The venerable news magazine, 60 Minutes, did a segment on an Italian company called Luxotica. If you missed it, watch it. It’s worth your time.  Luxotica makes eyeglasses.  Pretty much all of them. Forget the “brand” on your specs; From Ray Ban to Chanel to Tiffany, they’re all designed and made by Luxotica.

And Luxotica sells eyeglasses. From Lenscrafters to Pearle Vision to Sunglass Hut, it’s all Luxotica.  When Oakley sunglasses tried to break free of Luxotica’s retail control, they were crushed. Luxotica refused to sell them, and they ceased to exist, because no product can exist if the market refuses to carry them. Then Luxotica bought them at a garage sale, and now they exist again as one of the many Luxotica brands. 

And the fabulously stylish fashion eyewear from Versace is no different than the pedestrian, old school Ray Ban aviators, except for the logo glued to the frame, carrying with it a few hundred dollar premium as a litmus test of how we perceive vanity and what we’re willing to pay for it.  As Luxotica’s CEO proudly noted, as long as we’re willing to pay big money for pretence, it must be worth it.

And we laugh at Honey Boo Boo Child? Only because we don’t recognize ourselves.

Over at What About Clients?, Dan Hull calls out customer service, the job available to those who didn’t make the cut as assistant manager at Dairy Queen. The people who eventually get on the line after seven minutes in heaven on hold, with such pre-recorded gems as “we care deeply about you and someone will be with you when they’re damn good and ready.”

In the cases of all of the foregoing but GEICO and Enterprise [Dan’s two customer service stars], there are of course some good, but mainly bad, moments. With respect to my nightmare companies, customer service–which no one said is easy to institute and keep up–is a cynical joke. I would have far more respect for them if they just admitted they simply do not care. In the meantime, I would very much like to see customers at counters and on phone lines everywhere start to act up–and demand better service and treatment. For example, you are the customer, and if the store, bank, insurer has made a mistake, they should correct it proactively rather than giving you another place to go or another phone number to call.

If they do not, get a little loud, folks. Tell them you expect better; you are a long-time or merely prospective customer, but one with money. You came ready to do more business or that all-important “first business”, which is a valued “moment of truth” for every seller. And, hey, you don’t call them back during regular hours. They take a message and call you back, Jack.

While Dan is absolutely right that it’s a cynical joke, taking advantage of our collective “politeness” and wimpish inability to stand up for ourselves, the problem with getting loud and rude is that the people on the other end of the phone either couldn’t care less or have no authority to do anything to help. They’re peons reading from scripts. Whether you buy or not changes nothing in their lives. Yell all you want. They just move on to the next call, asking “is there anything else I can do to help you today?”

You can ask to speak to the supervisor, but that’s the person who was promoted because she excelled at persuading people with reasonable concerns to go away.

When an annual membership fee appeared on my “no fee for life” Chase British Airways credit card the other day, I called customer service. The year before, they sent out a notice that they were changing the terms of the card to include a fee. I called then and was told that it was a mistake as to me, as my card was no fee for life, and my card would be coded so I would never be charged again. The fee was back this year.

This year, the CSR told me they had to charge me, and they sent me a notice. I explained. The gal ignored what I said and explained to me, using small words, that I now had to pay the fee.  So I asked to speak with her supervisor and went through the same explanation.

The Chase supervisor, Anthony Wilson, began by explaining that the law required them to charge a fee. This shuts most people down, since any mention of The Law puts the argument outside their scope of knowledge. I told Anthony that was idiotic. Ultimately, he informed me that they were charging me a fee whether I liked it or not because, well, that’s what they did.

Let me add, there is no credit card in the world worth paying an annual fee. None. Never. If your card charges a fee, get a different card. Don’t even get me started on the scam of debit cards. And so I canceled the card.  Guess what? I don’t have to pay the fee.

My pal, Wally Olson, runs a blog called  Overlawyered, that embodies the concept that we sue over anything and everything. His point is well taken. The flip side, however, is that businesses sell us garbage and treat us like serfs and fools. And the harshest truth is that so many of us, in our own business life, do the same to others, even though we’re great at rationalizing our own trespasses while getting angry at others. We’re not necessarily hypocrites as stupid. We just can’t seem to connect the dots anymore.

