“Light up, Everybody…”

The smoking argument. A conversation with my ‘teen’, and some suggestions.

CATO’s regulation seems to enjoy beating dead horses as much as I do. They have offered a rebuttal to the ACSH article that calls them to task for belittling the health threat posed by cigarette smoke.

Quoting from the article:

We started that article with this declaration: “Truth was an early victim in the battle against tobacco.” We ended the article with this admonition: ““When that goal [i.e., truth] yields to politics, tainting science in order to advance predetermined ends, we are all at risk. Sadly, that is exactly what has transpired as our public officials fabricate evidence to promote their crusade against big tobacco.”

OK, granted. They spin some pretty good arguments for the CDC’s figures being exaggerated. But I think they are confused about who and what is motivating the witch hunt that the CDC is simply the public edifice for. It isn’t the gov’t that is after ‘big tobacco’, as referendum after referendum and ordinance after ordinance against public smoking is proposed and passes. It’s the average person on the street who doesn’t smoke himself (which is now the majority of the population, by the way) doesn’t want to have to smell someone elses cigarette smoke, and figures “there outta be a law”. Suddenly, there are laws. This is how ‘democracy‘ works.

[Yes, I know, we’re a Republic. The majority says we aren’t any more, apparently they don’t understand the meaning of the words in the pledge that they recited daily. I guess that’s what happens when you let socialists write documents for free thinking people]
The fact that there are serious health consequences to smokers, and costs that get passed on to the government as the guy left holding the tab at the end of the night, simply buttresses the argument against allowing people to smoke, at all. Facts that the regulation article itself admits:

Second, we are wrongly censured for stating that ““the hazards of smoking remain largely speculative. “What we actually said is quite different, indeed mostly contrary: “Evidence does suggest that cigarettes substantially increase the risk of lung cancer, bronchitis, and emphysema. The relationship between smoking and other diseases is not nearly so clear.””

Pretty much puts case closed on it for me. My point in bringing up the evidence against smoking was never to call attention to ‘how many’ deaths, and the obvious manipulation of statistics to ‘awfulize’ the outcome should be ridiculed; but the facts do show a connection between poorer health, shorter less healthy lives, and smoking tobacco. Since I have health problems already, it benefits me to choose non-smoking establishments when I do go out. Luckily for me Austin is a proper socialist paradise and has taken any need to think for myself, about where to go on a night out, out of my hands.

…Which is good, because if it was left to my anarchist/libertarian brethren I’d have no choice but to walk in and sniff the air before deciding if I wanted to actually ‘stop’ anywhere. Probably just stay home in that case (the recurring “what do you want to eat?” argument is hard enough on its own) which would be cheaper.

On the bright side, watched a segment on Beyond Tomorrow tonight dealing with an ‘anti-smoking’ injection. Clinical study results are positive (success rates approaching 60 percent) which is good. Most people who try to quit ‘cold turkey’ fail (3 percent success rate) The various forms of nicotine replacement therapies fair only slightly better (30 percent success rate) So the drug manufacturer is obviously quite pleased with the results. I myself quit cold turkey, after three tries. I was able to apply an REBT technique to the nicotine craving; I would think of the smell that an empty bar has in the morning when you show up to clean it, every time I wanted a cigarette. It took a while, but I was able to beat it. I actually feel ill when I think about smoking these days. (I’m applying the technique to craving french fries now. I don’t know if that’s going to work or not. Love them fries)

I hear you saying “what if I just want to smoke?” Fine by me. Go do it somewhere else, though. Here, you can have my old supply of ‘coffin nails’, I’m not going to need them anymore.

Smokin’, smokin’; I feel alright, mamma, I’m not jokin’

Another historical argument from the file. Austin passed several smoking bans. Passed and overturned and passed again. Anyway, it lead to some interesting thoughts on mine and other’s parts. This is some of it. The rest may still be in the archive over at the Liberty List and TCLPactive.


First round: Just Say NO! to Compromise


[The city of Austin proposed a smoking ordinance in 2003 that would have banned smoking in public places. It passed. They then went on to offer to sell “smoking permits” to businesses that wanted to allow smoking (pay to get a permit to do something that you should be able to do anyway, but have to pay for because the city government felt pressured to act by all the do-gooders out there, and then realized they’d created a massive cash cow that they could suck funds out of. It’s a beautiful world, isn’t it?) There was a chance that other alternatives to the original ban might be entertained alongside the permits idea, so…]

[Rock Howard proposed the following in response to the suggestion that any form of compromise would be an abandonment of our principles as libertarians (I reprint it because I agreed with it completely at the time; and in fact still do) as an example of how a compromise on a smoking ordinance would simply clarify business practices that already exist, allowing the customer to then make an informed choice]

To me an example of a workable compromise would be:

  • If they wish, an establishment can sign up on a city maintained smoking registry, but doing so is not necessary if the owner puts up a sign near the entrance(s) of the establishment detailing their smoking policy. (Minimal signage would be: “Smoking Permitted”.)
  • If they wish, an establishment can sign up on a city maintained “smoke free” registry, but doing so is not necessary if the owner puts up a sign near the entrance(s) of the establishment to the effect detailing their smoking policy. (Minimal signage would be: “No Smoking” or “Smoke Free”.)

(Knowing the city, they would probably require Spanish language too.)

This “compromise” would hopefully placate those who consider cigarette smoke as an assault on their personages. (For some people it actually is.) As far as abridging rights goes, it is simply coupling the right of the property owner to the equal and legitimate responsibility to make their smoking policy clear to prospective patrons either through signage or by the public process of signing up on a registry.

