September 2009

You are browsing the site archives for September 2009.

… and a look back at how to solve the problem of the armed village idiot

There’s folks who say (I’m one of them) that the MCPPA is one of the best carry permit laws in the country.  They — we — have a point. 

Quick digression:  I’m occasionally praised for being one of the folks who helped write the law.  That’s flattering, but it’s not true; I’ve learned a fair amount about how to draft legislation since, and do have some future plans to help write some in the future, but, just to keep the record straight:  I had no hand at all in authoring the bill.

(In fact, because I was involved in writing the book at the time that the law was being negotiated and drafted, Joe Olson and I made the decision that, for ethical reasons, I was to be kept out of the loop on the discussions, so as not to unfairly disadvantage a — hypothetical and nonexistent, as it turned out — competitor.  In retrospect, I think we bent over too far backwards, but . . .)

While the main author of the bill was Lynda Boudreau, then a member of the MN House, most of the language was drafted by Joseph Olson and David Gross.  It’s hard to overstate the importance of Joe in the modern Second Amendment movement, so rather than get into it, just take my word for it:  he’s one of the giants.  It’s easy to understate the importance of David’s contributions; David does it all the time.  While Joe had a lot of trial experience in his younger days, he’s mainly been an academic for some decades, now; David’s experience in the trenches — and the lessons learned from that experience — was critical.

One of the problems facing anybody crafting a carry law is this:  who should and shouldn’t get a permit?  One view — and it’s mine — is that the Second Amendment simply recognizes a right, and that there should be no need for permits at all; we don’t, after all, have to get a religion permit in order to be able to fast on Yom Kipper, attend High Mass, or head over to D’Amico to worship the Flying Spaghetti Monster by consuming the traditional zuppa de clams, after all.

But, as a practical matter, that wasn’t what was going to happen in Minnesota in 2003 — or probably ever.

Another view — which I reject — is that carrying a handgun for personal protection is a great privilege, which only the most special people should be allowed to have.

ccw.jpgThe MCPPA strikes a balance.  As a matter of presumption, just about anybody who is legally entitled to possess a firearm at all, and who has gotten what can be comically minimal training in the safe use of a pistol —

Training may be demonstrated by … completion of a firearms safety or training course providing basic training in the safe use of a pistol…  

(b) Basic training must include:

(1) instruction in the fundamentals of pistol use;

(2) successful completion of an actual shooting qualification exercise; and

(3) instruction in the fundamental legal aspects of pistol possession, carry, and use, including self-defense and the restrictions on the use of deadly force.

— gets a permit within thirty days of applying. 

But, you might say, what do you do about the borderline cases?  Let’s say you have some raving nutcase who is able to get through a minimal carry class, and who hasn’t gotten in such serious legal trouble that he’s forbidden from so much as possessing a firearm, even under supervision — are you saying that he gets to wander around with a loaded handgun, until he commits a felony?   

Good question; I’m glad I asked it.   

One simple solution would be to give some governmental authority — the local sheriff, say — the right to decide that some applicant was just too dangerous and nutty to be wandering around in public with a loaded gun.  And that would have some benefit to it, sure.  But it would also have some risks:  what do you do about a sheriff who goes beyond that?  Historically, in Minnesota and everywhere else, anytime you give some politician or government official any power at all, some are going to abuse it.

And there was a real history of permit denial abuse in Minnesota.  The Richfield police chief famously said that, as far as he was concerned, if you’re running down the street being chased by an axe murderer, you shouldn’t be able to have a gun to defend yourself.  (No, I’m not making that up.)

Which is why the MCPPA provides both authority to the sheriff, and a check on it.

(a) The sheriff must, within 30 days after the date of receipt of the application packet described in subdivision 3:… (1) issue the permit to carry [or] … (3) deny the application on the grounds that there exists a substantial likelihood that the applicant is a danger to self or the public if authorized to carry a pistol under a permit.

Hmmm… so the sheriff can deny a permit to a known knutcase, even if he isn’t legally barred from handgun possession. But what, you ask, is to stop the sheriff from just denying it to, well, everybody?  Yeah, sure, somebody can take him to court, but that gets expensive.

