students have once again reclaimed this neglected, symbolic building which housed the New School for Social Research," student organizers said in a news release on Friday. "On the 75th anniversary of the University in Exile, New School students are reclaiming the tradition of protest and political action that birthed the university and gave it meaning for generations to come."

Thanks to Injustice in Seattle Twitter feed
David Schultz, a reporter for WAMU 88.5, the local NPR affiliate, stopped from interviewing patient after public forum.

the reporter's committee for freedom of the press reports

A Washington D.C.-based radio reporter says his audio storage device was inappropriately confiscated Tuesday by Veterans Affairs officials after he interviewed a patient at a VA Medical Center forum.

VA officials claim they intervened after the reporter "took advantage" of the patient, who was undergoing medical treatment.

David Schultz, a reporter for WAMU 88.5, the local NPR affiliate, told the Reporters Committee he was covering a town hall forum on minority veterans' issues at the D.C. hospital after learning of the event through a press release. Soon after he entered the event, Schultz claimed, a VA public affairs official said he would need a release waiver from his interview subjects if he wanted to interview any forum attendees.

Katie Roberts, a spokeswoman for the Department of Veterans Affairs, said Schultz refused to listen to the VA officials' request for a signed waiver. By conducting an interview without a consent form, she said, the reporter violated the medical patient's privacy.

After hearing a certain patient speak at the event, Schultz said he approached him for an interview. Their talk was interrupted by a VA employee, who asked Schultz to hand over the sound card containing the interview. The journalist says he told the employee that the patient had a right to speak with the media, but the official summoned uniformed officers to step in. Neither Schultz nor the VA could say for sure what agency or department the officers represented.

Schultz said he called his editor, who advised him to turn over the sound card and take the rest of his recording equipment. But the VA employees demanded the reporter turn over all of his equipment, including a microphone, headphones and digital recorder, he said.  In the end, Schultz said, after negotiating with the officials, he handed over the sound card "under the impression [he] was going to get the card back that night."

At one point, an officer approached Schultz and told him he would not be prosecuted if he left the hospital grounds and was in fact free to go. Schultz said he was waiting at that point to see if he would get the sound card back.

Since the veteran Schultz had interviewed gave him his telephone number, Schultz said, he was able to finish up the talk with the patient the following day; Schultz's story aired on WAMU on Wednesday.

Roberts, spokeswoman for the VA, said the reporter "took advantage of the patient" in approaching him for an interview, causing "total disorientation." In addition, she said, Schultz did not identify himself as a reporter. 

Schultz maintains that he told the interviewee and VA officials he was a reporter.

Schultz's tape will be returned if the patient signs the consent form, Roberts said. The VA is willing to accommodate media requests, she said, "but [WAMU journalists] just refuse to talk with us about the consent form process."

WAMU's Jim Asendio, Schultz's editor, said WAMU lawyers are working on a letter demanding the return of the audio card. Asendio said he does not believe patient confidentiality was an issue at the time of the incident, since the event was public and the reporter identified himself.

A federal law, the Privacy Protection Act of 1980, makes it illegal for a government officer or employee to search for or seize a journalist's "work product materials."

Meanwhile, Schultz said he simply wants his storage device returned, since it contains additional news material.

"This is unlike any experience I've ever had," the reporter said.  "What made me really mad is that I know I did the right thing."

Thanks to the Agitator

North Carolina to Enforce Nude Beach Ban

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Long-time nude sunbathing spot in Wilmington, NC shutdown after county officials un-earth old state law and decide to (re) enforce.

UPI reports

Officials with North Carolina's Brunswick County said they have decided to ban nude sunbathing on Bird Island.

The county Board of Commissioners said Monday that Commissioner Marty Cooke will work with the Brunswick County Sheriff's Department to post a sign on the island, which is a popular destination for nude sunbathers, informing visitors that public nudity is illegal in North Carolina, The (Wilmington, N.C.) Star-News reported Tuesday.

Cooke said officials researched the issue after receiving a complaint from a visitor who took his children to the island and discovered that, not only was it not registered as a nude beach but, nude beaches are illegal in the state.

"It has become almost an accepted fact that Bird Island is a nude beach," Cooke said.

He said the sign will also inform beachgoers of other activities that are illegal, including setting off fireworks and littering.


Thanks to Wendy McElroy
Obama Administration's brief contends that government agencies cannot be sued for wiretapping American citizens even if there was intentional violation of US law.

Raw Story reports;

In a stunning defense of President George W. Bush's warrantless wiretapping program, President Barack Obama has broadened the government's legal argument for immunizing his Administration and government agencies from lawsuits surrounding the National Security Agency's eavesdropping efforts.

