US Supreme Court: Castle Rock, CO v. Gonzales, Jessica, et al

Do law enforcement agencies have a legal obligation to enforce restraining orders?

On March 21, 2005, the US Supreme Court heard oral arguments in the case of Castle Rock, CO v. Gonzales, Jessica, et al, Docket 04-278. The Court's decision in this case may determine whether law enforcement agencies can be held liable for their failure to enforce restraining orders.

An excellent summary of the relevant facts in this case and the previous courts' decisions in precedent cases are available in an online article by Jessica Young of the Medill News Service, Medill School of Journalism, Northwestern University. Ms. Young's article also has some excellent links to the preceding court cases that led to this case being presented to the US Supreme Court.

Briefly, the facts outlined in Ms. Young's article are:

In 1999 Jessica Gonzales obtained a restraining order against her estranged husband. On the evening of June 22, 1999, her husband, Simon Gonzales, violated the order and abducted her three children. Jessica Gonzales suspected her husband had taken them, and at 7:30 p.m. she notified the Castle Rock, CO, Police Department, asking the Department to enforce the restraining order. The police told her to call back about 10 p.m. if the children did not return. Shortly after that, Jessica Gonzales spoke with her husband on his cell phone. He confirmed he had the girls and had taken them to an amusement park in Denver. Immediately following that call, Jessica Gonzales recontacted the Castle Rock Police Department to demand the police locate and arrest her estranged husband and safeguard the children. The police refused and told her to wait until 10 p.m.

At 10 p.m. the children had not returned home, so Jessica Gonzales recontacted the Castle Rock Police Department. She was told by the dispatcher to wait another two hours.

At midnight, Jessica Gonzales once again contacted the Castle Rock Police Department to tell them her children were still missing. She had gone to her husband's home and found no one there. The police told her to wait there for officers.

At 12:50 a.m. Jessica Gonzales went to the police department personally. An officer took an incident report but made no effort to find the children or enforce the restraining order.

At 3:20 a.m. Simon Gonzales arrived at the Castle Rock police station, armed, and opened fire on the police station with a handgun he had purchased after abducting the girls. Simon Gonzales was fatally wounded in the exchange of gunfire with the police. In the cab of the truck Simon Gonzales had driven to the police department, police found the bodies of Jessica Gonzales' daughters. He had murdered them earlier in the evening.

In June 2000, Jessica Gonzales sued the city of Castle Rock and several police officers. She sought damages, alleging they had violated her constitutional rights by failing to enforce the restraining order. A federal district court judge dismissed the suit.

Ultimately in April 2004, the 10th Circuit Court of Appeals ruled (6-5) that the restraining order gave Jessica Gonzales a legitimate expectation of police protection and that Jessica Gonzales' repeated pleas for help should not have been ignored without notification that the restraining order would not be enforce.

In its appeal to the US Supreme Court, Castle Rock argued that the 10th Circuit Court decision could cause "potentially devastating" lawsuits that "could bankrupt municipal governments."

The US Supreme Court agreed to review the case on November 1, 2004. A decision is expected by June 2005.

Here are links to the merit briefs on the US Supreme Court website:

Petitioner's brief

Respondent's brief

Petitioner's reply brief

Historically the US Supreme Court tends to narrow rather than expand the issues presented for its consideration. This particular case is limited to whether or not the police can be held legally liable for failing to enforce a restraining order. If the Court were to expand the question, the issue, it might well ask, "If the police (law enforcement) fail to perform their duties at the level they've promised their publics, can they be held liable?"

Report: US Chemical Facility Vulnerability

Chemical facilities in the United States, whether storage or manufacturing facilities, are attractive terrorist targets. An attack on one or more carefully selected facilities could create a public health emergency of incredible proportions.

On December 3, 1984, nearly 3,000 people died within days when methyl isocyanate gas accidentally escaped from a Union Carbide (now Dow Chemical) plant in Bhopal, India. Subsequently, it was estimated that in excess of 20,000 people died from the residual effects of the release. An account of the Bhopal incident is available from BBC online. Though this was an accidental release, it demonstrates the short- and long-term effects possible when chemical facilities leak.

On Wednesday, April 27, 2005, the US Government Accountablity Office (GAO) released the testimony of John B. Stephenson, Director of the Department of Homeland Security's Office of Natural Resources and Environment. His testimony was presented before the Committee on Homeland Security and Governmental Affairs of the US Senate. This testimony is based on GAO's past work on chemical facility security and focuses on:

• The attractiveness of US chemical facilities as terrorist targets
• Their diversity and risks
• Federal security requirements for these facilities
• Federal and industry efforts to improve facility security

Reports: Wildland Fires

Well, it's nearly May here in northern Idaho, and we've had an unusually mild and dry winter. The fire season approaches quickly. I could swear I heared a US Forest Service "borate bomber" taking off from Coeur d'Alene Municipal Airport this afternoon.

In response to requests from Congress, the Government Accountability Office (GAO) has published two related reports about wildland fires. Both reports were released Tuesday, April 26, 2005. Here are links to the reports.

• Technology Assessment - Protecting Structures and Improving Communications During Wildland Fires
  
  
• Wildland Fire Management - Progress and Future Challenges, Protecting Structures, and Improving Communications

Maybe This Year They'll Do Something...

On Monday, April 25, 2005, several Coeur d'Alene residents attended the Coeur d'Alene City Council's General Services Committee meeting to listen and speak about a hastily-added agenda item concerning convicted sex offenders living in Coeur d'Alene. The meeting was chaired by Ben Wolfinger and attended as well by Councilmembers Al Hassell and Deanna Goodlander. Additionally, Representative George Sayler and Idaho Department of Correction (IDOC) Director Tom Beauclair were present.

