It’s been a while since we’ve done a live chat. So why not?
We’ll do one Wednesday night at 8pm ET. I don’t have anyone famous lined up for you this time. Just me. But you can ask me anything. Anything at all. I’m not going to answer anything at all. But you can ask.
UPDATE: Sorry! Having some Internet issues tonight. We’ll try this again soon.
On the Bitemarks.org blog, forensic specialists David Averill and Mike Bowers have posted the video recording of Michael West’s “analysis” in the Leigh Stubbs case. In the video, West is examining Kim Williams, the woman Stubbs was convicted of assaulting. Watch closely at around the 50-second mark, as a bite mark mysteriously appears out of nowhere on Williams’ hip.
Averill and Bowers write:
West then proceeds to tamper with the evidence by actually imbedding a stone cast of Leigh Stubbs teeth into the comatose victims hip resulting in a fabricated bitemark on the skin of the victim.
The jamming of the cast isn’t in the video, it’s actually from West’s court testimony. He admits he does this. He claims it’s part of his method. And of course we already have video depicting that method. In the Jimmie Duncan case, West uses the same “technique” on the corpse of a child. In this case, he did it, without consent, on a woman who was comatose. (West, who is a dentist, also performed a vaginal examination on Williams while she was unconscious.)
Averill and Bowers have also posted the security video West claims to have “enhanced” using consumer software. As I reported last month, from the video below, West testified that . . .
. . . he was able to determine that the figures entering and leaving the frame in the video were wearing different clothing (one wearing shorts, the other wearing blue jeans) and were two different women, thus incriminating both Stubbs and Vance. Where the FBI could only determine that someone had removed an object — possibly a bag or suitcase — from the toolbox in the truck bed, West claimed repeatedly that he could make out hair, legs, and blue jeans, leading him to conclude that the object was clearly a body. “She takes a body out of this toolbox,” West conclusively told the jury. “That’s what I see.”
West also claimed he could actually read the body language of one figure in the footage, that she appeared “anxious,” and was exhibiting the sort of adrenaline-fueled “fight or flight” response one shows after committing a crime.
See for yourself:
I’ll have more in an upcoming piece for Huffington Post.
Stuff you should read that I don’t have time to write more about . . . .
Budapest.
Great Market Hall, Budapest.
. . . that’s the topic of my latest piece for Huffington Post.
This seems like a good topic for a Sunday discussion. He was 20, and had consensual sex with a 15-year-old girl.
I’d guess most (but perhaps not all) readers of this site would agree that lifelong sex offender status for this guy is absurd. Assuming he’s telling his entire history, he’s hardly a predator. Still, 20-15 seems to at least to stretch the bounds of the Romeo-Juliet scenario. And I’d imagine if I were the father of a 15-year-old girl, and learned she’d just had sex with a 20-year-old man, I’d probably feel like my daughter had been taken advantage of.
So should this be a crime? If so, what should the punishment be? If not, what sorts of age cutoffs would you apply, and where?
Cops in Florida have written thousands of tickets to motorists for flashing their lights to warn other motorists of speed traps. Problem is, flashing your lights to communicate isn’t against the law in the Florida.
So one motorist has filed a class action.
. . . the lawsuit says the FHP is well aware they are wrongfully applying the state law and they are doing it as a means of generating revenue. In 2005, a court order was even issued saying the state law doesn’t prohibit the flashing of vehicle headlights.
Campbell isn’t the only one. Since 2005, FHP records show more than 10,429 drivers have been cited under the statute.
In addition to seeking the refund of the $100 ticket, the lawsuit seeks damages in excess of $15,000…
Mike Lawlor, undersecretary for criminal justice policy and planning for the state of Connecticut, joins the ranks of other public officials who are choosing to simply ignore those rights they don’t believe citizens should have.
“In almost every situation you can imagine this happening in, it qualifies as breach of peace,” he said. “If you walk into a restaurant with a gun it’s almost by definition a breach of peace.”
That results in an arrest and sets in motion a chain of events that usually results in the revocation of an issued pistol permit, he said. And that’s the way it should be, Lawlor said. Anyone who walks into a McDonalds plainly carrying a firearm either intends to alarm people or is irresponsible, he said.
