On Cops and Pets (sort of)

Curmie is proud of being an educator and therefore hosts the Curmie Award for the teacher or administrator who most embarrasses the profession. Similarly, he acknowledges that there are thousands of selfless, hard-working and compassionate police officers—unfortunately, I got to see a couple of them perform a particularly grim duty last week—but that makes it all the more important to remember that wearing a badge and a gun doesn’t make one a good policeman (or –woman) any more than standing in front of a classroom makes one a good teacher.

So…

There have been a lot of disturbing stories of late about overly testosteronic cops and pets (well, one of the stories isn’t about pets per se, but about partially-domesticated kittens. Close enough for jazz). What’s newsworthy and disturbing about these incidents isn’t necessarily directly linked to the animals involved, but that motif does give us an opportunity to examine some of the worst (we hope) in police behavior over the past few weeks. I’m even skipping two cases from California: the shooting of five caged (but at least aggressive) pit bulls by a Selma cop in January and the recent incident in Hawthorne in which the police were certainly at fault for escalating what needn’t have been a tense situation, but may indeed have ultimately acted appropriately (considering the position they had put themselves in) in shooting and killing an 80-pound Rottweiler.

We start, then, with a story out of Miami in late May. Police assaulted, handcuffed, and choked a 14-year-old boy with little if any provocation. The boy, Tremaine McMillian, had apparently been “roughhousing” with friends. Although they quickly realized “there was no sort of altercation or fight going on,” police nonetheless wanted to talk to McMillian’s parents.

But that’s when things turned bad, and when descriptions begin to diverge: he was walking away, or he was leading police to his mother, who was nearby. I’m going to pretend for a moment that I believe a single word of the police description: if for no other reason than that my raised eyebrow of skepticism might be interpreted as a “de-humanizing stare,” which is apparently enough to get you slammed to the ground and choked by a gaggle of over-stimulated jackasses working on their machismo merit badge. Well, of course, young Mr. McMillian has, shall we say, a darker complexion than I, so I might have been fine.

Anyway, the police don’t seem to dispute the claim that the teenager was carrying his six-week-old puppy in one hand and was bottle-feeding it with the other. The best they can do is argue that after police “[grabbed] him,” McMillian’s “body language, of stiffening up, closing the fist, flaring his hands, trying to pull away, well, now, you’re resisting an officer at that point.” Presumably, this is intended to constitute a defense of the officers’ stupidity and brutality. “At this point, we’re not dealing with, or concerned with the puppy,” quoth Prevaricator in Charge Detective Alvaro Zabaleta, “what we’re concerned about is the immediate threat to the officers.” Seriously, he said that.

Here’s the best-case scenario for the police account. McMillian was doing nothing illegal and the police were being a little over-officious. They then grabbed him, although he had committed no offense and was under no obligation to cooperate with them. He shrugged them off, telling them not to “touch [him] like [he’s] done something,” all the while holding the puppy. While doing so, he apparently sprouted another set of appendages, complete with clenched fists and flaring arms (whatever the hell that means), and constituted an “immediate threat” because… um… well, he did. Seriously, if a 14-year-old kid holding a puppy in both arms makes a police officer afraid in any way, maybe we ought to be looking for some cops with backbones made of sterner stuff than overcooked linguini.

Oh, wait. I forgot about the “de-humanizing stares.” Snort. These people should be writing trashy novels. They sure as hell shouldn’t be cops.

We move now to North Ridgeville, Ohio, where a police-attached Human Officer reporting to the Police Department shot and killed a litter of kittens in the presence of a group of children, and the idiot Police Chief decided there was no problem. Move along. Nothin’ to see here.

There seems to be little dispute about the facts. A homeowner called the police to see if they could do something about a litter of feral kittens that had taken up residence in a woodpile behind her house. Enter one Barry Accorti, retired police sergeant and current part-time Humane Officer (yes, Gentle Reader, Curmie is aware of the irony of the job title). According to WKYC television,

He allegedly told the homeowner that shelters were full and that the cats would be going to kitty heaven. He then pulled out his gun and shot to death the five, 8- to 10-week-old kittens.

Accorti allegedly told the homeowner that he isn't supposed to do this, but it was justifiable. The woman ran into the house to shield her children who were screaming and crying.

There are some minor discrepancies with the details, but what isn’t in dispute is that Accorti used a gun to “euthanize” kittens no more than 10 weeks old. Interestingly, the police department’s defense of Accorti’s stupidity and arrogance cites the proximity of the woodpile to the house and presence of children in the home as reasons why the kittens would have to be killed to begin with. Presumably, it never occurred to him that firing a gun into a woodpile is inherently unsafe (lots of opportunities for ricochets in a residential area) and that traumatizing children might not be the best available option. No, correct that, he just didn’t care. He’s been carrying this gun around for a while and hasn’t had the chance to show off what a tough guy he is by firing it to the admiration of all. After all, nothing says “manly” like shooting a kitten.

Here’s the deal. He’s got cages, heavy gloves, catch-poles, all that stuff available to him. These are kittens. The fact that they hissed at someone doesn’t mean they’re dangerous. And he’s supposed to be a professional. Assuming it’s true that euthanasia was the only (or best) option—hardly a given, by the way—then there are a lot of safer, more humane means of dealing with the situation… not to mention avoiding the possibility virtual certainty of giving those kids nightmares for months.

Most disturbingly, nothing a cop ever does seems to be questioned by those in authority, whether it’s pepper-spraying innocent people or doing something transcendently stupid like firing a gun in a residential neighborhood to deal with a feral cat problem. (Note: the photo at left purports to be of the kittens in question, meaning a). they're partially domesticated and b). the alleged complaints about a chronic problem are either fabricated or disingenuous.)

Here are the key sections of the official police statement by Chief Mike Freeman:

Research and other animal organizations accept shooting as an acceptable means of euthanasia.

After visiting the scene, talking with the responding officer and re-interviewing the complainant, I have decided his actions were appropriate and have decided not to impose any disciplinary measures for the incident.

OK, Chief. So show me that research and at least two (you used the plural, after all) “other animal organizations” that consider using a handgun an acceptable means of euthanasia. I’d suggest that you not start with the Ohio SPCA, however. Here’s the statement on their Facebook page:

No HUMANE organization would recommend that non-threatening animals be shot as a method of euthanasia. The use of gunshot to end an animal's life should only be used when an animal is attacking or has been injured so seriously that ending suffering must be immediate. The 8 to 10 week-old kittens posed no immediate threat to anyone. Trap, Neuter, and Release Programs (TNR) have been in place in a multitude of cities and towns throughout Ohio and the United States for years. Humane societies and shelters not choosing TNR as an option, should only be using Euthanasia by Injection (EBI).

Karen Minton, Ohio director of the Humane Society of the United States, agrees: “it is hard to fathom any circumstance where fatally shooting young kittens is necessary or justified.” So—given the pretty strong dissenting statements from representatives of the two universally recognized “animal organizations” in the country, the SPCA and the HSUS—please produce anyone with a quarter as much credibility. Or admit that you’re a lying asshole and resign. Your choice.

Later, Freeman defended Accorti’s actions as legal: “there were no children present outside the home when this occurred.” Oh, well, that’s all right then. As long as they were looking out the window instead of… you know… there, then everything is just peachy. And besides, behaving stupidly, arrogantly, recklessly and probably dishonestly is just fine as long as it’s legal. I doubt that what Officer Accorti did actually was legal, although it might have been. But it’s certainly grounds for firing. The idiot police chief and the pompous and disingenuous mayor ought to be on the unemployment line, too.

