In the Coming Dystopia, the Last Post on Everyone's Blog Will Be "Uh Oh, They're Here"

last-post

The last post on Elisha Storm's blog before her house was raided and she was dragged to jail for blogging about a local drug enforcement task force.

I personally am all for more citizen imposed accountability on police forces and an tired of the police's resistance to such efforts.  I suppose one could argue that the police need some protection for legitimate undercover efforts, though Virginia apparently does not have a law on its books to this effect, so lacking such legislation it's hard to see how Ms. Storm can be prosecuted (its also unclear if the officers involved were even strictly under cover -- paging Valerie Plame).  My sense is that the courts have been very, very, very leery about applying "harassment" laws to monitoring and criticism of public employees.

Update: We had a kind of similar case here in Phoenix with the New Times and Sheriff Arpaio.

Update#2: Radley Balko has more thoughts.  He says

Assume instead that these officers were investigating organized crime, or a terror cell. What do you think of this woman's arrest? Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it's a tougher call when the officers in question work undercover. Naming them, posting their photos, posting their addresses, are all pretty clearly efforts to intimidate them, and it isn't difficult to see how doing so not only makes it more difficult for them to do their jobs, but may well endanger their lives.

I might agree with this. But then it (publishing names of undercover officers) should be specifically illegal in Virginia. There are very, very, very few and very narrow exceptions to the First Amendment acknowledged by law and the courts. A reasonable person should expect that if an exception has not been made for the specific activity in which they are engaging, that their behavior is legal.  And besides, one should never have to go to court and wait for a jury verdict for everyone to figure out if an activity is legal or not.

Update #3: I have heard it argued that she was really just tweaking these guys without serving any real positive purpose.  Maybe.  Could be she just had a grudge.  But many of her activities are virtually indistinguishable from those of someone who was really trying to impose some accountability.  I have never heard of the effectiveness of public speech being a criteria for the legality of such speech.

  • DrTorch

    In some ways I'm surprised a libertarian would advocate for more laws. It's the fact that someone pushes the envelope on every little issue that we have reams of complicated laws and regulations at every level...laws designed to delineate and differentiate every specific circumstance.

    It simply can't be done.

    And it has long been my understanding that we have a judicial branch for this very reason. We're supposed to have honorable judges who balance the freedoms and rights of citizens w/ those of other citizens and the society.

    Obviously it doesn't always work well for a host of reasons...but advocating for more laws doesn't give me any warm fuzzy feelings either.

  • Agammamon

    Another law protecting undercover work will become just another tool to be used to protect bad cops.
    The onus should be on the police to maintain the secrecy and not on honest citizens to ignore when the cops screw that up. You can't park your unmarked at home and not expect people to talk about it.

    As far as protecting terrorism investigations, how many of the high profile cases have we seen where the U/C *wasn't* the main instigator and enabler of the consiracy? How often do they bring down a bigshot in the drug trade instead of the guy buying pot on the corner? How many pimps end up in jail vice prostitutes and johns? How often do cops go undercover to investigate murder, robbery, or assault?

    'Course, that said, its still a dickish move to post someone's address. People on the internet can be vicious arses. There'll be fallout for these cops long after the impetus for this incident is forgotten.

  • spiro

    I've had the opportunity to work with a large chunk of the local police force as clients of my business and, while >3/4 of them are stellar, morally and mentally sound individuals, there are some that are seriously messed up - especially in the relationship/romantic dept. After all, cops are people too, and what would stop a disturbed cop from using this precedent to harass an ex-girlfriend who may have said some unpleasant things about him on the internet?

  • nom de guerre

    just another brick in the wall, baby. can't take their picture; can't videotape them making an arrest; can't print or even say their names; can't record an interrogation for yourself; pull a knife out within 10 ft. of them or "make a furtive move towards your waistband" and they'll start shooting to kill at you....we already *know* that heaping entirely legal verbal abuse on them will get you tasered and arrested on a BS charge of contempt of cop.....and even THINKING ABOUT defending yourself from black-clad ninjas (whom the neighbors all testified did NOT yell "police!") as they break down your front door instead of the drug-dealing neighbor across the street the warrant they misread specified they could break down will just get you riddled with bullets. ("the TV clicker looked like a glock, so i fired 17 rounds into the chest of the 63-year-old grandmother because i was in fear of my heavily-body-armored life, your honor.")("case dismissed.") just another brick in the wall.

    aside from the bitchin' purple capes in the days of yore, how exactly do modern cops differ from the praetorian guard? i saw a recent comment somewhere - can't recall where - in which the commenter noted he'd taught his kids to "fear the police", and to remove themselves from an area whenever a cop showed up, as said cop being there "could only lead to trouble". did anyone else notice the similarity of "uh-oh. they're here" with the last entry in the 'journal of the dwarves' in lord of the rings, which was written as the savage, uniformed, paramilitary orcs attacked? "they are coming...."

    somehow, i just don't think this was the country sam and john adams and all the others in 'founding fathers valhalla' had in mind for us. maybe if we just had a whole bunch of CCTV cameras everywhere - maybe we'd be safe THEN!

