A Drug Dog's Nose Poking Through The Open Window Of A Car Is Unconstitutional, Says Idaho's Top Court

from the K-9s-are-tire-chalk dept

How much of a violation needs to take place before it's a Constitutional violation? It's a trick question, at least in the hands of the right judge. With the wrong judge, a minimal violation is considered excusable, or at least salvageable by any number of Fourth Amendment exceptions.

But with the right judge, any Fourth Amendment violation is a Fourth Amendment violation, no matter how small or how fleeting it is. That's how we get to this decision [PDF], handed down by the Supreme Court of Idaho, which not only calls on cops to do better with their drug dog handling, but also tips the hat to recent decisions involving parking enforcement measures. (via FourthAmendment.com)

Here are the facts of the case:

In March 2019, police officers stopped Howard for a traffic violation and took him into custody after discovering an outstanding warrant for his arrest. Officers then brought in a drug-sniffing dog (“Pico”) to sniff the exterior of the car. Pico alerted to the presence of illegal drugs, and a subsequent search of the car uncovered methamphetamine, heroin, and drug paraphernalia. Neither Howard nor his passenger was the registered owner of the vehicle, and police contacted the owner who took possession of the vehicle at the scene.

After prosecutors charged Howard with drug trafficking offenses related to the heroin and methamphetamine, Howard moved to suppress all evidence arising from the search of the car. During the hearing on the motion, Howard argued Pico momentarily put his nose through the open window of the car before giving his final, trained response to indicate the presence of illegal drugs, and that this was a trespass constituting an unlawful search in violation of his Fourth Amendment rights under United States v. Jones, 565 U.S. 400 (2012). The only witness testifying at the hearing was Officer Amy Knisley, Pico’s handler. A portion of Knisley’s body camera footage showing the dog sniff was also admitted into evidence.

The district court was fine with Pico's momentary intrusion and denied the motion to suppress. It said that because the sniff was of the dog's own volition, it couldn't possibly have been a rights violation.

The district court denied Howard’s motion to suppress because it found the Court of Appeals opinion in State v. Naranjo, 159 Idaho 258, 359 P.3d 1055 (Ct. App. 2015), was controlling. In Naranjo, the Court of Appeals held that a drug dog’s sniff through the open window of a vehicle had been “instinctual”—as opposed to facilitated or encouraged by the police—and therefore was not a “search” for the purposes of the Fourth Amendment.

The challenge of the search pointed to the Supreme Court's decision in Jones, which found intrusions -- however minimal -- into private property were unconstitutional without a warrant or any applicable warrant exception. In that case, officers placed a tracking device on a parked car. That minimal intrusion (in service of a greater, more extended intrusion) was impermissible.

Idaho's Supreme Court agrees with the defendant. Jones is controlling here. The intrusion may have been minimal but it was still an intrusion.

We agree with Howard that Naranjo is inconsistent with Jones and that Pico’s entry was a search. Jones is clear that for purposes of the Fourth Amendment, a search occurs when the government trespasses in order to obtain information.

Then it points to a more recent Appeals Court decision that dealt with another form of minimal intrusion.

Though not squarely on point, and certainly not binding on this Court, we find that the Sixth Circuit Court of Appeals decision in Taylor v. City of Saginaw is instructive. In Taylor, the city enforced time limits for parking by tire chalking, i.e., placing chalk marks on the tread of car tires—marks that rub off as soon the cars are moved—to determine whether the cars have remained in place longer than allowed. The plaintiff, apparently a frequent recipient of parking tickets, alleged that the practice violated her Fourth Amendment rights. The city responded, in part, by arguing that chalking was not a search for purposes of the Fourth Amendment. The Sixth Circuit disagreed. It held that chalking, though a slight interference with private property, was nevertheless an interference for the purpose of obtaining information and therefore a “search” under Jones.

This was the same conclusion a California federal court reached last spring. A tire mark is a search. And, if that's upheld on appeal, there will be controlling precedent in Idaho (the Ninth Circuit, which also covers California) that aligns with the findings here.

And that finding is that it isn't the means or methods or length/depth of the intrusion. It's the intrusion that matters.

Like the marking of chalk on a car tire’s tread, a dog’s nose passing through an open window is a minimal interference with property. But the right to exclude others from one’s property is a fundamental tenet of property law, and we see no room in the Jones test for a de minimis exception.

