At the Red Tape Chronicles, Bob Sullivan raises a common annoyance in a way that leaves every reader stupider for having been there.

Can the New York Yankees change the First Amendment and make their fans agree to the change? They tried recently.

“Ticket holders acknowledge and agree that the Yankees’ ban on foul/abusive language and obscene/indecent clothing does not violate their right to free speech,” the team wrote recently in a new far-reaching set of fine print published in the October edition of Yankees Magazine.  The phrase appears on tickets, too.

Anyone who’s been to the Bronx recently probably wouldn’t fault an attempt to make it more family friendly, but can a baseball team change the Constitution and force you to accept it?

So the Yankees want to limit bad behavior in their house? Not a terribly controversial  notion. But when Sullivan asks whether a baseball team can “change the Constitution,” brain cells begin to die.

Sullivan relies on a new book called “Boilerplate,” by lawyer Margaret Jane Radin, which raises the usual complaints about the small print that goes along with most purchases of good and services.

Radin’s point is that contracts, by definition, involve two equal parties that negotiate terms, while fine print is issued on a “take-it-or-leave-it” basis. (Just try to negotiate a lower early termination fee or strike out any clause when you sign a cellphone agreement.)  In layman’s terms, fine print is merely a list of bad things that can happen to you, the consumer. You might get hit with a penalty fee; your service might be terminated; your right to join a class-action lawsuit is surrendered.

Well, no. Some contracts are negotiable. Some are take it or leave it. Sometimes the parties are equal. Sometimes not. They are all still contracts.  For the most part, we have a choice. Nobody forces you to sign up for a couple of years for cellphone service, but if you want the free phone, that’s the giveback.

The bigger problem than contracts of adhesion are the click-wrap contracts that no one ever reads. But then, we’re so deluged in contracts and legalese that who has the time or interest? If Justice Scalia can’t be bothered to read the closing documents for a house, why should anyone else?

But Radin, and hence Sullivan, is very wrong when they assert that the small print is the equivalent of some corporate lawmaking. Notably, legislatures can prohibit the waiver of rights in small print. That is lawmaking. No small print can require something unlawful, even if the nice customer service rep thinks otherwise.  No small print trumps the law.  But when the law is silent, the small print takes over.

And why not? Many people have come to feel (note the use of the word “feel” rather than “think”) that they are entitled to enjoy the fruits of someone else’s effort with no strings attached.  By that, I don’t mean a term of years without an early termination fee, but without whatever additional crap someone put into the small print.  Even with the recent Instagram fiasco, where they laid claim to the right to sell people’s pictures, people had a ready choice. Say no. Don’t use the service.

But, you say, I want to use the service. I like the service. No, I love it! And I am entitled to use whatever I love and they shouldn’t be allowed to dictate the terms of service. Radin fuels the sense of entitlement:

“This is creating a mockery of state legislatures. We elect legislators, they decide something is important and debate it, then vote on a law, then it becomes law,” she said. “Then corporations write rules and they effectively become law, contradicting what the legislature did. What we think of as a contract is really important to our conception of social order. Think of how many people are affected by (boilerplate language). If it is thousands or millions of people, that’s letting a firm create a new legal universe.  That undermines our rule of law.”

This is utter nonsense.  Coming from a lawyer, it’s inexcusable, as nonlawyers will read it and believe that if a lawyer said so, there must be some merit to it. There isn’t, and Radin doesn’t merely disserve the ethical consideration of educating the public, but murders it by making people stupider.

Writing a book is a great way for lawyers to try to  establish credibility and distinguish themselves from the pack. Potential clients are very impressed that you’ve written a book, even if no one buys it or reads it.  To maximize the likelihood that someone will read it, authors frequently strive to be controversial and novel, sometimes writing absurd and ridiculous things in the hope that someone will notice they exist. 

When it comes to lawyers, however, the right to opine crazy isn’t unlimited.  Railing against the “tyranny” of small print is fine. We all hate it, and there are certainly substantial arguments to be made against click-wrap terms, which nobody reads, or the terms and conditions set forth inside packaging that no one sees until after a purchase is complete, the product opened and/or unreturnable. 

But we do not have the right to conflate small print with corporations sucking away our constitutional rights or creating a new legal universe.  That feeds the angst, the conspiracy theorists and the disenchanted, but it’s fundamentally wrong from a legal perspective, and there is simply no viable argument to support it.  That’s where the line gets drawn.

Yet Radin wrote a book. Sullivan wrote about the book. And somewhere, sometime, someone may stumble across what they wrote and challenge it from centerfield at a Yankee game.  And they will never make it to the seventh inning stretch.  Small print may suck, but legally, its fine print unless the law otherwise prohibits it.  You are not entitled to feel otherwise.

H/T Ken at Popehat

At Volokh Conspiracy, Orin Kerr raises a troubling 4-3 ruling out of North Carolina, State v. Helen, that held the Fourth Amendment allows a search and seizure based upon a “reasonable” mistake of law.  The facts, as Orin rightly notes, are about as good for the prosecution as they get.

