Don't Tase Me, Big Bro!

With respect to the use of stun guns to administer electro-shock trauma to small children, the State and its agents apply a sliding scale of official charges and punishments.


When a police officer subdues a child as young as five years of age by treating him to a 50,000-volt shock, this is a law enforcement decision that will be the subject of an official review.


Sure, the officer's actions will eventually be vindicated, but in the interest of good public relations the officer, his superiors, and the local media have to undergo an intricate ritual, as stylized as Kabuki theater, before announcing the official inquiry's foregone conclusion.


When a group of Florida prison guards subject scores of children, ranging in age from 5 to 17, to 50,000-volt shocks as a kind of bizarre prank, this is a lapse of judgment that may have adverse career consequences -- up to and including termination -- but no criminal charges or intervention by the Department of Children and Families.


On more than a few occasions, as I've read about or seen coverage of the use of Tasers and similar portable agonizers on young children, I've been forced to exclaim, "Do those people have children of their own?!" Well, at least some of them do, and see nothing amiss in cajoling them into receiving a couple of Pavlovian shocks. And so the public memory is refreshed with another illustration of the fact that government "service" selects for a personality type in which stupidity and sadism are unusually salient traits.


In one of the "playful" incidents, children were arranged in a circle holding hands so that they could share the charge when one of them was shocked. At another prison, children were shocked individually by having a stun gun pressed against their bodies. At least two of the kids were sent "sprawling to the floor, crying out in pain and clutching at agonizing burns on their arms," and one of them ended up in the hospital.


One would expect that criminal charges would ensue as a result of those incidents. One would be wrong. Three employees -- Lt. Russell Bourgault and Sgt. Walter Schmidt, 14-year veterans of the prison system, and six-yet vet Sgt. Charmaine Davis -- were fired. Maj. Seth Adams, a 19-year veteran, and Lt. P.J. Weisner, who had 11 years in the system, resigned. According to news reports, an additional 16 employees face unspecified "discipline."


Thus far, however, there are no pending criminal charges, and the Florida State Department of Children and Family Services (CFS), one of the nation's most energetic child-snatching bureaucracies (it produced Janet Reno, remember), has shown no interest in separating the injured children from their parents. This is a remarkably restrained official reaction, one likely influenced by the fact that the parents involved in this scandal are or were government employees.


On the other hand, when a privately employed father dealing with a misbehaving 14-year-old son decides to eschew the belt in favor of a home-made electric stun gun, this is an act of felony child abuse and domestic battery worthy of the full punitive attention of the state law enforcement apparatus.


Fatal "tough love" in Florida: Prosecutor Pam Bondi watches a recording of the last minutes of Martin Anderson, a 14-year-old who died at a teen "boot camp" after being abused by the staff.

Is there some special significance to the fact that all of these incidents involving the electro-shock of children took place in Florida, a state where more than a few children have perished in "boot camps" for juvenile offenders? I take note of that fact without venturing an explanation.

Police "resource officers" stationed in that state's public schools have used Tasers -- the full-fledged, consistently lethal instrument, not the relatively low-yield stun guns used in the last two examples -- on kindergarten-age children with impunity on the assumption that the Taser is a relatively safe and humane implement of pain compliance.


So it may have been inevitable that a Florida entrepreneur would make a stun gun available to parents on the assumption that a mild jolt of electricity would be a safer and more effective corrective than any of the more familiar modes of administering corporal punishment. In 2003, a massage therapist from Boca Raton named Steve Robnor devised and marketed a device called the B-Stik, a billy club-shaped implement designed to deliver a brief shock -- of roughly the same intensity as a bee sting -- to an unruly child.


Robnor insisted that the B-Stik would leave no lasting marks, and do no significant harm. "It's a safer alternative for people who physically discipline their children," Robnor insisted. "Children should not be subjected to conventional physical discipline methods that have proven harmful. This product will enable a parent or caregiver to physically correct a child's misbehavior safely, effectively, and most of all, responsibly."


