Friday, March 29, 2013

2nd Amend Victory in CA

The city of S. San Francisco CA withdrew their draconian ammunition registration proposals. rather than try to defned them in court against a 2nd Amend challenge.  Glad to see these anti-gun, anti-self defense ideologues being put in their place.  I don't agree with the NRA on everything, but the threats of an NRA backed lawsuit will deter at least some proposals that may conflict with the 2nd Amend.  Good job NRA!  The Second Amendment does not create an absolute right, but proposals which will have no effect on crime and threaten 2nd Amend values must be challenged.

Thursday, March 28, 2013

S.Ct. victory for those who want government to be accountable

Great victory for those who want government to be accountable. The Supreme Court was 9-0.  However, there is no guarantee that Milbrook will win at trial.  But at least, his suit will not be thrown out because of the FTCA.


No. 11-10362

On Writ of Certiorari to the United States Court of Appeals for the Third Circuit.

Argued February 19, 2013, Decided March 27, 2013 OCTOBER TERM, 2012


The Federal Tort Claims Act (FTCA) waives the Government's sovereign immunity from tort suits, but excepts from that waiver certain intentional torts, 28 U. S. C. § 2680(h). Section § 2680(h), in turn, contains a proviso that extends the waiver of immunity to claims for six intentional torts, including assault and battery, that are based on the "acts or omissions" of an "investigative or law enforcement officer" i.e., a federal officer "who is empowered by law to execute searches, to seize evidence, or to make arrests." Petitioner Millbrook, a federal prisoner, sued the United States under the FTCA, alleging, inter alia, assault and battery by correctional officers. The District Court granted the Government summary judgment, and the Third Circuit affirmed, hewing to its precedent that the "law enforcement proviso" applies only to tortious conduct that occurs during the course of executing a search, seizing evidence, or making an arrest.

Held: The law enforcement proviso extends to law enforcement officers' acts or omissions that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest. The proviso's plain language supports this conclusion. On its face, the proviso applies where a claim arises out of one of six intentional torts and is related to the "acts or omissions" of an "investigative or law enforcement officer." § 2680(h). And by cross-referencing § 1346(b), the proviso incorporates an additional requirement that the "acts or omissions" occur while the officer is "acting within the scope of his office or employment." § 1346(b)(1). Nothing in § 2680(h)'s text supports further limiting the proviso to conduct arising out of searches, seizures of evidence, or arrests. The FTCA's only reference to those terms is in § 2680(h)'s definition of "investigative or law enforcement officer," which focuses on the status of persons whose conduct may be actionable, not the types of activities that may give rise to a claim. This confirms that Congress intended immunity determinations to depend on a federal officer's legal authority, not on a particular exercise of that authority. Nor does the proviso indicate that a waiver of immunity requires the officer to be engaged in investigative or law enforcement activity. The text never uses those terms. Had Congress intended to further narrow the waiver's scope, it could have used language to that effect. See Ali v. Federal Bureau of Prisons, 552 U. S. 214, 227. Pp. 4-8.

THOMAS, J., delivered the opinion for a unanimous Court."

Thanks to Bennet Jones for the heads up!

Tuesday, March 26, 2013

TIH: 3/26


A judge in Indianapolis sentenced former heavyweight boxing champion Mike Tyson to six years in prison for raping a Miss Black America contestant.


Dr. Jack Kevorkian was convicted of second-degree murder for giving a lethal injection to an ailing man whose death was shown on "60 Minutes."


More than 250,000 people took to London's streets to protest the toughest spending cuts since World War II.