Some, though by no means all, of the information presented at the meeting was reported in the Tuesday, April 26, 2005, Coeur d'Alene Press article headlined Tougher Sex Offender Laws Sought.

To fully understand the cynicism in the title of this post, the reader needs to also understand that last year about this time, several residents of Coeur d'Alene Place informed the City Council about four convicted felons on state supervised probation or parole living together in a rental house in Coeur d'Alene Place in clear violation of the city's zoning ordinance. It was noteworthy that Coeur d'Alene's Chief of Police, Wendy Carpenter, was completely unaware of a state law requiring the Sheriff to notify her department of the names and addresses of paroled felons living in Coeur d'Alene. Thus, it was the neighbors and not the police who informed the Council of the felons' presence. The City concluded its zoning ordinance was unenforceable.

In trying to have those felons evicted, the Coeur d'Alene Place residents understood the Department of Correction's plight in needing to place probationers and parolees in Coeur d'Alene. In correspondence with elected officials including City Councilmembers, Representative Sayler, and Senator John Goedde, we made it very clear that we wanted to work with state and local governments to find solutions that would balance public safety with the inevitablility of probationers and parolees being placed in our neighborhoods. The residents hoped to be part of the solution, not part of the problem.

Ultimately, after numerous probation and parole violations, the Department of Correction concluded that putting four convicted felons together, unsupervised, in a rental house in Coeur d'Alene Place might not have been the swiftest of moves. The Department removed them.

In the year that has passed since the Coeur d'Alene Place incident, the City Council failed to take any positive actions to remedy the zoning ordinances. More importantly, the Council failed to contact any of the involved residents to seek our involvement in finding solutions. Neither Representative Sayler nor Senator Goedde demonstrated any interest in pursuing solutions legislatively.

My post Coeur d'Alene Registered Sex Offenders - Part II on April 20, 2005, outlined the most recent community concern that led to the agenda item on the General Services Committee meeting yesterday.

Whatever his reason for attending the meeting, IDOC Director Tom Beauclair was welcome. Unfortunately committee chairman Wolfinger obsequiously thought it necessary to insult audience members by publicly cautioning us to be courteous to Mr. Beauclair. Mr. Beauclair answered our questions and addressed our comments very patiently, but he added little to the discussion simply because unlike some members of the City Council, most audience members understood the IDOC's role in the present issue of sex offender residences is limited to offenders still on state-supervised probation or parole.

It was clear to everyone, hopefully including Representative Sayler, that Idaho's sex offender classification and registration laws need revising. One audience participant, a registered sex offender based on a single conviction for statutory rape twenty years ago when he was "young and stupid", recounted how he is still being penalized and ostracized because of the state's archaic sex offender classification system. What this man should have heard, and we hope he did, is that members of his community agree with him. The community wants meaningful and effective change. Unfortunately, Idaho's legislature seems to have its institutional mind firmly planted in the late nineteenth - early twentieth century.

Convicted felons, including registered sex offenders, who have served their prison sentences or who have successfully completed probation or parole are going to live in Coeur d'Alene. That is an irrefutable fact. It is in the community's best interests that community members, not just the police and elected officials, participate in ways to imaginatively and safely integrate them into the community. As Albert Einstein said, "We can't solve problems by using the same kind of thinking we used when we created them."

The residents at the General Services Committee meeting last night, like the Coeur d'Alene Place residents of a year ago, also have offered to participate. Maybe this year, unlike last, the Coeur d'Alene City Council won't ignore the offer.

Maybe.

Do Handcuffs Fit Five Year Old Girls?

In an April 23, 2005, posting on his Huckleberries weblog, The Spokesman-Review associate editor and columnist Dave Oliveria links readers to an ABC News story headlined Police Handcuff 5-Year-Old After Tantrum - School Had Called Cops to Help With Misbehaving Girl. Dave then asked his readers to respond to his question, "Did the police do the right thing by handcuffing this little girl?"

The police department's internal affairs or administrative investigation should determine if the officers followed departmental policy and if so, did they follow departmental procedures. It should also determine if the officers acted within the allowable boundaries of discretion.

It's also reasonable to ask if the girl's conduct was even a "police problem".

I use an excerpt from the Federal Law Enforcement Training Center's (FLETC) 2000-2005 Strategic Plan in guest lectures to Criminal Justice students at Eastern Washington University. It's a decent and perceptive characterization of societal expectations imposed on law enforcement:

Faced with real problems affecting the very fabric of society, the United States is relying increasingly on law enforcement solutions. ... In other contexts, law enforcement officers are increasingly being called on to act as "problem solvers," taking on roles quite different from those associated with traditional law enforcement. ... While being called on to address a widening array of social problems, law enforcement agencies are also being held to heightened levels of scrutiny and accountability. In today's world an officer must ensure that his or her actions pass not only the test of legality, but they must also pass the more subjective test of appropriateness and propriety. The citizenry expects law enforcement personnel to act with professionalism and is quick to react with complaints and lawsuits when this expectation is violated.

So, my answer to Dave Oliveria's question is...I don't know.

Coeur d'Alene City Council Minutes re Public's Concern About Registered Sex Offenders Living in Coeur d'Alene

PLEASE NOTE: The Coeur d'Alene City Council requests each person making public comment to provide his/her residence address. Given the personal safety concerns of the residents in the following comments, the Council should have redacted those residence addresses from the Minutes. I have made those redactions in the reproduction of the minutes from the City's website. My redactions are noted parenthetically.

