Awaiting Orders

The Tulsa World reports that "medical leaders" are asking Oklahoma Governor Stitt to issue a shelter-in-place order.  The headline uses the word, "order," but the letter to the governor, signed by fifteen medical organizations, uses the word, "policy," rather than "order."  There is a significant difference between a governmental policy and an order directed to the citizens.  But since the letter urges the governor to follow the example of California Governor Newsom, whose shelter-in-place directive clearly "orders" California citizens to stay in their homes, I will assume these organizations intend for the "policy" to really be an order.

I hope Governor Stitt resists this and other urging to adopt an authoritarian role, ordering citizens about.  I'm pleased that he has stood firm up until now, but I would be more encouraged if he would state forthrightly that it is a moot question, since he does not possess the authority to order citizens about.  He is to take direction from the citizens, and not the other way around.  But instead, he has merely stated that the time is not right, which implies that he believes his office is indeed invested with such authority.

The "medical leaders" do not indicate in their letter from where the governor would derive such authority, but presume that he has it.  I thought it worth while to do my own search and analysis.  I will begin with the Oklahoma Constitution.  I will list what I see as the relevant provisions.

Bill of Rights, Sec. 1 - Political Power

All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it: Provided, such change be not repugnant to the Constitution of the United States.

All political power is inherent in the people.  Therefore the state government possesses only the political powers delegated to it by the people.

Bill of Rights, Sec. 2 - Inherent Rights

All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.

One cannot have liberty and be confined to one's home.  Confinement, whether at home or in a jail cell may occur, but only after due process of law -- not by decree by a single individual.  

Bill of Rights, Sec. 3 - Right of Assembly

The people have the right peaceably to assemble for their own good, and to apply to those invested with the powers of government for redress of grievances by petition, address, or remonstrance.

My right to peaceably assemble is obviously infringed if I am not permitted to leave my house.

Bill of Rights, Sec. 7 - Due Process of Law

No person shall be deprived of life, liberty, or property, without due process of law.

I am being deprived of liberty when I am confined to my home.  "Due process" is more than a process that you do.  It is more than a decree by the governor.  

Bill of Rights, Sec. 10 - Habeas Corpus

The privilege of the writ of habeas corpus shall never be suspended by the authorities of this State.

If I am confined, regardless of where it may be, and I am denied a right to review of that confinement by a court, then the writ of habeas corpus has effectively been suspended.  Notice that the privilege does not have exceptions for plague, war, alien invasion, or whatever very good reason the state's top politician claims to have.  The privilege shall "never" be suspended.

Bill of Rights, Sec. 30 - Unreasonable Searches or Seizures

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.

My person may not be seized without a warrant, or upon probable cause subject to judicial review.  A stay-in-place order would not be based on probable cause or a warrant, nor would there be an avenue for review.

Art. 4, Sec. 1 - Departments of Government

The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.

This means that the governor, as the chief executive, cannot act in a legislative role.  He can only execute those laws which the legislature (or the people) has enacted.  He cannot grant to himself the authority to order the confinement of the entire populace.  

Art. 5, Sec. 36 - Extent of Legislative Authority

The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.

This recognizes broad legislative authority -- broader that the authority granted to Congress under the U.S. Constitution.  This authority would still necessarily be limited by the State's Bill of Rights, including all those Sections reproduced above.  But because the legislature may use this broad authority to grant powers to the governor, I will review the Oklahoma statutes for any statutory authority for the governor to issue a shelter-in-place order.  That is what follows.

63 O.S. Sec. 1-504 - Quarantine

A. Whenever a local health officer determines or suspects that a person has been exposed to and may be incubating a communicable disease of public health concern, the local health officer may impose a quarantine upon such person and require such person to remain out of public contact and in the place or premises where such person usually stays. Notice thereof shall be given in accordance with the rules and regulations of the State Board of Health. It shall be unlawful for such person, or any other person, to violate the terms or conditions of the quarantine.

B. Whenever a local health officer determines or suspects that a person has a communicable disease of public health concern, the local health officer may impose isolation upon such person and require such person to remain out of public contact and in an adequate treatment facility or in the place or premises where such person usually stays. Notice thereof shall be given in accordance with the rules and regulations of the State Board of Health. It shall be unlawful for such person, or any other person, to violate the terms or conditions of the isolation.

C. District courts shall be authorized to grant injunctive relief, including temporary injunctions and temporary restraining orders, to compel compliance with a quarantine or isolation order issued by a local health officer pursuant to this section.

Notice that these quarantine powers are very limited.  They require determination, or at least suspicion, by a local health official that a person has been exposed to and may be incubating a communicable disease.  It does not grant to any health officer, or to the governor, the authority to quarantine healthy people for their own protection or the protection of others.  