An officer spotted a car with a broken rear right brake light. The officer pulled over the car, and the traffic stop eventually led to the discovery of drugs in the car. The defendant was convicted, and on appeal persuaded the North Carolina Court of Appeals to adopt a rather surprising interpretation of the traffic laws. According to a long statutory analysis from the North Carolina Court of Appeals, interpreting several archaic sections of the traffic code, it was actually legal to have one broken brake light as long as the other brake light functioned properly.

A divided North Carolina Supreme Court ruled that the stop was constitutionally reasonable. The officer had a reasonable belief as to what the traffic laws meant, the majority reasoned, and he acted reasonably. Because the Fourth Amendment requires reasonableness, this is all the Fourth Amendment requires and the resulting stop was constitutional.

The dissent agrees that the officer acted reasonably in a generic sense, but it argues that we would not want to systemically allow stops of people who are not breaking the law at all based on erroneous officer understandings of what the law is. The dissent also points out that this is like an exclusionary rule case in disguise: The majority’s reasoning is akin to saying that there is a good faith exception at the remedies stage, the kind of thinking that should not infuse the court’s reasoning at the initial stage of whether a constitutional violation occurred.

[A]s a Criminal Law professor, I can’t help but approach the question by reference to the doctrine of mistake of law in criminal law. When a citizen makes a reasonable mistake of law as to what is criminal, the general rule is that ignorance of the law is no excuse. If a citizen reads the law and perfectly reasonably thinks his conduct is lawful, only to have a court take a surprising reading of the criminal law and say he is guilty, the courts say “enjoy your time in prison, Mr. Marrero.”

Math. The bane of lawyers, unless it’s a number divisible by three. Malcolm Gladwell famously postulated in his book  Outliers that it takes 10,000 hours to achieve expertise. That’s a very long time to a young person. 

In contrast, Tim Ferris shows how one can create the appearance of expertise in a mere four weeks, and thereafter enjoy the four hour work week.

• Join 2 or 3 related trade organizations
  
• Read 3 top selling books on your topic
  
• Give one free 3 hour seminar at the closest well-known university
  
• Give 2 free seminars at branches of two well-known big companies such as AT&T or IBM
  
• Offer to write 1 or 2 articles for trade organizations
  
• Join a service that journalists use to find experts to quote for articles

Nevertheless, Rachel became a “4 hour expert” in starting virtual law offices by generating publicity for herself, and then using that publicity to manufacture expertise in starting VLOs. Now she sells the same “4 Hour” model to other people, which you can do with just about any area of law. But is the 4 Hour method really worth anything to a law practice in the long run…?

Jordan’s envy grew out of an online article by  Rachel Rodgers in Forbes.  He found it astounding that a legitimate media outlet like Forbes would publish something so utterly vapid and worthless.  There was a sense of blame directed at Rodgers, but it was misguided.  Don’t blame Rachel Rodgers for effectively executing a scheme to circumvent competence. 

Sure, she can be blamed, as a new lawyer, for ignoring the ethical implications of her proposition, but then, young lawyers of the view that the internet is an ethics free zone, or that ethics are archaic, or perhaps ethics are a weapon used by old lawyers to keep young lawyers in their place, her philosophical distaste for ethics can explain it away.

It would be far more worthwhile to ponder the question of why any legitimate source of information would be party to a scheme like this.  After all Tim Ferris’ bullet points can’t be accomplished without the complicity of others who, by inviting, allowing or acquiescing in the scheme, make it work. 

One can’t give a seminar, free or otherwise, at a well-known university unless the university allows it.  The kicker is that it’s free, and free is always a tempting price.  At the same time, universities tend to have a relationship to knowledge and education, some even scholarship, and one would expect the university not to allow someone to speak on campus who lacks the ability to make people smarter.  In fact, one would expect a university to say “absolutely not” to someone who is so lacking in substance as to have the potential to make people stupider. 

And yet, having kept an eye on people who speak at universities, including their law school, I find that isn’t the case.

Then there are the “well-known big companies such as AT&T or IBM.”  One would expect that they would be a bit more critical of the competence of those allowed to give seminars.  But again, my eagle eye has taken note of some well-known law firms who have welcomed self-proclaimed social media experts with open arms. 

Trade organizations are always looking for free articles for their publications, depending as they do on the kindness of strangers and, since their members are busy working, often lacking sufficient fodder to fill their next issue.  And when it comes to journalists, they couldn’t care less who they get a quote from, as long as it’s pithy and brief.  It’s just the lunch meat in their journalistic sandwich.

What all this relates to is credibility.  There are three types: attained, ascribed and attributed.  One attains credibility by one’s efforts and deeds, which is the sort of expertise Gladwell writes about.  This is credibility that is earned through hard work and accomplishment.  