Note: it is now being touted as a silver lining that the city has revised their policies, will no longer kill cats, and will form an alliance with the Friendship Animal Protection League to develop new procedures. Of course, this move is founded more on petulance than on pragmatism: the police will now do nothing to help. You see, if they can’t go around firing pistols at kittens, this game just isn’t any fun anymore.

And so we move on to South Holland, Illinois. This incident took place nearly a year ago, but a related lawsuit is moving through the system now, so it’s making news again. Last July, Randy Green’s dog, Grady, somehow popped his chain and apparently ran around the neighborhood for a while before settling down on the front porch of the Green residence.

Here’s what happened, at least according to the lawsuit (I’m tightening up some of the paragraphing):

Upon information and belief, a caller had identified the dog at large as ‘a big old gray dog runnin' around.’ The caller made no mention of the dog being dangerous, vicious, or aggressive....

The two South Holland officers arrived while plaintiff Randy Green and his family were asleep inside of their home, and where Mr. Green’s Cane Corso dog, Grady, was sitting on the front porch. Upon information and belief, the chain holding Grady in the Green family backyard had popped, allowing Grady to be off leash on and around Mr. Green's residence.

Both South Holland officers were equipped with dog-catching poles in the trunks of their vehicles, but neither attempted to use the dog-catching poles to capture the purported dog at large. South Holland officer Chad Barden stood, with his gun drawn, near the Green family home while the dog Grady sat on the front porch. The accompanying South Holland officer stood, leaning against his own police vehicle, approximately 100 feet away from Officer Chad Barden.

The dog Grady walked past both officers on more than one occasion without incident, thereafter lazily returning to the front porch of the Green residence. At no time did the dog Grady make physical contact with either officer.

The South Holland police officers stood outside the Green family home for approximately twenty minutes. At this time, the dog Grady approached Officer Barden again as he was standing nearest the Green family home. Shortly thereafter, Officer Barden shot the dog Grady three times for no reason.

OK, so far it sounds like Mr. Green is behaving a little defensively: surely his beloved canine wouldn’t act threateningly, right? Trouble is, he says he’s got an expert report on video evidence.

"…video surveillance footage from the Green family residence revealed the absence of any charging, lunging or showing of teeth by the dog Grady and instead showed the dog Grady seeking ‘greater distance between the officer and himself,’ displaying ‘calming [body] signals’ by ‘looking away from the officers and showing his [Grady's] flank,’ and moving in a ‘trot.’ (Brackets in complaint.)

You see, the thing is, no lawyer would make, or let her client make, claims that can’t be backed up. The chances are really, really good that the video shows exactly what the plaintiffs in this case claim it shows: a lazy, smug, self-entitled cop shooting a harmless dog because he can. I can find no evidence that Barden or his partner were as much as given a private scolding. And then, of course, the assholes at the police station, a month later, charged Green with having a “dangerous dog.” Yeah, I’m calling bullshit on that one.

Finally—I’m sure there are dozens more cases to choose from, but I’m already over 2000 words—there’s this case from El Monte, California in which a policewoman shot a German shepherd and then—based on all the available evidence—lied about the details.

Police were an hour late to a scheduled meeting with Cathy Luu and her husband Chi Nguyen at their home. They claim to have followed procedure for entering premises where dogs might be present, but they sort of neglected to think through the possibility that people who can afford to live in that neighborhood just might have their own security cameras, which back up their claim that the cops just barged into the enclosed yard area without either calling the house to announce their arrival or making any reasonable attempt to determine if there were dogs about. That huge orange-on-black “Beware of Dog” sign smack in the middle of the damned gate shown in the photo at left might have been regarded as cautionary by an average person. Not by El Monte’s finest, apparently.

And then there is the usual chicken-shit “no choice” justification. Barking is barking. Attacking is attacking. They’re different. It’s impossible to tell from the evidence available to us which was the case here. As in the Hawthorne case mentioned in passing earlier, there are two separate questions to be answered: could this situation have been prevented by more competent police work? And, in the moment it happened, was shooting a large, potentially aggressive dog justified? The answers in both cases are “yes” to question #1 and “maybe” to question #2. So why write about this one instead of the other? Because in the Hawthorne case, the police are only probably lying (about the cause for the arrest of the dog’s owner), whereas in this case the video footage apparently indicates clearly (“beyond reasonable doubt” and all that) that the officers didn’t follow procedure (their jackass boss, of course, believes them rather than the actual evidence, but no one else does). If they’re willing to lie about X, they’re willing to lie about Y.

The good news is that, unlike in the Ohio kitten-shooting incident, at least the mayor in question seems to have some sense, even if the police power structure doesn’t:

[Mayor Andre] Quintero reached out to the family to talk about working something out to find them another German shepherd or other type of dog, even offering to pay for vaccinations, sterilization and any other fees associated with getting a new dog.

“There is no question, we cannot replace Kiki. We know that,” Quintero said as he read a statement during Tuesday night's City Council meeting. “But we would like to do what we can to help fill the void that has been left by the death of this family's pet.”

Quintero called for a “quick and appropriate solution” to the internal investigation into the incident.

“Our community and the Luu/Nguyen family deserve answers and closure quickly,” Quintero added.

You see, this is a good man, or at least an intelligent enough politician to understand that spending a few hundred dollars that might avert a law suit is probably a good idea.

So what do all of these incidents indicate? Well, certainly a handful of cases across a country this size don’t indicate much of anything. But there’s a troubling undertone emerging:

• a lot of cops really like to shoot things and beat people up

• police chiefs and captains and such will lie to cover up for their idiot underlings

• whereas “animal rights” proponents often go too far, they’re right about most of this kind of cases

• there are far too many police who think their job is to swagger around with a gun

• even female officers seem to have testosterone poisoning

But enough of that. Time to scritch my cats’ ears.

Kentucky v. King Re-Visited: Common Sense Prevails

Last May, I wrote about the SCOTUS decision in Kentucky v. King. Needless to say, I wasn’t impressed. Here’s how I described it then: “… the nation’s highest court ruled overwhelmingly that a warrantless search can be justified by smelling marijuana and hearing unspecified noises which might be interpreted to suggest the destruction of evidence, even in the obvious absence of any attempt to do that.”

Well, not being a lawyer, I got it wrong. Not in the sense that the Supreme Court didn’t issue a very strange ruling, but, as Orin Kerr writes (and wrote) on the Volokh Conspiracy site, the Court didn’t hold that the search was actually legal, that “exigent circumstances” necessarily existed. Rather:

The Court did not consider whether the warrantless entry was constitutional. Instead, the limited cert grant addressed only a small piece of the puzzle: The Court only considered the right test for police-created exigent circumstances — the part to be subtracted from the totality of the circumstances — and then remanded the case back to the Kenucky courts. . . . [T]he Court’s conclusion was that all the facts could be considered — the usual “exigent circumstances rule” applies — without subtracting out the evidence of noises inside the home. . . .

Importantly, though, the Court did not hold that the warrantless entry was justified — much less that warrantless entries are generally justified — in such circumstances. The Court only held that the usual exigent circumstances rule applies: That is, whether or not there were exigent circumstances, the Kentucky courts should have considered the totality of the circumstances instead of subtracting out the reaction inside the house to the officers’ knocking and announcing their presence.

I take solace in two things: that actual legal experts misread the ruling the same way I did, and that the SCOTUS ruling wasn’t as daft as I had hitherto believed. The US Supreme Court didn’t reverse the finding of the Supreme Court of Kentucky, in other words, but rather remanded the case with the instruction to consider the totality of the evidence.

The Kentucky Court did, and—praise be to whomever it is you praise, Gentle Reader—they ruled last week that the police entry into the Lexington apartment of Hollis King in October of 2005 was indeed unconstitutional. I would have thought that was utterly obvious, but the SCOTUS didn’t simply say that in their ruling, so it was up to Kentucky to say so again:

Consistent with the instructions on remand from the United States Supreme Court, this Court concludes that exigent circumstances did not exist when police made a warrantless entry of the apartment occupied by Appellant King. Therefore, the denial of King's motion to suppress evidence is reversed, and King's judgment of conviction stands vacated.

