Date: Wed, 10 MAR 93 13:27:55 GMT
From: CAROLINA@VAX.LSE.AC.UK
Subject: File 1--Author responds to Shopping Mall criticism

CuD 5.07 published my article "Scenes of Passive Resistance at a
Shopping Mall" which presented a legal strategy based on accounts
of
the Washington 2600 incident.  I have received a good deal of
feedback
since then and CuD has published two detailed responses.  I felt
that
it would be appropriate to respond to a few of the criticisms
raised.

In CuD 5.08, ims@beach.kalamazoo.mi.us had a number of things to
say
about lawyers -- many not very positive.  While I appreciate
his/her
generally favorable response to the article, there were three
points I
wish to respond to.  The first deals with a lawyer's duty to a
client.

>Also, see Corpus Juris Secundum (CJS), Volume 7, Section 4,
>Attorney & client: "The attorney's first duty is to the courts and
>the public, NOT TO THE CLIENT, and wherever the duties to his
>client conflict with those he owes as an officer of the court in
>the administration of justice, THE FORMER MUST YIELD TO THE
>LATTER." (emphasis mine) I trust this needs no further
>explanation.

Unfortunately, this requires a great deal more explanation.  First,
the statement in CJS (which is a legal encyclopedia, and not
positive
law) must be offset by the law regarding a lawyer's duty to his
client.  In every U.S. jurisdiction I am aware of, a lawyer owes a
duty to zealously advocate the client's position within the bounds
of
the law.  Additionally, a lawyer must maintain client confidences
under all but the most strained of circumstances.  For example, if
a
client confesses that he murdered someone, the attorney can counsel
the client to turn himself in, but MUST NOT reveal the confession. 
In
fact, if the attorney breaks this rule and testifies against the
client, the testimony will be inadmissible.  If a lawyer feels that
he
or she cannot continue as counsel, his or her only recourse is to
resign from the case without disclosing the reason and ask the
court
to appoint a new attorney.  (Before I am flooded by mail from other
lawyers, please understand that this is a gross oversimplification.
If you are curious, ask a practicing criminal attorney or a law
student taking a class in professional responsibility.)

I think that this statement from CJS, standing on its own, does not
give an accurate portrayal of a lawyer's duty to a client.  I would
also caution anyone about trying to discern the state of the law by
reading statements in isolation taken from old Supreme Court
decisions, legal encyclopedias, hornbooks, casebooks, etc. Law,
like
programming, can be a tricky business.  Parts that look clear at
first
glance can be influenced by other bits you do not see at first. 
Would
you try to predict the operation of a ten million line program by
studying the source code of only one sub-module?

I want to highlight two smaller issues raised by ims.  First:

>>A really smart cop might say to the guard, "I will not make the
>>search, but I won't stop you if you search."  Stand your ground
>>at this point. Tell the real cop that you REFUSE to allow the
>>search unless the real cop orders the search to take place.
>
>Excellent suggestion, but be sure to take the above precautions
>regarding true identity and lawful authority before you think
about
>"consenting".

I should clarify what I wrote -- NEVER consent.  Always make it
clear
that you OBJECT to a search, but your objection cannot rise to the
level of physical violence.  If a police officer orders you to open
your bag, you will have to open it.

Next:

>>The only words you should utter after being arrested are "I want
to
>>speak with a lawyer."

>Change this to, "I demand counsel of my choice." The 6th Amendment
>is your authority. If the court tries to force you to use a
"licensed
>lawyer" or a "public defender", it is not counsel of your choice.

The reason I suggested the phrase "I want to speak with a lawyer"
is that under the rapidly disappearing _Miranda_ rule, this is
the magic phrase which tells police officers that they are no
longer allowed to ask you any questions.  As an aside, ims' 6th
Amendment argument has been tried with mixed success.  At best,
courts have been told that they MAY allow a defendant to
represent herself, but it is by no means an absolute right.  (I use
"herself" since the leading case involved the trial of attempted
Presidential assassin Squeaky Frome.)