According to Robnor, his kiddie-prod actually removed the risk of "overdoing" physical discipline (and had other massage-related applications as well). Leaving aside the merits -- such as they are -- of Robnor's product, it's important to recognize that much of his sales patter reflected the views of the Florida state child-snatcher bureaucracy, and capitalized on a market niche they probably helped to create.


At the time the B-Stik was introduced, the official position of the Florida Department of Child and Family Services was that spanking of any kind and duration was to be discouraged and dealt with as potential abuse. "No child needs a spanking," sniffed CFS spokeswoman Marilyn Munoz. "Spanking can be dangerous. You never know when a child can be harmed if a parent loses control. Children don't need to be hit in order to be taught how to behave." As far as the CFS was concerned, shocking a child with a low-intensity cattle prod, while not desirable, was no worse than a conventional spanking.


Spare the prod? Douglas Dycus, arrested and prosecuted for using a stun gun to discipline a teenage son.

At least one Florida parent took that idea to heart. In 2005, 40-year-old Douglas Dycus was "hotlined" to the CFS and arrested for using a cattle prod-style stun gun to discipline his 14-year-old son. According to Dycus, he was frequently frustrated by the inattentiveness of his teenage son -- a problem familiar to parents of teenagers everywhere. On one evening, as the family prepared to leave for an engagement, the 14-year-old was "wrestling" with a younger brother and refusing to obey instructions that he stop scuffling and get in the car.


So Dycus retrieved a small stunning device, and applied it to the upper arm of his son, with two predictable results: The youngster let out a sharp yelp, and then he got into the car.


A case of this sort being irresistible to tabloid media of all varieties, Dycus's attorney, Richard Kibbey, soon turned up on Joe Scarborough's old MSNBC evening program. Kibbey offered a two-pronged defense of Dycus's actions: First, the innate right of parents to discipline their children includes the use of appropriate physical chastisement; and second, that the means employed by Dycus were much milder than those used, with increasing frequency, by police who employ Tasers when dealing with unruly schoolchildren.


"Some parents can reprimand a child and get order," Kibbey pointed out. "Some parents need to slap or spank a child to get order. Some parents need to use a belt. Police and court systems should not be second-guessing a parent unless it involves torture or [physical punishment] for no valid reason whatsoever, which is not the case here."


Furthermore, Kibbey continued, "there's a double standard here in Florida, as well as across the nation. We have all been seeing in the last few months the police are using Taser guns, not handheld, but Taser guns, and shooting darts into 6-year-old children, a 12-year-old girl in Florida [last] November who was truant. She was shot because she skipped class that day. The police were never prosecuted and the police say they're -- quote -- `reviewing their policy.'" Those officers were never prosecuted, yet a parent, who knows his child better than anyone, who knows the history of this child, is no being prosecuted. Don't you think that's a double standard?"

















"Your agonizer, please!" The Mirror Universe's version of Transporter Chief Kyle pays for his inattention to a power surge by absorbing a punitive "agonizer" charge administered by Mirror Spock. You just can't trust guys who wear sinister Van Dyke beards, y'know....



Now, one can agree with Kibbey's reasoning without presenting a brief on behalf of parental use of cattle prods.


As the father of six children, none of which could be described as a quiet, placid introvert, I can understand the occasional need to administer discipline of an unpleasantly exemplary nature. Although I'm not disinclined toward corporal punishment, I consider it to be of extremely limited utility and employ it very sparingly.


Once, while visiting an authoritarian church, I overheard a conversation in which a father, in a voice colored with concern, described his young son as a "willful, high-spirited" individual; with an expression of almost vindictive satisfaction, his interlocutor exclaimed, "Well, the good thing is that as his father, it's your responsibility to break that will."


Try as I might, I can't understand how anyone -- let alone someone professing to worship the Author of the Sermon on the Mount -- could conclude that raising children involves breaking them in any sense. Certainly, it involves teaching them to restrain and discipline their appetites, to practice deferral of gratification, to treat others with respect and deference where appropriate, and to obey God's law (as summarized in the Two Great Commandments). It means helping them to understand and practice self-regulation.


