Month: April 2014

Last evening, Reason co-sponsored an
event at New York’s great Museum of Sex titled “Thank
You for Vaping,” in which foes of the nanny state lit up
electronic cigarettes (filled with all sorts of material!)
in defiance of the Big Apple’s new vaping ban. It was a swell time,
as perusal of the press coverage can attest.

ABC News:

More than 300 e-smokers showed up for a “vape-in” at Manhattan’s
Museum of Sex Monday night to protest a New York City ban on indoor
e-cigarette smoking. They thumbed their noses at e-cigarette
prohibitionists by dancing and vaping the night away until well
past midnight, when the ban went into effect. […]

Tara Lober, a 21-year-old from Brooklyn who attended the event,
said she thinks the ban is silly.

“This is a health issue, yes, but I see it as closer to a civil
rights issue,” Lober said[.].

Newsweek:

The scene might have been mistaken for a pickup
spot—there were more than 100 bodies loose with booze, many toking
on hookah-looking things. But those present consisted of vapers,
what users of e-cigarettes and higher-tech nicotine-vaporizing
devices call themselves, and they gathered to protest the city’s
indoor e-cig ban that took effect at midnight—by continuing to vape
after 12 a.m. […]

One such vaper is Will Gallagher, a 20-year-old photography
student who had a cigarette habit until he got into vaping.

“They make this out to be a bad thing when there really isn’t a
lot of information,” he said of anti-vaping efforts. “It’s really
been a shoot first, ask questions later situation.”

And, compared with smoking, “it’s a much healthier thing,” he
added. […]

Vice magazine co-founder Gavin McInnes helped lead
the countdown from five before midnight, which was followed by
shouts of “Illegal smoking, woo!” and “Outlaw!” as vapers breathed
deep.

When Newsweek asked McInnes what brought him
to the vape-in, he said he didn’t vape or smoke but was “always a
libertarian.”

Vice:

If SoHo’s
swanky Henley Vaporium was a sign that the vape scene has
come out from underground and is penetrating the mainstream, last
night’s event seals the deal. (Henley founder Talia Eisenberg was
there donning a “Fuck Big Tobacco” shirt.) Attendees mingled with
glasses of wine and High Life, in a darkly lit venue strewn
with Playboy magazines and a DJ mixing next to
the cocktail bar.

It felt more like a fancy club than political protest, but the
message was clear: get your hands off our vapes. If not for the
benefit of the public health, than for the nascent industry
attempting to distance itself from the toxic habit that society has
been trying to kick for decades.

The Verge:

Inside, a diverse crowd of punks, 9-to-5-types,
white hairs, 20-somethings, Army veterans, and artists puffed on
nicotine vaporizers, the all-metallic devices that look like part
of a vacuum cleaner, and “cigalikes,” the smaller, cheaper sticks
that look like cigarettes and probably have glowing tips. The smell
of caramelized banana, Apple Jacks, and melon mixed in the air.
[…]

“This is the beginning. This is where this fight takes off,”
says Jenee Fowler, a thin woman with multicolored hair also known
as Vape
Girl on YouTube. Fowler’s boyfriend Russ Wishtart, a
vaping advocate who hosts a libertarian-themed podcast, recently
joined a smoker’s rights group in a lawsuit
against New York City over the vaping ban.

Fowler is a former smoker, like many of tonight’s attendees. She
quit after she started using an electronic inhaler that vaporizes a
nicotine solution in order to simulate the effects of smoking. Like
many of tonight’s attendees, she feels the e-cig ban is
counterproductive.

“We were forced to be smokers because we were addicted,” she
says, taking a hit of something called “freckle-faced dragonberry.”
“Now we finally have our lives back.”

Would she be observing the new rules that ban
vaping in restaurants, bars, schools, within 15 feet of a
hospital door, “public arenas where bingo is played,” and so
on?

No, she says. “I am going to vape everywhere.” […]

McInnes was wearing the “College” shirt from the
movie Animal House, which he said he had just
watched. “We don’t care if de Blasio puts us on double secret
probation,” he said. “We are going to release water vapors into the
sky, because that doesn’t hurt anybody.”

“Five, four, three, two, one,” the crowd counted down. “I’m
breaking the law!” one man yelled, holding his e-cig in the air.
“We’re all breaking the law!” someone else yelled.