So the only credit cards in my wallet carry no fee. I wear old Ray Ban sunglasses, and reading glasses from the supermarket that no one will mistake as being Chanel. Sometimes, I get loud and rude with customer service reps. Most of the time, I don’t bother. They aren’t even grocery clerks, but bit players with a short script.

Imagine what would happen to Luxotica if ten million people realized they were being taken for a ride?  Or what would happen to the Chase British Airways credit card if ten million people said “no” to paying a fee?  Would it reduce your life to meaninglessness if you didn’t wear Chanel sunglasses?

Then take a look at how you treat your clients and ask whether you’re any better than a customer service rep named Helen from Manilla?  We can demand better. We can give better. We were once real and can be that way again.

Unless you’re an amoeba, you can’t be in two places at the same time.

–Court Officer, Part 70, Supreme Court, New York County

I remember being told this when I was a young lawyer, complaining about judges demanding that I be in their courtroom rather than another judge’s courtroom. The problem wasn’t the laws of physics (which, contrary to the iPhone commercial, are not merely general guidelines), but that I undertook responsibilities I couldn’t perform.  Didn’t these judges get it? How could I make a living if they kept expecting me to be in their courtroom when I had a client in another? 

At the time, my concern was how I could represent two defendants who were required to be in two places at the same time.  Or to be blunt, how I could get paid to represent both defendants, even though the logistics were in conflict.  

I never forgot the lesson.  My interest in getting paid neither trumped my responsibility nor the laws of physics.

Curiously, some lawyers and clients prefer not to consider the logistics as they get in the way of their dreams.  For the lawyer, it’s the dream of taking on as many cases as possible, without regard to the time necessary to fulfill his responsibilities. For the client, it’s the dream of having a lawyer always there for them, never busy doing anything else.  It’s a fantasy for both.

There are some immutable realities to the practice of criminal law.  It takes time to do competent work.  The obligation to be in one place precludes the ability to be in another.  While thoughtful planning can make the representation of numerous clients viable, more often lawyers solve the problem by just doing shoddy work. Or no work at all.  Flitting into court unprepared. Offering change-the-name papers. They take pride in shooting from the hip, as if it adds to their machismo.

There is no virtue to volume.  There is nothing to be proud of when you accept a fee from a client and fail to do the work necessary to earn it.  And yet there is no shortage of lawyers and clients who either can’t figure out that this is wrong, or are in denial that this is happening.

The key to fulfilling our responsibility to a client is availability.  This means that we understand what is necessary to perform the work required by our representation, and we accept the responsibility to do it.  And this means we limit the matters we take on so that we are available to do the work for which we’re paid.

Everybody hates this.  Lawyers hate it, because it means they can’t take whatever money is in the pocket of every person who shows up at their office. Clients hate it because it means they have to pay for the time they demand of their lawyer.  It’s not that they don’t want the lawyer to drop everything and be available for them at all times. It’s just that they don’t like to pay for it.

Some years ago, a rapper sought my services.  I gave him a healthy fee for representation, but he was indignant.  He wanted me to be his lawyer, but his alone. He wanted me to be available to him at all times, and have no other obligation, no other client, but him.  I told him what it would cost him if that was what he really wanted.  He wasn’t pleased with that fee either, as it was completely disproportionate to the services he needed.  I explained that he didn’t need my total availability, but if that’s what he truly wanted, he would have to pay what I would otherwise earn over the period.

The point is that the intersection of fulfilling our responsibilities as a lawyer and maintaining a law practice isn’t a matter of magic or aspiration. It’s a matter of realistically appreciating the amount of time one needs to dedicate to the representation of a client, and maintaining one’s availability to do so.  On the other side of the equation, it’s a matter of the client’s willingness to pay for the extent of availability necessary to do the work the client requires.  Both sides of the equation have to balance or the representation fails.

Don’t take on more than you are capable of handling properly.  If a matter is going to demand your full attention for a period of months or years, then you can’t accept other matters that will make it impossible to fulfill your responsibilities.  At the same time, unless you have a trust fund or children who eat only occasionally, the compensation has to match the demands on your availability.  