4th Amend Victory at U.S. Supreme Court

The Court holds that a drug dog sniffing dog in the porch of one's home is a search and thus subect to 4th Amend. protection.  A victory for civil liberties!  This case illustates a continuing docrtinal division over whether the "reasonable expectation of privacy" test is the only  test of a "search," or just one of two (or more?)  tests. Alito, Kennedy and Breyer dissented.    Here is the Court's syllabus:


Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

Held: The investigation of Jardines’ home was a “search” within the meaning of the Fourth Amendment. Pp. 3-10.
(a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3. Pp. 3-4. [An original meaning/understanding approach]

(b) At the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreason-able governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511. The area “immediately surrounding and associated with the home”—the curtilage—is “part of the home [*2] itself for Fourth Amendment purposes.” Oliver v. United States, 466 U. S. 170, 180. The officers entered the curtilage here: The front porch is the classic exemplar of an area “to which the activity of home life extends.” Id., at 182, n. 12. Pp. 4-5.

(c) The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing by a home “on public thoroughfares,” California v. Ciraolo, 476 U. S. 207, 213, but “no man can set his foot upon his neighbour’s close without his leave,” Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5-8.

(d) It is unnecessary to decide whether the officers violated Jardines’ expectation of privacy under Katz v. United States, 389 U. S. 347. Pp. 8-10. [This is where some of the Justices who also found a 4th Amend violatoin disagreed]

{JUDGES: SCALIA, J., delivered the opinion of the [*3] Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY and BREYER, JJ., joined.]

Thanks to Bennett Jones for the heads up on this!

The Nullification Crisis, Calhoun and the Civil War

As you know, we are in the sesquicentennial of the Civil War, and I’d like to occasionally stimulate some discussion of this horrendous tragedy. One of the events that helped set the stage was the “nullification crisis” of 1828-1833. The role of John C. Calhoun has also been under-recognized.

"Nullification Crisis

The American System, advocated by Henry Clay in Congress and supported by many nationalist supporters of the War of 1812 such as John C. Calhoun, was a program for rapid economic modernization featuring protective tariffs, internal improvements at Federal expense, and a national bank. The purpose was to develop American industry and international commerce. Since iron, coal, and water power were mainly in the North, this tax plan was doomed to cause rancor in the South where economies were agriculture-based.[15][16] Southerners claimed it demonstrated favoritism toward the North.[17][18]

The nation suffered an economic downturn throughout the 1820s, and South Carolina was particularly affected. The highly protective Tariff of 1828 (also called the "Tariff of Abominations"), designed to protect American industry by taxing imported manufactured goods, was enacted into law during the last year of the presidency of John Quincy Adams. Opposed in the South and parts of New England, the expectation of the tariff’s opponents was that with the election of Andrew Jackson the tariff would be significantly reduced.[19]

By 1828 South Carolina state politics increasingly organized around the tariff issue. When the Jackson administration failed to take any actions to address their concerns, the most radical faction in the state began to advocate that the state declare the tariff null and void within South Carolina. In Washington, an open split on the issue occurred between Jackson and his vice-president John C. Calhoun, the most effective proponent of the constitutional theory of state nullification through his 1828 "South Carolina Exposition and Protest".[20]

Congress enacted a new tariff in 1832, but it offered the state little relief, resulting in the most dangerous sectional crisis since the Union was formed. Some militant South Carolinians even hinted at withdrawing from the Union in response. The newly elected South Carolina legislature then quickly called for the election of delegates to a state convention. Once assembled, the convention voted to declare null and void the tariffs of 1828 and 1832 within the state. President Andrew Jackson responded firmly, declaring nullification an act of treason. He then took steps to strengthen federal forts in the state. [Ironically, Jackson was himself a slave-owner and planter who at least at one time claimed to have been born in S.C. He was generally opposed to expansion of federal power, (e.g. opposed to the Bank of the U.S.), He was also, however, a land-speculator]

Violence seemed a real possibility early in 1833 as Jacksonians in Congress introduced a "Force Bill" authorizing the President to use the Federal army and navy in order to enforce acts of Congress. No other state had come forward to support South Carolina, and the state itself was divided on willingness to continue the showdown with the Federal government. The crisis ended when Clay and Calhoun worked to devise a compromise tariff. Both sides later claimed victory. Calhoun and his supporters in South Carolina claimed a victory for nullification, insisting that it had forced the revision of the tariff. Jackson's followers, however, saw the episode as a demonstration that no single state could assert its rights by independent action.

