Regarding 2008's Proposition 104, ASA and the Arizona Board of Regents toed the line.,

It made the last "best of the blogs" list, but is worth noting on its own: Going through meeting minutes, Evan Lisull of the Desert Lamp finds the Arizona Students Association and the Arizona Board of Regents doing as much squirming as necessary to intervene against 2008's Proposition 104 making the ballot without running afoul of the law.

Proposition 104, for those who don't remember, was what the crass called the "Ward Connerly Initiative", which would have prohibited racial discrimination by the State in, among other things, hiring or the awarding of contracts.

Evan Lisull in the clear.

Not only were the criminal damage charges against (Desert Lamp 'blogger) Evan Lisull dropped, he no longer faces the possibility of University penalties.

No word yet on whether or not he will pursue a code of conduct violation civil rights lawsuit against the arresting detaining officers.

Skimming the police report, there appear to be a few potential problems:

1. Hearsay can certainly be probable cause, but flights of fancy cannot. The (unnamed) witness states that he saw Lisull marking the ground with chalk and decided for himself without any real reason that Lisull must have been the person marking up buildings. The police must take care to distinguish between facts and opinions reported by witnesses.
   
2. Faced with an obvious multi-party chalking campaign--an explanation for chalk on buildings and other raised surfaces that rules out need for a "lone gunman"--police could only have reasonably believed that Lisull was marking the ground. From "Lisull was spotted chalking the sidewalk, Lisull had chalk in his pocket." it does not follow that "It is likely that Lisull made some of these many large chalk drawings on buildings and statue pediments." Moreover, Lisull's observed conduct is specifically exempted in the statute the violation of which Lisull was charged by Cpl. Leon. Can specifically exempted conduct be probable cause for conduct in violation of a statute?
   

Not airtight in the least--perhaps one of the few lawyer types who read this can correct me where I'm wrong. But it's worth considering. Given the privileges afforded to on-duty police, their unique ability to ruin one's day without penalty or with a mere slap on the wrist, it's very important to maintain a "broken windows" approach to keeping their conduct within its legal bounds.

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.