Ah, the Fourth of July, that long holiday weekend when we Americans celebrate our independence from tyranny by wallowing under a blistering sun, blackening a pack of hot dogs and blowing stuff up real good. But too often what’s lost amid the mingling scents of starter fluid, potato salad and suntan oil are the rights we take for granted—and the people who defend them. Thus, once again, the Independent celebrates the Fourth of July by recognizing the work of those who put their money where their Constitution is.
They’re your friends and neighbors, not as famous as they should be. You see them in line at the coffee shop in the morning, but you don’t recognize them. Their names may break across your ears, but they don’t sound familiar. The work they do makes itself felt throughout the hills and valleys of western Montana, but they rarely get credit for it. Nonetheless, they are four Montanans who deserve a bit of attention, so we have reserved this space to giving them some props. Do the same, and think of them when you’re lighting those firecrackers.
Cindy Smith and Jeff Renz Protectors of Free Speech
Here’s a short quiz on your constitutionally guaranteed rights of privacy and free expression: Until recently, which of the following activities were considered to be prosecutable offenses in Ravalli County? a) Selling a copy of the health book How Sex Works by Dorling Kindersley; b) bringing a child to a performance of the play Accomplice by the Hamilton Players; c) undressing outside of your camp tent, or d) posing for a photograph in the nude while standing in a stream?
Answer: All of the above.
As archaic and puritanical as it sounds, until last November, all these activities could have landed you a stay in jail in Ravalli County, as the result of three ordinances passed by voters in 1994, which banned the sale and distribution of “obscenity,” made it illegal to display “obscenity” to minors and prohibited public nudity.
But thanks to the work of Missoula attorneys Cindy Smith and Jeff Renz, and the support of the Montana chapter of the American Civil Liberties Union, all three ordinances were struck down as unconstitutional by District Court Judge Jeff Langton, based on the protections of free expression and privacy in the Montana and U.S. Constitutions.
“I feel very strongly against any kind of censorship,” says Smith, a graduate of the University of Montana School of Law who has been practicing law in Missoula for the last 10 years. “I love to read and I love to be educated, and I want everyone else to have that same right. The problem is that once one group decides what the rest of us get to read, then you infringe upon our right to know and our right to exchange ideas.”
Although this case was Smith’s first foray into freedom of expression lawsuits, it was hardly new terrain for Renz, a UM law professor who served as the ACLU’s legal director from 1981 to 1991. Most recently, Renz made an unsuccessful bid as candidate for associate justice of the Montana Supreme Court.
Although no one was ever prosecuted under the Ravalli County ordinances, Renz did successfully challenge a similar ordinance in Libby, in which convenience store owner Rob Uithof was charged with six misdemeanor counts of selling obscenity and was facing up to three years in jail. That ordinance was launched by Dallas Erickson and his Montana Citizens for Decency through Law, the same folks who pushed through the Ravalli ordinances.
Among the plaintiffs in the Ravalli case was bookstore owner, actor and author Russell Lawrence, who was then head of the Hamilton Players. His troupe had considered performing the play, Accomplice, until a review of the script revealed scenes that could have been deemed illegal under the Ravalli ordinances. Rather than risking prosecution, the play was dropped from consideration.
“That’s the harm and the injury of ordinances like this—that people tend to be more careful than they need to be,” says Renz. “So we don’t see those plays and we don’t read those books. It’s got less to do with pornography and more to do with the chilling of free speech.”
Although the Ravalli lawsuit presents a persuasive argument against censorship ordinances, this case is only a legal precedent in Ravalli County and is not considered binding elsewhere in the state. According to Renz, about a dozen similar ordinances are still on the books throughout Montana.
Freedom Fact: You Can Steer With Beer
You’ve probably heard the joke, or seen it emblazoned on some idiot’s back bumper: “Don’t drink and drive. You might spill it.” What a laff. But no matter how bad a joke it might seem on a sticker, in Montana it isn’t a joke. For you see, as far as the state is concerned, drinking and driving is legal, if you do them both at the same time.
