I hoped that President Obama would live up to campaign promises to protect civil liberties in post-9/11 America. So far, he's been a grave disappointment on that subject.

But let's give his administration some credit on the occasions it is due. Kudos are due to the Department of Justice for taking the right position on the right of citizens to record police in public:

The Obama administration has told a federal judge that Baltimore police officers violated the First, Fourth, and Fourteenth Amendments by seizing a man's cell phone and deleting its contents. The deletions were allegedly in retaliation for the man's use of the phone to record the officers' arrest of his friend. According to the Maryland ACLU, this is the first time the Obama Justice Department has weighed in on whether the Constitution protects citizens' right to record the actions of police with their cell phones.

. . . .

"Although defendants have taken some remedial actions, these measures do not adequately ensure that violation will not recur," the Obama Administration said in a Tuesday court filing. While the city's new training materials acknowledge that it's legal to record the actions of the police, they "do not explicitly acknowledge that private citizens' right to record the police derives from the First Amendment, nor do they provide clear and effective guidance to officers about the important First Amendment principle involved."

As readers know, citizens' right to record cops without abuse is a major issue for us, and I submit that it is a canary-in-the-coal-mine issue on limits on police power. Good for the Obama DoJ on this one issue.

Thanks to tipster Andrea on the link.

Edit: In the course of shaking his palsied fist and yelling at me to get off of his lawn, Scott Greenfield points out that he already wrote about this, as did Radley Balko. Perhaps. But Andrea was the one who used a shiny object to attract my attention at the price moment when I needed something to post about. So there.

Since Rodney King, we've been told that citizens with video cameras will deter excessive force by law enforcement. As video cameras have miniaturized until they're just one app on a smartphone, we're told the same thing, only more emphatically. Patrick highlighted the possibilities here years ago, though sounding a note of caution that a mechanism for reporting what you've taped to a powerful entity is as important as the recording itself.

But you really didn't think that it was going to be that easy, did you?

A certain segment of law enforcement has always viewed the use of force against citizens not as an ugly necessity in extreme circumstances but as a perquisite of the job. Those cops are not going to change their spots just because everyone's got an iPhone. So now we have pushback. Radley Balko documented it at Reason, Carlos Miller documents it tirelessly at Photography Is Not A Crime, and Injustice Everywhere frequently has pertinent stories.

Sometimes the pushback is cloaked in shameless OMG-9/11-CHANGED-EVERYTHING rhetoric, and sometimes it's straight-up thuggery. Cops arrest people for filming police conduct — whether it's out in public or from the photographer's own lawn. Cops profess not to recognize cameras and pretend they are potential weapons, sending the not-too-subtle message that pointing a camera might get your ass shot. When they think they can get away with it, they destroy cameras wholesale. Prosecutors back the cops up: they prosecute citizens for things like "wiretapping" or "disorderly conduct" when they record encounters with cops (even — or perhaps especially — angry and abusive cops), and they abuse governmental power in an effort to keep government-created recordings secret.

So, how is this relevant today? Well, a link on Reddit led me to a disturbing but entirely consistent-with-this trend discovery: Google's Transparency Report, in which Google describes the number and type of take-down demands it receives. Did you think that the New Professionals would be content arresting photographers in the street? Hell, no. If we've gone digital, so have they. And they know how to work the system. Google reports:

We received a request from a local law enforcement agency to remove YouTube videos of police brutality, which we did not remove. Separately, we received requests from a different local law enforcement agency for removal of videos allegedly defaming law enforcement officials. We did not comply with those requests, which we have categorized in this Report as defamation requests.

Click that link and see the statistics for various six-month periods. Note that Google records not just take-down demands (including categories for executive and police demands premised on "national security" and "criticism," among others), but demands for user identifying information. Police would never abuse the system by demanding the identity of photographers who posted videos documenting their conduct, would they? Heaven forfend.

So: bear in mind, when you consider measures like SOPA, that giving the government increased power over internet posts and increased ability to seek out user information may not just impact talking about music and movies — it might impact our ability to talk about, and document, police misconduct. Think the police would never seek to abuse such power? Then you're a damned fool.