The case was remanded back to the county court where, one suspects, the suppression of the evidence acquired by an illegal search will lead to charges being dropped.

What I find most interesting about the Kentucky ruling is that, however much I may have screwed up the legalisms last spring, I was able to see the central point of the case. Here’s me then:

Notice that the cops can’t remember exactly what they said, but they remember that it was loud (because it has to be to fulfill one set of guidelines), and they definitely didn’t, for example, use the words “Open up,” because that would be unconstitutional. Uh huh.

The response to this conversation-opener was apparently “people inside moving.” OMG, NO! They might, of course, been moving toward the door to open it….

And here’s the Kentucky Supreme Court’s decision:

During the suppression hearing, Officer Cobb repeatedly referred to the “possible” destruction of evidence. He stated that he heard people moving inside the apartment, and that this was “the same kind of movements we’ve heard inside” when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard which led him to believe that evidence was about to be destroyed.

In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door.

Well, duh. The point here is not that I’m some marvel of perspicacity. Indeed, quite the opposite. I’m just a reasonably intelligent layman, capable of detecting obvious bullshit. The cops’ testimony never passed the sniff test, and the Kentucky Court knew it, even if SCOTUS tried their best to ignore that fact.

The Kentucky court’s ruling re-affirms the notion that exigency has to be both real and demonstrable: “Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.” It’s pretty clear that Mr. King isn’t someone I’d want for a neighbor, but it’s even clearer that the police over-stepped their authority and then lied about it. The majority of the Kentucky court saw through that charade. And that is a good thing.

Pepper Spray and the Erosion of Legitimacy

It seems hard to believe now, but it wasn’t that long ago that pepper spray was a sort of anachronism—a remnant of a time when altercations between protesters and authorities really might have resulted in injuries to the latter. But that was before pepper spray became the new Taser: a toy to be employed by police and police wannabes who lack the skill, training, intelligence, human compassion, or (apparently) penis size to do otherwise.

The turning point was probably the moment when creep-with-a-badge Anthony Bologna sprayed a group of already-confined female protesters at an #Occupy event in New York in September. The women posed no threat to him or anyone else, but that wasn’t enough to a keep a prick like Bologna from summoning his inner sadist. And he probably figured that the idiots up the food chain from him—Police Commissioner Raymond W. Kelly and Mayor Michael Bloomberg—would let him get away with it. He was right: a Staten Island resident, Bologna was (ahem) punished by losing some vacation days and being transferred to a post that shortens his commute. A more appropriate punishment would be to fire his sorry ass and charge him with multiple counts of assault.

Anyway, Bologna immediately started playing the victim, fabricating a story the video doesn’t come close to supporting (he even got a pseudo-journalist or two to take his side), and generally representing in a single man everything that made a lot of folks in my generation refer to the police as “pigs.” Actually, if Tony Baloney is what a $150K a year cop looks like, we owe an apology to our porcine friends for comparing them to such a creature.

Of course, Bologna was just the warm-up act. There were other incidents, too, of course, but the next big step-up in police (or pseudo-police) arrogance and malice came in November on the campus of the University of California at Davis, where campus cop Lieutenant John Pike became a household name—and subject of an Internet meme—for all the wrong reasons by pepper spraying over a dozen student protesters with the same body language one would use to spray weed-killer into the cracks in the driveway. Pike is, of course, the quintessential CamPo idiot, with a self-importance to sensibility ratio that’s off the charts. This week, the Task Force charged with investigating the incident released its report. It ain’t pretty.

The report begins, “Our overriding conclusion can be stated briefly and explicitly. The pepper spraying incident that took place on November 18, 2011 should and could have been prevented.” [emphasis in original] The litany of screw-ups from the Chancellor on down takes nearly 200 pages to spell out. Here are just a few snippets from the table of contents: “failure to investigate,” “ineffectively communicated,” “confusion as to legal basis,” “decision-making process was ineffective,” “Notwithstanding the deficiencies in the operations plan, the incident was not managed according to the plan.”

And then we get to essence: “The decision to use pepper spray was not supported by objective evidence and was not authorized by policy” and “The pepper spray used, the MK-9, First Aerosol Projector, was not an authorized weapon for use by the UCDPD.” And… finally… “Lt. Pike bears primary responsibility for the objectively unreasonable decision to use pepper spray on the students sitting in a line and for the manner in which the pepper spray was used.”

Frankly, all of this was pretty much self-evident at the time; the report merely confirms what we already knew: that the whole incident could have been avoided if any of a handful of people had done their damned jobs, and that John Pike is—or at the very least was, for a telling moment—an amoral bully… and a rather stupid one, at that. Last I could figure out, he was still on paid leave: maybe the report will at least lead to his firing, and/or that of erstwhile Campus Police Chief Annette Spicuzza, also on “administrative leave.” Of course, for the report’s evisceration of Pike to be perceived as having merit, Chancellor Linda P. B. Katehi would have to acknowledge that her conduct, too, was blameworthy. They’re all culpable, they’re all incompetent, and they’re all liars. Doesn’t matter. Chances are, all three will be at Davis as long as their little hearts desire. Because California has plenty of money to pay these three buffoons six-figure salaries apiece, after all, right?

Oh, how I wish we had reached the nadir of common sense as regards pepper spray with the events at UC-Davis. Alas, there’s one more step. So far.

A “School Resource Officer” (don’t worry, I don’t know what that is, either--this might help) subsequently identified as Anthony Brown sprayed down a hallway at Jack Robey Junior High (!) in Pine Bluff, Arkansas because the kids weren’t getting to class fast enough. Three students were hospitalized; over a dozen more left school early.

I mean, seriously, how freaking stupid can you get? The list of things transcendently stupid about this tactic would stretch from here to Ashtabula. The National Association of School Resource Officers describes one of the functions of SROs as to “provide a visible and positive image for law enforcement.” Yeah, well, no.

The provocation was miniscule enough as is, but if, as one report suggested, the problem was that students were obstructing the hallway, then the logical surmise is that some of those caught in the logjam might actually be trying to get to class. In other words, innocent people were going to be harmed by the precipitous and bone-headed act. Rather than risk the health and well-being of innocent bystanders, the military and the police will often allow the most heinous of miscreants to escape. This idiot is willing to send people to the hospital (or worse) because somebody else was late for pre-algebra.

Ah, well, but according to the Doofus in Charge Superintendent Jerry Payne, the canister was pointed downward, not directly at the students. Like Jonathan Turley and Jack Marshall, I’m more than a little unimpressed. For one thing, as Turley points out, “The idea of spraying a painful caustic substance into a hall as a crowd motivator is the definition of not just negligence but assault and battery.” For another: if this is the damage caused by pointing the spray away from students, what the hell is in there, and what kind of damage could it do if, like the women in New York or the students at Davis, someone were actually to catch this right in the nose or eyes? Student Faith Forney says she “walked right into it.” And what assurance do we have that similar circumstances wouldn’t lead to someone catching this junk square in the face?

There are serious problems here. What the hell is an SRO doing with spray this potent? Who authorized it, either for the police or for the school district? Who hired this idiot? And—assuming (safely, I suspect) the blame doesn’t all fall to Officer Brown—who was responsible for training people carrying this grade of pepper spray around as to why, when, and how to use it appropriately? And why wasn’t that person fired, along with Brown and Payne?