And here’s where Joe and David were stone fucking brilliant; I’m going to quote the whole subdivision, adding some emphasis:

Subd. 12.Hearing upon denial or revocation.

(a) Any person aggrieved by denial or revocation of a permit to carry may appeal by petition to the district court having jurisdiction over the county or municipality where the application was submitted. The petition must list the sheriff as the respondent. The district court must hold a hearing at the earliest practicable date and in any event no later than 60 days following the filing of the petition for review. The court may not grant or deny any relief before the completion of the hearing. The record of the hearing must be sealed. The matter must be heard de novo without a jury.

(b) The court must issue written findings of fact and conclusions of law regarding the issues submitted by the parties. The court must issue its writ of mandamus directing that the permit be issued and order other appropriate relief unless the sheriff establishes by clear and convincing evidence:

(1) that the applicant is disqualified under the criteria described in subdivision 2, paragraph (b); or

(2) that there exists a substantial likelihood that the applicant is a danger to self or the public if authorized to carry a pistol under a permit. Incidents of alleged criminal misconduct that are not investigated and documented may not be considered.

(c) If an applicant is denied a permit on the grounds that the applicant is listed in the criminal gang investigative data system under section 299C.091, the person may challenge the denial, after disclosure under court supervision of the reason for that listing, based on grounds that the person:

(1) was erroneously identified as a person in the data system;

(2) was improperly included in the data system according to the criteria outlined in section 299C.091, subdivision 2, paragraph (b); or

(3) has demonstrably withdrawn from the activities and associations that led to inclusion in the data system.

(d) If the court grants a petition brought under paragraph (a), the court must award the applicant or permit holder reasonable costs and expenses including attorney fees.

That last paragraph isn’t just unusual in carry laws; it’s unique.  And it provides a good, albeit imperfect, check on bad judgment or bad faith by the sheriff:  while the denied applicant does have to come up with some money — usually around $3000 — for a lawyer, if he wins, the court must order the sheriff to pay him back.

Nobody’s perfect, not even — maybe particularly not — guys with badges. And it works both ways to correct errors.

Let’s take a perhaps not entirely hypothetical case.  Some guy with a history of relatively minor brushes with the law — interfering with a 911 call, a couple of disorderly conducts and two DWIs, say, manages to get through some sort of carry class at local gun shop — and applies for a permit.  Looking at the application and his criminal history, the deputy says something like, well, Josh hasn’t been in trouble again for a few years; maybe he’s gotten his act together — let’s just cut the guy a break, and issues the permit.

Well, maybe it was the right call at the time; maybe not.  But let’s say that this perhaps hypothetical guy goes on to pick up another DWI, a third and then a fourth disorderly conduct conviction, and tops it off with a 5th degree assault when he peppersprays a customer at his security guard job, and spends thirty days in jail.  

Is the sheriff out of luck just because none of those are felonies?

Not at all.  Look at the law, again, specifically Subd. 4 (c):

The sheriff must conduct a background check by means of electronic data transfer on a permit holder through the Minnesota Crime Information System and the National Instant Criminal Background Check System at least yearly to ensure continuing eligibility. The sheriff may also conduct additional background checks by means of electronic data transfer on a permit holder at any time during the period that a permit is in effect.

Yup.  Every year, the sheriff has to redo the electronic background check at least once, and can do it at any time.  And if he finds that there is, as the law says, “a substantial likelihood that the applicant is a danger to self or the public”? 

See Subd 8:

The sheriff … may file a petition with the district court therein, for an order revoking a permit to carry on the grounds set forth in subdivision 6, paragraph (a), clause (3).

Pretty neat, eh?  Which is among the many reasons why, in the greater scheme of things, the MCPPA is probably the model against which other modern, mainstream, commonsense “shall issue” carry permit laws will be measured.
villageidiot.jpgOh — and as a minor thing: it’s also why one village idiot (pictured at right) will likely be getting a knock on the door, sooner than later, and finding a deputy serving him with his copy of a revocation petition.

