Archive for the ‘Law’ Category

Quis Custodiet Ipsos Custodes?

July 10th, 2016 3 comments

DeputiesI agree that when rogue police officers kill an unarmed black person, it does not and should not reflect on the million-plus law enforcement officers who are doing their jobs well. The problem is, though a million do their jobs as expected, thousands of others are corrupt and violent, and some of them commit murder. The majority of the good cops do not make the minority irrelevant or excusable.

When black people on the periphery of a Black Lives Matter protest commit wrongs, it is blamed directly on all of the non-violent, law-abiding Black Lives Matter protesters, who are castigated for not instantly condemning such acts—even when they do exactly that.

You see the disconnect: one group is not shamed for failing to condemn their brothers who commit crimes, the other is shamed even when they do.

Those million good cops are said to be protecting the people on any given day, which is true. They work hard for little pay, they face danger, they protect us, and they sacrifice. No one questions that.

However, there is an exception to the duty of protection. It is called the Blue Wall of Silence. Cops defend other cops. Along with a legal system inclined to not prosecute cops, a serious fault emerges. As asked by the Roman poet Juvenal, “Who will guard the guards themselves?” Because even the good ones are shielding the bad ones. It’s the code.

Can we really say that the police are in fact protecting the public when they defend their own who harm the public?

We did not accept that from the Catholic Church, when otherwise good clergy defended child molesters, allowing them to molest more children still—all in the name of defending the order.

CastileWhy should we accept it from the police? This is far from a victimless crime. Just the deaths alone are in the hundreds each year. The beatings, tasings, stops based on race, and false arrests not ending in deaths number far greater than that.

If the police are truly committed to defending the public, they must not shield those who violate that trust.

That is not happening, however. They do shield their brethren.

And that is a legitimate and powerful objection to the “good cops” point. They are supposed to be held to a higher standard; in fact, they are held to a much lower one.

The same can be said of prosecutors and judges who, even when the victim of a police shooting is known to not be a criminal, the word of the police officer is given every benefit of the doubt—even when video evidence directly contradicts their statements—while any blemish on the record of the accused robs them of any credibility, and it takes only the most egregious and blatant of crimes to result in a prosecution.

This is not justice. So long as this happens, the police are indeed failing in their duty to protect the public. Nor should you accept this as “the way it is” or “the way it has to be” simply because the job is difficult, or (hopefully not for this reason) you are not the one likely to be tased, beaten, shot, or killed at a traffic stop.

Quis custodiet ipsos custodes? It is a valid and important question, as it is rather clear that, at this time, the police are not policing themselves.

There is a term for that: being above the law.

Categories: Law, Social Issues Tags:

Silencing the Unions

January 11th, 2016 5 comments

The conservatives on the Supreme Court are finally taking a whack at finishing off unions. Were they only supportive of Republican causes, they’d be safe, but as general supporters of liberal politicians, they remain a target to be destroyed, as they have been since the 1980’s.

The court will hear a case, Friedrichs v. California Teachers Association, in which a group of school teachers object to paying union dues on the grounds that those dues will be used to support political causes they oppose. Naturally, the Wall Street Journal (behind paywall; open article can be accessed via Google News link) is positively gushing over the prospect of shutting down labor’s political speech:

Defending free speech has been a notable strength of the current Supreme Court, and on Monday the Justices hear a case that gives them a rare and splendid opportunity to repair damage to the First Amendment done by the Court itself.

In Friedrichs v. California Teachers Association, 10 public school teachers object to a California law that forces them to pay union fees that finance causes they oppose. For 39 years the Court has allowed such coercion thanks to an anomalous 1977 ruling in Abood v. Detroit Board of Education. Now is the time to overturn it.

If the court finds in favor of the teachers, it would effectively silence unions politically, leaving their counterparts—corporations—with virtually unchallenged voices in politics, heavily favoring the wealthy and removing what little collective voice remains for the working-class citizen.

The Journal cites Harris v. Quinn, a case that said that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” Of course, they ignore religious organizations using public funds to both proselytize and to make political statements. And they ignore lawmakers using public funds to force their own religious views on laws. That’s okay.

And naturally, there is no case the Supreme Court will hear which allows objections of individual stockholders to silence the corporate executives who spend corporate cash on political donations and messages that the shareholders oppose. No problems there.

The Journal also ignores the 2006 decision, Garcetti v. Ceballos, which specifically stated that employers may control the free-speech rights of individual workers:

When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. … Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.

Of course, the conservative side of the court has never allowed itself to be hobbled by little details like consistency. However, the above was written by Kennedy, who could make one of his pivotal stances against the hard-right four, Scalia, Thomas, Alito, and Roberts.

Only time will tell, but I am not overly hopeful: the court has shown great love of corporate power, and little love for anything that opposes it.

Categories: Law, Supreme Court Tags:

Doing More, Just with Less Flash

August 27th, 2015 Comments off

One of the difficulties of several liberal vs. conservative policies is that the liberal ones are often at a disadvantage in apparent terms.

For example, racism exists in most part silently, whereas Affirmative Action and quotas are out in broad daylight; as a result, AA and quotas are very high-profile, whereas most racism, despite being far more prevalent and influential, hides from view.

This was brought to mind when a Facebook friend shared the story of a man whose life was very clearly saved by gun control. A woman had her gun confiscated by police because she did not have a license (something not required most of the time); the next day, the woman had a psychotic break, and used a knife to attack the writer of the post. He was stabbed twice, but was not seriously injured. Had there not been a requirement for a license, the police would have not been allowed to take her gun away, and the man would be dead. Luckily, this was in a state where a license is required; there are only 5 such states, and 40 have no requirement for permits or licenses whatsoever.

However, this is a rare case: the woman just happened to have been deprived of her weapon very recently, and the police happened to tell the victim about it.

In the vast majority of cases, gun control works in a way in which it can rarely if ever be definitively found to have saved any specific lives. As a result, anecdotes such as the ones above are extremely difficult to find.

On the other hand, when a person with a gun even suspects that their gun helped them, it gets trumpeted all over the Internet. There are endless anecdotes to be found; pro-gun sentiment and venomous spewing against gun control is incredibly pervasive over that medium.

The problem is, most of these are cases where there is an assumption that the firearm saved them, termed DGU, or “defensive gun use.” “That guy looked like trouble,” you will read, “but when I flashed my handgun under my jacket, he got scared and took off!” In such a case, there is no evidence that the gun stopped any actual event—just a feeling. Studies like those done by Gary Kleck include even the weakest data—such as, a man hears a sound outside his house, fires a warning shot, he sees nothing and nothing happens—as evidence of “defensive gun use,” which is then extrapolated to ridiculous effect. Furthermore, you know that most of these anecdotal reports are embellished to make the teller sound more heroic, and that cases in which firearms escalated situations and caused problems, you never hear people report that. This is the kind of “data” which is collected and used by gun advocacy groups to make “studies” which purportedly show that owning and carrying guns saves huge numbers of lives.

