23 July 2014

Tom Reed II (R-NY): RINO-Style

Stephen Kershnar
Mediocre Congressman: Tom Reed II
Dunkirk-Fredonia Observer
June 30, 2014

Tom Reed II is the Congressman for New York’s 23rd congressional district. The district includes not only Chautauqua and Cattaraugus Counties, but also a number of other counties, including the Corning and Ithaca areas.

When we consider his record, he is your standard-order mediocre member of Congress. He is a borderline Republican-in-name-only (RINO) who is coming perilously close to being a repeat of the perennially disappointing RINO Amo Houghton (R-NY). No indication whether Reed is a good at tickle fights as was his predecessor Eric Massa (D-NY). Clearly, Reed’s RINO ways put him on the edge of deserving a primary challenge. Lucky for him, he is so much better than the Democratic clowns he has and will face that one has no choice but to vote for him.  

His recent grades are quite poor, so he’s been put on double secret probation. He got a 67 (C+) from the National Taxpayer’s Union (a pro-taxpayer’s group), a 49 (F) from the Club for Growth (a group supporting economic freedom), a C+ from NumbersUSA (an immigration-issues group opposing amnesty and the torrent of poor-and-unskilled immigrants), and a 0 (F) from the American Civil Liberties Union (an group opposing government intrusion in people’s lives in non-economic areas). He even got a 52 from the American Conservative Union, 24 points below the 2013 average for Republican members of the House.

Consider the most important issue Congress faces, the federal government’s out-of-control interference with our lives. On the single most important issue he has faced, he shined. He repeatedly voted to repeal and defund Obamacare.

On taxes, spending, and the debt, he has been decent but ran when it counted. In Fall 2011, he supported the Budget Control Act of 2011, which increased the debt by $2.1 trillion. In return, Congress agreed to slow the rate of growth (that is, to increase spending, but do so more slowly than the Congressional big spenders wanted). This was enforced by an automatic sequestering discretionary spending.

In Fall 2013, however, after initially voting to fund the government only if it defunded Obamacare, he then ran for the hills when there was a pitched battle over the country’s fundamental direction. He voted to fund the government at its current level, break the sequester-spending cap, and further run up the debt. In running for the hills, he voted with the majority of Democrats and against the majority of Republican for the same old same old. He apparently thinks that taxpayers from the 23rd district either wanted him to vote with Chuck Schumer and Charley Rangel or wouldn’t remember that he did. We remember. Following his decision to cut and run, as far as I can tell, Reed said nothing when fellow RINOs Chris Collins (R-NY) and Peter King (R-NY) dumped all over Tea Party Republicans. 

Reed defended himself on the basis that the Republican majority in the House had a poor strategy. But contra Reed and Collins, the RINO strategy of repeatedly funding government spending at its currently obscene level, kicking the can down the road on the debt, and allowing the Democrats to stealthily raise taxes is not a strategy, but surrender. Every year of surrender makes supersized federal government and rising tide of debt harder to reverse.   

To his credit, Reed did try to rein in welfare by limiting welfare payments to a reasonable period. Specifically, he tried to put a 5-year limit on one type of welfare (Temporary Assistance for Needy Family).  This program was intended to provide temporary cash benefits to poor families, but has degenerated in many states to indefinite payments. When linked with exploding numbers of people on Medicaid (1 out of 5 Americans), food stamps (1 out of 7 Americans), and the Earned Income Tax Credit (welfare masquerading as a tax refund), Reed’s effort is noteworthy.  

On the most important foreign policy, war, Reed has a mixed record. In 2011, he voted against putting ground troops in Libya without Congressional approval. This is good as it shows that he believes that a President should not unilaterally commit the U.S. to a ground war. The same is true for the air war, but one cannot expect too much from sorry lot that comprises Congress. On the other hand, he voted against pulling U.S. troops out of Afghanistan. This despite the fact that, as Dennis Kucinich (D-OH) pointed out, it is a terrible idea to leave troops there without an exit plan and with it then costing roughly $100 billion a year. The need to stop pouring American blood and treasure into Afghanistan and Iraq was as obvious in 2011 as it is now.  