Attributed credibility is the sort that someone else gives you, such as when a reporter tells a story in which you are described as an expert.  Whether or not you are, in fact, an expert is of no moment; the mere fact that someone calls you an expert means that whatever you have to say is experty.

Ascribed credibility is the cred one gives oneself. It is by far the weakest of the three kinds of credibility, and thoughtful people realize that it’s just as likely to be a product of delusion or deceit as a reflection of merit.  Tim Ferris recognized this, which is why his scheme relies on attributed credibility from otherwise credible institutions.

Is it fair of Jordan to question Rodgers’ effective use of this scheme to manufacture credibility?  Of course it is. The scheme diminishes the value of effort, of achievement, of the attainment of expertise, by substituting the feigned appearance for the substance of expertise.

But the scheme cannot work without two things happening. First, sources perceived as credible allow the incredible to bask in their reflected credibility.  And second, the rest of us fail to subject claims of credibility to the barest scrutiny.  They allow it. We accept it. 

While this not only fails to establish young lawyers and adherents of the number 4 as credible in fact, but impugns them for having seized upon a scheme that is deceptive at its core, there remain many who can’t be bothered giving any of this enough thought to question it.  And for those who recognize the fallacy of manufactured credibility, but refuse to speak out against it, they too are party to the scheme.

On the other hand, achieving real expertise is not only hard, but takes a very long time. Far too long for those who demand your immediate adoration.  Just do the math.

Some would think that the direct connection between hoodies and crime was put to arrest following the killing of Trayvon Martin, where amorphous allegations of  his wearing a hoody somehow created a level of suspicion that justified what followed.  Nope.

In San Diego, 21-year-old Antonio Martinez made the mistake of wearing a hoody.

[Sheriff’s Department Captain Joe] Rodi said deputies were looking for a man in the area, possibly involved in a domestic violence dispute, when they came across Antonio Martinez.
“As the gentleman walked by, he covered his head with the hood of his sweatshirt,” said Rodi.  “Trying to conceal his identity.”
It was an act which raised the deputy’s suspicion.
When Antonio Martinez wouldn’t stop walking away as the deputy called out to him, the deputy took matters into his own hands.

Some may wonder why Martinez didn’t stop when told to do so.  To the overly compliant, such defiance offers more than sufficient justification for anything that follows.  It might have been that he chose to exercise his constitutional right to be left alone. It’s more likely that he didn’t realize the cop was talking to him, When someone yells “hey you,” it’s not exactly clear who “you” is.  It might have been that he was thinking about other things and didn’t hear the officer. The funny thing is that a person who has done nothing to elicit police interest has no reason to pay much attention to such things. After all, why would the cop be telling him to stop? It must be someone else.

But the hoodied Antonio Martinez had one additional distinguishing factor. He had Down Syndrome.

“He pepper sprayed him,”  Rodi said.  “When that wasn’t effective, he hit him with a baton, which put him on the ground, and then a couple more strikes to get his hands free. So they could hand cuff him.”
They got him in the patrol car and realized he had Down Syndrome.

That’s the police description of what happened.  A witnesses description is a little less benign.

“He got pepper-sprayed so he’s covering his eyes the cop kept saying, ‘get on the floor,’” said witness Melissa Mejia. “He was already on the floor.”
Mejia was working in her family’s shop nearby when she heard the commotion.
“He was lying down and the officer had the baton. He kicked him a couple times, like hard,” she added.
Mejia then ran to the bakery and got his older sisters and yelled at the deputy to stop.
“He has Down syndrome. Stop you know, it’s wrong,” she said she yelled. “He wouldn’t stop, he kept going.”

There are three independent components here worthy of note. This is yet another beating of a developmentally disabled person, not only innocent of any wrongdoing whatsoever but among the most vulnerable in his ability to react, respond, process what is happening. Like ordering a deaf person to halt, the shocking refusal of police to control their violent urges in the face of people with disabilities puts them at heightened risk.

While cop apologists will respond, but how is a cop to know that a person is disabled, the answer is there are many in our society who have disabilities, and they aren’t entitled to immediately leap to force for their own convenience or knee-jerk self-protection at the expense of a disabled citizen.  In other words, figure it out before you beat someone.  And, once you have a hint that someone is disabled, as the witness, Mejia, told the cop, demonstrate that modicum of self-control necessary to stop the beating.

The second component is why, regardless of the fact that Martinez had Down Syndrome, was force used at all?  Not only was there no conceivable threat of force to the cop, but even if this is chalked up to “contempt of cop,” it was of such utterly minor nature to be shocking. Martinez didn’t bolt. Martinez continued to walk. And that gave rise to his being pepper sprays, beaten and kicked.  Bear in mind that the cop didn’t know that Martinez was the person involved in his potential domestic dispute, or just a guy walking down the street.

And finally, Capt. Rodi, to his credit, apologized to Antonio Martinez for what happened, but in the course of doing so “explained” the police officer’s response.