This isn’t rocket science, although a working knowledge of the laws of physics helps.  Yet, ignorance of these basic ideas seems to be rampant as lawyers take on more than they can possibly handle competently, and clients want to pay far less than the time and availability for competent representation requires.  Something has to give, and whatever that turns out to be, somebody is going to be unhappy about it.

Most of the time, what’s lost is competent representation.  If you’re a defendant sitting in a courtroom wondering when, or if, your lawyer is going to show, this is why.  And if you’re the lawyer touting how busy you are and how many important cases you’ve taken on, far too many to handle properly, the message you’re sending is that you care more about making money than representing your clients. 

Harvard lawprof Noah Feldman’s  op-ed in Newsday suggested the counter-intuitive notion that the internet, the invention that has allowed more people to express their ideas more easily to a broad audience than anything since Johannes Gutenberg’s press, may so alter the free speech equation such that it requires us to redefine its parameters.

The vast majority of countries around the globe have laws that prohibit hate speech. And even if the anti-Islamic film “Innocence of Muslims,” which has sparked protests throughout the Arab world, would not have violated some hate-speech laws, most governments would still find ways to suppress the speech of those protesters who found the film so offensive. Compared with almost every country in the world, the United States is an outlier when it comes to free expression.

Two years ago, Supreme Court Justice Stephen Breyer shocked free-speech lovers when, during an interview about a book he had just published, he suggested in passing that our free-speech laws might have to be changed in the era of instant global communications. Breyer’s prophetic comments were inspired by anger in the Muslim world about possible Quran burning in the United States.

Today, in the wake of attacks on U.S. embassies and the killing of a U.S. ambassador and three other Americans in Libya, Breyer’s offhand observations need to be taken seriously.

Correctly noting that this video wouldn’t invoke the “fighting words” exception to the First Amendment, Feldman nonetheless ponders whether it would have been different had it been delivered in person rather than online.

In principle, it should not be more difficult to predict the likelihood that an audience abroad will respond violently to a given statement than it should be to predict that a crowd gathered in front of the speaker will respond violently. At present, we rely on the informed judgment of law-enforcement officers who are on the scene, watching both the speaker and the audience that is on the verge of exploding. It seems possible that law-enforcement officers who were sufficiently well-informed about conditions elsewhere could make a similar judgment about a YouTube video.

This sort of post-hoc reasoning, scrutinizing a video that meant nothing to anyone for the months it was online until, for whatever reason, it suddenly was blamed for lighting a fuse, combined with the blind acceptance of the “informed judgment of law enforcement officers,” makes Feldman’s ideas sound fairly harmless. Indeed, Feldman acknowledges that limiting speech merely because it will offend someone somewhere is disfavored.

Under these standards, speech that offends Muslims abroad — no matter how nasty and provocative — would be protected by the Constitution. Not only would violence be distant and of uncertain probability. It would also be directed against the speaker. Banning speech because of the danger of such a reaction would create what is sometimes called a “heckler’s veto,” highly disfavored by our law.

Yet, if it should erupt into violence, isn’t the reason enough to add the additional layer of moderation?  What’s wrong with our trusted authorities scouring the internet in search of the next inflammatory video or statement to shut down speech has the potential to incite craziness somewhere in the world?  Isn’t it better to stop the hate before it manifests in violence and death?  There is nothing about hate speech that makes it worth the death of good people, or even worth the risk.

Feldman notes that free speech is already subject to increasing limitation, as reflected in the Supreme Court’s holding in Holder v. Humanitarian Law Project.

The court said that the law could prohibit speakers from advising terrorist groups on how to advocate peacefully in lieu of violence. To reach this conclusion, the Supreme Court simply sidestepped the traditional speech-protected rules for incitement. The implication was that speech supporting terrorism deserved its own legal regime.

So why not speech on the internet?  Why not hate speech calculated to offend?  Why not speech that the “informed judgment of law enforcement officers” suggests has the potential to incite people elsewhere in the world, but right next door on the internet, to violence?

Is free speech rhetoric “dated” in light of the “emerging realities of transnational responses”?