DRAFT

Not Approved by Governing Board
MINUTES OF A REGULAR MEETING OF THE CITY
COUNCIL OF THE CITY OF COEUR D’ALENE, IDAHO,
HELD AT COEUR D’ALENE CITY HALL,
APRIL 19, 2005

The Mayor and Council of the City of Coeur d’Alene met in a regular session of said Council at the Coeur d’Alene City Hall, April 19, 2005 at 6:00 p.m., there being present upon roll call the following members:

Sandi Bloem, Mayor

Loren Edinger, Councilman

Al Hassell, Councilman

Woody McEvers, Counclman

Ben Wolfinger, Councilman

Deanna Goodlander, Councilman

Dixie Reid, Councilman

CALL TO ORDER: The meeting was called to order by Mayor Bloem.

PUBLIC COMMENTS:

HALFWAY HOUSES WITH SEX OFFENDERS:
Sandra Snyder, (address redacted by Whitecaps), read a petition requesting the Council resolve an issue whereby two sex offenders are living at a halfway house within 3 blocks of Bryan School.

Sundae Siebert, (address redacted by Whitecaps), reported that within a 1/4 mile triangle of schools there are 23 sex offenders residing within that area and 74 sex offenders residing in the 83814 zip code.

Erin Snyder, (address redacted by Whitecaps), lives diagonally across from the house at 724 Hastings where 2 sex offenders reside and he feels unsafe for his children playing in his own yard. He also represented a petition signed by over 100 residents in the area.

Susan Snedaker, (address redacted by Whitecaps), stated that former City Attorney Bill McFarland has indicated that the City could establish zoning codes to rectify this situation. She also believes that half way houses are a commercial enterprise in a residential zone. She also cited a statement from City Attorney Mike Gridley regarding sex offenders residing together. Councilman Wolfinger believes that this is a State-wide issue that needs to be addressed by the State rather than a zoning issue. She also noted that Home Occupations do not require that residents be notified prior to issuance of a certificate.

Councilman Edinger asked when a halfway house comes into a neighborhood or when a house has sexual offenders residing, is the law the State law or County law that requires them to notify the neighborhood.

Councilman Wolfinger stated that there are two levels, sex offenders and sexual predator: Sexual Predator Classification require the Sheriff’s office to publish the name and location of sexual offenders.

Councilman Edinger noted that he has 2 half way houses within 1 ½ blocks from his residence and he feels that the neighborhood should know when a half-way house or sexual predator is in the neighborhood. Councilman Wolfinger noted that as for sex offenders, the Sheriff’s office has a list available for sexual offenders in the area. Housing of these types of offenders is a large issue for all cities. He suggested that the City look at regulating the housing of sex offenders around schools.

Council President Reid believes that if we wait for the State Legislator it will be 5-6 years before something is done. She believes that no one wants these people living next to them.

Councilman Hassell asked if the City has any authority as we do with drug free zones.

Carol Goetzman,(address redacted by Whitecaps), commented that it is the City’s responsibility to keep our children safe from such predators.

Teresa Weadick, (address redacted by Whitecaps), requested that the City pursue transitional housing for felons.

Motion by Reid, seconded by Edinger that the General Services Committee review the issue of sexual predators in residential areas. Motion carried. Councilman Wolfinger requested the City Clerk add this item to the General Services Committee for Monday, April 25th, and that the City Clerk invite the new Department of Corrections District Director to the meeting.

Mayor Bloem encouraged the residents to contact their legislators to address this issue on a State level.
************************************************************************************

Addendum:

Here is the agenda for the Coeur d'Alene City Council's General Services Committee meeting on Monday, April 25:

General Services Committee Agenda
April 25, 2005

4:00 p.m.

Coeur d'Alene City Hall

COUNCIL CHAMBERS

710 E. Mullan Avenue

Coeur d'Alene, Idaho 83814

Note: This meeting is open to the public.

Agenda

Encroachment Agreement - Moose at Cafe Doma
Code Amendments - Gas Installers and Fitters Licensing
Fire Training Burn Agreement - 605/607 Appleway
Downtown Building Height - Moratorium on Construction
Request for Regulations - Sexual Offender Housing

Report: Aviation Security-Related Findings and Recommendations of the 9/11 Commission

On March 30, 2005, the Library of Congress, Congressional Research Service, released an updated report on aviation security. The report was entitled Aviation Security-Related Findings and Recommendations of the 9/11 Commission.

The twenty-page updated report discusses several topics:

• The weaknesses in aviation security exploited by the 9/11 planners and attackers
• The legislative action in response to 9/11
• The recommendations of the 9/11 Commission
• Congressional action in response to the 9/11 Commission's recommendations
  

Report: GAO Overview of Department of Homeland Security Management Challenges

On Wednesday, April 20, 2005, the US Government Accountability Office (GAO) delivered the statement of Norman Rabkin, Managing Director of the GAO's Homeland Security and Justice department. The statement, presented as testimony before the Subcommittee on Management, Integration, and Oversight, Committee on Homeland Security, House of Representatives, was entitled Homeland Security -- Overview of Department of Homeland Security Management Challenges. The testimony explains why GAO designated the Department of Homeland Security's transformation as a high-risk area. It also explains the specific management issues that the Department of Homeland Security will be forced to address.

The consolidation of 22 federal agencies under one umbrella, the Department of Homeland Security, has not gone as smoothly as many hoped but few expected it would. This testimony tries to explain to Congress what management challenges the Department faces.

Coeur d'Alene Registered Sex Offenders - Part II

Suppose your community has a triangular-shaped residential area of nearly 0.2 square miles, a triangle enclosed by drawing lines between two elementary schools and one middle school. And suppose that your community had 23 registered sex offenders (RSO) living within that triangle. Would you be concerned?

