I have to admit that after two decades of dealing with government agencies, I have a very low tolerance for vague and seemingly secret regulations enacted by government.
To put that statement into perspective, I'm a huge admirer of what former Idaho Congressman Helen Chenoweth-Hage did at the Boise Airport in 2004 - refusing an airport security pat-down unless she could see the rule requiring the practice. She couldn't. So she marched down to the rental car counter and drove the 400 miles to Reno.
Challis McAffee's recent security confrontation, sparked by a videotape, at the Ada County Courthouse is less grandiose, but it bugs me nonetheless - largely because McAffee was subjected to a rule the public could not reasonably be expected to know. Further, the rules evoked against him are well intended, as many rules tend to be, but a pointless overreach of judicial authority.
McAffee was at the courthouse with Chris Pentico, who was then still fighting his public property trespass conviction. McAffee was videotaping - making a record of Pentico's courthouse experience. Their first and only stop was the first floor of the five-story building, to retrieve Pentico's case file. McAffee said he was recording when several marshals raced toward him and demanded he stop. The marshals then ushered McAffee upstairs, insisted he erase his recording and handed him an order justifying their actions.
The order, signed in 2003 by 4th District Administrative Judge Darla Williamson, says video and audio recording are prohibited on the fourth and fifth floors and portions of the second floor adjacent to the courtrooms. That's fairly easy to understand. The order goes on to say that recording is banned anywhere in the courthouse that is "occupied or utilized by the 4th District Court" - hence the action against McAffee. The first floor really is in the county's domain, but a chunk of the work being done directly relates to judicial business - the handling of court records and case files.
"It qualifies as an area utilized by the District Court," explained Larry Reiner, the 4th District Court administrator.
Reiner said McAffee might have been able to record had he asked permission first, in accordance with the court order. Because he didn't, the marshals ordered him to erase the tape "because he had video acquired in noncompliance with the order," Reiner said.
"They don't just come in and start filming." Reiner said. But he acknowledged that the order isn't posted downstairs, making it impossible for the general public to know the rules. And because the order doesn't expressly mention the first floor, it's possible that posting the order wouldn't do much to inform the public of the restriction.
Even Ada County Deputy Clerk Chris Rich, who is in the courthouse almost every day and whose office has authority over that ground floor of the courthouse, was surprised by the District Court's extension of its "no recording" rule.
"I was not aware, nor was it in my understanding that the first floor came under it," Rich said. Still, Rich isn't too concerned about it, saying the court has legitimate reasons to protect its security interests.
Beyond the fact that court has mandated it, Reiner's reasons for applying the order to new portions of the public courthouse defy logic. "Jurors come and go all the time through that door. Witnesses come through that door. It's a public entrance."
True, but witnesses and jurors and other members of the public come through the main entrance of the courthouse, too, and there's no prohibition against standing outside the courthouse and making a recording of every person coming and going. At least not yet.
There's too much temptation these days to regard a guy with a video camera as some kind of a threat. But real threat comes from the ease at which government denies people the chance to observe, document, question and critique the government that is supposed to be accountable to them.
Wayne Hoffman is the executive director of the Idaho Freedom Foundation, a nonprofit, non-partisan think tank. E-mail him at [email protected].