Radley Balko has posted the candidates for his 2011 Worst Prosecutor of the Year award. There's one silver lining in this dark, fetid cloud — it helps showcase the important work that Radley has done at The Agitator, Reason, and HuffPo in the course of covering our deeply troubled criminal justice system.

In every other way, the contest is deeply depressing. The criminal justice system relies upon prosecutors acting honestly and honorably. Too often, they don't.

Go read, throw up in your mouth a little, and vote on who is the worst. I couldn't decide. It made our Censorious Asshat of the Year contest seem like a ray of sunshine by comparison.

For reasons that will be evident below, I didn't push Reason Magazine's fantastic July 2011 issue, which took a hard look at America's criminal justice system. I should have sooner. If you care at all about criminal justice issues, it's well worth a read. As I've been saying for a long time, everyone should be outraged about how the system doesn't work, because it strikes at the hearts of all of our values — conservatives, liberals, libertarians, and [whatever you call the people who want to regulate Happy Meals]. It deserves the praise it has gotten. Radley Balko and the others involved (including but by no means limited to Jacob Sullum) deserve major kudos for showing what a news and commentary magazine can still do.

Let me add that I'm very proud to have been a small part of it. Radley kindly recruited me to write a blurb about the culture of prosecutorial misconduct. That was my first byline in a national publication; I'm stoked that it was in Reason.

Wow! Hey, Ken, you just revealed your secret identity! Well, yeah, kind of. But realistically the veneer of anonymity has grown pretty thin. When even a cuckoo-for-Cocoa-Puffs twit like Marc Stephens can find me in a few minutes, and when newspapers are making the connection, and when relatively soon I expect to be further outed in a story of a successful pro bono defense of a science blogger against a SLAPP threat [watch this space], there's not a whole lot of point in making a big effort to remain anonymous. I still support bloggers who do, and still believe in my reasons, but the cat is pretty thoroughly out of the bag at this point.

It shouldn't be said, but I will say it anyway: I don't use this space to promote my law firm, and nothing here represents the position of the firm. It's all my fault. I don't plan to throw my full name around here, because this space isn't about my firm.

Seriously, go read the Reason criminal justice issue, if you haven't already.

There's really no excuse for the fact that we don't have a "SHUT UP!" tag; I shall have to remedy that. After all, "SHUT UP!" is one of our most venerable and consistent themes.

There's a reason for this. The reason lies at the heart of law enforcement methodology in general and federal law enforcement abuse of Title 18, United States Code, Section 1001 in particular.

Imagine this scenario, based on an actual situation:

A business associate calls you and says, "my dear business associate, the shit has hit the fan; Federal Agency X is investigating Project Y we did together. Two Agency X agents are interviewing people."

"Oh coitus," says you, or words to that effect, and terminate the conversation.

Later that day, two well-dressed and polite agents of Agency X visit you. Because you despise me and want me to weep and gnash my teeth, you consent to be interviewed. At some point, they ask you "have you talked about this investigation with anyone?"

"No," you say.

They smile.

At the end of the interview, it occurs to you to ask, "Hey, am I in trouble? Do I need a lawyer?"

The agents smirk. "No," they say. "I mean, unless you lied about talking to anyone about this investigation."

See, you've fallen into a false statement trap, which I've talked about before. The feds know that you've talked to somebody about their investigation. They were probably standing next to your friend when he made that call this morning. And now you've talked your way into a felony.

Here's how it works. The feds identify some fact that they can prove. It need not be inherently incriminating; it might be whether you were at a particular meeting, or whether you talked to someone about the existence of the investigation. They determine that they have irrefutable proof of this fact. Then, when they interview you, they ask you a question about the fact, hoping that you will lie. Often they employ professional questioning tactics to make it more likely you will lie — for instance, by phrasing the question or employing a tone of voice to make the fact sound sinister. You — having already been foolhardy enough to talk to them without a lawyer — obligingly lie about this fact. Then, even though there was never any question about the fact, even though your lie did not deter the federal government for a microsecond, they have you nailed for a false statement to a government agent in violation of 18 USC 1001. To be a crime under Section 1001, a statement must be material — but the federal courts have generally supported the government's position that the question is not whether a false statement actually did influence the government, but whether it was the sort of false statement that could have influenced the government.

