This story has some legs in California. Any of these three links should work for the video:

http://www.kget.com/mostpopular/story.aspx?content_id=69d2f9b3-ac17-4472-9fb7-09d351703540
http://www.kget.com/mediacenter/local.aspx?videoId=17879
http://www.kget.com/mediacenter/?videoId=17879

The video accompanies a brief report that the accused, Louis Montgomery, will be held for trial - the hearing at which this video was taped established that there was sufficient evidence for a trial. I assume there will be a bail hearing, but it wasn’t mentioned.

One BIG twist. In my previous post, all the quotes and info stated directly that Montgomery was painting HIS OWN fence, on HIS land.  Now, in the report accompanying the video, there is an unsourced remark that Montgomery was painting HIS NEIGHBOR’S FENCE, and he was asked to stop by the Deputy.

Investigators said Montgomery became violent with Deputy Steve Williams after he asked Montgomery to stop painting his neighbor’s fence.

IF TRUE, that would be a breach-of-the-peace/destruction of property type situation where the Deputy would be (more) justified in trying to stop Montgomery - though his chosen tactics still seem highly questionable.

So which is it? Was the fence on Montgomery’s land or was it his neighbor’s fence - or was it a shared fence or a disputed property line? The earlier report seemed very clear on this point, but now we don’t know.

At least Montgomery has a lawyer, Kyle Humphrey, who said on the video:

“I don’t believe we pay our law enforcement to bust up old men … The evidence will be substantially different than what has been testified to [today] … We’ll let a jury sort it out.”

B

…I’d say only if it killed you.

This story (which is real, to my knowledge) is too good to pass up, and includes some interesting legal issues.

BAKERSFIELD, Calif. — An 81-year-old retiree was back in court Tuesday facing a felony charge of allegedly assaulting a Kern County deputy.

Louis Montgomery is facing the possibility of three years in prison for hitting a deputy with a paint roller. Last March, Montgomery was in the middle of a dispute with his neighbor over his pig farm. The feud boiled over when he decided to paint a wall facing his neighbor’s property using an assortment of old paint, according to the Kern County Sheriff’s Department. The neighbor then called the authorities to stop Montgomery.

It’s hard not to laugh (for me, impossible). But… this is serious business with three years in the pokey at stake.

Let’s fill in the blanks a little as we go along:

“[D]ispute with his neighbor over his pig farm.” Pigs are notorious for their stink, which isn’t respectful of property lines and often harmful to neighborly relations.

“The feud boiled over when he decided to paint a wall facing his neighbor’s property using an assortment of old paint…” Classic passive-aggressive. I’m feuding with you, so I do something to irritate you that you can’t really do anything about - for example I paint a wall on my land that you have to look at every day some really ugly colors. You’re so irate, you call the cops on me anyway.

This is where it gets really good.

A Kern County sheriff’s deputy who arrived at his home in Northwest Bakersfield told him to stop painting the wall. Montgomery said he explained to the deputy the fence was his to paint.

“He accused me of graffiti on my own fence,” said Montgomery.

The deputy said Montgomery ignored the deputy and continued to paint the wall with a long-handled paint roller.

How can you not side with Montgomery here? Isn’t he in the right? It’s his fence, on his land, and he’s painting it (and don’t call it ugly - beauty is in the eye of the beholder, right?). Sure the neighbor doesn’t like it, and it may be intended to aggravate the neighbor. But isn’t this like you painting your house hot pink? Your neighbor can’t call the cops to stop you from painting your house hot pink! It’s only hurting his feelings. Pig stink may be a legitimate private nuisance (or public - it’s been a while since I’ve reviewed nuisance law) but the color of a fence? And anyway private nuisance is a civil action, it’s not something you get police involved in. It is in no way violative of any criminal statute to paint your fence.

The graffiti charge sounds made up to me. Not buying it, no way. There is no indication that Montgomery was painting words (obscenities or slurs) on his fence (after all, he’s using a “long handled paint roller”).

So the Deputy told Montgomery to stop painting his own fence on his own property. Montgomery ignored him. And why shouldn’t he? How can the Deputy’s order possibly be lawful? I seem to remember some variance from state to state on obeying the orders of a law enforcement agent. Failing to do so can be a crime in itself. But I also seem to recall “lawful order” being part of that equation, at least in some states. I’ll have to research that. But — regardless – it offends common sense, the notions of private property and individual liberty, and the Bill of Rights to suggest that Montgomery should have to obey that order.

It was then that the Deputy Sheriff had the bright idea to use force against the 81 year old hardened criminal.

According to Deputy District Attorney Alex Harper, Montgomery hit the deputy over the head with the roller when the deputy tried to wrestle it away. The deputy was covered in paint and required medical attention for the gash in his head. Harper said the deputy received several stitches.

Montgomery said he was also injured in the brawl.

“When I was taken off the wall he busted both my arms, my elbows and a few of my ribs,” Montgomery explained.

He was arrested following the fight and charged with one count of felony assault with a deadly weapon.

Montgomery has pleaded not guilty.

Explain to me what right the Deputy had to walk onto Montgomery’s private property and lay hands on him (to stop him from painting!)? This sounds like a gross abuse of police power to me. No laws were being broken here. This neighborly feud was a civil dispute at best. So file suit already. The police aren’t supposed to take sides in a civil dispute.

