TheAgitator.com
Morning LInks
Tuesday, February 16th, 2010- Measuring the speed of light with leftover chocolate.
- Another look at the disconnect between crime trends (which are getting better) and public perception of crime (which is that it’s getting worse).
- The Garrity Rule really needs more public discussion.
- A Brief History of Pretty Much Everything.
- The NFL tries to claim its copyright notice is protected by copyright. The rest of the article looks at how companies vastly overstate their copyright protections, and usually get away with it.
- The New York Times looks at Vice magazine’s infiltration of and contributions to the popular media. Their videos from North Korea and Liberia were incredible. Also, I had no idea Vice had gotten so big.
So Garrity is yet-another way for cops to do anything they want and avoid prosecution AND keep their jobs? It is one thing to stack the deck. It is another thing to not even bother with any cards at all.
Er, I think the copyright article rather badly misunderstands the NFL warning. The warning says you can’t distribute the copyrighted descriptions and accounts of the game in the telecast, not that you can’t describe the game at the water cooler.
Thanks, I needed a laugh this morning.
Yeah, that one was a hoot. This one is even better:
ShelbyC, the warning says “Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.” Maybe in real life that is supposed to equate to “you can’t distribute copyrighted descriptions and accounts of the game in the telecast,” but that’s definitely not what is implied.
The “or” in there suggests that you can go wrong in 2 ways. First, you can go wrong by making “any other use of this telecast.” Fine. The telecast is copyrighted so you can’t reproduce it or rebroadcast it or post it in whole on YouTube. But second, you can go wrong by providing “any pictures, descriptions, or accounts of the game.” Not of the telecast, of the game itself. That sure seems like the NFL is claiming that you can’t give any “description” or “account” of the game without violating their copyright in the TV broadcast. That of course is nuts. The article says that there have been a couple of attempts by consumer groups to call content providers on their bullshit, but the FTC has decided it doesn’t really matter enough to take any action.
So you get the NFL’s overbroad statement, and as a result there are undoubtedly people who are unwilling to risk the chance that the NFL will believe its own claim and sue the pants off of someone creating a secondary product that derives value from access to the game through the telecast.
The NFL’s warning never once uses the word “distribute”, nor implies it. The warning announces “Any other use of this telecast … without the NFL’s consent is prohibited.” That’s absolutely false; the fair use doctrine clearly allows various uses of the telecast without the consent of the NFL, including the YouTube video embedded in that article. Moreover, there are numerous aspects of the game the are facts, and thus not copyrightable: I could publish a commercial article recounting the game in my own words without infringing the NFL’s copyright, because they do not own the facts of what happened.
Vice’s series on Liberia was excellent. I started it around #5 and I could hardly wait for the last 3 of the series.
From the Garrity article:
While Garrity applies broadly to public employees, it comes into play most commonly with investigations of police, whose work tends to bring them closer to the edge of what’s legal.
No shit. I doubt there’s another profession that encourages, and even demands, so much law breaking, deception, and trickery as law enforcement. They don’t get close to the edge, they operate largely on the illegal side of the line in almost all of their work, from breaking traffic laws, to posing as crooks themselves, to tricking people into committing a crime, to unnecessarily beating and tasing suspects, to covering for their buddies, to tampering with evidence, to falsifying arrest reports, to lying during interrogations, to lying on the stand.
Garrity is just another tool to protect cops from consequences that the civilian world faces every single day. My company can fire my ass whether or not I cooperate. There’s a name for that. It’s called “the real world”. I don’t get off the hook because I admitted how I abused my authority. Sure, I can keep my mouth shut, but I don’t get to retain my position so I can repeat my abuse of power.
Said Gunn, “At least police will know when they have bad apples and can act to get rid of them. It’s really in the public’s best interest.”
Give me a fucking break.
well said, Dave- this was what I was thinking as I read the article. I’m stunned that it’s so obscure. The articles I’ve read on it compare it to Miranda and mention how important it is for cops to understand how important Garrity is to them… Very ironic. We should be pushing the 5th amendment onto jr. hs kids the way cops push Garrity on each other.
We need rogue agencies like the DEA.
They reinforce the notion that the Gov’t can do whatever it wants
at whatever time to anyone with impunity.
Also, they explode the myths that the will of the People or the Rule of Law matter in the big picture of how our Government actually functions.