But "breaking" another human being in any sense or context is abusive by definition -- irrespective of the means employed.


It stands to reason that the last thing the architects of a collectivist society want is a population of self-regulating, self-governing free individuals -- people of the sort who usually come from homes in which parental authority is firmly and fairly exercised, and disciplinary decisions are not subject to the appellate jurisdiction of the nulliparous agony aunts running the local child-grabber bureaucracy.


This helps explain why, under the obscene doctrine of Parens Patriae, the same State that for a century and a half or so has been diligently undermining parental authority in the home has steadily increased its arbitrary power over children in public schools and similar settings.


It's now reached a point where misbehaving children barely old enough to speak or read are subject to arrest, handcuffing, and electro-shock torture at the hands of the same State-employed strangers who stand prepared to "protect" those same children from the imperfections of their own parents.


On sale now.












Dum spiro, pugno!

Criminalizing Citizen Activism: The Chris Pentico Case

Who owns this joint? The Borah Building in downtown Boise provides temporary office space for Governor Butch Otter, who -- as a state employee -- doesn't actually own the building, nor does he pay the rent. So by what supposed right does the Governor, or any of his lickspittles, file a "trespassing" complaint against one of the citizens who do own that property?


Chris Pentico, a quiet, self-possessed 42-year-old resident of Mountain Home, Idaho, has a disposition as mild as tapioca. Yet the description offered by a state prosecutor at his sentencing hearing today (May 11) would lead you to believe that beneath his docile exterior, Mr. Pentico -- who looks a bit like a younger, clean-shaven, presentable version of Hank Willams, Jr. -- is a churning urn of burning rage.


Years ago, recited the prosecutor in the adolescent whine typical of a law school graduate of recent vintage, Mr. Pentico was "involved in an incident" on campus at Boise State University in which he displayed his "belligerent" personality. This is why he wound up "on law enforcement's radar" -- even though, as we would later find out, no charges were filed, and Pentico's record remained unsullied.


As a political activist with the Idaho Republican Party, Pentico frequently met with members of the state legislature and other public officials, often to complain about irregularities and examples of what he considers to be public corruption. This, according to our young prosecutor, made many public officials "uncomfortable."


She considered that to be a species of crime. I consider it a respectable downpayment on the type of treatment most public officials should expect: Nearly all of them should be unemployed, and those who remain on the public payroll should always be wearing the same facial expression that occupied the features of those invited to dine at the table of Dionysius of Syracuse -- immediately beneath the Sword of Damocles.


Who, me? Chris Pentico, renegade and terrorist, at his May 11 sentencing hearing.



Pentico was viewed as a "potential threat," a "problem subject," a "dangerous individual" prone to "harassing-type behavior," continued the prosecutor. "Due to his own conduct, he made himself something of a target" for law enforcement," she insisted. "And then he set his sights on the governor."


From this description one would be entitled to assume that Pentico was a suicide bomber in training, or perhaps had been discovered setting up a sniper's nest in a book depository somewhere overlooking Governor Otter's familiar travel route. What else could be meant by the frantic accusation that Pentico was "setting his sights" on the Gem State's imperiled Chief Executive?

Well ... would you believe, he tried to hand-deliver a letter.

Not a letter bomb, mind you, nor an envelope containing anthrax, or even a threat of some variety.


Pentico's letter contained a complaint about an attempt to ban him from contacting state legislators with complaints and civic requests of various kinds. Pentico delivered his letter to the governor's office at the Borah Building on April 2, 2008.


A week earlier, he had beentold by an Idaho State Police Officer that "my presence made a few of the legislators nervous" -- and of course, we can't have that.


Pentico was told that he was "not welcome in the Capitol Annex," a public facility intended to provide public access to state legislators who supposedly represent that same public.