The fact that speech, the embodiment of ideas, can move a person to act is a testament to its power.  As some persist in achieving their vision of Utopia, where no one is every harmed either physically or emotionally, and where we cede ever-increasing authority to the government to regulate our world to achieve perfection, it’s possible that we can prevent the occasional incitement to violence.

And this is how the camel gets his nose under the tent.

The internet doesn’t change the free speech calculus. Fear does. Of the billions of bits of content that appear on the internet, a few will offend.  A few will offend many. And a few will illuminate. Once we hand over the power to the government to decide which is which, and which deserves to disappear under the “informed judgement” of law enforcement, the fundamental purpose of our American notion of free speech is lost. 

I can appreciate that Noah Feldman doesn’t want anyone else harmed as a result of hateful internet content. I don’t either. But giving up free speech isn’t the solution.  Even if we are the outlier, do we really want to limit our freedom to the lowest common denominator?  And if fundamental freedom has to take a hit when speech goes viral, isn’t it worth the price?  People die for far less.

The scenario is pure tragedy. Via UNC lawprof Tamar Birckhead, who spent a decade in the trenches as a public defender, the story of  Cassidy Goodson offers nothing to warm one’s heart.

According to a news release from the local sheriff’s office, on Sept. 19, 2012, Cassidy Goodson went into labor in the bathroom of her family’s mobile home in Lakeland, Florida.  To hide her cries of pain, she placed a towel in her mouth and ran the water in the faucet. She used a pair of scissors to pry the nine and a half pound baby out of her womb and into the toilet, where she squeezed its neck until it stopped moving. Then she cleaned up the bathroom, showered with the dead baby, and placed the infant’s body in a shoebox along with her soiled clothes and towels.

Three days later, after smelling a strong odor coming from Cassidy’s room, her mother found the deceased newborn and placed a frantic call to the police. Upon questioning by homicide detectives, Cassidy confessed to choking the baby to stop him from breathing because she “didn’t know what to do with it.” Autopsy results have confirmed that the cause of death was asphyxia from strangulation and blunt force trauma. The ninth-grader is now being held at the county juvenile detention facility and ultimately could be sentenced to life in prison.

Of course, we’ve been down this road before. A teenage girl hides her pregnancy, gives birth in secret, and puts the infant in a trash bag or dumpster. The baby is discovered – sometimes alive, but more often than not, dead. The public responds with anger and disgust. The girl reports paralyzing fear and intense shame – for having sex, getting pregnant, not knowing what to do, and abandoning or smothering her own baby. The criminal justice system steps in, extracts a conviction, and imposes punishment – typically including a prison sentence.

When it’s called pepper sprays, it sounds relatively benign, maybe even tasty if offered for a nice garden salad. But it’s really pretty nasty stuff.

For individuals not previously exposed to OC effects, the general feelings after being sprayed can be best likened to being “set alight”. The initial reaction should the spray be directed at the face, is the completely involuntary closing of the eyes (sometimes described as leading to a disconcerting sensation of the eyelids “bubbling and boiling” as the chemical acts on the skin), an instant sensation of the restriction of the airways and the general feeling of sudden and intense, searing pain about the face, nose, and throat. Coughing almost always follows the initial spray.

For the most part, the effects wear off in about four hours, though it’s unclear whether there are long term effects.

The US Army concluded in a 1993 Aberdeen Proving Ground study that pepper spray could cause “[m]utagenic effects, carcinogenic effects, sensitization, cardiovascular and pulmonary toxicity, neurotoxicity, as well as possible human fatalities. There is a risk in using this product on a large and varied population”. However, the pepper spray was widely approved in the US despite the reservations of the US military scientists after it passed FBI tests in 1991. As of 1999, it was in use by more than 2,000 public safety agencies.

As we are all aware, pepper sprays has become part of the law enforcement less-than-lethal arsenal, its primary virtue being that it doesn’t involve shooting someone.  This, apparently, is why it’s become the tool of choice of police officers charged with maintaining order in high schools.

Via the Las Vegas Sun, a group of about 100 students watched a fight at Chaparral High School. 

Chaparral junior Selena Aguirre, 17, told her father that school police officers used pepper spray to disperse a crowd of about 100 students who witnessed a fight in the school quad. Officers sprayed randomly in the air, affecting bystanders as well as the fighting students, Selena said.