All’s well that ends well.

Random shots around the web:

(Hat tip: Balko)

Via the mysterious Dr. X comes an interesting lawsuit that touches on the issue of medical professionals performing forensic tests, a subject I recently blogged about. Here’s how Frank Main at the Chicago Sun-Times describes it:

Lisa Hofstra said she was the “charge nurse” in the emergency room on Aug. 1 when the officer approached her at about 4 a.m. The officer requested she perform a blood work-up on a DUI suspect, the lawsuit said.

Hofstra told the officer the suspect needed to be admitted to the hospital before she could draw the person’s blood. Hofstra said she told a police lieutenant that it was the hospital’s protocol to wait until a suspect was admitted, and the lieutenant agreed, she said.

The lieutenant left the emergency room.

Then Hofstra called her supervisors, but before they could respond, the officer put her in handcuffs in front of her co-workers and escorted her to a squad car, according to the lawsuit.

She was then released at the scene, and no charges were ever filed. She says the handcuffs were too tight and she received injuries which were treated at the emergency room.

Hofstra’s complaint against Officer Rodriguez and the city of Chicago includes Section 1983 claims of excessive force, federal and state claims of false arrest, and a state claim for battery.

I don’t know any more than this, but clearly something crazy happened here. What kind of nutball cop disrupts the operation of a hospital emergency room by dragging away the triage nurse for no good reason?

There seems to be something missing from this story, however. I doubt that even the craziest nutball cops do things like this (very often) to people who are courteous and polite. My guess is that Nurse Hofstra “mouthed off” or committed some other imagined offense that cops like to interpret as a crime. Triage nurses have to be decisive and firm with demanding people, so perhaps she was a bit brusque in her dealings with officer Rodriguez.

She disrespected his authoritah, and he decided to teach her a lesson. Now her lawyers are going to teach him one.

As a libertarian, I’d like our government to be a lot smaller, but even I acknowledge that there are a number of essential government functions. One of the most important of these is the justice system.

That’s why it angers me so much that our justice system (at all levels) has drifted so far from the core mission of protecting us from people doing bad things. Instead, it seems we’re increasingly prosecuting people for fake crimes (such as resisting arrest or disorderly conduct), fictitious crimes (such as intent to distribute), dubious catch-all crimes (such and conspiracy or obstruction), victimless crimes (such as gambling or prostitution), and non-crimes (such as money laundering).

By now, even when the crime sounds legitimate, I still have my doubts. For example, Chicago model Rachel Jay links to a news article about a photographer she’s worked with who was later charged with child pornography:

During the investigation, it was discovered that a 17 year-old girl had lewd photos of herself of professional quality in her possession.

After the teen was interviewed, she was able to provide information which led to the sheriff’s detectives in executing a search warrant at Kozel’s home.

Detectives said during the search, they seized photographic equipment, computers, electronic storage devices and a commercial copier printer that Kozel is alleged to have used to produce child pornography.

So, nude pictures of a 17-year old girl? It’s technically child pornography, but it’s not what most of us think of when we hear the term. The girl is over the age of consent in this state, so it would have been legal for the photographer to have sex with her. And she kept the pictures, so I’m guessing this was a voluntary photo session. It was stupid, and it was a crime, but it’s not the reason we have such tough child pornography laws.

The investigation may well have turned up evidence of much worse crimes than I’m aware of, but these days I wouldn’t count on it. Law enforcement folks love to say they’ve caught one of those nasty child pornographers even when, really, they haven’t.

[Update: Rachel Jay stopped by in the comments to explain that at the time of this arrest, Kozel was out on bail for a previous 19-count arrest for possession of child pornography, something that wasn’t clear from the news articles I found.] 

This leads me to something I’ve been meaning to post about for a while now. It’s my guess that—based on the raw numbers—the vast majority of sex crimes against children are committed by…children.

It’s long been the case that most “crimes” of statutory rape were committed by young men against their completely willing but slightly younger teenage girlfriends. Fortunately for an awful lot of people, police don’t spend a lot of effort to catch horny teenagers, rightly preferring to arrest older people who are genuinely exploiting children.

