A story recently appeared in a local paper where the reporter discussed a business that was the victim of a drive by shooting. The business was closed, no one around and no one inside or hurt in any way. The reporter said there was no evidence the business was "robbed". I know it is a small thing, but the misuse of legal terms by seasoned reporters drives me crazy. So, since I know the reporter from many contacts when I was working, I sent him an e-mail. It was polite and friendly, wishing him the best, etc. He replied that he got the term "robbed" from the sheriffs deputy that made the reference.
Wow, now I am really alarmed. It was bad enough that a reporter did not know the difference between a "burglary" and a "robbery", but the sheriffs deputy who took the call?
OK, I know none of you will ever make that mistake, but just in case, here is the difference. A Burglary is the breaking and entering of a building with the intent to commit a felony or any theft. No one needs to be there to be a victim of burglary. A Robbery is the taking and carrying away the personal property of another by force or intimidation.
Someone has to be forced or intimidated into handing over their stuff to be robbed. A building cannot ever be robbed. People are robbed, buildings are burglarized....It is just that friggin' simple. And, for a reporter who has the assignment of covering crime, and doing the job for decades to not have picked up the difference along the way is , well, astonishing. But for a deputy sheriff to be so careless in the terms, is unforegivable.....There, I do feel better now
Friday, December 10, 2010
Friday, November 26, 2010
Flying Naked
OK, well at least it got your attention. Are we headed for a world where flying without clothes is going to be the norm? Is security worth the restrictions? Does the fourth amendment to the Constitution have any affect on the Washington idiots? Most directly, do we all have to give up privacy as an exchange for so-called increased air security?
The Fourth Amendment to the Constitution says, inter alia, that "the people shall be secure in the persons, houses, papers and effects, and no warrant shall issue without probable cause". The latter part of the sentence is what is called the "warrant clause" Many constitutional scholars believe it stands, in application, as a "warrant requirement". Indeed, the SCOTUS has said over and over that "searches without a search warrant are presumptively unconstitutional" And, almost in the same breath, have carved out exception after exception to searches of persons being reasonable without a search warrant.
One of the exceptions the SCOTUS has established are so called administrative searches, such as what it going on in our airports. They have reasoned that a person has the option not to enter if they object to a search and that they (the passenger) have, by implication, consented to the search when they chose to fly on a commercial airplane. Forgive the directness, but WHAT BULLSHIT!
OK, right, yes the court has held limited searches to enter places reasonable but the denial of privacy was balanced against the need of government and in this balance, the court fell on the side of the government. But, come on!.... I do not believe the level of intrusiveness of the searches being conducted in our airports is reasonable in that balance and that it will, or damn well should, be found to be unreasonable and therefore unconstitutional. You see, government can violate your rights if they have a "compelling governmental interest" This is called a strict scrutiny. While a case can be made that terrorists being prevented from blowing up airplanes or using them as weapons is a compelling government reason to violate our fourth amendment rights, the government must be able to prove that the procedures they are using will likely achieve the need. I don't think they can do that. The government (TSA) admit the new porn scanners cannot detect bombs like the underwear bomber was using, or an explosive device hidden in a body cavity, so how are they going to show their procedures meet the governments need?
The fact is, they are targeting the wrong goal. The government needs to concentrate on detecting BOMBERS not bombs. What they are currently doing is, to quote the former security chief for El Al Airlines, idiotic. The government should stop searching grandmothers, infants and housewives from Philly and concentrate on the traits of those who have attacked this country in the past. That is not, repeat, not racial profiling...it is just common sense. If a segment of our society gets offended because they get to have a chat with a government official every time they fly, so what.....don't fly.....That is exactly what they are telling the rest of the country to do if they object to the current porn scanners or grope search, isn't it? We have got to stop being political correct long enough to save the country, don't you think?
Back to the law...... I hope a case gets to the SCOTUS on direct appeal soon enough for some of us to actually be willing to fly again. As for me, it would have to be a really "compelling need" for me to go through this crap to get on a plane..... Don't be so willing to give up a constitutional right so easily...Before long, you may not have any.
The Fourth Amendment to the Constitution says, inter alia, that "the people shall be secure in the persons, houses, papers and effects, and no warrant shall issue without probable cause". The latter part of the sentence is what is called the "warrant clause" Many constitutional scholars believe it stands, in application, as a "warrant requirement". Indeed, the SCOTUS has said over and over that "searches without a search warrant are presumptively unconstitutional" And, almost in the same breath, have carved out exception after exception to searches of persons being reasonable without a search warrant.