  • Fred Z

    One of the things that has long puzzled me is the freedom we give police to apparently break the law.
    -speeding.
    -fraud: lying to a suspect to get him to confess is A-OK. "Your buddy is just about to roll over. Better confess first to get the best deal" even where buddy was not rolling.
    -fraud: undercover police. Yes, it's fraud. You go ahead and assume a false name and background and engage in any activity whatever and see how long you get away with it. "No officer, I'm not a con-man, I'm just undercover."
    -crimes of violence: suspect shot while fleeing. Not self defense, just plain violence to facilitate an arrest, perhaps on a trivial matter.
    -kidnapping (and similar): I'm not talking about arrest, I'm talking about coppers using force to 'evacuate' a building or area, or excluding the public from what they declare to be a crime or accident scene.

    Is there real legal justification for all of this? Is it statutory? National or local? Common law? Is there any summary written down anywhere?

    There is clear moral justification for some of it but it's high time we looked at things clearly and made sure we have some wide agreement on how far the morals go, then wrote laws to include just exactly what we want.

    I'm tired of cops abusing their powers because nobody knows when to tell them they are over the line. I'm tired of citizens making life for coppers more difficult than need be because Joe Citizen doesn't know where the line is either.

  • Nick S.

    I just read something like 20 of her blog entries, starting from the beginning. I think the lady is a little off in the head. It's a free country and she can do what she likes, but her actions really don't make any sense to me, other than "nyah nyah- look what I can do!"

  • morganovich

    fred-

    i question many of you examples. several are not even illegal. police are private citizens too and get all the rights thereof.

    i grant you that many speed. but most of us do. and some leeway is usually granted, at least in califonia... but you do have a point. there is no one to tell them to stop.

    but your "fraud" examples are not illegal. pressure tactics are a part of business. go shop for a car and you'll run into worse. "well, there was another guy looking at it, not sure it'll still be here when you come back" or that old investment banker standby "the deal in 90% subscribed, but i think i can get you some stock if you give me an indication right now" pressure tactics are not illegal. if a cop says "confess or i'll break your face", that's different. now we are into coercion. that's illegal from anyone.

    the same is true of pretending to be who you are not. it's not fraud to lie to a girl at a bar and tell her you're a doctor or to tell her you own a ferrari or even to tell her you like to steal cars.

    shooting a fleeing suspect is pretty much illegal, no? if it's not, you're right, it ought to be unless they were just shooting at you and or threatening others and look likely to do harm. if a maniac bent on slaughter with a machete is running toward a kindergarten, i can see shooting him ,but it better be a VERY clear situation. this is the tricky part where judgment will always have to come in.

    keeping people out of a crash scene where they would be in the way or away from a murder where they might taint or destroy evidence seems reasonable to me. why is that kidnapping? you're not being held, merely denied access to an area for a period.

    i'll not argue that police don't abuse their powers and use trickery to enhance them. "you mind if i look in the trunk?" is a great example of that, but, while perhaps underhanded, taking advantage of informational asymmetry is a part of life. but if they try to bully you and use authority to make you say yes after you say no, that's where i start to have an issue.

    fear of arrest and sanction is powerful and using it coercively can certainly get out of hand (and ought to have clearer guideline). however, i'm not really sure where you're going with many of your examples.

  • nom de guerre

    well, yes and no, morganovich. most of what i'm about to write applies only (so far) to federal law enforers and bureaucrats, but camel's nose and all that. cops are free to lie to us. lie lie lie, all day long, and it's a-ok, because they're merely using unpleasant but legal "pressure tactics". it's not *fraud* - it's just good old-fashioned police work.

    an american citizen lying to a federal agent - ANY federal agent - has committed a crime punishable by prison time. and THEY'RE the ones who get to decide if what you said is a lie or not. even if you told, in complete good faith, what you believed to be the truth. i'm not positive about this, as absolute confirmation is hard for me to find, but i *believe* that's what martha stewart did time for. not 'insider trading', which they couldn't prove, but for the "crime" of proclaiming her innocence when she (foolishly) agreed to speak with the feds. "you said you were innocent, we say you're guilty, that makes you a liar, so go directly to jail, martha. do not pass go. do not collect $200." you think state and local cops aren't agitating behind the scenes for that same kind of juice?

    one set of rules for US, another set of rules for the nobility. like when the US marshalls service and the FBI gave themselves medals and promotions after the ruby ridge affair. ("disregarding his own safety by nobly shooting the 13-year-old boy in the back.") if it's not fraud, then it's something worse. a lot worse.