That's the baseline. And the court says the government can't save its search by claiming the drug dog was in the process of alerting prior to the intrusion into the vehicle. The officer's testimony stated that the dog had not shown a "final" alert prior to sticking its nose through the window. Only after that did the dog sit, something the officer said was an "alert."

When the statements of Officer Kinsley’s belief are excluded from our consideration of her testimony, these are the facts that remain: (1) Pico is a certified drug dog trained to sit or lie down to indicate the presence of drugs; (2) Pico did not sit or lie down before entering the car; (3) at least sometimes Pico “freezes” or tries to “cheat the system” by looking at the officer for his reward before indicating as he has been trained to do; (4) Pico froze and looked back at the officer before entering the car. From these facts, we cannot know whether Pico’s freezing and looking back was a reliable indication that narcotics were present, and we cannot determine whether Officer Kinsley’s subjective belief was objectively reasonable. For instance, how often does Pico freeze or look back at the officer before giving a final, trained alert? Does Pico only freeze when in odor? Does Pico only try to “cheat the system” when narcotics are present?

That's the problem with four-legged probable cause. It's mostly up to the officer interpreting the dog's acts. And, without the benefit of dashcam or body camera recordings, these subjective takes become part of the official record and are difficult to challenge. This recounting of events raises enough questions about the dog's actions that the court is unwilling to call any of what's described above "probable cause."

This decision says the government can't have the evidence it obtained with the aid of an intrusive canine. And that means it can't have its conviction either. Going forward, cops in Idaho are going to need actual probable cause -- not just inconsistent dogs -- before searching people's cars during traffic stops.

Filed Under: 4th amendment, drug dogs, idaho, search

Supreme Court Asked To Tell Cops That Consenting To A Search Is Not Consenting To Having Your Home Destroyed

from the domicile-made-furtive-movements dept

Five years ago, an Idaho police department destroyed a woman's house to end a standoff with her dog. The Caldwell PD -- after having been given permission (along with a house key) to enter the home to see if a suspect was in the home -- decided this meant the Shaniz West had given them permission to fire grenade after tear gas grenade into the house before sending in the SWAT team to confront the family dog.

Exhibit A:

Shaniz West sued, stating that this 10-hour "standoff" that rendered her house uninhabitable for three months was a violation of her Fourth Amendment rights. The district court agreed, finding the officers being sued could be held accountable for destroying her home, rather than just using the house key she had given them.

Unfortunately, the Ninth Circuit Court of Appeals disagreed and granted the officers qualified immunity. According to the Appeals Court [PDF], this was an appropriate use of police force, given the circumstances. Mainly it was that the circumstances were unique enough, the court could find no way to say this was unreasonable. Without controlling precedent, the officers were allowed to escape the consequences of their ridiculous, house-destroying actions.

Here's the Court's summary, which sounds like it was written by a cop PR shop.

The panel held that assuming the consent was voluntary and defendants exceeded the scope of the consent by shooting tear gas into the house, they were still entitled to qualified immunity. The panel held that given that defendants thought they had permission to enter plaintiff’s house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it was not obvious, in the absence of a controlling precedent, that defendants exceeded the scope of plaintiff’s consent by causing the tear gas canisters to enter the house in an attempt to flush the suspect out into the open. Officers Seevers and Winefield were therefore entitled to qualified immunity on this claim.

"Causing tear gas canisters to enter the house." It's like the canisters were just hanging around outside and the SWAT team's reasonable appearance on the lawn gave the canisters permission to hurtle themselves through the nearest windows and doors.

There was no suspect to flush out. The person they were seeking had vacated the residence before officers stopped Shaniz West and threatened her with arrest if she didn't "consent" to a search of her house. What West actually consented to was far different than what the officers ended up doing, as the dissent pointed out.

The majority adopts an entirely implausible contrary reading of West’s consent, one a “typical reasonable person [would not] have understood by the exchange between the officer and the suspect.” Jimeno, 500 U.S. at 251. Because West “never expressed a limitation as to time, place within the house, or manner of entry,” the majority concludes that her consent that officers could “get inside” permitted a violent initial attack on her house with toxic objects. Maj. Op. at 13. In so concluding, the majority supposes that someone who permits law enforcement officers to “get inside [her] house” while handing over a key consents to the officers not entering the house but instead lobbing dangerous objects, such as tear gas canisters—or stones or bombs, for other examples—into the house from the outside. It further presupposes that, in providing consent to entry, a resident must preemptively forbid actions no one would guess are contemplated by the commonsense understanding of the articulated consent. That is not the law.

