A Stitch in Haste

lost enforcement = when law enforcement, politicians or bureaucrats, when unsure of what the law is, choose to err on the side of arrest, threatening to arrest, confiscation of property or otherwise improperly infringing on individual liberties, often under the guise of "act now and let the courts figure it out later"

Two sad tales of the First Amendment being conveniently ignored by police officers.

First, courtesy of Law Dork -- can you "buy" (well, I suppose "rent" is more accurate) a public street and turn it into your own personal fiefdom, complete with no Bill of Rights?

[A]n off-duty Columbus police officer, still in uniform, told a man ... wearing a religious sign and passing out religious literature that the sponsors of the Columbus Arts Festival wanted him to leave.

Unfortunately, as it turns out, the permit given the group is a block party permit, which allow groups to block off the streets for "the non-exclusive use of the permitted area." Then, an off-duty officer in uniform told Parks that the sponsors wanted him to leave the festival -- going so far as to threaten arrest.

Then, when [the man] later complained to the city, the City Attorney responded "that the streets at issue were no longer a public area where Parks's First Amendment rights would apply because a private sponsor was using the area pursuant to City ordinance."

The appeals court held, basically, that the City Attorney and district court were wrong...

Maybe next time the Columbus Arts Festival will rent a meeting hall or something. The case is Parks v. Columbus, No. 03-4096 (Sixth Circuit, 2005), the decision PDF is here (nine pages).

Next we must reinvent the First Amendment wheel -- specifically, the automobile wheel:

A Denver police sergeant is under investigation for allegedly threatening to arrest a woman Monday for displaying on her truck a derogatory bumper sticker about President Bush.
...
About 11 a.m., Shasta Bates, 26, was standing in the shopping center store in the 800 block of South Monaco Parkway when a man walked in and started arguing with her about a bumper sticker on the back of her truck that had "F--- Bush" in white letters on a black background.
...
The two argued for a few minutes, and then the man walked out of the store and stood behind Bates' truck. A few minutes later, the man flagged down police Sgt. Michael Karasek, who was patrolling the area.
...
"He said, 'You need to take off those stickers because it's profanity and it's against the law to have profanity on your truck,'" Bates said. "Then he said, 'If you ever show up here again, I'm going to make you take those stickers off and arrest you. Never come back into that area.'"

Now I might -- might -- cut the "block party" officer some slack; block parties are a relatively unusual phenomenon. But the "bumper sticker" case is a no-brainer, or should be to any lawyer or law enforcement official, even a beat cop (and this one was a sergeant).

The law of profanity in public places has been well settled for over 30 years. In the landmark case Cohen v. California, 403 U.S. 15 (1971), the Supreme Court held that mere displays of profanity, including the "f-word," are protected -- even in a courthouse, let alone on a street curb:

For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Police are of course not lawyers; they shouldn't be expected to know at all times all the twists and turns of the evolving jurisprudence of their profession (e.g., the Fourth Amendment, which just evolved, or rather devolved, yesterday). But Cohen is not new news -- it was decided 34 years ago! How can police not know it?

Or is the real problem that the police actually do know the law, but hope that the public doesn't? How many people have the fortitude and the courage to stand up to this kind of police misconduct, to being threatened with arrest -- even if they know the law?

Lawyers have to undergo continuing education; so do most Wall Streeters and probably members of every other skilled profession. Is it too much to ask that the law enforcement be held to the same minimum requirements?

And as I've blogged before: God help anyone who doesn't go to law school these days.

Recent "Lost Enforcement" Posts:
"Lost Enforcement": Gay Couple Told Kissing "Illegal" in Texas
"Lost Enforcement": Dallas Cowboy Gear Banned from Polls
"Lost Enforcement": Preventing Students from Voting
"Lost Enforcement": Arrested for a Bookmark
"Lost Enforcement": Memory-Hole Tactic Acknowledged as Illegal