As far as the “permit” idea goes, let’s see if we can dig up actual examples where a permitting process for smoking turned into a ban. If we can do that, then that would be helpful as it might give the business owners more intestinal fortitude about defending their rights. At this point many are seeing this as a life and death issue for their businesses and that makes more susceptible to a slippery slope compromise.

[When further objections were offered, he then posted the following:]

It is possible to stay with our principle but also get involved with the current process too. If we refuse to get involved for the sake of principle, then we abandon our constituents to their fate (which likely entails a slippery slope compromise that dooms them in the future.) The only other avenue is the courts, but we have no friends or power their either.

I have seen this fight in other cities and with the current political mindset of the voters, as long as it remains a political battle, we are doomed. If we can be smart and lucky we might be able to help craft a compromise that staves off the rights-snatchers for a while and, more importantly, helps preserve the livelihoods of our core constituents for the time being. If we do, then we will have bought ourselves some time as well as additional support for the long term project of opening up the minds of the people to the larger issue (i.e., the critical importance of personal property rights.) This will take time and money and, without it, we are just kidding ourselves about our ability to win this battle.

The only reason that I used the word “compromise” in the first place is that there are only two possibilities right now: 1) no compromise happens and the current harsh Smoking Ordinance goes into effect; or 2) a compromise occurs to stave off the most harsh effects of the ordinance for some time. I do not accept that there is a third option (as much as we would all prefer it) in the near future. I suggest that to get to the preferred outcome that we all want, it makes sense to be involved in the current process as the outcome of “no compromise” will simply kill off many of the small businesses that we are supposedly trying to support.

In point of fact, if the local [LP] works against some sort of compromise, then we are, in effect, working to enact the Smoking Ordinance. Go ahead and do so if that is what you want, but in my considered opinion that approach is counterproductive in the short, medium and long run.


A Smoker wrote:
If we try to mediate a compromise in this case, we are saying that government taking away just some of our rights is ok verses taking all of them. If we need to take this to court to fight this injustice we should, it would really make a name for ourselves. We should stand up for what’s right, not for what we feel is acceptable for the moment.

What about the rights of the non-smokers to do business in a smoke-free environment? What about the (real) health issues involved in breathing smoky air? I assure you that the solid majority of Austinites are 4-square behind an outright ban based on those two arguments alone.

I don’t agree with them, but they are our audience.

A requirement to sign the exterior of your business is no different than putting ingredients on the outside of packages, or spelling out the details of a contract in advance. It’s not a compromise, it’s collaboration; an acknowledgement that there are telling arguments for those who support a ban, but that a ban is not necessary or even desirable.

IMO, signing the exterior of your business IS what is right. Some of us would prefer to do without the smoke. Thank you, Rock, for the level headed suggestion.

[The outcome of the vote on the smoking permits ? Landslide in favor of it, the council couldn’t resist that cash cow. The local LP candidates (except for the exceptional Rock Howard) opposed all compromises and sunk any chance of sidestepping what happened then, and what happened next.]

[at the suggestion of the moderator at TCLPactive, I moved the discussion to my Liberty List]


Second round: Smoke lies are 50



[Can’t find a link for the original article that this references, ACSH reformatted the site recently, and a good portion of the old articles were lost. The copy in the Archive at LL is representative of it, however]

A Smoker wrote:
Getting in your car and driving will lead to serious health consequences, to the same degree that lighting a single cigarette will lead to serious health consequences.

It has nothing to do with the number of trips. I can get in my car right now and drive, and while I stand a statistical chance of harm, the mere act of driving the car does not increase the chance in and of itself.

My wife and I were test car drivers for quite awhile. She has driven more than a million miles. She’s still breathing.

A relative of mine has smoked 3 packs of filterless cigarettes a day for 30 years. He’s had cancer twice, (thankfully not lung cancer) cancer that is statistically related to smoking, and he still insists that the smoking isn’t the problem, all the while smoking like a chimney. He may still be breathing now, the latest radiation treatments won’t start for a few more weeks. The man could have lived in good health to the age of 100 or more, without the cigarettes. I personally don’t think he’ll see 70 because of them.

There are three kinds of men.
The one that learns by reading.
The few who learn by observation.
The rest of them have to pee on the electric fence for themselves.

Will Rogers, The Wisdom of Will Rogers


A Smoker wrote:
Your rights are not being transgressed when someone smokes in your presence, because you are free to leave, or not to breathe the smoke, or to wear a mask. Your rights are being transgressed when someone forces you to do something that harms you or others, or when they harm you directly.

When I am engaged in commerce, dining out for instance, I and the parties I am doing business with have entered into an informal contract. Part of that contract involves a smoke-free environment if you are doing business with me. During the process of commerce, while I’m eating for example, someone decides to engage in their particular form of self-destruction and lights a cigarette.

How am I ‘free to leave’? I daresay that the owner of the establishment would take exception to my departure before contracts are satisfied, before I paid in this example. As someone who is known to demand a smoke-free environment, why should I be ‘expected’ to leave? Since non-smoking is something that I demand up front, should not the smoker be ejected if he refuses to leave?

  • “wear a mask”. Why doesn’t the reverse apply? Since smoking carries no negative impacts, let the smokers wear a mask and not waste a single breath of their precious nicotine.
  • “not to breathe the smoke”. Not breathing as a choice. No, I don’t think so.
  • The truth is, when someone lights up in my presence, they are in fact forcing me to engage in their habits. It’s a cop-out for libertarians to say “you’re free to leave” or “it’s a (property) rights issue”, because that is just the surface. The reality is much more complex than that.