What this court finds reasonable for officers (destroying a house) does not align with what any "reasonable" non-cop would willingly permit when consenting to a search of their residence.

In concluding that the officers performed a search consistent with West’s consent, the majority does what no court has before—it holds that a “typical reasonable person” consenting to an entry to look for a suspect could be understood by a competent police officer as consenting to damage to his or her home so extreme that renders it uninhabitable for months.

There is still no finding that destroying a house while performing a consensual search is a violation of rights. The Ninth punted on drawing the line following this case, leaving officers free to "cause canisters to enter" houses in the future when performing searches for suspects.

The Institute for Justice wants some precedent set. It's asking the Supreme Court to rule on this issue. The petition [PDF] seeks a ruling that would prevent officers from dodging lawsuits from citizens rendered homeless by consensual searches.

QUESTION PRESENTED

Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point caselaw.

It's a valid question. It's far more valid than the Ninth's conclusion: that consent to search is consent to destruction. Even given the circumstances of this case -- a potentially armed felon who was supposedly suicidal -- the officers had options they normally didn't have during warrant service: specifically, permission to enter the home and a key that unlocked the front and back doors.

Instead of using the key to enter the house (or at least attempt to -- the front door also had a chain securing it, but it's not like a bunch of tear gas grenades were going to dislodge the chain), the cops decided to call in the SWAT team. They left the premises, met with the SWAT team, came up with a plan and did a couple of dry runs and three hours later, decided to start the "search."

It wasn't until 4.5 hours later the key was even tried. It unlocked the back door, but redundantly because the glass had already been shattered by tear gas canisters, allowing officers to reach inside and unlock the door.

As the petition points out, there's no reason to find precedent that directly aligns with law enforcement's actions here. It should have been plainly apparent to the officers that their actions were unreasonable.

The dissent did not purport to find a “closely similar case[ ] to guide the clearly established law inquiry[.]” App. 27. Instead, it found no such case was necessary because any competent officer would have understood he could not lawfully destroy a house simply because he had consent to enter it.

This should be obvious. If it were a car being searched, a person's consent to a search would not justify officers towing the vehicle to place away from the public and detonating it just because of the slim possibility something inside it might pose a threat to officers.

Hopefully, the Supreme Court will take a look at this case, rather than decide it's up to the lower court to set a bunch of conflicting precedent -- or far more likely, continue kicking the QI can down the road. Giving officers permission to search your house should never mean giving them permission to leave you with no place to live.

Filed Under: 4th amendment, consent, destruction, idaho, search, shaniz west, supreme court, swat, swat teams

This Idaho Town Lets You Switch Between Cheap Fiber ISPs In A Matter Of Seconds

from the build-it-and-they-will-come dept

In 2009, the FCC funded a Harvard study that concluded (pdf) that open access policies (letting multiple ISPs come in and compete over a central, core network) resulted in lower broadband prices and better service. Of course when the Obama FCC released its flimsy, politically timid "National Broadband Plan" back in 2010, this realization (not to mention an honest accounting of the sector's limited competition) was nowhere to be found.

Since then, "open access" has become somewhat of a dirty word in US telecom, and even companies like Google Fiber -- which originally promised to adhere to the concept on its own network before quietly backpedaling -- are eager to pretend the idea doesn't exist. But building core infrastructure (sometimes with government's help, sometimes not), then forcing ISPs to come in and compete in layers remains a compelling idea America wants nothing to do with.

Well, most of America. Back in 2016, the city of Ammon, Idaho (population 16,500) decided to build an open access broadband network that let multiple private ISPs offer service to customers over city-owned fiber. The resulting competition has, several years later, resulted in (surprise), better, faster, and cheaper access to broadband. As a result, this city in Idaho now boasts better broadband infrastructure than most US "tech hubs" like San Francisco and Seattle, both of which have flirted with the idea but never followed through:

“If you were to ask me what the key component of Ammon is, I would say it’s a broadband infrastructure as a utility,” says Bruce Patterson, Ammon’s technology director and one of the key drivers behind the network. “We’ve just found a way to make it a true public infrastructure, like a road."

The city of Ammon manages the network the same way it handles water services or road maintenance. “If we could simply come to a point as a nation where we would say internet infrastructure is essential and we’re going to make sure that everybody has access to it,” Patterson says, “that would be a huge step forward.”