One of the exceptions the SCOTUS has established are so called administrative searches, such as what it going on in our airports. They have reasoned that a person has the option not to enter if they object to a search and that they (the passenger) have, by implication, consented to the search when they chose to fly on a commercial airplane. Forgive the directness, but WHAT BULLSHIT!
OK, right, yes the court has held limited searches to enter places reasonable but the denial of privacy was balanced against the need of government and in this balance, the court fell on the side of the government. But, come on!.... I do not believe the level of intrusiveness of the searches being conducted in our airports is reasonable in that balance and that it will, or damn well should, be found to be unreasonable and therefore unconstitutional. You see, government can violate your rights if they have a "compelling governmental interest" This is called a strict scrutiny. While a case can be made that terrorists being prevented from blowing up airplanes or using them as weapons is a compelling government reason to violate our fourth amendment rights, the government must be able to prove that the procedures they are using will likely achieve the need. I don't think they can do that. The government (TSA) admit the new porn scanners cannot detect bombs like the underwear bomber was using, or an explosive device hidden in a body cavity, so how are they going to show their procedures meet the governments need?
The fact is, they are targeting the wrong goal. The government needs to concentrate on detecting BOMBERS not bombs. What they are currently doing is, to quote the former security chief for El Al Airlines, idiotic. The government should stop searching grandmothers, infants and housewives from Philly and concentrate on the traits of those who have attacked this country in the past. That is not, repeat, not racial profiling...it is just common sense. If a segment of our society gets offended because they get to have a chat with a government official every time they fly, so what.....don't fly.....That is exactly what they are telling the rest of the country to do if they object to the current porn scanners or grope search, isn't it? We have got to stop being political correct long enough to save the country, don't you think?
Back to the law...... I hope a case gets to the SCOTUS on direct appeal soon enough for some of us to actually be willing to fly again. As for me, it would have to be a really "compelling need" for me to go through this crap to get on a plane..... Don't be so willing to give up a constitutional right so easily...Before long, you may not have any.
Thursday, August 12, 2010
Another Word on AZ's Immigration Law
Ok, well a local federal judge has enjoined much of the law, so now it goes to the 9 th circuit Court of Appeals. Don't expect much difference there as the most overturned appellate district in the country. But if and when it gets to the Supreme Court....well yes, I did say "if" The high court does not have to accept the case if they choose not to. While unlikely, that would end the matter at the 9 th. Most likely though, the Supreme court will review the case.
There are, it seems to me, two issues. The first is: Is the AZ law unconstitutional on its face. If it is not, then the question is: is the law unconstitutional as applied. Well, aside from the tired argument that only the fed can legislate on immigration issues, the law mirrors the federal statutes. It would be difficult to find the law unconstitutional on its face, or otherwise they would likely cast doubt on the federal statutory scheme as well. And, many forget, the Supreme Court has empowered states to legislate in immigration areas almost thirty years ago. So, if the law is valid on its face, then the test is to determine if the law is unconstitutional "as applied". Meaning, is there something in the way it is actually being implemented that, as used, makes its application unconstitutional.
For the second issue, there must be someone who is a plaintiff or "victim" who suffered a constitutional wrong. That is a problem for those opposed to the law. You see, the injunction all but guarantees local cops are not going to enforce any aspect of the statute until the high court rules, even if some of the law is in effect. So, no plaintiff to use to claim HIS or HER constitutional rights were violated in the application of the law.
So, here is a prediction. The Supreme court will overturn the 9th circuit when it affirms the lower courts injunction and ruling. The AZ law will be found to be "facially valid" and upheld. Once the law is actually in full force and effect, then there will be a second challenge to its constitutionality, based on a claim of some "victim" claiming their personal rights were violated. Then, we will probably see dozens of law suits, each making a constitutional claim. Each will be found to be valid in the lower courts and each will likely be overturned at the Supreme Court. We'll see over then next few years if I am right.......
So, if your looking for a resolution of this issue any time soon.........as they say in NY, "Fa get about it"
There are, it seems to me, two issues. The first is: Is the AZ law unconstitutional on its face. If it is not, then the question is: is the law unconstitutional as applied. Well, aside from the tired argument that only the fed can legislate on immigration issues, the law mirrors the federal statutes. It would be difficult to find the law unconstitutional on its face, or otherwise they would likely cast doubt on the federal statutory scheme as well. And, many forget, the Supreme Court has empowered states to legislate in immigration areas almost thirty years ago. So, if the law is valid on its face, then the test is to determine if the law is unconstitutional "as applied". Meaning, is there something in the way it is actually being implemented that, as used, makes its application unconstitutional.