Three disturbing trends present themselves with respect to the three incidents I just described. First, the officers in question—those with access to this hideous stuff—are increasingly less important: we go from a Deputy Inspector for a major city police force to a lieutenant for a UPD, to a School Resource Officer. The victims went from adults to college students to junior high kids. And the provocation went from yelling at armed policemen to organized passive resistance to walking too slowly. By all three of these taxonomies, then, the situations keep getting more egregious. And that’s after acknowledging that Bologna’s actions were appalling and indefensible.

Another source of some concern is that we, as a culture, seem to be developing a tolerance for this sort of misbehavior by the authorities. The Pine Bluff incident wouldn’t have shown up on my radar screen if I hadn’t read about it on the Ethics Alarms blog. Maybe it wasn’t as “sexy” because it couldn’t be linked to the #Occupy movement, which the media had a grand time covering (as usual) simultaneously too much and too little. But it sure as hell should be a major story: after all, the right likes to blame schools for society’s woes; the left likes to blame the police. Here’s the intersection of both: everybody wins!

Seriously, though, there needs to be some uproar over this stuff. Because the next step in the progression is crossing guards’ pepper spraying kindergartners for wearing mismatched socks.

[The post was edited slightly on 4/15 to clarify that Chief Spicuzza of the UCDPD has also been on administrative leave since shortly after the incident there.]

Arrogant Intrusions into Personal Freedom and the House GOP (not about women's health issues)

“No matter how cynical I get, I just can’t keep up.”

—Lily Tomlin

Okay, so when was the last time Facebook was on the right side of a privacy issue? Well, they are this time—of course, it’s also in their selfish interest to be on the right side of this one, so they don’t get a lot of credit, but still….

Facebook’s Chief Privacy Officer, Eric Egan, issued a statement about the abhorrent policy adopted by some potential employers, including (especially?) law enforcement agencies, of requiring job applicants to surrender their passwords to Facebook and similar social media accounts as part of the interview process. Egan points out that:

As a user, you shouldn’t be forced to share your private information and communications just to get a job. And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job. That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.

The legalistic tone is actually supported here: the insistence that an applicant reveal private information is indeed a violation of the TOS agreement with Facebook. In other words, the request is a de facto demand to break a contract: the fact that the most egregious offenders are law enforcement agencies—as, for example, the Maryland Department of Public Safety and Correctional Services and the McLean County, IL, sheriff's office, as spelled out in Manuel Valdes’s AP article last week—adds a piquant savor of irony to the whole mix.

It is, of course, all well and good for those of us not on the job market to be righteously indignant about this policy—and certainly all prospective employers who try this kind of crap should be called out on it, publicly—but the fact is that in this economic environment, applicants will do pretty much anything to get a job. This makes it all the more important that employers act responsibly, and all the less likely that they’ll actually do so.

Employers can get away with being arrogant asshats, so they’ll jerk off to their little power plays at least until such time as the pool of well-qualified candidates is significantly affected either by lack of applications to begin with or by enough job-seekers telling the personnel office to perform an act most easily accomplished by especially limber hermaphrodites. More importantly, this affects all of us, not just those who are being extorted directly. If you give up your password, my privacy as your friend is compromised, even to the extent that an employer who has no real intention of hiring you, anyway, now has access to my private communications to you.

It’s no wonder Facebook is a little grumpy about this. I find myself constantly warning my students about things they have released to the public. And Facebook has always been rather free and easy with other people’s privacy—making default privacy settings as loose as possible, sometimes without as much as telling users of new policies. This Machiavellian hellishness is worse, however: if I’m taking reasonably good care of my own privacy, I have relatively little to fear from your actions—I need to expect that anything I post to your wall, for example, will be read by people who are strangers to me or even antagonistic towards me. But I can do something about that, simply by not posting anything I’m not perfectly happy to have associated with me by everyone from my boss to my students to my teenaged niece.

Giving over your log-in credentials, however, means that your prospective employer has access to my private messages to you: the one about my loved one’s terminal illness, my decision to look for another job, my venting about my boss (which I’d only do to you, because I rightly trust your integrity and trustworthiness, although I underestimate your economic desperation). And as if that weren’t enough, some hack in the personnel office also gets to find out what sites I’ve liked: they’re not interested in the fact that I’m a New York Rangers fan, or even that I like the Grateful Dead… no, they care about the Gay, Lesbian and Straight Education Network; Being Liberal; Don’t Invite Anyone Who Thinks Ayn Rand Makes Sense to Your Next Party; The Other 98%. Because thus invading my privacy means, to their McCarthyite mentality, that you hang around with undesirables… even if I haven’t seen you since we were in high school together almost 40 years ago and we weren’t really close even then. Of course, this all presupposes that the little parasites are even pretending to be doing their job and not just feeding their voyeuristic fantasies: a hasty assumption, to be sure.

Oh, how I wish the people conducting these little assaults on a free society weren’t dead stupid. I’d love it if someone asked for a Facebook password and hired the first person who showed appropriate common sense and discretion and told them fold it five ways and shove it where the sun don’t shine. Alas, the folks perpetrating this unethical and sleazy attack on personal freedom are generally dumber than the proverbial box of rocks. One of my students reminded me this morning of the late, great, George Carlin’s observation: “Think of how stupid the average person is, and realize that half of them are stupider than that.” Yeah, that seems rather pertinent about now.

The only slightly less sleazy first cousin of this tactic is to insist that employees “friend” their boss or some minion in the personnel office or whatever. This is still intrusive, still unethical, but it can be circumvented, and it’s not going to open up other people’s lives to scrutiny. Of course, there’s still something creepy about this business: I consciously avoid friending students or others who might think they’re under some obligation to respond favorably to a friend request. I will respond to their requests to me, but they must initiate the process. The result is that there are a number of students with whom I’m rather close but who are not FB friends, whereas others whom I know only slightly are friended (some are granted only limited access to my page, however). But that’s OK. I really have no particular desire to be a stalker.

The reason I’m writing about this is more than simply astonishment at the audacity of the perpetrators, however. You see, Congressman Earl Perlmutter (D-CO) tried to do something about this situation. He introduced an amendment to a House bill, attempting to allow the FCC to prevent the practice:

Nothing in this Act or any amendment made by this Act shall be construed to limit or restrict the ability of the Federal Communications Commission to adopt a rule or to amend an existing rule to protect online privacy, including requirements in such rule that prohibit licensees or regulated entities from mandating that job applicants or employees disclose confidential passwords to social networking web sites.

And not a single Republican in the whole damned House of Representatives voted for it. Really.

OK, OK, so Perlmutter’s scheme may have been more political than substantive. It was a motion to re-commit. That means he wanted to send the whole bill (the Federal Communications Commission Process Reform Act of 2012, to be precise) back to committee. He wanted to delay the passage of the bill, in other words. He could have introduced the amendment per se, and didn’t. He chose instead a tactic that, had it been successful (in legislative as opposed to political terms), would have thwarted, at least for a while, legislation intended to make the FCC more transparent. Wait… I thought it was the Democrats who wanted transparency and the Republicans who were obstructionists. But, then again, it was the Democrats under Clinton who played around with the Clipper Chip and similar nonsense (albeit the erosion of 1st Amendment rights by the PATRIOT Act—the most perversely ironic political term since Bolshevik—trumps all). You can’t tell the players without a scorecard.

Anyway, Greg Walden (R-OR), the chairman of the Energy and Commerce Subcommittee on Communications and Technology, argued that Perlmutter’s amendment “wouldn’t protect the consumer.” Ummmm… were any of us talking about consumers? In any case, Walden argued that the amendment wouldn’t work (why not?), all the while pretending that his objections weren’t just as disingenuous as Perlmutter’s motion. The Republicans wanted their bill passed, and the Democrats wanted to play for time. But Perlmutter and his cohorts also know that this topic is a political winner for their side, especially if they can maneuver the GOP into opposing this obviously people-friendly legislation. The House Republicans would have to be pretty stupid to fall for that little subterfuge. Needless to say, they are, and they did.

