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"

Potential felons?

Two boys were arrested for making pencil-and-crayon stick figure drawings depicting a 10-year-old classmate being stabbed and hung, police said. The children, charged with a felony, were taken from school in handcuffs.

The 9- and 10-year-old boys were arrested Monday and charged with making a written threat to kill or harm another person. They were also suspended from school.

One drawing showed the two boys standing on either side of the other boy and "holding knives pointed through" his body, according to a police report. The figures were identified by written names or initials.

Another drawing showed a stick figure hanging, tears falling from his eyes, with two other stick figures standing below him. Other pieces of scrap paper listed misspelled profanities and the initials of the boy who was allegedly threatened.

The boys' parents said they thought the children should be punished by the school and families, not the legal system.

I think the Supreme Court would agree:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

And that was 36 years ago!

Note that the story does not say that they boys actually gave the crayon drawings to the intended "victim." If not, then no crime occurred, but even if so -- a felony? For 9- and 10-year olds?

No way.

UPDATE: Pictures here. Local news fleshes out the story somewhat (e.g., it was a special education class), including this ominous quote:

Ocala police said they stand behind the decision to arrest the children. "When an adult or even myself look at the picture looked at it at first I was thinking there is really not much to the picture or I would not be that scared by the picture those children drew," Ocala police spokesman Russ Kearn said. "However, we have to put ourselves in his mind and that's the bottom line here. It is his well-being and the way he perceived that picture to be. It actually put him in extreme fear and he was in fear for his life."

Um, no, that is most definite not what the police have to do -- that's what the prosecutor has to do, after the fact. The police only have to investigate and report, and then make an arrest after the prosecutor decides whether to pursue the case.

And even so -- handcuffs?

I smell a 42 USC 1983 lawsuit. I smell lots of them.

UPDATE: The felony charges have been dropped; the boys will undergo anti-violence and anti-bullying indoctrination counseling. No word on counseling for being dragged out of school in handcuffs.

Recent "Lost Enforcement" Posts:
"Lost Enforcement": A Tale of Two Travesties
"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

A litany of litigation.

ITEM: Blockbuster settles “no late fees” suit --

Blockbuster Inc., the top U.S. video rental chain, will pay $630,000 to settle 47 states' claims that its "No Late Fees" policy deceived customers, the company said on Tuesday.

Blockbuster will also refund customers who claim they were misled and charged restocking fees or the full price of rented movies if they were returned a week after the due date, according to a statement from Pennsylvania Attorney General Tom Corbett.

The agreement, which also includes the District of Columbia, would also dramatically alter the way Blockbuster advertises its "No Late Fees" policy in the future.

MY TAKE: Company provides the best service and makes money. Company stops providing the best service and stops making money. Company tries shenanigans and gets a smackdown. Remind me again why we need antitrust laws?

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ITEM: It’s hard to deliver a baby in handcuffs --

A police officer who stopped a doctor for speeding on his way to deliver a baby, and then took him to the maternity ward in handcuffs, has agreed to an unpaid suspension for lack of judgment.

Dr. Anthony Chidiac was driving his motorcycle 10 miles above the 25 mph speed limit last March when he was stopped by 15-year veteran Officer William Lilliston.

According to records released Monday from an internal police investigation, when the doctor explained he was going to a delivery, the officer allegedly asked if he was delivering a pizza and later said, "If you're a doctor, I'm Mickey Mouse or Joe Blow."

Lilliston called the hospital to confirm Chidiac's story, and drove him to the hospital as the baby's head was showing. The officer then asked to see the doctor's driver's license before letting Chidiac change into scrubs.

MY TAKE: Well, at least he didn’t handcuff the baby. (See also this related post.)

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ITEM: It’s okay to beat your wife, just not for too long --

[F]our models say their images have taken a beating since posing as woman-batterers for a city ad campaign.

"Employee of the month. Soccer coach. Wife beater," reads one of the ads featuring the four men, which was supposed to run for all of four weeks back in 2002.