On the crucially important issue of stopping the flood of relatively uneducated and unskilled immigrants, especially illegal aliens, Reed voted reasonably well despite the fact that NumbersUSA gave him a C+ in 2013-2014 and a B for his career. He voted to reduce the enticements for amnesty and voted for a minor bill that rejected a rare type of amnesty. He is best seen as earning an incomplete as he hasn’t taken a hard vote on issues such as citizenship for illegal-alien babies (anchor babies) and reducing chain migration, which favors seemingly endless family-based immigration over skills-based immigration.  

On liberty-related issues, his record is poor. In July 2013, the House voted on whether to rein in the National Security Agency’s (NSA) ability to collect vast amounts of data on U.S. citizens. The House was voting on whether to stop the NSA from monitoring citizens’ internet activity and phone calls. After the head of the NSA lied to Congress, the country only found out about this when Edward Snowden blew the whistle. Tom Reed along with Brian Higgins (D-NY) and Chris Collins (R-NY) voted against the bill, thereby showing they have little respect for the Constitution in general and the Fourth Amendment in particular. Side note: Higgins’s abysmal performance continues.

Like any slippery politician, Reed had some lame explanation for his vote, but when it got down to brass tacks, he voted for the NSA over American liberty. In Reed’s defense, he recently voted to end NSA’s warrantless searches of the contents of Americans’ emails and browsing history and its adding a way to bypass encryption software designed to protect Americans’ right to privacy.

Reed has also announced that he is opposed to legalizing marijuana and against abortion and gay marriage.


Reed benefits from yet another weak opponent. Martha “Blank Slate” Robertson appears to not want to announce her positions on the issues. Given the dominant worldview among Democratic politicians and given that she is at best a low-rent candidate, you can bank on her support for Obamacare, tax-and-spend extravagances, greater debt, more welfare, amnesty for illegal aliens, more foreign interventions, and so on. As a candidate she earns an F and that is before style-points are taken off. We deserve a better choice.   

09 July 2014

Unreasonable Searches and Cell Phones

Stephen Kershnar
Riley v. California: The Fourth Amendment Is Not Dead Yet
Dunkirk-Fredonia Observer
July 5, 2014

The Fourth Amendment to the Constitution requires government searches to be based on probable cause of a crime and to be authorized by a judge via a warrant. In a recent case, Riley v. California, 573 U.S. ____ (2014), the Supreme Court indicated that the Fourth Amendment is still alive, albeit on life support. Even in a badly divided court, the California’s and Obama administration’s arguments were so outrageous that all nine justices joined together to smack them down.

Two precedents were relevant here. In Chimel v. California, 395 U.S. 752 (1969), the police arrested a person in his home and then, without a warrant, searched his house and garage. The Court threw out the results, saying that it was unconstitutional because it did not protect officer safety or preserve evidence. Later in United States v. Robinson, 414 U.S. 218 (1973), after arresting Robinson, the government searched his pack of cigarettes and found heroin capsules. The Court allowed the search. It held that the Constitution permitted the police to search personal property on or near people who are arrested. In general, it held that the constitutionality of a search of a class of objects depends on the balance between Americans’ interest in privacy and the government’s interest in protecting police safety and preventing evidence from being destroyed. The holding in Robinson is mistaken as the Court could have allowed such items to be removed and then required a warrant to search them.

In the recent case, Riley, California and the Obama administration wanted to allow the police, after arresting someone, to search the entire contents of his cell phone without bothering to get a warrant. The state argued that searching through a cell phone was no different then searching through Robinson’s pack of cigarettes. It also argued that cell-phone searches are necessary to protect officers from harm and to prevent evidence from being destroyed. California and the Obama administration claimed that the Constitution permitted the police, after making an arrest for a minor offense (for example, driving without a seatbelt or jaywalking), to search the arrestee’s cell phone. Such a search could include looking at his emails, texts, photographs, bank records, medical data, calendar, history of internet searches, and travels (via GPS data). As Michelle Alexander points out in The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012), nearly everyone violates some law during the day. As a result, this view guts the Fourth Amendment.

The Court ruled that such a search did not fit under the exceptions and, in any case, the police could physically search the phone (for example to see if there is a razor blade hidden between the phone and its case) and in an emergency situation could search it without a warrant.