“Basically, there is no open container law in the state of Montana,” says Officer David Mills of the Montana Highway Patrol’s Missoula office. “It’s a city ordinance, so each city has its own law. Within the Missoula city limits, of course, it’s illegal. But out in the county, on the interstate, or on other county roads, you can drink a beer and drive.”
Not a great idea, some will tell you, but given Montana’s world-famous libertarian mindset, it’s not all that surprising, either. “I’m sure it’s just been that way forever,” Mills says. “You know how we don’t like our freedoms to be taken away.” You can drink to that, if you want.
—Blake de Pastino
Jamie McKittrick, Defender of Animal Rights
Ask Jamie McKittrick about the recent recognition she has received for her work with abused and neglected animals, and she’ll give you a long list of all the other people who have helped her.
Ask this young deputy Ravalli County attorney about the animals themselves and her reasons for prosecuting more than a dozen animal cruelty cases in the past two years, and she remembers details of each case vividly.
“The first case, the Krueller case, just sort of fell into my lap because I love animals and I was interested,” McKittrick remembers. “Deputy Scott Burlingham came up and was telling us about the situation and I volunteered to run with it.”
In January 1998, armed with a warrant prepared by McKittrick and signed by a local judge, Ravalli County Sheriff’s Deputies and Bitter Root Humane Association volunteers raided the abandoned “puppy mill” owned by Leo and Sheila Krueller near Stevensville. Eventually, almost two dozen animals were rescued from unimaginable conditions.
“My biggest problem is the empathy I have for the animals. In the Krueller case, I wanted to take some of those Cockers home,” McKittrick said. “It made prosecuting the case very important.”
McKittrick obtained multiple convictions against the Kruellers, and the case generated a lot of high-profile publicity. “After that, cases just fell into my lap,” she says with a laugh. “We set a standard and said we cared enough about animals in Ravalli County to prosecute people who mistreated them. As the public grew more interested in the cases, we started getting lots of calls.”
From less than one animal cruelty prosecution a year, McKittrick and the Ravalli County Attorney’s office now has successfully prosecuted more than a dozen in the past two years. She is quick to praise her boss, Ravalli County Attorney George Corn, for his support and names many others as well.
“The cases can be prosecuted successfully because we have such thorough investigation by Scott [Burlingham] and the others first. We couldn’t do this if it wasn’t for the Bitter Root Humane Association and the people who work at the animal shelter and all the volunteers who take care of the animals until cases are settled,” McKittrick says.
Last week McKittrick was named Public Official of the Year by the Montana Animal Care Association (MACA). MACA is a statewide coalition of Montana animal control officers and the federated humane societies in Montana. The organization of animal welfare professionals works to ensure that all animals are treated with respect and provided with the basic care needed for a comfortable existence.
McKittrick’s award commended her for her outstanding prosecution of animal cruelty and neglect cases over the past two years. The accompanying letter states, “You have demonstrated a consistent effort to pursue those cases and see that justice is served. You have certainly made Ravalli County a safer place for domestic animals. Thank you for setting such a stellar example for other public officials in our state.”
McKittrick was honored earlier this year by the Humane Society of the United States (HSUS) Rocky Mountain Region for the same work. In their recognition, HSUS noted, “McKittrick’s willingness to get involved … has been an inspiration and an education to the counties in all five states within our region.”
Freedom Fact: How to conduct a citizen’s arrest
The concept of citizen’s arrest is nothing new. In fact, the horse-reliant constables of medieval England depended heavily upon the local populace to posse up whenever legal infractions occurred. Today, of course, with historically high numbers of both officers and lawsuits, the notion of making a citizen’s arrest has become rather obscure. But even so, state and national laws still protect your right to play Officer Unfriendly and bag that unreasonable, imprudent or otherwise unruly purse-snatcher, beef thief or felonious fondler.
Obviously, if you’ve witnessed a crime first-hand, the best thing to do is notify the police. But when that isn’t possible, your Ninth Amendment right to self-preservation and the defense of others can come in handy. In most states, including Montana, a citizen’s arrest can be made if a private citizen witnesses a public offense or has reason to believe that one has occurred. But keep in mind that the term “citizen’s arrest” is a misnomer: As it turns out, citizens have the right to detain would-be wrong-doers, but not arrest them. That right is reserved for law enforcement officers only.