While the first officer was addressing Pentico, he was joined by another policeman whom Pentico originally identified as Officer Pettis. The second officer expanded the compass of the public territory from which Pentico was to be banished.


"Officer Pettis said I was not welcome at the State Board of Education's offices [despite the fact that ] I have not been there in years.... Then he added `I was not welcome on the third and fourth floors of the Borah building; this is where the Governor's offices are located.' Officer Pettis ... also added `Do not contact legislators' and `Do not e-mail them.' He also gave me the implication problems woul d occur for me if I did. There is no written notification or anything of that nature." "I have not threatened anyone," Pentico continued.


"I believe there has been a pretty clear breach of law here. I am also under the impression that Officer Pettis willfully carried out an unlawful order. I want to know the authorization and jurisdiction for these orders. I also consider it inexcusable to use law enforcement to intimidate law-abiding citizens to not contact with their elected officials."


Pentico delivered that letter to the Governor's office on April 2, politely asked about an appointment, and left -- no doubt cleaving a huge trail of raw, visceral terror in his wake. As Pentico left the Borah Building, he was overtaken by the same ISP officer who had issued such expansive warnings the previous week -- Corporal Jens Pattis (not "Pettis," as spelled in Pentico's letter).


Out of what the Judge was told was concern for "officer safety," Pentico was handcuffed in public view for about twenty minutes and then issued a citation for "trespassing." Two matters arise for discussion here. First of all, Pentico was a threat to nobody, and handcuffing him was an entirely gratuitous assault on his person.


Interviewed by Wayne Hoffman of the Idaho Freedom Foundation, Corporal Pattis insisted that Pentico alone was to blame for this indignity, since he had "defied a law enforcement order" to avoid the Borah Building. Pattis is part of the New Model Army of law enforcement -- a corps trained to believe that citizens have an unqualified duty to obey every directive emanating from the tax-devouring gullet of someone in a state-issued costume.


Corporal Pattis had no authority to dictate the terms on which a peaceful, law-abiding citizen could petition his representatives. "I bent over backwards for this guy, trying to help him out," insists Pattis.


I'll warrant that he certainly bent over for somebody.


The second issue here is the trespassing charge itself. At no time during the prosecution of Chris Pentico was the identity of the complainant specified; indeed, great care seems to have been taken to avoid identifying the person who turned to Pattis and -- slapping a palm to his thigh and emitting a quick whistle -- yelled, "Sic 'im!"


This omission is critical for at least two reasons.


First, Mr. Pentico was not permitted to face his accuser; second, without an actual accuser, it was impossible to satisfy the legal requirement that Pattis be acting as the authorized agent of the owner of the property on which Pentico was supposedly trespassing.


The Idaho State Code, Title 18-7008(8), defines the crime of willful trespass as one committed when a person "except under landlord-tenant relationship, who, being first notified in writing, or verbally by the owner or authorized agent of the owner of real property, to immediately depart from the same and who refuses to so depart, or who, without permission or invitation, returns and enters said property within a year, after being so notified...."


In Pentico's case, the prosecution claimed that the "order" issued by Pattis on March 25 constituted a notification by the "authorized agent of the owner" of the Borah Building to avoid the premises in question, presumably for a year. Pentico waived a jury trial.




The trial judge, Ada County Magistrate Kevin Swain, insisted that because the trespassing statute did not distinguish between public and private property, it must apply to both. In reaching that conclusion, however, His Honor failed to explain how the tenant of a publicly owned property can order the eviction of an owner of the same.


As someone who believes the phrase "government-owned property" to be an oxymoron at best and an obscenity in every case, I offer the foregoing only to underscore the grotesque and obvious illogic of using the trespassing statute in this case.


Certainly, if Mr. Pentico's presence inspired a reasonable fear for the physical safety of the governor or any of his staff, he could be forcibly removed and, if appropriate, cited or otherwise made subject to punishment. He did nothing of the sort.


But unless the trespassing law is to be read in such a fashion that it would permit tenants to evict landlords, its application to this case makes no sense. This is underscored by the lack of an actual accuser and putative victim in this matter.