For the second issue, there must be someone who is a plaintiff or "victim" who suffered a constitutional wrong. That is a problem for those opposed to the law. You see, the injunction all but guarantees local cops are not going to enforce any aspect of the statute until the high court rules, even if some of the law is in effect. So, no plaintiff to use to claim HIS or HER constitutional rights were violated in the application of the law.
So, here is a prediction. The Supreme court will overturn the 9th circuit when it affirms the lower courts injunction and ruling. The AZ law will be found to be "facially valid" and upheld. Once the law is actually in full force and effect, then there will be a second challenge to its constitutionality, based on a claim of some "victim" claiming their personal rights were violated. Then, we will probably see dozens of law suits, each making a constitutional claim. Each will be found to be valid in the lower courts and each will likely be overturned at the Supreme Court. We'll see over then next few years if I am right.......
So, if your looking for a resolution of this issue any time soon.........as they say in NY, "Fa get about it"
Friday, July 16, 2010
Arizona Law and Illegal Aliens
OK, I gotta weigh in. At first blush, it seems incredible the President, the Attorney General, and the Homeland Security Director have or had not "read the Arizona law" You know the one. The one which says that local state law enforcement can enforce a state law which makes it a crime to be an illegal alien in the State of Arizona.
Now, do any of you really believe the above high ranking federal officials had not read the Arizona law when asked if they had?. Of course not. They read it. They, in a calculated stance said they had not. Now why would they do that?. Well, it seems to me the clear and unambiguous reading of the law makes several factors clear as day. First, cops cannot ask a person about their status on the basis of race. Second, cops cannot ask about their status unless there is at least a constitutional basis for the persons detention concerning a possible violation of an unrelated law. By constitutional basis I mean at least "reasonable suspicion" the person has or is about to violate a law. Period. A suspected illegal alien cannot be detained solely to inquire about their status in this country. There has to be another legal basis for the detention or arrest. In fact, a careful reading of the Arizona law makes it clear the law enforcement contact cannot even begin as consensual to then ask about their legal status in the country.
So, back to why all these federal officials say they have not read the law. Well, it seems clear to me that had they admitted to having read Arizona's law would place them in a position to defend their broad and sweeping statements the law encourages profiling. So why say they haven't read it?. It is because they cannot defend their position in logic. They cannot win a debate on the issue. They will be forced to admit the law does not do any of the evil crap they say it does.
The main stream media is no better, and they will not ask these officials why, in the face of the clear language of the statute they say what they have said. Instead, it has become a lie told often enough, may Americans believe it. Don't you believe for a second they didn't read the statute. They have, they just cannot defend their position if they admit they know what the law says.
Now, is it constitutional?. Well, it should be. It does not violate any federal statute. In fact, it mirrors the federal statute at issue. And, the Supreme Court long ago found it constitutional for a state to pass immigration laws. What will happen is any ones guess. The supremacy clause is not the real issue and the feds know it. We won't know how it will end until the Supreme Court rules and the local federal trial and appeals court decisions mean little on the way up.
The bottom line is any lawyer, hell any non lawyer, can read the Arizona alien statute and come away with the same conclusion. It does not allow a detention unless there is a lawful independent reason for a detention. Read it yourself..... just don't say you haven't to avoid a debate in the issue...like many of our "leaders" have done.
Now, do any of you really believe the above high ranking federal officials had not read the Arizona law when asked if they had?. Of course not. They read it. They, in a calculated stance said they had not. Now why would they do that?. Well, it seems to me the clear and unambiguous reading of the law makes several factors clear as day. First, cops cannot ask a person about their status on the basis of race. Second, cops cannot ask about their status unless there is at least a constitutional basis for the persons detention concerning a possible violation of an unrelated law. By constitutional basis I mean at least "reasonable suspicion" the person has or is about to violate a law. Period. A suspected illegal alien cannot be detained solely to inquire about their status in this country. There has to be another legal basis for the detention or arrest. In fact, a careful reading of the Arizona law makes it clear the law enforcement contact cannot even begin as consensual to then ask about their legal status in the country.
So, back to why all these federal officials say they have not read the law. Well, it seems clear to me that had they admitted to having read Arizona's law would place them in a position to defend their broad and sweeping statements the law encourages profiling. So why say they haven't read it?. It is because they cannot defend their position in logic. They cannot win a debate on the issue. They will be forced to admit the law does not do any of the evil crap they say it does.
The main stream media is no better, and they will not ask these officials why, in the face of the clear language of the statute they say what they have said. Instead, it has become a lie told often enough, may Americans believe it. Don't you believe for a second they didn't read the statute. They have, they just cannot defend their position if they admit they know what the law says.