Some residents of Coeur d'Alene, Idaho, who live in the vicinity of N. 8th Street and Hastings Avenue say they face exactly that situation daily. And they're trying to do something about it.

Coeur d'Alene residents ought to give a standing ovation to their courageous neighbors who spoke at the Tuesday, April 19, 2005, meeting of the Coeur d'Alene City Council. These neighbors, most of them living in the vicinity of N. 8th Street and Hastings Avenue in Coeur d'Alene, brought to public light the number and locations of registered sex offenders (RSO) living in Coeur d'Alene.

Unlike the polished, hired-gun speakers armed with PowerPoint presentations and employed by big-money developers (you know, the folks who get quick Council action on things), our neighbors talked last night about their fears of the RSOs and those who regularly visit them. They often spoke emotionally, nervously, and eloquently using hand-drawn maps. Unlike the hired-gun speakers, our neighbors spoke from their hearts rather than from their pocketbooks out of a reasonable fear for the safety of their families.

As expected, the Council handed the matter off to the General Services Committee chaired by Ben Wolfinger. I am not encouraged. At last night's meeting, Wolfinger misled one of our neighbors when he commented that the registry of sex offenders and the database of probationers and parolees is available on the Internet. The wording of his statement suggested that the databases were equally searchable and that they provided the same information. That impression is inaccurate.

As I noted in my post yesterday, the Idaho Sex Offender Registry is searchable by last name and date of birth, zip code, or county. A successful RSO search returns an offenders full name and last known address. Each name is hyperlinked, so clicking on a particular name will return a color photo of the offender, his/her full name and date of birth, his/her last known address, the offense for which s/he was convicted, and the place and date of the conviction. The RSO database is maintained by the Idaho State Police.

Conversely, the Idaho Department of Correction database of convicted felons on probation or parole is searchable only by last name, first name, or offender number. A successful search returns the status (probation or parole), the offender's name and date of birth, the supervising district with phone number and supervising officer's name, the offense for which the offender was sentenced, the sentencing county, the case number, and the sentence satisfaction date. Note what is not available on this database:

• A photo of the offender
• The offender's current residence address
• A search by county or zip code

I presume Councilmember Wolfinger's failure to distinguish between the contents of the two databases was inadvertent and not an attempt to intentionally mislead one of our neighbors.

So what is our City Council going to do? Probably very little . If an RSO has satisfied his/her obligation to the state by successfully completing a prison term or by successfully satisfying the court's sentence on probation or parole, the state has little control over what the RSO does until s/he reoffends.

As some of us who live in the Coeur d'Alene Place subdivision learned last year, the city was unwilling to enforce the city's zoning ordinances that would have prevented multiple convicted felons on probation and parole from living together in rental housing in a residential zone. At that time, the City Council promised to rewrite the deficient ordinances to make them enforceable. A year has passed and that still has not happened, so the promises made to our neighbors on Hastings Avenue last night by the Council have a somewhat hollow ring to them.

While the city may not be able to regulate where an RSO and a convicted felon on state-supervised probation or parole live in Coeur d'Alene, the city could readily and easily enact enforceable city ordinances that would:

• Establish an online database at the city's website that would list the names, addresses, offender numbers, and offenses for which convicted of all RSOs and convicted felons still on state-supervised probation or parole and residing in Coeur d'Alene. It would also present a color photograph of the offender. Require the city's database to be interactive and allow an inquirer to enter a street address or click on a map location and obtain locations of RSOs and probationers and parolees in a selectable radius of the entered address or map point. The objective would be for anyone and everyone to be able to have critical information about RSOs, probationers, and parolees before making a decision to move to Coeur d'Alene or rent or purchase property here.
• Require that prospective property buyers or renters in Coeur d'Alene be informed of and provided access to the proposed database before making any contractual commitment for property in Coeur d'Alene.
• Require a special use permit by the owner or landlord of any residential property who wants to rent that property to one or more RSOs or to one or more convicted felons on state-supervised probation or parole. The special use permit process would require a public hearing which would, of course, disclose the status of the proposed renters.
• Prohibit RSOs from being closer than two miles to any school, public or private.
• Prohibit convicted felons on state supervised probation or parole from being closer than two miles to any school, public or private, without explicit permission from the felon's probation or parole officer.

After the Coeur d'Alene Place neighbors successfully persuaded the Department of Correction to remove the four convicted felons on probation or parole from our neighborhood last year, I contacted State Representative George Sayler and State Senator John Goedde to ask that the state establish the type of database that would meet some of the requirements proposed above. Neither expressed any interest in proposing legislation that would mandate neighborhood access to information about convicted felons on probation or parole. Both expressed a concern that such a database might somehow violate a probationer or parolee's Constitutional rights. Senator Goedde did promise to run my proposal past some of his friends in real estate, but of course, he has never recontacted me with their comments.

At last night's Council meeting, several Council members seemed unaware of the distribution and population density of the RSOs in Coeur d'Alene. Isn't this something the Chief of Police should have brought to the council's attention? Why did it have to come from the neighbors?

Kootenai County and Coeur d'Alene, Idaho, Registered Sex Offenders

Some weeks ago, The Angry Commentator blogmaster linked to the Idaho State Police's website registry of sex offenders in Idaho.

I am going to periodically follow her lead and post links to Idaho's sex offender registry.

Here is the link to the April 13, 2005, List of Violent Sexual Predators. Several of the people whose photos and addresses appear on this link are within one hour's drive of Coeur d'Alene.

Here is a link to the Sex Offenders That Failed to Complete Annual Registration. Again, note that three of these are (or should be) in Kootenai County.