“As the gentleman walked by, he covered his head with the hood of his sweatshirt,” said Rodi.  “Trying to conceal his identity.”
It was an act which raised the deputy’s suspicion.

A little too late calling Martinez a “gentleman.” The knee-jerk assumption that Martinez, by covering his head with his hood, was “trying to conceal his identity,” as opposed to merely covering his head with his hood for whatever reason motivated him at the moment.  This, in the course of an apology, was supposed to make it all understandable, all comprehensible, to the man beaten.  This was supposed to make the wounds hurt less.

Projecting nefarious intent on innocent acts is one of the primary tools of law enforcement, used to a reaction that would be utterly unacceptable otherwise, or if offered by anyone other than a cop. This is the “furtive movement” rationale for a search or, in the most extreme cases, a killing. By merely characterizing an innocent act as something reflecting evil intent, it’s supposed to explain the beating of a man walking down the street wearing a hoody.

And as absurd as the excuse may be in this case, given its outcome, it suffices almost all the time.  Had Antonio Martinez not had Down Syndrome, what are the chances that he wouldn’t have been arrested and prosecuted for his disobeying the cop?  After all, he was wearing a hoody.

The theory underlying the law enforcement panacea in Whren v. United States, approving of pretext automobile stops, is that no one can drive any distance without breaking a traffic law. Thus, if a cop follows a car long enough, he’ll have justification to stop it and, well, have his way. Since a cop’s claim that you swerved across a line, failed to signal or drove 3 miles over the speed limit is more than sufficient cause to stop, it’s really not necessary to follow for too long if a stop is in the offing.

The New York Court of Appeals, in a surprising reversal of the trend toward making the roads a Constitution-free zone, held in  People v. Garcia that it is impermissible for a police officer who has made a routine car stop for a traffic infraction to play out the scenario to his routine advantage.

The state judges ruled that without a “founded suspicion” of criminal behavior, officers cannot ask pointed questions that imply criminal activity, like “Where are the drugs?” or “Do you have a weapon?”

38-year-old Angel Dobbs and her niece, 24-year-old Ashley Dobbs, were pulled over last July near the area of Highway 161 and Beltline Road for allegedly tossing cigarette butts out of the window of their vehicle while on a ‘road trip’ to Oklahoma.

The women’s attorney Scott Palmer says State Trooper David Farrell claimed he smelled marijuana coming from the vehicle and performed a search, which turned up nothing.

Trooper Farrell then called in a female trooper, who proceeded to do a very personal cavity search to see if they women were hiding any illegal items.

The women said that the female trooper, Kelley Helleson, proceeded to use her fingers to search their anuses and vaginas, using the same latex glove on both women, on the side of the road in full view of other passing vehicles.

Indeed, Mimms and Robinson place automobile occupants in the same position as pedestrians vis-à-vis police officers; the People’s proposed rule, on the other hand, would create disparate degrees of constitutional protections based on an individual’s mode of transport. Finally, by sanctioning, in the interest of safety, a suspicionless inquiry into whether the occupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with potential to raise significant privacy concerns. We decline to introduce  uncertainty into this area of the law when it is not necessary to do so. Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.

So says the Mayor of Paragould, Arkansas, Mike Gaskill, speaking of the  recent increase in violent crime in his town.  After thinking long and hard, he’s come up with a solution.

In response to a recent increase in crime, Paragould Mayor Mike Gaskill and Police Chief Todd Stovall offered residents at a town hall meeting Thursday night at West View Baptist Church what could be considered an extreme solution — armed officers patrolling the streets on foot.

“[Police are] going to be in SWAT gear and have AR-15s around their neck,” Stovall said. “If you’re out walking, we’re going to stop you, ask why you’re out walking, check for your ID.”

Stovall said while some people may be offended by the actions of his department, they should not be.

“We’re going to do it to everybody,” he said. “Criminals don’t like being talked to.”

Public safety is one of a mayor’s foremost responsibilities, and when you happen to have a police department at your disposal, the solution seems obvious. The only problem, of course, is that the law forbids it. Police can’t stop people because they’re “out walking.”  Police can’t “check for ID” because they feel like it. And while it may be true that criminals don’t like being talked to, neither do non-criminals. And, hard as it may be to accept, even criminals have rights. I know! But they do.

Police Chief Todd Stovall, highly trained in such matters, recognizes that even Paragould police operate under certain limitations, but he’s got it all figured out.

Normally, police would not stop individuals for simply walking on the street, but Stovall said the level of crime in certain areas and concerns from residents gave his officers the right to institute the actions announced at the town hall event.

“This fear is what’s given us the reason to do this. Once I have stats and people saying they’re scared, we can do this,” he said. “It allows us to do what we’re fixing to do.”