Through software virtualization, users on the network are allowed to switch ISPs with just a few clicks. Don't like prices or an ISP's privacy or net neutrality practices? You just switch. You can start to see why giants like AT&T and Comcast aren't particularly keen on this idea:

"By offering residents and businesses the option to own their own fiber, either paying up front (about $3,200) or $20 per month for 20 years, Ammon forces providers to compete for customers. There are eight local ISPs, and users can switch among them instantly without requiring a “truck roll” (a visit from the ISP to adapt hardware at the customer’s location), because Ammon uses software to “virtualize” the network.

To be clear community broadband isn't some mystical panacea where this will inevitably happen every time a community gets involved. These efforts are like any other business model, and require a solid plan and good people involved if they're going to succeed. The thing is, this is a decision that should be left up to towns and cities and their voters. Instead, we've let giants like AT&T and Comcast literally write the law in roughly 20 states banning your town or city from making up their own minds, preventing any exploration of creative alternatives to the status quo.

Huge swaths of the US government not only refuse to address the country's broadband competition issues; many insist there is no problem. Instead, they embrace mindlessly eliminating oversight of giants like Comcast under the false premise this somehow results in better service. When communities frustrated by terrible service then try to do something about it, they run face first into protectionist laws literally written by telecom giants. People then stand around with a dumb look on their face, wondering why US broadband is aggressively mediocre and expensive. The answer? Corruption and regulatory capture.

Filed Under: ammon, broadband, competition, fcc, idaho, municipal broadband, open access

Idaho Magistrate Judge Shoots Down Another Government Request For Compelled Fingerprint Production

from the on-the-Fifth,-I've-told-you-twice dept

Another small victory for Constitutional rights comes via the same federal magistrate who previously rejected another law enforcement request to compel production of fingerprints to unlock a phone.

In May, federal magistrate judge Ronald E. Bush said compelled production of fingerprints violates both the Fourth and Fifth Amendment. He declared the fingerprint application itself to be a search, one performed with the assistance of the suspect. There's the Fourth Amendment issue.

And since the government hadn't provided evidence tying the suspect to the phone, producing fingerprints would provide the government with testimonial evidence it didn't have. The government wanted to search the phone for "indica of ownership" -- something it hoped to perform after it had already compelled production of fingerprints. The government had no "foregone conclusion" to work with, so forcing a suspect to give up information only they know (namely, possibly verifying ownership by unlocking the phone) implicated his Fifth Amendment protections against being forced to testify against himself.

In this case, Judge Bush has handed down another denial [PDF]. Once again, the government wants to compel the unlocking of a device but doesn't have everything it needs. What the government does have isn't much. The evidence tying the suspect to child porn possession is mostly ephemeral: IP addresses, email addresses, and online accounts. Using this as probable cause, the government is asking to search electronics seized from a searched residence. (The government also wants to search the suspect's car, presumably in case any electronics are stashed there.)

As the court points out, the government wants to do things to a phone it hasn't shown will actually need to have this stuff done to it. It's working off an assumption and that assumption isn't enough for the judge to agree to the government's proposed rights violations.

The affidavit describes a feature of the smartphone which, according to the investigator, offers users “the ability to unlock the device via the use of a fingerprint or thumbprint.” It also describes that, in the investigator’s “training and experience, cellular telephone users often enable” such a touch identification security feature “because it is considered to be a more convenient way to unlock the device than by entering a numeric or alphanumeric passcode or password, as well as a more secure way to protect the device’s contents. This is particularly true when the user(s) of the device are engaged in criminal activities and thus have a heightened concern about securing the contents of the device.”

The affiant also states that “[t]he passcode or password that would unlock the cellular telephone device found during the search of [the individual, the vehicle, or the residence] is not known to law enforcement. Thus, it will likely be necessary for law enforcement to press [the individual’s] fingers and thumbs to the [smartphone] found during the search . . . in an attempt to unlock the device for the purpose of executing the search authorized by this warrant.” However, the affidavit does not describe a particular reason to believe that the subject cellphone has enabled a touch identification feature or would have such feature enabled if the device were seized during execution of a search warrant.

The attached footnote provides further reasons why the magistrate is rejecting this application for application of fingerprints.

Regardless of the constitutional issues, the application may also be premature and not ripe for decision. The applicant presupposes that a search will uncover and result in seizure of a specific smartphone at the time of the search but does not identify the device beyond a make and model and does not account for the possibility that a search might uncover additional or different devices.

