Patterico's Pontifications

8/14/2007

What Can Legally Be Done About This Creep?

Filed under: Civil Liberties,General,Scum — Patterico @ 5:39 am



Here in L.A., a man has been proudly telling the public about his attraction to young girls:

Jack McClellan publicizes his attraction to young girls, does the rounds of television news and talk shows, and cooperates with the police.

When Santa Monica police confronted him last week at a Jack in the Box — after he had been spotted in the children’s section of the city’s main library by a nervous mother who called police — he agreed to let officers photograph him.

. . . .

As he did in the Seattle area where he lived previously, McClellan set up a website — now dismantled — to rate the summer festivals, parks and other places he has sought out as venues for catching a glimpse of young girls.

“Basically it advises pedophiles where to go to find children whom he identifies as LGs — little girls — and he rates the locations 1 to 5 with five being the best,” said [Sheriff’s Capt. Joe] Gutierrez, who confirmed he had seen the website and that the “information on it did not amount to the level of a crime.”

But there is apparently no evidence that he has acted on his feelings:

According to authorities, the 45-year-old McClellan, who appears to live mostly out of his car and favor the Westside, has no arrest or conviction record in the United States. He is not a registered sex offender.

Nevertheless, concerned parents recently obtained a restraining order against him, of extraordinary sweep:

In a surprising move, a Los Angeles County Superior Court judge on Friday granted a sweeping temporary restraining order barring self-proclaimed pedophile Jack McClellan from coming within 10 yards of any child in California.

And he was just arrested pursuant to that restraining order:

Self-proclaimed pedophile Jack McClellan was arrested at UCLA twice Monday, first in the afternoon outside a child development building on suspicion of violating a statewide restraining order prohibiting him from coming within 10 yards of any child in California.

He was detained again about 10:20 p.m. after UCLA police saw McClellan, 45, being interviewed on a TV newscast while standing in a campus parking lot. A university spokesperson said McClellan was booked for trespassing.

Was he accidentally around children because he couldn’t help it? No . . .

In the earlier incident, McClellan was observed in the area of the university’s Infant Development Program.

Clearly, this guy is not someone I’d want around my kids. I understand the desire to keep him away from kids, given his public statements and extremely creepy actions.

But this restraining order is now going to be tested, and I can’t see how it will survive scrutiny. I tend to agree with Eugene Volokh, quoted in the second article linked above:

[T]he breadth of the order raised some questions for 1st Amendment expert Eugene Volokh, who called it “more or less house arrest.” Volokh, a UCLA law professor, said that restricting McClellan to 10 yards away from any child in California means “you can’t go to the store, you can’t walk down the street …. He can’t go to court to challenge this. How can you be sure you can stay away from anyone 17 and younger?”

. . . .

“They have an understandable worry this guy is going to do something bad,” said Volokh. “But that’s not enough. You need at least probable cause to believe some crime has been committed.”

I also tend to agree with the editors of the Los Angeles Times (and that’s a phrase I type with trepidation, believe me) when they say: “We want to thwart him, but not in ways that endanger our civil liberties.”

The thing is, what are the ways?

54 Responses to “What Can Legally Be Done About This Creep?”

  1. I don’t think there’s any legal solution unless or until he actually does something illegal. The best way to thwart this slimeball is to make sure that everyone, and I mean everyone, knows who he is.

    Someone should create a warning poster, a la the Wanted poster, and see that it goes viral. Every school, day care facility, youth organization, church, arcade, movie theater, supermarket, convenience store and mall should have a copy or 6 of it posted.

    Pablo (99243e)

  2. Legally I don’t believe any action can be taken against him. Disgusting as he is, he is exercising his 1st A. rights.

    Until his actions threaten particular children in the area (and I don’t know if he has and to what extent), I don’t even see how the restraining order can be justified.

    Nothing but vigilance from the community. Maybe a sting operation from local law enforcement? A la America’s Most Wanted. See if he takes the bait.

    Fco (201cb0)

  3. He was ordered not to harass children which he does by taking their photos. When arrested, he had his camera. So, that’s enough to find him in contempt.

