Lowering the Bar

On Second Thought, Don't Pick Up Any Hatchet-Waving Hitchhikers at All

You may remember Kai, the oddball hitchhiker who became a hero of sorts after he saved a woman in California from an attacker by going after that guy with a hatchet he happened to be carrying. See "Axe-Wielding Hitchhiker Dude Saves Lady from Fake Jesus" (Feb. 4, 2013). At the time I thought, "wow, heroes can turn up in the unlikeliest places," and remarked, "For once the dude with the hatchet is the good guy" and also "I still would not recommend picking up a hitchhiker who is waving a hatchet, but if you must do so I hope it turns out to be Kai."

Yeah, so, he killed a guy.

Or at least that's what authorities in New Jersey believe. Kai (that's not his real name, but I will go ahead and keep using it) was arrested on Thursday and charged with killing a 73-year-old man he had apparently met in Times Square. The man was found at his home in New Jersey. Kai was linked to the man through text messages they had exchanged, and he was spotted in a Starbucks on Thursday, the same day police identified him as a suspect. Given his former celebrity, it didn't take too long to find him. "Being on YouTube too much," said the police commissioner in Philadelphia, where Kai was arrested, "is not necessarily a good thing."

Also not a good thing: picking up hitchhikers who are waving hatchets, or look like they might have a hatchet, or any hitchhikers, really. I did have the basic recommendation right, at least.

Has Justin Bieber Abandoned His Monkey?

According to Rolling Stone, Justin Bieber's management company has told the shelter currently housing Mally, his 20-week-old capuchin monkey, that Bieber doesn't want the animal and that it should be placed in a zoo. Mally was quarantined by German customs officials in March after Bieber arrived in that country without the necessary monkey paperwork. It is apparently not illegal to bring monkeys to Germany as long as you follow the rules, although the answer to that question has not been very easy to locate.

Google should know by now not to ask me these questions

But the Biebs doesn't follow your "rules," so the monkey was confiscated, and he also doesn't go back to pick up his monkeys, so this one's been stuck in a German shelter ever since. Bieber left Germany long ago for the next leg of his tour (he's currently somewhere between Johannesburg and San Diego), but Mally is still in Munich.

According to some reports, Justin originally had his people call the monkey's people and say that he wanted the monkey back, but Rolling Stone now says they have told the shelter to send it to the zoo. This might or might not be in response to criticism from animal-welfare groups that have argued monkeys should not be kept as pets at all, much less dragged along "on a world tour as a fashion accessory for a pop star," as the shelter's director put it. "It is madness," he continued. "But sadly, stupid things rarely go [sic] punished." Unfortunately true.

Speaking of stupid things being punished, Bieber may owe up to $50,000 euros for the monkey-related customs violation, on top of the "several thousand dollars" the shelter is claiming as the cost of caring for the animal over the past six weeks. (I guess it is used to first-class treatment.) Presumably he would have to pay that if he does decide to pick up his monkey, which a customs spokesman said he must do by midnight tonight.

In other news, a recent poll found that "Americans are united in their dislike" for Bieber, with only 20 percent saying they viewed him positively versus 54 percent negatively. To put that in some perspective, his positive rating is only seven points higher than convicted woman-puncher Chris Brown's. In fact,

Bieber was the only artist who had a majority unfavorability rating across all party lines – a majority of Democrats (23-54), Republicans (17-52), and independents (18-56) all reported negative views of the singer.

That's probably why only eight percent said they'd most like to see him as President (their choices were limited to music stars), one point less than Lady Gaga. Monkeygate is not going to do him any favors in that regard, but then 2016 is still a few years away.

Does Eric Holder Know?

Nope. He does not:

 

Of course, neither did Alberto Gonzales, or if he did, he didn't recall:

 

Now, I don't know whether it's worse to not know anything or to not recall anything. I mean, if you don't know, you don't know, but if you don't recall, then you might know but not recall knowing or you might not know and not recall whether you know or not. Although I guess if you say you don't know, we don't know whether you never knew or whether you once knew but don't know now, which would be the same as not recalling. On the other hand, saying you don't know could potentially be disproven, like by a document showing you did know at the time you said you didn't. But if you say you don't recall, and then it turns out you knew, you could still just say you didn't recall. So I would say that saying you don't recall is worse because we can never really know whether you do or not.

I'm glad I could clear that up, although if they're both lying their asses off, which seems likely, it doesn't matter.

Assorted Stupidity #52

• When attorneys get carried away at a press conference: "I have a client who is not only not guilty, he is truly 100% innocent," said the attorney for the man initially charged with sending ricin to federal officials. She was right both times, as it turned out.

• According to this report, a man in Homer Glen, Illinois, sued a cat owner for over $50,000 after said cat allegedly "viciously attacked, bit and clawed" the plaintiff while he was cat-sitting. But did this one really happen? The report mentions Facebook accounts matching the plaintiff and the defendant and suggesting they are married, and this one claims they still live at the same address, but nobody seems to have been able to confirm any details. (The court's website is not helpful.) I am skeptical.

• This cat-attack lawsuit probably happened. But no promises.