In the melee, Selena — who said she was not involved in the fight — was hit in the face with pepper-spray, Aaron Aguirre said.

The police were not only unapologetic, but quite satisfied with the outcome.

Officers gave a verbal warning and tried to physically separate the fighters before resorting to using pepper spray to stop the fight and scatter the crowd of bystanders, [police spokesman Ken] Young said.

No officers were injured in the fight. It is unknown how many students were affected by the pepper spray, Young said.

No doubt we are all thrilled at the news that no officers were injured, not that the police spokesman’s critical focus was the point of the story or the concern of parents about the pepper spraying of students to “scatter the crowd” of innocent bystanders. 

While the use of pepper spray as a quick fix in high school may be new to Vegas, it’s old hat in Birmingham, Alabama, where the Southern Poverty Law Center is suing the school district on behalf of students for using pepper spray to control “routine misbehavior.”

The lawsuit claims police officers working at the schools as school resource officers _ or SROs _ have used pepper spray for what are really just behavioral problems that don’t pose a threat to the officers. The center has stated in court documents that since 2006, more than 100 school children in Birmingham have been pepper sprayed, although more recently center officials put that number at 200.

SPLC officials have said that Birmingham police don’t have a specific policy, or training, for use of pepper spray against students in schools. It’s the same policy for officers on the streets.

In response to the police and school district’s motion to dismiss the §1983 action, District Court Judge Abdul Kallon wrote:

“In viewing the facts in a light most favorable to Plaintiffs, it appears that, at best, the most severe crime any Plaintiff (student) engaged in was disorderly conduct or resisting arrest. Disorderly conduct is, of course, not a serious offense warranting use of force, including the use of non-deadly force like mace,” Kallon wrote. “Similarly, resisting arrest without force does not rise to a level of dangerousness that justifies the type of force used here.”

The judge wrote that Moss’ “admitted conduct borders on child abuse and is precisely the type of behavior that creates a strong inference of ‘legal malice or wicked motives.'”

While there may well be instances where high school students are engaged in violent and dangerous conduct, whether to each other or the police, this isn’t the nature of conduct at issue here. The problem is that police are using pepper sprays as the weapon of first resort whenever students just aren’t respecting their authoritah. 

True, pepper spray is better than a beating with a club, and certainly a bullet.  Whether it’s better than a Taser is debatable. What it is not is an appropriate means for managing routine student misbehavior. We do not use weapons against our own children when they are just not complying with commands fast enough.

Much as providing police with military weapons gives rise to their routine use in ordinary domestic situations, providing less-than-lethal weapons on a Sam Browne has given rise to their indiscriminate use as well.  Only they are now being used in our high school against our children. And not necessarily against the children who are even arguably involved in misconduct (forget the issue of whether the misconduct warrants the use of force), but even those who are acknowledged bystanders.

Had there been no pepper spray on these school cops’ belts, would harm have befallen anyone by dint of a crowd of 100 students watching a fight once the fight was broken up?  But it’s there. They have it. It’s “less-than-lethal, and, by golly, it’s so darn convenient to use. 

And they are using it on our children.  At least no police officers were injured.

H/T FritzMuffKnuckle

The regular stream of “isolated incidents” involving SWAT raids on the wrong house took a curious turn.  From Delaware Online, via Radley Balko :

Steve Tuppeny was in the garage of his Middletown home having a smoke at 6:15 a.m., his wife and daughter asleep inside, when the Wilmington SWAT officers made their move.

Dressed in black, several officers rushed Tuppeny, ordered him to lie face down on the ground and handcuffed him. Other SWAT officers smashed the storm door in the front of the Tuppenys’ two-story colonial-style home, then used a battering ram to break through the red front door.

So you want to stand before a court and proclaim your righteous indignation in stentorian tones about the evils of drugs?  Make sure the joint doesn’t accidentally fall out of your pocket.  Or perhaps you want to sit high on a bench in judgment of miscreants who endanger others by failing to strictly adhere to the requirements of controlling a hurtling 2000 pound missile?  Then it would help if your own license hadn’t been suspended for 15 years.

This would be a schadenfreude opportunity, but for the fact that to indulge in such nasty business is to demean ourselves.