The thing is, no such report ever survived peer review intact; most if not all such studies are highly biased with severely flawed methodologies. However, it gets repeated, and strongly punctuated by anecdotal stories like the 83-year-old grandmother who fends off a street gang with a shotgun, or whatever.

It is unlikely that many will be able to report the specific effectiveness of gun control, despite its efficacy; it’s reporting about the dog that didn’t bark. Some criminal with a record for aggravated assault and murder tries to buy a gun, but gets arrested due to a background check. He goes to jail and never kills anyone again. How do the people who don’t get killed by this guy ever know they were saved? They don’t. And therefore, no anecdotal evidence. Or, at least, it is extremely rare, with only scattered stories like the one linked to above.

Despite the lack of persuasive anecdotal evidence for the effectiveness of gun control, the figures supporting it are significant and convincing.

Between 1994 and 2010, at least 118,000 gun sales to wanted criminals have been stopped by background checks; during the same time, 1,034,000 convicted felons and 291,000 people with histories of domestic abuse tried to buy guns and were blocked by background checks. In total, over 2,000,000 illicit gun purchases have been stopped, an average of more than 62,000 per year—and that is with many weaknesses built into the program, weaknesses demanded by the NRA and other gun advocates.

The number of criminals trying to buy guns who were arrested because background checks does not seem to be available, but some figures are. For example, a background check instituted in Virginia has caused 1355 fugitives to be caught and arrested over a 20-year period; extrapolated to the population of the entire country, that would be the equivalent of 52,000 fugitives arrested over a 20-year period, about 2600 per year. In addition, the same state, in 2009 alone, arrested 856 individuals for violations related to background checks, which would amount to 32,000 per year nationwide.

So, with checks, every year, 62,000 illicit gun sales stopped, 32,000 arrests for illicit purchase attempts, 2600 wanted fugitives put in jail.

You want to argue that this does not/would not result in thousands of lives saved every year?

The problem is, since it works preventively—and because conservatives have fought hard to suppress any such research or reporting of numbers—it is impossible to say how many have been saved by the relatively weak, loophole-ridden process that we currently have.

Imagine what we could do if we have actual gun control—nationwide, closed loopholes, emphasis on availability to legal owners but with added requirements for safety and proficiency training… not to mention measures to help track down people who actually committed gun crimes.

Categories: Law, Social Issues Tags:

Fair Is Fair

December 20th, 2014 5 comments

Nebraska and Oklahoma are suing Colorado for legalizing marijuana:

Colorado voters in 2012 passed Amendment 64, which allows the personal use of marijuana for recreation and creates a system of marijuana growing and marketing across the state, which is taxed and is supposedly regulated closely.

While this scheme is confined within the boundaries of the state, its two neighbors argued that Colorado-sourced marijuana is showing up increasingly in their states, in violation of their anti-drug laws.

Does this mean that California, with the strictest gun laws in the country, can sue Arizona and Utah, which have the most lax? I would think that guns from those two states have done infinitely more damage in California than pot could ever do in Nebraska and Oklahoma.

Categories: Law, Social Issues Tags:

Network Neutrality Dealt a Heavy Blow

January 15th, 2014 4 comments

The D.C. circuit Court of Appeals issued a decision today to essentially give Telecoms sweeping powers to manipulate Internet access, control content, and do their worst to make the Internet more expensive and snarled.

Telecoms can now freely block content as they please. If there is a competitor to their own services or services provided by an affiliate, they can throttle or block them; if there’s an app they don’t like, they can cripple its traffic.

Consumer advocacy group Free Press lamented the ruling. “We’re disappointed that the court came to this conclusion,” Free Press CEO Craig Aaron said in a written statement. “Its ruling means that Internet users will be pitted against the biggest phone and cable companies—and in the absence of any oversight, these companies can now block and discriminate against their customers’ communications at will.”

More importantly, they can now charge whatever fees they wish for faster speeds. Netflix or Amazon wants to stream video? Well, they better pay huge wads of cash to the Telecoms if they want their current speeds to continue. Verizon, Comcast, and AT&T can now decimate their businesses unless they pay the Telecoms whatever the market will bear.

Which means that you, the consumer, will be paying more and more in the long run, because those fees will without any doubt whatsoever be passed on to you. The Internet just got a whole lot more expensive—and the Telecoms, already gorged with profits, will be swallowing all of that up.

Now, remember for the past several years how the Telecoms have been whining about how that excess revenue is absolutely vital to fund rollouts of faster fiber service nationwide? Well, they said that when they got permission to raise fees years ago, and they lied then—there is almost no doubt that they are lying again now:

In the U.S., there’s no practical competition. The vast majority of households essentially have a single broadband option, their local cable provider. Verizon and AT&T provide Internet service, too, but for most customers they’re slower than the cable service. Some neighborhoods get telephone fiber services, but Verizon and AT&T have ceased the rollout of their FiOs and U-verse services–if you don’t have it now, you’re not getting it.

Meaning that, despite years of promising that they would give us all bright, new, shiny bandwidth in exchange for today’s ruling, we will get only what profits them the most and not on baud more.

Expect the Internet to get less efficient and more expensive. I hope I am wrong, but we’re talking about a newly-unfettered corporate will now able to do almost whatever they want in a market ripe for exploitation. It seems impossibly naive to expect anything but a worse consumer experience.

Consistency, Yes; Logical, No

July 31st, 2011 Comments off

Jeffrey Rosen writes:

As Matthew Zeitlin has argued in TNR, if Obama invoked the Fourteenth Amendment to raise the debt ceiling unilaterally, the most likely outcome is that the Supreme Court would refuse to hear the case. The conservative justices have long required clear evidence of legal “standing” before opening the courthouse door—something they showed in their recent 5-4 decision rejecting a taxpayer’s challenge to an Arizona school vouchers program—and it’s hard to imagine who could establish enough of a legal injury to establish standing in this case.

I think he misreads the right-wingers on the court. They are, like their brethren in Congress and elsewhere, not about consistency. They are about ideology. For example, when it comes to the Ninth Amendment, Scalia and Thomas consider it irrelevant, a deprecated piece of constitutional flotsam, if it ever meant anything at all. The Second Amendment, on the other hand, was all about individual gun rights and had nothing to do with the militia, and is not at all outdated or irrelevant in today’s society. The truth is reversed; the Ninth is fully alive and relevant, while the Second is outdated; in fact, gun ownership rights best derive from the Ninth and Fourteenth Amendments.

The only consistency for right-wingers like the Big Four on the court today is ideological, not legal or logical. They pretend that the Ninth Amendment doesn’t exist because it would open up Pandora’s box to all sorts of civil rights they disagree with, like the right to privacy. The same ideological fervor allows them to rule that there is no separation of church and state simply because the principle has been violated so often–as if breaking a law means it doesn’t exist any more. In which case, theft would be legal today–if they were consistent.

I think they would quite easily manufacture whatever kind of legal injury they might desire in order to create standing, or else simply ignore legal standing altogether and claim that the nation’s best interests demand they address the issue. If they wanted to. They might not–they might find legal standing a convenient way to ignore the case, or they might take it and decide, as Rosen also argues, to uphold expanded executive powers, or to allow Obama to take the blame for the debt.