Here is a link to the page that will allow a county by county search for registered sex offenders. Simply go to the "search by" drop down box and click on the county of interest. For example, if you click on "Kootenai County" and then "Search Registry", it will return with a total of 263 registered sex offenders in Kootenai County. It will list their names and last known address. Each name is hyperlinked, so clicking on a particular name will return a color photo of the offender, his/her full name and date of birth, his/her last known address, the offense for which s/he was convicted, and the place and date of the conviction.

It is a good idea for people considering purchasing property in Coeur d'Alene or Kootenai County to examine this registry before signing a purchase contract. This is information your realtor won't show you unless you push for it. The registry information is not updated daily, so it is wise to check it regularly.

Prospective property buyers and businesspeople should understand that there are a rather large number of convicted felons on probation or parole living in the Coeur d'Alene area. There is no comparable online registry for them, so before signing a sales contract for property here, it would be wise to contact the Idaho Department of Correction, District 1, 202 Anton, First Floor, Coeur d'Alene, ID 83815, Phone: 208-769-1444. The regional manager is Bruce F. Kuennen. His email address is bkuennen@corr.state.id.us. Talking with Mr. Kuennen or one of his employees, you may be able to learn the location of convicted felons on probation or parole near the property you are considering. If you do not get a satisfactory answer, check with the Coeur d'Alene Police Department or the Kootenai County Sheriff. Again, this is information your local realtor won't give you. And if you can't get it from the state and local agencies, caveat emptor.

Response of Health Care Professionals to Bioterrorism

On Tuesday, April 19, 2005, Kootenai Medical Center will have leading bio-terrorism expert Laurie Garrett address the response of health care professionals to bioterrorism. This program, which is tailored for health care professionals but open to the public, will be in the Boswell Hall Schuler Auditorium on North Idaho College’s main campus at 7 p.m.

Here is Laurie Garret's bio.

Here is a link to the Emergency Preparedness & Response Page for the US Center for Disease Control and Prevention. Since Ms. Garrett's topic relates to the response of health care professionals to a bioterror attack, it may be helpful to review the CDC's topics relating to Bioterrorism Agents as well as Recent Outbreaks and Incidents before attending her presentation.

Shield Laws Don't Include Bloggers

For purposes of protecting source identity under state shield laws, webloggers are usually not considered to be journalists according to a Library of Congress, Congressional Research Service report prepared for Congress and titled Journalists' Privilege to Withhold Information in Judicial and Other Proceedings: State Shield Statutes. The report was released March 8, 2005.

The report gives a state-by-state breakdown of shield laws. Some states have no shield laws at all. None of the states explicity include or exclude webloggers from their laws. However, the eventual application of some vague shield laws to bloggers may be raised in some areas.

For example, the District of Columbia includes the following terminology in its definition of news media: "Any printed, photographic, mechanical, or electronic means of disseminating news and information to the public." The District of Columbia does not define "reporter" or "news".

Unlike many states, Illinois' definition of a "reporter" does not require the person to be earning a living by reporting, only that the person is "...regularly engaged in the business of collecting, writing, or editing news through a news medium on a full-time or part-time basis." The law goes on to define news medium to include "...any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation." Arguably, a weblog producing information regularly and consistently and given general circulation through the Internet could meet the Illinois standard.

It seems logical that some day, a blogger is going to claim to be a journalist employed by a news medium and try to protect a source's identity under an appropriate state shield law. When that day comes, our present news media and state legislators will be pushed into addressing the legal status of weblogs and those who write them.

Worse Than Identity Theft?

As the New York Times reported in Security Breach at LexisNexis Now Appears Larger by Heather Timmons on April 13, 2005, the penetration of LexisNexis on the heels of the penetrations of ChoicePoint and Bank of America has raised concerns about identity theft.

There is an equally serious but less obvious concern: The vulnerabilities in the data brokering industry's computers that allow identity theft for profit are also exploitable to allow identity creation. While identity theft extracts data from the data brokers' electronic vaults to steal or loot financial accounts of existing persons, identity creation allows the malicious insertion of fictitious data into those vaults. Effectively, identity creation creates a virtual person, one who appears to exist but does not. The virtual person's background is what is contained in the electronic record -- nothing more.

But who would want to do this, and why?

The answer is the intelligence services of foreign governments. The practice of creating false documents and materials to support a fictitious identity is called backstopping. It is an important part of developing the cover for a clandestine intelligence agent. "Cover" refers to the entire outward appearance of the clandestine agent to observers. Cover conceals the true nature of the agent's clandestine work and presents the outward appearance of an unremarkable, even boring and uninteresting person.

On April 13, 2005, the Seattle Post-Intelligencer ran an article entitled Illegal Workers Raise Security Concerns, by Lara Jakes Jordan, a writer for the Associated Press Writer. The story noted how illegal aliens using false identification were able to get jobs requiring higher levels of security checks. This is one crude example of how created identities can be used by unauthorized persons to gain access to sensitive areas and material.

A foreign intelligence service planning a long-term collection operation in the United States is going to be much more careful than the subjects in Ms. Jordan's story.

Creating suitably backstopped cover stories and legends for clandestine agents has been made even easier and less risky with the increasing reliance on data brokers and their products for background checks. Now, instead of action agents personally going to banks, schools, and other public institutions to plant false information to backstop a cover, a computer operator with Internet access and operating from the safety of a cooperating country may simply be able to sit at a terminal and insert the data that, when analyzed, comes together as a plausible, cohesive, continuous background for a job applicant. Think of it as identity theft in reverse.

This possibility should alarm our government as much as the personal financial losses resulting from identity theft. The potential consequences to our national security from fictional identity creation are no less grave than the financial losses associated with identity theft.

