NYPD Officer Craig Matthews complained about an illegal quota system for stops and arrests. As anyone familiar with NYPD culture could predict, he experienced retaliation from his superiors for doing so. When he sued, the NYPD hit him with an argument that's outrageous but very likely legally correct: it's your job to report misconduct, so the First Amendment doesn't prohibit us from retaliating against you for doing so.
The Association of Lawless Broomstick-Fetishist Brown-Person-Groping Can't-Shoot-Straight Thugs has a point. Because their employer is the government, public employees have limited First Amendment rights to be free of employer retaliation for their speech. But in in Garcetti v. Ceballos the Supreme Court said that right protects speech on matters of public concern unless the speech is part of a job duty:
We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Thus in Garcetti the Court said a Deputy DA had no right to be free of retaliation for pointing out perjury in an arrest warrant application because doing so was his job. I explained how this doctrine works — and how courts have made an exception for professors at public colleges — in this post.
The result is that an entity like the NYPD can argue that its officers are required by their job to report unlawful activity by their superiors and fellow officers, and that therefore their act of reporting such misconduct enjoys no First Amendment protection.
Posts tagged ‘DA’
Ken at Popehat has some good thoughts, prompted by the dropping of the rape case against Dominique Strauss-Kahn.
The critical narrative holds that this case shows that the rich and the powerful are above the law. I’m not so sure. I don’t believe the DA took this route because he was afraid to prosecute a rich and powerful man, or as a favor to rich and powerful forces behind the curtain. But there’s no doubt that money and power get you a vastly better chance of this result. They get it because rich and powerful people can field a team of lawyers and investigators to find problems with the case. Those problems are often there — but usually the defendants don’t have the money to hire teams of people to find them. The rich and the powerful draw media attention, which leads to people coming forward with information that might not otherwise come out. Sometimes this hurts the defense, but just as often it yields critical impeachment evidence about prosecution witnesses. Perversely, this case shows how wealth and power and lead prosecutors to discover flaws in their own case. Most rape cases wouldn’t get anywhere near the police and prosecutorial scrutiny that this one did. But the police and the DA knew they were under the spotlight, and knew that Strauss-Kahn could field a serious team, and devoted vast resources to the case — resources that revealed issues that might never have been discovered in a rape case against the poor and the obscure.
Why decry the quality of justice that the rich and powerful get, when we could decry the level of justice that the poor get? The justice that the rich and powerful get illustrates how the system can meticulously test the adequacy of evidence against an accused. Why not try to raise every defendant closer to that level, rather than suggest that we ought to tear down the adequate justice available to the few? Believe me, the government lovesthat narrative — loves it when people view a vigorous and thorough defense as some sort of scam to be scorned. Resentment of the justice that Strauss-Kahn can afford is the government’s weapon, which it wields to get you to accept steadily less and less justice in every other case.
I am sure there are situations where the rich get a special break, but anyone who wants to argue that they systematically get off easier has to explain Martha Stewart, who went to jail not for insider trading by lying to the police, a charge no street hustler would ever be brought to court on. And how about Barry Bonds, on whom the full force of and resources of the US Government is focused for a crime I can find going on in about any Gold's Gym in the country.
The imbalance of wealth and power are on the prosecution side, and politicians trying to get elected propose laws constantly to increase this imbalance. The rich have the resources to stand up to this onslaught, the poor often do not.
Younger readers will be forgiven for not fully understanding just how credulous the American public became during the late 80's and early 90's as the media, prosecutors, and various advocacy groups worked hard to convince us every school was a sort of Road-Warrior-like playground for child predators. Adult after adult were convicted based on bizarre stories about ritual murder, sexually depraved clowns, and all kinds of other dark erotic nightmares. In most cases there was little or no physical evidence -- only stories from children, usually coerced after numerous denials by "specialists." These specialists claimed to be able to bring back repressed memories, but critics soon suspected they were implanting fantasies.
Scores of innocent people went to jail -- many still languish there, including targets of Janet Reno, who rode her fame from these high-profile false prosecutions all the way to the White House, and Martha Coakley, just missed parleying her bizarre prosecutions into a Senate seat (Unbelievably, the Innocence Project, which does so much good work and should be working on some of Reno's victims, actually invited her on to their board).
Radley Balko has yet another example I was not familiar with. The only thing worse than these prosecutions is just how viciously current occupants of the DA office fight to prevent them from being questioned or overturned.