From the  New Orleans Times-Picayune comes the story of assistant city attorney Jason Cantrell,

Jason Cantrell, an assistant city attorney, was issued a summons under a city policy for low-level marijuana cases after a joint fell out of his pocket in magistrate court in front of NOPD officers. Cantrell resigned his city post late Monday, according to his wife’s statement.

“I absolutely do not condone his actions,” wrote LaToya Cantrell, who is a well-known civic activist in Broadmoor making her first run for public office.

“I love my husband unconditionally and am very concerned for his health and well-being, and for that of our family,” Cantrell said. “I hope that this incident will encourage Jason to seek the professional help he needs and ask that the public respect our privacy in this very personal family matter.”

A LaFollette traffic court judge was arrested last week after officers found him driving on a suspended license.

Wes Hatmaker, of Knoxville, was pulled over on Sept. 26 after a Jacksboro police officer saw him cross the center line on Main Street.

Hatmaker, a well-known Jacksboro attorney and LaFollette city traffic offense judge, told the officer he did not have his license because it was in his other wallet.

After running Hatmaker through a license database, the officer found Hatmaker’s license had been suspended more than 15 years prior, in May 1998.

Perhaps he was too busy handing out fines and minor jail sentences to have time to notice that he hadn’t received a license renewal since the late 90s?

It’s easy to enjoy and appreciate the unavoidable irony that goes along with people who take upon themselves the authority to judge others.  It’s even sweeter when that irony strikes at the heart of what they do, revealing them as utter and inexcusable hypocrites.  So now that we’ve basked in the weakness of schadenfreude, let’s step away from the pleasure and consider its larger lesson.

Both Hatmaker and Cantrell are human beings, flawed and, whether they want to admit it about themselves or not, victims of their own hubris.  Perhaps both performed their official functions well, and both would be best characterized as the sort of prosecutor and judge we would hope to hold their positions.  Maybe these were both good guys.  Let’s assume they were.

By separating what they did wrong from what they did professionally, we can accept that they made foolish mistakes, perhaps got themselves caught in fairly ordinary jams which could easily be shrugged off.  But their positions can’t be ignored.

I’ve known some former prosecutors who smoked dope.  They did so before they put on suits, and they continued to do so afterward. And they drank. Heavily. Then drove.  And I’ve known some judges who drive fast. Some very fast. And crazy. It’s not that they’re bad prosecutors or judges, but are they pure? Not quite.  Or more precisely, not even close.  And they drank too. Heavily, etc.

In fact, one would be very hard pressed to find anyone who came of age during the 1960s or 70s who didn’t smoke marijuana.  The president did. Taking it a step farther, anyone who didn’t might well be considered rather peculiar, given the times. 

What makes these stories significant is that the people who assume the mantle of judgment over others, whether by indictment or imposition of sanction, have managed to forget their own humanity and the humanity of their dear friends and loved ones.  There is no one so pure and chaste in any courtroom, from federal to justice court, who hasn’t done something for which they could have ended up in the defendant’s chair.  No one.

That doesn’t mean that anyone has committed any particularly heinous crime. We don’t murder people. We don’t rape. We don’t molest children.  But we also haven’t been paragons of virtue in every aspect of our lives.  We do wrong, and breath a sigh of relief that no one found out. 

We go on to be lawyers, prosecutors, judges, even presidents, while some other poor schmuck ends up being sentenced for exactly the same conduct.  There, but for the grace of God…

And as we exercise the discretion of our positions and decide whether to indict and punish others, we imagine ourselves to be above their conduct, better than others.  We wrap ourselves in a fantasy of righteousness so we can lecture and condemn the very conduct we got away with.

Regardless of your feelings about religion, Micah 6.8 is worth remembering.

Do Justice, Love Mercy, Walk Humbly with God.

Cantrell and Hatmaker fell from grace. They once pretended they were chaste, and because of that are now chastened.  Are you, judge, really any better?  Are you, prosecutor, so pure?  What will you ask of us should you fall from grace one day.  It can happen. If your day comes, will you pray that we are more understanding than you ever were?