Hence, the government's chickenshit false statement trap works — even though the government agents set it up from the start. Now, however weak or strong their evidence is of the issue they are investigating, they've got you on a Section 1001 charge — a federal felony. In effect, they are manufacturing felonies in the course of investigations.

You think this is an improbable scenario? You think I'm talking about rare and extreme cases to color the entirety of federal law enforcement? To the contrary, as a federal defense attorney, I'm encountering this more and more often. Not to sound like an old fart, but we never indulged in such bullshit when I was a federal prosecutor (cue the scoffing from many defense attorneys). But in the last 12 years, I've seen it in a dozen cases, and heard about it from colleagues across the country. It's now routine for federal agents to close out an investigation with a false-statement-trap interview of a target in an effort to add a Section 1001 cherry to the top of the cake.

The lesson — other than that criminal justice often has little to do with actual justice — is this: for God's sake shut up. Law enforcement agents seeking to interview you are not your friends. You cannot count on "just clearing this one thing up." Demand to talk to a lawyer before talking to the cops. Every time.

SHUT UP.

What, you might ask, do head shops and Pedobear stickers have in common?

They both help illustrate what law enforcement thinks about "civilians" and about our role in society.

Dateline: Washington D.C. Via Radley Balko, we learn of a police raid on smoke shops, including one called Capitol Hemp. So far, so banal — another pointlessly mastubatory gesture in the financially and socially ruinous War on Drugs. What's notable about this particular raid is that the police, in drafting their affidavit of probable cause in support of a search warrant, argued that display of materials about constitutional rights was probative of criminal activity and criminal intent:

4. While your Affiant was looking at the smoking devices U/C [redacted] observed a DVD that was for sale entitled "10 Rules for Dealing with Police". The DVD gave the following listed topics that were covered as:

A. Deal with traffic stops, street stops and police at your door.

B. Know your rights and maintain your cool, and;

C. Avoid common police tricks and prevent humiliating searches.

Your Affiant notes that while this DVD is informative for any citizen, when introduced into a store that promotes the use of a controlled substance this DVD becomes a tool for deceiving law enforcement to keep from being arrested. The typical citizen would not need to know detailed information as to US Supreme Court case law regarding search and seizure because they are not transporting illegal substances in fear of being caught.

Yes, that's the same 10 Rules publication that we wrote about here last year — an utterly straightforward, inoffensive exposition about protecting your rights (and your safety) when interacting with law enforcement. The video tells people that they have a right — a right set forth in the United States Constitution — to remain silent and to refuse to give consent to searches. Taking a page from modern pro-statist "what do you have to hide?" rhetoric, the police say that a typical citizen "would not need to know" such information and that it is intended to "deceive law enforcement."

Of course, this is utter horseshit. Normal citizens who haven't done a damn thing wrong get arrested and abused and sometimes tased or shot by police all the time. Law enforcement would prefer that you lie back and take it, that you adopt the unprincipled and insipid "law and order" mindset and regard constitutional rights with the suspicion and contempt reserved in popular culture for hippies and ACLU lawyers. Law enforcement loves a servile populace.

The wished-for servility is not restricted to the sphere of constitutional rights. The sort of people who run your government would prefer that you not expose their justifications to the cold hard light of reason or scientific inquiry, either. This is hardly restricted to law enforcement — who hasn't seen a politician who refuses to go beyond his or her talking points in responding to probing questions about policy? But in law enforcement — in the ritualistic invocation of the magic words Think of the Children! — the demand for unquestioning acceptance of moronism reaches its peak.

This brings us to Pedobear.

If you have been on the internet much, you've probably seen references to Pedobear — a crass, semi-satirical, semi-gross reference to pedophilia in culture, sometimes employed to criticize the culture's grotesque sexualization of children, sometimes to make light of abuse. Pedobear is a meme, a reference, an internet in-joke.

At least, that's what people with a clue — people who habitually employ critical thinking — realize.

But law enforcement is notoriously incapable of separating internet memes from reality. That's why some local law enforcement officials have put out "warnings" about Pedobear, suggesting that references to him may denote actual pedophile activity, and that Pedobear stickers are a method for actual pedophiles to communicate with each other. In terms of credulity, this is roughly the equivalent of the Department of Education decrying a startling decline in grammar amongst photographed cats.

