Tuesday, September 29, 2009

Lisull arrest about more than free speech.

By now readers have probably heard of Desert Lamp 'blogger Evan Lisull's arrest for ostensibly lawful conduct: writing on the sidewalk with chalk.

The charges have since been dismissed, but that only solves one problem. Police suffer harm for flouting the Constitutional and common-law bounds on their conduct so rarely that there is little incentive for them to respect our rights. Surely, gross misconduct is often--but not always--punished, even with a slap on the wrist. It's this 'blogger's opinion that such a "coarse-grained" or "low frequency" approach is insufficient: police should be made to toe the line. (You could call it a "broken window" approach: there's a slippery slope from Evan Lisull to Cheye Calvo and from there to Cory Maye--and even if there is no slippery slope, what happened to Lisull is bad enough!)

"But they won't be able to do their jobs if they know they'll be second-guessed", say right-wingers, who seem sometimes to get their idea of policing more from The Commish or Walker, Texas Ranger than from reality. (Regarding reality: one of us has trained in close combatives with the police, been drinking with the police, etc.) If that's the case, and they won't be able to simultaneously do their jobs and respect the rights of others, fire them all--if they cannot toe the line they are not qualified for their jobs. Fire them all and hire more intelligent ones. Pay them more and even raise taxes if we must. Given the power afforded to police, the lower standards for use of force, the ability to waste others' time and ruin their day, they must be strictly constrained. And I'll pay a dollar extra to get police who say "yes sir" and "no sir", too.

Why do I write of police misconduct? Seizures, including arrests, must only be made based upon probable cause. And if a statute explicitly exempts a person's conduct in its definition of an offense, then that conduct alone does not constitute probable cause. A letter I just sent to the Daily Wildcat has more:

Hitting a baseball thrown by my neighbor with a bat is not probable cause for my having hit my neighbor with a bat.

Writing in my lab notebook is not probable cause for my having wrote on the artwork in the Center for Creative Photography.

Driving my car on the street is not probable cause for my having driven it on the sidewalk.

Sending an e-mail to my brother is not probable cause for my having wired money to Osama bin Laden.

Writing with chalk on the sidewalk is not probable cause for my having wrote with chalk on a building.

Arizona Revised Statutes 13-1602, which establishes criminal damage as a statutory offense, is very explicit about what that act is: "Drawing or inscribing a message, slogan, sign or symbol that is made on any public or private building, structure or surface, _except the ground_ (emphasis mine), and that is made without permission of the owner."

The arrest of sidewalk chalker Evan Lisull for violating this statute, with its clear exception for writing on the ground, is not merely an infringement of free speech, and the dismissal of the charges should not be treated as a reprieve or amnesty: no reasonable person would believe that Lisull committed a crime. The arresting officers showed contempt for rule of law per se and for the "probable cause" standard governing the power to arrest, established by the Fourth Amendment to the U.S. Constitution. The explicit exemption of Lisull's conduct in the statute makes it highly unlikely that the officers were even acting in good faith. They should be fired at once, and the University should consider itself fortunate if Lisull does not sue for damages.

Update: The Wildcat printed the letter, albeit with a curious wording change that takes the emphasis away from the Fourth Amendment issues. The UAPD, according to Lisull's account, claims he was not under arrest, but there was clearly a seizure, which is enough. And, reading the police report now posted to the Web, there may have been borderline probable cause. If an angry, flaky University employee calls to complain of chalk on walls, and in his own mind decides that the guy chalking the sidewalk must be responsible, is that probable cause? Possibly, but at some point in the seizure, when it becomes clear to a reasonable person that the caller was drawing unsupportable inferences, that should mean that there is no longer probable cause and the seizure must be ended: "you're free to go." Otherwise, for example, every time a senile old lady calls the police after deer eat her geraniums and claims "the colored kid next door, with the basketball and the rap music, he tore 'em up" the police could take the kid in question down to the station.

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