Who was injured by Pentico's purported act of trespass, and what form did that injury take? Idaho State Police Lt. Col. Kevin Johnson told the Idaho Statesman that Pentico had been banned from the Borah Building pursuant "at the request of the governor's office."


But the "office" -- meaning the tax-fattened claque who "works" in the physical offices in question -- does not own that building. When that administration leaves, new tenants will arrive and make similarly disastrous use of those facilities. But they are owned by the public. If the public owns the property, a member of the public cannot trespass on it.


Furthermore, far from acting as the "authorized agent" of the owner(s), Corporal Pattis was illegally attempting to expropriate one of the actual owners; it is as if he had handcuffed a landlord who strode up to the front door of a residential property he owned to slip a "past due" notice into the tenant's mail slot.

"We've got your back, Chris": Some of the scores of freedom activists who crowded room 504 in the Ada County Courthouse for Chris Pentico's sentencing hearing.


From the prosecution's perspective, the injury inflicted by Pentico when he quietly delivered a letter to the governor's staff must have been quite severe. They recommended that he be hit with a $500 fine (plus court costs), a 90-day jail sentence, and 2 years of unsupervised probation.


After painting a portrait of Pentico as an incorrigible recidivist offender deserving of stern treatment, the bright young lady representing the prosecution -- who was apparently tone-deaf to her own contradictions -- depicted the foregoing terms as the product of leniency that took into account the fact that Pentico "really hasn't been in any trouble before this."


Then just what the hell was the whole point of this?


In issuing his sentence, Judge Swain -- to his credit -- immediately dispelled the suffocating cloud of flatulent insinuations emitted by the prosecutor (whose name I'm deliberately omitting in the hope that she will grow up and do something useful with her life) regarding Pentico's supposedly criminal nature. This reflected, in part, the influence of State Rep. Pete Nielsen, a Republican who brought with him a letter signed by several other members of the state legislature.


Those paladins of the public weal were not so palsied with terror by the very thought of the fearsome Chris Pentico that they couldn't affix their signature to a letter attesting to Pentico's decency and civic-mindedness.


Judge Swain is up for reelection this year. I trust that he was alert to the presence in the courtroom of scores of well-mannered but attentive activists who would do everything they could to ensure his return to the private sector should he inflict an onerous sentence on Pentico.


Swain outlined what he called the four objectives of sentencing: punishment, deterrence, restitution, and rehabilitation. He quite sensibly said that the final three considerations didn't apply to Mr. Pentico, who had injured nobody and done nothing to merit punishment, let alone to display a need for rehabilitation.


Pentico was in "technical" violation of the trespassing statute, Swain insisted (incorrectly, as we've seen), but his offense was de minimis. Besides, his entire purpose was to exercise a function of citizenship that should be encouraged -- he was petitioning a representative for redress of grievances.


Owing to the nature of the "offense" and the obvious decency of the "offender," Swain dispensed entirely with the prospect of jail time or fines. He imposed a term of 30 days of unsupervised probation and a withheld sentence, the latter of which would be lifted and expunged from Pentico's record "when -- not if -- you finish probation successfully, as I'm sure you will," Swain explained.


A wave of relief and a ripple of applause coursed through the courtroom. Delighted as I was to hear Judge Swain summarily dismiss the prosecution's caricature, I didn't join in the applause, nor did a couple of other people who had come to support Pentico.


The problem here is that a man who did nothing wrong was convicted -- albeit in ephemeral fashion -- of a crime by a legal positivist judge. Sure, Judge Swain -- a well-spoken and personable figure -- did what he could to minimize the impact of that conviction.


But he still found a way to validate the idea that the state (in this case represented by the oddly amorphous entity called the "governor's office") has "rights" that trump those of citizens, and that the cold steel of handcuffs biting into one's wrists is a suitable reward for those who "defy" patently illegal "orders" from the state's armed enforcers.