Now, is it constitutional?. Well, it should be. It does not violate any federal statute. In fact, it mirrors the federal statute at issue. And, the Supreme Court long ago found it constitutional for a state to pass immigration laws. What will happen is any ones guess. The supremacy clause is not the real issue and the feds know it. We won't know how it will end until the Supreme Court rules and the local federal trial and appeals court decisions mean little on the way up.
The bottom line is any lawyer, hell any non lawyer, can read the Arizona alien statute and come away with the same conclusion. It does not allow a detention unless there is a lawful independent reason for a detention. Read it yourself..... just don't say you haven't to avoid a debate in the issue...like many of our "leaders" have done.
FUNDAMENTAL RIGHT, by God
McDonald v. Chicago. In deed, it is hundreds of pages long. And, it represents the very first time the U.S. Supreme Court has ever directly ruled on whether the Second Amendment applies to the states.
If you have looked at some of my prior posts, you will notice I talked about how the Bill of Rights and its various provisions, affect the individual states. The short version is that after some decades of battles, the court decided only those Amendments which are "implicit in the concept or ordered liberty" apply to the states. Never before McDonald has the court directly addressed this issue. But a few weeks ago it did. The court held that the right to keep and bear arms is a fundamental right. The states may still regulate firearms as long as their laws do not infringe on the right to keep and bear arms.
McDonald, while historic in nature, is somewhat limited. It concerns the right to be armed in your home without a local law telling you it is illegal. As far as it goes, it strikes down state and local laws that directly or indirectly outlaw a person from having a handgun in their home. That is all it says. It does not say states and local governments cannot pass regulations as to the carrying of a gun, the type of ammo you put in it, etc. In fact, the city of Chicago reacted to McDonald by immediately passing a law that says you have to have a friggin' permit from them to step out out in your own yard with your gun! The NRA immediately filed a lawsuit.
It will be interesting to watch. I predict a lot of litigation yet to come. The funny thing is, the states and locals may loose. You see, government can infringe on a basic or fundamental right if they can show a compelling reason. Hell, I don't think they can even show a rational basis for the laws. The facts are clear. Where gun ownership and carry is restricted, crime goes up. When people are relatively unrestricted in the carrying of weapons, violent crime goes down.
One by one, the state and local gun laws will fall. It may take a decade, but it will happen. So, it looks like McDonald v Chicago will be viewed as a landmark gun rights case, and maybe the most important decision in this area in a century. Lock and Load!
If you have looked at some of my prior posts, you will notice I talked about how the Bill of Rights and its various provisions, affect the individual states. The short version is that after some decades of battles, the court decided only those Amendments which are "implicit in the concept or ordered liberty" apply to the states. Never before McDonald has the court directly addressed this issue. But a few weeks ago it did. The court held that the right to keep and bear arms is a fundamental right. The states may still regulate firearms as long as their laws do not infringe on the right to keep and bear arms.
McDonald, while historic in nature, is somewhat limited. It concerns the right to be armed in your home without a local law telling you it is illegal. As far as it goes, it strikes down state and local laws that directly or indirectly outlaw a person from having a handgun in their home. That is all it says. It does not say states and local governments cannot pass regulations as to the carrying of a gun, the type of ammo you put in it, etc. In fact, the city of Chicago reacted to McDonald by immediately passing a law that says you have to have a friggin' permit from them to step out out in your own yard with your gun! The NRA immediately filed a lawsuit.
It will be interesting to watch. I predict a lot of litigation yet to come. The funny thing is, the states and locals may loose. You see, government can infringe on a basic or fundamental right if they can show a compelling reason. Hell, I don't think they can even show a rational basis for the laws. The facts are clear. Where gun ownership and carry is restricted, crime goes up. When people are relatively unrestricted in the carrying of weapons, violent crime goes down.
One by one, the state and local gun laws will fall. It may take a decade, but it will happen. So, it looks like McDonald v Chicago will be viewed as a landmark gun rights case, and maybe the most important decision in this area in a century. Lock and Load!
Monday, February 8, 2010
Honest Officer, It Was Self Defense!!!
Besides the tried and true defense to a crime of "some other dude did it" (SODDI), the most often used defense to a crime involving assault behavior is self defense. It is the oldest defense on the books. As long as man has been around, he has enjoyed the right of self defense. All societies have recognized the right and nations now consider self defense to be their right, even to the point of a preemptive strike. In other words, if a country is reasonably sure another country or, these days, group is about to attack, they have the right to strike first and defend their action as self defense. Think of it as a defense of necessity. The defense of self allows force to be used to prevent a greater harm, namely unlawful harm to you.