“To ask you for your ID, I have to have a reason,” he said. “Well, I’ve got statistical reasons that say I’ve got a lot of crime right now, which gives me probable cause to ask what you’re doing out. Then when I add that people are scared…then that gives us even more [reason] to ask why are you here and what are you doing in this area.”

While lawyers may find this simultaneously outrageous and amusing, in the sense of utter cluelessness and rhetorical irrationality, the fact is that this perspective largely mirrors the prevailing public view. There’s a problem and an easy solution. Make it happen.

Which prevails, the criminals’ right to walk the street unmolested by the police. Others think of people’s right to walk the street unmolested by criminals. See how easily the rhetoric can be gamed? So what if there’s a fundamental flaw in the reasoning? It shines on its surface, and more importantly, does what the good citizens of Paragould want it to do. We all have within us that bone that allows self-serving rationalizations to prevail over logic.

But it’s not just the elimination of cause for street stops of criminals that raises concerns, but that Stovall’s force will walk the mean streets ready for battle.  As Radley Balko notes, this isn’t a new concept:

Using SWAT teams for routine patrols isn’t uncommon. Fresno did this for several years in the late 1990s and early 2000s. The city sent its Violent Crimes Suppression Unit into poorer neighborhoods and stopped, confronted, questioned, and searched nearly everyone they encountered. “It’s a war,” one SWAT officer told Christian Parenti in a report for The Nation (not available online). Another said, “If you’re 21, male, living in one of these neighborhoods, and you’re not in our computer, then there’s something definitely wrong.”

At Current.com, another, closer to home, analogy is drawn:

Stovall is labeling his initiative “Stop-and-ID” similar to Mayor Michael Bloomberg’s “Stop-and-Frisk” policy in New York City, a program that’s had disastrous results and stirred outrage among the African-Americans and Latinos who’ve become targets of racial profiling and police harassment and brutality.

While it’s a bit facile to beat up on poor Paragould, Arkansas, the parallels are undeniable. When you think about it, the solution in some backwater in Arkansas doesn’t strike too far from that of Gotham.  Balko goes further to note that the embrace of such extreme tactics is less a matter of the prevalence of crime than the fear it causes.

But Stovall’s comments show that it isn’t so much a rise in crime that allows these sorts of police actions to happen, it’s the fear of crime.

Stoke the flames and it’s perfectly understandable why the public not only permits the police to don their most fearsome costumes, and go into the neighborhoods where other people live to clean up the mess, but demand it. It’s their right to feel safe, and the right to feel always trumps the rights of other people.  Doesn’t the Declaration of Independence mention something about Life, Liberty and the Pursuit of Happiness?  Aren’t the good people entitled to these things as well?  Why is it always the criminals who get rights?

Whether it’s true, as Mayor Gaskill says, that criminals don’t like to be talked to, isn’t the point. The police in Paragould won’t be asking for IDs in the good neighborhoods, or seizing the walkers of Golden Retrievers out for their evening constitutional. They will head straight to the “high crime” neighborhoods, which are usually noticeably darker red-neckier(?) and where the good citizens want them to go.

And it’s not a whole lot different than the way it’s done in New York City, so don’t think too ill of Paragould, Mayor Gaskill or Chief Stovall.  If they can do it here, they can do it anywhere. Perhaps the rhetoric is a bit less polished, but tossing the poor over nothing is becoming a staple of American policing, and why shouldn’t Paragould enjoy the same tactics as Manhattan?

Addendum: Apparently, Chief Stovall has  decided to cancel additional town meetings on the subject, citing “public safety.” It’s amazing how useful two little words can be. It seems that people are a bit upset by the Paragould PD’s plans, which suggests two reactions. He can either change the plans or shut down discussion. He’s made his choice.

In the recap of his acquittal for videotaping police,  Carlos Miller includes this paragraph among the many offering his appreciation to those who aided him in the cause:

I also wouldn’t have been able to do it without the Chandler brothers, specifically Robert, who was able to pry public records from the Miami-Dade Police Department when Major Nancy Perez was refusing to provide requested public records to [Carlos’ lawyer, Arnold] Trevilla.

The Chandler Brothers?  A couple of guys in Florida doing something both small and huge, and without which, the promise of law would be a sham.

There is a tricky little law that exists in one permutation or another across the country, but the purpose of which is clear. It’s supposed to prevent government from hiding its dirty little secrets from the public.  Freedom of Information, it’s called, and it is supposed to require government, upon request, to provide us with inside information about the things they do behind closed doors.  Great law, right?

Except it’s mostly honored in the breech.  Make a request and maybe you will get a response. Maybe not. Maybe you will get everything you’ve requested. Maybe only what they feel like giving you. Maybe you will just be ignored altogether. Maybe they will make up some official sounding excuse and deny your request.

On the whole, there are two things that are clear about Freedom of Information laws. They haven’t fulfilled their promise, and when they don’t, it’s up to you, dear citizen, to force the government to comply.  Therein lies a huge, often insurmountable problem.  And that’s where the Chandler Brothers come in.