    I keep hearing he has Washington State plates on his car. Even though he is homeless, he is now a resident of California and shd be required to have CA plates, CA car registration, CDL, and CA insurance. If not, arrest him and impound his car.

    sam (97a0ab)

  4. Pablo, does such a warning poster constitute slander? (Or libel. I can never keep them straight.) If he has been convicted of no crime, then what warning can be publicly posted? If the restraining order is thrown out, such posters become even less possible.

    Someday, the peasants may rise up and insist that the reason that they are currently supporting civilization with half of our income, is that they expect civilization to keep things, well, civilized. Safety. Protection. Things like that. Insistence on the freedom of criminals (who may not be able to speak English), pedophiles (who haven’t yet been convicted of pedophilia), or people who are very likely to be criminals and pedophiles, runs contrary to the concept of civilization.

    Maybe the answer lies in a slightly less civilized civilization.

    A puzzling aspect of the case: He lived in Seattle, apparently with sufficient means to manage a website. Now he lives in LA, apparently in his car. What made him move? Was there pressure, official or otherwise, that prompted the move to LA?

    Does the phrase “who appears to live mostly out of his car…” mean that he has no legal residence, or does he just spend a lot of time in his car?

    He apparently has opened another website while living in LA. What is the source of income that makes this possible?

    Scott (8db77f)

  5. Thing is, the restraining order is unlawful. It’s not going to stand up.

    Residency is established by having a residence, employment and other things that show an intent to remain. Without those, it’s pretty tough to say he’s a CA resident, and even if they make that case, I doubt it’s an arrestable offense. Probably just a ticket. As long as his WA DL, plates and insurance are valid and he can’t be shown to be a CA resident, he’s legal.

    Pablo (99243e)

  6. sam:

    He was ordered not to harass children which he does by taking their photos. When arrested, he had his camera. So, that’s enough to find him in contempt.

    You can take anyone’s picture while they’re in public. If he’s using those pictures on a website for the purpose of arousal/gratification of pedophiles, that might border on child pornography.

    Fco (201cb0)

  7. Pablo, does such a warning poster constitute slander? (Or libel. I can never keep them straight.) If he has been convicted of no crime, then what warning can be publicly posted?

    Scott, he’s a self admitted pedophile. Truth is an absolute defense to such claims. When your claim is based on the person’s own admissions, it’s be pretty tough to sustain a libel complaint against you. And if it’s viral, it’d be pretty tough to sue everyone.

    Does the phrase “who appears to live mostly out of his car…” mean that he has no legal residence, or does he just spend a lot of time in his car?

    I’ve heard him referred to on TV as homeless.

    Pablo (99243e)

  8. If he’s using those pictures on a website for the purpose of arousal/gratification of pedophiles, that might border on child pornography.

    Only if they’re pornographic, which they’re not.

    This creep knows where the lines are and he’s toeing them very intentionally and provocatively. He’s playing with the system.

    Pablo (99243e)

  9. You can take anyone’s picture while they’re in public.

    Not when you’ve been ordered not to by a court.

    sam (97a0ab)

  10. one wonders if he is more attracted to attention than to little girls. attention at any cost

    quasimodo (edc74e)

  11. Heh, interesting. The guy sounds creepy as hell, but the story is very Minority Report-ish. Punishing him for future crimes he may or may not commit. I’d like to think there is some sort of middle ground here. Not letting him have the web site crossed my mind, but even that seems like it’d create a bad precident…

    CorinthianJest (210cdc)

  12. He maybe homeless but he is still living in California and driving/parking his car on CA streets. He’s required to obey the law.

    sam (97a0ab)

  13. Only if they’re pornographic, which they’re not.

    Not quite. In CA it’s against the law to annoy a child. (Pen. Code, § 647.6, subd. (a).)