    A Smoker wrote:
    Your usage of “informal” is as a euphemism for implied. A contract not discussed and not agreed to is a contract which does not exist.

    Informal does not equal implied. The words have different meanings. Walk on a check at a restaurant and see if the restaurateur doesn’t think you have a contract. That you are expected to pay for services rendered and food consumed is an informal contract; informal because you did not agree to the contract in writing, in advance.


    A Smoker wrote:
    When people complain about an aspect of free-wheeling liberty (such as people lighting up whenever they please whenever the owner of the property they’re standing on doesn’t mind), it is my reflexive assumption that the person making the argument would turn a blind eye toward government force should it be stamping down on that aspect of liberty…

    I have the right to object to harm; and I will exercise that right vehemently.

    OTOH, do you put tags on your car, carry a drivers license, pay income taxes? If you answer ‘yes’ to any of those questions, then by your definition you can apply the label to yourself, because gov’t force is used to mandate things which are infringements on our liberty.

    Austin banned smoking recently, and no, I’m not going to spend time fighting that battle now. The alternative wording (signage in lieu of a ban; I would have liked to expand it to allow air quality controls and multiple uses – essentially the status quo prior to the first smoking ordinance, with a nod toward the health issues of accumulated smoke in a confined space) that I agreed with was deemed a compromise by the local activists, and they decided to ‘stand on principle’ and go down with the ship. Well, the property rights ship sank, and smoking is banned here now, unless the business owner agrees to pay the city for the ‘privilege’ of allowing smoking. As Austin is “the liberal island in the conservative sea of Texas”, this is probably the way it’s going to be for awhile.

    The net effect is positive for me personally, since health issues are deemed too touchy-feely to be taken seriously by hard-core types. My choices were reduced to either choke on the smoke of the free-wheeling, or breath the socialist air. So my fellow libertarians (who love to talk about choice) forced me to pick the lesser of two weevils. Not a position I relish, I assure you.


    [When pressed for evidence on the subject of the harmfulness of second hand smoke, I suggested this publication http://www.acsh.org/publications/booklets/ets.html ]

    A Smoker wrote:
    That’s also an assertion. I don’t know what study it’s based on but I’ve enough smoking and second hand smoking studies demolished by examining their statistical methods that I don’t put any stock in them. Cato has plenty of these. The claim that 400,000 Americans die every year from tobacco is an outright fabrication from the American Cancer Society, for example.

    Back to the original question, the only acceptable smoking ordinance IMO is having establishments clearly post their smoking policy at the entrance so you can make your decision before entering, as was suggested by Rock Howard previously

    Back at the beginning I endorsed Rock Howards proposal, so I think we’ve come full circle here. As another aside, The CATO Regulation article that is being alluded to was addressed in the ACSH article located here: http://www.acsh.org/publications/pubID.498/pub_detail.asp Needless to say that I think the scientists at ACSH are pretty sure of their numbers.


    Third round: A non-smoker clears the air on smokers’ rights



    [Can’t find a link for the original article that this references either, the site that it was on has either pulled it down or it doesn’t exist anymore. The copy in the Archive at LL is representative of it, however]

    About the only thing that the writer got right was that it’s not an issue of ‘smoker’s rights’.

    What most of the ‘average Joe’s’ who aren’t in the architecture field don’t realize is just how controlled building standards are in EVERY OTHER AREA except indoor air quality. The establishment of building codes that spell out minimum standards would go a long way toward addressing the problems of smoking vs. non-smoking; giving more choice to people in the long run rather than a strict smoking/smoke-free establishment.

    Back in the ‘good ol’ days’ the upper class spent the money to have ‘smoking rooms’, because it was ill-mannered to smoke in front of the ladies. Now we’re all slaving in a socialist paradise, chucking the niceties of proper etiquette and the class structure, dragging the unwilling along with us kicking and screaming in whichever direction the whim of the majority takes us. Soon we will all be trailer trash (what in math is referred to as a Lowest Common Denominator) and not even the trailer trash will be allowed to smoke. Ah, democracy.

    Business owners want one thing over all others: profit. I say fine; but let’s get to the real ‘cost’ and benefit of the systems that we create. restaurateur’s and Club Owner’s will not take a hard stand for property rights. It doesn’t sell food and drink; oh, they’ll cheer us on, but they’ll toe whatever line that a) causes the least trouble, and b) makes them the most cash in the system. …and the system does not take long-term health effects into account.

    So, you had business owners who were more than happy to crowd everyone together with sub-standard ventilation, breathing each others exhaust fumes, because it was cheap and the majority of the population smoked. Now the majority are non-smokers, don’t want to smell smoke, and are willing to subvert property rights (Just as it’s been done since the beginning of time) in order not to have to. Guess what? The business owners will make the just-enough-to-prove-a-point noise about it, and then roll over and comply. That’s how they ‘work the system’ to their advantage. They get to appear sympathetic to the ‘poor smoker’, but they can follow the majority and their dollars into a non-smoking paradise; best of all they get to keep their poorly ventilated, overly crowded buildings just the way they are, and look good in the process.

    Best bang for the buck that there is.