In New Mexico, the Attorney General's Office issued such a warning about Pedobear, leading first to gullible media warnings and then to embarrassed and resentful backtracking by the media . In response, Phil Sisneros, communications director for the Attorney General Gary King, wrote the ultimate apologia for stubborn irrationality in law enforcement:

For the record, of course our investigators know that the Pedobear symbology began as an Internet meme joke, poking fun at pedophiles, and yes, we know that anyone who has the bad taste to display a Pedobear symbol is not necessarily a pedophile…emphasis on the word "necessarily." If you are a parent of a three year old, can you really take a chance? This is most assuredly NOT fear-mongering by "well meaning government officials," as one journalist seemed to wonder about. Law enforcement personnel across the country know about Pedobear, they are also concerned. This is the Attorney General's Office simply trying to make New Mexicans aware that the Pedobear symbol is out there and we think the general public, especially those who are not clued in to today's Internet culture, deserve to know what the Pedobear symbol is about and how it is interpreted by law enforcement. Individuals can make their own conclusions as to the relative importance of this information. You don't have to drink the Kool-Aid to know what's in it, right? Lastly, if the Attorney General's Office is lambasted for being too cautious by doing anything and everything we can to help protect children from pedophiles…we're OK with that.

Remember, "it's for the children" — like "remember 9/11" and "War on Terror" — means never having to say you're sorry. It means never having to offer plausible explanations that can withstand rational inquiry. If you don't agree, what kind of parent — what kind of American — are you?

You have rights. Those rights include the right against self-incrimination, the right to be free from unreasonable search and seizure, and a right to think critically. Exercise them — even though a substantial segment of law enforcement thinks that doing so makes you a bad citizen.

Proving that every dollar you send to the federal government is a fucking joke, the Federal Bureau of Investigation's National Gang Intelligence Center devotes four pages of its annual report to the gang known as…

Juggalos.

Give a cop an inch of discretion, and he'll abuse a mile right into the ground.

Instead, the traffic offender said he was transported from the precinct to another holding cell in the basement of a separate courthouse. His detainment lasted hours. Confused, at one point he asked an official whether the department processes a lot of people for registration violations.

According to his account, after the official replied yes, he made a crack about "hardened criminals." The official then snapped that he wouldn't be saying that if someone he loved got hit by someone else with an expired registration.

Let's make this clear up front:  There is no correlation between timeliness of vehicle registration and vehicular negligence.  A driver with an expired registration is no more likely to kill than a Kennedy with four manhattans in his stomach.

But if you drive a car with a tag expired by ten days on the streets of our nation's capital, the District of Columbia police reserve the power to jail you.  As the linked story shows they exercise that power, all too often, busting moms as they pick up kids from school, friendly neighborhood ice cream truck drivers, and grandfathers as they drive, with an expired registration, to place flowers on the graves of beloved grandmothers.  I suppose.

Anyway, I can guess the "rational" explanation for allowing the Barney Fifes of DC to imprison citizens for something as simple as an expired license plate, and you can too: OMG 911!!!

To a bureaucrat's mind, the policy makes sense:  the nation's capital is the prime target for terrorists, and when Muhammad McVeigh is found on Pennsylvania Avenue in a darkened, idling panel van, burnt out cigarettes piling on the street, we don't want the local beat cop wringing his hands over whether he has the power to act on an expired registration.  Give the police the opportunity to exercise their discretion, sensibly, and it will all work out for the best.

Except it doesn't.  The cops are busting widows and orphans.

Policing is hard work, and I'm not about to suggest some harebrained solution like "negative discretion", keeping cops on a tight rein but permitting them, always, to choose not to exercise their power.  The people who write expired registration laws in DC and elsewhere, who have no more experience with the criminal justice system than I do (and often less), would just write new laws requiring arrest for trivial offenses, again trusting cops to exercise their discretion and do the right thing.  No, the best solution is an informed citizenry, one that views the police, and their masters, with suspicion, so that they'll think twice before writing foolish laws and policies in the first place.

Have you called a cop a pig under your breath today?

(Via Radley Balko)

This — a perfectly innocent woman being hauled off a flight, handcuffed, jailed, strip-searched, and grilled for hours — because some fucking ninny on the plane thought she and the two dark-skinned people sitting next to her were "suspicious", and because "better safe than sorry" has become a higher value to law enforcement than probable cause or reasonable suspicion or due process or common freaking sense, and because we're too cowed as a people to say anything about it.