The court reminds the government that it can no longer take phone searches as lightly as it once did. The Supreme Court's Riley decision made it clear phones are not pants pockets or suitcases or file cabinets. In many cases, they can provide access to a large portion of a person's life. When the government wants access to this wealth of information, it needs to deal with sureties and particulars, not assumptions devices will hold evidence and suspects will provide the keys for entrance. Here, the government does not have enough to demand the production of these keys.

Further, the government cannot demand someone testify against himself. While other courts are still wrestling with this question, Judge Bush's stance on this issue is crystal clear:

[S]ome actions are not within the Fifth Amendment privilege. Furnishing a blood sample, for instance, or providing a handwriting or voice exemplar, standing in a lineup, or submitting to fingerprinting for identification purposes are not testimonial communications because such actions do not require the suspect “to disclose any knowledge he might have” or to “speak his guilt.” Doe, 487 U.S. at 210–211 (citations omitted). The relevant distinction is the “extortion of information from the accused, . . . the attempt to force him to disclose the contents of his own mind.” Id. at 211 (citations omitted).

There is exactly that “extortion” of information here, however. The Government seeks to use the force of a search warrant to compel an individual to literally “open” the “privacies of [his/her] life,” Riley v. California, 573 U.S. at 403, and, by doing so, “to conced[e] the existence, possession and control, and authenticity of the documents tend[ing] to incriminate him.” In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d at 1343. The act of being forced to use one’s fingerprint to successfully open the contents of a smartphone is the equivalent of forcing a tangible oral or written statement from that individual that he or she has at least some degree of possession and control of the phone and possession, control and knowledge of its contents.

Once again, the court finds compelled fingerprint production to unlock devices "testimonial." And if it's testimonial, it's blocked by the Fifth Amendment. The government will just have to find another way to get at the evidence it thinks might reside in the phones it thinks it might find whenever it actually manages to get a warrant signed by this judge. Until then, it seriously needs to rethink its approach to this problem because the usual stuff isn't going to work in this court.

Filed Under: 4th amendment, 5th amendment, compelled production, encryption, fingerprints, idaho, magistrate judge, phones, ronald bush, unlock

Small Idaho City Shows The Benefits Of Open Access Broadband Networks

from the build-it-and-they-will-come dept

In 2009, the FCC funded a Harvard study that concluded (pdf) that open access broadband networks (letting multiple ISPs come in and compete over a central, core network) resulted in lower broadband prices and better service. Of course when the FCC released its flimsy, politically timid "National Broadband Plan" back in 2010, this realization (not to mention an honest accounting of the sector's limited competition) was nowhere to be found. Both parties ignored the data and instead doubled down on our existing national telecom policy plan: letting AT&T, Verizon, and Comcast do pretty much whatever they'd like.

Since then, "open access" has become somewhat of a dirty word in telecom, and even companies like Google Fiber -- which originally promised to adhere to the concept on its own network before quietly backpedaling -- are eager to pretend the idea doesn't exist.

The town of Ammon, Idaho showcases precisely why telecom giants are so worried. The town built a locally owned 30 mile fiber network, then invited ISPs to come in and compete under an open access model. Locals currently have four ISPs to chose from (with more presumably coming), and users can switch ISPs in a matter of seconds. This week, Ammon Mayor Sean Coletti took to Twitter to highlight the benefits of this competition, noting that one of the ISPs using the network was offering 15 Mbps broadband for as little as $1.88 a month:

Granted there's a catch here (isn't there always?). That $2 doesn't include a tax assessment of $10 to $15 (levied separately), plus a $16.50 utility fee intended to help pay off the bonds used to fund the project. Still, the service (especially faster speeds) winds up being dramatically cheaper than most local ISPs, especially telcos still charging an arm and a leg for sluggish DSL. It's also hard to quantify the value of user control. Unlike most markets (where users only have the choice of one ISP), Ammon residents can just quickly switch to a different ISP should their current one offer terrible customer service, or engage in privacy or net neutrality violations (both arguably symptoms of limited competition).

A video from a few years ago by the Institute for Local Self Reliance took a closer look at Ammon's network, and featured several ISPs that were happy to have access to cheaper fiber. They were also more than happy to compete because, as one small ISP executive put it, "it keeps us on top of the game so we can continue to provide a superior product and no one gets lackadaisical":

It shouldn't be particularly hard to see why natural monopolies like Comcast, who've been allowed to apathetically nickel and dime American consumers for years, are terrified of such proposals. It's largely because it raises the question: what if we treated broadband more like an essential utility? One where locally-owned and operated networks had a direct, financial interest in the contentment of the public? One where private ISPs partner with locals in layers of competition? That's not to say community broadband and open access are the solution for every market. But after decades of doubling down on bad ideas and worse outcomes in US telecom, it's an idea that's worth at least paying attention to.