In fact, a close read of a government filing last Friday reveals that the Obama Administration has gone beyond any previous legal claims put forth by former President Bush.

Responding to a lawsuit filed by a civil liberties group, the Justice Department argued that the government was protected by "sovereign immunity" from lawsuits because of a little-noticed clause in the Patriot Act. The government's legal filing can be read here (PDF).

For the first time, the Obama Administration's brief contends that government agencies cannot be sued for wiretapping American citizens even if there was intentional violation of US law. They maintain that the government can only be sued if the wiretaps involve "willful disclosure" -- a higher legal bar.

"A 'willful violation' in Section 223(c(1) refers to the 'willful disclosure' of intelligence information by government agents, as described in Section 223(a)(3) and (b)(3), and such disclosures by the Government are the only actions that create liability against the United States," Obama Assistant Attorney General Michael Hertz wrote (page 5).

Senior Staff Attorney Kevin Bankston at the Electronic Frontier Foundation, which is suing the government over the warrantless wiretapping program, notes that the government has previously argued that changes to the Patriot Act protected the government from lawsuits surrounding eavesdropping. But he says that this is the first time that they've made the case that the Patriot Act protects the government from all surveillance statutes.

"They are arguing this based on changes to the law made by the USA PATRIOT Act, Section 223," Bankston said in an email to Raw Story. "We've never been fans of 223--it made it much harder to sue the U.S. for illegal spying, see an old write-up of mine at: http://w2.eff.org/patriot/sunset/223.php --but no one's ever suggested before that it wholly immunized the U.S. government against suits under all the surveillance statutes."

Salon columnist and constitutional scholar Glenn Greenwald -- who is generally supportive of progressive interpretations of the law -- says the Obama Administration has "invented a brand new claim" of immunity from spying litigation.

"In other words, beyond even the outrageously broad 'state secrets' privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they 'willfully disclose' to the public what they have learned," Greenwald wrote Monday.

He also argues that the Justice Department's response is exclusively a product of the new Administration, noting that three months have elapsed since President Bush left office.

"This brief and this case are exclusively the Obama DOJ's, and the ample time that elapsed -- almost three full months -- makes clear that it was fully considered by Obama officials," Greenwald wrote. "Yet they responded exactly as the Bush DOJ would have. This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used -- not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance."

"Everything for which Bush critics excoriated the Bush DOJ -- using an absurdly broad rendition of 'state secrets' to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity -- are now things the Obama DOJ has left no doubt it intends to embrace itself," he adds.


From the common senselessness of Zero tolerance dept.

The Washington Post reports

When a Fairfax County mother got an urgent call from school last month reporting that her teenage daughter was caught popping a pill at lunchtime, she did not panic. "It was probably her birth-control pill," she thought. She was right.

Her heart dropped that afternoon in the assistant principal's office at Oakton High School when she and her daughter heard the mandatory punishment: A two-week suspension and recommendation for expulsion.

"I realize my daughter broke a rule," the mother said. But in an appeal to the school system, she reasoned, "the punishment does not fit the crime."

For two decades, many schools have set zero-tolerance policies on drugs. That means no over-the-counter drugs, no prescription drugs, no pretend drugs in student lockers or pockets. When many teens have ready access to medicine cabinets filled with prescription medications such as Xanax and Vicodin, any capsule or tablet is suspect.

Still, some parents and civil rights advocates say enforcement has been overzealous. Stringent rules have ensnared not only drug dealers and abusers, but a host of sniffling and headachy students seeking quick medical relief. The Supreme Court will consider this month the case of a 13-year-old Arizona student who was strip-searched in 2003 by an administrator who suspected that she was carrying ibuprofen pills.

Fairfax School Board members have debated over time whether to allow students to carry Tylenol or other over-the-counter medicines without registering them with the school nurse. County policy permits cough drops to be carried on campus, for instance, but not shared. Arlington County policies permit high school students to carry over-the-counter pain relievers. A 2006 state law in Maryland overturned some local rules requiring a doctor's note for children to use sunscreen at school.

In Virginia, school systems must comply with state code regarding prescription medications and illegal drugs on campus. Students face expulsion if they bring to school any "controlled substance" or addictive drug regulated by the federal government. "Imitation controlled substances," which could include virtually any prescription pill, are subject to the same hefty repercussions. Local school boards can give a lighter punishment after a review.

In Maryland, school systems have more leeway to set their own drug policies. In the District, prescription medications should be confiscated if they are brought to school without a doctor's order, Dena Iverson, a spokeswoman for the school system, wrote in an e-mail.