But in a $4 million Manhattan Supreme Court suit, Christopher Dorm, Triple Edwards, Daniel Royer and Javier Velarde say the ads are still up in some places, and are taking a toll on their careers and friendships.
...
All four initially said no, but relented thanks to the booking agency's "assurances and promises" the ads would only run for one month and only in the transit system, the suit says. …They later discovered the city had given out 20,000 posters "to any organizations, people or entities that wished to take them," including station houses, doctor's offices and various charities.

MY TAKE: I remember in the early days of the AIDS crisis, subway posters for HIV drugs, or public health ads to promote safe sex, often had fine print that read “Models do not have HIV.” That’s how intense the stigma was. Now models trip over themselves to appear in Valtrex ads. On the other hand, who thinks Anthony Hopkins really goes around eating people? Still, a contract is a contract, but good luck proving damages.

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ITEM: Hack politician wants to RFID ex-cons with surgical implants --

A Butler County commissioner has suggested that computer microchips be implanted in ex-convicts on probation so they can be tracked and located at any time.

"People have these GPS chips put in their pets and, in some cases, in their children, in the event they are lost or kidnapped," Michael Fox, a Republican, said on Monday. "I don't see why the same can't be done with probationers."

MY TAKE: Despite my support of denying felons the right to vote, I see no reason to demean probationers with a “yellow ticket of leave” like this. We chip our dogs because we love them, we would be chipping ex-cons because we hate them. Slight difference. (See also this related post.)

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ITEM: Guess who’s coming to dinner ... and not leaving?

A Queens live-in health aide has been fired for allegedly neglecting an Alzheimer's patient — but she's refusing to move out of his house.

"It's insane that this stranger — a worker I fired — is just able to take over the house," said Adam Fisher, 45, whose dad, David, 86, had been under the aide's care. "Whenever I asked her to leave, she said, 'This is my home. I'm a resident [sic] here.' "

The aide, Katherine Rowe, is taking advantage of a law that prohibits landlords from summarily evicting people who've lived in a residence for more than 30 days.
...
But Fisher fears that Rowe ... will ignore a letter from his lawyers demanding that she leave, forcing him to take her to court to enforce an eviction. "She knows the system. She has no intention of leaving. She's banking on a payout," a cop told Fisher yesterday after Rowe called police to complain of being approached by a reporter.

MY TAKE: My property professor was the worst teacher I had in law school, but I was still able to learn that only tenants should be protected from unlawful eviction, not trespassers. Guess New York politicians had even worse Property professors (perhaps they went to CUNY law school). Related story here. UPDATE: She got the hint. Money quote from the homeowner: “The system didn’t work but The New York Post did.”

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ITEM: Good thing Michael Schiavo doesn’t live in North Carolina --

A Pender County dispatcher forced to quit her job last year after the sheriff discovered she had a live-in boyfriend is suing to overturn a N.C. law that makes living together a crime.

Sheriff Carson Smith told Debora Lynn Hobbs, 40, that she would have to marry, move or leave her job, said Jennifer Rudinger, executive director of the ACLU of North Carolina.

Living together as an unmarried couple is a misdemeanor punishable by as many as 60 days in jail and a $1,000 fine.

In North Carolina, one of about half a dozen states with such a law, 33 people have been charged with the crime and 25 people have been convicted since 1997, according to the ACLU. There are 118,781 unmarried people of opposite sexes living in the same households in the state, according to the latest Census figures.

MY TAKE: Maybe the grounds for the lawsuit should be that the law unfarily discriminates against heterosexuals.

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ITEM: “My what big buns you have...”

A TV advert for fast food chain KFC has been banned for misleading people about the size of a burger.

The Advertising Standards Authority (ASA) upheld five complaints that the chicken fillet was larger in the TV commercial than in real-life. It found the advertised bun was thicker than those it bought in a London outlet and that there was "more filling and the lettuce was a different type".