Reporting on the issue is meek.

"Due to the anniversary of Sept. 11, all precautions were taken, and any slight inconsistency was taken seriously," Berchtold said. "The public would rather us err on the side of caution than not."

From what I can piece together, this woman got treated like that because she was seated in the same row as two Indian men who wen to the bathroom in succession and took longer than some passenger deemed necessary.

We have met the enemy, and he is us.

Via.

Back in the mid-90s, when I was a fed, I was making some DEA agents and local Sheriffs happy by taking seriously their investigation of a relatively low-level drug trafficking organization. I was helping them with warrants, doing some grand jury work, flipping low-level mopes, that sort of thing. Nobody else was taking them particularly seriously.

So when I got them a search warrant for the ranch of one of the lead targets of the investigation, they were thrilled with me. "Ken," they say, "we've arranged air support for this operation. So we want to have you picked up on top of one of the buildings downtown in one of the Sheriff's helicopters, give you a raid jacket, and have you come along on the search to run a command center on the ground and trouble-shoot any legal issues with the search."

HOLY SHIT, THAT SOUNDS LIKE FUN, my 26-year-old self thought. (Yes, I was a 26-year-old federal prosecutor. Defense attorney hand-wringing — which annoyed me at the time, but which I now join — goes here.) A helicopter raid! A raid jacket! A COMMAND CENTER! They'll probably give me a gun. You know, in case any shit goes down.

But even at 26 I had a certain rudimentary old-mannish quality, and it occurred to me to ask — does that sound too good? So during lunch I wandered into the office of the U.S. Attorney– who had been my supervisor in rookie row not long before — to talk about it.

He listened sympathetically. Then he told me. "Ken," he told me, "if your reaction to a proposal is "HOLY SHIT, THAT SOUNDS LIKE FUN," then as a government lawyer and member of law enforcement, you almost certainly shouldn't be doing it."

It was a hard rule, but one that served me well for the rest of my government career. It helped me avoid some foolish cinematic flourishes, some bad but tempting decisions, and some social events. (Take, for instance, the local ATF's notorious big-guns-and-barbecue-in-the-desert gatherings. Holy shit, that sounds like fun, doesn't it? Yeah. Never attend a desert barbecue-and-gun-extravaganza by a federal agency that vacillates between "WHOOOOOOOOOOOOOO FUCK YEAH" and "Hey guys, watch this!" as a motto.)

Regrettably, many in law enforcement do not follow this simple rule. So some cops can be induced to do extremely foolish things — things that will shatter the constitutional rights of citizens, things that will expose them to vast liability, things that will threaten innocents with death — while under the influence of toys, cameras, celebrities, and tactical plans that wouldn't make the table read in an A-Team sequel.

Hence, as Patrick pointed out, cops under the influence of cameras, celebrity, and the opportunity to drive a tank (WHOOOOOOOOOOOOOOOAAAAAA!) will decide that it is appropriate to raid a suspected cock-fighting operation with roughly the amount of force typically reserved to take a Pacific atoll from Imperial Japan. And now, via Radley Balko, I see that it is getting them in (entirely predictable) trouble, along with the highly irritable and oddly puffy Steven Seagal.

To our friends in law enforcement, here is a perfect application of the "Holy Shit" rule: if Steven Seagal asks you if you will stage a cock-fighting raid with a tank for the benefit of his reality show, if you have a badge, then you say no.

No, don't thank me. I'm just glad I could help.

Last week I talked about the City of Renton Police Department, Renton Chief Prosecutor Shawn Arthur, and Renton Police Officer Ryan Rutledge, who reacted to internet cartoons making fun of unnamed members of the Renton P.D. by seeking a search warrant for the anonymous cartoonist's identifying information on the theory that he had violated Washington's profoundly overbroad and silly "cyberstalking" law by using the series of tubes to cause embarrassment.

I noted that Kings County Judge James D. Cayce had acted like the good compliant little rubberstamp that the cops expect, notwithstanding the patently absurd legal theory underlying the warrant application and the clear violation of First Amendment rights it represented. Good judge! Sit. Speak. Have a biscuit.