One of the most well established principles of open government law in Florida, is that, with very few exceptions, we have the right to inspect, photograph and copy public records and to attend open meetings without having to explain why we want access, only that we do. That principle is also one of the most abused.

Let’s face facts: for most people, denial, whether express or tacit, is where the fight ends. You’re not equipped to sue over it, and the cost of retaining counsel isn’t worth the gamble. For lawyers, taking on a cause that puts you on the front page of the New York Times with a victory that will be remembered throughout the ages may be worth the effort. Getting a locality, a police department, to comply with its Freedom of Information laws is about as small potatoes as it gets. There will be no parades in your honor, no statues of you in the town square.

It’s the tiny acts, however, that makes the promise of laws that purport to keep the government honest work.  This is why the efforts of the Chandler Brothers are so valuable, even if unknown and underappreciated. This is why I’m offering my capital by way of this post to show them the respect they’ve earned.

They’ve become experts in fighting for disclosure, taking on the little fights that make the law happen. They were a critical part of uncovering evidence in Carlos’ case, but just as importantly, remain a perpetual threat that keeps the government somewhat honest.  What they do inures to everyone’s benefit.

And they don’t do it without risk to themselves.

Dating back to 1889, public officials in Florida have had a long tradition of trying to impose their own set of rules to open government access. Some officials have tried to impose rules about who has access. Others have tried to impose their own set of rules about why folks have access. Both are unlawful.

If public officials can demand that members of the public identify themselves as a condition of open government access, then those officials will be able to filter what information (records and meetings) are available to citizens. We have collectively decided that unfiltered information works best to minimize waste and corruption and to increase public awareness of key issues in government.

What the Chandlers have come to learn is that when they show up at a police station to make a request, they are regularly subject to suspicion for the offense of exercising the rights given them under law.

For no other reason than having asked to inspect the most innocuous public records imaginable – visitor’s logs – Robert and I have been investigated by numerous law enforcement agencies.

Based upon a public records request made to FDLE using the criteria of “Robert Chandler”, “Joel Chandler” or tag number “X41977” (Robert’s tag and the vehicle in which we were traveling to do our in-person-audits) numerous LEOs accessed FCIC during our road trips.

Kathy Martin of the Stuart Police Department writing down our tag number.

After all, what could be more suspicious and seditious to a cop’s mind that someone investigating them?  And yet, the Chandler Brothers ignore the intentionally chilling effect of making themselves the target of police scrutiny to assure that public information remains free?

There’s no glory in doing this. There are no fabulous riches, now or down the road. It’s just another cause, but one that makes the small laws happen where they would just be ignored or denied otherwise. 

I applaud the efforts of Robert and Joel Chandler, and want to offer some well-deserved recognition.  Just as Carlos has become the patron saint of photographers and videographers capturing the police in the act despite their efforts to stop them, the Chandlers do the same in Florida to prevent Freedom of Information from falling into a black hole. 

Perhaps you might want to thank them as well, maybe even contribute to their cause, as their efforts serve all of us in keeping some small measure of integrity in the law and government.  Thanks, Robert and Joel Chandler, for doing something that may be small in each instance, but huge in its importance to the rest of us.

H/T FritzMuffKnuckle

Most dreams of cops, executing a warrant at the home of a family of innocents, fail to produce the outcome we would hope for.  A big compensatory award coupled with punitive damages against the cops involved personally.  The good news is that it happened in Chicago.

On Friday, a federal jury awarded [Markee] Cooper and his family $565,000 in damages after finding one officer at fault for a falsified warrant and two others responsible for the illegal 2007 search.

The city of Chicago will have to pay $450,000 in compensatory damages awarded by the seven-woman, three-man jury, said Cooper’s attorney, Brendan Shiller. The jury also assessed punitive damages against three of five officers — money they will be responsible for paying, Shiller said.

Cooper, a nine-year police veteran, is assigned to the department’s elite Organized Crime Division, working undercover investigations that often involve getting warrants.

Officer Sean Dailey, who testified that he secured the warrant based on information from an informant named “Lamar” who told him crack was being sold out of the second-floor apartment in the Cooper’s building

Cooper’s legal team argued that Dailey either made up the informant or was reckless by making no effort to try to verify the tip. They pointed to the sketchy information Dailey initially had about Lamar’s background — no last name, phone number or address.

The officers’ attorneys argued that Dailey played by the rules, informing the Cook County state’s attorney’s office before going to a judge for the warrant. Dailey testified that the same informant had given him three previous tips that led to criminal charges. That the information turned out to be bad was not intentional, the defense argued.

The officer and his wife testified at the trial that their two young sons, Markee Jr., 13, and Zion, 8, were traumatized at seeing their father confront a roomful of cops with guns before kneeling to the living room floor and handing over his badge and weapon.

“It’s a horrible experience for a child to see or even think about,” Cooper’s wife, Sherita, said after the verdict was announced. “I’m just glad that justice was served.”