“You can use reasonable force to detain someone,” says Detective Steve Peterson with the Missoula County Sheriff’s Department, “but you can’t start clubbing them over the head. People have the right to protect themselves and their property, but you have no power to shoot and kill if he runs.”
Keeping that in mind, there are other reasons to proceed with caution. If you go bagging every lawless violator you see, they may keep your mug in their “People to Stomp” files; retaliation in this kind of case, it turns out, is not uncommon. Also, keep in mind when detaining your fellow citizen that if you make a procedural error, you will likely be slapped with a lawsuit, big time.
So although it’s a historically precedented and legally protected right of yours, the cops would just as soon have you give them a call and let them do their jobs. “We’d rather just have you say, ‘This is what I saw this guy do,’” Peterson says. “We’ll be happy to handle it from there.”
LaDonna Fowler, Crusader for the Disabled
In order to glean even a meager appreciation for the work that LaDonna Fowler has done over the past dozen years, you first have to imagine what it would be like to get to her office in a wheelchair. On the century-old residential streets that surround the University of Montana where Fowler works, the curbs can be as much as twelve inches high. There are no ramps you can use to navigate the pavement, if you happen to get around on wheels instead of feet. And at times, traffic on arteries like Arthur Avenue can be a steady stream of deadly potential.
Thousands of disabled Montanans deal with obstacles like these every day. But in some places, the situation is even more dire. On Indian reservations in Montana and across the country, many handicapped tribal members find themselves in a system that’s ill-equipped to meet their needs—with few social services, even less money, and, oftentimes, absolutely nothing in the way of legal safeguards to protect their right to go where they need to on their own. It is, in some senses, a struggle for independence in its truest form.
That’s why, for the past twelve years, LaDonna Fowler has undertaken the effort to educate tribal leaders, reservation members, and government functionaries about the real needs of disabled Native Americans. It’s been a long and slow campaign, with often subtle outcomes, but the earnestness that fuels it is self-evident as soon as Fowler starts talking.
“A lot of young people are living in rest homes because there’s no place on the rez that’s accessible,” she says. “I think that’s really idiotic thinking.”
The problem, she explains, is that the federal mandate outlining the rights and requirements of disabled Americans does not apply to Indian reservations. The Americans with Disabilities Act (ADA), which hits its 10th anniversary this month, has been looked upon by some as a benchmark for civil rights and by others as little more than a toothless resolution. But to Fowler, the 10-year-old code is merely a framework that she wants tribes to use for developing their own strategies for helping the disabled.
“We’re using the ADA as an example, but not making [tribes] comply with it necessarily,” Fowler says. “It doesn’t recognize our sovereignty, and it doesn’t recognize some of the cultural aspects of disability.”
Instead, from her UM office, Fowler has headed up the American Indian Disability Legislation Projects, a nationwide push to help every tribe come up with its own codes for protecting the rights of its disabled members. This, she says, allows each nation to honor its handicapped citizens, while still maintaining an element of independence as a sovereign body. It’s a plan that gives everyone involved a measure of freedom.
Last week, in tribute to her years of service, Fowler was recognized by the advocacy group Access Living Chicago as one of the nation’s 20 most instrumental activists for disability rights. With no false modesty, Fowler suggests that it’s an honor that anyone can share. You just have to know what you deserve.
“When people know their civil rights,” she says, “that in itself can make them advocates.”
—Blake de Pastino
Freedom Fact: The Naked Truth About Indecent Exposure
The Finns call it viuhahdus, the Italians speak of a breve corso in un luogo pubblico di una persona improvvisamente denudatasi, and even the British occasionally enjoy a bit of a streak. Streaking may well have lost some of its shock value as a form of desperate political comment, but the delicate art of getting one’s kit off and dashing nude through a public place is alive and well.