The police never came.

The Verge has a photo essay of the event
here. The
Independents will have some video from the event tonight
at 9 p.m. ET on Fox Business Network.

During
oral arguments today in
two cases raising similar privacy issues, the Supreme Court
seemed inclined to impose a rule that would limit police access to
the cellphones of people they arrest. Under the
usual standard for a “search incident to an arrest,” police may
seize and examine anything they find on an arrestee’s person
without a warrant. The question for the Court was whether that rule
should apply even when the item discovered by police is a portable
computer that contains a wealth of personal information, including
contacts, calendars, correspondence, journals, photographs, videos,
telephone messages, purchases, reading habits, musical tastes,
browsing histories, travels, and legal, financial, and medical
records. As Justice Elena Kagan
put it during oral argument in Riley
v. California, “people carry their entire lives on
cell phones.”

Other justices expressed similar misgivings. “We’re living in a
­­ in a new world,”
said Justice Anthony Kennedy during oral argument in

U.S. v. Wurie. “Justice Kagan’s questions point out the
fact that someone arrested for a minor crime has their whole
existence exposed on this little device.” Alluding to the fact that
the Court has
upheld custodial arrests (and
strip searches!) for crimes as minor as failing to buckle your
seat belt, Justice Antonin Scalia
said “it seems absurd that you should be able to search that
person’s iPhone.” Justice Ruth Bader Ginsburg took up the same
theme. “Take an offense like failing to buckle up, even driving
under the influence,” she
told California Solicitor General Edward Dumont. “It’s your
rule…that the cell phone is fair game no matter what the crime,
no matter how relatively unimportant the crime….That opens the
world to the police.”

Justice Sonia Sotomayor
emphasized the difference in kind and quantity between the
information stored in a cellphone and the information that can be
gleaned from items such as wallets and cigarette packages:

Practically speaking, a person can only carry so much on their
person. That is different, because…a billfold of photographs
is…anywhere from one to five, generally, and not much more. But
now we’re talking about potentially thousands, because with digital
cameras people take endless photos and it spans their entire
life….A GPS can follow people in a way that prior following by
police officers in cars didn’t permit.

Assuming that the rule for a cellphone should be different from
the rule for a wallet, what should the rule be? Scalia
suggested a warrantless search might be allowed when police
reasonably believe the cellphone contains information related to
the crime for which the owner has been arrested. “That will cover
the bad cases,” he said, “but it won’t cover the …seat belt
arrest.” Dumont, speaking for the state of California, said “that
could be a perfectly reasonable ruling.” Jeffrey Fisher, speaking
for a defendant who was convicted based partly on information from
his cellphone, disagreed:

[With] lots of minor crimes, like speeding…DUI, littering,
[police] can make a fairly convincing argument sometimes that
evidence on the phone would be relevant to that crime of
arrest….Take the suspended license. You may have an e­mail from
the DMV telling you you better come in and renew. If that opens up
every American’s entire life to the police department, not just at
the scene but later at the station house and downloaded into their
computer forever, I think you will fundamentally have changed the
nature of privacy that Americans fought for at the founding of the
Republic and that we’ve enjoyed ever since.

Justice Stephen Breyer
proposed a different rule, allowing warrantless searches of
cellphones only in “exigent circumstances,” which would include
scenarios involving remotely detonated bombs as well as situations
where police reasonably worry that the data on a phone will be
erased or become inaccessible if they wait for a warrant. The
latter possibility relates to one of the original rationales for
warrantless searches of arrestees and their possessions: preventing
the destruction of evidence. The government in both cases therefore
emphasized the risks of remote data wiping and automatic
encryption, although several justices were skeptical that such
fears justified proceeding without a warrant. Simple safeguards,
such as turning off the phone’s wireless functions or putting it in
signal-blocking bag, can guard against remote wiping. Encryption is
relevant only if police seize the phone while it is on and
unlocked, in which case they can keep it that way until they get a
warrant by disabling the auto lock feature. And if police have the
time to take a phone back to the precinct house and examine it at
their leisure—as they did in Riley, where the search was
not conducted until two hours after the arrest—the fear of imminent
evidence destruction hardly seems plausible.

