Friday, April 23, 2010

Eric Nalder: Seattle computer security expert investigates police practices -- An 'urban golf' outing raises civil liberties questions

Local computer security expert investigates police practices: An 'urban golf' outing raises civil liberties questions
Seattle PI

A drunken street golf game with foam balls has led to a serious civil rights issue, pitting computer geeks against police practices.

Eric Rachner, a Seattle cyber security expert and one of the golf players, wasn't satisfied when the city dismissed charges against him after a possibly illegal arrest for refusing to provide identification.

Rachner discovered through sleuthing that police had withheld video-recorded evidence in his case.

Rachner also hired Seattle attorney Cleveland Stockmeyer to look at his case and probably others where arrests might have been illegal or where police claimed to have destroyed valuable arrest videos that weren't, in fact, erased.

"How many people are sitting in jail who asked for their tapes and were told no, they can't have them," says Stockmeyer. "I don't know. But I tell you we're going to freaking find out."

On a Saturday night in October 2008, Rachner was one of a sizeable group of "urban golfers" who were whacking the faux ball from bar to bar on city sidewalks, alleys and parking lots, imbibing more than keeping score.

Near the last "hole" a sliced shot hit a 22-year-old passerby in the face. The 1 ½-inch foam ball caused no harm other than a sting, but when the golfers laughed at and "heckled" the victim he called 9-1-1, the police report said. Seattle police responded in force.

While their colleagues would soon be investigating a shooting across town, the East Precinct sent four officers to spend an hour rounding up golfers.

"Twenty to thirty people are detained over a Styrofoam ball?" said Dan Kaminsky, an internationally famous Internet security expert himself, who was not arrested, but was among those detained for questioning. "This is ridiculous."

Rachner was wearing a faded t-shirt, jeans and leather jacket, and didn't remotely resemble the guy who misfired the ball, who wore English golfing duds, a Tattersall's hat and fake orange sideburns.

Confronted by officer Michele Letizia, Rachner politely declined to state his name. He also indicated where he kept his wallet with ID. The policeman removed the wallet from Rachner's pocket, but both men declined to open it. The officer expressed fear he could be accused of stealing cash.

Letizia threatened to arrest the 32-year-old Capitol Hill reveler for obstruction if he didn't provide his name as others had. The cop told Rachner that booking on a Saturday night could mean cell time until Monday. Rachner remained mum. Letizia arrested him, based on the refusal to provide ID, according to arrest and court documents.

With those facts, the arrest appears to have been illegal based on a 1982 Washington Supreme Court ruling, though a 2004 U.S. Supreme Court case makes the situation less clear-cut.

Custody for Rachner lasted two hours, not days, but a charge was leveled against him in Seattle Municipal Court for obstructing a public officer. Controversial laws known as obstruction, "stop and frisk" and "stop and identify" statutes have been abused in other cities like New York, studies and news stories show. An obstruction case cited in a 2008 Seattle Post-Intelligencer investigation ended with a federal jury hitting Seattle police with a six-figure penalty.

Rachner's criminal defense attorney sought dismissal of his gross misdemeanor charge, citing the Washington State Supreme Court decision that says arresting a person for nothing more than withholding identification is unconstitutional. One reason cited by the court: This practice allows police too much discretion to pick targets and punish with arrest. Also, the state constitution is more protective of these rights than the U.S. constitution.

But then-city attorney Tom Carr's office kept the prosecution going for half a year. William Ross, the former assistant city attorney who handled part of the case, acknowledged that it is illegal to arrest someone for nothing more than failure to give ID, but declined to discuss case details other than to say the office didn't abuse its authority.

When the arresting officer was asked recently in an interview whether the ID issue was the only reason he took Rachner into custody, he said "no". But he declined to address why his arrest reported cited ID as the only reason, and refused further comment.

Inconsistent memories are why every Seattle officer has a video camera in the squad car and a microphone on their uniform. Expanding in use nationally, they provide an unblinking witness and are automatically activated when the patrol car's flashing lights are turned on. Cops are often more protected than citizens by these videos, but are the police willing to produce the recordings when they might be in the wrong?

Rachner repeatedly tested that question, asking for the video and audio recordings of that night's arrest as part of pre-trial discovery and, separately, in requests under state public disclosure law. That part of the discovery request wasn't fulfilled and the SPD denied the first disclosure request because the criminal charge was pending, records show.

On the day last May when the city attorney dropped the charges because of unexplained "proof" problems -- nearly six months and more than $3,500 in defendant legal expenses after the incident -- Rachner filed another disclosure request for the recordings.

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