  • morganovich

    title 18:1001 is certainly a bit slippery. i would note, however, that most police are not federal officers. lying to a state or local cop is not generally covered here. it's rare that one comes in contact with a fed (apart from the IRS). this is not to say that 18:1001 is not prone to abuse. there really ought to be a specific and positively asserted difference between an "official" conversation and an unofficial one.

    also: if a cop lies to a fed, the same thing applies. again, they are also citizens and get all the rights thereof. they (theoretically) provide a check on local police. this is why so many police dislike federal agencies.

    frankly, i think it would be of benefit to record all police interactions with the public. this would provide clear evidence and keep the police on their best behavior. it would certainly have provided excellent clarification of the gates situation. such a policy would seriously limit the coercive abuse of authority. a great deal of police power comes from your knowing it will be your word against theirs.

    for that matter, there is no reason why a private citizen cannot record such a conversation. (though i'd be willing to bet that you'd get heavy pressure to stop from a recorded officer)

  • Tim

    nom de guerre:

    One reason that most police shootings seem to involve a horrific number of rounds fired is the basic training. When police counter rules of engagement escalate to use of deadly force; they are trained to continue firing until the suspect is down. So it isn't shoot once, then check to see if the target is incapacitated; it is continuous fire until the target is incapacitated. When you have several officers shooting at once, you get a lot of lead downrange.

    I find our hosts last two posts to be strangely complementary. In one, you have a member of the paid professional press bemoaning the state of journalism and asking for State intervention; and in the second, you have an amateur journalist essentially harassed out of business by the State. And nobody in the State will make the connections between the two.

  • Fred Z

    morganovich, pressure tactics are legal and proper, but lies are not. The 'little' lies you refer to are often told, but they are still fraud. If you tell a woman you are doctor and based on that get sex, or more, maybe marriage, it's serious criminal fraud. And please, because some sleazy sales type tries little frauds on customers, that is no excuse,for him or for a copper trying the same thing. How can we convince the sleazy salesman he shouldn't do it when we encourage the coppers to do it?

    As for speeding, I'm not talking about the 10% over the limit that everyone seems to get, I'm talking about blasting down a road at 110 mph to catch...a speeder, said speeder driving a horribly dangerous and unsafe 70 mph. Especially when the copper has the speeder's plate number and can catch him later.

    As for excluding people from crash scenes and crime scenes, probably ok, but we must always be wary of excesses. In my jurisdiction municipal workers will put up traffic cones and barriers for road work 5 hours before the work commences and for an area 8 times bigger than they need; then the cops enforce that. Kidnapping is the wrong word for this. How about blocking the public highway or trespass? Kidnapping is the right word when some civil servant decides there's an emergency and he wants to evacuate you.

    I sure liked de guerre's point on the asymmetry: they lie, no biggy. We lie, it's off for federal prison.

  • morganovich

    fred-

    my examples generally fail to meet the definition of fraud. in particular, speculating about the future is almost never fraud. "your friend is about to roll over on you" cannot be fraud. it's speculative about the future. fraud by definition must involve a material existing fact. if the officer said "confess now to get the best deal" and knew that doing so would not get you a better deal, that would be fraud because of no intention to fulfill the bargain.

    telling a girl you are a doctor is not fraud unless you use to to attempt to provide services or earn money etc. it must also cause damages, and these are mostly held to be material. a coyote morning (no offense intended to our host...) generally does not meet the standard for "harm based upon relaince". claiming to be a doctor and accepting fees for medical advice would be another matter.

    evacuation is still not kidnapping. at most, it's an inappropriate taking of private property. this new law in which evacuation can be COMPELLED by force in a natural disaster is an example of a really worrying idea in this arena, but it's not precisely kidnapping any more than throwing someone off your private property is. this is a property issue, not one of habeas corpus.

    speeding with sirens on seems different to me. granting the ability to drive above limits for emergency responders (so long as they are in the process of responding) doesn't seem unreasonable to me. doing 90 on your way for donuts is another matter...

    again, 18:1001 is very slippery. however, it only applies to official interviews with federal agents, though it can certainly be argued that that is still over-broad and that it ought to be restricted to discussions had under oath.

    however, federal agents cannot compel you to give them information. that is the final line of defense here. once can always refuse to talk unless served by a court and even then is free from the requirement of self incrimination.

    that said, concerns about title 18 are certainly legitimate. i would agree that it grants too much power as is. it certainly makes any conversation with a federal officer pretty harrowing.

  • Craig

    http://www.tcpalm.com/news/2009/jul/30/busted-myspace-2-fl-men-face-charges-over-gang-pho/?feedback=1
    you can be arrested for putting gang signs online--but most facebook pages have some college drunk flashing gang signs that they don't even know what they mean, as do most rap album covers. yikes

  • czekmark

    If the New York Times can release classified information with impunity why can't any citizen do something similar on non-classified (assumed) stuff. Prosecuting someone on revealing a cops identity and what they are doing is a step up the road to tyranny. How is this different from some driver broadcasting information about a speed trap? If I remember correctly, there has been some effort by certain police forces to discourage that action too.