Walden might even be telling the truth that he really is interested in privacy issues and really is willing to talk further about the topic. But the political horse is already out of the barn. The Democrats might not have gotten everything on their wish list, but they accomplished their principal objective of those within their reach: not really able to influence legislation, they succeeded in making the Republicans look bad… not that those guys need any help. It was a cynical ploy, and it worked. Ah, the political life…

There’s a Bob Dylan lyric that sums up the Democrats’ strategy:

You didn't know it
You didn't think it could be done
In the final end he won the wars
After losin’ every battle.

The song? “Idiot Wind.”

Apt.

Because the DOJ has nothing better to do...

One of the truisms of American politics is that no politician is as interested in libertarianism (civil or otherwise) as (s)he pretends to be. Otherwise they wouldn’t be interested in being part of the government, right? And I’m not talking here about the garden-variety Republican hypocrisy of claiming to want smaller government while sticking the elephant’s nose into health care decisions and underwriting certain forms of religious expression while seeking to prohibit others. Nor is this about the equally preposterous Democratic claims to personal liberties while pushing for a national ID card or cranking up the silliness required to board a flight. No, this is about the betrayal of what really are the tattered remains of core values in both parties.

Thus, the Crown Prince of Small Government, Ronald Reagan, not merely (almost) tripled the national debt, but did so largely by having federal spending reach as high as 23.5% of GDP (Jimmy Carter never reached 22%; wild-eyed spendthrift Obama in 2010: 23.8%). That’s also how Barack Obama’s Justice Department is being even more stupid than their predecessors with respect to medical marijuana.

I am not a lawyer, so I’m not going to try to interpret the intricacies of the law, but I’ve been told by a really smart man that I “know something and can read.” I know, if nothing else, that justifying the federal ban on medical marijuana, even when states allow it, based on the interstate commerce clause is insane. It was when I wrote about it in 2005, and it is today. Whether there are other legal grounds for upholding federal jurisdiction, I don’t know. But I do know that in a time of scarce resources, a program which alleviates pain for some of the citizenry, generates tax revenues, and would cost a bunch of money to shut down ought to stay around because of inertia if nothing else.

This is not the time to re-visit the old arguments about whether medical marijuana is a good idea or not. But it may be time for a reminder that proponents of states’ rights generally mean that Alabama ought to be able to discriminate against minorities despite the US Constitution, not that Californians ought to be allowed to have medical marijuana when that same Constitution (as read by anyone with an IQ above their shoe size) specifically tells the feds to butt out.

More importantly, the time is definitely ripe to look at the arguments being made in favor of this stupid and wasteful initiative. Here’s a good chunk of the announcement by Melinda Haag, the US Attorney for the Northern District of California.

More than 40 years ago our elected federal representatives determined that various substances have a high potential for abuse and no accepted medical use in the United States. Based on these findings, Congress passed laws making it unlawful for people in this country to manufacture, cultivate or distribute various drugs, including heroine, MDA, LSD, and marijuana, among others.

In other words, the fact that there now is an “accepted medical use” is irrelevant, at least until the Congress does something about it. I’d comment further, but I can’t improve on the wisdom of the great Mark Twain: “Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself.”

Many in the marijuana industry have portrayed the Oct 2009 Department of Justice guidance as giving a free pass to any marijuana business that invokes state law or calls its customers patients. That was frankly never correct.

Precisely. If it is a violation of California law, prosecute it… or, rather, assist California in prosecuting it. But Californian authorities, not a US Attorney, get to decide what violates California law.

In the Northern District of California marijuana cultivators are converting our public lands and pristine forests into large-scale clandestine marijuana grow operations. They are cutting down trees and plants; they are diverting streams, polluting the water table, and the land with toxic pesticides. They are starting wildfires, bringing in undocumented workers from Mexico, some of whom may be the victims of human trafficking. Many of these workers who guard the grow operations do so with firearms, thereby endangering hikers who might unwittingly stumble in.

[And when the growers are through] they harvest their crops and leave behind literally tons of trash, unused pesticides, hundreds of miles of plastic piping, camping equipment and human waste…

Then maybe you ought to… you know… go after them for: unauthorized use of public lands, pollution, vandalism, littering, reckless endangerment, smuggling, immigration violations, hiring violations, weapons charges… and maybe, just maybe, you could just go ahead and do that without making a speech about it.

Even under California law, marijuana cultivation is supposed to be not for profit. What we are finding is that people are using the cover of medical marijuana to make extraordinary amounts of money, in short to engage in drug trafficking. And many of these drug trafficking operations are in plain sight. In many communities, like mine, you can't walk a mile without seeing multiple retail marijuana stores, sometimes surrounded by fences and patrolled by security guards. If you sit and watch for a moment, you see cars pulling over, seemingly young healthy people jumping out of the cars, running into the store, and emerging with paper bags full of marijuana.

Some of these operations allow their customers to smoke marijuana while on the premises. Presumably at least some of them get back into their cars and drive away impaired. There’s a reason for the security guards and fences; where there's marijuana there's money and lots of it. These places are prime targets for robberies and violence...

Again, prosecute, or help California to prosecute, these people. If they’re actually “drug trafficking,” arrest them. The fact that I think marijuana probably ought to be de-criminalized (at least) doesn’t change the fact that people are currently breaking the law and endangering other people. So do something about the real law-breakers. But don’t do this:

[Because of limited resources] I have decided to focus initially on stores that sell marijuana and allow people to smoke marijuana very close to schools, parks and other places where children learn and play.

Would someone please knock it off with this utterly phony concern for children? There are lots of things wrong in the lives of America’s kids, but being in the proximity of a medical marijuana dispensary doesn’t make the Top 100 list. I presume the California law authorizing medicinal use of marijuana says something about proximity to schools and parks. If it doesn’t (and an article in the not-exactly-leftist Wall Street Journal suggests precisely that), then you, Ms. Haag, are a moron of the first order. Even if it does, I shudder to think about what some over-zealous cop (there’s another kind?) will make of “other places where children learn and play.” This fuzzy-mindedness isn’t merely an example of perverse priorities, it veritably begs to be abused.

Last week we sent letters to the landlords and lien holders of these stores, putting them on notice that marijuana is being sold and used on their property in close proximity to children and that the operations must cease. I understand that there are people in California who believe that marijuana stores should be allowed to exist. But I trust these same people would all agree we don't need marijuana retail outlets across the street from playgrounds and schools and little league fields.

Actually, no, I wouldn’t agree, for the reasons just noted. And I sure as hell wouldn’t agree that landlords and lien holders ought to be threatened with prison sentences of up to 40 years. Those are goon tactics, throwing your weight around simply because you can. If someone is doing something really illegal, or really likely to undermine the safety and stability of a community, stop them. But unless your goal is to make the Obama administration look like right-wing caricatures of it, you need to stop with the absurd threats against those who have done nothing wrong. And that would include all the other stupid stuff your colleagues across the country are doing. Quoting the MSNBC article:

•In Colorado, which also allowed medical marijuana, the Treasury Department is requiring that banks close accounts of legal medical marijuana businesses.

•The IRS says dispensaries may not deduct standard business expenses such as payroll, security or rent. “The result will be closure of the most well regulated dispensaries and loss of millions of dollars in tax revenue for local governments,” the group stated.

•The Bureau of Alcohol, Tobacco, Firearms and Explosives last month ruled that medical marijuana patients sanctioned by states cannot legally possess firearms.

Seriously, are you people insane? You can’t come up with a higher priority than hassling people who are obeying state laws, especially when you’ve pretty much indicated that you weren’t going to be doing anything drastic.