I obviously have radically different views from
ims@beach.kalamazoo.mi.us about whether having a lawyer in court is
a
good idea.  I tend to believe that having a lawyer is the best way
of
staying out of jail or at least minimizing the time spent there. 
Of
course, you would expect me to say that since I am a lawyer.  :-)

In CuD 5.12, Steve Brown <70511.3424@COMPUSERVE.COM> had two broad
criticisms of the article.  In his first criticism, he asks why I
am
urging confrontation with security guards.  To quote:


>>Third, recognize that a mall IS private property and the mall
>>operators can throw you out for little or no reason.  Fourth,
>>mall cops are not government agents, and as such, their conduct
>>is (mostly) not governed by the Constitution.  So what does this
>>all mean?  Basically, Ghandi was right.  The ticket to dealing
>>with obstreperous uniformed mall cops is polite, passive
>>resistance.  The key here is POLITE.  At all times, assure the
>>mall cop that you will obey all lawful instructions.  Do not give
>>the uniforms any reason whatsoever to escalate the scene.
>>
>>If you are confronted by a group of threatening looking mall
>>cops and they hassle you, ask if you are being ejected from the
>>mall.  If yes, then wish the officers a nice day and head for the
>>nearest exit.  If no, then wish the officers a nice day and head
>>for the nearest exit.  (Do you see a pattern emerging?  Remember,
>>you do not generally have a "right" to stay in a mall.  Thus,
>>your best defense from ignorant mall cops is to get the hell off
>>of their turf.)
>
>"The mall operators can throw you out for
>little or no reason." So if that's the case, why would you even
want
>to stay and ask a bunch of unintelligent questions.  As for your
>strategy, I think Ghandi would tell you to forget about being
polite.
>I think he'd tell you to "get the hell out of Dodge." Why you
would
>encourage anyone to confront "obstreperous uniformed mall cops 
with
>polite, passive resistance" is beyond me.

I think that I failed to clearly express myself on this point.  By
all
means, I would encourage someone to leave the mall if that is
possible.  My understanding of the 2600 incident is that the
attendees
may have been detained by force, and my encouragement of polite
passive resistance is restricted to this kind of situation only. 
I am
NOT suggesting a 60's style sit-in as sponsored by civil rights
groups, and thus I am not urging anyone to "confront" guards with
passive resistance.  The strategy -- as I see it -- is for use only
when the guards make it clear that you are being detained.  In
fact,
the opening parts of the strategy are designed to determine whether
or
not a forceful detention is in progress.


In Mr Brown's second and larger criticism, he begins by reminding
me
that law enforcement officials have used the term "hacker" as a
dehumanizing shorthand to lump all computer users into one big
malicious group.  He compares this practice with my use of the term
"uniform" to describe all security guards and police officers.  In
his
words:

>My biggest concern is your attempt to dehumanize the police in a
>similar way. Whether you know it or not (maybe you don't really
>care), you have employed the same dehumanizing method in your
>effort to portray law enforcement. The computer world should not
>alienate its "enemy" through the use of name calling.
>
>Your effort seems to have been to inform people of their legal
>recourses during an incident similar to the "2600 Harassment"
>incident. The strength of the legal advise given, however, was
>weakened by the strategy you chose to use. You have probably
>confused a good many people in your attempt to explain sound
>legal ideas. A GUARD is a guard. A LAW ENFORCEMENT OFFICER
>(police, cop) is a law enforcement officer.
>
>A uniform unfortunately is what many ignorant people see.  It is
>a way  to dehumanize  a person who gives you a ticket when you
>speed, prevents you from driving home after a fun night of
>partying, rushes your child to the hospital while he or she
>bleeds to death in a patrol car, and risks his life to protect
>yours during a robbery. Occasionally, he or she has to arrest an
>individual whether it be for a crime committed with a computer or
>not.  Often when a police officer is killed in the line of duty,
>the news passes like a cold wind. It's much easier to put a
>bullet through a uniform than someone with a wife or husband and
>children.

I have quoted Mr Brown rather extensively because I feel he has
raised
a very valid point.  My use of the term "uniform" to describe both
security guards and police officers was ill-advised and I apologize
if
anyone has taken offence.  People who wear uniforms often have
difficult jobs to perform, and we should always remember that
underneath they are people, too.

The second point raised by this criticism is that I equivocated
guards
and police officers when in fact they have very different training
and
goals.  I plead guilty -- I should have been more careful with the
distinction.  In my defense, I will point out that part of the
strategy is to get a police officer on the scene if at all
possible.
As I stated, police officers have been trained about the scope of
Constitutional protections and can often be useful in defusing
situations like this.

I will be the first to admit that police officers have a very
difficult, and often thankless, job to perform.  I, for one, am
always
glad to see a police officer on patrol when I am driving at night.
(These days, my wife and I feel better when we pass a Bobby on foot
patrol in London.)  I am glad that Mr Brown called me on my
insensitive use of the term "uniform", and I also hope that when
confronted by police officers (or any person) we remember to act in
a
civilized fashion -- even if confronted with what we perceive to be
incivility.

Disclaimer: This is not presented as a legal opinion and should not
be
relied upon as such.  If you have questions, please contact a
lawyer
in your jurisdiction.

/s/Rob Carolina
ROBERT A. CAROLINA
Member, Illinois State Bar Association

Downloaded From P-80 International Information Systems 304-744-2253