Now there have been developments.

Multiple sources indicate that Judge Cayce has stayed his own search warrant based on the application of a Seattle attorney named Harish Bharti, who might or might not represent the anonymous cartoonist.

King County Superior Court Judge James Cayce ordered the stay Tuesday on two search warrants he previously signed for the Renton Police Department. Officers have been searching for the identity of the cartoonist for months.

The stay came after Seattle attorney Harish Bharti filed a motion to quash the warrants, in a move he described as a fight to preserve the First Amendment.

"The cartoonist and everybody else have a constitutionally protected right to be anonymous and exercise their free speech and expression," Bharti said.

"This abuse of police power is beyond belief."

Bharti also asserts that the Renton PD shopped the warrant to the County DA's office and got shot down until they found a compliant censor in Renton's Chief Prosecutor Shawn Arthur.

Renton's officials claim that Judge Cayce issued the stay because of a scheduling conflict, not because the motion to quash had any merit. That's not, in my experience, how search warrants work. But we'll see, won't we?

Not content for its Chief Prosecutor and Police Department to be the subject of uniform nationwide scorn for abusive censorious douchebaggery, Renton is bringing more of its staff into the mix and doubling down.

City Attorney Larry Warren indicated Tuesday he's confident the city's legal analysis that led to the search warrant will prevail.

Is that SUPERLAWYER Larry Warren, about whom Renton bragged when he was proclaimed SUPERLAWYER by a vanity-press marketing scheme that most competent lawyers scorn? What does SUPERLAWYER Larry Warren say about it?

Renton's city attorney, who has practiced law for more than 30 years and has tried many First Amendment cases, disagrees with [critics'] analysis.

Free speech and cyberstalking are "completely different topics. They shouldn't be mixed up," he said.

Someone can call for Barack Obama's impeachment, which is free speech, he said, but spray-painting something on a fence is a crime. The city maintains "there is probable cause to believe that the elements of a crime may be there" to prosecute a case of cyberstalking, he said. That's why the city requested a criminal search warrant, he said.

"That's my belief that the videos are not protected free speech," he said. "Someone who doesn't have all the facts could disagree with that."

Oh, Larry. You must be some sort of Bizarro-World SUPERLAWYER. Because the "completely different topics" line is — and you're SUPER, Larry, so I know you can take it when I say this — the stupidest fucking thing I've ever heard said about free speech law. And I spend a lot of time on the internet.

Larry is attempting a censor's move that I've described before: an an appeal to the categorical, suggesting that something just doesn't count as free speech because it belongs in a different box, in this case the insipidly trendy, unprincipled box called "cyberstalking." But there's no "cyberstalking" exception to the First Amendment, Larry, and even if there were, it wouldn't reach embarrassing cartoons making fun of public officials. Just ask First Amendment God Eugene Volokh.

If the prosecutor is right that the statute should be interpreted this broadly, then it’s clearly unconstitutionally overbroad. Speech to the public doesn’t lose its constitutional protection because it’s intended to torment or embarrass. (It may lose such protection when it’s intended to be perceived as a true threat of criminal attack, but that’s not the issue here.) Nor does lose its constitutional protection because it uses “lewd” or “indecent” terms. And while one-to-one speech said to an unwilling listener may in some circumstances be restricted — which is the reason traditional telephone harassment laws, if properly crafted, may be constitutional — this rationale can’t be used to suppress speech said to the public, even if the people discussed in the speech are tormented or embarrassed by it.

Moreover, the statute would be clearly unconstitutional as applied to this video, and the prosecutor and the judge ought to know this. (The prosecutor is Renton Chief Prosecutor Shawn Arthur; the judge is James Cayce.) A search warrant can only be issued if there is probable cause to believe that it will uncover evidence of a crime; since the material described in the affidavit can’t be made criminal under the cited statute, given the First Amendment, the warrant ought not have been issued. The government is not permitted to use its coercive power to identify the author of this constitutionally protected video.

I recognize that you're a SUPERLAWYER with 30 years of experience, Larry, but let me put it this way: in the First Amendment superhero pantheon, Eugene Volokh is Galactus and you're, say, Aquaman — on a good day. The proposition that a cartoon can be a crime because it is intended to cause embarrassment to a public official — and does so — is offensively stupid, an insult to the law and to the language used to utter it.