The state and federal government argued that searching the cell phone was necessary to protect the police because the arrestees’ friends could use the cell to head to the crime scene and ambush the police. The Court dismissed this ridiculous claim as neither the state nor federal government could come up with a single incident where this happened or any other evidence suggesting that the failure to search the phone’s content endangered the police. In any case, if this were a real concern, then the emergency exception would allow such a search.

The state and federal government argued that without a search the content could be remotely wiped out. The Court noted that, again, cases of this were very rare (limited to two anecdotes) and, in any case, easily prevented by turning the phone off, removing its battery, or in any case just putting it in a cheap bag made of aluminum foil (Faraday bag).

The Court noted that there are important privacy interests here. First, the amount of data on a smart phone is incredible and could be used to track much of a person’s life. If the government has an individual’s pictures (with dates and locations), movements (via phone GPS), records of his calls, texts, and emails, medical and bank records, and history of internet searches, then it knows a hell of a lot about his life. The Court pointed out that a search of someone’s cell phone might provide more information about him than a search of his house. Second, such cell phones are widespread. One poll, the Court cited, found that nearly 75% of smart phone users report almost having the phone near them almost all the time. These searches could easily become ubiquitous.

This is not the first time the Obama administrations has shown it hates the right to privacy. The Court itself has only limited respect for it and, sadly, it is the conservative wing that is at fault here. In Maryland v. King, 569 U.S. ____ (2013), by 5 to 4, the Supreme Court allowed the police to take the arrestee’s DNA via cheek swab without a warrant, thereby allowing the state to add many more people to a national DNA database. This invasion can be done even for minor crimes and mistaken arrests. As Justice Scalia in Maryland pointed out, this decision would have outraged the nation’s founders, men such as James Madison and Thomas Jefferson.  

In United States v. Jones, 565 U.S. ___ (2012), the Obama administration argued that without bothering to get a warrant, it could put GPS tracking devices on someone’s vehicle to monitor its movement because, get this, it was not a search under the Fourth Amendment. All nine justices slapped down this monstrous idea.    

In Florence v. Board of Chosen Freeholders, 566 U.S. ____ (2011), by a 5-4 vote, the court allowed the police to strip-search arrestees before admitting them to jail and even if there is no reason, repeat no reason, to suspect they are carrying contraband. This despite the fact, as Justice Breyer pointed out, in one New York study, of 23,000 people strip-searched only 1 had contraband. A similar study in California found only 3 out of 75,000 had contraband. In any case, Breyer noted, such searches could have been done via pat-down or x-ray.

The National Security Agency’s policy of searching of cell phone calls, texts, and emails, including pen registers (numbers dialed and addresses to which messages were sent) and content, is well-known and bitterly defended by the Obama administration.


Having just watched the July 4th celebrations, I wonder what celebrants think of a government that thinks it is too much effort to get a warrant to search your phone, DNA, and anus (even for the most piddling or obviously mistaken arrest), put GPS trackers on your car, and get your cell phone and email pen registers and content. I know what Madison and Jefferson would have thought.  

25 June 2014

Filming the Police and the Blatant Disregard for the Law in Buffalo

Stephen Kershnar
Buffalo Police Ignore The First Amendment
Dunkirk-Fredonia Observer
June 23, 2014

There is a recent case in Buffalo that illustrates how nationwide, police are trampling on a basic constitutional right. The case involved SUNY-Fredonia philosophy professor Leonard Jacuzzo. Full disclosure: Jacuzzo is a long-time professor in my department.

The Buffalo News reported that on June 15, 2013, Jacuzzo was walking home and complained to a bouncer at a bar (Toro Tapas Bar on Elmwood) about the crowd spilling out onto the sidewalk making it necessary to walk into the street. The bouncer was an off-duty police officer with a dark polo shirt that had “police” on the back and the Buffalo police logo in the front. The bouncer told him that he should leave or he would be arrested. When Jacuzzo asked “On what charge?” the officer repeatedly shoved him, even as he was walking away. Jacuzzo then called the police station to report the incident. Someone at the station told him that he could take up the matter with the bar’s owners or file a complaint.