Here’s the problem: If you have a permit, it’s perfectly legal to walk into a McDonalds in Connecticut while plainly carrying a firearm. As Gideon notes, the problem is that too many cops in Connecticut simply don’t know the law. Lawlor’s solution isn’t to educate them, but to come up with creative (and baseless) applications of other laws that allow cops to continue to violate the rights of Connecticut citizens who exercise their right to carry. Gideon’s analogy to the camera issue is spot-on. Because exercising this particular right tends to upset police officers, and because police officers aren’t aware of the law, the state officials in charge of law enforcement have chosen to simply not give a damn about protecting this particular right. If a citizen exercising his rights combined with a cops’ ignorance of the law results in a “breach of the peace,” Lawlor’s conclusion is that the proper thing to do is charge you for breaching the peace. It’s an abhorrent and lazy mindset that forgets everything about who serves who in a free society. In a just world, Lawlor would be resigning over it.
And he isn’t alone. Law enforcement officials in Milwaukee and Philadelphia have expressed similar sentiments, and without much consequence.
I suppose if there’s an upside to all of this, it’s that when someone in one of these jurisdictions does inevitably sue, they’ll be able to show that the violation of their rights was systematic, and part of an ongoing policy. Unfortunately, when they win, the payout will come from taxpayers, not from the pockets of clueless public officials like Lawlor.
The Right To Record blog has some good analysis of yesterday’s 1st Circuit decision, including what it might mean for ACLU v. Alvarez, which the Seventh Circuit will hear next month, and a rebuttal of my concerns about the Glik opinion stopping short of striking down the applicable portion of the Massachusetts eavesdropping law.
I found this bit particularly interesting:
Curiously, Lisa Skehill Maki, the author of the brief for the City of Boston, wrote her student note on how the Massachusetts law was wrong. Lisa A. Skehill, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981 (2009). This ironically makes her very qualified to defend that law. Additionally, her note briefly mentions the Glik case when it was still at the criminal stage. Id. at 1006.
Her brief is useful for practitioners. There are not many good briefs on this issue from municipalities–and some are plain baffling. Maki’s brief is very well done–she catches one case I overlooked, Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009). This brief is a good study for practitioners to see what a competent brief against a a clearly established right to record might look like.
You could probably make a case that Maki’s brief for the city of Boston and her student note aren’t entirely contradictory. Her note argues that there should be a First Amendment right to record on-duty cops, while her brief (mostly) argues that the police should be protected by qualified immunity because that right has not been clearly established. Still, she’s essentially arguing for the preservation of a law that two years ago she argued was used to cloak police misconduct.
Also, every time I refer to this case I’m going to think of this.
MORE: Carlos Miller has a roundup of items related to the decision, including details on some new arrests and charges, including in Massachusetts.
This is great. (PDF) Here’s what happened:
As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.
After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.” An officer1 then approached Glik and asked if Glik’s cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts’s wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik’s cell phone and a computer flash drive and held them as evidence.
The charges were dropped. But Glik sued for violations of his civil rights. The First Circuit ruled today that the officers are not protected by qualified immunity. From the ruling:
The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative. It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”…
The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.”
The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press….
In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”
A couple things, here. First, it’s a pleasant surprise to see a ruling this clear and forceful in a civil rights/qualified immunity ruling, as opposed to a challenge to a criminal conviction. The opinion not only states that there’s a First Amendment right to record cops, but that said right is firmly established, and that the cops should have known that it’s firmly established. That’s about as complete a repudiation of Glik’s arrest as he could have hoped for.
Second, while I’ve only had time to quickly read the opinion online, I do find some possible cause for concern. From what I can tell, the opinion doesn’t strike down the wiretapping law, or even its application in the context of recording cops, so much as find that Glik wasn’t in violation of the law. The opinion’s discussion of Glik’s Fourth Amendment rights, for example, spends a lot of time pointing out that Glik was clearly recording the cops openly, while the Massachusetts law only bars the surreptitious recording of cops. It would have been nice for the court to come right out and say either way whether the Massachusetts law itself passes First Amendment muster. But it didn’t, I guess because it didn’t need to. The opinion says Glik clearly wasn’t violating the statute, which means his arrest was a clear violation of his rights. If he had been recording secretly, and were arrested for that, I’d imagine the cops probably would have been granted immunity. Though even then, unless Glik was challenging an actual conviction as well, the court still wouldn’t necessarily need to uphold or strike down the law itself.
