November 28, 2013

QotD: The gun-control debate

Filed under: Law, Liberty, Quotations, USA — Tags: , , , , — Nicholas Russon @ 07:44

I begin rather skeptical of most gun-control proposals. The ones that are pitched in the aftermath of mass shootings are particularly cynical, as they often attempt to regulate circumstances unrelated to the shooting. I still grind my teeth at Mayors Against Illegal Guns running ads in my state citing the Virginia Tech shooting, and talking about the need to shut the “gun show loophole” — even though the shooter didn’t obtain his weapons at a gun show. These sorts of arguments strike me as one part craven opportunism, one part feel-good placebo. (I wanted to say “panacea,” but panacea actually means a genuine cure-all.)

If someone wants to propose a new restriction on gun ownership after a tragedy, and cites that tragedy as a reason to pass it, it’s necessary to show how that new restriction would have prevented, mitigated, or impacted that tragedy. For example, almost none of the gun laws proposed after Newtown would have changed much of anything in that awful shooting, as that disturbed young man stole his mother’s legally purchased guns.

I suppose there are two potential changes to the law that would have significantly altered events in Newtown. First, a total ban on private ownership of firearms, which our friends in the gun-control movement keep insisting isn’t their goal.

Second, a restriction on gun ownership by people who live under the same roof as a person who’s deemed mentally incompetent or a threat to himself or others. Of course, then you get into the questions of what constitutes, “mentally incompetent or a threat to himself or others,” what constitutes “under the same roof”, etc.

Then there are the proposals to limit how many rounds each gun can fire before reloading. Almost every spree shooter — we need a better term for this — has had more than one firearm when they’ve launched their attacks. Instituting 10-round limits would mean that future shooters would get off 20 shots before pausing to reload, presuming they only brought two guns. It’s reasonable to conclude future mass killers will just bring three or four guns when they begin their rampage. This strikes me as a quite modest mitigation in the danger of these shooters, too modest to seriously consider.

Jim Geraghty, “Why Post-Shooting Gun-Control Debates Are So Insufferable”, National Review Online, 2013-09-18

November 22, 2013

QotD: Free speech can still have unpleasant consequences

Filed under: Liberty, Media, USA — Tags: , , , — Nicholas Russon @ 00:01

Speech has consequences. It ought to.

In America, we have an elaborate set of laws strictly limiting the government’s ability to inflict those consequences. That is right and fit; the First Amendment prevents the government from punishing us for most speech.

Private consequences are something else. Speech is designed to invoke private and social consequences, whether the speech is “venti mocha no whip, please,” or “I love you,” or “fuck off.”1 The private and social consequences of your speech — whether they come from a barista, or your spouse, or people online, or people at whom you shout on the street — represent the free speech and freedom of association of others.

Yet people often confuse these categories. It’s one of the fundamental errors of free speech analysis that I like to write about the most. I praise people who get it right — like a university administrator who points out that racist speech is not sanctionable, but will have social consequences — and ridicule people who get it wrong — like people who apply the term “bullying” to any criticism of their speech, or assert a right not to be criticized for being an asshole, or generally proclaim that criticism is tyranny.

Yet the idea persists.


But speech has private social consequences, and it’s ridiculous to expect otherwise. Whether sincere or motivated by poseur edginess, controversial words have social consequences. Those social consequences are inseparable from the free speech and free association rights of the people imposing them. It is flatly irrational to suggest that I should be able to act like a dick without being treated like a dick by my fellow citizens.

Some criticize social consequences as being chilling to free speech. That misappropriates the language of First Amendment scrutiny of government restrictions on speech and seeks to impose it upon private speech. It is true, superficially, that I am chilled from saying bigoted things because people will call me a bigot, or chilled from saying stupid things because people will call me stupid. But how is that definition of chill coherent or principled? How do you apply it? If Pax Dickinson suggests that “feminism in tech” is something to be scorned, to we treat that as something that as first-speaker speech that we ought not chill with criticism, or do we treat it as a second-speaker attempt to chill the speech of the “feminists in tech” with criticism? What rational scheme do you use to determine what speech is “legitimate disagreement,” and what speech is abusive and “chilling”?