The next night, patrons again spilled out of the bar, so Jacuzzo took a picture of the crowd with his cell phone and his flash went off. Three off-duty officers were present and one was sipping from a glass. When the three angrily confronted him, they demanded to know why he took a picture. He stated that he had the right to do so. They then demanded to know whether he was the one the one who called the police station the night before. After he said, “yes,” he was thrown to the ground. Knees were placed on his chest and ear and his phone was wrenched from him. He was then handcuffed and told he would be charged with obstruction. After being put in handcuffs, Jacuzzo claims, he was choked, slapped in the head, and one of his beers was opened with the suggestion that he should be charged with violating the open-container law.

A witness and former Jacuzzo student claimed that Jacuzzo was a mess. He tried to take his own phone record of Jacuzzo, but was told by one of the officers that he would could go to jail (presumably for taking pictures or video). His phone was then taken from him and the pictures deleted.

Jacuzzo was later charged with harassment, trespassing, disorderly conduct, and public drinking. The latter two charges were immediately dropped and the trespassing made no sense as he wasn’t inside the bar. Eventually, the remaining charges against Jacuzzo were adjourned in contemplation of dismissal.

In another Buffalo bar (Molly’s Pub), the off-duty police officers/bouncers were present and a patron was pummeled, kicked, and pushed down the stairs, causing him severe brain damage. One of the officers investigated for being part of the assault was already under investigation for slapping a video out of the woman’s hand and stomping on it. All this happened, The Buffalo News pointed out, despite the fact that it is illegal for police to provide security for bars (or other businesses involved in the sale or manufacture of alcohol). That is, the off-duty police officers for Toro Tapas and Molly’s were illegally moonlighting.

In yet another high profile case, The Buffalo News reported, Buffalo police officer John Cirulli knew that he had been recorded smacking a handcuffed defendant. He then insisted the citizen who recorded it erase the recording. The citizen convinced Cirulli it was erased, when it wasn’t.  

In 2011, a Rochester, New York woman was arrested for filming a police stop from her own front yard. As in so many cases, the woman was arrested for obstruction, with the officer making the ridiculous claim that her recording made him feel unsafe. The charges were promptly thrown out on First Amendment grounds.

In 2010, Adam Cohen, writing in Time, reported that a New York City police officer was videotaped going up to a man on the bike and shoving him to the ground. The officer claimed the cyclist was trying to collide with him, but the video showed this was a lie. Eventually, the officer was thrown off the force and convicted of filing a false report. This would have happened but for the recording.

Despite these activities, it is clear that in New York and 47 other states citizens are permitted to record police in public so long as they do not interfere with their work and do not do so secretly. This is likely true in every place in the U.S., regardless of state law, because the First Amendment protects the recording. In Glik v. Cunniffe, 655 F.3d 78 (2011), the First Circuit (federal appellate court for Massachusetts and neighboring districts) held that there is a constitutionally protected right to videotape police carrying out their duties in public. The court argued that gathering information about government officials in a form that can shared with others is an important part of allowing citizens to discuss how the government is doing its job. It noted that protecting this discussion is at the heart of the First Amendment. The court further argued that that filming police officers doing their jobs when on public spaces is just such a gathering of information. The court observed that this right has been widely recognized elsewhere, for example, by the 7th, 9th, and 11th  circuit courts.

Nor, the American Civil Liberties Union (ACLU) points out, can the police block the videotaping by claiming that all parties must consent to taping (inapplicable to New York, which does not require this), because in nearly all states this applies only when there is a reasonable expectation of privacy and no state court has held that police officers doing their job in public have a reasonable expectation of privacy.

The ACLU reports that police may confiscate a camera if they have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the officers themselves (it is controversial whether they need a warrant to view them), but them may not delete the photographs or video under any circumstances. Nor, it notes, can the police order people to cease activities that are not interfering with a law enforcement operation, for example, when filming at a reasonable distance.


In the Buffalo case, it is important that the officers involved be fired. Not merely for their acts of battery and false arrest, but also because their knowledge of the law is completely inadequate. We should see how tough they really are when up against correction officers. The Buffalo Police Commissioner Daniel Derenda should be promptly fired and his name blackened so he is never hired again. He failed miserably to ensure that his officers not systematically violate people’s basic rights, file blatantly false charges, follow the law on moonlighting, and, in general, refrain from acting like the Crips and Bloods. Far too many Buffalo police officers have earned our contempt.