Ethan Nadelmann, executive director of the Drug Policy Alliance puts the situation this way: “Barack Obama is betraying promises made when he ran for president and turning his back on the sensible policies announced during his first year in office.” The extent to which Mr. Obama is personally responsible for this misguided policy initiative is unclear. That it reflects poorly on his administration is not.

"Fuck Obama" and the Mad Mathematician

In doing a little research for my last piece about the kerfuffle at UW-Stout, I came across another article at Popehat, this one by Patrick, about freedom of expression on yet another college campus. This one particularly caught my eye because the university in question in Sam Houston State University, my current institution’s arch-rival. The Popehat article gives only the bare bones; the Foundation for Individual Rights in Education (FIRE) site has more of the details.

It seems that a coalition of student groups from across the political spectrum—the SHSU Lovers of Liberty, Bearkat Democrats, Young Democratic Socialists, and College Republicans—joined together a fortnight or so ago to protest a proposed university social media policy. The groups co-sponsored a “free speech wall” on which students could write anything they chose. You see where this is going, don’t you, Gentle Reader? Post-adolescents, complete freedom to say anything… somebody is going to think the quintessence of wit is to use the so-called F-word. Aaaaaaannnd: they did. A letter from FIRE’s VP for Programs to SHSU President Dana L. Gibson spells out some of what appeared on that wall:

Many students wrote a variety of political and other messages on the wall, including “don't hate against Gays ...,” “If you make less than $200,000 Republicans don't care about you,” “God so loved the world He sent His one and only son ...,” “Best thing I've ever seen at this raggedy school!!!,” “Life's not a bitch, Life is a beautiful woman ...,” “Han Solo Shot First,” “My boyfriend is a liar!,” “Legalize Weed!!!,” “NAZI PUNKS FUCK OFF!!!,” and “FUCK OBAMA.” In response to “FUCK OBAMA,” others continued the conversation. One person wrote “BUSH” under “OBAMA.” Another added “you,” apparently to signify saying “fuck you” to the person who had written “FUCK OBAMA.”

You can see part of this, at least, in the photo above. Anyway, along comes Math professor Joe E. Kirk, who was offended by the Anglo-Saxonism, specifically in reference to the President of the United States. He demanded the profanity be removed or covered up. The students refused. Kirk then went to his office, returned with a box cutter (yes, really) and performed a fuck-echtomy.

As far as I can tell, no one has actually asked Dr. Kirk exactly why he did that. He’s not a young man (if his college graduation year is an indicator, he’s in his early seventies), and the expletive may have actually bothered him. Maybe he’s a die-hard Democrat—apparently the wall featured a number of f-bombs, but only one was cut out. Or maybe “fuck [anybody but the POTUS]” is OK.

Anyway, according to Morgan Freeman (that would be the president of the SHSU chapter of Lovers of Liberty, not the one you’ve heard of), the students then:

called [their] advisor, who called one of the deans. The dean said to call the police because Joe Kirk had used a potential weapon. The police (UPD) came and interviewed us and then went to talk to Joe Kirk. They returned and said we had to either cover up the profanity or take it down. There was too much profanity to cover it all up. We decided if we were not really free to exercise our freedom of speech, then there was no point in having a free speech wall. So we removed the paper, and then disassembled the wall, packed it up and left.

And there you have it: a neat little free-speech episode with no one to root for.

The administration? Well, they were willing to create a social media policy that was imposed from above without appropriate consultation with students, staff, or faculty. It’s also incompetently written: if parallelism means anything anymore (and if the draft version posted online hasn’t been corrected), there’s a section that reads: “[The] University claims the right to remove comments and content from social media accounts if they… Do not violate the terms of use/service of the social platforms you use.” (pp. 8-9 of the pdf file) Yes, that’s right, you’ll be censored if you do not violate the TOS of the provider. That’s not what was intended, but that’s what it says. And the ultimate response to this brouhaha? “The incident… is currently under investigation.” I feel better already.

The student protesters? Well, they got their skivvies in a twist over a policy that is really only intended to protect the university from unauthorized or inappropriate use of the school’s brand: you can say whatever you want, but you can’t say it as a representative of SHSU. As an administrator of our School of Theatre Facebook page, I’ve removed spam, and I would, if necessary, remove posts which would reflect poorly on our program… whatever the reason. There is no right being violated by removing graffiti, whether the medium is paint or a Twitter feed.

Moreover, they had to have known that their little exercise in “free speech” would degenerate into a battle of who could say “fuck” with the most fervor. While there are a couple of expressions on the wall that actually qualify as political speech—the protection of which was the real intention of the 1st amendment—most are, to use a term that’s probably literally true in some instances, sophomoric. There’s no law against that, and their right to free expression should not be abridged simply because they nothing of value to say, but it would be nice if they didn’t feel so compelled to demonstrate their vacuity.

Professor Kirk? He had the right to be upset, but not to wield a box-cutter. Vandalism isn’t cool. The end.

The dean? Suggesting that the real problem was that Dr. Kirk “had used a potential weapon”? Assuming Ms. Freeman reported the dean’s words correctly, this is right up there with the stupidity manifested at UW-Stout. Other potential weapons that clearly were not used as such would also include the hot sauce in Prof. Kirk’s chili and the car he drove home in. Dean = Moron.

The campus police? The words on the protest wall were pretty clearly intended for no reason other than to be offensive, but they didn’t rise to the level of disorderly conduct, regardless of what the university’s Deputy Police Chief may think. The Houstonian, the student newspaper, reports that the statute in question reads as follows: “A person commits an offense if he intentionally or knowingly; (1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace.” The first part happened; the second didn’t. It wasn’t the language that incited a breach of the peace, and whatever breach there was wasn’t immediate.

Still, we can make a case that the situation at least neared a grey area. It was the dithering that really looks bad: clearly there was no violation if the investigating officers didn’t think so when they first showed up. Leaving and then returning with threats is tacky at best.

This case is nowhere near as clear-cut as the one at UW-Stout. There, no reasonable person could possibly have read the “Firefly” poster as a threat. Here, well, “fuck” bothers some people, especially when applied as an insult to the President. Moreover, while a university does not have the right to limit student speech per se, they do have a right to maintain order on their campus and to apply rules of conduct for the use of university facilities. It is this same principle that allows universities to forbid firearms or alcohol on campus, or that allows me to throw someone out of my classroom or my office, even though they’re in a state-owned building.

The students in question are jerks. But they’re politically active post-adolescents: it’s sort of their job. Still, the conflation between that which is legal and that which ought to be done continues to be troubling. Professor Kirk needs to chill, possibly in retirement. The campus police need to enforce the law and the Constitution, not their personal agendas. And the administration would do well to talk to, instead of at, students and faculty. Because they fucked this shit up.

"Firefly," Fascists, and Freedom of Speech

For a year or two, there was a sign on my office door that read “Perge, scelus, mihi diem perficias.” That translates roughly as “Proceed, varlet, and render the day perfect unto me,” or, more colloquially, “Go ahead, punk, make my day.” It was, of course, a joke: the merging of a popular culture reference with my projected self-image both as intellectual and as (pedagogical) tough guy. Anyone who felt threatened, even after having the saying translated, is too stupid to be in my classroom.

Now a different professor of theatre at a different non-flagship state university is at the center of a controversy involving a very similar door decoration. James Miller teaches at the University of Wisconsin-Stout. He put a poster (shown at right) from the now-cancelled television show “Firefly” on his office door. It reads “You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.” Much to the consternation of some of my students, past and present, I’ve never seen the show, but commentators who are fans assure me that the quotation in question comes from the pilot episode, in which the hero responds to a question about whether the other character will be killed in his sleep.