I am particularly sensitive to this subject because I sat on just such a jury in Dallas around 1992. In this case the defendant was the alleged victim's dad. The initial accuser was the baby sitter, and red lights started going off for me when she sat in the witness box saying that she turned the dad into police after seeing another babysitter made a hero on the Oprah show. The babysitter in my case clearly had fantasies of being on Oprah. Fortunately, defense attorneys by 1992 had figured out the prosecution game and presented a lot of evidence against, and had a lot of sharp cross-examination of, the "expert" who had supposedly teased out the alleged victim's suppressed memories.
We voted to acquit in about an hour, and it only took that long because there were two morons who misunderstood pretty much the whole foundation of our criminal justice system -- they kept saying the guy was probably innocent but they just didn't want to take the risk of letting a child molester go. Made me pretty freaking scared to every put my fate in the hands of a jury (ironically the jury in the famous McMartin pre-school case was hung 10-2 in favor of acquittal, with two holdouts).
Anyway, one oddity we did not understand as a jury was that we never heard from the victim. I supposed it was some kind of age thing, that she was too young to testify. As it turns out, we learned afterwards that she did not testify for the prosecution because she spent most of her time telling anyone who would listen that her dad was innocent and the whole thing was made up by the sitter. Obviously the prosecution wasn't going to call her, and her dad would not allow his attorneys to call her as a witness, despite her supportive testimony, because he did not want to subject his daughter to hostile cross-examination. This is the guy the state wanted to prosecute -- he risked jail to spare his daughter stress, when in turn the state was more than happy to put that little girl through whatever it took to grind out a false prosecution.
update: This is a tragic and amazing recantation by a child forced to lie by prosecutors in one of these cases. Very brief excerpt of a long article:
I remember feeling like they didn't pick just anybody--they picked me because I had a good memory of what they wanted, and they could rely on me to do a good job. I don't think they thought I was telling the truth, just that I was telling the same stories consistently, doing what needed to be done to get these teachers judged guilty. I felt special. Important....
I remember going in our van with all my brothers and sisters and driving to airports and houses and being asked if we had been [abused in] these places. I remember telling people [that the McMartin teachers] took us to Harry's Meat Market, and describing what I thought the market was like. I had never been in there before, and I was fairly certain I was going to get in trouble for what I was saying because it probably was not accurate. I imagined someone would say, "They don't have that kind of freezer there." And they did say that. But then someone said, "Well, they could have changed it." It was like anything and everything I said would be believed.
The lawyers had all my stories written down and knew exactly what I had said before. So I knew I would have to say those exact things again and not have anything be different, otherwise they would know I was lying. I put a lot of pressure on myself. At night in bed, I would think hard about things I had said in the past and try to repeat only the things I knew I'd said before.
Andrew Thomas was very competitive in Radley Balko's Worst Prosecutor of the Year voting. But if he had just waited a few days, this news could have easily put Thomas over the top:
The same people responsible for tens of millions in claims being filed against Maricopa County are now drooling after their own pot of gold.
Former Maricopa County Attorney Andrew Thomas and David Hendershott, Sheriff Joe Arpaio's former right-hand man have filed a notice of claim along with Thomas' former lackey, Lisa Aubuchon, for a combined total of $60 million.
Aubuchon had already filed a $10 million claim; she's revised that to $22.5 million. Andrew Thomas, who quit the job voters gave him and failed in his bid to become state Attorney General, has the gall to seek $23.5 million from taxpayers. And Hendershott, the infamous Chief Deputy now under investigation following a co-worker's allegations of corruption and abuse of power, wants $14 million.
For the first time in my life, I voted in a partisan primary for the Coke/Pepsi parties this year specifically to vote against Thomas. I cannot even imagine why they think they deserve this kind of payoff. If anyone should be suing, it is the citizens of Maricopa County who should be suing these three. Lots of articles about him on my site, but this one in the ABA Journal covers a lot of the ground.
Not many people have seen it, but one of my favorite movies is Interstate 60. It has a story thread through the movie, but what it really becomes is a series of essays on freedom and slavery. One the best parts is the town where everyone is a lawyer. The only way anyone makes money is when someone breaks the law, so their laws are crafted such that it is impossible not to break the law.