Filed Under: ammon, broadband, competition, idaho, municipal broadband, open access, sean coletti, unbundling
Companies: ammon fiber

Federal Court Says Utah Theater Can Serve Up Beer And R-Rated Movies Simultaneously

from the time-to-rub-out-a-new-resume,-regulators dept

Utah and Idaho -- two states with more in common than a border -- have been enforcing First Amendment-trampling liquor laws preventing adults viewing certain films from enjoying adult beverages while doing so. I'm not talking about porn theaters, although the use of the word "adult" certainly leads the mind in that direction. No, I'm talking about regular, old-fashioned R-rated films no one really has much objection to adults viewing, even those who often object to adults viewing films rated X and up.

In a clear waste of public funds and law enforcement resources, officers are sneaking off to R-rated films at movie houses serving alcohol in hopes of catching them engaged in double-devilry. The movie houses have been fighting back, noting (in lawsuit form) the enforced laws are unconstitutional and inconsistently enforced. Theaters in Utah and Idaho could expect visits from undercover prudes for films like "50 Shades of Grey" and, apparently, "Deadpool."

Theaters in both states sued their respective state alcohol boards. Brewvies -- the theater suing the state of Utah -- has been handed a win. Elizabeth Nolan Brown reports on the federal court's decision in the delightfully-titled article "First Amendment Protects Cinema's Right to Show Unicorn Masturbation Scene While Serving Alcohol, Says Judge."

A Utah movie theater that dared to serve alcohol during a sexually explicit movie has won its legal battle against the state's Department of Alcoholic Beverage Control (DABC).

"The State has violated the First Amendment by bringing an administrative enforcement action against a mainstream motion picture theater showing an R-rated movie," U.S. District Judge David Nuffer wrote for the court Thursday.

The decision [PDF] details a lot of the backstory, which includes state officials singling out Brewvies to score cheap wins for the state alcohol board. It also shows the state, after harassing Brewvies multiple times, suggesting it could preview all movies before showing (the court calls this "untenable"), alter the movies it shows to edit out "obscene" content (forbidden by contracts with motion picture studios), or just stop serving alcohol (lose a great deal of its profits).

It also shows an attorney at the state's attorney's office was the source of the sole complaint against Brewvies' showing of Deadpool -- the end result of which was even more harassment of the theater and, consequently, this lawsuit.

Between February 12, 2016, and March 24, 2016, Brewvies showed the movie Deadpool on one of its screens. A friend of Sheila Page, the attorney at the Attorney General’s Office who represents the DABC in enforcement proceedings, mentioned to Ms. Page that Brewvies was showing Deadpool. Once Ms. Page received the information from her friend, she sent an email to Defendant Margaret Hardie, who has been the DABC Compliance Officer assigned to Brewvies since 2014. In her email to Ms. Hardie, dated February 22, 2016, Ms. Page wrote: “I hate to bring this up, but it is just too blatant to ignore. Brewvies is showing Deadpool. The reviews describe explicit sex scenes and male and female frontal nudity. I know some people who have seen it, and they confirm that it is very raunchy amid the bloody violence. Perhaps you should refer it to [the State Bureau of Investigation].” That email, which was the only complaint received by the DABC about Brewvies showing Deadpool, triggered a referral to the State Bureau of Investigation.

Undercover officers were sent to "investigate." It would have been cheaper to keep them home. All three had already seen the movie, one of them multiple times. But their attendance generated an inadvertently-hilarious report on all the naughtiness contained in Deadpool... and gave Brown's article its unforgettable title.

Officer Bullock’s report describes certain scenes of the movie in terms of the prohibitions of Subsection 7. For instance, he states that the male and female characters were “shown numerous times engaging in acts or simulated acts of sexual intercourse” and that the male character “is shown on his back under bed sheets briefly engaged in masturbation or simulated masturbation using a stuffed unicorn toy.” He also describes a scene where the woman was wearing a leather bikini, with an imagined strap-on penis “that isn’t shown,” and “has her groin area pressed against the man’s posterior,” and she tells him to relax as he is sweating and grimacing. She then bends down and says, “Happy Women’s Rights Day” during what Officer Bullock calls “the sodomy or simulated sodomy scene.”