I can’t confirm that, but anyone with any right to be in a theatre building can read a text well enough to understand that the meaning of the line is the precise opposite of a threat: “You have nothing to fear from me unless you take up arms against me, in which case I will annihilate you.” All of which proves that the Chief of the University Police, one Lisa A. Walter, is an idiot. She removed the poster and then informed Mr. Miller by e-mail that she had done so, claiming that “it is unacceptable to have postings such as this that refer to killing.” Seriously? I'm glad she wasn't the one deciding whether we could advertise our recent production of Yeats one-acts, including (OMG!) The Death of Cuchulain.

Miller reacted pretty much as I would have if my sign had been removed by some moronic campus cop who was as incapable of reading comprehension as she was of respecting personal liberties. (I hope I wouldn’t have called her “fascistic,” as Prof. Miller did in his response, but I make no guarantees.) And then the escalation began. Not content with being merely stupid, Chief Walter ratcheted up the stakes:

My actions are appropriate and defensible. Speech can be limited on a reasonable expectation that it will cause a material and/or substantial disruption of school activities and/or be constituted as a threat. We were notified of the existence of the posting, reviewed it and believe that the wording on the poster can be interpreted as a threat by others and/or could cause those that view it to believe that you are willing/able to carry out actions similar to what is listed. This posting can cause others to fear for their safety, thus it was removed.

I am willing to schedule a meeting with you to discuss this further, if you wish. If you choose to repost the article or something similar to it, it will be removed and you could face charges of disorderly conduct.

Well, no, Chief, your actions were inappropriate and indefensible. No rational human being would come to a “reasonable expectation” that a poster from a television show (you might not have known that, but surely you could figure out that the poster was mass-produced, right?) could possibly cause a “disruption of school activities,” “material and/or substantial” or otherwise, or that the words on the piece of paper constitute a threat of any kind. If other people “fear for their safety” because of that poster, it is your responsibility to escort them to the psychiatric ward, not to confiscate private property without as much as a warrant. Certainly it is you, with your terrifying admixture of stupidity, arrogance, and simple bravado, that constitutes a threat: charges of disorderly conduct? Really?

Miller then raised the tension level again, e-mailing Walter in apparent disbelief:

Postings that "refer" to violence constitute a threat? As in a poster from Hamlet? Or a news clipping about Hockey players that commit violent murder? [EDIT: This last line seemed a bit strange, so I looked it up: sure enough, there was a local story about a group of hockey players allegedly causing the death of a fellow student. Two were charged with felony murder; ten were suspended from the team but not from the university: actual violence apparently fits in fine with the sense of warm fuzzies sought by the Stout administration.]

Don't threaten me with charges that have no basis in reality—I am a committed pacifist and a devotee of non-violence, and I don't appreciate card carrying members of the NRA who are wearing side arms and truncheons lecturing me about violence.

And, of course, he put a different poster on his door: the one to the left, showing a beat-down of a citizen by a cop, with the cutline “Warning: Fascism. Fascism can cause blunt trauma and/or violent death. Keep Fascism away from children and pets.” Whether Chief Walter was really too dim-witted to know that she was the target of the commentary or just wanted to pretend that she wasn’t, her response was sadly predictable: another removal, another inane justification e-mail:

My office removed another posting from the outside of your office. The posting depicts violence and mentions violence and death. The campuses [sic.] threat assessment team met yesterday and conferred with UW System Office of General Counsel and made the decision that this posting should be removed. It is believed that this posting also has a reasonable expectation that it will cause a material and/or substantial disruption of school activities and/or be constituted as a threat.

Notice that the precise “charge” is never spelled out. More importantly, it’s no longer just Walter who is on the silly side. I’ve spent the vast majority of my adult life on college campuses (I’ve taken or taught college courses for at least one semester in every calendar year since 1973), and I’ve known, at least in passing, a few dozen campus cops. Many are nice people, the majority are no doubt perfectly qualified to hand out parking tickets and break up parties that get too loud, but I don’t think many will ever be accused of being intellectual giants. Conversely, more than a few are self-important jackasses. It would be an exaggeration to say that I expected Chief Walter to fall into this latter category, but it certainly didn’t surprise me.

But now we have the portentous-sounding “threat assessment team” and indeed the university system’s General Counsel getting into the act. These people should know better. It is more than a little distressing that they do not. This is where I yield to Ken at Popehat:

If a rational person wouldn’t take it as an actual threat of violence, then it’s not a true threat that can be censored, however much the hysterical, irrational, nanny-stating, coddling, or professionally emo think about it, and however much university chancellors would like to believe otherwise….

A system in which what we can say is premised upon the likely reactions of the mentally ill and the undernourished pussywillows of the world is a system that encourages suppression of all unpopular, forceful, interesting, or challenging speech. The irrational and the morally and mentally weak are not entitled to have their feelings protected through the force of law, however prevalent they are on campus….

If your “UW System Legal Counsel” told you that these posters could be censored based on their content, then stop hiring lawyers out of the back of a bait shop.

Anyway, about the same time as Walter and the Minions launched into their tap-dance routine, Dr. Miller brought FIRE (the Foundation for Individual Rights in Education) on board. FIRE is best known for rallying around right-wing students whose tender sensibilities have been affronted by rationality (expecting students in a biology class to articulate the principles of evolution, for example), but, like the ACLU from the other direction, they actually do believe in a philosophy rather than an ideology. In other words, they really do care about free expression. And, alas, I must tell you that in my experience there have been more assaults on academic freedom and 1st amendment rights on campus from the left than the right.

Anyway, this is right up FIRE’s alley, and they blasted away with an article on their website and an all-out publicity blitz, sending an open letter to Chancellor Charles W. Sorensen of the Stout campus, and enlisting directly or indirectly the assistance of actors Adam Baldwin and Nathan Fillion from the “Firefly” series (that’s Fillion on the poster), plus such decidedly disparate sites as Reason.com and Gawker. (Gawker’s story is particularly snarky and therefore dear to my heart.) Unfortunately, rather than listen to reason or to argumentation (and derision) from the left, right, and center, Chancellor Sorensen punted.

He and his equally craven, hubristic, and vacuous senior staff—Provost Julie Furst-Bowe and Vice Chancellor Ed Nieskes—sent an e-mail to all faculty and staff at the Stout campus, attempting to spin their thuggishness, repressiveness, and outright fatuousness into something comprehensible if not noble. I include the entire e-mail here, with my commentary inset and in brackets:

There have been recent news reports about an incident in which two posters hung by a UW-Stout professor outside his office were removed by campus police. There are some important points to consider in the wake of these incidents:

[Indeed, there are…]

UW-Stout administrators believe strongly in the right of all students, faculty and staff to express themselves freely about issues on campus and off. This freedom is fundamental on a public university campus.

[Then STFU.]

However, we also have the responsibility to promote a campus environment that is free from threats of any kind—both direct and implied. It was our belief, after consultation with UW System legal counsel, that the posters in question constituted an implied threat of violence. That is why they were removed.

[Bullshit. The first poster was removed before any such consultation, and everything after that came as a result of trying to justify that initial stupidity. So, first of all, stop lying. Secondly, if you think those posters “constituted an implied threat of violence,” you are barely intelligent enough to feed yourself, let alone sit behind a desk—even as students—at a reputable university. Finally, it is not your “responsibility” to enforce a threat-free environment, certainly not if the standard for an “implied” threat is what the most moronic reader (such as yourselves) might contort a perfectly innocuous expression into potentially meaning.]

This was not an act of censorship. This was an act of sensitivity to and care for our shared community, and was intended to maintain a campus climate in which everyone can feel welcome, safe and secure.