The time to mourn will continue, but the cries to fix the problem that took the lives of 20 children in Newtown can no longer be ignored.  At a memorial service last night, President Obama, who appeared to be sincere in his resolve to  do something about mass killings after the fourth in his first term, said:

“Because what choice do we have?” he added. “We can’t accept events like this as routine. Are we really prepared to say that we’re powerless in the face of such carnage? That the politics are too hard? Are we prepared to say that such violence visited on our children year after year after year is somehow the price of our freedom?”

And so the gauntlet is thrown down. Can the nation capable of putting a man on the moon because a president challenged us to do so find a way to prevent another Newtown?

A recurring answer from many in response to crises is to blindly leap to simplistic, overarching “solutions” to whatever they perceive as being the “real problem.”  Sometimes the “real problem” is the system is corrupt and irreparably broken. Sometimes the “real problem” is that we have dismantled the safety net for the mentally ill. Sometimes the real problem is that we fail to honor the constitutional right to keep and bear arms. 

The “real problem” tends to reflect whatever priority we personally hold, and we call it the “real problem” because people who hold a different priority want to solve the wrong problem. It’s wrong because it’s not ours, and it’s not ours because it’s not the one that conforms to our priority.  As with all beliefs, it’s a matter of chosen faith. The solution consistent with our faith is the one we believe will solve the real problem, and therefore the solution we support. And anyone who believes otherwise is wrong.

For those of us who have neither the authority to solve grand problems, nor the responsibility should our solutions be wrong, it’s easy to opine. The best part is that if the powerful don’t heed our opinion, we can smugly say, “See? I was right.”  The illogic of false choices doesn’t change this smugness. 

As much as anyone, I wish I had a cure for the death of these babies, and the death of any child.  I wish I could prevent many horrible things from happening, as do so many others. But cures don’t come easy, and don’t come cheap.  At this moment, appeals to emotion are very likely to swing opinion, as emotions are raw. Yet any fix will be around long after the emotion has waned, and we will live with the fix every day when nothing horrible happens. 

While the day after the shootings was not the time to think, now is.  While it is probably too early, we no longer have the luxury of feeling now that the gauntlet has been thrown.

The primary positions are already laid out.  There is gun control.  There is our mental health system. There is a stronger bubble around our children. There is greater school security. And there are any variety of variations and combinations of these ideas. Many have already laid claim to their positions, and will spend the rest of the discussion arguing why theirs fixes the “real problem.”

One line from President Obama’s speech at the memorial last night stands out in my mind.

Are we prepared to say that such violence visited on our children year after year after year is somehow the price of our freedom?

No one wants to respond in the affirmative.  No one wants to say that history has shown that we cannot eliminate tragedy from our world, as someone bent on engaging in horrible acts will find a way to do so.  It’s defeatist. It’s uncaring. It’s unacceptable.

Yet, it might be the case, and all the arguing over what is the “real problem” may be just so much noise. Every solution has consequences, and the weighing of these consequences can’t be obscured by the emotion of the moment.  There are cures worse than the disease. 

Scientists seeking a cure for cancer don’t search for a solution that will eradicate the disease. They search for tiny bites of the solution. They search for a means of delivering a toxin to an errant cell that causes one obscure form of cancerous growth.  Their search has taught them that there is no “real problem,” but a million problems, all of which need to be recognized to find the cure. And then, they need to balance the harm of each bit of the solution with the benefit, so as not to cure the disease by killing the afflicted in the process.

Most of our big problems require us to think much longer, much harder, much smaller, than we like to do. We want to proclaim that there is one big solution that will fix the “real problem.”  It’s nonsensical.  Worse yet, it leads us to argue about nonsense, and while doing so, ignore the small things that can be done to ameliorate tiny bits of the problem without terminal consequences to the host.

Don’t rush to your favorite priority to proclaim it the right solution, or the wrong solution, to the “real problem.” Don’t rush to join a team in this fight and defend your faith to the death.  If there are answers, they will require thought.  And it may be that there are no solutions to the “real problem,” that the answer to President Obama’s question is that tragedy is the price of freedom.  But that doesn’t mean we cannot strive to find answers that will prevent as many tragedies as possible, even if we can’t stop them all.

Necessity is the mother parent of invention, and so a new cottage industry is born. What’s surprising isn’t that it happened. When there is money to be made, someone eventually comes forward to make it. What’s surprising is that it took as long as it did.  Via Brad Heath at USA Today :

For a fee, Watkins and his associates on the outside sold them information about other criminals that they could turn around and offer up to federal agents in hopes of shaving years off their prison sentences. They were paying for information, but what they were really trying to buy was freedom.

“I didn’t feel as though any laws were being broken,” Watkins wrote in a 2008 letter to prosecutors. “I really thought I was helping out law enforcement.”