Border Security - Depends What Your Definition of IS_IS

From 1998 until 2004, International Microwave Corp. installed a $239 million system of integrated sensors and video cameras along the Mexican and Canadian borders. The federal contract was let by the Border Patrol and Immigration and Naturalization Service. The system, the Integrated Surveillance Intelligence System (ISIS), was supposed to improve the agencies' ability to detect and locate illegal border crossers.

This Government Computer News article from February 7, 2000, describes the system as it was touted then.

But then the General Services Administration (GSA) undertook an investigation and found that many of the system's components were not working properly. They also found poor design and poor contract oversight has "...placed Americans in danger" according to a former Border Patrol chief.

An article in the April 11, 2005, Washington Post describes the GSA investigation into the ISIS debacle.

A map of the United States shows that the Spokane sector has 220 sensors but no video cameras installed along the Canadian border from Eastern Washington through Northern Idaho.

Introduction to Foreign Intelligence Surveillance Act (FISA)

The Foreign Intelligence Surveillance Act (FISA) was first passed in 1978 for the explicit purpose of allowing nonconsensual audio and video interceptions in support of United States counterintelligence investigations of foreign intelligence operations in the United States. Because of the additional security threat posed when going up against foreign intelligence services, the FISA provided for procedures somewhat different from procedures required for domestic electronic surveillance in criminal investigations. The law was subsequently amended to allow for pen register and trap-trace interceptions as well. Later, the authority to conduct covert physical investigative entries, the "sneak-and-peek" entries that have been recently mentioned in conjunction with the USA-PATRIOT Act.

Some terminology needs explaining.

• Nonconsensual audio and video interceptions refer to any audio or video captured during an investigation when none of the parties to the conversation or meeting have given their consent for the interception.
• A pen register is a device attached to a telephone line or a wireless telephone (cellular or GSM phone) circuit for the purpose of obtaining only the information generated by depressing the TouchTone (tm) keys.
• Trap-and-trace refers to the ability of the common carrier (telephone company) to identify the originating number of a party calling the number that has been "trapped". Caller-ID (tm) is an example of trap-and-trace, however Caller-ID can be blocked by one party, whereas common carrier trap-and-trace cannot.

Here are three reports of interest about FISA:

FISA provided by the Electronic Privacy Information Center

Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress updated January 2005 by the Congressional Research Service

The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions updated in September 2004 by the Congressional Research Service

The Smell in Kootenai County Is Stronger...and Spreading

On March 2, 2005, I posted Worthy of Trust and Confidence? in which I bluntly stated that I no longer had trust and confidence in Kootenai County Sheriff Watson, some members of his command staff, and the people who were on the administrative review board for the Grouse Meadows shooting.

On March 11, 2005, I posted When Events Don't Make Sense, Ask Questions. That post questioned the circumstances surrounding the resignation of Captain Sam Grubbs from the Kootenai County Sheriff's Department while he was under investigation by the Idaho State Police. Grubbs was nearly instantly, and quite illegally, rehired at no loss in salary by the Kootenai County Commissioners to fill the Director of Kootenai County Justice Services position, a position that would not become vacant for nine months until retirement of the present director.

Now today, April 11, 2005, The Spokesman Review has published an article written by staff writer Erica Curless and headlined County aims for new settlement. Her article reveals few additional details about the reasons for Grubbs' departure from the Kootenai County Sheriff's Department but makes it abundantly clear that Grubbs was in a commanding position to control the terms of his departure. We know from this morning's article that Grubbs' rehiring at no loss in salary was in exchange for his voluntary resignation from the Sheriff's Department. The article also reveals other curious facts:

• Grubbs may not get the county's Justice Services director position, but as Commission Chairman Gus Johnson said, "He is going to be doing something," for his $67,200 salary.
• The Sheriff promised to keep quiet about the reasons for his requesting Grubbs' investigation by the Idaho State Police .
• The county insurer must pay Grubbs' Boise attorney's fees.
• Both the county legal advisor (a Boise attorney) and the Sheriff knew the district court had to also approve Grubbs' appointment to the Justice Services position but did not disclose that to the Commissioners according to Johnson.

This new information just raises more questions.

• The County Commissioners have to approve any settlement agreement with Grubbs. Each Commissioner would reasonably want to know all the details of the incident leading to Grubbs' "voluntary" resignation. Why should they want to know? Because he might be unsuitable for any other supervisory position with the county. Yet in today's Spokesman Review article, Commission Chairman Gus Johnson pleads ignorance, explaining that the Sheriff didn't "throw up any red flags" during the settlement negotiation. Earth to Gus...earth to Gus...come in, Gus. An Idaho State Police investigation requested by the head of the dismissing agency qualifies as a huge red flag!
• Why are the Commissioners trying so hard to enter into a very generous financial arrangement with Grubbs that would forever seal the information surrounding his departure from the Sheriff's Department?

Sometimes the absence of information can reveal as much as its presence.

During the Nixon-Watergate investigation there was found to be an 18-1/2 minute gap in one of the most crucial Oval Office tapes in which Nixon and his co-conspirators were very likely discussing the burglary. Nixon's secretary, Rose Mary Woods (now deceased), took the fall and lied when she claimed she had accidentally erased the tape while transcribing it. Subsequent forensic examination of the 18-1/2 minute gap showed it had been erased from three to five times. Not an accident.

