Sidewalk Chalk, legal or illegal?

Not guilty was the verdict for Mr. Olson, a San Diego man accused of violating California's vandalism statute by writing anti-bank messages on the sidewalk in front of a North Park Bank of America.

I was called to jury duty recently, and during jury selection someone on the hot seat said he believed that juries have the ability to decide questions of law, but agreed to not do so for a simple DUI case.  Predictably, he was excused.  I immediately thought this guy was a joker, but maybe he had a point.

In the case against Mr. Olson, the City argued that sidewalk chalk, although washable, was still a violation of the state vandalism statute. “The People do not fear that this reading of section 594(a) will make criminals of every child using chalk," said Deputy San Diego City Attorney Hazard in justifying the prosecution.  The statute makes it illegal to "maliciously . . . deface[] with graffiti or other inscribed material," someone else's property.  The legislature added the terms "graffiti or other inscribed material" after a federal court decision held that Berkeley, CA man did not "damage" property, nor did he use liquid paint on the property when he wrote on a sidewalk with chalk.  Interestingly, other city attorneys rely upon the view that the statue does not require permanence, citing a case (In re Nicholas Y., 85 Cal. App. 4th 941 (2000)) in which writing on a window with a permanent marker was held to be vandalism even though it was easily cleaned.  Tenuously then, writing in chalk must constitute "inscribing" under state law and that kids get away with it by not inscribing with malice, however incompatible with the dictionary definition of inscription being a "lasting record."  Although I could make an argument that the Nicholas Y. case is distinguishable because it absolutely required human effort to remove the ink from the window, whereas sidewalk chalk does not require any human labor to remove it from the ground, it appears the San Diego trial judge agreed with the City Attorney's construction of the law by sticking to the vandalism allegations. It seems to me that someone who writes to encourage people to close their accounts at bank is unquestionably writing with great malice toward the bank by encouraging others to threaten its very existence (or at least bottom line).  Thus my understanding of the jury's verdict was that it is ridiculous that the law should say that sidewalk chalk can constitute vandalism, even if under the guise that Mr. Olson did not draw with malice.

What does this say about our jury system?  Jury nullification is probably alive and well. Maybe Juror number 8 was right, when the people feel like the law is wrongly applied in a particular instance, they have the duty to acquit.  What is more troubling is if this view is applied in the opposite situation; the jury feels like the law should apply in a particular circumstance and convicts.

Much Hubbabaloo about nothing, obscuring the real issue.

Noted conspiracy theorist and U.S. Senator Rand Paul posted a letter from Attorney General Holder responding to his request about if the President could order drone strikes in the U.S. against U.S. citizens.  Holder responded that it was conceivable that under "extraordinary" circumstances it would be permissible, listing Pearl Harbor and 9/11 as examples. Paul, I'm sure giddy from this admission, proclaimed "refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening. It is an affront to the constitutional due process rights of all Americans," in an attempt to highlight the Tea Party talking point that Obama is systematically consolidating power.  However, Holder's response does not change anything; drones are military weapons, and can be used in a similar way to a sniper when there is sufficient threat of military threat.  The situations Holder described in his letter can be considered military attacks on the United States, and I would assume that a President would have some authority over military responses to these attacks.  It would be wise to determine the scope of "extraordinary" but to think that you could unequivocally rule out the use of military force inside the country would be impossible in a world in which the possibility of attack still exists.  However to appease the posturing of Ryan by saying the President in no hypothetical circumstance would have this power is unreasonable, and probably a violation of the constitution which grants powers to the President as Commander in Chief of the military.  While congress has meekly sat on its hands instead of trying to define when the president can use military force throughout the last 60 years, I guess it is refreshing that he Holder did not lie about the scope of the power granted to the president to hopefully provide impetus to congress to finally act.

Pretending that this isn't just a crass attack on the President for political brownie points, it does raise some important questions.  Why do we allow the president to broadly define the scope of when his own military powers are valid?  We can start with the Patriot Act which gives broad discretion for the President to play judge, jury and executioner. If the President determines, in his own judgement, that the suspect is an imminent threat to U.S. security, that is sufficient to order a drone strike.  The Act as applied is used to preemptively incapacitate people deemed to be terrorists.  In a war zone, killing a U.S. citizen behind enemy lines can probably serve as due process because you have notice that people near enemy combatants have the potential to be killed as an unfortunate consequence of war.  The problem is that here, the geographic war zone is indeterminate and thus the limitation granted by the requirement of "being an imminent threat," hardly can constitute due process.  Nonetheless, congress has said these are authorized military strikes and the courts appear to be in no mood to answer the hard questions. We see actions of the President implementing the act according to its provision.

Ryan can scold the president for saying things we already know have been delegated to the president, or he can do his job, and convince congress to delineate the extent of where wars and military action occur more clearly to reign in the president.

Forced Abortion and Media

A Texas court granted a Texas teenager the right to have a child against the wishes of her parents.  In two articles, one by Fox News and one by CNN,  we see a divergent view of what actually happened.  While one news source refers to the teenager's lawyer as Carey and the other as Casey (as of my 10:47 am viewing of the web pages), they cherry-pick quotes that gives the appearance that these are in fact two different people.  The Fox News article has Carey triumphantly proclaiming that this is a "victory for life" whereas the CNN story has Casey arguing that Roe v. Wade guarantees the right for women to choose the fate of their pregnancies.  We end up with a feel good story for both sides of the abortion debate at the best, and conscious disregard for the underlying philosophical debates at the worst.

What is also notable is that the lawyer works for an anti-abortion group specializing in pro-life litigation.  However, I question these tactics.  The winning argument, well maybe not for a Texas court, is that is is insane for someone to force any woman to abort a child against their will, regardless of the risk to the person or baby.  Otherwise, parents can undermine the autonomy of a woman in child bearing decisions simply because she is a minor.

There could be a further underlying strategic goal here.  In a case in which a teenager wishes to get an abortion over her parents wishes, she still must overcome the general state interest in preserving life, which courts have been using to justify various hurdles for teenagers to over come to procure abortions.  In contrast, here the state interest doubles down on the teenagers interest in having a child and protects the child from overbearing parents.

We can also look at this the other way.  If the state is so willing to protect a child whose parents are trying to coerce her into having an abortion, why is the state so unwilling to protect a child from coercion from parents forcing the teenager into having the child.  It seems inconsistent to me to say that a parent has no say over child bearing decisions in one case, and in the other case can use anything short of abuse in the other situation to coerce a child.

The pro-choice lobby would be wise to take on more of these easy to win cases to prevent the pollution of workable jurisprudence uphold the reproductive rights of women.  The right to autonomy over ones self requires that there be no overbearing influence forcing action in one direction or another. The pro-choice lobby should see that the Roe v. Wade doctrine is not interpreted to say that coercion is only bad if only done in one direction.