And don't try to defend this horror-show with "you don't know all the facts," SUPERLAWYER Larry. A search warrant application is supposed to state all the facts that support probable cause. If it's not in there, it's irrelevant. Moreover, what facts could possibly make satirical videos released on the internet to ridicule public officials a "cyberstalking" crime?

Judge Cayce may yet redeem himself and tell the City of Renton to grow the hell up, grow a thicker skin, read the Bill of Rights, and check their liability insurance. Or he may continue to be a pathetic rubberstamp. But sooner or later the grown-ups are going to get involved, and the City of Renton is going to get a sharp, expensive lesson.

Really, where do they find these people?

What separates us from the Islamofascists, we're told, is that we support free expression and they don't. They get violently exercised by cartoons; we're above that.

Yeah, about that . . .

The Renton, Washington Police Department and Renton Chief Prosecutor Shawn Arthur aren't breaking windows or throwing firebombs or stoning anyone. At least not yet. However, they are using a kind of violence — the coercive power of the state — to retaliate against a cartoonist. Their methods may not involve overt force, but their motives are repugnant to American values of freedom of expression.

KIRO investigative reporter Chris Halsne broke the story. He learned that the Renton P.D. is butthurt over a series of YouTube animated cartoons poking fun at issues in their ranks — including, apparently, officers having "dating relationships" with suspects. The videos — apparently created on xtranormal.com — have unidentified cops and city officials engaging in discussions lampooning departmental scandals.

In America, that's no harm, no foul, right? We have a First Amendment. You can make fun of people, even if it hurts their feelings. You can speak, forcefully and satirically, about the conduct of government business. If you make false statements about someone, you might be in for a libel suit, but you're not going to go to jail for cartoons in America, right?

Well, there's America, and there's Shawn Arthur's Renton.

Now, cops will want to do stupid, stupid, lawless things. Prosecutors are supposed to exercise some judgment and haul them back from the precipice of unconstitutional thuggery. But some prosecutors — because they're political hacks who owe their position to the police, because they're strictly fourth-rate lawyers, or because they're thugs themselves — fail to provide that check and balance. Renton Chief Prosecutor Shawn Arthur is such a lawyer. He sought and obtained a a search warrant directed at Google to find the identity of the author of the YouTube videos, using the pretext that the Washington state law against "cyberstalking." That ludicrously overbroad law provides as follows:

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.

Shawn Arthur and his affiant, Renton Police Officer Ryan Rutledge, asserts that the cartoonist, by his cartoons, has violated this section by using lewd and indecent words with intent to embarrass officers of the Renton Police Department:

It is my belief that the targets made in these videos target specific members of the City of Renton and Renton Police Department with the intent to embarrass and emotionally torment the victims by use of electronic communications to such persons or to a third party.

Perhaps the City of Renton and the Renton Police Department is made up of weepy weaklings who are easily hurt and tormented. If so, perhaps they should move to Canada. I understand they're quite solicitous of hurt feelings there.

But wait, you say. Cops will be cops, and hack lawyers will hack lawyers, but what about the judiciary? Surely no judge will sign a search warrant based on a theory that so patently violates the First Amendment?

Isn't it pretty to think so. But meet Kings County Judge James D. Cayce, who rubberstamped a search warrant seeking to unveil a cartoonist on the theory that be committed "cyberstalking" by posting cartoons making fun of police officers and city officials. That, in my experience, is how state judges act. They are no bulwark at all.

I'll watch this case from here. Will Google fight evil and challenge this search warrant? If not, will Shawn Arthur attempt to bring charges against the cartoonist? Does he realize that though he has absolute immunity for lawless prosecutions, he does not have absolute immunity for seeking a search warrant based on protected expression? Time will tell.

For now, thanks to the Streisand Effect, Shawn Arthur and Ryan Rutledge have assured that many thousands more viewers will enjoy the cartoons about their police department than would have without their censorious crusade.

It occurs to me that, in this post, I have, with the intent to embarrass censorious and thuggish public officials, used obscene language to make electronic communications to them or to third parties. Under their ludicrously unconstitutional interpretation of Washington's silly statute, I am guilty of a crime.