The truth is that Court’s rules for arrest-related searches have
been needlessly deferential for decades. Preserving evidence and
protecting officers from hidden weapons were the two original
justifications for making an exception to the warrant requirement.
But neither of those goals requires reading detailed information
about an arrestee, whether it is stored on a cellphone or in a
notebook. Barring far-fetched emergencies, there is no legitimate
reason why police, having secured such evidence, cannot go to the
trouble of getting a court order authorizing them to examine it.
That point is especially clear in the case of cellphones and other
portable electronic devices, which routinely contain just the sort
of private information the Framers meant to protect when they
banned unreasonable searches of people’s “papers” and
“effects.”

Did you know North Carolina has
a law on the books that that makes it a misdemeanor for a minister
to solemnize the wedding of any couple who doesn’t have a valid
marriage license from the state? That it is illegal in the state to
even perform this ceremony of words and hymns and vows that isn’t
even recognized as a valid contract without the state’s stamp of
approval anyway?

Perhaps its origins are from some sort of attempt to prevent
fraud by some reprobate phony trying to make money off the naïve
who didn’t realize how many hoops they had to jump through to truly
make a marriage legal.

In any event, North Carolina was the last state to pass a
constitutional ban on same-sex recognition in 2012, before the bans
started falling apart in other states. The United Church of Christ
is now suing,
arguing that the amendment, combined with the state’s existing
statutes criminalizing unlicensed weddings, is a violation of the
church’s First Amendment rights.
From the Associated Press:

“North Carolina’s marriage laws are a direct affront to freedom
of religion,” said the Rev. J. Bennett Guess, executive minister
with the Cleveland-based United Church of Christ, which is a
plaintiff in the lawsuit. “We feel that it is important that any
person that comes into community life of a United Church of Christ
congregation be afforded equal pastoral care and equal opportunity
to religious services that clergy provide.”

But in North Carolina, clergy are often faced with a troubling
decision — “whether to provide those services or break the law,”
Guess said. “That’s something no clergy member should be faced
with.”

Along with the United Church of Christ, which has more than 1
million parishioners, a dozen clergy members and same-sex couples
who want to marry were listed as plaintiffs. The defendants
included North Carolina Attorney General Roy Cooper and several
county district attorneys as well as five registers of deeds.

Some of the reporting is a bit ambiguous and suggests the
constitutional
amendment passed in 2012 is what turned the solemnization into
a crime. That’s not exactly the case. There’s no criminal element
to the ban on same-sex marriage. It just says the state won’t
recognize them. The problem comes from two
already
existing statutes:

No minister, officer, or any other person authorized to
solemnize a marriage under the laws of this State shall perform a
ceremony of marriage between a man and woman, or shall declare them
to be husband and wife, until there is delivered to that person a
license for the marriage of the said persons, signed by the
register of deeds of the county in which the marriage license was
issued or by a lawful deputy or assistant. There must be at least
two witnesses to the marriage ceremony.

And:

Every minister, officer, or any other person authorized to
solemnize a marriage under the laws of this State, who marries any
couple without a license being first delivered to that person, as
required by law, or after the expiration of such license, or who
fails to return such license to the register of deeds within 10
days after any marriage celebrated by virtue thereof, with the
certificate appended thereto duly filled up and signed, shall
forfeit and pay two hundred dollars ($200.00) to any person who
sues therefore, and shall also be guilty of a Class 1
misdemeanor.

It would seem like these two statutes were always a violation of
a church’s or minister’s freedom of speech, regardless of the sexes
of the participants. I could easily see the courts striking down
the two statutes while leaving the ban on gay marriage recognition
intact, meaning that it would no longer be a crime for a church to
perform a gay marriage (or any other type of marriage); the state
just wouldn’t recognize it as a legal contract.

The
situation in Arivaca, Arizona, where residents face off with Border
Patrol in front of neighbors and cameras, is tense enough. Federal
agents have told locals, “you
have no rights here,” even as they run them through a daily
gauntlet and harass them when they protest the situation.

But imagine running into Border Patrol agents conducting a
roving patrol on an isolated road, with only your children for
company. That happened to Clarisa Christiansen, who lives outside
of Tucson about 40 miles from the border. She says the agents
threatened her with a Taser, forced her from her car as her kids
watched—and slashed her tire for good measure.