    The question for an appellate court reviewing a conviction under this section is whether, “[u]nder
    the circumstances, a trier of fact could reasonably conclude that [defendant’s] conduct
    in this case was motivated by an untoward sexual interest in young children.” (People
    v. Kongs (1994) 30 Cal.App.4th 1741, 1751.) The perpetrator’s actions need not be
    lewd in themselves, and actual touching of the child is not required. (People v.
    Thompson (1988) 206 Cal.App.3d 459, 463-468.) The annoying or molesting quality of the act required for the crime depends on its objective features regardless of whether the child was actually annoyed or molested by the act. (In re Gladys R.,
    supra, 1 Cal.3d at p. 868.)

    In Kongs, the conduct of a photographer who posed 10 year old model to focus the camera on area below her waist deemed motivated by sexual interest in young children]; People v. Thompson (1988) 206 Cal.App.3d 459,
    468 [conduct of a defendant who followed 12 year old victim in his car, slowly passing
    and repassing her numerous times, at one point shaking his hand and moving his mouth
    as if whispering or pursing his lips found sufficient to sustain conviction for annoying
    or molesting a minor].)

    sam (97a0ab)

  14. Thing is, the restraining order is unlawful. It’s not going to stand up.

    I disagree. It maybe a bit too broad, but he was outside a child development center. Other restraining orders requiring people to stay around playgrounds or other places where children are none to congregate are legal.

    Residency is established by having a residence, employment and other things that show an intent to remain.

    Residency is established by living here. Granted employment may be proof of residence, but the fact that he has no other place to go and he remains here, is proof that he is a resident. He doesn’t get a pass on our laws and taxes. We pay a lot of money to register and insure our cars every year. He doesn’t get a break on it.

    sam (97a0ab)

  15. That should have been: Other restraining orders requiring people to stay away from playgrounds or other places where children are found to congregate are legal.

    sam (97a0ab)

  16. Not letting him have the web site crossed my mind, but even that seems like it’d create a bad precident…

    No, it set a very good precedent. Who the hell wants to go on the internet and see their kid’s photo posted on a pedo website. I won’t be shock if this guy winds up with a bullet in his head.

    sam (97a0ab)

  17. sam:

    His website is protected speech. It can’t be shut down unless it’s pornographic. He can post pictures of anyone’s children as long as they were taken in a public place and are not pornograpic.

    Restraining orders legally prevent people from congregating where children are when they’ve been declared sex offenders. Not for expressing their desire to do so.

    Fco (201cb0)

  18. I’d say public shaming would be the way to go, if I didn’t think this scumbag would get off on it.

    I'm Geekier (9efea5)

  19. His website is protected speech. It can’t be shut down unless it’s pornographic. He can post pictures of anyone’s children as long as they were taken in a public place and are not pornograpic.

    He can also wind up with a bullet in his head. His choice. And his website was shut down.

    Restraining orders legally prevent people from congregating where children are when they’ve been declared sex offenders. Not for expressing their desire to do so.

    Restraining orders are issued every day restricting people from congregating in areas or coming within X number of feet of individuals without any underlying criminal conviction or declaration.

    sam (97a0ab)

  20. I heard a caller on the John and Ken show who claimed to be a practicing psychologist and who said McClellan exhibits classic symptoms for Paranoid Schizophrenia, and that he probably is not a child molester. He said McClellan may even take on a different persona in the future.

    Today I read that McClellan receives social security for disability. Coincidentally, I have a relative that is on SS disability for schizophrenia. Could this be an explanation for this odd behavior?

    TakeFive (2bf7bd)

  21. Patterico –

    Check your Gmail account.

    TakeFive (2bf7bd)

  22. Ah… perhaps that caller to the John and Ken show was a sock puppet:

    “I heavily doubt Jack is even a pedophile,” Zinnanti [McClellan’s attorney] said while noting that he is not a therapist. “To me, he exhibits symptoms of someone suffering from paranoid schizophrenia who is self-medicated.”

    McClellan, who told The Signal last week that he receives disability checks for diagnosed depression, may suffer from a more serious ailment, Zinnanti said.

    http://www.the-signal.com/?module=displaystory&story_id=50013&format=html

    TakeFive (2bf7bd)

  23. sam,

    Residency is established by living here.

    And “living here” is established by having a home, which he doesn’t seem to. I can go on a 6 month vacation to CA without establishing residency.

