Page 38-39 of Perry v. Brown

The law clerks at the 9th Circuit are having too much fun.

We need consider only the many ways in which we encounter the word “marriage” in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are “single” or “married.” newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “will you enter into a registered domestic partnership with me?”

Groucho Marx’s one-liner, “marriage is a wonderful institution… but who wants to live in an institution?” would lack its punch if the word “marriage” were replaced with the alternative phrase. So too with Shakespeare’s “A young man married is a man that’s marr’d,” Lincoln’s “marriage is neither heaven nor hell, it simply purgatory,” and Sinatra’s “A man doesn’t know what happiness is until he’s married. By then it’s too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized important and permanence of the marriage relationship. Had Marilyn Monroe’s films been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is not different. The name “marriage” signifies the unique recognition that society gives to harmonious, loyal, enduring and intimate relationships.”

Via Perry v. Brown.

Is filming the police against the law?

In a video from 2010, a state trooper in Maryland flashed his gun while pulling over motorcyclist Anthony Graber for speeding. When Graber posted the video from his helmet cam on YouTube, prosecutors charged him with breaking the state’s wiretapping law because he recorded the trooper’s voice without consent. A judge dismissed the case.

Which is a more compelling argument?

a) “They need to move quickly, in split seconds, without giving a lot of thought to what the adverse consequences for them might be.”


b) “But police officers above all others should be subject to this kind of filming because we have a duty to hold them accountable as powerful public servants.”

The Maryland Wiretap Law is codified as Maryland Courts and Judicial Proceedings Section 10-402. Under that statute, certain communications may not be recorded so long as they are “interceptions” of wire, oral, or electronic communications.

Attorney General Robert McDonald advised the court to dismiss the case stating: “The Wiretap Law regulates the interception of oral, wire, or electronic commuications. The typical encounter between a citizen and police officer does not involve a wire or electronic communication. Thus, the application of the Act will turn on whether a recording of the audio portion of such an encounter constitutes the interception of an ‘oral communication’ protected by the Act.” The opinion goes on to state that such a decision would turn on whether the oral communication was deemed to be a private one.

Here, it is safe to say that a police officer ordering a motorists off his vehicle on a public highway is not a private communication, especially when that officer is shouting and brandishing a firearm.

The more interesting question is whether citizens want the freedom to be able to record police officers doing their jobs (see also Rodney King, Oscar Grant, and the TV show Cops).

From Morning Edition.

Seattle’s Superheroes

And thank you Phoenix Jones, for keeping Gotham safe for another day.

Like New York’s Guardian Angels, the Rain City Superhero Movement has picked up where the police left off — the streets. This calls into question whether vigilantism is legal.

In Alan Moore’s graphic novel, Watchmen, superheroes fighting crime were forced into retirement after passage of the Keene Act, a fictional piece of legislation which outlawed non-government affiliated vigilantes. No such laws have ever been passed in the United States but there is sufficient policy against so called “self-help”.  See also self-defense of another.

For some historical background read up on the San Francisco Committee of Vigilance.

In other news: last week Scott Roeder was convicted of the murder of Wichita abortion provider Dr. George Tiller. Roeder shot Dr. Tiller as he handed out bulletins in the foyer of his church last year.

SF Public Press Features Sit/Lie Comic Strip

Journalist Shawn Gaynor and artist Andrew Goldfarb teamed up to create this visual account of the history and politics behind sit/lie in San Francisco. Their illustration of the issue begins off well enough, illustrating a previous SF sit/lie law which targeted hippies but was used against homosexuals (smells like an equal protection argument).

But then the entire thing devolves into a slippery slope argument: to support sit/lie is to support the Arizona Immigration Law (SB 1070). Sticking to San Francisco would have taken their position a little further than likening sit/lie proponents to anti-immigrant Arizonians.

— Update Upon further consideration, the doomsday scenario posed in the comic (local cops would have to enforce the I.C.E. regulation requiring handing over the identities of undocumented workers arrested for violating the sit/lie law) is unlikely as it is unconstitutional under the commandeering doctrine — the federal government cannot tell state government to enforce federal law as doing so would be violative of dual sovereignty. — End Update

The point is (well, not the point of the comic) the supervisors screwed up big when they decided to reject the policy outright rather than working with the Mayor to craft something a little more manageable and palatable than a city-wide sit/lie ban. Now, the SF voters are being offered the chance to clean up their streets (although, in the least ideal way) and they’re going to do it. Maybe the supes will take this as a lesson that even they can be too liberal for San Francisco.

Sample frames and a downloadable pdf of the entire comic are available on the SF Public Press website. Get the whole thing in print copies of the debut issue of SF Public Press, available at the Booksmith in the Haight and other locations.

See more

Civil Sidewalks Ordinance / Sit-Lie Law Fails at Board

Not surprisingly, the San Francisco Supes rejected Newsom’s sit-lie law, the so called “Civil Sidewalks Ordinance” 8-to-3:

For: Supervisors Sean Elsbernd, Michela Alioto-Pier, and Carmen Chu

Against: Supervisors Eric Mar, David Chiu, Ross Mirkarimi, Chris Daly, Bevan Dufty, David Campos, Sophie Maxwell, and John Avalos

Thanks for nothing Haight-Ashbury Supe Mirkarimi. Now it’s up to the citizens of the city to decide what they want to do with their sidewalks. How about, instead of an ordinance, the City hands out clubs, maces, and shillelaghs? Let the residents figure it out. Gonna be a long summer.

From The Chron.