The American Civil Liberties Union described several cases of
abuse, including Christiansen’s in a
complaint filed with the Department of Homeland Security (PDF).
They’ve since
posted videos abut the incidents, in which the victims describe
their experiences, to raise the pressure and overcome a little
bureaucratic inertia (see below). A lawsuit
filed yesterday seeks to raise the pressure still further,
since federal officials are stonewalling efforts to get information
about just how they’re conducting those patrols—though the
experiences of those on the receiving end are not encouraging.

The description below is from the complaint.

On May  21,  2013,  Clarisa Christiansen was
driving home with her seven-year-old  daughter and
five-year-old son after picking her daughter up from elementary
school. Ms. Christiansen and her children a re U.S. citizens and
resident s of Three Points, Arizona, located west of Tucson and
approximately 40 miles north of the U.S.-Mexico border. On their
way  home, at approximately 2:15 pm, the family was pulled
over by a Border Patrol vehicle. The stop occurred  on a
stretch of  dirt road about two miles from their home, which
is approximately fifteen miles from the elementary  school.

Ms. Christiansen stopped her vehicle and was approached by a
Border Patrol agent. The agent asked her if she was a U.S. citizen;
she answered affirmatively. The agent then  demanded 
that Ms. Christ iansen exit her vehicle so  it could be
searched. Ms. Christiansen stated that she  did not consent to
a search and asked the agent why she had been stopped. The agent
responded  that he would not provide an explanation until Ms.
Christiansen exited her vehicle. Ms. Christiansen stated that she
would not exit her vehicle until she was provided with an 
explanation for the stop. The agent refused and was clearly
agitated that Ms. Christiansen had  requested an explanation.
At that point, two additional Border Patrol agents approached Ms.
Christiansen’s vehicle.

Ms.
Christiansen then stated that if there was no reason for stopping
her that she would  be on her way, and wished the agent a good
day. The agent told her, “You’re not going  anywhere.” That
agent then said to the other agents, “This one is being difficult,
get the Taser.”  The agent opened the driver’s side door
and  demanded that she exit.  Ms. Christiansen, now 
fearing for her safety and that of her children, refused. Ms.
Christiansen’s children became upset; her daughter asked, “Mommy
what’s going on?” Ms. Christiansen told the children to stay calm
and sit still, but she could see they were confused and afraid.

The agent then approached Ms. Christiansen with a retractable
knife and threatened to cut her out of her seatbelt if she didn’t
exit the vehicle. Ms. Christiansen repeated her demand for an 
explanation, which the agents still refused to give her. Instead,
the agent forcibly reached inside Ms. Christiansen’s vehicle
without her consent and removed the keys from the ignition.

Ms. Christiansen had no choice but to exit the vehicle. She
presented her  identification. The agents ran a background
check, gave her back her driver’s license, returned  to their
vehicle without  saying anything, and drove away. The entire
stop lasted approximately  35 minutes.  At that point,
Ms. Christiansen noticed that her rear tire had been punctured and
was flat. There was a large incision along the side of the tire,
consistent with a knife puncture and not a routine or accidental
flat. It was a very hot day and there was no one for miles
around.  Fortunately, Ms. Christiansen was able to contact her
brother to bring her a car jack to change the flat tire.

When Christiansen complained to the Department of Homeland
Security about the incident and demanded compensation for the tire,
she was initially put off. Only after the ACLU became involved did
an official—Richard Hill—respond. He told her he thought the tire
had been torn and not intentionally slashed (see the photo above
and judge for yourself). He also told her he would interview one of
the agents involved and follow up with her.

Shockingly, she hadn’t heard from him again by the time the ACLU
filed its own complaint.

For the record, speaking as an Arizona resident, stranding
people in the Sonoran desert—especially children, as temperatures
start to climb during late spring—is a very effective way to kill
them. 

Last year, the
ACLU reached a settlement with Customs and Border Protection
regarding its controversial roving patrols along the Canadian
border, on Washington’s Olympic Peninsula.The feds didn’t admit any
wrongdoing, but agreed to provide agents with Fourth Amendment
training and to share data from the stops with the ACLU for 18
months.

The lawsuit filed yesterday seeks similar data about internal
stops in Arizona, since the feds have ignored all polite requests
for such information.

Given what they’ve apparently been up to, the reticence may be
understandable.