Still, with millions of teenagers having sex, a few of them are bound to get caught up and punished by the justice system beyond all reason. That probably explains a few of the young faces you can see at this disturbing post at Classical Liberal. (Hat tip: Radley)

The first image is a screen capture from the Idaho Sexual Offender Registry, showing someone with a recorded offense of LEWD COND W/MINOR CHLD U/16, which I think means lewd conduct with a minor child under the age of 16.

The offender himself is a 14-year-old boy.

It’s entirely possible, of course, that this boy is a creep who took advantage of a younger person. Maybe he even forced himself on his victim and plead out to lewd conduct. He could be 145 pounds of violent psychopath. As could all of the other 13 young boys pictured in that post. But I think it’s far more likely to be the unintended consequence (’cause God help us if our leaders intended to do this to our children) of a lot of stupid tough-on-crime laws.

These laws vary wildly. In some states the laws are crafted so poorly that a teenage couple can have sex legally until the older one hits a certain age, then the law expects them to stop until the younger one catches up to the age of consent. Other states have sensible romeo and juliet laws that don’t punish the older sex partner unless the age difference is fairly large. In still other states, a 15-year-old boy and his 14-year-old girlfriend can both be charged as sex offenders.

Thanks to the electronic revolution, the same sad state of affairs is affecting the crime of child pornography. Soon, if not already, the vast majority of child pornography will be created by children themselves. On the basis of raw image count, millions of children with cell-phone cameras can produce far more lewd photos of children than a few perverts ever could.

I’ve already written about poor Amber and Jeremy, a couple of teenagers who were convicted of taking pictures of themselves having sex. Judge James Wolf justified this stupidity by saying that “if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives.” Of course, now the future damage to their careers and personal lives will come from being labeled as sex offenders for the rest of their lives, which is far worse than a few embarassing pictures.

For a teenager, it’s really easy to run afoul of these laws just by taking a pictures of themselves. If they send these pictures to a boyfriend of girlfriend, they’re distributing child pornography, and the friend who received the picture is in possession of child pornography. Sounds silly, but as at least one teen has found out, that’s the law.

Nobody wants their children to be victims of a sex crime. But neither do we want them to be the victim of an out of control sex crimes prosecution.

I haven’t done a Sunday Song Lyric in a long time, but I just recently heard a cut off the Scissor Sisters’ debut album, Scissor Sisters , and I found an insight that I have to share:

Creamsicle sky while the sun sets in the west
Where are the queers on the piers, heard they gave it their best
Now they got jobs at a local fast food chain
Flippin’ tricks for the burger, since Lady M jacked their fame
Flippin’ tricks for the burger, since Lady M jacked their fame

Cause you can’t see tits on the radio
I’ll give you five fingers for a one man show
Fasten those pants for the lap dance
Take a shot now this may be your last chance

There ain’t no tits on the radio (Oh no)
There ain’t no tits on the radio (Oh no)
There ain’t no tits on the radio (Oh no)
There ain’t no tits on the radio (No no)

You can’t see tits on the radio.

There is still truth in rock and roll.

[Update, 12/29/09: the village idiot himself weighs in; see the comments.]

Here we go again . . .

moron.jpg

Near as I can figure out, Josh Hendrickson of Minnetonka MN, didn’t have anything useful to do last Saturday, so he headed on down to the Obama Worship Seminar at the Target Center, where thousands and thousands of Minnesotans were assembling to hear Barack Obama explain that the folks who had done such a wonderful job with delivering our mail are now ready and eager to take over our health care, or something like that.

I can actually understand why somebody who has a Minnesota carry permit (often mistakenly called a “conceal and carry permit”) might reasonably choose to carry a handgun under his outer clothing when heading into downtown Minneapolis — or, actually, anywhere else. Bad stuff can happen anywhere, and the area outside the Target Center is not a mugger-free environment, nor is the walk from there to wherever one parks. As Hendrickson later, in a moment of lucidness, said to a Star Tribune reporter, when he leaves his house, “I grab my wallet, my keys, and my gun.” Nothing wrong with that.