End of Days Growing Nearer

Administrative and regulatory law is a prickly beast.  And when it comes to net neutrality, Comcast’s deep pockets are going to make certain that net neutrality slows to a crawl. Today, the U.S. Appeals Court for the District of Columbia held against the FCC finding that the Commission does not have the authority to exercise jurisdiction to force net neutrality over the cable giant. The Court stated:

The Commission may exercise this ‘ancillary’ authority only if it demonstrates that its action . . . is ‘reasonably ancillary to the … effective performance of its statutorily mandated responsibilities.’ The Commission has failed to make that showing.

The FCC will likely appeal the ruling and Congress will likely step up its efforts to pass legislation governing internet speeds.

Read more about net neutrality here and here(!).

Read about why the EFF believes the FCC is the wrong body to legislate net neutrality here.


San Francisco’s Proposed Sit/Lie Law

The last few days have seen a lot of news coverage over Newsom’s proposed Citywide sit/lie law for San Francisco. The long-standing “gutter-punks don’t mess with the residents and residents don’t call the cops on the gutter-punks” understanding was obliterated after aggressive panhandling, stalking, and fights between “street kids” and the residents of Haight-Ashbury. In response, the cops beefed up their efforts to patrol the Haight, telling the street kids to move along or life would get a lot harder. And as a result, things are starting to get better.

However, residents have since mobilized to encourage City Hall to pass tougher laws that would keep the streets and residents safer. Newsom responded by doing a little investigating of his own. His Mayorship, accompanied by his infant handler, walked down the hill from his house for a stroll along the Haight where he reported in an interview with the Chron, “As God is my witness, there’s a guy on the sidewalk smoking crack.” Which brings us to the issue of the day: is the sit/lie law constitutional? The following is a brief list of adjudications on the subject:

Cases where a municipal sit/lie law has been upheld:

Roulette v. City of Seattle, 97 F. 3d 300 (1996)

City of Seattle v. McConahy, 937 P. 2d 1133 (1997)

Amster v. City of Tempe, 248 F. 3d 1198 (2001)

Victor Frost v. City of Palo Alto news item

Cases where a municipal sit/lie law has been struck down:

Jennings v. Superior Court, 104 Cal. App. 3d 50 (1980) (modified sit/lie ordinance to require reading of malicious intent)

Berkeley Community Health Project v. City of Berkeley, 902 F. Supp. 1084 (1995) (vacated on appeal)

Jones v. City of Los Angeles, 444 F. 3d 1118 (2006)

While such an ordinance could be challenged on first amendment freedom of expression grounds (“[S]itting … is not conduct that an observer would normally construe as expressive conduct.” Clark v. Cmty. for Creative Non-Violence), the sit/lie battle is likely to be fought over due process and equal protection challenges.

The Due Process clause requires that people must be given notice as to what a law is so that they can avoid breaking said law. It would hardly be fair to nail people for municipal violations without giving them notice as to what behavior is prohibited. In the controlling case in vagueness challenges, Papachristou v. Jacksonville, 405 US 156 (1972), the United States Supreme Court struck down a vagrancy ordinance because there were “no standards governing the exercise of the discretion granted by the ordinance,” thus permitting and encouraging an arbitrary and discriminatory enforcement of the law.

In the case of the sit/lie law, the law must be written such that a reasonable person of average intelligence could comprehend its meaning and know what conduct was prohibited. Arguably, the ordinance is specific: “In the City and County of San Francisco, during the hours between seven (7:00) a.m. and eleven (11:00) p.m., it is unlawful to sit or lie down upon a public sidewalk, or upon a blanket, chair, stool, or any other object placed upon a public sidewalk,” and includes a list of exceptions like those utilizing a wheelchair, emergency situations, and permitted commercial operations with sidewalk seating, to name a few. As for arbitrary and discriminatory enforcement we look to the 14th amendment.

The Equal Protection argument would either be 1) a facial challenge that the ordinance discriminates against certain groups, homeless people and gutter-punks, on its face or 2) an as applied challenge that the police applied the ordinance in a discriminatory manner to homeless people and gutter-punks but not tourists or residents. So long as a law does not target a suspect class (as in Parr v. Municipal Court, 479 P. 2d 353 (1971), sit/lie law targeted against hippies when enacted held invalid) nor burdens a fundamental right, it will be upheld as long as it bears a rational relationship to some legitimate government end. And remember, discriminatory impact is not enough for an equal protection as applied challenge; the legislature must have had discriminatory intent when enacting the law (Arlington Heights v. Metropolitan Housing Development Corp, 429 US 252 (1977)).

Under Newsom’s ordinance, he cites the City’s interest in keeping pedestrian walkways clear from impediments and the inability of consumers to access storefronts along impeded walkways as legitimate government interests motivating the legislation. Such impediment, so the language goes, will lead to cycle of decline as consumers go elsewhere to shop and dine. But, as one commentator pointed out, this is all pretext for getting rid of unwanted behavior by targeting the innocuous behavior of  the upright and the supine. And therein lies the rub. It’s not really possible to target the offensive behavior with the current law because obstruction of a sidewalk (a current city ordinance) requires a complaint by a citizen and that the officer prove specific intent of the offending individual.

Faced with the challenge of trying to enforce current law with difficult parameters and passing new legislation which will allow the cops to do the job the residents want, Newsom is going with the latter. Residents vote and pay taxes (well some of them do anyway) while gutter-punks get drunk and pay CRVs. Your move San Francisco.


Sit/Lie Laws: NPR’s Forum with Michael Krasny

Text of San Francisco’s Proposed Sit/Lie Law