I’m just saying they they won’t be ruled by any need for consistency–they will do exactly what they want, when they want, for any reason they want. That’s their pattern.

With far too many right-wingers today, reality is defined by little more than what they want it to be at any given moment.

Categories: Law, Right-Wing Extremism Tags:

Great Moments in Hypocrisy

May 20th, 2011 Comments off

Here are some quotes from Republican senators from the last decade. See if you can guess, while reading them, what all of these senators did this week:

Lamar Alexander (R-TN): “I would never filibuster any President’s judicial nominee, period. I might vote against them, but I will always see they came to a vote.”
Saxby Chambliss (R-GA) and Johnny Isakson (R-GA): “Every judge nominated by this president or any president deserves an up-or-down vote. It’s the responsibility of the Senate. The Constitution requires it.”
Tom Coburn (R-OK): “If you look at the Constitution, it says the president is to nominate these people, and the Senate is to advise and consent. That means you got to have a vote if they come out of committee. And that happened for 200 years.”
John Cornyn (R-TX): “We have a Democratic leader defeated, in part, as I said, because I believe he was identified with this obstructionist practice, this unconstitutional use of the filibuster to deny the president his judicial nominations.”
Mike Crapo (R-ID): “Until this Congress, not one of the President’s nominees has been successfully filibustered in the Senate of the United States because of the understanding of the fact that the Constitution gives the President the right to a vote.”
Chuck Grassley (R-IA): “It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60, and that’s essentially what we’d be doing if the Democrats were going to filibuster.”
Mitch McConnell (R-KY): “The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent. But my Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation.”
Sen. Jim DeMint (R-S.C.): “In 2002, [voters] returned the Republicans to the majority in the Senate. Then, after 2 years of unprecedented and, in my opinion, unconstitutional denials of simple votes on judicial nominees, Americans elected an even larger majority of Republicans. In fact, the Democrat leader, former Senator Tom Daschle, was defeated by my colleague, Senator John Thune, in large part due to his high-profile obstruction of judicial nominees.” [Source]
Sen. Lindsey Graham (R-S.C.): “I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional.”
Sen. Richard Shelby (R-Ala.): “Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it.”

You should, of course, be able to guess that all of these senators have just filibustered a judicial nominee.

Recall that, when Democrats filibustered only the most extremist judicial nominees under Bush, after having confirmed a higher percentage of his nominees for high courts than most presidents even dream of, Republicans excoriated the Democrats and threatened the “nuclear option” of doing away with the filibuster altogether. Since then, of course, Republicans have enacted the filibuster far, far more than any Congress in history, using it as an almost daily tool to obstruct anything they don’t like and even some of what they do like.

Back when it was the Democrats, though, a deal was struck to get past the impasse. Republicans grudgingly, under the deal made, allowed Democrats to use the filibuster under “extraordinary circumstances.”

What are the “extraordinary circumstances” for all of these Republican senators to do something they reviled when it was Democrats doing it?

The nominee, Goodwin Liu, had criticized Samuel Alito in a way they didn’t like. Goodwin, universally hailed as being an excellent judge as well as decent, open-minded, intelligent, and moderate, is being denied a judicial appointment because Republicans want to be pettily vindictive. Liu criticized Alito–criticism which he has since retracted and apologized for–and now Republican senators are willing to do something they only recently held as unconstitutional because they are so offended and unwilling to accept even an express apology and retraction.

So, what did Liu say that has Republican senators willing to violate the constitution over? Here’s the statement cited:

Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be.

Was this criticism unwarranted? David Alan Sklansky, law professor at UC Berkeley School of Law and a former federal prosecutor, disagrees:

Here are the facts. At the Justice Department, Alito did argue that a lower court had erred in finding a Fourth Amendment violation when a police officer fatally shot an unarmed eighth-grader fleeing from a residential burglary with $10 and a purse; he suggested that the police should be allowed to use deadly force against anyone they reasonably suspect is a fleeing felon. On the 3rd U.S. Circuit Court of Appeals, Alito did in fact uphold a decision by federal marshals carrying out an eviction to point shotguns and semi-automatic rifles at residents who were apparently offering no resistance; he explained that the force was reasonable because the family had resisted an earlier eviction effort, was reported to own firearms, and had threatened to shoot any agents that came onto their property.

Alito also upheld the FBI’s warrantless installation of a hidden camera and microphone in a suspect’s hotel room, on the ground that the agents turned on the equipment only when a confidential informant, who consented to the surveillance, was in the room. And Alito did in fact dissent when the 3rd Circuit overturned the death sentence imposed on a black defendant by an all-white jury in Kent County, Del. He took that position in part because he thought that, at least without expert statistical analysis, it wasn’t determinative that Kent County prosecutors struck all the black jurors not only in the defendant’s trial, but also in the three other capital trials held within a year of the defendant’s. Finally, in two separate cases, Alito did dissent from the invalidation of searches that seemed to exceed the literal scope of the underlying warrants; in each case, he argued that the warrant should be read more expansively.

As for Liu’s comments being inappropriate, Sklansky points out that Scalia has been immeasurably more scathing in his attacks against other jurists than Goodwin’s statement could ever be characterized as being. Apparently, that’s OK.

What this comes down to is Republican senators being vastly hypocritical over what is, in the end, an expression of concern over the integrity of the constitution by a widely respected moderate judge who wished nothing more than to respect the legal rights of Americans.

Ignoring the Law

April 1st, 2011 3 comments

Republicans are more and more trying to get away with ignoring the law. Of course, in the past, it has been mostly interpretations, such as that of constitutional law–that the First Amendment doesn’t mandate a separation of church and state, for example, or that the Ninth Amendment effectively does not exist. Recently, we have started to see more examples of Republicans rather blatantly flouting the legal process.

After Republicans in Wisconsin rammed through a law which stripped educators of their collective bargaining rights, Democrats filed a lawsuit pertaining to the process involved in passing the law; pending the outcome of that case, a Wisconsin judge ordered that the law not be published or implemented. Republicans ignored the the judge, publishing it anyway. Laws are published by the Secretary of State in an official publication, which is what the judge order halted. Republicans simply published it on their own elsewhere and claimed that this effectively invalidated the judge’s order.

So the judge reissued the order, noting that the original order was more than clear enough but emphasizing that the law may in no way be published. Again, Republicans ignored the judge, taking only minutes after the second order to publicly claim that the law was in effect and that was that.

Republicans were, effectively, claiming that they could simply ignore the courts. The court was not amused, and the judge issued a terse order stating unequivocally that the law was not published according to law and it was not in effect. Probably knowing the Republicans would simply continue thumbing their noses at the law, the judge threatened sanctions this time if they did not comply. Finally, the Republicans gave in.