The town of Jericho, Arkansas sounds very similar. It has 174 residents, no businesses, but a police force of 6 that tries to find ways to support itself. Apparently, everyone in town is constantly in court for traffic citations. When one man got fed up, and yelled at the police in court for their stupid speed traps, the police shot him - right in the courtroom. In a scene right out of Interstate 60, the DA, after investigating the shooting, couldn't remember the name of the police officer who did the shooting and said no charges would be filed against the police, but that misdemeanor charges were being considered against the man shot. Probably for littering, due to his bleeding on the floor.
Via Radley Balko (who else?)
I got a lot of email this weekend telling me why I was short-sighted in supporting the Supreme Court's decision on habeas corpus rights for detainees. First, I will observe that I have great readers, because all of the email was respectful. Second, I will say that I am open to being convinced that I am wrong here, but I have not been so convinced yet.
I got a lot of email about past precedents and settled law on this. What I don't seem to be communicating well is that I understand and agree with past precedent in the context of other conflicts, but that the concept of "combatant" as currently used by the GWB administration is so different than in the past as to defy precedent. The folks sitting in Gitmo are not uniformed Wermacht officers captured in the Falais Gap. They are combatants generally not because they were caught firing on our troops but because the Administration says they are combatants. New situations often require new law, and as I said before, when in doubt, I will always side for protection of individual rights against the government.
I'm not going to get into an anecdotal battle over the nature of individual Gitmo detainees. I can easily start rattling off folks who were detained for extended periods for no good reason, and I am sure one can rattle off names of hard core bad guys who none of us would be happy to have walking the streets. The place where reasonable people disagree is what to do with this mixed bag. Gitmo supporters argue that it is better to lock up a few good guys to make sure the really bad guys are off the street. I would argue in turn that this is exactly NOT how our legal system works. For good reasons, our system has always been tilted such that the greater harm is locking up the innocent rather than releasing the guilty.
It may be a faulty analogy, but I considered the other day what would have happened had the US government taken the same position with active communist part members in the 1950's. Would it really have been that hard to have applied the same logic that has a number of Gitmo detainees locked away for years to "communist sympathizers?"
I think this Administration, time and time again, has exhibited a strong streak of laziness when it comes to following process. It doesn't like bothering to go through channels to get warrants, even when those warrants are usually forthcoming. And it doesn't want to bother facing a judge over why detainees are in captivity, something that every local DA and police officer have to deal with every day.
Update: More, from Cato and George Will, here. There are certain people who I find it to be a sort of intellectual confirmation or confidence builder to find them on the other side of an issue from me. John McCain is quickly falling into to this camp for me, at least vis a vis individual rights questions.
The media has built an image through shows like Dynasty and Dallas of private companies being battlegrounds for petty feuds and revenge plots, all played out with little concern for the actual performance of the business. While I suppose that such things do happen, I have worked in a lot of large companies and have seen a lot of stupid stuff, but I have never seen the pettiness you will find in the average government office:
In his first day as DA, Nifong had fired a longtime rival, Freda Black.
She quickly made clear her intent to run in 2006. Well-known from her
work in a high-profile murder trial, Black soon became the
front-runner. Nifong knew that Black would fire him, as he had fired
her, the first chance she got. His concern, he told his initial
campaign manager, Jackie Brown, was not that he cared about being DA;
he needed another three years in the Durham DA's office for his pension
to fully vest.
Ooh, I am in charge, now I can seek revenge on all the people I don't like. How petty can you get? Its absolutely assumed here that the first thing a newcomer will do is fire all the people who have rubbed them the wrong way over the years, without regard to performance or capability. And we want to make these folks our masters?
The press needed there to have been a rape to keep the story going. It
was much too dull to consider that the lacrosse players deserved the
presumption of innocence.
Of course, there is nothing new under the sun, as I am sure you could find the same problem 100 years ago. But it does give one perspective when the MSM tries to go all high and mighty on us, particularly the always arrogant NY Times, which cheer-led the virtual lynching and went out of its way to prop up the failing DA's case when nearly everyone else was starting to see the holes in it. The Rutgers basketball team got an apology from the media figure that slighted them. Don't expect the same treatment for the Duke boys.
Jason McBride was arrested for selling gasoline at too high of a price during the shortages that followed Katrina, under an Alabama anti-price-gouging law. What was the legal price he violated? Well, the law doesn't actually set a price maximum, it just makes you liable to be arrested if a random government bureaucrat feels like your price is too high. Mr. McBride followed up with more information on his original story to Christopher Westley at the Mises Blog:
I recently heard from Jason McBride, who was the subject of my last Mises.org
article, "The Right to Set Your Own
Price". McBride, a gas station owner from Aliceville, Alabama, was arrested
for violating Alabama's "anti-gouging" law on the day that Hurricane Katrina
slammed into the Gulf Coast.