    This has been my point all along. Ya’ll can stay on the high horse of property rights, and loose; and you will loose, mark my words. If it’s a choice of defending this myth that business ownership is some kind of grandiose last stand for property, or defending my desire to breath
    cleaner air, then I’m going to breath easier. 🙂

    or…

    We could establish that the ‘system’ should take account of air quality, just as it does minimum structural standards, minimum exiting standards, minimum bathroom sizes, etc, etc, ad infinitum; call it signage, call it minimum codes, call it defending my property, my body, from the negative health effects of your bad habits; even when I’m not physically on land that I own. I don’t care what you call it, but it’s better than establishing smoking bans all over the nation, which is where we are headed right now. Then we can add Tobacco to the list of black market drugs; how about ‘smoke-easy’ establishments? Probably already exist in New York.

    Do you know what I would love to see? Smokers wearing ‘space helmets’ to smoke in. With a HEPA filtration system on the helmet, no smoke would escape to annoy the non-smokers. Can you arrest him for smoking in his own private space? Would anyone bother? That would be an argument involving the rights of the smoker, and no one else. Do you think we’d find a volunteer to test the theory? Or does even the most devout smoker balk at being cooped up in small space with too much smoke in it? If you really believe that it’s not a health hazard to smoke, then why would you not be willing to?

    “There’s no way to rule innocent men. The only power government has is the power to crack down on criminals. When there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”
    -Ayn Rand


    I’m sure some of you out there dismissed my ‘solution’ out of hand “Bah, more minimum standards. Just another there-oughta-be-a-law solution for problems that are none of the gov’ts business.”

    Now, if I were talking about ‘law’, then I would agree with you.

    However, that wasn’t the subject. Building codes are not laws. Yes, I know, in most places they are adopted and enforced as laws; but they start out as guidelines drawn up by groups concerned about public safety. They are ‘minimum standards’ for safe building, and are as necessary in the scheme of things as any written manual. Anyone interested in limiting their liability (and most businesses are) will attempt to follow some acceptable standard of practice; so the creation of minimum standards for building was inevitable and actually desirable.

    The problem with building codes is that they become bound up in the bureaucracy of gov’t. Wander down to the building dept. in nearly any city in the U.S., and you will see the stellar results we get from this approach. In Austin, the indecipherable rat’s maze of overlapping authorities has lead to the need to create an office – the ‘Development Assistance Center’ – just to tell the newcomers where they should start in the maze. One size fits all – and you will comply with the standards.

    Tying the codes to gov’t has several other undesirable side effects. I want to focus on one of them: The negative effects that rigid standards imposes on innovation. Many of the new technologies face impediments placed in their way by codes that were drawn up before they existed. IMHO, minimum standards for indoor air quality is one of the areas that has been affected by this; which has lead to the panic over the negative effects of second hand smoke.

    The solution to making the codes more responsive is to divorce the creation and enforcement of building codes from the gov’t altogether. Much like the independent UL (Underwriters Laboratories) creates minimum standards and tests assemblies and devices based on those standards, building codes should be based on logical, definable standards that can be tested, inspected and approved by any sufficiently educated third party. Allow the property owners and the professionals who design the facilities to decide what standards they wish to meet; and then hold them accountable for failures in design.

    …and the solution to the smoking issue in the built environment is to create a minimum standard for indoor air quality that addresses the publics concern.

    “It is not the strongest of the species that survive,
    nor the most intelligent,
    but the one most responsive to change.”

    – Charles Darwin


    There were arguments along the way that suggested something to the effect that “the average person doesn’t care about smoking, and so the smoking ban will never pass if put to a vote”. Not too long after the Round 3 discussion, a referendom on banning smoking indoors in Austin was put before the voters, and it passed by a slim majority. Essentially putting “Case Closed” on the subject of smoking here, and reversing the council’s transparent attempt to milk cash out of business owners who wanted to cater to smoking clientele.

    The battle goes on in court over the new ban, but it doesn’t look good. Personally, I don’t think the courts want to reverse a ban instituted by referendum, there is such a fear of the will of the majority these days that minority rights (those of individuals and groups comprising 10 percent of the population or less) are totally ignored when the majority deems it ‘necessary’.

    So the dust up over the ‘property rights’ of business owners comes to naught, except for those business owners who see a serious dent in their profit margin in complying with the new ordinance. Which is pretty much how I saw it shaping up in the beginning. I’m still waiting for the ‘smoke easys’ to appear. For all I know they already have.

    East of “the Great Wall”

    I always bristle when the average Austinite speaks up and disparages the East side of Austin. There’s this general impression of the East side (East of I-35, the “Great Wall”) as being a trouble spot, where criminals run rampant and the residents cower in terror.

    I’ve lived in East Austin for about 15 years now, and I prefer it to any other portion of Austin. Imagine my mirth when I stumbled across this site today: http://www.incidentlog.com/lookup.pl?Src=81

    In case you are wondering, the big blank spot on the East side of Austin is my ‘neighborhood’. Ah, I really love being right sometimes. Wish it happened more often.

    Supreme Court to Review Texas Redistricting

    Texas Republicans in control of the state legislature shifted congressional district boundaries enough in 2003 that 8 million people — including large blocks of Hispanics — were placed in new districts, represented by different U.S. House members, justices were told.
    Kennedy, a centrist swing voter, focused his concerns on how the shift affected Hispanics in South Texas. “It seems to me that is an affront and an insult,” he said.
    The Texas boundaries were changed after Republicans took control of both houses of the state Legislature. DeLay had helped GOP legislative candidates in 2002, and was a key player in getting the new map that benefited him and other Republican incumbents.
    Since then, however, he has struggled from the fallout. He was charged in state court with money laundering in connection with fundraising for legislative candidates. He gave up his leadership post and is fighting the charges.
    DeLay also was admonished by the House ethics committee for asking a federal agency to help track aircraft that flew several Democrats out of state as part of quorum-breaking walkouts during the bitter fight over maps.
    Justices did not mention DeLay, and he was not in the crowded courtroom.