Ken White “Speech And Consequences”, Popehat, 2013-09-10

November 12, 2013

Contacting the Boston Police public affairs office is now considered “intimidation”

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas Russon @ 09:34

At Popehat, Ken White discusses the fascinating case of the public affairs office of the Boston Police department as a “victim” of “intimidation” from callers:

The story begins typically for Photography Is Not A Crime with a story about a Boston Police Department sergeant thuggishly assaulting a photographer recording a traffic stop. A PINAC fan and journalism student named Taylor Hardy called the Boston PD’s Bureau of Public Information on its public line to ask about the story. Hardy spoke with Angelene Richardson, a spokesperson for the Boston Police Department who provides information to the media and public. When Hardy published a recording of that call, the Boston Police Department arranged for him to be charged with wiretapping. Hardy claims that he informed Richardson that he was recording the call (though he did not successfully record that part of the conversation), apparently Richardson claims that he did not.

Even assuming that Hardy didn’t disclose that he was recording (and it would be foolish to take the BPD’s word on that), it’s very dubious policy for the government to charge a citizen with a crime for recording a call with a police department’s public information officer on the phone line the department identifies as its public information line. Any such communication can’t possibly be regarded as private. There may be constitutional problems with a wiretapping statute that allows prosecution of a citizen under those circumstances. But the BPP wasn’t done doubling down yet.

When Carlos Miller wrote about the wiretapping charges against Hardy, he encouraged readers to contact Richardson at her BDP telephone number and email address, which the BPD published online:

    Maybe we can call or email Richardson to persuade her to drop the charges against Hardy considering she should assume all her conversations with reporters are on the record unless otherwise stated.

In other words, Miller encouraged his readers to petition the government for a redress of grievances, as protected by the First Amendment.

The BPD has charged Miller with witness intimidation. The BPD also threatened any of Miller’s readers who contact the BPD:

    Detective Nick Moore also assured me he would do the same to any PINAC readers if they continue to contact departmental spokeswoman Angelene Richardson as they have been doing since yesterday.

    “I can go and get warrants for every person who called her,” he said during a telephone conversation earlier this evening. “It’s an annoyance. It’s an act of intimidation.”

Indeed — an act of intimidation is involved. But it’s an act of intimidation by the BPD, which is sending a clear message about how it will handle citizen dissent.

What a accomplishment: the Boston Police Department has discovered a way to make it a crime for citizens to contact the person it designates to talk to citizens.

November 2, 2013

FATCA may have significant (negative) influence on Canadian law

Filed under: Business, Cancon, Law, USA — Tags: , , , , — Nicholas Russon @ 11:00

In Maclean’s, Erica Alini tries to explain just what the US Foreign Account Tax Compliance Act (FATCA) is, and why Canadians should be very concerned about it:

To say that FATCA is controversial is an understatement. The law is so complex and onerous to implement that some foreign banks have reportedly kicked out their U.S. clients in order to avoid dealing with it. Americans living abroad are queuing to give up their U.S. passports over it. The other problem with FATCA is that it asks foreign banks to do things that are often illegal in their home countries, such as passing on certain private information.

It has caused a stir in Canada as well, but the press here generally portrays it as something that affects only dual citizens and green-card holders. Given the number of Americans who live in Canada, that would be enough to make it a big issue (and a big headache for Ottawa). But the truth is FATCA has the potential to touch a much larger number of unsuspecting Canadians.


In general, what you get for signing an agreement to enforce FATCA is a pledge that the U.S. will do its best to share some of its information on your country’s potential tax cheats. You read that right: Not a duty to reciprocate your efforts, but a lame “we’ll try hard” promise. That’s because the U.S. government does not, at the moment, have permission to force U.S. banks to share information with foreign governments. Only Congress can change that.

That sounds bad enough, but it gets worse for Canada. We are the exception — the only country with which the U.S. has an automatic information-sharing agreement. Now, the trouble with FATCA is that it demands some new information: Not about the Canadian assets and incomes of people who live in the U.S. but about the assets and incomes of people who live in Canada but might have some ties to the U.S. While Canadian taxation, thankfully, is based on residency — you owe the CRA if you’ve been living in Canada — the U.S. has started demanding that its citizens file taxes regardless of where they live.

One of the unforeseen effects of this legislation is that it’s been making it much harder for US citizens to do business in other countries or to work in other countries for extended periods of time. If foreign banks refuse to allow US citizens to open accounts, you’re imposing significant costs and extra inconvenience on people who are in no way attempting to hide assets or income from the IRS. As with so many government initiatives, it probably won’t inconvenience actual criminals all that much, but will primarily impact ordinary — innocent — US citizens.