KFC said the advert burgers were within the "standard range of dimensions". It suggested the women in the advert may have had small hands - thus making the burger appear bigger - and that the name of the burger indicated it was smaller than other burgers.

MY TAKE: Next they’ll be suing Abercrombie & Fitch for misleading customers (“Oh, definitely, that’ll make you look as sexy as the model, for sure...”)

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"

Outrageous:

Orange County's sheriff used driver's license records to contact a woman who wrote a letter to the editor of a newspaper citicizing his staff's use of Taser stun guns and describing him as fat.

Some say Orange County Sheriff Kevin Beary violated federal privacy law when he had his aides use the records to get the address of Alice Gawronski. He sent her a letter accusing her of slander.

It is illegal to access a driver's license database to obtain personal information, except for clear law-enforcement purposes, under the U.S. Driver's Privacy Protection Act of 1994.

"I recently read your slanderous remarks about the Orange County Sheriff's Office in the Orlando Sentinel," Beary wrote Gawronski on March 23. "It is unfortunate that people ridicule others without arming themselves with the facts before they slander a law enforcement agency or individual."

Gawronski said, "I thought I was exercising my First Amendment right of free speech - expressing an opinion in an open forum about a paid public official." She considered Beary's letter a form of intimidation.

Just two quick comments:

--That would be “libel,” not “slander.”

--I guess we have a new political term: “activist sheriffs.”

Recent "Lost Enforcement" Posts:
"Lost Enforcement": Youngsters Arrested, Handcuffed for Crayon Drawings
"Lost Enforcement": A Tale of Two Travesties
"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 = 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"

A quick pass-along:

Two officers accused of handcuffing a 5-year-old boy after a fight on a school bus have been suspended with pay from police duties while the city investigates the allegations, authorities said.

Chief Tom Streicher assigned officers Douglas Snider and Kaneshia Howell to desk work Tuesday and took away their guns, police officials said. Mekel Finch, the boy's mother, sued the police department, the bus company and the driver in Hamilton County Common Pleas Court on Friday. She is asking for more than $50,000.

The lawsuit claims the driver improperly detained the boy after he was struck by another child on the bus on Jan. 13. The lawsuit also claims that Snider and Howell put the child in handcuffs "for an unreasonable amount of time." The child wasn't charged.
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Fanon Rucker, the lawyer representing Finch and her son Izell, said the other boy in the fight was not handcuffed.

You would think, after enough headlines and outrage, that police departments might get the message and start sending memos or something: Handcuffs are only for restraining a criminal suspect who is a potential flight risk, or a danger to the officers, himself or others. No unarmed five-year old can ever possibly fit that description.

Previous kids-in-cuffs stories here and here.

Not quite "kids in cuffs," but it came close:

A high school student was suspended for 10 days for refusing to end a mobile phone call with his mother, a soldier serving in Iraq, school officials said.

The 10-day suspension was issued because Kevin Francois was "defiant and disorderly" and was imposed in lieu of an arrest, Spencer High School assistant principal Alfred Parham said.
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"Kevin got defiant and disorderly," Parham said. "When a kid becomes out of control like that they can either be arrested or suspended for 10 days. Now being that his mother is in Iraq, we're not trying to cause her any undue hardship; he was suspended for 10 days."

Okay, we weren't there, we don't know precisely what happened. But, without more, you don't arrest someone, especially a minor, for merely disobeying a teacher and refusing to end a cell phone call. The fact that it was his mother in Iraq certainly doesn't help.

UPDATE: Penalty reduced.

A school in Omaha, Nebraska, has suspended a first grader for inadvertently bringing a butter knife to class:

Gray, who is 6, said he brought his book bag to school on Monday, but when he set it down, one of his family's butter knives fell out onto the cafeteria floor. A teacher walked up to question him.

Gray told the teacher he wasn't sure how the knife got there. His family thinks his 4-year-old brother, Ben, put it there.