There isn’t a doctor’s office in the nation that doesn’t hand patients a stack of papers to complete before they see the doc.  And we dutifully fill them out because, well, we just don’t care that much about the forms and expect them to be the typical bureaucratic nonsense that one must endure before getting to the point of the visit.  Everybody knows we do this, including the Sarasota County Sheriff’s Office.

And that gave them an idea.

Like many law enforcement agencies, prescription drug abuse was a problem in need of a solution, and rather than go through the onerous burden of awaiting people to engage in crime, it dawned on them that they could just sneak in through the back door of the physician’s office and slip in another seemingly  innocuous form, a blob of  mumbo-jumbo and was essentially guaranteed no one would ever read, and get it signed.

About midway down the form, it makes clear that it authorizes the physician to release otherwise confidential medical information to law enforcement if the physician believes that a crime has occurred. But who is going to read that far?  And even if they did, most patients would anticipate that the inclusion of the form along with the others was required before they would get to see the doc. 

For the most part, it never occurs to patients that they do not have to answer or sign a form just because someone told them to.  As much as we talk about freedom, we’re a remarkably compliant society, disinclined to refuse much of anything that appears even remotely official or required.

Armed with this notion, the Sarasota Sheriff decided that physicians should be part of his team. On the bright side, the doc’s weren’t inclined to sell out their patients quite that easily.

The medical information waivers — which did not carry any indication that they were written by a law enforcement agency — were handed out last year to about 30 local pain doctors, who were asked to have patients sign them. But the measure never gained traction with doctors, and, so far, none has submitted a form signed by a patient.

Moreover, the move has drawn sharp criticism from some in the Sarasota County medical community and from defense lawyers who call it a sly way to violate a patient’s constitutional privacy rights and protections under the federal Health Insurance Portability and Accountability Act, the so-called HIPPA [sic] law.

Normally, police would have to apply for a search warrant or obtain a subpoena for the records, said Assistant Public Defender Mark Adams.

“We want to make good cases. We don’t want anyone’s rights violated,” Duggan said. “We drafted the form to give the doctors a mechanism to contact us. It was really designed more as a safeguard to protect people’s rights than anything else.”

Kaspar and Duggan have no explanation for why doctors are not turning in any waivers.

Paul Sloan, who is not a doctor and has owned two pain clinics in Sarasota County since 2007, wrote much of the county’s [absurdly stringent] pain clinic ordinance. Sloan is blunt about what he will do to a patient suspected of breaking the law.

“All my patients sign a contract — and they have since day one — the most comprehensive contract ever seen,” Sloan said. “It does state they are waiving their rights if we are approached by an investigator, that we’ll turn over information to the sheriff’s office.”

The  video spread like wildfire throughout the blawgosphere because it was appalling.  It was horrible on its surface, and horrible in its reflection of what it showed about Lt. Jonathan Josey, the officer who punched the woman, as well as the general attitude of Philadelphia police officers toward this act of needless violence.  As  Radley Balko opined, 

 I’ll just make the obvious point others have already made: Even assuming the woman had been the one who threw water/silly string on the cop, the reaction should at least get him fired. And probably prosecuted. That it doesn’t appear to have been her makes it worse, but is kinda’ beside the point.

The point to protesting is to protest. To the extent there’s any efficacy to protesting, it depends on timing, and if the protest was directed to the Republican National Convention in New York City, the time would be when the convention was happening.  This seems to have gotten lost in the sauce of SDNY District Court Judge Richard Sullivan’s decision, which would otherwise have been a victory for protesters.

From the New York Times :

The judge, Richard J. Sullivan of Federal District Court, said that the city had lacked the required probable cause because the police were unaware of whether each individual protester had broken the law.

“An individual’s participation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual’s own illegal conduct,” the judge wrote in a 32-page opinion. “But, no matter the circumstances,” he added, “an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does not recognize guilt by association.”

The decision in  Dinler v. City of New York consolidates 1983 actions filed after the 2004 convention at Madison Square Garden where police made mass roundups of people protesters, bystanders and journalists, to clear the areas, already far away from MSG so no person attending the convention would ever have to actually be annoyed by a protester, 

The City argued for “group probable cause,” conceding that there was no individualized probable cause for arrest, rejected based upon videos showing that there was no discrete group of people violating the law, but rather a sweep of everyone without regard to what  role, if any, they played, Judge Sullivan concluded that the police efforts to distinguish those individuals for whom probable cause existed from “innocent bystanders” was inadequate, and denied qualified immunity.