October 28, 2013

Reason.tv – What We Saw At The Anti-NSA “Stop Watching Us” Rally

Filed under: Government, Liberty, USA — Tags: , , , , , — Nicholas Russon @ 09:59

On October 26, 2013, protesters from across the political spectrum gathered in Washington, D.C. to take part in the Stop Watching Us rally, a demonstration against the National Security Agency’s domestic and international surveillance programs.

Reason TV spoke with protesters — including 2012 Libertarian Party presidential candidate Gary Johnson and former Congressman Dennis Kucinich — to discuss the rally, why people should worry about the erosion of privacy, and President Barack Obama’s role in the growth of the surveillance state.

Correction: Laura Murphy, Director of the ACLU Washington Legislative Office, was incorrectly identified as Susan N. Herman, ACLU President.

Produced by Joshua Swain, interviews by Todd Krainin.

September 28, 2013

This is what democracy looks like – Indian voters can now vote “None of the above”

Filed under: Government, India — Tags: , , , — Nicholas Russon @ 11:40

Alex Tabarrok links to a Wall Street Journal article (paywalled, unfortunately) about the Indian court decision that will allow Indian voters to cast their ballots against all the candidates on offer:

Excellent news. Bear in mind:

    Nearly a third of the members of the lower house of Parliament are facing criminal charges, according to the Association for Democratic Reforms, a New Delhi-based advocacy group for transparency in governance.

Even if that were not the case, however, one of the problems of democracy is that there is too little feedback and information transmission, due both to rational ignorance and the bundle nature of politics. Allowing for “none of the above” provides, not a panacea, but a little bit more feedback. Many people vote but have to hold their noses to do so. Many others don’t vote but do they not vote because they are satisfied or dissatisfied? None of the above gives the dissatisfied a chance to reveal their views and in so doing it may encourage more and better candidates.

At present, voting none of the above is just informational, i.e. none of the above is never “elected” even if it gets a majority, although the option to vote NOTA may change the outcome of the election. In the future a NOTA majority might signal a new election.

There have been a few elections here in Ontario I’d love to have had the option of voting “None of the above”.

September 19, 2013

QotD: Guns and mental illness

Filed under: Health, Law, Liberty, Quotations, USA — Tags: , , , — Nicholas Russon @ 00:01

There isn’t much of a culture-war component of discussing mental illness, other than a few folks on the Right who blame the Left for deinstitutionalizing the mentally ill in the 1960s. I suspect that there is no real constituency in favor of the Second Amendment rights of the mentally ill — provided, of course, the definition of “mentally ill” is clear, explicit, and taken seriously. (If you think there’s a stigma to admitting you’re seeing a therapist, a psychologist, or getting mental health treatment now, just wait until some of your legal rights can be restricted because of it.)

Thankfully, I’ve never known anyone who has had violent episodes or threatening mental illness. My sense of reading coverage and the literature is that people rarely “snap” and become dangerous killers overnight. As you’ve probably found in your research, there are certain common threads: withdrawal from others and lack of a support network; hostile behavior and temper control, outbursts, etc. It is maddeningly infuriating to hear friends and acquaintances of past shooters describe behavior that seems, in retrospect, to be a warning sign or red flag.

After Columbine, many school administrators tried to institute a new “If you see something, say something” approach to individuals behaving in a threatening manner. Then we saw in Virginia Tech that many, many students reported the gunman for strange and threatening behavior, including stalking. School administrators ultimately couldn’t do enough to stop him — either from fear of lawsuits or from overall bureaucratic inertia.


It’s not clear how effective a program like this would be; one would hope that people would already know to report strange, troubling, or threatening behavior to authorities. In past writings, I’ve emphasized that the only authority that can put someone on the federal firearms restriction list is a judge, and so that these sorts of concerns are best sent directly to the cops, not to a school administrator or company HR department.

However, a country where more Americans are trained to spot signs of serious, untreated and potentially dangerous mental illness strikes me as a better path than yet another effort to restrict the rights of 40 million gun owners because of the actions of a handful.

Jim Geraghty, “Why Post-Shooting Gun-Control Debates Are So Insufferable”, National Review Online, 2013-09-18

September 12, 2013

QotD: The “never let a crisis go to waste” mentality

Filed under: Law, Liberty, Quotations, USA — Tags: , , , — Nicholas Russon @ 14:11

The lesson I remember best from my religious instruction as a youth in the Catholic church came from a nun who was explaining the ten commandments. She asked me to explain the prohibition of taking the Lord’s name in vain; I said it meant I should not curse using God’s name. She corrected me — ultimately the commandment means we should not invoke God’s name for our own power or glory or purposes rather than His own, she said.