Important lessons in a democracy.
Garrity is not something sinister. Dave can lie to his company without committing a crime. Dave’s company can’t arrest him based on what he tells them. Garrity is a reasonable way of reconciling the police department’s two roles when investigating police officers. It is acting both as an employer and as a investigator. In it’s latter role, the 5th amendment is absolutely clear – the government cannot compel you to give evidence against yourself. But employers have some rights to control their employee’s behavior. Garrity, therefore, gives police departments more power than they otherwise might have.
The problem comes when police departments don’t use Garrity properly. They extend too much immunity for Garrity statements (immunizing other cops from a cop’s statement or immunizing cops they could have prosecuted using other evidence). They use administrative punishments too lightly. (We all know how many paid vacation days bad cops get). And, they fail to institute procedural reforms to prevent future bad behavior.
@Marty, teaching kids their rights is very important. NEVER talk to cops without a lawyer (though be aware of what cops can do w/o an arrest – identity and Terry stops).
Vice is great. CNN has been redistributing some of their videos online, too, giving them much-deserved wider exposure.
I knew they were on to something when my wife watched all 8 of the Liberia series with me and never once complained about Shawn’s occasional foul language. Of course, if there was ever a place for foul language, Liberia would be it.
qwints-
thanks for another view. my question to you- has garrity become so widely abused that it’s more damaging than helpful? also, who qualifies for protection under garrity?
LOL!
I think we can agree that Jack is no expert on police matters if he believes that.
Crap. In #14 only the first paragraph was a quote from qwints.
LEFTOVER CHOCOLATE?
Two PA state troopers picked a fight with a distraught father at the scene of a serious car accident involving his son. The harassment of the father continued all the way to the hospital where more troopers showed up and apparently began trying to antagonize him. It then concluded with entirely predictable charges against the father for “assaulting” a cop.
http://www.publicopiniononline.com/ci_14399217
Stories like this are believable because the details provided are remarkably consistent with what has become commonplace behavior among cops. They are also one of many reasons why I do not sympathize with cops simply because they are said to “put their lives on the line” or grieve for them when they pay the “ultimate sacrifice.”
I might also add that cops can be given immunity just like civilians if the situation calls for it, without it being a blanket guaranty that comes with the job. Cops already have an advantage over the public in that they are intimately familiar with (and therefore able to avoid) the sleazy methods cops use to get people into trouble.
It’s not like cops are being overly subjected to criminal charges or other disciplinary measures. If anything, cops operate with near impunity so long as the public and the media don’t raise a shit storm that requires the city to actually hold someone accountable (which, even then, usually just amounts to a show).
The bottom line is that cops aren’t held to a higher standard than the public. They are held to a lower standard. A much lower standard.
#19 agreed–where in the private sector is an employee guaranteed that if they are investigated by their employer, nothing they say will be reported to the police or otherwise used to prosecute them? Doesn’t happen. In the real world, if your employer investigates you and you refuse to cooperate you are fired, and if you admit to breaking the law your employer is free to report you to the police.
The Vice Travel Guide to North Korea was simply amazing, easily one of the most fascinating documentaries I’ve ever seen. This isn’t a country where Atlas shrugged, this a country where Atlas was dragged out into the street and stoned to death by a remarkably well-coordinated mob. He says several times throughout the series, in amazement, something to the effect of “This is a country where nothing ever happens.“
Dave,
You’re missing the fact that there are no criminal consequences to lying to your company. Thus you are not being legally “compelled” for purposes of the 5th amendment when your employer asks you a question. The thing you have to look at is the power of the police department to ask, not the power of police officers to remain silent. Remember, the choice to talk to your employer or face administrative penalty is the same for public and private employees.
Criminal investigators CANNOT force you to testify against yourself. This is a broadly construed restriction. Confessions that result from illegal threats are often suppressed. Confessions that result from fraudulent inducements are suppressed. Cops can lie and cheat in the interrogation room, but they can’t force you to talk.
Private employers can make talking to the police part of your job, but they don’t have police powers. They don’t have powers of arrest, and you can lie to them without obstructing justice. Most importantly, they are not legally bound by the 5th amendment. If an off-duty cop works as a security guard, the company he works for can do the same as any other private company.