The Idaho State Police's (ISP) report of the December 28, 2004, Grouse Meadows shooting which resulted in Michael Madonna's death also has a time gap in it. The gap is in the crime scene log. Page 1 of 3 of the Kootenai County Sheriff's Department Crime Scene Log begins with an "out" entry on 12-28-04 at 00:40 and ends with an "in" entry at 01:59. There are no further "in" or "out" entries in the log until an "in" entry on 12-28 at 04:31. Notably, this entry is the first entry on an unnumbered page of the Crime Scene Log. That is, at the top right hand corner where the phrase "Page___ of ___" is preprinted, the blanks are unfilled. The apparent third page of the log is not on a Kootenai County Sheriff's Department Crime Scene Log sheet; it is on a blank piece of paper. It has no page number.

Why no Crime Scene Log entries between 01:59 and 04:31 on December 28, 2004? Why the 2 hour, 32 minute gap in the Crime Scene Log? We can be pretty certain that some people entered and left the crime scene during this time. For example, Deputies Bangs and Smart were interviewed at the Kootenai County Marine Building starting at approximately 03:40 on December 28. Their departure from the scene would have been logged. The time between 01:59 and 04:31 is also the time bracket in which one would reasonably expect "the brass" to show up at the shooting scene since the shootings occurred between 00:13 and 00:18 according to radio transcripts. Their crime scene entries and exits would have been logged.

Grubbs was the Captain in charge of patrol deputies and investigators. He would logically and properly have gone to the crime scene shortly after the shootings. Yet the Crime Scene Log in the ISP report seems to indicate he was there for only five minutes, between 13:26 and 13:31 on December 28.

I'm not suggesting that anyone involved in keeping the Crime Scene Log did anything improper. Indeed, the log's keeper may have done precisely what the law required: preserved evidence. Did the unredacted Crime Scene Log put Captain Sam Grubbs there during the time gap ? If so, if he was there, did he do or say anything that might have given the Sheriff cause to suspend him? The Crime Scene Log would have been evidence in the homicide investigation, and it would have been properly withheld by the ISP as evidence in any subsequent and ongoing investigation of Grubbs' on-scene conduct by the ISP.

The burning question is, why is the county negotiating at all with Sam Grubbs? Why is he able to control the terms of his departure? Is there something Grubbs might say in a deposition or in court that would cause some serious heartburn for one or more elected officials in Kootenai County?

Spectacular Police Work

The Friday, April 8, 2005, edition of the Seattle Post-Intelligencer carried an article headlined Detective's plea puts Microsoft to work - Computer system helps track child pornographers by P-I reporter Todd Bishop. The article shows what can happen when a committed and imaginative detective gets frustrated.

The story recounts how Toronto Police Service Detective Sergeant Paul Gillespie became frustrated with his department's inability to make significant progress in cases of computerized child pornography. Instead of grousing about a lack of resources and doing nothing, Detective-Sergeant Gillespie sent an email message directly to Bill Gates -- Microsoft's Bill Gates -- yes, that Bill Gates -- asking for help.

Given Mr. and Mrs. Gates demonstrated commitment to children, particularly sick and abused children, Detective Sergeant Gillespie perhaps should not have been so surprised when Mr. Gates forwarded the email message on to Microsoft's Canadian branch for action. As the P-I noted, "Messages from Gates aren't taken lightly within the company, and soon one of Microsoft's Canadian executives contacted Gillespie to get a better sense of what the company could do."

The "what the company could do" turned out to be The Child Exploitation Tracking System, a link analysis software package that enables child pornography investigators around the world to coordinate their data and cooperate in investigations.

Detective Sergeant Gillespie's 335-word email message was masterfully written. It was to the point and concise, but most important of all, it asked Mr. Gates for help.

Isn't it amazing what can happen when good law enforcement officers simply ask citizens for help?

Judges Alarmed - $12 Million Requested for Snake Oil

In the aftermath of the murders of a federal judge's family members in Chicago and the Atlanta courthouse attacks, the Judicial Conference of the United States has sent a letter to the President asking for increased security for federal judges and their families.

The request, announced in a press release, includes some reasonable items and one that indicates the judges have succumbed to the snake oil being peddled as "security" by the security products and services industry.

The reasonable requests include funding to improve the threat assessment and response capabilities of the US Marshal's Service, the agency charged with providing personal security for federal judges.

Then came the request for $12 million to install a home intrusion system for each judge. That's the snake oil.

In the absence of a well-conceived program of barrier and personnel security, home intrusion detection systems will not protect judges or anyone else. Home intrusion systems can warn, but they don't protect. By the time most home intrusion systems generate an alarm, the intruder is already inside the "protected" area and seconds from his intended target. You won't hear that from an alarm company sales representative unless you push for it.

Home intrusion detection systems must be used in conjunction with effective barriers and other measures that will deny an intruder access to the target long enough to permit protective forces to respond. Home intrusion detection systems need to detect an intruder and generate an alarm before the intruder gains entry to the protected area.

Watch the television advertisements for home intrusion systems. You will see a monitoring center employee promptly acknowledging the alarm and taking the appropriate action to notify emergency responders. Cut instantly to the police rolling up in front of the house, guns drawn, and then shortly leading the intruder away in handcuffs. If only it worked that way.

What the ads don't show, and what the hardware and monitoring contract pushers in the security products and service industry try very hard to hide from prospective customers, is the emergency responders' actual response time to home intrusion alarms. Typically, that will be several minutes. Indeed, in many cities the police are refusing to respond to intrusion alarms until after an intrusion has been confirmed by a resident, a business owner, a security guard, or some other responsible party.

Of course, the police (or other responders) are going to respond more quickly to an intrusion alarm generated at a federal judge's house. Yet even a minute or two response time is not quick enough if the intruder is already inside the protected area.