They are not the only ones to have unique views on how the rule of law works, however. Republicans in Washington are currently trying to engineer a shutdown of government, held back only by the knowledge that they would, rightly, be blamed for the shutdown. In their latest ploy to make it all seem like the Democrats’ fault, they are presenting a “Prevention of Government Shutdown Act” (so named to give the impression that Democrats have been trying to shut down the government while Republicans have been trying to stop them). That little piece of grandstanding is not so startling as what Cantor, at a press conference, claimed would happen:

On Friday, we will bring to the floor, the Government Prevention of, excuse me, the Prevention of Government Shutdown Act. And that will say to the American people: the Senate’s got to act, prior to the expiration of the CR. If it doesn’t not act, HR 1 becomes the law of the land. [emphasis mine]

Cantor and the Republicans were actually claiming that they could enact a law all by themselves so long as the Senate did not agree to what they demanded. Which, of course, is utter horse manure. Both houses must agree on the exact wording of the bill and then the president has to sign it. To simply claim that House passage alone can make it “the law of the land” is astonishingly stupid.

So said Lawrence O’Donnell, who took Cantor to task for this attempt to ignore not just the law, but the Constitution itself. Apologists for Cantor called it an “error,” as if it were a slip of the tongue Cantor made at the press conference–but that “error” was written directly into the legislation, H.R. 1255, which says:

Deadline for Consideration of Legislation Funding the Government for the Remainder of Fiscal Year 2011- If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011, the provisions of H.R. 1, as passed by the House on February 19, 2011, are hereby enacted into law. [emphasis mine]

There’s no error; Republicans were trying to claim that if the Senate didn’t vote on the issue by a date that Republicans set, the House would just overrule the Senate and roll past the president and make their own law.

One can only assume that, unless the Republicans have gone completely insane–which I am not discounting–that this is precisely nothing more than a PR stunt. After all, for H.R. 1255 to pass, it also would have to be approved by the Senate and signed by the president. However, to assume that this would happen would be complete and utter fantasy. In short, it’s all window dressing, all intended to give the public the impression that everything bad that happens is the Democrats’ fault–that being the cover the GOP is looking for the shut down the government.

Something in me, however, says that there are actually Republicans who believe that they could do this, or at least claim they did it and then hold their breath until they turned red in the face (they would never turn blue, after all). This is the extent to which Republicans have simply stopped recognizing what the law is and instead believe that they can claim that the law is whatever they say it is.

If Only Someone Else Had Had a Gun

January 24th, 2011 7 comments

It’s a common fantasy repeated endlessly by gun enthusiasts. When you get a crazy person who walks into a crowd and starts shooting people, some of us begin to question the overly-lax gun laws and start suggesting that at least some reasonable, even ridiculously mild form of gun control–you know, like allowing clips that hold only ten bullets instead of thirty so crazy people can only shoot a more limited number of people. At which point the enthusiasts disagree (some vehemently), and that’s when they bring up the fantasy.

“It’s too bad that one of the victims wasn’t armed, or better yet, all of them,” they lament. They envision a scenario in which a shooter would immediately meet return fire and be taken down before many people got hurt. After the shooting in Arizona, local congressman Trent Franks deplored, “I wish there had been one more gun in Tucson.”

The reality is much more complicated. The fact is, there was an armed citizen nearby when Loughner began his shooting spree in Arizona; the man immediately grabbed his gun, ran to the scene of the shooting–and very nearly shot one of the people who was subduing the gunman. This was not some frazzled dimwit, but someone who seemed to know their way around a gun, who seemed completely reasonable and responsible.

As if to back up the point, in Detroit yesterday, a gunman walked into a building filled with people and opened fire, shooting one man in the back and hitting three others before someone returned fire and killed the man. You might think that this is the fantasy situation fulfilled–that there was an armed person nearby who was able to return fire. In a sense, this is true: the building was a police station. There were lots of armed people there. And yet, four people got shot before someone returned fire, and the situation was less than controlled:

“Utter chaos and pandemonium took place,” Police Chief Ralph Godbee said at a news conference. “We have a number of officers who are shaken up.”

Even when nearly everyone in the room is armed, a gunman can still do a great amount of damage. Even trained, experienced police officers do not always react like the hero-fantasy expects. If a room full of professional gun-bearers reacted like that to random gun violence, can we really expect randomly armed citizens to do much better?

Also keep in mind that in the Detroit case, the gunman did not even have as deadly a gun as Loughner did. Furthermore, these are scenarios where the gunman comes in and starts firing with no thought to protecting himself. If the gunman has even the slightest ability to plan ahead and work out a scenario more complex than “walk in and start shooting,” he could potentially employ strategies that would allow him to do even more harm against rooms filled with armed people.

As for arming everyone, let’s also remember that there are few places which require a gun owner to train in the use of the weapon or to take even rudimentary safety instruction. Is it ever a good idea to suggest that more untrained people go around armed? We would not imagine allowing people to drive cars without going through at least basic instruction and testing, and most Americans value their right to own and drive a car more than they would to own a gun. Yet few question the wisdom of training, licensing, and registration where motor vehicles are concerned.

As has been pointed out:

A panel of criminology and statistics experts with the National Research Council the National Academies published a study in 2004 that found no reduced crime in states with right-to-carry (RTC) laws.

A 2010 study from Stanford Law School found that “the most consistent, albeit not uniform, finding to emerge from the array of models is that aggravated assault rises when RTC laws are adopted.”

Now, before anyone gets on their high horse, I do not advocate gun bans. (Most gun enthusiasts immediately jump to that conclusion even when the opposite is clearly pointed out; it’s the knee-jerk straw-man argument.) But I do advocate firm, reasonable gun control, of a nature that minimizes any impact on the law-abiding citizen but maximizes impact on those who would purchase guns for illicit use. As has been pointed out, at the very least, we know that lives would have been saved had Loughner been restricted to a 10-bullet clip rather than a 30-bullet clip; the larger-capacity clip had been banned before the Republican congress let it die, and let’s face it–it is the epitome of the reasonable gun control law. No hunter or home protector needs a 30-bullet clip, it’s an accessory for people who are either too lazy to reload more often, or for people who want to kill the largest number of human beings before they have to pause before killing more.

I also question the legitimacy of the assumption that simply putting more guns in the hands of more people more of the time–especially when there is no mandatory safety training–will result in less violence. Something about that just doesn’t ring true for some reason.

Right now, a lot of the people who would still defend preventing even eminently reasonable gun control measures say that it’s about controlling the gunman, not the gun. The problem is, Loughner should have been denied the ability to buy guns and ammunition–it’s not like his unbalanced state was a secret or anything–but the same people who fight reasonable gun control measures also fight against laws which would, in fact, control the crazy people who fire guns at crowds of people. Background checks, mental instability provisions, efficient networks to register and keep track of such individuals, and other checks that could have at least slowed Loughner down are just as hated by the gun crowd, who argue that such laws either inconvenience them or could be abused by the government to disarm normal law-abiding folk.

Having armed people nearby could–potentially–save lives, if those people are properly trained. It almost certainly did in the Detroit police station. However, having more guns around is not always the best way to deal with the problem, and reasonable gun control laws are probably a much better idea.