Even in these enlightened times, though, the streaker is as likely as ever to run afoul of the same unsmiling ordinances designed to keep the naughty bits tucked away on the hypothetical nude beach just past the city limits of public decency. In Montana, the merry streaker, out for what he perceives as a harmless bit of fun, might find one of three charges handed to him by an arresting officer waiting at the finish line: indecent exposure, obscenity, and/or disorderly conduct. Ditto the case of the absent-minded nudist ducking out to see if the mail has arrived or any other instance in which the private sector goes suddenly and spectacularly public.
“Nudity definitely has different consequences,” says assistant city attorney Judy Wang. “It depends on the context. Obviously, streaking is different than peeping in windows and masturbating.”
The Montana Code Annotated defines indecent exposure in part as exposure of said naughty bits “under circumstances in which the person knows the conduct is likely to cause affront or alarm in order to: (a) abuse, humiliate, harass, or degrade another, or (b) arouse or gratify the person’s own sexual response or desire or the sexual response or desire of any person.” Trouble with obscenity statutes, on the other hand, could arise if the streaker was determined to have “perform[ed] an obscene act or otherwise present[ed] an obscene exhibition of his body to anyone under the age of 18.” Barring those consequences, the flashing astonisher might still be found guilty of disorderly conduct if his or her study for Nude Descending Mount Sentinel, say, was found to have “creat[ed] a hazardous or physically offensive situation by any act that serves no legitimate purpose.”
Streaking is generally considered to be a non-sexual act, but Wang is wary of dispensing what she terms “advisory opinions” of a sort that might encourage people to undertake even lightly illegal acts in the hope or mistaken belief that they’ll get off easy. The fact is, public nudity can still get you busted—possible fines and jail time are outlined in no uncertain terms under each of the three statutes.
Says Wang: “It all depends how much somebody is offended by it.”
Freedom Fact: Stupid Laws Are Still on the Books
Times change. People change. The march of time and progress sometimes has a way of rendering the laws of a bygone era into things as quaint and irrelevant in modern society as a penny-farthing in the Tour de France. Yet, whether due to unintentional oversight or the schemings of obscurantist law clerks, these same obsolescent laws sometimes stay on the books for decades before they’re repealed. If they’re repealed at all. Consider the following laws still on the books, which we found on a quirky little website called dumblaws.com. But, please, consider them for entertainment purposes only:
• It is illegal for married women to go fishing alone on Sundays, and illegal for unmarried women to fish alone at all.
• It is a misdemeanor to show movies that depict acts of felonious crime.
• It is a felony for a wife to open her husband’s mail.
• It is illegal to have a sheep in the cab of your truck without a chaperone.
• Residents of Whitehall might also be amused, possibly relieved, to learn of municipal ordinances forbidding citizens to operate any vehicle with ice picks attached to its wheels.
Would-be perpetrators seeking asylum across state lines for illicit spousal mail handling and unbetrothed female angling malfeasance should be aware that our neighboring states have their own ordinances forbidding certain heinous crimes against society. To wit:
• It is illegal for a man to give his sweetheart a box of candy weighing less than fifty pounds.
• It is illegal to fish on a camel’s back.
• Riding a merry-go-round on Sundays is considered a crime.
Additional municipal laws are further designed to throttle the pursuit of happiness in Idaho. Residents of Boise, for example, are disallowed from fishing while riding on the backs of giraffes (please take a moment here to imagine what might have prompted this crackdown). In Coeur d’Alene, if a police officer approaches a vehicle and suspects that the occupants are engaging in sex, he must either honk or flash his lights and then wait for three minutes before approaching the car. In Pocatello, a law passed in 1912 states that “The carrying of concealed weapons is forbidden, unless some are exhibited to public view,” whatever that means, and it is further unlawful for a resident of that same community to be seen in public without a smile on his or her face.
In North Dakota, one of our eastern neighbors, the relative dearth of oppressive forgotten bylaws hints at a freer society, but there are still a couple of rules on the books to keep the rowdies in line. It’s still technically illegal, for instance, to wear a hat that obstructs people’s view in a public theater or place of amusement, and likewise unlawful for women to stand within five feet of a bar while drinking. Most importantly it is strictly forbidden to take a picture of a rabbit during the month of June. Consider yourself warned.