• This one did happen, in 2003, and the demand in that case was $1.5 million. After a trial that somehow lasted a week, the plaintiff recovered zero dollars and was later required to pay the defendant's attorney's fees. Anyway, if you're looking for a cat-attack-lawsuit story, and who isn't, I'd go with this one if I were you. No need to make one up.

• According to the ABA Journal, the judge hearing O.J. Simpson's state habeas appeal has ruled that Simpson "may have one hand free in order to take notes and sip from a water container." Will he try to put a glove on it in desperation before the week is out? Stay tuned.

• Speaking of hands, raise one of yours if you thought you'd ever see a picture of Barack Obama next to one of Richard Nixon in an op-ed by the lawyer who defended the New York Times in the Pentagon Papers case, in which the lawyer says that Obama is in the process of "succeeding where Nixon failed." Granted, that would have been a hell of a prediction, so keep your hand up if you were anywhere in the ballpark. Okay, now put it down, because you're just lying.

• Previously: "President Receives Transparency Award in Closed Meeting," Lowering the Bar (Apr. 1, 2011) (still not an April Fool story).

Naked TSA Protester's Appeal to Be Heard Tuesday

As you may recall, John Brennan took off all his clothes last April at an airport checkpoint in Portland to protest being hassled by the TSA (they got a false positive on that swab test), and was then charged with indecent exposure. See "TSA: Wants to See You Naked, Complains When You Get That Way," Lowering the Bar (Apr. 18, 2012).  He was acquitted in July after a state judge found that his action was "symbolic nudity" of the kind that Oregon cases have held is constitutionally protected.

Well, if he was acquitted on constitutional grounds, why does he need to appeal? First, because he's not appealing the state criminal charge, he's appealing a $1,000 civil fine the TSA imposed on him; and second, because the TSA cares more about its own authority than about the Constitution. 

Who's interfering with whom again? (image: KPTV)

The TSA has charged Brennan with violating a regulation that says "No person may interfere with, assault, or intimidate screening personnel in the performance of their screening duties." 49 C.F.R. § 1540.109. Brennan didn't assault anyone, and if the TSA can be "intimidated" by a calm, motionless naked man, then God forbid they should ever have to deal with an actual terrorist. So they are arguing that he "interfered" with screening operations when he took his clothes off. 

This report speeds up the video and makes it easier to see that the only thing "interfering" with screening operations was the TSA agents' decision that it was more important to hassle him while running around finding stuff to shield the public from his nudity than to just clear him and get back to their jobs. This is the same argument some cops use when they arrest people for taking videos or pictures of them doing something questionable, and it's bogus here too. Since photography is not a crime, police should hardly be able to interrupt what they were doing to hassle the photographer and then claim he interfered with them because of a decision they made. That point is even more valid here, since as previously discussed TSA agents have no law-enforcement function. None. Once it was clear that Brennan was not carrying any weapons or explosives—or at least, there was only one place left he could have been hiding them, and they don't look there anyway—the TSA's role ended and it should have sent him on his way. This "interference" argument is just bootstrapping, and is being used as an excuse to punish someone who challenged TSA authority.

There is a previous case in which this regulation has been challenged on First Amendment grounds, the argument on which Brennan prevailed in state court. Rendon v. Transportation Security Admin., 424 F.3d 475 (6th Cir. 2005). In that case, Rendon also protested TSA bullshit, which he loudly and belligerently declared to be bullshit while still at the checkpoint. As in Brennan's case, the TSA agent then stopped his screening line to call his supervisor and then a police officer, and the agency later argued that this qualified as "interference." Rendon argued that the regulation was unconstitutional because, just as in his case, it allowed punishment based on speech (profanity is still protected speech if you're using it to protest). He lost.

The Sixth Circuit held in part that the regulation was not overbroad because it only prohibits conduct that "interferes," and is interpreted to prohibit only conduct that poses "an actual hindrance to the accomplishment of a specified task." I don't buy that result. Again, I don't see how Rendon or Brennan hindered the screeners. Had the TSA just cleared them, there'd have been no reason to stop the line. In both cases the TSA stopped the line, and later punished the traveler, just because the agent didn't like the traveler's attitude, not because he was hindering them. That should be unconstitutional.

But Brennan and his lawyer, Robert Callahan, won't be able to bring up the Constitution tomorrow, because the first step in challenging the fine is a hearing before an administrative law judge, and for a reason that's still not clear to me, the ALJ will not or cannot rule on constitutional issues. The proceeding may be limited to factual determinations. (There will be testimony -- in fact, I am told that the TSA has seven agents and two police officers on its witness list. All of whom will likely just say "the naked man was interfering," or words to that effect, over and over.) The con-law defenses will have to be raised on appeal if Brennan loses this week.

The hearing is Tuesday at 9 a.m., at the U.S. Bankruptcy Court in Portland (ninth floor, Courtroom 2). The TSA persuaded the judge to keep out cameras, but the hearing is still open to the public. If you do attend, please wear clothes. You may have a First Amendment right to be naked, but let's fight one battle at a time, please.