Categories: Law, Security, Social Issues Tags:

Assange, Censorship, and Impropriety

December 19th, 2010 Comments off

A few interesting points. First, Visa and MasterCard stopped processing payments for WikiLeaks. These companies have taken such steps in the past, such as with Russian sites selling copyrighted music for pennies a song, in which the legality of the company’s actions were in question. Visa makes an interesting case for doing so:

Visa Europe has taken action to suspend Visa payment acceptance on WikiLeaks’ website pending further investigation into the nature of its business and whether it contravenes Visa operating rules

In short, they don’t even know if WikiLeaks is doing anything illegal or not, but they’re shutting down the organization’s ability to collect money–apparently, just in case, or something.

MasterCard was more specific:

MasterCard said it was cutting off payments because WikiLeaks is engaging in illegal activity. “MasterCard rules prohibit customers from directly or indirectly engaging in or facilitating any action that is illegal,” spokesman Chris Monteiro said.

This is interesting, considering that Assange has not been convicted of a crime. As for the leaks themselves, how about the chairman of the House judiciary committee’s opinion of whether or not a crime was committed:

“As an initial matter, there is no doubt that WikiLeaks is very unpopular right now. Many feel that the WikiLeaks publication was offensive,” Conyers said, according to prepared remarks. “But being unpopular is not a crime, and publishing offensive information is not either. And the repeated calls from politicians, journalists, and other so-called experts crying out for criminal prosecutions or other extreme measures make me very uncomfortable.”

Other financial organizations have taken similar bogus stands for cutting off WikiLeaks’ financial grounding. Here’s Bank of America’s rationale:

“Bank of America joins in the actions previously announced by MasterCard, PayPal, Visa Europe and others and will not process transactions of any type that we have reason to believe are intended for WikiLeaks,” the bank said in a statement issued on Friday. “This decision is based upon our reasonable belief that WikiLeaks may be engaged in activities that are, among other things, inconsistent with our internal policies for processing payments.”

Got that? If the bank has “reasonable belief,” based on unspecified evidence, they can cut your legs out from under you. And not just payments directly made to you, but payments that they even suspect might be headed your way, even indirectly–which could potentially include payments to defense funds and the like.

The Swiss postal service has closed Assange’s account on the grounds that he gave “false indications regarding his place of residence,” something which apparently never bothered them before.

PayPal has an interesting take as well:

“PayPal has permanently restricted the account used by WikiLeaks due to a violation of the PayPal Acceptable Use Policy, which states that our payment service cannot be used for any activities that encourage, promote, facilitate or instruct others to engage in illegal activity. We’ve notified the account holder of this action.”

This is a bit more clever, as it refers to the criminality of anything that could be done with the data–and since the government has more or less restricted any of its people from reading any of the documents, the release of the information could be considered “facilitating” illegal activity. The problem is, taken to logical limits, this rationale could be applied to virtually anything you could imagine.

The entire assault on Assange and WikiLeaks is fairly obviously contrived, impelled by the U.S. government’s anger at having its internal communications revealed. However, these actions taken against Assange are troubling to say the least. The rape charges, for instance, whatever their actual truth, are obviously a pretext for reeling Assange in and getting him in a jail cell. If this is not made crystal clear by the timing of the charges, then it should be simply by the fact that international extradition treaties are usually not exercised in various directions so vigorously for similar charges of sexual misconduct. Let’s face it, we all know that if Assange had not released the documents he did he would not be facing the charges at all, nor would there be any calls for extradition. The action on the charges are at the very least opportunistic.

I am of the crowd that believes in more freedom of information release. I agree that releases such as these are more for the public benefit than anything else. While they might be embarrassing politically or diplomatically, they do more good than bad, and shed a light on the inner workings of political systems that are badly in need of light being shed. Too much goes on under cover of secrecy which in the full light of day would be clearly recognized as illicit or illegal.

The fact that Assange and his organization are being persecuted in such indirect and questionable ways only cements the impression that it is the U.S. government, and not Assange, which has acted improperly.

Dropping Terror Babies

August 13th, 2010 7 comments

Rep. Gohmert (R-TX) was the main one claiming that “pregnant terrorists” come to America to give birth to babies who will later become terrorists, using their birthright citizenship against America so as to destroy it. About as extreme an anti-immigration, anti-Muslim, paranoid right-wing freakout as you could expect to hear.

Imagine everyone’s surprise when the FBI announced that they theory was, as they put it, “never credible.” Me, I think they should investigate Gohmert under suspicion of giving aid and comfort to the enemy, ’cause I bet that terrorists in all parts of the world sure enough heard this theory and just as sure got some pretty good chuckles from it.

As a side note: my own stand on amending the 14th Amendment to the Constitution to prevent illegal immigrants from having “anchor babies” is ambivalent. On the one hand, the provision is somewhat out of date, having been constructed to grant citizenship to former slaves who were born in the U.S. but were never officially granted citizenship. It was not really intended to allow children of people in the country illegally to obtain citizenship, intentionally or otherwise.

As a result, I am not strongly against repealing that provision of the amendment. However, not now. Why? Because right now the movement to repeal is not based upon reason or intent to clarify the original intent of the law. Rather, it is a highly political and racially charged movement of which I want no part.

Republican Senator Lindsey Graham (R-SC) is simply the most visible right-winger to state it in an only thinly-veiled manner: “People come here to have babies. They come here to drop a child. It’s called ‘drop and leave.’” While Graham attributed the term to immigrants, there is no evidence of such phraseology existing before he said it. What is of specific note here is the term “drop”: the word is used to denote animal birth, as in to “drop a foal” or to “drop a litter.” Using it in reference to people is, in this case, rather blatantly racist, and attributing it to their own terminology is nothing more than an excuse to use such racist terms. And since Graham used that term, it’s all over the place now; many on the far right, taking Limbaugh’s cue, love to use openly racist terms so long as they can point to any pre-existing use as an excuse. Which is one of the reasons I would not agree to repealing the law at this time–not for these reasons, and certainly not with this crowd.

In part, it’s similar to the drive to amend the Constitution so as to allow naturalized citizens to become president–ironically, one that the right wing has abandoned since Obama came to office and they wanted to press the Birther claim. The reason right-wingers were so big on it up until recently was because they were still greatly enamored of Arnold Schwarzenegger, and felt he had a good shot at the presidency, if only it weren’t for that whole Constitution thing. Now, in principle, I think it’d be just fine to allow naturalized citizens that ability; my father is one, for example, and I think he’d have made a better president than some we’ve had, for sure. But I will not stand with the crowd who want to change the Constitution for political reasons.

If we change the Constitution, the intent has to be pure. It should never be a flash-in-the-pan political fad, and it should never have at its roots racist or paranoid delusions. After all, think of cases that are interpreted based on framers’ intent–what would a judge have to conclude when noting that the framers of a constitutional amendment were passing it to win an election by appealing to voters’ racist inclinations?

In the future, when we’ve calmed down a bit, maybe. But not now.