Health advocates say that harsh penalties for students who take birth-control pills at school conflicts with a campaign schools are waging against teen pregnancy.

A small portion of school health clinics across the country distribute birth-control pills to teens. But in Fairfax, even carrying the pills in a backpack is counted among the most serious offenses in the Student Responsibilities and Rights handbook.

During two weeks of watching television game shows and trying to keep up with homework online, the Fairfax teen, an honor student and lettered athlete, had time to study the handbook closely. If she had been caught high on LSD, heroin or another illegal drug, she found, she would have been suspended for five days. Taking her prescribed birth-control pill on campus drew the same punishment as bringing a gun to school would have.

The teenager and her mother declined to have their names published. But they showed The Washington Post some of her discipline records, including a letter that asked the school board to reinstate the student and reexamine the regulations so students would not "needlessly suffer" in the future.


Thanks to Jonathan Turley


That's the gist of the TSA's rationale for detaining Steve Bierfeldt, a staffer for Ron Paul's Campaign for Liberty organization, at a St. Louis airport, for carrying too much cash on his person. Cash collected from an organization fund raiser.

The Agitator reports

The TSA has responded on its blog to last week's story about the detainment of Steve Bierfeldt, a staffer for Ron Paul's Campaign for Liberty organization, at a St. Louis airport. Bierfeldt recorded his interaction with TSA agents and police officers while he was detained, which was apparently for not giving a satisfactory explanation why he was carrying $4,700 in cash. The TSA's response:

At approximately 6:50 p.m. on March 29, 2009, a metal box alarmed the X-ray machine at Lambert-St. Louis International Airport, triggering the need for additional screening. Because the box contained a number of items including a large amount of cash, all of which needed to be removed to be properly screened, it was deemed more appropriate to continue the screening process in a private area. A Transportation Security Administration (TSA) employee and members of the St. Louis Airport Police Department can be heard on the audio recording. The tone and language used by the TSA employee was inappropriate. TSA holds its employees to the highest professional standards. TSA will continue to investigate this matter and take appropriate action.

Movements of large amounts of cash through the checkpoint may be investigated by law enforcement authorities if criminal activity is suspected. As a general rule, passengers are required to cooperate with the screening process. Cooperation may involve answering questions about their property, including why they are carrying a large sum of cash. A passenger who refuses to answer questions may be referred to appropriate authorities for further inquiry.

The response raises a number of questions. How does carrying a large amount of cash impair the safety of air travel? Weapons I could see. But cash?

Also, merely carrying even large sums of cash is not enough in itself for someone to be legally detained. There needs to be some other sign of illegal activity. What else about Bierfeldt made the TSA agents suspect him of criminal activity? What is the minimum amount of cash you can carry in an airport without being expected to explain to TSA agents why you're carrying it?

Will the public be told what disciplinary action is taken against the agents who acted inappropriately? Will Bierfeldt?

From a policy standpoint, it also seems like a bad idea for the agency charged with ensuring the safety of airline passengers to distract itself by policing for crimes unrelated to airline safety, too. Of course, in this case, the only "crime" was an airline passenger carrying a large amount of cash, and asking the screeners to tell him what law compells him to answer their questions.


From the Fourth Amendment (against unreasonable search and seizure) is whatever we say it is dept.. Olympia police use littering misdemeanor of car passenger as cause to search vehicle without warrant.

From Fourth Amendment blog:

Around 2:00 a.m. in downtown Olympia, Kirwin was driving a truck with
Irwin riding in the passenger seat. From his patrol vehicle, Officer Kory Pearce
observed the passenger, Irwin, discard a beer can out of the passenger side window
and saw its liquid contents spill onto the sidewalk. Officer Pearce activated his
emergency lights and saw the passenger lean down as if to conceal something.
Once stopped, Irwin told Officer Pearce he threw the can out of the vehicle to
avoid being caught with an open container inside of the truck. Officer Pearce
arrested Irwin for littering, which is a misdemeanor under the Olympia Municipal
Code (OMC) 9.40.110. After Officer Pearce secured Irwin in the patrol vehicle, he
returned to the passenger side of the truck to search the area that was within Irwin's
immediate control prior to his arrest. With Kirwin's consent, Officer Pearce
searched the locked center console of the truck where he discovered cash and a bag
of a crystalline substance he suspected to contain methamphetamine. Officer Pearce
placed the driver, Kirwin, under arrest for unlawful possession of a controlled
substance. Officer Pearce apprised Kirwin of his Miranda1 rights, which Kirwin

From Dissent:

The arrest of a passenger in a car
does not automatically authorize the police to search a car being driven by, and
belonging to, another individual. And, even if the arrest of the passenger could
justify the search of the car, the arrest of the passenger here was invalid and
could not be used to justify any search. The arrest was invalid because the
police officer arrested the passenger under a local ordinance that imposed a
significantly greater penalty than a state statute prohibiting the same conduct.
Such a conflict in punishment is unconstitutional, as held under a line of cases
this court has not overruled but inexplicably does not follow today. Therefore, I
would hold the search was unconstitutional, suppress the evidence, and remand
the case to the trial court.
A warrantless search is presumed unconstitutional. State v. Johnson, 128
Wn.2d 431, 446-47, 909 P.2d 293 (1996). "Exceptions to this requirement are
narrowly drawn. The State bears a heavy burden in showing that the search
falls within one of the exceptions." State v. Jones, 146 Wn.2d 328, 335, 45
P.3d 1062 (2002) (citations omitted).
The State relies upon the search incident to arrest exception. "[A] search
incident to arrest is a well-recognized exception to the warrant requirement."
Id. For the exception to apply, the search must be limited in scope to the
purposes underlying the rule: maintaining officer safety and preventing
destruction of evidence. Id. This court has also observed that because of the
heightened privacy protection under article I, section 7 of the Washington State
Constitution, "'we do not believe that these exigencies always allow a search.'"
Id. (quoting State v. Stroud, 106 Wn.2d 144, 151, 720 P.2d 436 (1986) (holding
that incident to the arrest of the driver, an officer may search the passenger
compartment under the driver's immediate control)). The search must also be
incident to a valid arrest. State v. Moore, 161 Wn.2d 880, 885, 169 P.3d 469
(2007). But none of these criteria was met here.

First, the search was not properly limited to the purposes underlying the
Stroud rule--preserving officer safety and preventing destruction of evidence.
It is important to note Dennis Kirwin was driving the car, whereas it was his
passenger, Casey Irwin, upon whose arrest for littering the State attempts to
justify the search of the car. The Court of Appeals has improperly extended
Stroud to justify a warrantless search of an automobile following the arrest of a
passenger who does not own the car.



"A History of Our Sewage Disposal system"

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A glimpse of an American gulag aka the Monmouth County Correctional Institute in Freehold, NJ. Who knows how isolated the lonesome death of Anmad Tanveer,disappeared to death in immigrant detention, a victim of the ICE age, really is.

NY Times reports


The hand-scrawled letter from a New Jersey jail was urgent. An immigration detainee had died that day, Sept. 9, 2005, a fellow inmate wrote in broken English, describing chest pains and pleas for medical attention that went unheeded until too late.

Death ... need to be investigated," he urged a local group that corresponded with foreigners held for deportation at the jail, the Monmouth County Correctional Institute in Freehold. "We care very much because that can happen to anyone of us."

Yet like a message in a bottle tossed from a distant shore, even the fact of the detainee's death was soon swept away.

Inquiries by the local group were rebuffed by jail officials. Complaints forwarded to the Department of Homeland Security were logged, then forgotten. And when pressure from Congress and the news media compelled Immigration and Customs Enforcement to produce the first list of people who had died in their custody, the Freehold case was not on it.

The difficulty of confirming the very existence of the dead man, Ahmad Tanveer, 43, a Pakistani New Yorker, shows how death can fall between the cracks in immigration detention, the rapidly growing patchwork of more than 500 county jails, profit-making prisons and federal detention centers where half a million noncitizens were held during the last year while the government tried to deport them.

The case underscores the secrecy and lack of legal accountability that continue to shield the system from independent oversight, despite years of escalating Congressional inquiries and new efforts by Obama administration appointees to promote transparency.

"We still do not know, and we cannot know, if there are other deaths that have never been disclosed by ICE, or that ICE itself knows nothing about," said Tom Jawetz, a lawyer with the American Civil Liberties Union, which has been battling in court for months to obtain government records on all detention deaths, including the Freehold case and those named on the first government list, obtained by The New York Times under the Freedom of Information Act and published last year.

Even now, most questions about Mr. Tanveer are unanswered, including just who he was and why he had been detained. The rescue of his death from oblivion took a rare mix of chance, vigilance by a few citizen activists, litigation by the civil liberties union and several months of inquiry by The Times. Even as the newspaper confirmed Mr. Tanveer's death with jail officials, and tracked his body's path from a Freehold morgue to the cargo hold of an airplane at Kennedy Airport, immigration authorities maintained that they could find no documents showing such a person was ever detained, or died in their custody.