Judge Swain's sentence was greeted with cathartic relief and left Pentico's friends with a sense that a partial victory, at least, had been won. Granted, clear-cut victories for individual liberty are are rare as pity from Stalin, or insight from Sean Hannity.



But now that it's clear Chris Pentico won't suffer further punishment for doing nothing wrong, his friends and supporters should take a long, sober look at exactly what was "won" in this case, and by whom.


I mean no insult, either overt or implied, to the wonderful people who had gathered in support of Chris Pentico when I say that the applause at the end of the trial prompted me to recall Gibbon's observation: "A nation of slaves is always prepared to applaud the clemency of their master, who, in the abuse of absolute power, does not proceed to the last extremes of injustice and oppression." I'm willing to assume that the applause was entirely for Chris Pentico's courageous resolve, not for the statist judge who found a low-key way to validate the demands of Idaho's ruling class.


Video/Podcast Extra:

Chris Pentico (along with some friends) is interviewed by former Idaho state legislator Elizabeth Allan Hodge:

***


***
Pt. II

Pt. III

Pt. IV

Pt. V

____
In my original version, written in a fog of sleep-deprivation (hey, with six kids including a newborn, sometimes I have to work well beyond the wrong side of midnight), I referred to Elizabeth Hodge as a current, rather than "former" legislator. That version also had a misfire caught and corrected by "rick" in the comments thread.



On sale now.











Dum spiro, pugno!

Painting the Lily: The Lundeby Case, In Perspective

[T]o be possess'd with double pomp,
To guard a title that was rich before,
To gild refined gold, to paint the lily,
To throw perfume on the violet,
To smooth the ice, or add another hue unto the rainbow...
Is wasteful and ridiculous excess.

-- Shakespeare, King John




Purdue University in Lafayette, Indiana is not unaccustomed to bomb threats. University spokeswoman Jeanne Norberg recently told The Exponent, the campus newspaper, that such events, while not "frequent," are "not unusual in any given year." So the bomb threats that occurred the night of February 15, while obnoxious and disruptive, weren't all that uncommon.


At around 9:05 p.m. the University Police received a call claiming that there was a bomb on the second floor of the Mechanical Engineering building. With no classes in session and the campus practically vacant, it wasn't difficult to evacuate and search the building.


Police searched the area until about 1:00 the following morning before concluding that they had responded to a malicious hoax. Fortunately, as Norberg pointed out, "we didn't need to send out an alert. Police had areas secured; there was no threat to public safety at that point."


While police in Indiana were responding to the threat, according to Annette Lundeby, she and her 16-year-old son were on their way home from church in North Carolina.


She insists that her son Ashton, who is being held now in Indiana on charges related to that and other incidents involving phony bomb threats (but apparently not under the provisions of the USA PATRIOT act, as Annette initially claimed and I -- among many others -- originally reported), has a hermetically sealed alibi and did not have an opportunity to phone in a bomb threat to anyone.


Mrs. Lundeby now admits that Ashton has pulled telephone "pranks" before, and that he is the minor cyber-celebrity known by the screen name "Tyrone." As she relates the story, Ashton got involved in "pranking" people through his involvement in on-line gaming activities.


"Tyrone" was involved in a particularly disruptive and potentially tragic form of internet-facilitated mischief in which bomb threats or other emergency calls would be made to various public facilities, and the results would be observed in real time on-line. At some point "Tyrone" became a mercenary prankster, offering to phone in bomb threats against specific schools in exchange for payment from students who wanted to skip classes.


Self-portrait of a cyber-prankster: Ashton Lundeby.

Annette Lundeby admits that Ashton has been "Tyrone." However, she sticks by her story that his on-line identity was hijacked and used to carry out the prank bomb threats against Purdue. She likewise insists that it was the identity thief who made several other bomb threat calls on March 5 -- shortly before the FBI raid on the Lundeby home that resulted in Ashton's arrest and detention.