Categories: Law Tags:

NOW They’re All About Conflict of Interest

August 10th, 2010 17 comments

Note: sorry I’ve been away for 3-4 days. End of the semester and the usual intense grading period intervened. Back to the fun:

Another case of astonishingly naked hypocrisy from the right wing: the judge who ruled that California’s Prop 8 (banning gay marriage) was unconstitutional is rumored to be gay, so his ruling is invalid and he should be impeached.

But it didn’t bother them at all that a judge ruling to overturn a moratorium on offshore drilling had investments in the oil industry.

And if the judge ruling on Prop 8 had been a conservative Christian with a history of antipathy toward gays, they would not have had a problem.

Remember the ruling on Intelligent Design in Dover, PA? The judge was a Bush 43 appointee, a Christian, and had a conservative track record; as a result, the right wingers, before the trial, were confident that he would rule for them–they had no problem with his politics or religion beforehand, despite both of those playing a role in the case. It was only after he ruled against ID that they turned on him, viciously–just as they are now howling over Judge Walker.

But are they right in this case? Assuming the judge is in fact gay, was there indeed a conflict of interest?

The answer has to be “no,” just as there was no conflict in the Dover judge’s case. Your identity should not be something that can recuse you, or else judges would be recusing themselves right and left. Male judges should not recuse themselves in rape cases, nor should female judges. Christian judges need not recuse themselves in establishment cases, nor should atheist judges. It could be argued that both white and minority judges ultimately have personal interests in judging discrimination cases–thus no one would be fit to rule on them. In cases such as these, we must trust the judge to be impartial, else no one could judge anything. It is only when a judge has a specific interest–a financial investment or a personal friendship, for example–that they should recuse themselves. But not simply because they belong to a class that could be affected by the law in question.

The whole indignation on the right about this judge’s alleged sexual orientation–despite the fact that he was a Reagan appointee and has been inhospitable to gays in the past–is nothing more than standard right-wing hypocrisy: any decision we don’t like is judicial activism and is wrong, no matter what; any decision we like is OK, no matter how legally twisted. They want the Scalia/Thomas brand of justice: legislate a conservative mindset from the bench, ignoring the actual law whenever it becomes inconvenient.

Categories: Law, Right-Wing Hypocrisy Tags:

Still Way Too Much

July 26th, 2010 2 comments

A person enters a store and shoplifts 3 music CDs worth about $10 each.

The person is caught. As a result, that person is forced to pay $67,500 in damages.

Doesn’t exactly sound right, does it? And yet, the RIAA thinks that’s not even close to enough–they want 10 times that amount, or $675,000, over two-thirds of a million dollars.

Why the excess? Because it was file sharing, not just simple theft. Therefore, any one person guilty of sharing files is also responsible for–apparently–some 22,500 other people also downloading each of the files.

So let’s try another analogy. I come up with a great recipe for gazpacho, and put the recipe in a book. Someone copies that recipe and sends it to thousands of people for free, ruining my book sales. I can sue them for all the lost revenue, right? Sure–but that’s not the analogy here. The RIAA is not trying to sue the person who originally made the copy and released it, but one of the people in the chain that passed it along. Seeing as how this person was one of thousands to receive and share the recipe, can I truly sue them for the lion’s share of the damages? That’s far more questionable–especially when removing that one person from the chain would have made absolutely no difference whatsoever in how far the copyright violation was spread.

One cannot say that downloading a song without paying for it is a legal or even ethically excusable act. However, there is a law–I think it’s actually a constitutional amendment–about “excessive fines.” And $22,500 for being a small link in a big chain of sharing a $1 commodity is about as excessive as one can imagine.

The courts agree, and so far more than one judge has cut that penalty down to $2,250 per song–which is still far too excessive. The legal minimum is $750 per song, which is also still too excessive–but then we have to realize that it was the industry that wrote that legislation, paying some paltry bribes to politicians to make it the law of the land.

Which is the greater crime here. But nobody’s getting sued for that, unfortunately.

Categories: Law, RIAA & Piracy Tags:

The Fiction of the Second Amendment

July 6th, 2010 23 comments

While on the subject of revolutionary thought, I decided to check in on that favorite of right-wing topics: the Second Amendment. What makes the most fascinating reading is to review the earlier drafts of the amendment, most of which had a telling clause attached to the end:

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

I always found this telling because if, as the right wing claims, the Second Amendment is all about an individual right to keep and bear arms, then what sense would it make to add a clause regarding conscientious objection? That clause clearly indicates that the amendment was not intended to express an individual right to bear arms, but instead was intended as a collective right to assure the existence of a public militia, at the time considered the only way to evade a government tyranny. This is not to say that an individual right to keep and bear arms was not intended–it seems that it was simply assumed that if one wanted to, one could–but that the Second Amendment was never intended to serve that particular purpose. It was to protect local militias from being disarmed by a federal government. If you’re demanding your Second Amendment rights, then you are demanding that you should serve in the militia, which today is the National Guard. So by all means, go to it.

The discussion and debate regarding this clause makes that point even more clear. One might think, for example, that the final clause regarding compelled service were struck because it would make the amendment appear to not be about an individual right; that, however, was not the case. Consider these excerpts:

Mr. Elbridge Gerry of Massachusetts — This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures in respect to a militia, as make a standing army necessary. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishment of an effective militia to the eastward. The assembly of Massachusetts, seeing the rapid progress that administration were making, to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia, but they were always defeated by the influence of the crown.

It is notable that Gerry, from the outset, clearly defines the amendment not as an attempt to secure the individual right to keep and bear arms, but instead to ensure that an armed public will always be available to serve as a militia so as to protect any one state from the tyranny of an over-reaching federal government. Many get caught on phrases like “rights of the people” and jump to the conclusion that this means, in this context, an individual right to bear arms–but the rest of the context makes clear that it is a collective right to protection by means of a militia that is being discussed. This neither affirms nor denies an individual right; the Second Amendment simply was not about that at all.

This is bolstered by Benson’s displeasure with the clause, which stemmed from a desire to leave exceptions to military service to the judiciary:

Mr. Egbert Benson of New York — Moved to have the words “But no person religiously scrupulous shall be compelled to bear arms” struck out. He would always leave it to the benevolence of the legislature — for, modify it, said he, as you please, it will be impossible to express it in such a manner as to clear it from ambiguity. No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the government. If this stands part of the constitution, it will be a question before the judiciary, on every regulation you make with respect to the organization of the militia, whether it comports with this declaration or not? It is extremely injudicious to intermix matters of doubt with fundamentals. I have no reason to believe but the legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of, but they ought to be left to their discretion.

Even more interesting is the take of Mr. Scott, who expressed something one does not often hear about: that it was a common presumption that religion was in decline, and could even imagine a time when there was no religion in American society! This notwithstanding, he also speaks entirely in the context of the amendment’s purpose being to compel the public to military service.

Mr. Thomas Scott of Pennsylvania: objected to the clause in the sixth amendment, “No person religiously scrupulous shall be compelled to bear arms.” He said, if this becomes part of the constitution, we can neither call upon such persons for services nor an equivalent; it is attended with still further difficulties, for you can never depend upon your militia. This will lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, as in this case you must have recourse to a standing army. I conceive it is a matter of legislative right altogether. I know there are many sects religiously scrupulous in this respect: I am not for abridging them of any indulgence by law; my design is to guard against those who are of no religion. It is said that religion is on the decline; if this is the case, it is an argument in my favour; for when the time comes that there is no religion, persons will more generally have recourse to these pretexts to get excused.