Also notice that if someone refuses a quarantine directive, an injunction must be sought from a district court to compel compliance.  

63 O.S. Sec. 1-505 - Removal of Diseased Persons

A local health officer may cause any person in his jurisdiction, found to be infected with a communicable disease, to be removed to a hospital or other place for the reception of infected persons, unless such person be sick in his own place of residence or cannot be moved without danger to his life.

A person "found to be infected" may be removed.  Once again, there is no authorization for suspending the liberty of healthy individuals. 

I acknowledge that my review of the Oklahoma statutes was not a thorough one, and I may have missed an additional grant of authority to the governor, but nothing I found would support a "stay-in-place order."  If the "medical leaders" who are writing to the governor are going to urge governmental action rather than medical action, they need to be prepared to identify the source of the governmental authority they want flexed.  I don't see it.  If the governor does not have the authority to issue a stay-in-place order, it is not relevant whether such an order would be advisable, and it would be a fearful usurpation for the governor to act without the authority.  

Facebook took down my post

Here is my Facebook post regarding the New Zealand shooter's manifesto that got taken down for violating Facebook's Community Standards:

I’ve read at least a dozen articles that reference the New Zealand shooter’s manifesto.  They all follow the same pattern --  they include selective quotes, express a conclusion as to the shooter’s motivations, but provide no links to the manifesto for the reader to follow to judge for himself or herself.  The implication is that only journalists are wise and prudent enough review the manifesto.  It is not for us patients and delinquents.   

I became frustrated enough to go searching for the manifesto on my own.  Finding it was more difficult than I thought.  I didn’t find it posted on any mainstream news sites, but mostly on obscure sites that give off a racist aura.  For that reason, I’m not going to post a link, but if you want to read it for yourself, you can try searching for “the great replacement towards a new society.”  I hope it is unnecessary to emphasize that I am not suggesting that people read the manifesto because I agree with the contents.   

I’m not going to do what the journalists and columnists do, which is to try to neatly place this guy into a political category, but if all you’ve read are articles summarizing the manifesto, you’ll probably be surprised by some of the actual contents of the manifesto, such as the condemnation of conservatives, capitalism, free trade, and industrialization, and the praise for a minimum wage, unions, environmental protections, and communist China.  The overall nasty theme, though, is that races and ethnicities should not mix.  All of his other views are in service to that theme. 

 When I received the notice that my post was taken down, I thought perhaps it was due to a bot that got triggered by my inclusion of the full title of the manifesto, so I clicked on the button to request a review of the decision.  But several days later, I received a second notice, informing me that my post had been reviewed and the original decision stands.  There is no option that I see for requesting further review or explanation. The nameless reviewer did not cite the specific "community standard" that I violated, nor explain the specific reason for the decision.  So I can only speculate.  

One possibility is that Facebook has decided to prohibit posting any link to the manifesto because it promotes violence.  (In New Zealand, linking to the manifesto has been outlawed.)  Although my post does not contain a link, perhaps giving a suggestion as to how to search for the manifesto was considered close enough.  But Facebook does not appear to be blocking media posts such as those by the Washington Post and the New York Times, which not only discuss the manifesto, but also contain extensive quotes from the document, which my post does not do.

 The only other possibility I can think of is that Facebook objects to the particular facts that my post highlights because they are inconsistent with a political narrative that Facebook favors.  Or it could be a combination -- the initial take-down notice was automatically generated by a bot, but the human reviewer simply didn't like the perceived message of my post.  If so, it is difficult to reconcile the decision with the following statement appearing on Facebook's "Community Standards" page:

Our mission is all about embracing diverse views. We err on the side of allowing content, even when some find it objectionable, unless removing that content can prevent a specific harm.

Facebook is not a governmental entity, so it is not bound by the First Amendment.  But if it is going to have stated policies that echo First Amendment principles, and then repeat those statements at public hearings, they should not be selective in the application, which gives the impression of viewpoint discrimination.  Facebook does not have paid subscribers, but it does have users who trade information for the services that they receive, and based on that consideration, can potentially demand adherence to the stated policies.  Facebook also has advertisers who make ad placements based in part on Facebook's stated policies.  If Facebook knowingly follows some other unstated policy, that would constitute fraud.  That's my free legal advice for Facebook.

Rigged

During last night's presidential debate, Chris Wallace asked about Trump's recent accusation that the election is "rigged." Clinton responded:

So that is not the way our democracy works. We've been around for 240 years. We've had free and fair elections. We've accepted the outcomes when we may not have liked them. And that is what must be expected of anyone standing on a debate stage during a general election.

Has the Gore v. Bush election of 2000 been completely forgotten? I still hear Democrats refer to it as a stolen election, or even a coup.