    I disagree. It maybe a bit too broad, but he was outside a child development center.

    Well, if it’s too broad, it’s unlawful. It’s both in this case, and it’s going to get shot down, which will create just the sort of attention this scumbag wants. You can’t be convicted of violating an unlawful order.

    CorinthianJest,

    Not letting him have the web site crossed my mind, but even that seems like it’d create a bad precident…

    That seems like a job for the webhost which would be entirely within its rights to pull content like that down. Of course, he could set up his own server, and that’s where the hackers come in.

    Pablo (99243e)

  24. sam:

    And his website was shut down.

    I’ll bet by the ISP or hosting service who chose not to service his site. Not the govt authorities. If there had been something illegal to his site, he would have been jailed.

    Restraining orders are issued every day restricting people from congregating in areas or coming within X number of feet of individuals without any underlying criminal conviction or declaration.

    To protect specific individuals when there is a reasonable fear of harm. Not to an entire class of persons (children) without any action to prove he is a threat.

    It’d be like restraining KKK members from coming into the vicinity of jews or african-americans.

    Fco (201cb0)

  25. And “living here” is established by having a home, which he doesn’t seem to.

    The Bowery is filled with people who do have a “home” but are residents. Again, he doesn’t get a pass from paying taxes if he is going to drive on our streets. Impound the car until he complies with the law.

    Well, if it’s too broad, it’s unlawful.

    Part of it may be unlawful. The fact that he was just outside a child development center with a camera should stand.

    That seems like a job for the webhost which would be entirely within its rights to pull content like that down.

    His website was shut down.

    sam (97a0ab)

  26. I’ll bet by the ISP or hosting service who chose not to service his site. Not the govt authorities.

    His website was shut down.

    To protect specific individuals when there is a reasonable fear of harm. Not to an entire class of persons (children) without any action to prove he is a threat

    .

    Restraining orders are issued every day ordering people to stay away from children, not specific children, and where children are know to congregate. He has a history of child annoying, has indicated that he would continue to annoy children, and it was reasonable to believe that he was outside the child development center with his camera in order to continue annoying children and in violation of a court order.

    sam (97a0ab)

  27. I can’t type. That should have been: The Bowery is filled with people who do not have a “home” but are residents.

    sam (97a0ab)

  28. Summary execution works every time.

    Senor Bumblebee (5a473d)

  29. I know this may make me a heretic, but simply thinking about a crime is not enough to restrict his rights. Follow him. Inform the public of his desires. But restraining his day to day activities or jailing him for his thoughts seems unconscionable to me. Unfortunately, our legal system is designing to deal with the aftermath of crimes.

    JD (815fda)

  30. Came across this:

    A friend of mine…has been doing further research into Jack McClellan’s sites. …he[McClellan] provided another service to the citizens of this fair city. He ran the “Seattle – Vancouver street prostitution guide”

    and wrote:

    During that time I developed an attraction to prepubescent girls (which I believe was in my subconscious all my adult life), and have decided to act on it while I still look young enough to be perceived as father-age… Watching these girls frolic while I’m high on psychedelic plants …

    Interesting reading.

    http://crimeblog.us/?p=515

    TakeFive (2bf7bd)

  31. This guy is the tip of the iceberg. But the part of the iceberg which is dangerous is not visible. All we can really do against all predators is be vigilant and prepared to protect ourselves and our loved ones.

    nk (119c34)

  32. But restraining his day to day activities or jailing him for his thoughts seems unconscionable to me.

    He didn’t get arrested for his thoughts. He was arrested for violating a court order requiring him to stay away from children and not photograph them.

    sam (97a0ab)

  33. What if he had stated “I’m going to kill some girls”? Would that change the dynamics of the situation?

    Teche (c003f1)

  34. […] afternoon after he was caught hanging out outside UCLA’s Infant Development Program. Patterico sides with Eugene Volokh, who says it’s a bridge too far: [T]he breadth of the order raised […]

    Hot Air » Blog Archive » Heart-ache: California crushes pedophile stalkerazzi’s dissent (d4224a)

  35. This points up a major limitation of the legal system, it cannot act to thwart a first time offense, it cannot thwart crime at all except by incarcerating proven criminals (thus preventing them from committing additional crimes).