Mr. Elias Boudinot of New Jersey, President of the Continental Congress: said that the provision in the clause or something like it appeared to be necessary. What dependence can be placed in men who are conscientious in this respect? Or what justice can there be in compelling them to bear arms, when, if they are honest men, they would rather die than use them. He then adverted to several instances of oppression in the case which occurred during the [revolutionary] war. In forming a militia we ought to calculate for an effectual defence, and not compel characters of this description to bear arms. I wish that in establishing this government we may be careful to let every person know that we will not interfere with any person’s particular religious profession. If we strike out this clause, we shall lead such persons to conclude that we mean to compel them to bear arms.

Boudinot follows Scott, and ends by again defining the purpose of the amendment: to compel the people to bear arms for the purpose of an effectual defense of the state.

Once again, this is not to claim that no individual right to keep and bear arms exists; as I have stated previously, I believe the amendments to the Constitution cover that right, but not in the form of the Second Amendment, rather in the form of the Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is reinforced and extended to state governments in the Fourteenth Amendment. The individual right to keep and bear arms, like it or not, is a traditionally held right and has never been repealed, and so it stands. But not by fiat of the Second Amendment, as so many people like to assume.

I can only presume that this belief on the part of most people is generally due to either simple presumption and a failure to sufficiently research the record, or perhaps a desire to avoid paying too much attention to the 9th and 14th amendments, which, in right-wing circles, have somewhat of a bad reputation. The Ninth Amendment, for example, if followed scrupulously, also provides a right to privacy, among other rights–and privacy includes medical privacy, which makes outlawing abortion problematic. Not to mention that the Ninth Amendment is in itself a bane to strict constructionists, whose entire claim is based upon denying the idea that rights not enumerated in the Constitution exist at all. The Fourteenth amendment is currently disliked on the right, primarily for that bit in the highly relevant Section 1 which says that all persons born in the United States are automatically citizens.

I find it fascinating that the right wing tries to eviscerate Obama, Kagan, and even Thurgood Marshall for stating that the Constitution and the Bill of Rights were imperfect as constructed, and yet so clearly disdain and wish struck such integral parts of the document themselves. Of course, as you will certainly know from reading this blog, I have never held that consistency is a conservative vice.

Categories: Law Tags:

Franken Speaks on “Originalism”

June 19th, 2010 1 comment

Franken began by noting he’s not a lawyer, and was one of the few non-lawyers on the Senate confirmation hearings for Sotomayor; but what he says brings to mind an important truth: being a lawyer means that you studied the law, but not that you’re right about it, and vice-versa.

Here’s an excerpt from the address. You can read the entire speech on Franken’s site.

Justice Souter once said: “The first lesson, simple as it is, is that whatever court we’re in, whatever we are doing, at the end of our task some human being is going to be affected.”

Conservatives would like us to forget this lesson.

They’ve distorted our constitutional discourse to make it sound like the Court’s rulings don’t matter to ordinary people, but only to the undeserving riff-raff at the margins of society.

So unless you want to get a late-term abortion, burn a flag in the town square, or get federal funding for your pornographic artwork, you really don’t need to worry about what the Supreme Court is up to.

The ACLU has a long and proud history of defending the First Amendment, and while I haven’t seen polling on this, I’d bet that most Americans are fairly pro-First Amendment. But, thanks to a generation of conservative activism, the ACLU is now best known as “those guys who hate Christmas.”

By defining the terms of constitutional debate such that it doesn’t involve the lives of ordinary people, conservatives have disconnected Americans from their legal system. And that leaves room for lots of shenanigans.

By controlling the conversation, the Federalist Society has moved the Supreme Court sharply to the right.

“Including myself,” Justice Stevens said in an interview with the New York Times, “every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court.”

And, indeed, the Roberts Court has overturned two principles I believe are deeply ingrained in our Constitution, in our legal tradition, and in our American values.

First: Judicial restraint.

As I have noted repeatedly – and in an increasingly exasperated tone of voice – over the last few years, Justice Thomas has voted to overturn federal laws more often than Justice Stevens and Justice Breyer combined.

They haven’t just been activists in their decisions, but also in their process.

In both Citizens United and Gross, the Court answered questions it wasn’t asked, reaching beyond the scope of what they accepted for appeal to overturn federal laws the conservative wing didn’t like.

I mean, I don’t speak Latin. But unless stare decisis means “overturn stuff,” then maybe it’s time for conservatives to stop calling other people “dangerous radicals.”

Second, and more importantly: They’ve overturned the principle that the law should be a place where ordinary people can turn for relief when wronged by the powerful.

At the front entrance to the Supreme Court building here in Washington, beneath the words “EQUAL JUSTICE UNDER LAW,” there’s a set of 1,300-pound bronze doors.

Countless Americans have flowed through those doors to see the place where that principle is protected.

Now those doors have been locked to the public. Things have changed.

To add the words of another non-expert non-lawyer:

…strict constructionism is more than just a litmus test. It is rapidly becoming a way to help disassemble the Constitution of the United States and render meaningless many if not most of the rights and liberties guaranteed under it. Strict constructionism is a tool being used in the current conservative quest to place as much power as possible into the hands of government, and to weaken the power, rights, and capabilities of the American people, so as to make possible the imposition of a specific social and moral structure which, by nature, is unconstitutional. Since revolution and amending the Constitution can be difficult and messy, it is much easier simply to reinterpret the standing law under a new paradigm–ironically, in part by claiming that one should not be allowed to interpret anything.

Or, in the unguarded words of an expert:

“A judge who is a ‘strict constructionist’ in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs—the latter two groups having been the principal beneficiaries of the Supreme Court’s ‘broad constructionist’ reading of the Constitution.”

–William Rehnquist, late Chief Justice of the Supreme Court, while serving as assistant attorney general under Richard Nixon, in an analysis of the rulings of Clement F. Haynsworth, Jr. to determine a nominee to replace Justice Abe Fortas

Categories: Law Tags:

Sanity Prevails

June 10th, 2010 Comments off

The judge in one of the mass-extortion P2P blind-lawsuit cases (from the same lawyers trying the same thing with Hurt Locker downloaders) has told the plaintiffs to do a good job of rationalizing their asinine behavior, or file individual lawsuits instead of mass lawsuits.

Categories: Law, RIAA & Piracy Tags:

Solution to Police Misconduct

June 3rd, 2010 Comments off

It looks like several states, at least, have found an answer to the problem of police misconduct being recorded and made public. The solution is simple: make it illegal to record a police officer. There’s a good (if at least slightly biased) article on this, outlining the legal state of public recording of officers over several states. Often the illegality is claimed under an extension of state wiretapping laws, which is not only a stretch, but also ironic in that in the past few years the government has more or less seen fit to ignore those laws in the recording of citizens’ private dealings. We can record you in your private conduct, but you can’t record us in our public conduct. Heinlein’s “public servant equals public master” rule at work.