So Garrity gives criminal investigators more power when dealing with public employees but imposes a restriction – the statements given can’t be used to prosecute the cop who gives the statement. This is, in effect, giving “use immunity” to any cop giving a Garrity statement.
Most importantly, the alternative to Garrity is not using cop’s statements for prosecution but rather banning police departments from threating employees with administrative punishment if they refuse to testify. With Garrity statements, police departments [i]should[/i] be able to assess more effective and fair administrative punishments in situations where prosecutions wasn’t feasible. The problems come from police and prosecutors being too reluctant to prosecute their own rather than a tool they can use to punish bad cops.
Vice rocks the intertubes. For sure one of the coolest jobs to have is at Vice.
You’re right, but I think you’re splitting hairs. Cops don’t get to lie to their employers without potentially being charged with obstruction. But the moment a cop starts asking a civilian questions, that civilian is in exactly the same boat. In fact, the civilian is even worse off because he doesn’t have a powerful police union behind him and a code of silence that keeps cops from ratting on other cops.
Far from cops being at a disadvantage and, therefore, needing Garrity, I think Garrity is just one of several tools that cops have at their disposal to insulate them from the laws that civilians have to follow. Garrity just adds a patina of legitimacy to the special soft glove treatment that cops regularly get at the hands of their own investigators.
an almost bigger issue I have with garrity is that ALL public employees are protected- this looks like a license to steal. If I understand it correctly, if I was a game warden selling black market deer tags, I could just claim garrity protection and not face prosecution. BUT, as a private citizen, if I violate wildlife laws, I can face huge fines and/or possible jail time.
I’d like to see real world examples of this law being necessary.
Dave, of course he’s splitting hairs. That’s what the law is, at heart — making fine distinctions, rather than just deciding everything by gut reactions.
Qwints,
I understand your argument, but don’t agree with it. Why is it a problem to fire a public employee if they plead the 5th? You don’t think I’m not in the same jepardy for lying to a non-public employer for a matter that is criminal in nature (one that is covered by fifth amendment)? I would buy that argument more if this were really a big issue for lots of employees. It seems to mostly be a law enforcement issue because they are the ones out there breaking the law.
The issue I see with Garrity as much as I understand it from just this kind of discussion is that it seems like the intent was to allow whistleblowers to come forward without punishment, with the idea that you can then catch the worse guys. But it seems like there’s no check to the idea that it is instead used by the bad bad guys. If they come clean under the protections of Garrity, then they’re protected from consequences thereby.
Or worse, if they did a lot of bad stuff, but only admit to a little bit, what keeps them from getting the protections from Garrity while stonewalling on the really bad stuff?
If only the Garrity link didn’t go to that pussy Kurt Greenbaum’s paper.
@PW
I believe what you’re referring to is called “The Thin Blue Whine.”
The disparity between the dropping crime rates in this country and the perception of crime being ever-worse is something we should be more concerned about than we seem to be, as it is having a measurable effect on our society.
As a contributor to a true crime site, I see first-hand the impact the inaccurate perception is having, primarily on peoples’ children. It is unnervingly common for parents to post comments about how their children aren’t allowed to play in their own yard unsupervised. One mother told us all about how her 13 year old son wasn’t allowed to go to the neighborhood park a block away by himself. I spend ridiculous amounts of time trying to combat this fear with the reality that crime rates are lower than ever, but what’s most disconcerting is that, once this irrational fear takes root, it’s seemingly impossible to reverse.
It’s having a quantifiable impact on today’s children. One study I read recently stated that the executive functions (judgment, self-control) of today’s 5 year olds are that of 3 year olds just a couple of generations ago, and that it’s a direct result of the lack of unsupervised and free play our children are getting. We’re talking a permanent, 2-year impediment to executive function that will only worsen with future generations if we can’t get our baseless paranoia about crime in check.
I’ve actually broken the light speed barrier with leftover chocolate. If I bring any leftover chocolate home to my wife it’s gone faster than the speed of light.
Dave:
“In fact, the civilian is even worse off because he doesn’t have a powerful police union behind him and a code of silence that keeps cops from ratting on other cops … Garrity just adds a patina of legitimacy to the special soft glove treatment that cops regularly get at the hands of their own investigators.”