Officer Bullock also says that during one sex scene, the male character fondled the woman’s bare breasts and, finally, during the credits, Officer Bullock describes “a drawing of the main character (male) . . . ‘as he rides on the back of a unicorn, he rubs its horn briefly until the horn shoots out rainbows (simulating orgasm).”

Officer Bullock (along with Officer Cannon -- Utah's pro prudes seem to have the porniest of surnames…) presented their "findings" and the state went to work getting itself sued. In the end, it's the state hearing a judge whisper "It's First Amendment Day every day!" in its ear as it drives its point home.

The State offered only one governmental interest in support of Section 7’s restrictions: avoiding potential negative secondary effects from combining sexually explicit images with alcohol. Though this may be a compelling governmental interest, Section 7 is not the least restrictive means for accomplishing it.

Section 7 is overinclusive. A statute is overinclusive, and thus facially invalid, if there is a showing that the “law punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep.” If the statute is found to be overinclusive it will “invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.”

Section 7 is overinclusive because it captures mainstream content.

The court continues, pointing out how the state's alcohol regulations serve to unconstitutionally regulate speech, a definite forbidden (government) act.

Section 7 reaches “many films that are far removed from what is colloquially termed ‘hard core,’ or even ‘soft core,’ pornography.” The State admits this. It makes no contention that Deadpool is pornography. The State only argues that by analogy short portions of Deadpool are like the films typically found in an adult theater.

Unlike the statute in Baby Dolls Topless Saloons, no language limits Section 7’s application to those businesses that are characterized by regularly showing sexually explicit material, who make that their essential nature. The State has violated the First Amendment by bringing an administrative enforcement action against a mainstream motion picture theater showing an R-rated movie. That demonstrates the breadth of Section 7’s reach. Section 7’s restrictions impose unacceptable limitations on speech that the State admits should be accorded full First Amendment protection.

State booze regulators will have to go back to the drawing board. The statute needs to be severely narrowed before it can be considered constitutional. Undercover officers Bullock and Cannon will have to start watching R-rated movies on their own time, on their own dime, and presumably without a notebook in one hand and a hard on for free speech oppression in the other.

Filed Under: alcohol, first amendment, idaho, morality police, movie theaters, movies, r-rated, utah
Companies: brewvies

Idaho Governor Says Cops Matter More Than The Public Or Its Representatives, Vetoes Forfeiture Reform Bill

from the status-quo,-voters dept

The governor of Idaho doesn't care about his constituents. State legislators had successfully pushed through an asset forfeiture reform bill with overwhelming support, but Governor Butch Otter vetoed it on April 6th. (h/t Ed Krayewski at Reason)

The bill ran into some law enforcement resistance on its way to being passed. A 58-10 vote sent it to the governor's desk over the concerns of law enforcement, who apparently felt that law enforcement via asset forfeiture would just be too difficult if some form of actual due process was recognized.

While Reps. Rubel and Harris did work with some law-enforcement groups while drafting the bill and these organizations decided not to oppose it, other police organizations came out against the bill, worried it would put too many restrictions on their ability to seize drug dealers’ ill-gotten gains or the cash they could use to commit further crimes.

Apparently, those concerns were indulged by Governor Otter. His veto statement [PDF] makes the dubious assertion that Idaho law enforcement has never abused the process.

There have been no allegations that Idaho law enforcement officers or agencies are illegally or inappropriately seizing property from alleged drug traffickers. Its sponsors contend that the measure is aimed at preventing improper forfeiture of assets in the future, but there is no evidence to suggest that such a problem is imminent.

The absence of allegations is not the absence of abuse. Fighting forfeiture is prohibitively expensive and takes place in a closed judicial system that pretty much guarantees at least partial failure. Idaho isn't the worst of the worst -- not according to the Institute for Justice's grading -- but scoring a "C" is hardly an exoneration of the process. A "C" rating still stacks the deck in favor of law enforcement:

Although Idaho appears to pursue forfeitures against property owners only modestly, its civil forfeiture laws still put the property of ordinary citizens at risk. To forfeit your property, the state only needs to show that it was more likely than not that your property was used in some criminal activity—the legal standard of preponderance of the evidence. To recover seized property, an innocent owner bears the burden of proving his innocence. Moreover, law enforcement in Idaho reaps all of the rewards of civil forfeitures—they keep 100 percent of all funds and face no requirement to report data on forfeiture use and proceeds.