The school now plans to give the boy a one-day in-school suspension as part of its "no tolerance" weapons policy.

"We're going to file suit to prevent that suspension," said the family's attorney, James Martin Davis.
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Law enforcement was contacted in the case. OPS said the boy could have been expelled.

This is, of course, utter nonsense.

The bedrock principle of all criminal law is that without both a voluntary act (actus reus) and criminal intent (mens rea), there can simply be no punishable offense. Only the most trivial civil infractions, such as parking tickets, are exempt from the mens rea requirement (with one exception -- statutory rape).

Put aside the question of whether young Master Gray committed an actus reus -- he claims he didn't put the knife in the bag, but let's assume he did. There is still no criminal intent -- no mens rea -- because there can never be mens rea in a child so young.


Juvenile Delinquent?

Every state is different, but generally speaking the age of intent is around seven; I believe that is also the age suggested by the Model Penal Code. Below that age, a child is irrebuttably presumed to be incapable of forming criminal intent. And without criminal intent, there can be no offense. And without an offense, there must be no punishment.

A zero-tolerance weapons policy does not exempt schools from the strictures of either due process or common sense. A six-year old child cannot form criminal intent and must therefore not be punished for any offense or policy violation. The parents should prevail in their challenge of the suspension.

(Via Fark.)

A while back I caught some flak for defending the police officers who fired at a man who was using his own daughter as a "human shield" while firing at police. The toddler was unfortunately killed in the crossfire (which means of course that the father murdered her, even if it happened to be a police bullet that caused her death).

My thesis was that armed combat is such an unusual situation that laypersons are simply not equipped to pass judgment on those who encounter it, whether as soldiers or as police.

But this isn't that:

Police in New Orleans have suspended three officers and launched a criminal investigation after a 64-year-old man was filmed being beaten in the street.

Robert Davis was being arrested for drunkenness, but a police spokesman said the amount of force used was "not appropriate".
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The officers, charged with battery, will appear in court at a later date.

Entirely as it should be. You don't have to be a police officer to be entitled to condemn this criminal behavior. How much of a threat can an unarmed 64-year old drunk be to three police officers?

Also disconcerting, but no longer unusual, is the practice of police attempting to intimidate those who record police activity:

Meanwhile, a fifth officer ordered [Associated Press Television News] producer Rich Matthews and the cameraman to stop recording. When Matthews held up his credentials and explained that he was working, the officer grabbed the producer, leaned him backward over a car, jabbed him in the stomach and unleashed a profanity-laced tirade.

Um, no. That which occurs in public is subject to being recorded by the public. The police do not have a right to conduct their business -- whether lawful or not -- free from public scrutiny, only free from public interference.

One wonders what more intimidation the police officer might have attempted had it not been a credentialed member of the press but just an ordinary citizen with a camcorder or camera-phone?

There was a time when rank-and-file police were given at least a rudimentary training in constitutional law as it applied to law enforcement. Hopefully this disgraceful incident will lead to some refresher courses around the country, starting with this basic rule: People have a right to record public activity, including public police activity.

Having solved all other problems, Atlanta police are now turning to the War on Subway Tokens:

Transit police handcuffed and cited a man who sold a $1.75 subway token to another rider who was having trouble with a token vending machine. He vows to fight the citation in court.

Transit authority spokeswoman Jocelyn Baker said Friday that the officer "acted within the law" after he spotted Donald Pirone, 42, selling the token Nov. 30 inside the West End subway station.
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Baker acknowledged that Pirone sold the token at face value and did not make a profit. But the law is the law, she said.

Ah yes, "the law is the law." From gay marriage to suspicionless subway searches all the way down to selling subways tokens — at cost — to distressed fellow passengers. Too bad, so sad, "the law is the law" — just shut up and obey it.