The first statement is true but irrelevant to the validity of Garrity. Citizens are just as entitled to legal assistance from retained or appointed counsel as cops are to legal assistance from the union. Citizens can, in theory, lobby police chiefs and politicians just like the union can. However appalling the practical differences in how these actions are carried out doesn’t change the law. You might as well argue that the super-wealthy should lose the right to choose their own counsel because the lawyers they get are too good.
As to the second part, I haven’t seen Garrity used as a facade for shoddy investigations to hide behind. More often, investigators seem to explicitly clear bad cops or punish them lightly rather than blame an inability to prosecute cops on procedural hurdles.
Marty:
” If I understand it correctly, if I was a game warden selling black market deer tags, I could just claim garrity protection and not face prosecution. ”
This is incorrect. Garrity only prevents an public employee’s own statement from being used against them for prosecution. It is not transactional immunity which would prevent that employee for being prosecuted for an act that talked about in that statement. For example, if the game warden was caught in the act they could definitely be prosecuted. If the only evidence they had against the game warden was the game warden’s own statement given after being ordered to, then there would probably not be a prosecution although the game warden could be administratively punished for their own actions.
El Scorcho:
“Why is it a problem to fire a public employee if they plead the 5th? ”
It’s not. If the investigator says “answer or lose your job” and the public employee refuses to answer, they can be fired. Garrity only says that if the employee does answer, that answer can’t be used for prosecution purposes, only for disciplinary purposes. On the other hand, although Garrity provides no protections against firing, public employees (especially cops) can be notoriously difficult to fire.
@Highway,
Garrity is not whistle blower protection. It’s central holding is “The choice given petitioners was either to forfeit their jobs or to incriminate themselves. … That practice … is ‘likely to exert such pressure upon an individual as to disable him from making a free and rational choice.’ We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.” Garrity v. State of N.J. Garrity v. State of N.J. 385 U.S. 493 497 (U.S. 1967). In other words, the rule gives effect to cops’ individual rights, it does not rely on public policy interest.
As to the question of stonewalling. Remember that lying to police about a material matter in an investigation = obstructing justice. But more importantly, the Garrity protection does not create transactional immunity – only use immunity. Prosecutors can still build a case without the statement.
TL;DR Summary:
Garrity allows the State to assess fair administrative punishment while protecting public employees’ constitutional rights. (The 5th as incorporated in the 14th).
“We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.”
Garrity, 385 US at 500.
qwints, I don’t understand how the answer to El Scorcho that there’s no problem firing someone for their answer under Garrity (since it can be used for disciplinary action but not proscutorial) but then answer to me that the central holding in the relevant case was that petitioners were given the choice to either forfeit their job or their 5th amendment right. It seems the finding doesn’t address the coercion, thereby making it just an immunity tactic for bad public employees.
Eric, as you point out, the warning says “Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.”. The natural way to read this is that the use of the telecast is prohibited, or use of any pictures, or use of any descriptions, or use of any accounts of the game are prohibited. Now maybe it could be interpreted the way you and the article suggest, but why would you, since as you say such an interpretation would be ridiculous, and the interpretation I just suggested is perfectly reasonable and works just as well?
I wasn’t taking about the union being able to pay for a good attorney. I’m talking about the clout the union has completely independent of what goes on in the court room. In fact, I’m surprised you interpreted my comment to have anything to do with hiring a lawyer.
I think you are crossing into the realm of fantasy now.
Again, I made no comment about the quality of lawyer that a cop could get relative to what a civilian could get.
My point is simply that the advantages enjoyed by cops are already so numerous that Garrity is just piling more icing on the cake.
1. Cops (even the “good” ones) protect other cops.
2. Cops have a powerful union that has influence with the city as well as other cops.
3. Prosecutors and cops are on the same team, so they aren’t as enthusiastic about prosecuting them as they would civilians.
4. Cops know the very techniques that can be used to incriminate them, so they can avoid the traps.
5. Cops have access to evidence which can be made to disappear or be altered.
And as evidence to support my argument, I offer every single story posted on this site where a cop flagrantly violated someone’s rights or committed a crime and got off or got a mere slap on the wrist after a “thorough internal investigation”.
Garrity is just one tool of many for achieving the same end.