In a telephone interview with me this morning, Annette Lundeby insisted that the identity thief was Jason Bennett, the same 19-year-old resident of Australia who turned Ashton over to the authorities. She claims that Bennett was behind the bomb threats and that he co-opted Ashton's cyber-identity to make phony bomb threats and set him up for the crime.


"This kid harassed Ashton and our family," insisted Mrs. Lundeby. "We have copies of the text messages he sent to my son trying to force him to make bomb threats. And when Ashton didn't cooperate, that kid set him up and called the police."


This new explanation is in a similar vein to Annette's earlier account of her family situation, which sounds a bit like something from a Dean Koonz novel. She told me that her late husband, who worked for the federal prison system, was a victim of identity theft before he died. She said that her bank account was hacked, and that cyber-pests used her son's IP address to make phony 911 calls, including one to local police claiming that there were narcotics in the Lundeby home. She also claims that some of the calls she received were made by someone whose voice had been digitally altered to sound somewhat like Ashton.


Like the other elements of Ashton's alibi, investigators should be able to verify at least some of what Annette describes. If local law enforcement received a call about narcotics at the Lundeby home, a record should exist; it may not be accessible to the public, but the FBI could obtain it with little difficulty.


Mrs. Lundeby also claims that she has two key pieces of physical evidence that were not seized by the FBI when about a dozen agents raided the Lundeby home on the night of March 5: Her son's wireless computer router, and an answering machine recording of the individual who was actually responsible for the bomb threat. To that list can be added the text messages she claims to have received from Ashton's cyber-stalker.


As to the claim that Ashton was being held under provisions of the PATRIOT act -- a claim disavowed by the US Attorney David Capp, whose office is conducting Ashton's prosecution -- Mrs. Lundeby insists that she raised that issue repeatedly, and never received a clear answer from her court-appointed attorney or anyone else connected to the case.


By Annette's account, she concluded, not unreasonably, that a non-denial amounted to a confirmation. She also describes the ongoing detention of her son, who had no previous trouble with the police, as a violation of due process standards for juveniles as defined by the Supreme Court's Gault ruling of 1967.


Annette Lundeby, a widow with two children in the home, is understandably frantic to keep her son out of prison. Did she knowingly shade the truth about her son's case -- invoking the dread PATRIOT act in order to rally the public to his cause? My perception, at present, is that she has not engaged in deliberate misrepresentation.


In the ardor of her maternal concern, she may have been guilty of "painting the lily," just as I (among others) was eager to pick up a rhetorical paintbrush and lay it on thick. Annette remains convinced that Ashton is innocent of the charges against him, that his detention is excessive and presumptively punitive, and that the PATRIOT act is involved in this affair somehow.


My view is that Ashton -- although demonstrably involved in hijinks that are hardly innocent Tom Sawyeresque stunts updated for the cyber age -- is legally innocent; that there remain grounds for due process concerns in this case; and that we should never underestimate the troublesome creativity of federal prosecutors.


One reason I found Annette's PATRIOT act claims plausible, as I noted in previous coverage of this affair, is the fact that provisions of that federal act, and state statutes derived from and inspired by it, have been used to re-frame juvenile offenses as terrorist acts.


In my earlier essay on this case I referred to the matter of Brent Clark, a 14-year-old Arizona 8th grade student who was charged with "terrorism" for threatening a classmate with a pocketknife. Threatening another with a potentially lethal weapon is assault with a deadly weapon, a serious offense with severe penalties. But this wasn't enough for the local prosecutor, who decided to file terrorism charges under a state law derived from section 802 of the PATRIOT act.


It wouldn't be necessary to apply the so-called PATRIOT act to a phony bomb threat made across state lines. Title 18, section 844 (e) of the U.S. Code makes it a felony to issue a bomb threat, either genuine or phony, using the "mail, telephone, telegraph, or other instrument of interstate commerce...." This would apply to a threat made from North Carolina to Indiana.