The solution is not to refuse to install alarm systems. Rather, it is to harden the judges' homes to make pre-access detection effective. Appropriate target hardening is costly. It involves landscaping, structural reinforcement, and esthetically acceptable delays such as laminated safety glass rather than conventional glazing. It may involve construction of a safe room. Once the home has been hardened to delay an intruder's access to his intended target for a reasonable time, then an intrusion detection system can be designed that will take full advantage of that delay time.

That the Judicial Conference of the United States so specifically requested $12 million to install a home intrusion detection system for each judge while referring vaguely to other off-site security enhancements says that the hardware/monitoring contract pushers in the security products and services lobby may have circumvented knowledgeable security professionals and spoken directly with the decision makers. Taxpayer funded purchase order to follow.

Why This Berger Wasn't Fried

Samuel R. Berger, former national security advisor to President Clinton, has reached an agreement with the Justice Department. He has pled guilty to a misdemeanor, paid a $10,000 fine, and surrendered his security clearance for three years. This results from his illegally removing and destroying classified documents from the National Archives and Records Administration (NARA) on two occasions in 2003. When first confronted, Berger lied about removing the documents, suggesting their removal was inadvertent rather than intentional. The classified documents, copies of originals, were removed ostensibly to help him prepare to testify before the 9/11 Commission. Subsequently, Berger admitted that he knowingly concealed and removed the documents and then destroyed them. Twice.

Does it seem odd that the Justice Department would so readily accept a misdemeanor plea? After all, Berger acknowledged removing one lengthy document on September 2, 2003, and then removing other documents on October 2, 2003. Once might be an accident, but twice is unquestionably an intentional crime.

Berger can hardly claim he was unfamiliar with the national security classification system since he had been President Clinton's national security advisor. Similarly, he can't argue that he was unaware that what he did was illegal and jeopardized the national security.

So why was the Justice Department so willing to barely wrist-slap ol' Sandy? According to Justice Department Public Integrity prosecutor Noel Hillman, it's because there was no evidence Berger intended to destroy or in fact did destroy original documents. But Berger's explanation, described in the Wednesday, April 6, 2005, WSJ.com Opinion Journal editorial Berger's Plea, contradicts his background as a national security advisor. According to the editorial, Berger felt the rules requiring the documents remain in the NARA during examination didn't apply to him.

Berger said he didn't return the documents he stole because he didn't know how. Oh, please! He knew how, he just didn't know how to do it without acknowledging that he had stolen classified material, destroyed the evidence, and then lied to investigators.

The Justice Department's rationalization that the documents were copies rather than originals and so their compromise was less harmful is a diversion. The information is classified and protected because its disclosure would harm the national defense or national security. It matters little that the information was in a copy or an original document. A judge might consider that during sentencing, but it was plain wrong for the Justice Department to consider it in charging and plea bargaining. Theft and unauthorized destruction of classified documents is a crime. Lying to federal investigators is a crime. Berger was trying to find a way to rewrite history or at least present it in the most favorable light before the 2007-2008 campaign and election. Hillman was willing to buy into historical revisionism as a defense against Berger's clearly criminal conduct.

The real answer about Justice's giving Berger a virtual pass may be explained by the three-year security clearance suspension. Only three years? Why not permanent revocation? Well, in three years the country may well have a Democrat president, and Berger's name has been mentioned prominently as a Secretary of State candidate in a 2009 Democrat administration. He would certainly be considered favorably for one of several other national-level positions as well, positions he could not hold without a security clearance.

Some of the people in the Justice Department are hoping that if Berger is elevated in a 2009 Democrat administration, he will remember those in Justice who helped him in 2005. Remember the name Noel Hillman. Sandy Berger will.

The 2005 Pulitzer Prizes

On April 4, 2005, the winners and nominated finalists for the 2005 Pulitzer prizes were announced.

In addition to naming the current nominess and winners the Pulitzer website offers a fascinating explanation of the history of the prizes and a biography about Joseph Pulitzer. It also includes a database of winners and nominated finalists for each prize category. Information contained in the database includes names, publications, categories, citations and years prizes were awarded. In addition, for winners from 1995 - 2004, there is a complete inventory of winning cartoons, photos, and texts of journalism articles.

Electric Stun Device Test Results

The electric stun device has become yet another less-than-lethal (usually) device available for institutional and private use. Because Taser International has something of a corner on the law enforcement market for electric stun devices, its company name, Taser(tm), has become the de facto descriptor for the generic range of electric stun devices.

Electric stun devices are relatively new. No consistent federal regulatory standards have been prescribed for their design and application. There have already been lawsuits alleging wrongful deaths and disabling injuries, so public and private institutions are beginning to look more closely at electric stun devices.

Here are three recent reports about electric stun devices.

Electro-Muscular Disruption Technology - A Nine-Step Strategy for Effective Deployment

Efficacy and Safety of Electrical Stun Devices

Human Effectiveness and Risk Characterization of the Electromuscular Incapacitation Device -- A Limited Analysis of the TASER

Report of the Commission on Intelligence...WMD

On March 31, 2005, Judge Laurence H. Silberman and Charles S. Robb, co-chairmen of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (WMD) presented the committee's report to President Bush. The link supplied is, of course, to the unclassified report.

The Commission was charged with reviewing the intelligence capabilities of the United States Intelligence Community-comprised of over a dozen intelligence agencies including the Central Intelligence Agency, the National Security Agency, and the Defense Intelligence Agency-with respect to threats such as those posed to the United States by WMDs.

The report is both lengthy and comprehensive. A quick-and-dirty overview of the report is in the letter of transmittal from the Commission to the President.

The President responded to the Commission report in a press conference on March 31, 2005, in Room 450 of the Old Executive Office Building.