I’d recently been feeling guilty — read “sinful” — for my “hands un-free” driving. So much so that last week I went blue-tooth. (”I got blue teeth” just doesn’t sound right.) I wonder if the three amigas are panning today’s ruling on the road.

On August 15, 2004, a handful of City of Milwaukee police officers acted on an anonymous tip that a wanted felon had entered Ms. Virgina Viilo’s home accompanied by a pit bull. Ms. Viilo was relaxing in her backyard with her elderly mother when the cops arrived. Officer Montell Carter “prepared for this eventuality by arming himself with a shotgun because, as he later said, ‘the best weapon for a dog is a shotgun through my experience.’”

Allow me to cut to the chase: The cops killed Bubba, Ms. Viilo’s Labrador Retriever/Springer Spaniel mix, who had rushed to the fence to greet his visitors.

Although the officers testified that Bubba was growling and exposing his teeth and gums, a neighbor who witnessed the scene later testified that the dog was coming out to greet them. Apparently fearing for the officers’ safety, Carter fired two shots at Bubba, hitting him at least once and causing comminuted and compound bone fractures to his front leg. Bubba, in turn, retreated to the bushes near the front window of Viilo’s house where he hid for the next ten minutes.
…
Eyre raised his handgun to shoot Bubba. Although he later professed to fear for his own safety, he nevertheless reconsidered his decision to use his handgun and ordered Carter, who had a shotgun, to shoot Bubba instead. The crowd, meanwhile, had grown larger and people were yelling at the officers not to shoot. Ignoring the crowd’s pleas, Carter shot Bubba a third and then a fourth time. Although Eyre later testified that he ordered the fourth shot to end Bubba’s suffering, he made no mention of this to the police lieutenant who wrote the official police report.

After taking the first two shots, Bubba was whimpering and limping, but the police wouldn’t alllow Ms. Viilo to call a veterinarian nor even comfort Bubba. As the court held today, “[t]here is no question that Viilo’s account of events establishes a violation of her constitutional rights. Every circuit that has considered the issue has held that the killing of a companion dog constitutes a ’seizure’ within the meaning of the Fourth Amendment.” (citations omitted).

Yes, there are at least two sides to any story. But here? The cops’ defenses are that (1) Bubba was interferring with their investigation, and (2) they didn’t know that killing someone’s helpless dog was constitutionally offensive. Well, because the officers were too challenged to figure out (2), I’m glad the federal court of appeals explained that they were wrong about (1), too. 

I hope Ms. Viilo takes a bite out of the MPD’s budget. RIP Bubba.

Last month a federal judge denied an ATF agent’s motion for summary judgment in a First Amendment retaliation case out of Pensacola, Florida. (HT: ACLU of Florida.) The plaintiff, Ms. Karen Kilpatrick, claims that the ATF agent (and others) violated her First and Fourth Amendment rights by stopping and then searching her van. As you probably guessed, there’s more to the story. The van, for instance, had the words “Remember the Children of Waco” and “Boo ATF” written on some of the windows. And the van was seen in the parking lot of a building housing FBI and ATF offices earlier that day, April 19, the date on which the FBI and ATF “conducted a siege of the Branch Davidian Church in Waco, Texas, which resulted in the deaths of numerous church members, including children and church leader David Koresh.”

The ATF fared better in a case decided yesterday. The Third Circuit Court of Appeals ruled against Vineland Fireworks, which was appealing from the ATF’s decision “to revoke its license to manufacture fireworks and to deny its application for the renewal of its license to import fireworks.” The ATF found that Vineland’s failure to keep records of its daily summary of magazine transactions on 36 occasions over the course of many months constituted a “willful” violation of 18 U.S.C. § 842(f) and 27 C.F.R. § 555.127. (You gotta keep records!) This decision is a good read for administrative-law junkies because it discusses the standards of review for both administrative and judicial proceedings. The standard of review, as everyone knows, often carries the day.

I’m too distracted today (college football) to pinpoint the collective irony in these decisions. But I think it has something to do with Independence Day, free speech and wackiness.

Feel free to mesh.

In August, a federal judge declined to grant qualified immunity to Mr. Hill in a suit brought by a strip club against the Clayton County Sheriff’s Office. In that complaint, the club (Pink Pony South) alleges that one day after it opened, the Sheriff began operating roadblocks “on a nearly nightly basis” on the main access road into the club. These roadblocks, the club claims, were set up “for the express purpose of interfering with the business and the exercise of First Amendment rights inherent” to the business. When motorists were stopped at the roadblocks, the deputies allegedly threatened potential patrons and told “patrons falsehoods regarding conditions in [Pink Pony South]’s business.”

In denying the Sheriff’s request to dismiss the suit, the district court held:

[A]s alleged, the roadblocks constituted a prior restraint on protected expression, which are strongly presumed to be unconstitutional. A prior restraint on expression exists when the government can deny access to a forum for expression before the expression occurs. The Eleventh Circuit has characterized similar prior restraints as unconstitutional conditions requiring citizens to surrender their Fourth Amendment rights . . . in order to exercise their First Amendment Rights. Here, [Pink Pony South] has alleged that the Defendant restricted access to its venue and searched and seized incoming patrons by operating roadblocks…. The Defendant was on notice of constitutional problems stemming from prior restraints of expression. (all quotation marks and citations omitted).

You could say that Sheriff Hill is learning the First and Fourth Amendments to the United States Constitution the hard way. Last week, in another case, a federal jury had to decide whether the Sheriff should be held liable for violating the First and Fourth Amendment rights of Mark Tuggle. Who’s Mark Tuggle? He’s the brother of Stanley Tuggle, the incumbent sheriff that Mr. Hill defeated in the 2004 election. The suit is straightforward: Shortly after the election (on January 4, 2005), Mark Tuggle telephoned Sheriff Hill’s office to offer a few, choice words — to an answering machine, it turns out. He was upset by the Sheriff’s decision to fire 27 officials one day earlier (January 3). Mr. Tuggle was promptly arrested by the Sheriff’s Office for (allegedly) violating a Georgia statute prohibiting harrassing phone calls. (The charges were later dismissed.)

I attended most of Mr. Tuggle’s trial. Both sides were well represented. Mr. Tuggle was represented by Bill Atkins, whom I consider a good friend. Bill tried a super, First Amendment retaliation case; the verdict came as no surprise to me.

Mr. Hill might find it worthwhile to read David Hudson et al.’s excellent new reference: Encyclopedia of the First Amendment. This recently-released treatise is billed as “the first work of its kind,” a “two-volume reference comprehensively examines all the freedoms in the First Amendment, including free speech, press, assembly, petition, and religion.”  The Encyclopedia “covers the political, historical, and cultural significance of the First Amendment. It provides exclusive, singular focus on what most people consider the essential elements of the Bill of Rights and the basic liberties that Americans enjoy.”

I am both honored and humbled to have contributed a few essays to the Encyclopedia. My topic: prior restraints.