Otter also cited "public safety" as a reason for vetoing the reform bill. Somehow, seizing cash but letting suspected criminals go free makes us safer.

[T]here is a legitimate public safety concern associated with allowing those charged with drug crimes to keep money, cars and other civil assets that may be connected with those crimes. Not the least of these concerns is the potential for evidence to disappear or be tampered with.

Which is bullshit. If cops aren't seeking convictions, they don't need evidence. Forfeited items don't go into an evidence locker. It's converted for use by the agency seizing it -- 100% of it as allowed by Idaho law. If there's no prosecution pending, it's not evidence. It's just assets, but ones now in the hands of someone other than their original owner. The governor is deliberately muddying the waters (or he truly doesn't understand the subject matter) by conflating criminal asset forfeiture with the more popular version -- civil asset forfeiture -- which has nothing to do with the "criminal charges" Otter leads off with.

But where Governor Otter's statement really shows his disdain for everyone but a small percentage of his constituents is this part:

The fact that this bipartisan legislation was overwhelmingly approved by both the House and Senate is outweighed by compelling opposition from law enforcement and the absence of any benefit to law-abiding citizens from its enactment.

The people and their representatives don't matter, not when weighed against the apparently onerous requirement that law enforcement seek convictions when seizing property. The benefit Otter can't see is intangible: conviction requirements eliminate fishing expeditions by law enforcement officers who may be more interested in assets than convictions. That does make the public safer, but the public's top representative only represents law enforcement interests.

Filed Under: asset forfeiture, butch otter, civil asset forfeiture, idaho, law enforcement

Open Access Idaho Broadband Network Lets Customers Switch To A New ISP In Seconds

from the what-competition-actually-looks-like dept

In 2009, the FCC funded a Harvard study that concluded (pdf) that open access policies (letting multiple ISPs come in and compete over a central, core network) resulted in lower broadband prices and better service. Of course when the FCC released its flimsy, politically timid "National Broadband Plan" back in 2010, this realization (not to mention an honest accounting of the sector's limited competition) was nowhere to be found. Since then, "open access" has become somewhat of a dirty word in telecom, and even companies like Google Fiber -- which originally promised to adhere to the concept on its own network before quietly backpedaling -- are eager to pretend the idea doesn't exist.

That's not the case for Ammon, Idaho however, where a small municipal broadband ISP is building a core broadband network that's not only embracing open access, but is developing tools that will let customers easily switch between ISPs in seconds. Even different customers in the same home can select different ISPs depending on their needs:

"Residents will get a gateway provided by the city. When they hook it up and try to surf the Web, they will be taken to the portal where they can select an ISP—very much like using the Internet in a hotel. From that point, residents will scan the available Internet offers, purchase one, and get hooked up immediately. They could even buy two different Internet services, which might be useful for a family where a parent works at home and wants a single broadband line for a home office and a second broadband service for the rest of the home."

While only a 12 home trial at the moment, the city of Ammon is beginning expansion to 200 homes, with plans to reach all 4,500 homes and apartment buildings in time. Like most municipal broadband networks, the Ammon network was forged in the wake of resident annoyance at apathetic area incumbents CenturyLink and Cable One. Also like most municipal broadband communities, Ammon is relatively conservative, once again putting to bed the useful ISP-backed myth that municipal broadband is a partisan, political issue:

"Ammon is "a very conservative community," so creating a fiber network instead of relying solely on the private sector is not something city officials were about to do lightly, Mayor Dana Kirkham said in the video. But city officials soon figured out that they could do the initial project themselves for just $22,000 and that they could also bring Internet access to government buildings and businesses, improving the city's ability to compete in a high-tech world in a fiscally responsible manner."

Again though, open access in most areas of the country is treated like the bubonic plague. Why? Most large scale open access proposals often involve some form of local public/private partnership to ensure even coverage of what's becoming a necessary utility to lower ROI areas. The end result is any ISP lobbyists' worst nightmare: an informed, motivated public with the backing of local governments working together to improve broadband competition, instead of the current paradigm of regulatory capture resulting in government ignoring the public to maintain the duopoly status quo.

And while Ammon's approach is unlikely to be adopted on any scale here in the States, it's an interesting look at what could have been if the country wasn't quite so beholden to telecom industry campaign contributions.

Filed Under: ammon, broadband, competition, fcc, idaho, isps, line sharing, municipal broadband, open access