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Jewish World Review April 30, 2001/ 7 Iyar 5761

Wesley Pruden

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Deadly soccer moms
amok among us -- SHAKESPEARE got it only half right: "First, we kill all the lawyers." He might have started with judges.

Two decisions this week, one at the bottom of the judicial pecking order and the other at the top, are perfect examples of why growing numbers of Americans are puzzled and often disgusted with judges who seem to interpret and enforce the law by whim and and capriciousness. Maybe it all depends on whose wife is giving who a hard time (and maybe not much else). Judges, being human, have to take it out on someone.

A judge in Fairfax County, with the wonderfully apt name of McWeeny, ordered the owner of a golf course held in jail because the county bureaucrats didnīt like his taste in landscaping artistry. He planted 700 trees at his Golf Park at Hunter Mill, and the bureaucrats -- holding to standards of taste and refinement found only in a county courthouse -- said he must move 92 of the trees and plant 50 more. John Thoburn, the errant landscaper, balked. Judge McWeeny threw him in jail, and there he has sat for 71 days and counting.

Judge McWeeny insists that "the last thing I want to do is put Mr. Thoburn in jail," but the record demonstrates that this was the first thing the judicial weenie thought to do.

Petty bureaucrats are always infuriated when ordinary citizens donīt step as lively as they ought to, and the judges of the minor courts often regard themselves as major gods. Judge McWeeny refused to free Mr. Thoburn and leave it to the Fairfax County Zoning Board to settle the matter at its next regular meeting in June. He insisted that the matter had already been litigated, there was nothing left for Mr. Thoburn to say and unless he agreed to satisfy the refined sensibilities of the courthouse regulars it would serve him right to rot in jail.

Mr. Thoburn, to no oneīs surprise, has become a national and even international hero, whose abuse by the courts of Fairfax County has become widely followed on the Internet. "Itīs crazy," says Mr. Thoburnīs sister-in-law, Jo Thoburn. "This is a matter of basic property rights."

Crazy, maybe, but thereīs precedent for judicial endorsement of capricious law enforcement. On that very day, the United States Supreme Court upheld the right of cops to seize, arrest, handcuff, humiliate, embarrass and mortify soccer moms, and maybe even abuse their children.

The cops, five members of the court said, have every right to seize, cuff and take to jail those whom they arrest on minor infractions of the law, even if those infractions are merely misdemeanors and the guilty parties pose no threat to anyone. Justice David Souter conceded that the cop who arrested Gail Atwater in Lago Vista, Texas, exercised "extremely poor judgment" and inflicted "gratuitous humiliation," but it was nevertheless OK to cuff her, refuse to let her make arrangements with someone to care for her two frightened children, and haul her off to jail to post a $352 bond to make sure she could pay a $50 fine for not wearing a seat belt.

"The arrest and booking were inconvenient and embarrassing to [Mrs.] Atwater," Justice Souter said, "but not so extraordinary as to violate the Fourth Amendment." Thereīs no evidence that cops and local governments are eager to round up large numbers of people for petty offenses, he said, and added with the gratuitous sarcasm he no doubt imagined was wit: "The country is not confronting anything like an epidemic of minor-offense arrests." Perhaps not, but from the monastery that is the Supreme Court a 62-year-old bachelor who lived with his mommy into his sixth decade would not see such an epidemic if there was one.

Sandra Day OīConnor, writing for the three other dissenters on the court -- John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer -- described Mrs. Atwaterīs arrest as "the quintessential seizure" that opens the way for what would otherwise be an unlawful search, making it easy for lazy cops and collaborating judges to breach the rights of citizens.

"The court neglects the Fourth Amendmentīs express command in the name of administrative ease," she wrote. "In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness."

The world must be made safe from the monsters among us, of course, and the lot of a policeman is not always a happy one. We can only imagine Officer Turekīs terror of soccer moms in Lago Vista when he had to face down not only Mom but two frightened children. What if the children were armed with half-eaten peanut butter-and-jelly sandwiches? The law, as Charles Dickens famously observed, is a ass. And sometimes the cops and judges who enforce it.

JWR contributor Wesley Pruden is editor in chief of The Washington Times. Comment by clicking here.


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