Montgomery was having none of it. At a certain age, I can imagine you’re just done taking bull from anyone. Monty cracked the Deputy over the head with the paint roller (in self defense?). Was the Deputy trespassing on Montgomery’s land and assaulting him, all at the behest of an irritated neighbor? That will certainly be for a court to decide in the coming months when Monty sues the department. I’d love to represent the old codger, and I bet plenty of California lawyers will be jumping at the chance to try the criminal and civil suits.

Oh and by the way, I don’t believe anyone’s ever been killed by a paint roller (update: Google says the only time it ever happened, it was a freak accident). So lay off the “deadly weapon” charge, alright? Can’t we find anyone better to “throw the book” at? There’s this thing call prosecutorial discretion…

B

For many years the state issued driver’s license has been used as the de facto standard for identification in America. Unfortunately, the process of issuing driver’s licenses varies from state to state and is not perfect in any state. Historically, the process of issuing driver’s licenses to citizens has been subject to complaints of long waits at crowded state motor vehicle offices; high expenses for the state agencies; etc. As a consequence of such complaints, the states have lengthened the term of a license before renewal is required, simplified the procedure of renewal using the internet, and otherwise altered the process to politically accommodate the public. Unfortunately, it is now clear that there may well be terrorists in the midst of the general public who will take advantage of the laxity in most state licensing process and obtain fraudulent driver’s licenses and ID Cards. The Final Report of the 9/11 Commission notes that the 9/11 terrorists had fraudulently obtained valid driver’s licenses and ID Cards. The Real ID Act (RIDA) for the first time establishes a set of minimum federal standards for authenticating and securing the entire driver’s license process. Congress passed the Real ID Act and it was signed into law by President Bush on May 11, 2005. 

The RIDA establishes new procedures for identity verification as a precondition to acceptance of the state driver’s license for identification for “federal purposes” such flight on commercial airlines, entry to nuclear facilities, etc. RIDA requires: proof of identity, date of birth, principal residence address, social security number, and “lawful presence” in the United States. 

What does this mean for the average citizen?

Some observations from Watters vs. Wachovia Bank, N.A. 

The United States Supreme Court, in a 5-3 decision, held today that Wachovia Mortgage Company - a wholly-owned subsidiary of Wachovia National Bank - is considered, in essence, part of the Bank governed solely by the National Bank Act. The State of Michigan’s efforts to deem the subsidiary “not a National Bank” and to regulate it under state law were rebuffed by the doctrine of federal preemption.  

Watters is a dry business case on the surface, but just underneath the skin are several items of interest. Primarily, it is a victory for federal sovereignty in the perpetual clash for supremacy against the States. The legal terrain seemed favorable to a federal win, but remarkably, the split among the Justices shows the outcome was not a foregone conclusion.

Justice Ginsburg delivered opinion of the Court, joined by usual swing-voter Kennedy, Souter, Breyer and – notably – Alito, defecting from his more senior conservative cohorts. Just as strange, Justice Stevens – normally a member of the Court’s liberal bloc – sided with Alito’s erstwhile masters Roberts and Scalia (Thomas did not participate) and delivered a pointed dissent joined by the conservatives. Peculiar?

Ginsburg wrote that the subsidiary company fell properly under the statutory authority of the National Bank Act, all properly flowing from the Constitution’s direction that the Congress govern federally chartered banks. The regulations issued under the Act by the Office of the Comptroller of the Currency (OCC) were necessary and proper. One wonders how the case made it so high, if the resolution was so simple.  

Stevens enlightened us. He wrote that Wachovia was trying to take advantage of the system, and should not be allowed to do so. The subsidiary was not a federally chartered National Bank, but rather an entity created and existing under state law. It was unfair to require non-federal mortgage loan companies to comply with state regulation, but give the Wachovia-affiliated company a free pass. This arguably anti-competitive arrangement threatened the very existence of the state-only entities. Stevens stated his case of how this should pan all out under the law. Essentially, the OCC’s regulations were not clearly authorized by the Act, and therefore a standard presumption against “preemption” should prevail. Despite his efforts, Stevens was only able to convince the typically states-rights oriented conservatives, sans Alito.

Even the Tenth Amendment, constituting Michigan’s fall-back position, was hauled out into the daylight for a few brief comments by both sides. Ginsburg dismissed the argument on very ordinary grounds:

As we have previously explained, “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.” New York v. United States, 505 U. S. 144, 156 (1992). Regulation of national bank operations is a prerogative of Congress under the Commerce and Necessary and Proper Clauses. See Citizens Bank v. Alafabco, Inc., 539 U. S. 52, 58 (2003) (per curiam). The Tenth Amendment, therefore, is not implicated here.

But Stevens, while agreeing with Ginsburg’s result, had an interesting take on the Tenth Amendment claim:

I agree with the Court that the Tenth Amendment does not preclude the exercise of that power. But the fact that that Amendment was included in the Bill of Rights should nevertheless remind the Court that its ruling affects the allocation of powers among sovereigns. Indeed, the reasons for adopting that Amendment are precisely those that undergird the well-established presumption against preemption. 

So why did Stevens and Alito flip? How does their flip interface with their previous decisions? Doubtless there is a pattern here. If I spot an article explaining this, I’ll post an update. If any veteran Court-watcher can explain, please comment. 

B