That pay-to-snitch enterprise – documented in thousands of pages of court records, interviews and a stack of Watkins’ own letters – remains almost entirely unknown outside Atlanta’s towering federal courthouse, where investigators are still trying to determine whether any criminal cases were compromised. It offers a rare glimpse inside a vast and almost always secret part of the federal criminal justice system in which prosecutors routinely use the promise of reduced prison time to reward prisoners who help federal agents build cases against other criminals.

Were laws broken? The question is only asked after the scheme goes public, because only then does anybody care whether something that emits a bad stink was wrong. Ironically, the scheme played into the hands of law enforcement’s crack investigators, who only smelled sweet busts.  After all, the ability to copy down the name and address offered by a snitch is what agents refer to as “investigation.” Once they smell their first successful take-down, the scent becomes intoxicating.

The snitch method of defense grew out of the Sentencing Guidelines, and during the 1990s, became the predominant method of avoiding the absurdly draconian prison sentences required by the grid. When defendants had no one to give up, substituted cooperation came into being, where someone on the outside would snitch or work a case on behalf of an arrested defendant. It was never popular with prosecutors though, as it rewarded a defendant for something he didn’t do and presented a disconnect when it came time to take a case to trial.  Many offices eventually refused to allow substituted cooperation.

According to Heath, 48,895 federal convicts, or one in eight, had their prison sentences reduced by snitching over the past five years. Let’s face it, neither the bonds of friendship nor even family ties are strong enough for some defendants to take a ten year hit.  There is no honor among thieves, or drug dealers, money launderers or fraudsters. Hey, you can always make new friends, right?

But Watkins took the battle in a new direction, selling names to desperate defendants who had no one to give up. What Heath’s number doesn’t reflect is the number of defendants who want to snitch, are desperate to snitch, but just don’t have anything good enough to give.  Bear in mind, if a defendant is in on a ten kilo sale, giving up the guy selling dime bags isn’t going to do him much good. He needs to give up somebody the feds want badly enough to cut him a break.

As for the lawfulness of Watkins’ business, there really isn’t any doubt.

Prosecutors have said they were troubled that informants were paying for some of the secrets they passed on to federal agents. Judges are outraged. But the inmates who operated the schemes have repeatedly alleged that agents knew all along what they were up to, and sometimes even gave them the information they sold. Prosecutors told a judge in October that an investigation found those accusations were false. Still, court records show, agents kept interviewing at least one of Watkins’ customers even after the FBI learned of the scheme.

As part of the opening spiel at every proffer session, the assistant tells the Queen for a Day that if he doesn’t tell the truth, he won’t be accepted as a snitch and may be prosecuted under §1001. By the truth, he means good dirt. Truth is such a relative term.  So when a convict claims to possess personal knowledge about a crime, but leaves out the part about the tens of thousand he paid Watkins or the fact that he doesn’t actually have a clue about the person he’s ratting out, it’s just a minor detail. A sin of omission. Barely a sin at all, when the dirt is good enough to capture the government’s interest.

But why blame Watkins, who is merely showing the entrepreneurial spirit that made America great? He saw a need and filled it. That’s the American way. The beef, if any, is with an incentive system that rewards people for giving up others, whether it’s true or not. The incentive system promotes turning minor criminals into drug lords, manufacturing lies that will make value of the snitch’s information sufficiently enticing to the government to cut a sentence in half, or maybe more. After all, if Sammy “The Bull” can make murders disappear with the right information, certainly a run of the mill drug dealer shouldn’t be a problem.

The government, with the help of the judiciary, has made snitching an art when it comes to overcoming any potential aversion a juror may have to it. The inherent reasonable doubt over allegations provided by a person who has an enormous incentive to lie is blunted by prosecutors who harp on how a convict must tell the truth or lose any potential benefit.  Judges instruct juries with carefully crafted words to explain that snitches aren’t unreliable, but a critical part of the system that prevents their wives from being raped.  Without them, the judge solemnly intones, our streets would be overrun by crime. Thank God for snitches.

So why not Watkins? Is his snitch-for-hire information any less reliable than the stuff guys make up in the quiet of their prison cells?  In fact, he may well be more reliable, for there is no better marketing for a service than customer satisfaction, and so he’s got a strong incentive to sell only the highest quality information. 

And on the law enforcement side, there is no incentive to do anything to impede the flow of names and addresses for the next day’s bust.  After all, how would they possibly win awards for their brilliant investigative techniques if somebody doesn’t feed them every detail?  All they have to do is write it down on a pad correctly, which my empirical research shows happens 57% of the time, and they get medal and a promotion.

Of course, once the government and courts come up with an artful explanation for the jury about why pay-to-snitch is really a valued part of our legal system, then competition will follow and the marketing wars will start.  The only problem after that will be scarce resources, making sure there is enough crime to snitch about, which will give rise to the next cottage industry: getting children to become criminals so that there is no shortage of people to snitch about.

The business of America is business, and there is no reason why snitching should be any different.