[True, technically this was not an act of censorship. That would imply that the state qua state was prohibiting free expression. No, you gaggle of dimwits are acting not as the state but as employer, thereby possibly rendering your inanity legal, although still ethically unsupportable and professionally incompetent. And puh-leeze, spare me your sanctimony, your sensitivity, and your caring. Give me instead, please, an institution that values reason, personal liberties, and the free exchange of ideas… because this ain’t it, and an out-of-the-closet intellectual such as myself does not feel the slightest bit “welcome, safe, [or] secure” in this “shared community.” Indeed, you three, the chief of police, and the general counsel all terrify me.]

There is one piece of good news… I have another reason to be happy where I am.

(Thanks to my netfriend Jack Marshall for alerting me to this story. You can read his commentary here and here.)

It Was a Bad Week for the 4th Amendment

On Saturday, I wrote about an astounding case in the Indiana Supreme Court, in which the majority found that, 796 years of legal precedent notwithstanding, citizens do not have right to resist even an unlawful entry into their homes by police.

Not to be outdone in authoritarianism, the US Supreme Court on Monday issued its own mind-boggling decision to move us one step closer to a police state. While their ruling was not as transcendently stupid as the one in Indiana, it did have the advantage of having an 8-1 supermajority. No wimpy-assed little 3-2 margin here, no siree Bob.

Can we take as a starting place that if you’re seriously asserting that the Supreme Court of Kentucky sided too much with the civil libertarians, you’ve got a pretty damned reactionary SCOTUS? But that’s exactly what happened in Kentucky v. King, in which the nation’s highest court ruled overwhelmingly that a warrantless search can be justified by smelling marijuana and hearing unspecified noises which might be interpreted to suggest the destruction of evidence, even in the obvious absence of any attempt to do that.

Lexington police pursued a suspected drug dealer into a hallway in an apartment building. Faced with two possible doors through which the suspect might have exited, they smelled what they thought was marijuana smoke coming through one door, banged on the door, announced their presence, heard whatever they heard, kicked the door in, and found three people, one of whom was in fact smoking marijuana, plus “marijuana and powder cocaine in plain view.” By the way, the suspect wasn’t there.

The details are significant: for the initial search to be legal without a warrant: 1). the police must had a legitimate reason to believe the people in the apartment were doing something illegal, 2). they must have had cause to believe that evidence was about to be destroyed (not merely hidden--see below), 3). they must not have created that exigency themselves, 4). and it must have been impractical to secure the premises and get a warrant. For the subsequent search to have been legal in the absence of a warrant, there must have been other evidence already in plain sight.

Of those four criteria necessary to legitimize the arrest of the people in the apartment, then, (remember, all of which must be met in order for the search to be legal), I’ll give them maybe one and a half. That this is nonetheless enough for an authoritarian idiot like Samuel Alito does not shock me. That it’s enough for Elena Kagan is a little more troubling.

About the best the majority can offer is that there was the smell of marijuana, after all. True, I doubt that any of the cops in question could differentiate between the odor of marijuana and that of, say, the herbal cigarettes sometimes used in theatre productions to approximate dope-smoking, but I’ll give them that one. Is that enough to kick down a door without a warrant? For the Stasi, sure. For the Lexington Police, not so much.

Because, after all, we’re supposedly a nation of laws: so when policemen “[bang]” on your door “as loud as [they] could,” they are not “demanding” entry, because that, you see, would be illegal without a warrant, and our fine men in blue wouldn’t do that. No, pounding on a door screaming “This is the police” or “Police, Police, Police!” is little more than a polite request for conversation, tantamount to wanting to borrow a cup of sugar or wondering if the apartment's residents thought the Bengals were going to suck again this year. Notice that the cops can’t remember exactly what they said, but they remember that it was loud (because it has to be to fulfill one set of guidelines), and they definitely didn’t, for example, use the words “Open up,” because that would be unconstitutional. Uh huh.

The response to this conversation-opener was apparently “people inside moving.” OMG, NO! They might, of course, been moving toward the door to open it. They might have been walking away, since Justice Alito makes a big deal out of their right to do so:

… even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

They will let just about anybody be on the Supreme Court, won’t they? The one thing we can pretty much conclude didn’t happen was an attempt to destroy evidence. How do we know? Because all the evidence remained in plain sight. The people in the apartment would have had to have been even more incompetent than the police to have that theory fit the evidence.

Here’s the necessary time-line: the suspected dealer (remember him?) runs down the hallway and presumably enters the apartment across the hall, quite possibly slamming the door behind him. The police follow, probably not silently. Deciding to follow the wisdom of the great criminologist Toucan Sam and follow their nose, the police pounded on the apartment door, announced their identity, heard noises, decided what those noises were, “explained” (love that word choice) their intention to enter the apartment, and kicked the door in. During this time, all three people in the apartment remained in the front room, the marijuana and cocaine stayed in plain sight, and the “guest” didn’t even bother to put out his doobie. Interestingly enough, while I find this the most compelling argument to believe that the cops did some ex post facto consultation about what might conceivably get them a conviction, the Kentucky Supreme Court didn’t wish to pursue the matter, allowing the exigency argument to be assumed for the sake of argument, thereby allowing the US court to do so, as well.

The Kentucky court centered its argument that the search was illegal on the idea that the police created their own exigency: that by pounding on the door and announcing their presence, they precipitated the (phantom) attempt to destroy evidence. In other words, had they simply applied for a warrant, they would have received one, as the smell of smoke would provide probable cause. Justice Ruth Bader Ginsburg, echoing the Kentucky decision, wonders in her minority opinion

May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.

Justice Ginsburg argues further:

There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, “[persons] in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.” Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.

The target of the investigation’s entry into the building, and the smell of marijuana seeping under the apartment door into the hallway, the Kentucky Supreme Court rightly determined, gave the police “probable cause . . . sufficient . . . to obtain a warrant to search the . . . apartment.” As that court observed, nothing made it impracticable for the police to post officers on the premises while proceeding to obtain a warrant authorizing their entry.

Remember, for the search to be legal, it’s got to be not just plausible, but likely, that things transpired the way I described above. Moreover, the exigency argument applies only to the destruction of evidence. If the people in the apartment were merely hiding that evidence, there is no legitimacy to breaking the door down. Ironically, if they had in fact successfully hidden the drugs just to the point that they were not in plain sight, there would be no question than a warrantless search would have been illegal.

Even the SCOTUS majority agrees that for “a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves.” More importantly, they also grant that it is “a basic principle of Fourth Amendment law… that searches and seizures inside a home without a warrant are presumptively unreasonable.” In other words, it is not the apartment-dwellers’ responsibility to prove that the search violated 4th Amendment protections, but the state’s responsibility to prove that it did not.

Despite this, in large part because they simply assumed that the weakest part of the state’s case was true “for the sake of argument” (apparently because, and perhaps only because the Kentucky Supreme Court did so because they didn’t need that argument to decide against the police), a huge majority of the SCOTUS ruled the search was legal. Interestingly, had the police been competent enough to have chosen the right door on which to pound, it is much more certain they’d have needed a search warrant to enter the apartment of (apparently) a couple of small-time druggies. Police who know what the hell they’re doing need to follow the rules. It’s only the caricatures of the dumb and arrogant cop who, by virtue of their very unfitness to serve, are granted the privilege of ignoring the US Constitution.

This is serious. No, just as I don’t anticipate serial abuses of Indianans’ civil liberties as a result of that state’s absurd ruling last week, neither do I expect wholesale home invasions to stem from this SCOTUS decision. It is troubling, however, to consider the possibility that this case might be used to justify the unwarranted search of even a single citizen: a petty doper and coke-head now; perhaps just someone the police have a grudge against in the future. Some blogger who tends to disbelieve police stories without corroboration, for example.