And I can certainly understand why somebody would want to be part of a counterprotest against Obamacare. “We are Americans. We have the right to disagree and debate with any administration,” as Hillary Clinton said, back before she joined this administration. She was right then; she’s right now.

So far, so good.

And it was also, all in all, pretty good that somebody in the Secret Service and/or MPD apparently spotted a telltale bulge at Hendrickson’s waist. Concealment isn’t difficult, mind you, but a lot of folks who have taken inadequate carry classes haven’t been given good directions as to how to do that, and some who have taken good carry classes weren’t paying attention.

So, it was perfectly reasonable that a couple of MPD cops came over and checked out his carry permit— something they’ve every right to do, under the law — and then a Secret Service agent stopped by for a quick, professional chat. It’s not like there was any chance that Hendrickson was going to get near the President, after all — hell, he couldn’t have gotten inside the building without going through a metal detector — and while there’s no reason at all to think he planned on shooting President Obama, it didn’t hurt to check him out.

But then, his little incident having been concluded with no muss, no fuss, and no arrest, Hendrickson proceeded to chase down the nearest reporter, and make sure that he got the attention that he so desperately craved. Apparently dressing so that the authorities would “accidentally” see the bulge in his clothing hadn’t gotten him enough attention, the poor dear.

He did get his attention, and he isn’t liking it. The idiot’s been posting up a storm, ever since.

As it turns out, Josh Hendrickson’s is pretty lengthy, and pretty bad:

  • CASE NO. 27-CR-08-57490 June 8th, 2009 Convicted-5th Deg. Assault-Intent to Cause Bodily Harm
  • CASE NO. 02-CR-07-7671 Oct. 6 2008 Convicted Disorderly Conduct-Brawling or Fighting
  • CASE NO. 10-VB-07-8199 Apr. 16, 2008 Convicted Disorderly Conduct
  • CASE NO. 27-CR-06-084595 Feb 14, 2007 Convicted 3rd Deg. DWI
  • CASE NO. 27-CR-04-014473 Sept 29, 2004 Convicted Disorderly Conduct
  • CASE NO. 27-CR-03-025265 Apr 21, 2003 Convicted Interfere with Emergency Call
  • CASE NO. 27-CR-99-011521 Feb. 18, 1999 Convicted Alcohol con. .10 or more
  • CASE NO. 27-CR-98-086285 Sept. 14, 1998 Convicted Reckless Driving
  • CASE NO. 27-CR-96-109111 Jan. 9, 1997 Convicted Disorderly Conduct

Yucko. Four convictions for disorderly conduct? How the hell does anybody manage that? Discon is, often, one of those bogus charges that cops throw at somebody who they really don’t have anything on, and which quickly gets dismissed as soon as a real lawyer enters the case. Four of them? Interfering with an emergency call? Two DWIs? And let’s not get into the pepper-spraying incident that cost him his most recent conviction for 5th Degree Assault.

Why somebody with that kind of record would try to draw both police and public attention to himself is pretty easy to explain.

See, there’s apparently been an open position in Minnetonka for a village idiot, and, having gotten fired from his job as a security guard for pepper-spraying a customer, Hendrickson was just looking for work.

Earth to Josh Hendrickson: the position of village idiot doesn’t pay well, or at all.

Sheesh. I was going to be blogging about another idiot, but . . . some other time.

Addendum: a fair number of folks have asked why this nimrod had a carry permit in the first place. It’s a good question. The Minnesota Citizens Personal Protection Act is, by design and intention, a liberal law — the notion is that somebody should not have a fundamental right restricted, except under unusual circumstances. Hendrickson would have lost his right to possess firearms — and his carry permit — if he’d been convicted of any felony, or a domestic violence misdemeanor. Among his cornucopia of convictions — including an amazing four disorderly conducts, a couple of DWIs, interfering with a 911 call (!), and his latest feat: the assault where he spend thirty days in the more structured environment suitable for his special needs — there aren’t any of those.