Actually, "the law" says that any attempt to proscribe an activity must be reasonably related to a legitimate government interest. What possible government interest can there be to banning one person selling a subway token, at cost, to another person? To ensure "extra revenue" to the transit system? Isn't that what some people like to call "price gouging"?

And handcuffing someone over a $1.75 misdemeanor just for the heck of it? Does that also fall under the totalitarian safe harbor of "the law is the law"?

If the law supposes that, then the law is a ass.

More thoughts at The Phalanx.

A twelve-year old boy has been arrested, charged with a felony, and suspended from school for two weeks for possessing a white powdery substance — sugar:

The boy, who is not being identified because he is a juvenile, said he brought the bag to school to ask his science teacher if he could run an experiment using sugar.

Two other boys asked if the bag contained cocaine after he showed it to them in the bathroom Wednesday morning, the boy's mother said.

He joked that it was cocaine, before telling them, "just kidding," she said.

[P]olice arrested the boy after a custodian at the school reported the boy's comments.

Nominally, the crime with which the boy is being charged is "possession of a look-alike drug." My guess is that such an offense is designed to nab drug dealers who try to con inexperienced users by peddling fake drugs.

Fair enough, but that is not the same as making mere possession of the most harmless substance on earth (War on Obesity notwithstanding) a felony. That simply cannot be a crime, especially a felony.

If the law supposes that, then the law is a ass. More and worse conduct (i.e., behaving like a drug dealer) ought to be required. Otherwise, we have lost all remaining scraps of sanity in the War on Drugs.

One final thought: Is there any fundamental difference between drug warriors (especially educrat drug warriors) who show a blind, humorless, zero tolerance mania toward anything even remotely hinting of drug use, and the rabid Islamofascists who are rampaging over some stupid drawings? I'm not sure I see any distinction.

Hat tip to Joanne Jacobs.

I guess I need to revive my old "Kids in Cuffs" chain of posts:

Takovia Allen suffers from behavioral problems and attends a special class at Lely Elementary in Naples.

According to an arrest report, on May 2, a teacher was trying to line up students to go to music class. Takovia refused to go and kicked the teacher's aide in the ankle. After a discussion among school officials and two law enforcement officials called to the school, the girl was arrested.

Takovia was taken to juvenile jail and held there for several hours before being released to her mother. She is being charged with battery on a public education employee.

It's possible she will enter a program that includes counseling. If she completes the program successfully the charges could be dropped.

Yesterday I blogged about the age of majority. Apparently we need to revisit the age of infancy as well.

The Model Penal Code suggests that it is impossible for a child under the age of seven to commit a crime (Section 3.1.6). The reasoning is quite simple: Almost all crimes (including "battery on a public education employee") require a wrongful mental state -- a criminal intent or "mens rea." Without criminal intent, there can be no crime. Just as an unconscious person cannot form criminal intent, so too are young children unable to form criminal intent. Children simply do not think the way adults do, and they can therefore not be held to the same standards of conduct that we hold competent adults. How can this possibly be a difficult concept?

We don't even hold children to the same standard of negligence as adults: When a six-year old child causes damage we don't ask "How would a reasonable person behave under the circumstances?" but rather "How would a reasonable six-year old behave under the circumstances?" How can we not afford the same relaxation of the standards in a criminal context? And even most laypersons know the rule that a minor, even a 17-year old, is generally not bound by her contracts. The rules for kids are different. Again, how can this possibly be a difficult concept?

This is not the same as debating the cut-off age between juvenile court and regular criminal court. This is about recognizing the simple truth that very young children cannot think like adults. They do not fully understand right and wrong, they do not recognize the concept of deterrence and cannot foresee the consequences of their impulsive actions. This is zero tolerance throwing a temper tantrum. Due process simply demands that the very young be exempt from the traditional criminal justice system. The proper response by society is counseling and rehabilitation, not kids in cuffs.

There simply must be an age below which there can be no question of arrest or prosecution. Maybe it's seven, maybe it's ten, maybe it's thirteen.

But it sure as heck isn't six.