    Austin American Statesman, High Court Tackles Political Boundry Case
    March 2, 2006

    Supreme Court of Texas contact info

    Computer redistricting. Anything else is Gerrymandering. Strangely enough, this is old news. What I want to know is, why didn’t the state act on the following two years ago?


    FOR IMMEDIATE RELEASE

    TESTIMONY FOR NON-PARTISAN REDISTRICTING

    Austin, Texas, July 2, 2003 — The Texas House of Representatives Committee on Redistricting heard testimony today from members of the Coalition for Non-partisan Redistricting, Robert Howard, Jon Roland, and Patrick Dixon.

    A video clip of the testimony can be viewed online at http://www.house.state.tx.us/fx/av/committee78/30702p38.ram. To view it you will need a viewer such as RealPlayer from http://www.real.com. See also http://www.house.state.tx.us/committees/redistricting.php.

    In their testimony, the witnesses rejected not just the proposed new redistricting map, but the map used in the last election as well, and asked the Legislature to adopt a new method of obtaining district maps that is impersonal and not subject to human tampering or political manipulation. Instead of debating and adopting particular maps, the act would provide the specifications for the computer program, called Target, to use in drawing the map, and whatever map the computer produced would be the official map to be used in the next election.

    The witnesses explained that each time the computer program is run, it produces a different map. The process is random. But all of the maps will meet the specifications. If anyone doesn’t like the maps, they should advocate different specifications. But any such specifications would be explicit and subject to public debate and judicial scrutiny.

    Roland suggested that if the Legislature is concerned about the computer producing anomalous maps, the proposal could be modified to have the computer generate, say, a dozen maps, and then have a certain number of “strikes”, as are used to exclude prospective jurors during jury selection, to be applied by various members of the Legislature to eliminate some maps. The final selection would then be made from among the remaining maps by random lot.

    Roland emphasized that this controversy threatens the precious bipartisan collegiality that has prevailed in Texas for more than a century, which allows legislative proposals from all parties and factions to be considered on their merits. If we allow such devisive issues to shatter that tradition, the result may be that only proposals by the leaders of the dominant party will have any chance of being heard. The result would not favor good or efficient government.

    The proposal is at http://www.constitution.org/reform/us/tx/redistrict/cnpr_proposal.htm.

    The Texas Legislative Council site is http://www.tlc.state.tx.us/

    For a demonstration of the computer software see
    http://txliberty.dyndns.org/inetpub/wwwroot/webfiles/LL030517H.rm

    It’s Not a Free Country Anymore

    This will not be published until the case is settled; so if you are just now reading it then don’t be too upset for my predicament. The events described are well in the past, and I waited this long to publish for legal reasons. This was the first post I wrote on the blogger edit interface, nearly fifteen years ago today. The wife convinced me that I shouldn’t make this my first post. She has always been more cautious than I am. “Let sleeping dogs lie” she told me. Let them lie until you are beyond their reach. Fifteen years should be long enough.


    I see the cop’s flashlight beam from across the street hesitate on the expired inspection sticker on my windshield. Bicycle cops using a 4th street traffic jam as an excuse to run a impromptu checkpoint. Make a few bucks in fines for the city. Captive audience with no place to go. I move forward a few car lengths, and I have a brief moment of hope that perhaps they have better things to do tonight. But no, there is a tap on my window, and the traffic is stopped again.

    I have tried and failed to get the car inspected 3 times in the previous week. I’ve only been driving this car for that amount of time. Before that it was The Wife’s car. I suggested she get the car inspected, a loathsome Texas ritual, several times over the course of the more than a year that the sticker in the windshield has been out of date. Now the lapsed inspection sticker is my problem. None of the mechanics that I frequent seem to want to be punished for improper inspections that they aren’t allowed to profit from, so they don’t want to inspect old cars. State inspections now require carbon monoxide metering equipment, equipment which must be maintained and adjusted to work properly. So here I am with an expired inspection sticker visible on the windshield, stuck in traffic, about to have a memorable encounter with a police officer.

    I had just called The Wife and told her I would be by to pick her up shortly. It’s the big weekend of Austin Film Festival, Saturday night on 5th Street. Lots of parties to hobnob with movie types and wanna be movie types are occurring all around town. This is probably why 6th street is closed, and traffic is at a standstill on the neighboring streets. Tourists and investors are in town for the big weekend. She got a AFF Producer’s badge for her birthday, and has been enjoying herself immensely all week. Tonight she’s partying, and needs a ride home. I didn’t see the problem with that. Told her I’d be right down to pick her up.

    I hate driving downtown. Everyone downtown has a corncob up their ass, and they’re always in lemming-like flight to get wherever they should have been 5 minutes ago. I get confused easily these days, with the disorientation and the tinnitus. I take wrong turns, I drive too slowly; basically, I get in everyone’s way. So I don’t go downtown unless I have to.

    Another tap at the window, this one much harder. Clearly, he’s expecting an answer. Checking that the doors are locked, I crack the window and ask, in my usual manner “may I help you”. The words are “may I help you”, but the tone is clear that I would prefer not to be of help. I’ve been perfecting that double entendre for years. I probably should have stuck to “what” or “Yes Officer”. I might actually have answered “yes”, which is my other favorite. Yes, which clearly sounds like “No”. Again, not a wise move.