The no-recording laws are disturbing also because they appear to be directly targeted at hiding police misconduct. It may still be legal to record in public, and you won’t be taken to task for recording police where nothing embarrassing is happening. But if the police do something out of line and they find out you’re recording it, then the line is crossed. Which, obviously, is the exact opposite of how it should be. Yes, not all of an incident may be caught on tape, and yes, the video might not allow citizen viewers to take in the whole picture and understand the nature of the job. But the answers to those issues are education and judgment made by informed persons; making recording a police officer a crime punishable with a prison sentence borders on Orwellian.

Take the video recorded by Anthony Gruber, detailed in this Baltimore Sun article. He had a helmet-mounted camera while driving a motorcycle, and was recording while driving down what appears to be a highway. Public location, not illegal to record there. The recording certainly makes it look like he was speeding, though. After he takes an exit, an unmarked car follows him, and when he comes to a stop behind traffic, the car pulls over and a guy in plain clothes jumps out and pulls a gun, shouting “get off the motorcycle!” three times and putting his hand on the motorcycle dashboard before identifying himself as state police. He does not begin by identifying himself as a police officer, does not immediately show his badge, does not simply keep his hand on his gun in case the motorcyclist goes for a weapon or does something else threatening. No, without any indication that he’s an officer, he just jumps out of the car and pulls his gun out. I don’t know about you, but that would scare the crap outta me. Maybe I just don’t know police procedure, but that seems pretty improper.

Here’s the thing, though. They guy did not start recording because he saw a police officer, he was just recording his driving. And as soon as he discovered the identity of the officer, he immediately complied with the order to stop his bike, and then took off his gloves and stopped the recording. In essence, he did not try to record the officer and stopped as soon as he found out. He was given a ticket on the scene and was let go, and almost certainly would not have been punished further by the police. But after he posted the video on YouTube, the police came and arrested him, confiscating his computer and other equipment. The police claim that the subsequent arrest is not retribution for embarrassing the cop, but few people are buying that. Those familiar with Maryland law say that the use of this statute–making an audio recording of someone without their consent–in a case such as this is unprecedented. The fact that the recording was accidental and was stopped as soon as the person was capable makes the arrest on these charges even more transparent.

What’s scary about this is that the tendency to make the recording of police illegal is not in the interest of public safety–the opposite is true, in my opinion–but to essentially protect the police in cases where they act improperly. It resembles the practice in many states of destroying all evidence in a capital case after the person has been executed, thus making it virtually impossible to prove that the person executed was innocent.

And we know that sometimes this kind of record is needed. Take the arrest of Harvard professor Henry Louis Gates Jr., where it was pretty firmly established that the arresting officer filed an incorrect police report, misstating facts and exaggerating. Such police reports carry significant weight in court cases, but there is little doubt that these reports are, when there is improper police behavior, at the very least biased and very much subject to question. A video recording is powerful evidence for an arrest subject’s case in such situations. To remove these is to promote abuse.

Whatever the issues with recording police, banning recordings of public activity and arresting those who do so is not the answer. It smacks of a perpetual cover-up, and makes the public even more suspicious of police activity, not less.

Categories: Law, Main Tags:

Extortionists Sue ISP for Not Becoming Spy on Their Own Customers

June 2nd, 2010 Comments off

A short while ago, I commented on the recent mass-nuisance lawsuit issued by the producers of The Hurt Locker. The lawyers in that case are repeat offenders, carrying out the same tactics for a German film titled Far Cry. In that case, they are suing roughly 2000 “John Doe” IP Address holders, subpoenaing their ISPs to rat them out so they can be squeezed for cash.

One ISP, Time Warner Cable, said “no.” Their claim is that they have limited resources for hunting down the identities linked to IP addresses given by outside sources, and most of that capacity is dedicated to law enforcement, to help hunt down people like child porn distributors or other seriously dangerous people. They claim that their spare capacity is only 28 subpoenas per month–and the bottom-feeding lawyers trying to extort money in the mass-nuisance lawsuit are demanding that Time Warner drop everything else and spend the next three months doing nothing but servicing their claim against 800 of their customers. Time Warner said they were not interested, thanks.

So the scummy lawyers did what scummy lawyers do: they filed a brief against Time Warner, claiming that they were aiding and abetting pirates, threatening to sue the ISP for contributory copyright infringement.

Look, I’m not endorsing piracy here, but these filmmakers are being asses. Extorting $1500 for downloading a movie? Up to $300,000 if it goes to court? Strong-arm tactics if anyone stands in your way? There’s money-grabbing, and then there’s asinine money-grabbing. If these people were more reasonable and proportionate in seeking redress from some couch potato in Springfield who never would have paid $20 for the movie anyway downloading their film and watching it in a way that is little different in the long run from watching it on TV while muting the commercials, then OK. But demanding an ISP abandon its law enforcement duties in serious cases so they can extort a grand and a half from people like that is going beyond normal schmuckery.

The Best Angle

April 30th, 2010 5 comments

Brian-HoganThe finder of the prototype iPhone has been identified as one Brian Hogan of Redwood City, and he’s taking about the best tack he can on the story: that he did not “sell” the iPhone to Gizmodo, but instead accepted money for giving Gizmodo “exclusive access to review the phone.” As to whether that’ll save his bacon is the question; he still pocketed five grand for something that wasn’t his instead of handing it over to the police as the law requires. And even though he claims that he did not sell the iPhone but instead sold the rights to an exclusive review, such a review was still not something that was his right to sell.

At the end of the day, he held on to something that wasn’t his, actively shopped it around to tech publishers, and then sold it for cash. It’s kind of hard to put a very good spin on that. His attorney is pushing the storyline that Gizmodo assured him that there was “nothing wrong in sharing the phone with the tech press,” but that shouldn’t really afford him too much cover. It falls under the “ignorance of the law” rule, which we have to follow or everyone could say that they were assured there was nothing wrong with committing a crime.

I mean, think of it–what if the president of the United States wanted to violate the Constitution, and all he had to do to clear himself was to get a lawyer to go on record as assuring him that it was OK?

Oh, wait.

Categories: iPhone, Law Tags:

Calling It Like It Is

April 15th, 2010 Comments off

Geoffrey Stone writes an op-ed for the NYT which tells us what we already know, but which half the population or more blinds itself to:

Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.

Fact is, conservatives “legislate from the bench” (in its real meaning, not the conservative sense of “making a decision I disagree with”) far more than liberal judges do. Scalia and Thomas especially apply their political bias with extreme prejudice. They hold up their various flavors of “constructionism” as excuses, with knowing ignorance that such a philosophy is by its nature unconstitutional. Like most modern conservatives, they don’t give a damn; they “know what’s right” and happily rewrite the Constitution under the flimsiest of pretenses, while, in classic right-wing projection, accuse the liberals of doing exactly that.

This article on the role of the judiciary is recommended, a good read.

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