As a general rule, however, people do not have the right to a preemptive strike, irrespective of how strong the evidence is they are about to be attacked. Self defense as a defense to a criminal prosecution for a crime requires the attack on the person be imminent. Must be happening right this second!. And, using a term nations use, the force used in self defense must be proportional to the level of force used in the attack. An attempted slap in the face does not allow you to whip out your machine pistol and cut them down with a hail of bullets in mid swing. I know, they were stupid and brought a fist to a gun fight and deserve to die.....can't do it and if you do, you are going to prison.
If, however, an attacker uses deadly force upon you, you may use deadly force upon them in self defense providing that" 1) your subjective perception was that that level of force in self defense was needed and 2) the act and amount of force was objectively reasonable. So here's the deal, the local neighbor kid is outside in your driveway and he is unbolting your mag wheels from your car. Tempting is it may be, you can not just gun him down to prevent the theft of your mags. On the other hand, a person is entitled to use reasonable force in the protection of their personal property. What level of force is allowed turns on the facts. What is clear is deadly force may never be used solely to protect property,
Now, people (and law students) sometimes get confused in the distinction between defense of property and the defense of habitation. If someone breaks into your home while you are there, the common law allowed the use of deadly force to protect habitation. A persons home was his castle and highly protected under the law. Over time, the law has been modified by case law where it has had the affect of requiring the homeowner to be able to prove, not just that someone broke in to their home while they were there, but also that they were in "reasonable fear of their life". So much has this enraged homeowners charged with murder or manslaughter after they killed a burglar, that many states have enacted "castle laws" These statues say, simply, that there exists a legal presumption the person who broke into your home while you are there IS a threat to your personal safety. This presumption allows the existence of this "fact" be recognized by the court and the jury absent evidence to the contrary. These laws are good things and they make the safety and privacy of a persons home important issues and standards worthy of continued legal protection.
So really, self defense, defense of others and the defense of habitation are all first cousins of each other and as old as time. Just remember, you may defend yourself against an attack but that attack must be happening right now and the force you use must be reasonable and in proportion to the force used or attempted to be used against you. Oh..... and don't just drag the body inside, you will get caught faking the evidence...don't you all watch CSI?
As a general rule, however, people do not have the right to a preemptive strike, irrespective of how strong the evidence is they are about to be attacked. Self defense as a defense to a criminal prosecution for a crime requires the attack on the person be imminent. Must be happening right this second!. And, using a term nations use, the force used in self defense must be proportional to the level of force used in the attack. An attempted slap in the face does not allow you to whip out your machine pistol and cut them down with a hail of bullets in mid swing. I know, they were stupid and brought a fist to a gun fight and deserve to die.....can't do it and if you do, you are going to prison.
If, however, an attacker uses deadly force upon you, you may use deadly force upon them in self defense providing that" 1) your subjective perception was that that level of force in self defense was needed and 2) the act and amount of force was objectively reasonable. So here's the deal, the local neighbor kid is outside in your driveway and he is unbolting your mag wheels from your car. Tempting is it may be, you can not just gun him down to prevent the theft of your mags. On the other hand, a person is entitled to use reasonable force in the protection of their personal property. What level of force is allowed turns on the facts. What is clear is deadly force may never be used solely to protect property,
Now, people (and law students) sometimes get confused in the distinction between defense of property and the defense of habitation. If someone breaks into your home while you are there, the common law allowed the use of deadly force to protect habitation. A persons home was his castle and highly protected under the law. Over time, the law has been modified by case law where it has had the affect of requiring the homeowner to be able to prove, not just that someone broke in to their home while they were there, but also that they were in "reasonable fear of their life". So much has this enraged homeowners charged with murder or manslaughter after they killed a burglar, that many states have enacted "castle laws" These statues say, simply, that there exists a legal presumption the person who broke into your home while you are there IS a threat to your personal safety. This presumption allows the existence of this "fact" be recognized by the court and the jury absent evidence to the contrary. These laws are good things and they make the safety and privacy of a persons home important issues and standards worthy of continued legal protection.
So really, self defense, defense of others and the defense of habitation are all first cousins of each other and as old as time. Just remember, you may defend yourself against an attack but that attack must be happening right now and the force you use must be reasonable and in proportion to the force used or attempted to be used against you. Oh..... and don't just drag the body inside, you will get caught faking the evidence...don't you all watch CSI?
Subscribe to:
Posts (Atom)