Al Gore recently spoke with HC at a rally in Florida. I found this in a NYT account of the event:

"Now, for those of you who are younger than 25, you might not remember the election of 2000 and what happened here in Florida,” [Gore] said, addressing students from Miami-Dade College, among others in attendance. “For those of you older than 25, I heard you murmuring just now.” 

Soon, a chant rang out: “You won!”

Nathan's Shell Game

Do you know how a "shell bill" works?  If the party in power wants to pass a bill quickly and without too much scrutiny by the voters, an existing bill that was introduced earlier in the legislative session, but never taken up, will be gutted and the smelly legislation inserted.  Often, several innocuous sounding bills will be introduced early in the session just so they'll be available later if such a need should arise.  Those are shell bills.

That was standard procedure during the many decades that the Democrats controlled the Oklahoma legislature.  Now that the Republicans are in control . . . well, standard procedure continues.  It is disappointing, but not surprising. 

What is surprising is that State Senator Nathan Dahm (R) has recently engaged in the practice.  This time, the shell bill was HB2416.  When it was originally introduced in the House in February, it merely modified the termination date of the State Board of Examiners of Certified Shorthand Reporters.  Not much to see there, right?  

But Sen. Dahm proposed an amendment to the Senate version of the legislation, which seeks to remove Pawnee County from its current 14th Judicial District that it shares with Tulsa County, and moves it into the 10th Judicial District with Osage County.  It might still not seem like much to shout about, although it certainly has nothing to do with shorthand reporters, but it certainly got a rise out of the judges and members of the county bar associations in Pawnee and Osage Counties, who were not consulted before the new version of HB2416 was voted upon and passed by the State Senate. (This article in the Cleveland American provides further details, although it is incorrect when it suggests the legislation has not yet been considered by the Senate.)

To more fully appreciate the depth of the deception, follow this link to a page on the Oklahoma legislature's official website, reporting the passage of the bill in the Senate.  It shows that the bill passed by a vote of 36-10, and that the title of the bill is: "Sunset; State Board of Examiners of Certified Shorthand Reporters; re-creating Board; modifying termination date." 

Computerized Finger Imaging for Voter Registration

New Oklahoma House Bill 2592, introduced by Rep. David Perryman (D), would require all new voter registrants in Oklahoma to have their fingerprints scanned and entered into database. The database can be accessed by law enforcement by "court order."  

I have not heard Perryman comment upon his bill, or explain his motivation, but it appears his bill is intended to provide a means for those without voter id to still vote. Such people already have other options, so this seems to me to be a solution in search of a problem.

This opinion piece by Rep. Perryman from 2014 provides some clues. In it, he seems to be critical of the State of Oklahoma's reluctance to comply with the federal Real ID Act of 2005, while also criticizing Oklahoma's new voter id law. Maybe he just really likes government databases.

My civil asset forfeiture story

Yesterday evening, while enjoying a plate of carnitas at Chimi's in Tulsa, I listened to State Senator Kyle Loveless (R-OKC) describe his bill to reform civil asset forfeiture laws in Oklahoma.  Senate Bill 838 would put a stop to Oklahoma law enforcement agencies seizing and keeping people's property without going to the trouble of convicting -- or even charging -- the property owners with a crime.  If you are unfamiliar with the practice of civil asset forfeiture, then you should become educated. 

My education came hard and fast when I took on my one and only forfeiture case four years ago. 

Police arrested and charged a man with manufacturing a controlled dangerous substance.  At the time of the arrest, the police also seized a pickup and a new Harley-Davidson motorcycle that were parked in front of the house where the arrest occurred.  Also seized were two rifles and two handguns, which were found inside the house.  

The district attorney filed a Petition to Forfeit Property Seized During Arrest for Controlled Dangerous Substance.  As is the practice in asset forfeiture cases, the property items themselves were listed in the case caption as the "Defendants."  The property owner(s) were not named.  (Inanimate objects tend to put up less of a fight.)

I was hired to represent the motorcycle -- sort of.  The motorcycle was actually titled in the names of the suspected drug dealer and his elderly mother.  The mother's guardian hired me to defend against the forfeiture of the motorcycle.  The other inanimate objects were on their own.

I learned that the motorcycle had been purchased by the mother at the urging of her precious little boy.  She made the down payment, signed the note to the bank, paid almost all of the installment payments, and paid all of the insurance premiums.  Nonetheless, she was about to lose the motorcycle because, according to the Petition:

found in close proximity of Manufacturing of Methamphetamine . . and believed to have been utilized in exchange for, and to transport, or were otherwise utilized in connection with said controlled dangerous substances.