    His response was “What do you mean, can I help you? Your inspection sticker is two years out of date.”

    That annoyed me. It’s not two years out of date. Admittedly, the second anniversary of the cars last inspection is rapidly approaching two years, but it hasn’t been two years yet. I respond with a negative. “It’s hasn’t been two years yet.” Oh, that’s bad. It’s about to get worse.

    He’s blunt again. “Gimme your license and insurance.”

    Gimme. That’s not even a word. Is please too much to ask? Stupid question. Oh well. I grab my wallet off the passenger seat (where it generally is these days, sciatica doesn’t respond well to objects in the back pockets) and proceed to get my driver’s license.

    Another directive. “Pull over onto these tracks and get out of the car”

    OK. Now there’s a problem. All along the street, in about 4 places so far, are signs warning you not to drive on the tracks. My car has just had new tires put on, and I’ve spent the better part of a month’s income getting the front end aligned and the brakes done, in preparation of getting it inspected. There are huge (and I mean, huge) city titties along the driving side of the tracks. On top of all this, there is a temporary barricade very close to being parallel to the front of my car. I know the road widens ahead. Pull on the tracks? No, it’s illegal, it’s barely possible, and I might damage my car. Can I pull ahead instead? I get as far as “I can’t drive on the tracks, it’s illegal. There’s a sign back there…”

    He said “that’s enough of that” and opened the door. I panicked. The door was supposed to be locked. I checked it. I wasn’t even sure he was a cop until he started talking in his cop voice. I reflexively grabbed for the door handle and tried to pull the door closed. He then said “Oh, you are not going to do that!” and grabbed my arm, pulling my upper body out of the car. Mind you, the car is still in gear, and my feet are on the clutch and brake. If I let my feet off the pedals, the car will surge forward, injuring me and the police officer. So I wedge myself into the seat and hope someone will either let go, or take the car out of gear. I can’t take the car out of gear, because now they have both hands.

    Lucky for all of us, one of the cops says “I think the car is still in gear” I don’t remember much else for a bit, because they pepper sprayed me while I was preventing them from getting us all injured, holding the clutch down. I might have popped the clutch at the last minute. I don’t remember. What I do remember is one of the guys stepped on me to get into the car. After they were sure the car wasn’t going anywhere, they dragged me across the pavement for a bit so they could get the handcuffs on. I do remember that I still had my wallet in my hand, because trying to do something with it got me pepper sprayed a second time, and so I just dropped the wallet on the ground.

    After they picked me up and set me on a curb, the police officer who started this whole mess had the gall to ask me “why did you do that?” Which struck me as ironic, since I hadn’t done anything. I was bruised, pepper-blinded and handcuffed on a curb because of my not doing whatever it was he was asking me to do. This was a question I could well have asked him. Hell, I probably did ask him amongst all the subsequent cursing.

    I’ll freely admit to harsh language on the curb. Before the curb, it was “What are you doing?”, “I haven’t done anything!” and “get off me!” After the curb, the language was much more blue. I demanded badge numbers. Pointless, since I couldn’t write anything down with my hands cuffed. I told them I was going to sue all of them. Everyone handcuffed and bleeding says that. I shouted “police brutality” a few times. People walking by laughed. Schadenfreude. In the end “I just want to go home” is all I would say in response to any inquiry. Some wiseguy must have triggered on that, because they started talking amongst themselves, then one of them came over and asked me “You do know you are under arrest, right?” I’m sitting on a curb, handcuffed and bleeding after being physically dragged out of my car. There are no secrets to be revealed in this predicament. It is kind of obvious now that I’ve been arrested. It would have been nice if they had said that phrase earlier. It would have made a difference.

    Had I been informed I was being arrested, I would have simply taken the car out of gear and exited the vehicle. Since I had not been informed that I was under arrest until I was sitting on a curb, handcuffed and bleeding, I’m not sure how it could be said I resisted arrest. That didn’t stop them from charging me with resisting arrest, when the time came.

    They also threw in the nugget failure to comply with a lawful order which has the added bonus of getting me tried in two courts, since the resist charge is a county level offense, and the failure charge is municipal offense. You gotta make sure to grease all those palms with fines. Can’t have the state of Texas or Travis county go hungry. They need their blood money too. You, the arresting officer, need to make sure the poor, disadvantaged, disabled sap you’ve just abducted from his car on the way to pick up his wife from a party he told her to go to has to waste as much of his, her, their time as you can get from them since failure to appear is how most of the return visits to the county lockup are generated.

    The order to pull onto the railroad tracks wasn’t lawful, and since I wasn’t given the chance to produce my identification while being dragged bodily from my car, I don’t know what basis in fact there was for that charge either. But they charged with that, too.

    The officer was sure to shout his justification in my face, during the curbside encounter. “If I tell you to do it, it’s a lawful order!” I said, with no qualms of my being wrong on this, “Bullshit.” He could very well have just had someone pull over onto the tracks before I got there. The police report says they did, that they had been running a lawful checkpoint when they encountered me.

    I don’t know about lawful checkpoint. I saw four guys gossiping on the side of the road, one with a flashlight. It looked like they might have been cops and it turned out that they were. Four large men, hopped up on adrenaline, having just broke up a near-riot on sixth street. So they were looking for trouble and found some in a middle aged former CAD guru with Meniere’s disease. What a score for them.