Interestingly, Indiana state law -- which should have precedence in the Purdue case -- treats a a bogus bomb threat with greater lenity, categorizing it as a Class B misdemeanor. It can be upgraded to a Class A misdemeanor if the phony threat "substantially hinders any law enforcement process or if it results in harm to an innocent person." No harm of that kind ensued as a result of the February 15 prank, and holding a first-time offender for months on a Class B misdemeanor would be a bit excessive.


An enterprising Indiana prosecutor could ramp up the charge to a Class D felony under Sec. 2 (a)(3) of IC 35-44-2-2, which deals with a false report that "there has been or will be placed or introduced a weapon of mass destruction in a building or place of assembly ... knowing the report to be false." This would require, of course, that a common bomb or "infernal device" be considered a "weapon of mass destruction."


As it happens, that is exactly what the US Code specifies: Essentially any explosive or incendiary device -- even fireworks, under some conditions -- and many kinds of firearms can be treated as the equivalent of a nuclear weapon if this serves the interests of a federal prosecutor.


The relevant section of Title 18 of the US Code specifies that the term "weapon of mass destruction" applies to the following "destructive devices": "[A]ny incendiary, explosive, or poison gas -- bomb, grenade, rocket having a propellant charge of more than four ounces, missile having an explosive or incendiary charge of more than one-quarter ounce, mine, or ... any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter...."


It was under these definitions that, a year ago, a federal prosecutor in South Carolina charged 18-year-old Ryan Schallenberger with attempting to use a weapon of mass destruction in a bomb plot against his high school.


Schallenberger, who appears to be a troubled young man deeply imbrued with nihilistic ideas, was arrested after his parents signed for a shipment of ammonium nitrate to their address.


It's not illegal to possess ammonium nitrate, of course. But Ryan wasn't in the FFA and didn't have any use for that quantity of fertilizer. Unnerved by the discovery, Ryan's parents went through his journal and personal belongings and found evidence of intent to carry out a Columbine-style murder-suicide rampage at his school. They took what they found to the local Sheriff. Following his April 19 arrest, Ryan was arraigned for offenses against state law before the Feds shouldered the local authorities aside and filed terrorism-related charges that could result in a life sentence.


According to John Mueller, who holds the Woody Hayes Chair on National Security Studies at Ohio State University, has spent much of his time during the past several years striving to put the peripheral risk of terrorism in proper perspective.


As he pointed out in a letter to another national security analyst, under federal statutes dealing with WMDs "not only is a hand grenade a weapon of mass destruction ... so is a maliciously designed child's rocket even if it doesn't have a warhead. On the other hand, although a missile-propelled firecracker would be considered a weapon of mass destruction if its designers had wanted to think of it as a weapon, it would not be so considered if it had previously been designed for use as a weapon and then redesigned for pyrotechnic use or if it was surplus and had been sold, loaned, or given to you (under certain circumstances) by the Secretary of the Army."


The WMD designation would likewise apply to "all artillery, and virtually every muzzle-loading military long arm for that matter," continues Schneider. "It does make the bombardment of Ft. Sumter all the more sinister, to say nothing of the revelation that The Star Spangled Banner is in fact an account of a WMD attack on American shores."


The widespread availability of reasonably sophisticated cyber-technology has provided intelligent but devious adolescents with vastly expanded powers to commit criminal mischief, if they're so inclined (and few people that age harbor such inclinations). More dangerous still, however, are the broadly written federal statutes dealing with terrorism and WMDs, which give maliciously inventive prosecutors practically unlimited power to do much graver damage to the innocent, and inflict permanent harm on what remains of due process protections.


When it comes to "painting the lily" -- meaning, in this instance, exaggerating a threat -- the greatest offenders by far are those who created, and exploit, the legal mechanisms under which a pubescent child's desultory threat with a pocketknife becomes an act of "terrorism," and a troubled High School senior's attempt to fashion a crude bomb from distilled manure becomes a plot to unleash a "Weapon of Mass Destruction."


This is why, no matter what else we learn about the increasingly curious case of Ashton Lundeby, we must never give the Homeland Security State the benefit of the doubt.


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Dum spiro, pugno!