9/11 — like every great and terrible thing and event that has ever come before it — is invoked to demand and justify a wide array of ends and prove a confusing jumble of conclusions. Many of those ends and conclusions were sought by their advocates well before 9/11. It has ever been so. People will seek power, seek prominence, seek money, seek their religious and ideological goals by invoking events — by trying, as I suggested in #4 above, to blur the line between the thing and our reaction to the thing. This has been a constant theme on this blog: the government has sought more and more power over us, and more and more limitations on our rights, by invoking 9/11, only to use those new powers to fight old fights unrelated to terrorism and to suppress things they didn’t like before 9/11. The PATRIOT ACT was an incoherent jumble of law enforcement wet dreams and wish lists, components of which had been floating about for decades. But though the government’s efforts to use 9/11 has carried the most weight, the invocations have not come only from the government — they’ve come from everywhere, left and right, seeking to use the tragedy to prove preconceptions about America and its foreign policy.

Ken White, “Ten Things I Want My Children To Learn From 9/11″, Popehat, 2011-09-11

August 22, 2013

Chinese government philosophy in the headlines

Filed under: China, Government, Media — Tags: , , — Nicholas Russon @ 12:57

Jon, my former virtual landlord, sent me this link and said “Does this sort of thing really matter any more? Aren’t all governments doing this?”

Under Tocqueville’s Influence, China Chooses Despotism
Paul A. Rahe

In the last few days, the national press has been full of reports suggesting that China’s new President, Xi Jinping, is orchestrating a revival of Maoism and a crackdown on those in China who would like to introduce within that country the procedures, practices, and institutions that distinguish the West: the rule of law, constitutionalism, freedom of the press, judicial independence, civil associations, and “universal values” – which is to say, a respect for human rights. The Wall Street Journal, which broke the story on Saturday, claims that Xi is receiving strong support from former President Jiang Zemin; and on Monday The New York Times filled in some of the details:

    Communist Party cadres have filled meeting halls around China to hear a somber, secretive warning issued by senior leaders. Power could escape their grip, they have been told, unless the party eradicates seven subversive currents coursing through Chinese society.

    These seven perils were enumerated in a memo, referred to as Document No. 9, that bears the unmistakable imprimatur of Xi Jinping, China’s new top leader. The first was “Western constitutional democracy”; others included promoting “universal values” of human rights, Western-inspired notions of media independence and civic participation, ardently pro-market “neo-liberalism,” and “nihilist” criticisms of the party’s traumatic past.

    Even as Mr. Xi has sought to prepare some reforms to expose China’s economy to stronger market forces, he has undertaken a “mass line” campaign to enforce party authority that goes beyond the party’s periodic calls for discipline. The internal warnings to cadres show that Mr. Xi’s confident public face has been accompanied by fears that the party is vulnerable to an economic slowdown, public anger about corruption and challenges from liberals impatient for political change.


The evidence now suggests the contrary — that Wang Qishan is by no means alone in his convictions, that Xi Jingpin and his lieutenants take quite seriously the possibility that China is in a pre-revolutionary situation, and that they are intent on putting a lid on everything. Where Tocqueville might have suggested that the way forward was for the country’s leaders to embrace the “seven subversive currents,” to carry out a revolution from above, and to gradually introduce into the country the rule of law, constitutionalism, freedom of the press, judicial independence, civil associations, and a respect for human rights, they have decided in this year — the 120th anniversary of Chairman Mao’s birth — to return to the path he charted more than 60 years ago.

August 20, 2013

Another reason to stick with printed books – “undownloading”

Filed under: Business, Law, Media, Technology — Tags: , , , — Nicholas Russon @ 10:22

At Techdirt, Glyn Moody has another word you need to know about those convenient ebooks you’ve been adding to your reader:

So, it seems that ebook users need to add a new word to their vocabulary: “undownloading” — what happens when you leave the authorized zone in which you may read the ebooks you paid for, and cross into the digital badlands where they are taken away like illicit items at customs. If you are lucky, you will get them back when you return to your home patch — by un-undownloading them.

What makes this tale particularly noteworthy is the way it brings together a host of really bad ideas that the publishing and distribution industries insist on deploying. There’s DRM that means you can’t make backups; there’s the country-specific usage that tries to impose physical geography on your digital ebooks; and there’s the update that spies on you and your system before deciding unilaterally to take away functionality by “undownloading” your ebooks. And copyright maximalists wonder why people turn to unauthorized downloads….