    What they were engaging in didn’t look like an active checkpoint. Shooting the shit with buddies you were just cracking heads with rarely looks like organization of any kind. What it meant, if they did order someone onto the tracks before me and he followed directions, was that the last guy didn’t want to get cuffed and arrested. Probably a smart move, but not exactly the basis for a telling argument for giving a lawful order. If a cop tells you to shoot someone it’s not a lawful order. There are laws contradicting his order. So too with moving violations. The order was unlawful, because it was contrary to posted rules. Had I driven onto the tracks, and then they arrested me, they could have easily said that I had committed a moving violation, just like if in pulling me out of my car they caused the car to run into another car, that moving violation would have been my fault as well. That charge would have held up in court, just like the other two.

    This police report is an excellent work of fiction, I say as I sit looking at it. A tale worthy of any number of police dramas on television. The perpetrator locked his hands in the wheel. The perpetrator refused multiple requests that he exit the vehicle. I say again, with feeling, Bullshit. Of course, I won’t discover the fiction these cops have crafted for me to participate in for three or four days, on the day when my first court date is set. That’s all later on. Much later on.

    Right now, I’m going to jail. The EMT’s show up at some point and rinse my face. They were in the area, so stopped by. They were the first people to tell me that pepper spray can’t be washed off. It can be washed off. Dawn dishwashing liquid takes it right off. I found that out later, too. Then the police cruiser shows up and parks right in the spot I wanted to pull over to. The spot with no tracks and no signs saying don’t pull over here. That figures. Then comes the lovely and entertaining ride to the county jail. I get to ride in a paddywagon next to vomiting drunks. This is just the first in a long list of experiences that could not be over quick enough but yet went on all night long.

    After the lovely transportation experience comes the 8 plus hour wait in the drunk tank for processing. I’ve been told I was lucky. The stay in the tank can amount to days sometimes. Days I hear you say? Why days? Because they can wait that long. What does that expense amount to? No idea.

    Did I mention the sciatica? No, I only mentioned the Meniere’s. Try sitting for 8 hours, staring at a wall, while a knife slowly cuts into the back of your leg. I call that inhumane torture, myself. The sitting is enforced. I tried to stand any number of times, because standing takes the pressure off the nerve that is being pinched, but I was always told promptly to “sit”. There were plenty of badges around to keep you in your place, but apparently not enough hands to shorten 15 minutes worth of ID-ing from the 8 hours that it took.

    Why would you want to do that? Speed things up? We’re all guilty in there, anyway. The medic who looked at my cuts and bruises made that perfectly clear, if the cops who brought me to the drunk tank hadn’t made it clear previously. “What are you doing downtown tonight Mr. Steele?” “Picking up my wife” “Had anything to drink” “No” “So, you just came downtown to drive around, eh?”

    Apparently picking up my wife wasn’t a good enough reason to drive around. I have Meniere’s disease. Looking drunk is what I look like on a good day. It’s frequently what I drive like too, which is why I don’t do much driving. “I wish I hadn’t been driving”, I tell her. I made sure she noted all the lacerations. She also told me I couldn’t wash off the pepper spray, so I wore it for the full time I was there.

    Speaking of The Wife. She wandered all over downtown Austin, trying to find me. After about 3 hours, she gave up and hired a car to take her home. She then proceeded to call the police and hospitals. It wasn’t until she tried to file a missing person’s request that the police admitted that they had arrested me. For my part, I couldn’t call her. My cell phone rang while they were cataloging my property. It was The Wife. I’d already been told that I was going to be charged with a felony if I picked the phone back up off the table.

    Charge me with a felony! For not being willing to violate a law posted on a sign in clear view from my vehicle, based solely on a cop’s order. If I disobeyed an order again I would be charged with a felony. Well, fine. When I asked if I could please answer the phone? I was told no, I could use the phones in the tank. That was yet another lie. There were no phones I could use except the ones they had confiscated from me and the drunks I was brought in with. They did activate a phone line for my one phone call, but you can’t call cell phones from detention so I couldn’t call the Wife who was on her cell phone calling me just moments previously. Can’t call cell phones? Nope. You can’t call them at all. It simply wasn’t something their system was set up to allow for. I’m the only person I know that still maintains a landline, so I was luckily able to call my house and talk to someone. But that was the only time I spoke to anyone who wasn’t talking to a perpetrator until I was released.

    I don’t think I can say enough about the phones. It’s criminal. There is no functional way to communicate from within Travis County jail. They inexplicably take your cell phone from you when they put you in the tank, and then tease you with phones that won’t call 90% of the phones in use today. If, like me, you’ve had poor saps trapped in prison misdialing your number for weeks on end, and you’ve had your number blocked by the completely useless company that services the completely useless prison phones, then you can’t even call your own house collect. What is the reason for confiscating cell phones? We’re allowed to make calls. They made me take the cash out of my wallet and keep it. But I couldn’t keep my cell phone. Does this make any sense?

    Just let me keep my phone. Better yet, just process me and let me go.

    Then there’s the tank itself. It’s dirty, smelly, and freezing. I was only brave enough to go in the restroom once, and I couldn’t bring myself to drink anything or use the facilities at all. Gross doesn’t begin to describe everything about the place. From the dripping fluid all over the restroom to the baby blue vinyl covered foam benches, to the indescribable mess on the floor and the smell of the place. And the freezing cold. Did I mention it was cold?