But what the Petition did NOT allege was that any controlled dangerous substance was actually found.  All that was found was "drug paraphernalia," including some scales.  Nothing was found on the motorcycle, nor was there any evidence that the motorcycle had been used to transport any controlled dangerous substances.  

I filed an answer to the Petition, explaining that the mother was the one who purchased the motorcycle, and that the bank was the effective owner, since the loan balance was more than the resale value of the motorcycle.  Even if the motorcycle had been used "in exchange for" or "to transport" drugs, it is unlikely that Mom was aware of it, since she had Alzheimer's and was house-bound.

I thought the filed answer would be enough to shake the motorcycle loose from the district attorney's grasp, but it was not.  He pressed ahead.  This means that he was taking the position that he could take my client's motorcycle simply because it was parked in front of a house in which the police found some scales.  Sound reasonable?

The law he was relying upon provides:

All monies, coin and currency found in close proximity to any amount of forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the importation, manufacture or distribution of substances, which are rebuttably presumed to be forfeitable under the Uniform Controlled Dangerous Substances Act. The burden of proof is upon claimants of the property to rebut this presumption . . .

As bad as this law is, notice that it applies only to money -- not property in general, such as a motorcycle.  Also, what is "close proximity"?  Is a motorcycle parked in the driveway in close proximity of the heinous scales found inside?

Another portion of the law requires that the district attorney give notice of the forfeiture petition to any known lien-holder.  But even though I identified the bank and included the loan number in my answer, the district attorney refused to give notice to the bank.  (Bank lawyers put up more a fight than inanimate objects.)

We had a hearing.  Once I convinced the judge that the motorcycle was effectively owned by the bank, the district attorney cut bait.  He voluntarily released the motorcycle from the forfeiture petition, but still refused to concede that he was in the wrong.  He insisted to the court that he could still take the motorcycle if he wanted to.  I had the motorcycle, so I quit arguing.

The pickup and the other items were still forfeited.  The owner had a public defender, but since the forfeiture was a civil action, the public defender would not lift a finger to help save the property.  The owner was unrepresented and overwhelmed.  

Sen. Loveless is being vilified all across the state by sheriffs and district attorneys for trying to reform this system.  According to them, there is nothing to see here, so move along.  

Return of the Wasps

The wasps are back. This is a horror show that gets replayed every fall when a new generation of wasps emerge from their nests and start buzzing outside my 5th-story office window. “Horror show” might sound like an exaggeration, but try to imagine this scenario.

You are working at your desk when movement at the corner of your vision causes you to glance up at your office window. You notice a couple of wasps clumsily flitting about on the other side of the glass. You return to your work.

More movement. . . and tapping. You look up and see a dozen wasps, a few of which are repeatedly bumping into the glass. [tap . . tap . . tap] Your ears immediately become attuned to this sound. Can a certain fury now be detected in the darting movements of the wasps, or is this impression caused by the number of wasps now assembled? No matter. They are on the OUTSIDE of the glass. You are on the 5th floor and so the windows do not open, nor are there any other openings. You return to your work.

The sound of wings. You look up to see eleven wasps on the outside of the glass . . . and one on the inside. The ones on the outside seem to want in, and the one on the inside seems to want out. But this is impossible. How can a wasp pass through solid glass? What numinous abilities do these wasps possess? You ponder the question, but then convince yourself that the appearance of this one wasp is a fluke. It must have gotten inside the building by some ordinary means and then it flew down the hall and into your office. He seems preoccupied with the glass, so there is no cause for concern. You can kill him later. You return to your work.

The harmonious sound of multiple sets of wings. You look up to see nine wasps outside of the glass and three on the inside. Two of the three are tapping against the glass, wanting out, but the third is flying a diagonal path across your office airspace. His thoughts and motivations are his own. Now is the time for panic felt deep, coupled with irrational speculations as to entomology and the supernatural. Work is abandoned.

This has been my experience for the past five years. The mystery as to how the wasps get inside disturbs me almost as much as the wasps themselves. The building’s super has theorized that they get in through the light canisters in the ceiling, but this makes no sense to me. Why would light canisters have a direct avenue to the outside? If so, why can’t the openings be plugged? The super has made multiple attempts to combat the wasps over the years, including filling the building with deadly poisons (perfectly safe for us worker drones, of course), but the wasps seem unfazed. The super has now surrendered – the building is the wasps’ domain. We are expected to live and work by their good graces.

When the wasps return, the transition period can be difficult, but I am soon given over to acceptance and submission. The wasps fly about the room, alight on the spout of my water bottle, and crawl on my desk. But my clients, who visit my office and encounter the wasps for the first time, are less staid in their reaction. It is distracting to try to discuss their cases with them while their eyes track the movements of the wasps in the room. They flinch, duck, and sometimes vocally express their displeasure with the wasps. Acceptance takes time, I suppose.