I have dozens of books stashed away on my iPhone … but they’re all public domain works. I doubt I’ll be adding any DRM-afflicted items to my library any time soon.

August 10, 2013

CBC notices social conservative group is critical of the government

Filed under: Africa, Cancon, Government — Tags: , , , , , , — Nicholas Russon @ 09:05

This is probably the most attention the CBC has paid to REAL Women of Canada since … well, ever:

REAL Women of Canada, a privately funded socially conservative group, says Foreign Affairs Minister John Baird is imposing his own views on Uganda, Kenya and Russia when he criticizes those countries for passing legislation targeting homosexuals.

The group, which describes itself as a “pro-family conservative women’s movement,” issued a press release Wednesday decrying what it called Baird’s “abuse of office” and his awarding of a $200,000 grant to “special interest groups” in Uganda and Kenya “to further his own perspective on homosexuality.”

REAL Women also lambasted Baird for admitting he worked extensively behind the scenes to persuade Russia not to pass laws restricting foreign adoption of Russian children by gay couples and cracking down on gay rights activism to control the spread of “homosexual propaganda.”

Finally, the press release states, “Mr. Baird’s actions are destructive to the conservative base in Canada and causing collateral damage to his party.”

It’s not often that the CBC can find this kind of anti-Harper criticism coming from a group they would identify as being “core” Harper supporters, so it’s not surprising they give it the full treatment it really doesn’t deserve.

H/T to Brendan McKenna for the link.

August 6, 2013

Get used to seeing the term “parallel construction”

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas Russon @ 00:01

From Zero Hedge:

Undated documents discovered by Reuters show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial.

“I have never heard of anything like this at all,” is one law professor’s response to the fact that a secretive DEA unit is funneling wiretap, informant, and telephone database information to authorities across the nation in order to launch investigations of Americans (targeting common criminals, primarily drug dealers), “It is one thing to create special rules for national security, ordinary crime is entirely different. It sounds like they are phonying up investigations.”

Agents are instructed to use “normal investigative techniques to recreate the information provided by [the secret DEA source],” and as the documents reveal — “remember that the utilization of [data] cannot be revealed or discussed in any investigative function.”

Stunningly, after an arrest was made, agents then created a “parallel construction” to suggest the information secretly gathered was stumbled up during the course of the investigation — “It’s just like laundering money — you work it backwards to make it clean.” One recently retired federal gent noted, “It was an amazing tool; our big fear was that it wouldn’t stay secret.”

August 4, 2013

New tools for the surveillance state

Filed under: Government, Liberty, USA — Tags: , , , , — Nicholas Russon @ 11:01

James Miller on token attempts to roll back the security state by local governments and other groups:

New surveillance technology lowers the barrier of effort needed to soak the productive class of the surplus fruits of its labor. From monitoring backyards to ensure taxes are being paid on swimming pools to spying on farmers who violate agricultural regulations, states across the globe are already using new spy tools to extort more loot from the greater public.

All the while, the political class gives an assurance that the technological innovation will not be abused. Newspaper editors parrot the message and paint any critic as a tinfoil hat loon who thinks Big Brother sleeps under their bed. And then there are the television intellectuals who take great joy in making flippant remarks about conspiracy theorists. Each of these personalities pictures him or herself as sitting a few ladder rungs above the horde of bumbling mass-men.

One has to be either lying or painfully ignorant to believe government will not abuse surveillance drones. State officials have rarely failed to use their capacity to terrify the populace. Just recently, journalist Glenn Greenwald and the Guardian revealed that the National Security Agency sweeps up the internet activity of all U.S. residents absent any warrants. Prior to the leak, those politicians in charge of overseeing the government’s oversight activities claimed the snooping was done in the public good and not as widespread as suspected. The new details of the program contradict the assurance, as the NSA’s spy activity is more intrusive – and prone to abuse – than originally thought.

A sterling record of misconduct is still not enough to convince enlightened thinkers and academics of the state’s propensity to terrorize. There are still a handful of civil liberty organizations calling attention to the dangers of the widespread use of surveillance drones and data gathering. But their beef is focused more on the right to privacy rather than a usurpation of basic property rights.

