Whereas Scott expressed concerns about the law and its potential problems in his post, Jamison’s post wasn’t really about the law at all. He focused on how people shouldn’t pick unnecessary fights with police officers or bring stupid lawsuits. Discussing the plaintiff-lawyer’s decision to file suit instead of taking less drastic action, he writes, “[a]nd we wonder why people hate lawyers so much.” Jamison almost seems to praise the opinion, noting how it’s apparently fun to read and claiming there’s a reason federal judges and clerks did better in law school than he did. He cites these paragraphs of the opinion before ending with an exclamatory “ouch:”

[T]he challenge to the post-and-forfeit fails, although not for lack of trying. Plaintiff has now provided the Court with three different versions of a prolix complaint – each longer and more detailed than the one that came before. The matter has been briefed extensively, and the Court held a lengthy hearing. Yet plaintiff has yet to articulate just what it is that is wrong with offering someone charged with a minor offense the choice to contest the charge in court or to pay a small sum and go home.

The fundamental flaw at the heart of the plaintiff’s case is that while his papers are generously seasoned with strong language connoting wrongdoing – “force,” “coerce,” “exact,” “deprive,” and “take,” and the allegations all turn upon the city’s alleged policy of “making” arrestees pay money, there simply was no coercion, taking, or deprivation inherent in the voluntary exchange that was offered and accepted in this case. Moreover, plaintiff was fully apprised of, but elected to forego, his right to seek to set aside the forfeiture and contest the arrest.

I appreciate a good verbal bashing as much as the next guy, but only when it’s deserved. Here, I’m not impressed by the court’s way with words quite as much as I’m horrified that such a statute could exist. The opinion isn’t a righteous bench-slap against some unruly litigant, but rather a terrifying testament to the authoritarian path this country is following. There’s clearly no end to the willingness of the judiciary at all levels to justify coercive and even forceful deprivations of people’s rights so the government can efficiently take their money and exact sick institutional vengeance on them when they ruffle poor little cops’ feathers. Huh. Come to think of it, the plaintiff’s words seem pretty much perfect to me.

Curious, I found the entire opinion at the Blog of Legal Times. It sets forth facts that should make a criminal defense attorney’s blood boil. The lawyer-plaintiff is named “Mr. Fox,” and the opinion explains that he hurt the delicate sensibilities of some demure little flower of an officer by making a derogatory comment about the officer’s intelligence and competence in front of some of his little buddies. Being armed professionals sworn to serve and with a good sense of proportionality, they took a cautious approach and threw Mr. Fox in a cage. Mr. Fox was charged with something called “disorderly conduct – loud and boisterous” and watched another arrestee get hauled off to some scary place the officers called “Central Cellblock” after refusing to pay $35.00. After a few hours in the holding cell, Mr. Fox was given the same “choice,” as the court likes to call it, and he opted to pay the $35.00 ransom post-and-forfeit amount. He was given a form that explained the charged offense and indicated he was being offered the option to post-and-forfeit and that he would otherwise “not be released before [he was] presented to court on [the] charges.” Although the form described “release on bond” and “citation release” as possible alternatives, no one offered Mr. Fox either option. In all, Mr. Fox spent approximately nine hours in jail, which seems to me like quite the price for making someone who carries a gun and handcuffs for a living a little butthurt.

How any court can set forth those facts and rule the way the court in Mr. Fox’s case did is beyond me. Perhaps the most remarkable part of the opinion is the part where the court claims “[i]t is difficult to discern what Mr. Fox’s alleged injury is.” Really? Arrest? Cuffs? A holding cell? Nine hours in jail? Big scary cellies? His poor wife having to go down to the station to try to help him? People cry when they get stopped for going five miles over the speed limit. Other people faint when an officer pulls out handcuffs. Judge Jackson must be tough. Really tough. It’s quite impressive how casually she explains that “the facts as alleged show that he chose to post and forfeit the thirty five dollars – rather than proceed with his criminal case – in order to get out of jail more quickly and terminate his case, and that he was fully aware of his options.” I bet she wouldn’t care at all if she spent nine hours in a cell. She’s probably so tough that she’d demand more jail time to fully weigh her options, all the while feeling no pressure at all. I bet she’d spend months in jail rather than take the weakling’s option and fork over $35.00 for her liberty. Tough lady, that Judge Jackson. As she explains, “there is certainly no fundamental liberty interest in being released from jail before presentment the following morning.” Got that? Judge Jackson and all of her judge buddies do time all the time. What’s an extra several hours or a half day or so being treated like an animal?