But there is some hope, and it’s in the law:

(c) The sheriff of the county where the application was submitted, or of the county of the permit holder’s current residence, may file a petition with the district court therein, for an order revoking a permit to carry on the grounds set forth in subdivision 6, paragraph (a), clause (3). An order shall be issued only if the sheriff meets the burden of proof and criteria set forth in subdivision 12. If the court denies the petition, the court must award the permit holder reasonable costs and expenses, including attorney fees.

Yup. Hendrickson’s sheriff can, if he chooses, file a petition to have Hendrickson’s permit yanked, on the grounds that “there exists a substantial likelihood that the applicant is a danger to self or the public if authorized to carry a pistol under a permit.” Hendrickson’s due process rights would be intact — and, if he managed to beat the petition, he’d be awarded his lawyer’s fees.

I don’t think that’s likely, though. Sounds like a slam dunk to me, and I wouldn’t find it at all surprising if Hendrickson loses his permit, sooner than later.

I guess we’ll see.

There’s been an interesting discussion of manufactured apparent expertise over at SJ, which appears to have inspired Bennett to weigh in here

The spark for the discussion was one of the many blogs that not-quite-promises to generate huge wads of cash for lawyers by gaming social media and them what loves it:

The thought of becoming an “expert” in 6 months may seem impossible to you. But I did it and I’m going to show you how.
But first let me share my story with you a bit because I think it’s instructive.

Well, yeah, it was instructive:  I learned that somebody can, with some study and careful choice, become acknowledged by Google as an expert in some subject he may or may not give a damn about in less time than it takes to make a baby.

I mean, seriously — this guy spent only six months studying this stuff, and then he’s an expert?  Sheesh.

So, there I was, last weekend, giving a speech, billed as “Second Amendment Expert Joel Rosenberg”.  (The speech is here; you can watch it, if you don’t mind downloading a quarter gig — one of the many things I’m not an expert in is turning a long .MOV video into a shorter one in some other format.)  I think it was a decent speech, and was well-received, by and large, by the crowd.   (And it was actually a lot of good, clean fun quoting Hillary Clinton and Hubert Humphrey to a crowd of conservatives, and then telling them an Eleanor Roosevelt story.  When it comes to issues around rights, there are folks who get it — and who, alas, don’t — all along the political spectra, which was one of the points that I was trying to make.  Successfully?  I’m the last person to be an expert on that.)

I don’t fault the organizers of the event for billing me that way, and that’s not just a reluctance to bite the hand that helped me up on to the stage.  I was invited there to talk about the Second Amendment, and it’s a matter that I do have some knowledge of, and a fair amount of passion about. And when it comes to gun laws, Lorman thinks I know enough about them to do a CLE class for cops and lawyers on the subject, so maybe that’s not unreasonable.

Until I put it into context.  I know real experts on the subject, and have read their writings voraciously, for, well, years.  Professor Joseph Olson, who founded Academics for the Second Amendment — now, there’s an expert.  Eugene Volokh?  Ditto.  Glenn Reynolds?  Yup.  Clayton Cramer, an amateur who has written the definitive study on the racist roots of gun control?  You betcha.  (It’s called, perhaps unsurprisingly, “The Racist Roots of Gun Control,” and it’s worth a read.  In my expert/inexpert/whatever opinion.) 

Me?  In that context, well, not so much.  Yeah, I started studying the Heller opinion about three minutes after it was posted to the Internet — but it wasn’t me who picked up the implications of the problematic paragraph in it, but Scott (it’s the last sentence on p. 54):

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

I studied it; Joe Olson, having been one of the midwives of the modern 2A acadmic movement. helped write one of the amicus briefs, and helped Gura prep for oral argument.  That’s an expert.  In that context, if I held myself out as a “Second Amendment Expert,” I’m not sure I could do it with a straight face.

But . . . there is that other thing, and I think — and hope — it differentiates me in a useful way from the Six Months to Google Expert types:  I know a fair amount about my subject, and can — at times — explain stuff* about the issues around the Second Amendment to folks who want to have stuff* about the issues around it explained to them.