Jason told me that there was more to the story than what had been reported in
the newspapers. He said that the price he charged for a gallon of gas that day
was actually $3.49 (not the $3.69 that was reported) and that he purchased that
gas that very day for $3.29 a gallon. He said that this information was provided
to the district attorney during his investigation.
But there's more. Jason told me that he sold gas for only three hours at the
$3.49 price until he received a call of complaint from the D.A.'s office. His
response was to shut down his pumps until the the State of Alabama contacted him
with a "correct price." His pumps were shut down for 18 hours until the
state told him he could sell gasoline for $3.09 a gallon. This happened in the
midst of a crisis when consumer demand for gasoline increased dramatically.
Despite his bending over backwards to comply with the law, and despite zero
evidence of malicious intent, the district attorney's office still arrested him.
His picture was on the front page of a state newspaper the next day (while, he
pointed out, a report on a murder was relegated to page 6).
During these same hours that Mr. McBride was shut down by the state, my COO was actually in southern Alabama, desperately driving all over creation looking for anyone who had gas, trying to get any supply he could at any price to prevent him from running out of gas entirely in an unfamiliar state.
Mr. McBride went to jail solely to allow some DA or elected official to get 24 hours of populist media coverage to tell the world that they were "doing something" about high gas prices.
The original purpose of this blog was to pass on my experiences and lessons-learned running a small business. Over time, though, since I have the attention span of an 8-year-old boy mainlining Hershey bars, I have gone many different places with this blog, well beyond day-to-day experience of a small business.
However, today I will return to this original goal, at least for one post, by asking the question "what's on my desk this morning?" I tackle this question for two reasons. First, it is interesting to compare how different the issues I struggle with day-to-day are as compared to my previous life as an executive at several Fortune 50 companies. I am sure I did more, but all I can remember from my daily activities at large companies seems to involve either working on PowerPoint presentations or traveling to give them to somebody. The second reason for visiting the contents of my desk is to reinforce my usual libertarian political points, which I think will be made sufficiently obvious just in the description of my to-do list that I won't need to editorialize further.
So here is what's got to get done today [ed note -- while published on Sunday, this is based on my worklist on Friday morning, May 13.]
- Sales tax returns have to be completed, which I usually do myself. We file monthly returns in six states, but one of those is Florida, where we have to file multiple returns county by county. This month I also must complete a lodging tax return for two counties. If it was the end of the quarter, an additional three state returns and two county returns would be due.
- We are nearly completed with a sales tax audit from Washington state. I have written before how complicated the WA sales tax return is, but the funny part was seeing a trained tax accountant from the state of Washington sit in my office for nearly 6 hours and still not be able to figure out how much tax I owed. She kept encountering crazy exceptions like "such-and-such county requires 2% lodging tax unless the facility has more than 63 rooms or campsites and then it owes 50 cents per room-night except if it is in the Seattle convention district where it owes an additional .25% or if it is on a metro bus line where ... etc." When tax law is too complicated for the paid employees of the tax department to figure out, it is too complicated. Wonder of wonders, though, we may get a refund!
- Also sitting on my desk from Washington is a notice that I did not pay my leasehold excise tax last year. For those who don't know what that is, it is a way that states like WA and CA effectively charge property tax on the US government, evading the federal rules against such (basically, I have to pay the tax for the Feds, and then I take it out of the rent I bid to the Feds). Actually, though, I did pay it. Well in advance of the due date. The state has spent the last 2 weeks trying to decipher their own records, and so I need to call them back today to see if they have figured everything out yet.
- The department of Health in one California county is holding up my building approval because the condensate line from a refrigerator condenser coil runs out and drips fresh water on the ground (about a gallon a day). If you have an air-conditioning system at your home, it is very very likely your air conditioning condenser does the same thing. Unfortunately, the county wants this to run into the sewage system. Why the county wants extra load on the sewer system, I don't know, but fortunately my builder caught this early so the change won't cost us much money.