July 23, 2013

The rights of the mentally handicapped

Filed under: Law, Liberty, USA — Tags: , , — Nicholas Russon @ 08:35

In the Washington Post, Theresa Vargas covers the struggles of Margaret Jean “Jenny” Hatch, who is fighting a court case to be allowed to take greater control of her own fate.

It wasn’t her turn to talk, but early on during a hearing that will determine the limits of her independence, Margaret Jean Hatch stood up in a Newport News courtroom and cut the judge off in mid-sentence.

“I don’t need guardianship,” she declared. “I don’t want it.”

“Remove her from the courtroom,” the judge demanded.

“Judge, she’s very upset with this,” the woman’s attorney began.

“Don’t do it,” Hatch pleaded.

Hatch, a diminutive blonde known as “Jenny,” learned to read at the age of 6, has volunteered on political campaigns (always for Republicans) and once, after finding a job she wanted, showed up repeatedly until she got it. She also has Down syndrome, an IQ of 52 and tends to shower affection on strangers as well as friends.

The details of Jenny Hatch’s life have come under scrutiny in a complicated guardianship case that is pitting her wishes against those of her parents and testing the rights of adults with disabilities to choose how they live. The 29-year-old wants to move in with friends and continue the life she had, working at a thrift shop and riding her bike everywhere. Her parents want her to remain in a group home, supervised and protected.

H/T to Tyler Cowen, who writes:

On the basis of what I can glean from this article, I vote for Jenny [...]

This is a much-neglected issue, and not just for Down Syndrome individuals. At a time when Edward Snowden, drones, and Gitmo are leading many people to reexamine many civil liberties issues, this one ought to be put on the table as well. It needs its Radley Balko. Ask yourself a simple question: if you don’t require guardianship, and yet have been placed under the legal guardianship of another, practically speaking how strong are your rights? What chances of amendment or redress do you really have and in the meantime how can you represent yourself?

Update, 6 August: The Washington Post reports on the outcome of the case.

In a victory for the rights of adults with disabilities, a judge declared Friday that a 29-year-old woman with Down syndrome can live the life she wants, rejecting a guardianship request from her parents that would have allowed them to keep her in a group home against her will.

The ruling thrilled Jenny Hatch and her supporters, who included some of the country’s most prominent disability advocates.

“Oh my God,” Hatch said over and over again, shedding tears. “I’m so happy to go home today. I deserve it. It’s over. My God, it’s over.”


Legally, Hatch’s case came down to two questions: Was she an incapacitated adult in need of a guardian, and, if so, who would best serve in that role — her mother and stepfather, or Morris and Talbert?

But for national experts on the rights of people with disabilities, several of whom testified on Hatch’s behalf, the case was about much more. It was about an individual’s right to choose how to live and the government’s progress in providing the help needed to integrate even those with the most profound needs into the community.

In the end, Newport News Circuit Court Judge David F. Pugh said he believed that Hatch, who has an IQ of about 50, needed a guardian to help her make decisions but that he had also taken into account her preferences. He designated Morris and Talbert her temporary guardians for the next year, with the goal of ultimately helping her achieve more independence.

July 22, 2013

When is an “arrest” not really an arrest?

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas Russon @ 00:01

Answer: when you try to sue them for false arrest:

The Portland police and City Attorney are making an argument in federal court this month that gives another glimpse into the increasing claims of authority of police in our society. Scott Miller was stopped for jaywalking by Officer Dean Halley in 2010 and admitted that he committed the common violation of pedestrians. The officer however proceeded to handcuff him, tell him “you’re under arrest,” throw him into the back of a cruiser and then drove him a block away. He was in custody for about 30 minutes, but Deputy City Attorney William Manlove is arguing that citizens cannot sue because such acts do not constitute an actual arrest. They are something between a chat and custody, but not an arrest for purposes of legal action.

So, according to Portland, this constitutes just being detained and is effectively beyond any challenge of a citizen. In other words, police can routinely handcuff citizens, lock them in court and even tell them that they are under arrest without being subject to accountability for wrongful arrests.

Deputy City Attorney William Manlove insists that when Miller briefly jaywalked one morning while trying to catch a bus, he could be detained and handcuffed but not treated as an arrested person despite the express statement of the officer. It is an argument that would allow officers virtually unchecked authority in handcuffing citizens and holding them. It is the perfect authoritarian loophole and the city Portland wants to help establish it for future cases.

When Officer Friendly roughs you up, searches your car, and detains you for an indeterminate period of time, in no way does that imply that your rights have been infringed, citizen. Move along … nothing to see here.

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