    Which is why those who want to deal with terrorists only with law enforcement are stupid beyond belief.

    LarryD (feb78b)

  36. LarryD:

    This points up a major limitation of the legal system, it cannot act to thwart a first time offense, it cannot thwart crime at all except by incarcerating proven criminals (thus preventing them from committing additional crimes).

    That’s not a limitation, it’s one of its strengths.

    We already had the Minority Report reference earlier.

    Fco (201cb0)

  37. He didn’t get arrested for his thoughts. He was arrested for violating a court order requiring him to stay away from children and not photograph them.

    Comment by sam — 8/14/2007 @ 8:49 am

    Sam, here’s the problem:

    He was not, at the time, photographing the children. He didn’t violate that part of the order, which is the only part of the order which might be valid (ignoring the “annoy” law someone cited).

    The staying 10 yards away from ALL people under 17 in CA is not, in any way, legal. They could order him to stay away from park, day cares, schools, and swimming pools, but the way the order is writen, if he’s in his car, sleeping, and someone drives by with a kid in the backseat, he’s violated the order.

    It’s way, way too broad. They should have been a little more precise.

    The “Annoy” law (Pen. Code, § 647.6, subd. (a).), however, seems to be 100% on the mark here. They should get the archives of his website, get him to admit which kids were photographed while in CA, and convict him on that.

    Scott Jacobs (c0db90)

  38. Restraining orders are issued every day ordering people to stay away from children, not specific children, and where children are know to congregate.

    Really? Or are you referring to terms of sentencing or possibly bail?

    Pablo (99243e)

  39. Teche,

    What if he had stated “I’m going to kill some girls”? Would that change the dynamics of the situation?

    That might get him a 72 hour psych hold and dangerousness eval, but without a specific threat, it isn’t a crime.

    Pablo (99243e)

  40. an analogue to his provocative, perhaps criminal website would be the anti-abortionists who post photos and addresses of abortion doctors, and then put an x across their faces when one gets killed. i remember somebody getting a huge judgment from a trial court over this, but i forget whether it stood up on appeal. i can’t remember any criminal prosecutions over this, and a huge judgment is of limited utility against a guy who lives in his car.

    i suspect that this guy isn’t a pedophile at all, just a sick provocateur. i don’t think the restraining order will stand up on appeal. we want the law to be a perfect tool to solve all social problems, but the same constitution that protects us prevents that. if i had a daughter and i caught this guy photographing her, the law wouldn’t mean anything to me at that moment, and if i were a juror hearing the prosecution of the rightfully aggrieved father, the court’s instructions at the close of evidence and argument wouldn’t mean anything to me either.

    assistant devil's advocate (7262ef)

  41. assistant devil’s advocate: I suspect that this guy isn’t a pedophile at all, just a sick provocateur.

    I tend not to think so since people who have irresistible cravings for attention can satisfy it in a much easier fashion than he has embarked on (exhibitionism, reality TV, YouTube, etc.)

    If he appeared to be more stable than the twitching, quivering creep he seems to be, and was more like the slick spokesmen from groups like AMBLA-Nay that made the talk-show rounds back in the ’80s, I might figure that he was a depraved version of Morgan Spurlock, portraying himself as a living objectivist experiment proving some point about the obtrusiveness of legislation.

    L.N. Smithee (bb885b)

  42. I think that this is the point. They (people who are interested in sex with children, etc.) want to begin setting legal precedents that will make it increasingly hard to deal with them. I don’t want my rights limited by what I “might do,” nor does anyone else. We can’t have people legally “boxing” us in because they are afriad (even if we give them reason to be afraid by telling them what we dream of doing) of what we potentially might do. So, what do we do? We are vigilant and when they actually do what they say they will do – we prosecute them, find them guilty, put them in prison and throw the key away (or do more than put them in prison for the rest of their lives!).