Police use food to get confessions.
http://www.timesunion.com/AspStories/story.asp?storyID=901146
Dave, you’re 100% right that oversight of police is often laughable. That doesn’t mean that giving police officers constitutional rights is designed to subvert justice. The right to remain silent is a bedrock right in our justice system. The state shouldn’t get to threaten to ruin anyone’s livelihood to get a confessoin.
Highway, firing is o.k. because there is no constitutional right to be a police office. If you threaten to fire, you can’t use the statement in court. It doesn’t grant transactional immunity, only use immunity.
#32 | qwints
thanks for taking the time to answer this. I understand most of what you’re saying, but it still feels creepy to me.
again, thanks.
Athena, our local radio morning talk show was discussing the maturity (or lack thereof) of our children (in connection with a proposal to lower the legal drinking age to 18) on Monday, I responded by email and this paragraph was part of what I wrote:
“So the lady caller said science says the brain doesn’t become fully mature until age 23. I do not believe that over the past 100 years that the act of being responsible has come later and later in life due to biology, but rather it has more to do with society deciding children must remain children for longer and longer (at this rate in another 100 years our children will not be mature until age 30). It is the way we treat them, the way we raise them, not biology that allows them to still be irresponsible at age 21. We must raise our expectations of their reasoning abilities, instead of forcing them to remain children for such an extended period of time.”
So we’ve come to the same conclusion. We are NOT allowing our children to mature normally.
Windy, you’re absolutely right. We’re artificially extending the childhoods of our children, and the inconsistency of age of consent laws it a blatant illustration of the irrationality behind society’s “logic”.
I’ve found “Stranger-Danger” to be one of the more overt examples of how our disproportionate fear of crime stunts our childrens’ development. Stereotypical kidnappings are the Elizabeth Smarts of the kidnapping world. They are roughly defined as children abducted by a non-family member who intends to keep them for an extended period of time, take them across state lines or sexually abuse or kill them. These are the boogeymen every parent fears, but stereotypical kidnappings only account for, on average, 115 abductions annually. And it’s worth noting that the majority of stereotypical kidnapping victims are over the age of 12, a period when parents tend to give their children more freedom anyway.
A child is far more likely to die in a car accident or a pool. Parents don’t restrict these activities, though. But how many parents tell their child not to talk to strangers? Initially, it sounds like good advice. But, is it possible that our indoctrinating children to fear strangers inhibits their development of social skills and, further down the road, contributes to the compartmentalization of neighborhoods? My parents encouraged me to talk to strangers and simply instructed me not to get *abducted* by one.
The problem, however, is that these parents don’t care about long-term impact. They’re thinking in terms of worst case scenario. Upon challenging one especially restrictive parent who bragged about keeping her daughter all but tied to a chair, I asked how she would feel if her child one day wound up in therapy due to the draconian nature of her upbringing. Her response? “She can bawl her eyes out to a therapist for all I care. At least she’ll be alive to do so.”
It’s an especially difficult subject for me, whether it’s applied to the drinking age, sexual age of consent laws, etc. Science has nothing to do with it at this point. Our children are inept because WE are making them that way. Did you know that children actually exercise BETTER judgment when a parent isn’t around? It’s because they know there’s no one there to save their ass and are forced to negotiate more safely.
I think back to my childhood (I’m 27) when my parents were letting me run free. I think about riding my bike with a tribe of little kids and seeing the disappointment in the eyes of the kids who couldn’t come along if we were going farther than two blocks. Then I think about what became of those kids – kids who hit 18 like a brick wall because they didn’t have the life skills to handle the transition to adulthood. My heart bleeds for those kids. They’re failures, and it’s not really their fault.
//You’re missing the fact that there are no criminal consequences to lying to your company. Thus you are not being legally “compelled” for purposes of the 5th amendment when your employer asks you a question.//
An employer may require one to file an affidavit as a condition of continued employment. Lying on such an affidavit would subject one to criminal penalties, but there would be no restriction on the use of such an affidavit as evidence against the person who affirmed it.
Under what cases would a cop be “compelled” to answer any question in which he would not be allowed to simply announce “I quit”? Since there is no right to a police job, how is the police’s situation different from anyone else’s?
supercat,
If the employer was acting as an agent of the state when requiring the employee to make a sworn statement, that statement might be suppressed. If the employer does it on their own, then there’s constitutional right implicated. As I’ve said, Garrity limits the power of the State while investigation, it doesn’t give employees extra rights.