But the mass arrests for purported trivial offenses didn’t lead to the protesters being given summons, but full-blown arrests and fingerprinting.  In advance of the protests, the NYPD had decided to initiate a policy of clearing the streets at the first opportunity.

In response to the perceived threats of mass disorder, the City adopted the “No-Summons Policy,” which suspended the City’s ordinary policy of issuing summonses for violations,10 and the “Fingerprinting Policy,” which required fingerprinting of all persons arrested for RNC-related criminal activity (collectively, the “Policies”). Both represented a departure from ordinary practices, under which an officer who had probable cause to believe that an individual had committed a violation would merely issue a summons if the individual presented valid identification and had no outstanding warrants.

This, Judge Sullivan held, was fine.

The judge found that the no-summons policy passed constitutional muster because it was a response “to a threat derived from intelligence sources — namely, that demonstrators aimed to ‘shut down the City of New York and the R.N.C.’ through ‘continuous unlawful behavior,’ ” and that they “would be undeterred by the issuance of summonses.” He added that the policy “was in place only for the brief duration the threat existed.”

The ruling “validates two city policies the plaintiffs have spent almost five years exclusively litigating — to fingerprint arrestees and not to issue summonses,” Mr. Farrell said. “The court upheld these policies under the most exacting judicial scrutiny possible, finding them constitutional and warranted in light of the threats the city faced during the R.N.C.

The City argued that its policy didn’t freeze First Amendment rights because it was only targets at unlawful conduct. Judge Sullivan rejected this, noting that it was the combination of unlawful conduct plus RNC directed protest that gave rise to the special policy, and held that the policy, to pass constitutional muster, was subject to strict scrutiny.

And, he held, it did.  Because 9/11 changed everything.

Perhaps it is a feature of the post-9/11 age that people forget the dire consequences that can flow even from unlawful demonstrations, but it takes watching only a few moments of the video of the East 16th Street protest to see that no ambulance or fire truck could have gotten through that crowd of dancers, marchers, and instrument-wielding musicians. Writ large, the chaos on East 16th Street could have paralyzed the City and denied its residents access to the emergency services on which lives depend. The protestors simply had no right to hold ambulances, cabs, and commuters hostage by staging an impromptu parade in the middle of Manhattan.

Accordingly, the Court finds that the No-Summons Policy was narrowly tailored to address the unique challenges associated with hosting a four-day national political convention.

After all, how else could the police have assured that terrorism wouldn’t take over the city?  There was no alternative, according to Judge Sullivan, but to take them protesters and bystanders alike, en masse, off the streets. In his estimation, what stronger need to undermine constitutional rights could be needed than to prevent generalized threats of potential terrorism. As for fingerprinting, Judge Sullivan just didn’t see it as a big deal under the circumstances.

While no doubt the people arrested for “group probable cause” are happier than they would be otherwise, the decision effectively rewards the police for making the protests disappear, which of course was ultimately the point of the police action.  There is no large protest that doesn’t include someone jaywalking, or not complying with police orders to walk two by two. Mass action never seems to be as orderly as the police would like.

So the protesters, after having been removed from the streets, thrown into holding cells, fingerprinted and brought to arraignment can beat the disorderly conduct rap?  Well, that’s nice, but in the meantime, they could have accomplished the same thing by never protesting in the first place, and sitting at home in front of the telly shouting epithets at RNC delegates, since physically showing up for the protest isn’t going to do them any good after this decision.

The problem isn’t the conviction, though it’s better not to be convicted when there is no individualized basis to suggest anyone committed a crime, but that this decision authorizes the clearing of the streets first and a dismissal later.  If only huge numbers of feral protesters could conduct themselves in a way that pleased the police and didn’t embarrass the city. But since pleasing the police isn’t a core value of protesting, this decision would effectively allow the police to shut down protests at will, even if they can’t convict the protesters. 

Four years after the RNC protests, the rights of the protesters are vindicated. And the right to protest is dead.