    D. K. Davis (7538e5)

  43. The law is helpless untill the fellow actually does something. This is where we are living in a worse world than my grandparents. Say this fellow had made comments back when I was seven years old, in 1954. The neighborhood men would have taken him into an alley, beet the foo out of him and warned him about ever being seen around there again. Or if the police had caught him first he would have been injured resisting arrest.

    Fifty years before that he would have been covered in hot tar and chicken feathers and run out of town tied to a fence rail.

    We are better off today in some ways, certainly not all ways.

    Peter (d671ab)

  44. I find the criminalization of thoughts very disturbing. So the guy is attracted to young girls. So what? If he has enough self control not to act on his desires then the law really shouldn’t be involved. The idea that taking pictures is “harrassment” is daft..

    And I don’t like the idea of harrassing him for spitting on the sidewalk or not having California plates. The police shouldn’t be in the harrassment business – it’s way too easy for that to get out of hand.

    Eric (605286)

  45. I wonder what is possible along the line of Pablo’s thoughts at #39. If there is justification for him to be held for questioning can he be mandated to get a psych eval? Does he have a known psych record? Under California Law can he be enrolled (assuming warranted on eval.) to some kind of mandated outpt follow up?

    Yes, it would be nightmarish to “lock people up” for their thoughts, but it is also rational common sense to keep track of someone at high risk to seriously injure others as well as himself. (If he is on thorough eval). I imagine most of us think that if we ourselves had that mental state, we would want someone to keep tabs on us to not act out. To want the same for him is being considerate, not harassment.

    Of course, if he wants to be left alone in the hope he gets a chance to act out, that is a criminal intent that I hope is substantial enough to cause action.

    MD in Philly (3d3f72)

  46. If he has enough self control not to act on his desires then the law really shouldn’t be involved.

    – Eric

    That’s the concern, though. Will he remain content to watch from afar and take pictures, or will his obsession progress to clearly harmful behavior? How well can that be predicted? How to monitor if the risk is significant?

    MD in Philly (3d3f72)

  47. This points up a major limitation of the legal system, it cannot act to thwart a first time offense, it cannot thwart crime at all except by incarcerating proven criminals (thus preventing them from committing additional crimes).

    That’s not a limitation, it’s one of its strengths.

    It’s a serious problem where there is the threat of domestic violence, etc. The closest that we can do, officially, is a restraining order that “makes up” a crime, if you will, of getting close enough to be a threat which otherwise would not be a crime. Which is what this situation comes down to. I don’t see how the restraining order as it now is can be allowed, but a modification seems in order (such as not allowed to be in direct interaction with a child without an adult guardian present- so if he ever becomes friendly to an 8 yo at the park without a parent..)

    MD in Philly (3d3f72)

  48. This man probably is the asswipe he proclaimes himself to be.

    HOWEVER!

    As far as i can see he has committed zero crimes against children, or anyone lse for that matter.

    He is creating a diversion. Such could be used by others to actually perpetrate crimes against children. I don’t know.

    But hey he probably bears some watching in some manner, out of the cameras eye.

    But remember all the time devited to making this “Media hound” into something real is being lost on nailing paco with his rag head friend doing real harm to the country eh?

    But the blame for that lies with our congress! 100% of them!

    Clean the house in 08!

    TC (1cf350)

  49. Real-life Minority Report…

    Patterico asks, “What can legally be done about this creep?” The creep in question is an admitted pedophile, who’s all-too-willing to discuss his attraction to little girls, but claims (so far) to not yet acting on his perverse desires. Jack……

    Out on a limb at Mike Lief.com (0d19bc)

  50. And the village idiots running LA wont let their citizens have guns for self defense and wonder why these perverts are so prevelent

    krazy kagu (5b69ac)

  51. That people are advocating vigilante action against men like this is disgusting.
    Face it – he’s done nothing but speak his mind.

    If you don’t think that freedom is for everyone, then maybe America is not for you.

    greyhat (5e7287)

  52. Start witha neck-tie party a good stout tree a horse a leighth of rope and its done

    krazy kagu (fa81b9)

  53. hi i enjoyed the read

    Nico (df1889)

  54. I wish to be a bank robber. Will someone now get a restraining order to keep me away from banks?

    doug miller (961865)


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