Although I could probably go on indefinitely about all the things in the opinion that rub me the wrong way, a few things stood out. For one, the court explains that “[t]he long history of the post-and-forfeit process further weakens Mr. Fox’s substantive due process claim.” In other words, because the government has been doing something bad for a while, that makes it okay. It’s a great argument that I use on behalf of clients all the time. “Your honor, my client kidnaps and robs people every day, and no one ever does anything about it; you can’t just now decide to punish him!” Oh wait. Never mind. I never argue that because it’s ridiculous and would likely get me disbarred and maybe even tossed in the pokey with unfortunate folks like Mr. Fox. Anyway, the court explains how “[t]he Supreme Court has indicated that it approaches requests to strike down longstanding practices under the theory of substantive due process with skepticism.” Gotcha. I might have written it like this, though: “we’ve been demanding ransom for a while and the Supremes say things we’ve done for a while are okidokie so it’s all good.”

With regard to one of his substantive due process arguments, the court explains that, “contrary to Mr. Fox’s assertion, the procedure itself is not rendered constitutionally infirm for substantive due process purposes simply because some of the people who choose to pay the money may have been arrested without probable cause.” There she goes again with the whole “choose” thing. The opinion states, “[t]he risk of an erroneous deprivation is one of the factors that the Court weighs in the procedural due process inquiry, not the substantive due process inquiry.” This is a classic way for courts to get around the fact the system does truly awful things to innocent people. Re-categorize! Who cares if innocent people are incarcerated? Lawyers need to know the difference between substantive and procedural due process.

In the court’s defense, however, at least it addresses the point in the section where it felt it belonged. With regard to Mr. Fox’s procedural due process argument, the court explains, “the post-and-forfeit procedure is adequate to satisfy procedural due process concerns.” Mr. Fox apparently hadn’t alleged the law violated any “fundamental principle of justice,” as the court doesn’t see anything unfair “about being given the choice to pay a reasonable fine to resolve the charge of a petty offense, particularly where the payer has ninety days to think it over and change his mind, and the payment, once final, does not result in a record of conviction.” The emphasis is mine, not the court’s, and that quote shows that, in the end, it all comes back to the fact the court thinks it’s a choice. Our government is run by tough people like Judge Jackson who view the choice of whether to rot in jail or not rot in jail as a meaningful one when the cost is only $35.00. No wonder I’ve never worked for the government; I’m just not tough enough.

Finally, as that last quote suggested, the court really seems focused on the fact Mr. Fox didn’t ask to have the forfeiture set aside by the Superior Court of the District of Columbia despite the fact he had ninety days to do so. If people with guns kidnapped me for being a hurtful meanie to one of them and then released me in exchange for some cash, I certainly wouldn’t be champing at the bit to become involved with my captors again. I wouldn’t want to play their game. I would want to try to empower myself. I would want to strike back and make sure no one else has to endure what I did. Maybe I’d do something pretty close to what Mr. Fox did, and I might even employ some words that are stronger than “force,” “coerce,” “exact,” “deprive,” and “take” in the process. Sadly, though, I’m just a little cream puff. Tough judges would probably see right through my arguments and shoot me down because life and liberty mean nothing to them. Silly me. I suppose I’d just hope that Jamison might feel a little sympathy for me. That seems like something Mr. Fox doesn’t have, though I really can’t understand why.

The law he was convicted of breaking was section 23-12 of the Phoenix City Code, “Creation of unreasonably loud and disturbing noises prohibited.” It provides that “[s]ubject to the provisions of this article the creating of any unreasonably loud, disturbing and unnecessary noise within the limits of the City is hereby prohibited.” Section 23-11(A) in the same article, “Nuisances,” explains that “[a]nything which is obnoxious to health, or is indecent, or is offensive to the senses, or is an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property by any considerable number of persons, or unlawfully obstructs any public street, alley, sidewalk or highway is hereby declared a nuisance and may be abated by order of the City Court. Every person who commits or maintains a nuisance shall be guilty of a misdemeanor.”

The whole thing seems outrageous to me. I’d expect that what the bishop did would at most get him a letter from the homeowners’ association. I doubt there was some kind of prior order, as he wasn’t charged with violating one. I also wonder how many warnings he received, but more than anything, I’m confused by the reaction the case has gotten. Considering the facts of the case, I don’t understand why people aren’t making a bigger deal out of this.

Why aren’t local religious leaders up in arms? Hell, why aren’t national religious leaders up in arms? Is it because he isn’t affiliated with your typical Baptist, Methodist, or Catholic church? Maybe no one here cares because other Phoenix churches don’t have bells. Maybe people don’t like the fact he uses prerecorded bells instead of the real deal.

Also, why aren’t Christian-values politicians complaining about this? Has our collective desire to have quiet little cookie-cutter neighborhoods finally triumphed over our supposed love of religious freedom?