The strong language in the portion of the ruling pertaining to the First Amendment claim suggests that the court might strike down the law if given the opportunity. But it’s at least a tiny bit worrisome that the opinion doesn’t go to the trouble of coming right out and saying as much in the next section. A more thorough repudiation of the law would have been preferable for a couple reasons. First and foremost because I think the First Amendment protects the right to surreptitiously record on-duty cops. If you’re recording a cop beating the hell out of someone, it isn’t difficult to see why there might be some problems with a law that requires you to make it obvious to the cop that you’re doing so. Second, if the Massachusetts law is upheld, it’s going to create disputes about what constitutes plain sight, what is surreptitious, and whether a jury should believe the cop’s or the citizen’s account of where the camera was held while it was recording.
Not to be a complete downer on what is really a pretty great decision, but the other thing to keep in mind is that the current Supreme Court lineup is awfully fond of qualified immunity. It’s far from clear that they’d uphold this ruling. I do imagine that they will address the issue fairly soon. It will be interesting to see if that comes in the form of a challenge to an actual conviction, or in a civil rights claim for wrongful arrest.
So this article I wrote for Reason will be included in the Best Sex Writing 2012 anthology. Pretty cool honor, though certainly not one I’d ever have imagined.
I mean, at least not for my Reason stuff. I do still hold high hopes for my Buffy erotic fanfic.
Here’s “Kings,” by Nashville favorites the Cold Stares. Recorded in my living room.
This is a great little program. But it’s unfortunate that it’s necessary. And I could be wrong, I’d venture to guess most cities don’t have something similar.
(Obligatory comment about how libertarians don’t care about poor people.)
We have two spaces open in the Agitator fantasy league this year.
Entry fee is $75. Draft is this Sunday night at 10pm ET.
Drop me an email if you’re interested.
Budapest.
Budapest.
A Chicago jury has acquitted Tiawanda Moore of felony eavesdropping.
This is of course great news for Moore. Her attorney claims she was protected under an exception to the eavesdropping law that allows someone to record evidence of what she believes to be a crime. I don’t know if trying to persuade someone not to file a police complaint is a crime. But the jury either bought that argument, or this was a case of jury nullification. I kinda’ hope it was the latter.
Of course, this also means that the Moore won’t be the one to challenge the law to have it overturned. Which means that unless someone like Christopher Drew or Michael Allison are convicted, Illinois police will still be able to use the law to intimidate and arrest anyone who attempts to record them.
One other thing. It’s a little odd that most media accounts of this case describe Moore as a “former stripper.” It’s actually the first three words in the Sun Times story. Maybe I’m wrong, but it’s hard to envision the article starting that way if Moore were a former nanny. Or school teacher. Or bus driver. So what’s the point? Even if Moore’s sexual assault allegation was the only newsworthy part of this story, the implication is that her former job is relevant to her allegation. Is the implication that strippers probably act provocatively even when they aren’t working—-indeed, even when they aren’t strippers anymore—and thus should expect unwanted sexual advances from cops? Is it that strippers are inherently untrustworthy? That they’re more likely to make false allegations of sexual assault? (If anything, I would suspect that strippers have built up a fair amount of tolerance for unwanted advances.)
But that of course isn’t why this story is in the news. It’s in the news because Moore became frustrated in her attempt to file a complaint, and so recorded what she thought were Chicago police officers’ attempts to rebuff her, and was consequently facing a felony charge and up to 15 years in prison. The validity of the allegation that set all of that into motion isn’t really at issue. (Indeed, the resolution of Moore’s complaint is apparently “sealed.” Which is a problem in and of itself.) So even if you buy into the fairly offensive notion that Moore’s former occupation calls her harassment allegation into doubt, the “former stripper” label is completely irrelevant to whether or not she should have been arrested and charged for recording the cops.
It does, however, give Chicago PD defenders a reason to trash her in the comments section.
My HuffPost story on Moore and the Illinois law here.
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