    But there was a TV. You couldn’t watch it from the seats in the tank itself because you’d break your neck looking up at it, and there was no sound that I could hear with my half-deaf ears. For hours we sat there, staring at an equally disgusting baby blue wall that needed to be repainted some other color about ten years previously. The only entertainment to be had was the occasional fistfight. I witnessed four fistfights that night. I saw more fights that night than I’d seen in a decade of working in nightclubs. I think I saw three in clubs, and they caused less damage to the participants. Bouncers are a bit more concerned about the health of bar patrons than cops are for the perps they’ve arrested.

    Three of the fights were started by the same guy that they kept insisting on putting back in the tank, where he would start another fight. He eventually was locked up in isolation, which was probably what he wanted in the first place.

    We were all perps anyway. We’re all guilty, right? When I stood up on the back deck of the paddy wagon, arms trussed up behind me, did anyone remember that I was disabled? Had bouts of vertigo? No, of course not. I had to shout it two or three times “I’m dizzy, I’m going to fall!” before someone helped me down off the deck. They don’t give a shit. Why should they?

    At about 8 am, having delayed processing as long as they possibly can, they take us to see the judge. Now it’s time to start making us look like convicts. They herded us in groups into the next room, and then had us go into private rooms to change into prison clothes, and then we were assigned cells for our stay in the pokey. I could finally stop carrying the couple of hundred dollars in cash in my pocket, sitting next to people who probably don’t have that much in the bank, one of them a guy just looking to start a fight over nothing, much less cash. Repeatedly. I might have finally been able to sleep. If there had been a pillow in the cell, or a real mattress. There wasn’t, and I can’t sleep laying flat anyway. Vertigo sets in when I start to drift off. So I dozed. I had now been up for more than 24 hours.

    At about 10 am, they take us before the judge, properly attired in our prison grays. Guilty before being proven innocent, in all but name. It’s just magistration, they tell us. We all listen to a lengthy speech about rights and representation, and answer one question, and then back to our cells we go.

    No, the question was not about guilt. We’re wearing prison grays. Is there a question here? The question was about representation. The judicial system is administered by lawyers for lawyers. Representation is important, in the situation we found ourselves in, me and my fellow perpetrators.

    So we go back our cozy cells to wait on our bond results. If you get bonded, that’s your get out of jail card. If you don’t, you get to remain in the Travis County justice system’s gentle care for as long as it takes for your case to resolve. I was one of the lucky ones. I was out around noon. 12 hours of torture, in every sense of the word, and I’m a free man. Well, freer than I was in any of the last twelve hours. Poorer now, too. Someone has to pay that bond.

    It took months for the case to be resolved, months I could have spent in the county jail without someone posting a bond for me. The attorney I hired advised me to settle out of court. This is what all attorneys tell you. Plead nolo contendere and take whatever the court offers you in exchange for not demanding a jury trial. The system is set up to facilitate plea-bargaining, not courtroom dramas.

    I wanted a jury trial. That’s what I wanted. I wanted my day in court. But the attorney was right. I would have lost. I’ve watched enough injustice play out since the day this happened to me to know this is true whether I like it or not. Cops get away with murder. Cops routinely get away with murder because prosecutors don’t want to prosecute them. Cops get away with murder because juries believe them rather than believe any normal citizen, even one that hasn’t done anything to be sitting in court that day. They were going to believe the fiction that my arresting officers had written up as evidence, not me and my picture of a sign saying “do not drive on train tracks”.

    So what I got was nolo contendere and ten hours of community service, all of which I gave to the local humane shelter. I liked the dogs more than I liked anyone I encountered on that night. I should have told the Wife to take a cab home. I should have told her that, because she ended up in a cab anyway and the cab ride was much, much cheaper. So are the inspection stickers that I get right on time now. Right on time. Don’t want no trouble, boss. I’m trying to keep my nose clean, sir.


    While sitting on the curb that night, chatting with my abductors, it all came home to me. One of them told me “driving is a privilege” in response to my insistence that an inspection sticker was hardly a justification for this situation.

    In Texas, driving is not a privilege, it’s a necessity. Pretending that you can make a living without access to a vehicle is a complete joke. You can’t make a living without a car in Texas. You can survive, but just barely survive. You cannot be more than impoverished and homeless in Texas without a car. Everything from the grocery store to the school your children attend can only be accessed by motor vehicle. You take your life in your own hands, walking on Texas roads. Nonsense like “Vehicle Inspection” just puts a further burden on people living on the margins; especially when keeping your vehicle in working order is more important to you and your continued livelihood than it can ever be to the state.

    Most often the lack of an inspection sticker is used like it was used on me. It is an excuse for a fishing expedition to look for other fines that can be collected, other crimes that can be booked. But the car starts just fine without an inspection sticker, and the kids need to be fed more than the car needs that sticker. Before you know it, two years pass, and you’re face down in the street with four cops kneeling on your back putting you in handcuffs. Sure, now it looks stupid not to get that $25 sticker. Spending hours looking for a shop to do an inspection, and then spending hours waiting for an inspection seems pretty insignificant in comparison. Silly me, I never thought to prioritize demands based on the relative amount of torture one must endure; as opposed to, say, how much joy I get from it.

    At the end of the little curbside chat session, when the question “Why did you do that?” was repeated, I said “I thought I lived in a free country” I was emphatically told by the (now) arresting officer “No, it’s not!” He was being a sarcastic prick when he said that, but no truer words have ever been spoken by any man. It’s time to sing a bar of Alice’s Restaurant, and walk out now. The observation is even more true today when I finally hit publish on this piece (January 22, 2019) than in was back in 2005 when it happened. We don’t live in a free country, and it’s getting a lot less freer with each passing minute.