It’s inconceivable to me that something as common and traditional as church bells could be considered a criminal nuisance. It even sounds like what he was doing was tasteful. In one video, some of the neighbors said they liked the bells. I can’t think of many class one misdemeanors where some of the victims have said they enjoyed and even looked forward to the crime. I also can’t think of many instances where I’ve seen someone convicted of a non-DUI first-time misdemeanor offense get a deferred jail sentence and a full three years of probation. That’s the maximum permissible term for the class of offense. It’s also twice as much as DMX got in his felony case involving aggravated assault on an officer. The court must have really wanted to make an example of poor Bishop Painter.

I find the court’s hand-written order to be especially problematic. There are plenty more Christian holidays than just Ash Wednesday, Palm Sunday, Good Friday, Easter Sunday and Christmas Day. A city court judge shouldn’t be telling a church which of its holy days are suitable for bell-ringing. The court also shouldn’t be telling a church when it’s appropriate to observe its traditions. Bell-ringing is probably appropriate more often than just every Sunday from 8:00 a.m. and 12:00 p.m. Also, how did the court come up with the two-minute rule? Where did it get the 60-decibel limit?

As some articles mention, section 23-15 of the City Code provides exemptions for city vehicles, excavations or repairs by the City or State at night, the use of amplifiers or loudspeakers for noncommercial public addresses, and ice cream trucks. Specifically, the law states as follows:

None of the terms or prohibitions of sections 23-12 through 23-17 shall apply to or be enforced against:
(a) Any vehicle of the City while engaged upon necessary public business.
(b) Excavations or repairs of bridges, streets or highways by or on behalf of the City or the State, at night, when the public welfare and convenience renders it impossible to perform such work during the day.
(c) The reasonable use of amplifiers or loudspeakers in the course of public addresses which are noncommercial in character, and which amplifiers or loudspeakers are not used in connection with any moving vehicle.
(d) The use of a hand-operated device producing not in excess of seventy decibels of sound, “C” scale, measured a distance of fifty feet from the instrument emanating sound from bicycles, pushcarts, or other vehicles, or from vehicles in connection with the sale or display of merchandise; provided, that such devices or musical systems:
(1) Shall be operated only while the bicycle, pushcart or vehicle is in motion;
(2) Shall play only pleasing melodies; and
(3) Shall not be played between the hours of 1:00 p.m. and 3:00 p.m., and between the hours of 9:00 p.m. and 10:00 a.m.

I was amused by the “pleasing melodies” part, but that’s another post entirely (I’m fairly sure that an ice cream truck playing Penderecki’s Threnody to the Victims of Hiroshima would be illegal, but I’m on the fence about whether the court would find the melodies in Schoenberg’s Verklärte Nacht pleasing). What I wondered after reading the statute was why the judge set more restrictive times and a lower decibel level than those permitted for ice cream trucks. Was that intended to be an extra little jab? Was the court letting the church know that it respected the church’s religious traditions less than it respected the tunes played by the neighborhood ice cream truck?

I wish I had more information about what happened, but from what I’ve read, it looks like this poor guy’s rights have been trampled in all kinds of different ways. I hope his attorney made a good record at trial and that Alliance Defense Fund writes a strong appeal. In the meantime, however, at least I’ll sleep well knowing Arizona authorities have solved all the serious crimes and can focus on things like this.

Rather than make my own case against the war on drugs, I’ll defer to someone else’s. There are plenty of smart people who have persuasively argued for legalizing all drugs, but this is definitely one of my favorite articles. Our failed war on drugs is one area where I have very little to add to what’s already been written.

If you agree, it probably means you haven’t had the good fortune of spending three years in law school. Those three years are essential if you want to learn the super-important lawyer skill of looking at something really clear and interpreting it to mean something different from what it obviously means. The most important lesson lawyers-to-be learn in law school is that constitutions, statutes, and rules don’t always mean what they say. Sometimes, they don’t even mean what they mean.

Nowhere are those important law school lessons more impressively put to use than when US and Arizona courts interpret our constitutional rights to a jury trial. According to the US Supreme Court, the US Constitution’s right to a jury trial “in all criminal prosecutions” guarantees you a jury trial only in those criminal prosecutions where you can be incarcerated for more than six months. Misdemeanors in Arizona are punishable by a maximum of six months in jail, so the federal right doesn’t apply. However, Arizona courts have generously decided that you can get a jury trial for some misdemeanors. According to the Arizona Supreme Court, the Arizona Constitution’s right to a jury trial “in criminal prosecutions” gives you a jury trial in misdemeanor prosecutions where the crime either 1) has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood or 2) is sufficiently serious. Makes sense, right?

When it comes to our jury trial rights, the courts really take essential law school lessons to heart.