Come get me, fuckers.

Hat tip to Balko.

On June 15, 2006, Justice Antonin Scalia of the United States Supreme Court held a fascinating discussion with Justice Stephen Breyer on the "New Professionalism" of the American policeman:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to assume that unlawful police behavior would be dealt with appropriately by the authorities, but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been wide-ranging reforms in the education, training, and supervision of police officers. Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability. [Citations omitted].

At 12:03 a.m. on June 22, 2011, North Carolina Highway Patrol Troopers Edward Wyrick, Jr. and Andrew Smith held an equally fascinating discussion of the New Professionalism, as they texted one another on their mobile computers:

Wyrick: THIS WOMAN REFUSED ALL ROADSIDE TESTING, AND BLEW .00. HER HUSBAND IS A TRIAL LAWYER AND TOLD ME I SHOULD BE ASHAMED OF MYSELF.

Smith: HAHAHAHA FUCK HER AND FUCK HIM. SHE SAY HOW MUCH SHE'D HAD TO DRINK?

Wyrick: SHE SAID 1 DRINK AT 7PM.

Smith: FUCK HER.

At 12:31 a.m., after Trooper Smith had stopped Hoyt Tessener's car behind that of Trooper Wyrick, who was fleeing Tessener in a high speed cruiser after promising that Tessener could follow him to the jail where Wyrick was taking Tessener's wife Gina for the crime of blowing 0.00 on a breathalyzer, Smith resumed his conversation on the New Professionalism:

Smith: TELL HIM IF HE WANTS TO COP AN ATTITUDE TO FEEL FREE AND COME BACK AND ILL STROKE HIM THAT SPEED.

As Justice Scalia tells us, "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously."  Just ask Troopers Edward Wyrick and Andrew Smith of the North Carolina Highway Patrol.

Troopers of the North Carolina Highway Patrol would never assume, based simply on the fact that a pretty woman is wearing an evening gown and high heels and driving a Lexus in a beach town and no other evidence at all, that she'd been drinking.  And they'd never make up a story about smelling alcohol on her when she had no alcohol in her system whatsoever, and despite that fact that a machine whose sole purpose is to detect alcohol, a machine we're told by judges just like Antonin Scalia is infallible and part of the New Professionalism, cannot detect any alcohol whatsoever.

It must have been the wine all those other people she was around had been drinking, which somehow migrated onto her clothing, and into her car, and all the way with her as she drove across town.  Though French parfumiers, though Sri Lankan tea brokers, though (to borrow the language of the New Police Professionalism) FUCKING BLOODHOUNDS couldn't have smelled alcohol on Gina Tessener, Trooper Edward Wyrick is a man of his word.  And his nose.

And it was completely unprofessional of Tessener's husband, Hoyt Tessener, to demand an apology from Wyrick when it turned out that Wyrick's nose is more keen than a FUCKING MACHINE WHOSE SOLE PURPOSE IS TO DETECT ALCOHOL.  For dragging Hoyt Tessener's wife out of her car, even though the FUCKING ALCOHOL MACHINE SAID SHE'D DONE NOTHING WRONG, handcuffing her, and driving her away, a strange man, against her will, to a cage.

Of course if a non-policeman had handcuffed and kidnapped Tessener's wife, he'd go straight to jail.  No jury would convict Tessener for beating the hell out of such a man. But civilians who handcuff women and abduct them, for no good reason, are not part of the police. They lack the New Professionalism.  Which is why we send them to jail in the first place.  So Tessener shouldn't have gotten so upset, told Trooper Wyrick that he should be ashamed of himself, and then complained to the Governor after he was stopped by another trooper, who was merely adhering to the New Professionalism as he texted his fucking messages to Trooper Wyrick.

Because that's all part of the New Police Professionalism.

Jesus wept.

Wearing high heels in a gravel parking lot?  That'll be a blood test, ma'am. Embarrassed a North Carolina State Highway Patrol trooper? That'll be a trip straight to jail. Remember how the North Carolina Highway Patrol treats dogs? Imagine how they treat suspects.

As an aside, and since I blog pseudonymously this isn't worth much, I have tried a case against the aggrieved attorney in this story. I found him to be an honest man in a hotly contested trial, which is more than I can say for many patrol troopers.