- Speaking of inspections, the ADA inspector at another California facility ruled yesterday that our sales counter was an inch too high and our ramp a half-degree too steep to the front door, so I spent part of this morning already getting the original contractor out there to tear these improvements out and redo them. Interestingly, we previously had the bathroom that was originally in this modular building ripped out, because it could not be made ADA compliant. This was not a big headache for our employees, because there is a public bathroom building next door. However, the local health inspector is now reluctant to approve the building because... it has no bathroom and hand-wash sink. The only food we sell is packaged (think Twinkies) but some health inspectors still want you to follow the same requirements as if you were a restaurant. I am not sure how we are going to resolve this.
- I just got a call from a customer who was mad that the county Sheriff would not respond to several complaints about drunk and disorderly conduct in the early morning hours at one of our campgrounds. A few of our campgrounds, like this one, are too small to justify a live-on-site staff, and the rowdies seem to get the word out which campgrounds do not have on-site security. I promised the customer a refund, and made a note to myself to talk to our manager about having one of our employees come by a few times in the night on a security sweep.
- I have a meeting at 3:00 to meet with my accountant to finish up our income taxes. Since we have to file a federal, 9 state, and a number of county tax returns, our total company return fills two 3-inch binders. Today we are trying to sort out the depreciation schedule, which in and of itself is hundreds of pages long given that we have so many small assets.
- We are still trying to get a liquor license approved for our store on Lake Havasu. The whole liquor license process is one of those funny holdovers. Coming out of prohibition, most states wrote tough procedures to make sure that the organized crime figures who control liquor during prohibition did not receive licenses. As a result, to get a license, my wife and I and my managers have to be finger-printed and have FBI background checks. The applications tend to be long and tedious and small errors cause the application to be returned for corrections. Worse, though, I have found that many towns use the licensing process as an anti-competitive protection for incumbents. In California, if a County is "over its limit" (set fairly arbitrarily) in terms of licenses, it requires the county board of supervisors to meet and approve the new license. In one California county I was told that this was really for my protection - they are protecting me from getting my business in a situation where I might fail due to too much competition. Anyway, I suspect that the strong powers-that-be in Lake Havasu City may be holding up our license, and I need to try to figure out what is going on,though I am not sure how to go about it.
- While I have been writing this, I got a call from a county DA in Arizona. Most states have bad check programs where, if you have a bounced check and can't collect, you turn it over to the courts and they seek collection. In extreme cases, they will arrest and try the offender. I have never been entirely comfortable with this situation. Sure, bounced checks irritate the heck out of me, but arresting people for a $20 bounced check feels like sending someone to a Victorian debtors prison. This morning, I spent about 30 minutes trying to talk the DA out of prosecuting the heck out of some guy who claims that he paid us and we lost his check. I give his story about a 30% possibility, but whatever is the case I have no desire to prosecute the guy. The DA's blood is up, so it takes me a while to talk him out of it. I am adding to my worklist something I have put off for a while, which is to investigate 3rd party NSF check collection.
- My bank just called and still needs yet more paperwork before they can complete an equipment financial loan. AAARRRRGGGG.
- I just finished my annual rant with Arizona Game and Fish about fishing licenses. We sell fishing licenses at a number of locations. We only sell fishing licenses, we don't sell hunting licenses or duck stamps or all kinds of other special licenses that the state seems to sell. Unfortunately, if you are a Game and Fish registered license seller, you can't get just fishing license inventory from them. You have to take their full range of licenses, which they send you piles of in January. We take all this stuff we don't want to sell and put it in the safe, and hope that we can keep track of it for the next 12 months. If we somehow misplace anything and don't return it the following year, we pay for it (and some of those stamps and licenses cost hundreds of dollars). Many of you will recognize that this practice of the state government would in many situations be illegal for a private company. There are many laws out there that limit a manufacturers ability to force a retailer to carry their full line of inventory, or worse, their ability to send the stores a bunch of inventory they did not order.
- I have been putting off registering our 15+ trucks in Washington, but I am going to have to get to it today or this weekend. Last year Washington passed a law that vehicles had to be registered with an in-state physical address (no PO Box). I am not sure if this is a tax or terrorism thing, but it is obviously awkward for an out of state corporation, so they have finally relented a bit and said that you can still have to have an in-state physical address but they will mail paperwork to an out of state address. I or my assistant will need to spend a couple of hours soon typing in two addresses each on all these vehicles before we can register them.
There are a million other things going on, but that is what is burning me up today. In fact, since I have been spending the last hour writing this post, these tasks will probably also be occupying me this weekend. An alien from another planet in reading this post might question whether I am really working for myself or this "government" entity.