Does that make me an “expert”?  I dunno.

Does remind me of an old joke:

A very successful young bowling ball salesmen brings his parents to the marina, one bright Saturday morning, and takes them aboard his new yacht.  The only time he’s been to sea was on a Carnival Cruise, but he’s bought himself a boat:  it’s fifty feet long, and tricked out with all the nautical gear necessary to sail across the Atlantic, and back.  He excuses himself for a moment, and ducks down the companionway, coming back with dressed out with a neat blue blazer, and ascot, and a
captaincap.jpgnifty captain’s cap, complete with gold braid and such, on his head.

“Look, Mom and Dad — I’m a captain!”

The father shakes his head.  “By me, sure, you’re a captain.  By your mother, okay, you’re a captain, but by a real captain, you’re no captain.”

I don’t mind if others want to call me an expert, not really.  But I’m pretty sure I’m not going to be getting business cards that say, “Joel Rosenberg, Second Amendment Expert.”

Or, for that matter, a captain’s cap.
 

_______________________
* Technical term.  


He wrote a book (book) called

.Tootsie and what I feel is one the best written comedies of my time – Oh, God!. He also had great success in movies with A Funny Thing Happened on the Way to the Forum He wrote the book (script) for the Stephen Sondheim musical

, alongside the likes of Mel Brooks, Carl Reiner & Woody Allen to name a few.Your Show of Shows, which became Caesar’s Hour, but he wrote for Sid Caesar on M*A*S*H and my list included Larry Gelbart.  Larry Gelbart is probably best known for writing and directing the TV series giants of comedyA while back, I wrote about my list of the   Laughing Matters: On Writing M*A*S*H, Tootsie, Oh, God!, and a Few Other Funny Things.  , but if you can find it at the library or used bookstore, I highly recommend it.It’s out of print

Larry Gelbart died Friday morning after a long battle with cancer.  He was 81. The world is a whole lot less funny without him. Thankfully, we still have his comic legacy.

On September 11, 1944 the first US soldiers crossed into Germany. The 80th Infantry Division under Major General Horace L. McBride — part of the Third Army, commanded by George Patton — secured the bridgehead at Dieulouard. Within a few days, the 4th Armored, under John Wood, would cross at the bridgehead.

A few days ago, when I wrote about a guy who was forcibly catheterized to test if he was driving drunk (he wasn’t) it seemed to me that this violated the requirements of medical ethics that medical procedures should only be done with the consent of the patient and for the benefit of the patient.

At the time, I thought that the AMA Code of Medical Ethics might address this in opinion 2.065, but I wasn’t sure if I was reading it right, so I emailed the AMA press office:

I write about legal issues and civil rights. I’d like to know if the AMA has a policy addressing issues raised by a recent news story.

(See http://www.wlwt.com/health/20703731/detail.html)

It appears that Lawrenceburg, Indiana, police arrested Jamie Lockard, 53, for drunk driving, and got a judge to sign a warrant for a blood and urine test.  At Dearborn County Hospital, someone inserted a urinary catheter against against his will.  (All this according to a lawsuit he has filed.)

Some questions I have:

Has the AMA issued a statement about this incident or the lawsuit?

What is AMA policy with regard to medical testing (and associated procedures) conducted solely to satisfy a police investigation—i.e. there is no medical benefit to the patient?

Shouldn’t medical professionals refuse to perform the test if the patient does not consent?

If a medical professional is faced with a patient who has been ordered by a court to undergo a medically unnecessary procedure against his will, does the court order override the usual concerns about consent and medical efficacy? As long as the medical professional himself is not a subject of the court order, isn’t his primary duty still to the patient rather than the legal system?

The response from the AMA was minimal, which is what I expected given that I’m just a humble blogger. They sent me to these two sections of the code of ethics: 

E-8.08 Informed Consent

The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an informed choice. The patient should make his or her own determination about treatment. The physician’s obligation is to present the medical facts accurately to the patient or to the individual responsible for the patient’s care and to make recommendations for management in accordance with good medical practice. The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice. Informed consent is a basic policy in both ethics and law that physicians must honor, unless the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent. In special circumstances, it may be appropriate to postpone disclosure of information, (see Opinion E-8.122, “Withholding Information from Patients”).