Not until March 20, in response to a new request by The Times under the Freedom of Information Act, did the agency release an internal e-mail message acknowledging that the death had been overlooked. It issued a corrected list that now includes him -- his first and last names transposed -- among 90 people who died in immigration custody between Oct. 7, 2003, and Feb. 7, 2009.

"We believe we have accounted for every single detainee death," Kelly Nantel, a spokeswoman for Immigration and Customs Enforcement, said last week, adding that a death in March was promptly reported to Congress under a policy directive from Dora Schriro, the new administration's special adviser on detention.

Yet even the latest list, which Ms. Nantel called "comprehensive, thorough," is missing a known death from 2008: that of Ana Romero Rivera, a 44-year-old Salvadoran cleaning woman who was found hanged last August in an isolation cell in a county jail in Frankfort, Ky., where she was awaiting deportation. Federal officials now disagree whether she was legally in their custody when she died.

There are unverified reports that other detainees may have died unnamed and uncounted. At the Florida Immigrant Advocacy Center in Miami, for example, directors cite a letter in late July 2007 from a detainee who described an 18-year-old Haitian woman, "Mari Rosa," coughing up blood for hours without medical attention at the Glades County Jail in Moore Haven, Fla. The letter said she fell to the ground, had no pulse when she was finally taken to the medical unit and was never brought back, adding, "The detainees think she is dead."

The center has been unable to confirm what happened to that woman, said Susana Barciela, its policy director.

No central body is required to publicly keep track of deaths in custody in the fragmented detention system. No independent inquiry is mandated. The House recently passed a bill that would require states that receive certain federal funds to report all deaths in custody to their attorneys general. But the measure has yet to be taken up in the Senate, where similar legislation stalled last fall.

Thanks to ACLU blog



If you're the Phoenix, Arizona police and a tenacious pest of a muckraking blogger named Jeff Pataky is obsessively chronicling accusations and tips (many from ex-cops and some currently insider the department ) of police department corruption and abuse of power, you get a sealed affidavit, and bring in ten cops to raid his house, confiscating his  three computers, routers, modems, hard drives, memory cards and every back-up file you can get your hands on, ransacking his safe in the process.

The Arizona Republic reports

Police officers accused of drunken driving. A female officer's alleged promiscuity and infidelity. A commander whose critics labeled his son a child molester.

Jeff Pataky said he uses negative complaints and anonymous tips to fuel his blogging crusade against Phoenix police. A headline on his Web site suggests rewards would be provided for "dirt" on police indiscretions.

Pataky, a former software sales and marketing executive who now focuses his energy shoveling content on www.badphoenixcops.com, said he believes his online criticism of the department - along with past criticisms of police investigations - led officers to serve a search warrant at his home last week.

Police officials said Wednesday that a Phoenix detective prompted the investigation after complaining about harassment, though they declined further comment.

Pataky said he felt the investigation was a response to a lawsuit he filed on Monday in U.S. District Court saying he was maliciously prosecuted by police in 2007 after his ex-wife accused him of harassment, a case later dropped. In his lawsuit he's asking for an unspecified amount for damages. City officials declined to comment on pending litigation.

Pataky's blog is known in law-enforcement circles for its off-color language that, according to the blogger, is aimed at Phoenix Police Chief Jack Harris, Maricopa County Andrew Thomas and other public officials.

"Too bad. They need to get over it," Pataky said. "They are held to a higher accountability."

Pataky said he edits the blog and works with four or five people who receive tips from a variety of sources, including sworn and retired officers.

Investigators confiscated computer material and other items from Pataky's north Phoenix home, which he considered a threat to quit writing.

"We have heard internally from our police sources that they purposefully did this to stop me," Pataky said. "They took my cable modem and wireless router. Anyone worth their salt knows nothing is stored in the cable modem."

Phoenix Assistant Chief Andy Anderson said the harassment case is unique because of the connection to an unaccredited grassroots Web site. He said the blog is one part of the case, though he did not provide specifics of the ongoing investigation.

"This isn't about the blog," Anderson said. "That's just where the investigation led."

Police also served a separate search warrant at the home of former homicide Detective David Barnes, one of the investigators on the "Baseline Rapist" case.

Barnes was demoted from the homicide unit to patrol after he went public one year ago with claims of mismanaged evidence at the city's crime lab.

Mark Spencer, president of the Phoenix Law Enforcement Association, said he was concerned about questionable probable cause to enter Barnes' house. The union, which claims no affiliation with Pataky's blog, will represent Barnes through the internal investigation.

Thanks to Carlos Miller




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