Physicians should sensitively and respectfully disclose all relevant medical information to patients. The quantity and specificity of this information should be tailored to meet the preferences and needs of individual patients. Physicians need not communicate all information at one time, but should assess the amount of information that patients are capable of receiving at a given time and present the remainder when appropriate. (I, II, V, VIII) Issued March 1981. Updated June 2006, based on the Report “Withholding Information from Patients (Therapeutic Privilege).”
 
E-2.065 Court-Initiated Medical Treatments in Criminal Cases

Physicians can ethically participate in court-initiated medical treatments only if the procedure being mandated is therapeutically efficacious and is therefore undoubtedly not a form of punishment or solely a mechanism of social control. While a court has the authority to identify criminal behavior, a court does not have the ability to make a medical diagnosis or to determine the type of treatment that will be administered. In accordance with ethical practice, physicians should treat patients based on sound medical diagnoses, not court-defined behaviors. This is particularly important where the treatment involves in-patient therapy, surgical intervention, or pharmacological treatment. In these cases, diagnosis can be made initially by the physician who will do the treatment, but must then be confirmed by an independent physician or a panel of physicians not responsible to the state. A second opinion is not necessary in cases of court-ordered counseling or referrals for psychiatric evaluations.

A recognized, authoritative medical body, such as a national specialty society, should pre-establish scientifically valid treatments for medically determined diagnoses. Such pre-established acceptable treatments should then be applied on a case-by-case basis.

The physician who will perform the treatment must be able to conclude, in good conscience and to the best of his or her professional judgment, that the informed consent was given voluntarily to the extent possible, recognizing the element of coercion that is inevitably present. In cases involving in-patient therapy, surgical intervention, or pharmacological treatment, an independent physician or a panel of physicians not responsible to the state should confirm that the informed consent was given in accordance with these guidelines. (I, III) Issued December 1998 based on the report “Court-Initiated Medical Treatment in Criminal Cases,” adopted June 1998.

That second section is the one I thought might apply.

Technically, the AMA spokesperson didn’t even go so far as to say these sections apply to the incident under discussion, so this is hardly definitive, but I think I’m on the right track. Something went wrong here.

Random shots around the web:

I don’t understand how stuff like this happens:

According to the suit, police arrested Jamie Lockard, 53, on suspicion of drunken driving in March.

A Breathalyzer test showed he was under the legal limit, but Officer Brian Miller doubted the findings.

Lockard and his attorney claim in the suit that police took him to Dearborn County Hospital and forced him to submit to a urine and blood test.

Police said they obtained a warrant, but Lockard’s attorney said his client was shackled to a gurney and had a catheter inserted against his will.

Scott Greenfield discusses some of the legal issues in his post “Places No One Should Ever Go”, but I’m wondering about the medical ethics. I’ve been dealing with a lot of doctors lately, and they all seem to follow the ethical requirements that medical procedures should only be done (A) with the consent of the patient, and (B) for the benefit of the patient.

Sticking a tube up some guy’s penis to see if there’s evidence to convict him of a crime meets neither of these requirements, so I’m a bit surprised that medical personnel are willing to participate.

Knowing as little as I do about medical ethics, I decided to see what the AMA Code of Medical Ethics has to say. It’s huge, and not written for questions like this, but opinion 2.065 sounds like it might apply:

Physicians can ethically participate in court-initiated medical treatments only if the procedure being mandated is therapeutically efficacious and is therefore undoubtedly not a form of punishment or solely a mechanism of social control.

The forced catheterization was a test, not a treatment, but I wouldn’t think that would change the ethical question significantly.

I don’t think the warrant changes the situation much either. A judge may be able to force a suspect to submit to an investigative medical procedure, but I’m pretty sure there’s case law that a judge can’t force an uninvolved third party to perform the procedure.