Calhoun, in turn, devoted his efforts to building up a sense of Southern solidarity so that when another standoff should come, the whole section might be prepared to act as a bloc in resisting the federal government. As early as 1830, in the midst of the crisis, Calhoun identified the right to own slaves as the chief southern minority right being threatened:

“I consider the tariff act as the occasion, rather than the real cause of the present unhappy state of things. The truth can no longer be disguised, that the peculiar domestick [sic] institution of the Southern States [slavery] and the consequent direction which that and her soil have given to her industry, has placed them in regard to taxation and appropriations in opposite relation to the majority of the Union, against the danger of which, if there be no protective power in the reserved rights of the states they must in the end be forced to rebel, or, submit to have their paramount interests sacrificed, their domestic institutions subordinated by Colonization and other schemes, and themselves and children reduced to wretchedness.”[21][22]

On May 1, 1833, Jackson wrote of this idea, "the tariff was only the pretext, and disunion and southern confederacy the real object. The next pretext will be the negro, or slavery question."[23]"


This crisis was part of the background of the later 1860 crisis ignited by the election of Lincoln who advocated that slavery not be permitted in any new states or territories. Lincoln did not advocate abolition of slavery in territories in which is currently existed. In contrast the forceful reaction to southern resistance, Lincoln’s predecessor Buchanan, just threw up his hands and did nothing. Although from Pennysylvania, Buchanan was a slavery sympathizer who agreed with the Supreme Court’s ominous decision in Dred Scott. Note especially the efforts of Calhoun to set up disagreements about slavery as a cause that could unite all of the south and make secession possible. Note the rhetoric about the north “colonizing” and "reducing southern children to “wretchedness.”  Finally, note Jackson's comment that slavery would be the "pretext" for future southern action.  Was it a "pretext?"  Given the religious and other fervors of northerners who were rabidly opposed to slavery, it was not a pretext for them.  Given the religious and other supports for slavery in the Sourth, was it also a "pretext" for Southerners advocating secession?  Of course, that's another huge topic. Although there is much blame to go around for secession and the civil war, Calhoun’s culpability needs to be recognized. 

Monday, March 25, 2013

Armed Robber Murders Baby

An armed robber in Georgia murdered a baby in a stroller and shot the mother after the mother said she had no money to give him.  This problem goes deeper than anything gun control can fix. Have we become a really "sick" society?

Saturday, March 23, 2013

TIH: 3/23


Patrick Henry called for America's independence from Britain, telling the Virginia Provincial Convention, "Give me liberty, or give me death!"


The first Japanese-Americans evacuated by the U.S. Army during World War II arrived at the internment camp in Manzanar, Calif.


The U.S. Army formally charged Staff Sgt. Robert Bales with 17 counts of premeditated murder in the deaths of 17 villagers, more than half of them children, during a shooting rampage in southern Afghanistan.

Friday, March 22, 2013

Obama's latest Gun Control Crap (FactCheck)

No one with any intellectual integrity would cite this study as authority for such a broad conclusion (40% of guns are purchased without a background check).  It could be true, but this study doesn't provide any credible support for the proposition.

Latest Report on BATF's Opn. Fast & Furious

Here's a report on the latest government report on BATF's notorious Operation Fast and Furious.  As so often seems to be the case, the higher-ups are exonerated and blame is place on lower officials.  Sorry but I haven't been able to find a link to the original document.  Please provide if you can.  Thanks!

Wednesday, March 20, 2013

Representation of indigent criminal defendants

Monday was the 50th anniversary of the U.S. Supreme Court's landmark decision, Gideon v. Wainwright, on the  6th Amendment right of indigent defendants charged with serious crimes/felonies  to an attorney at state expense.  The right has expanded some since then, and problems remain.  This has spurred many to re-examine this issue in light of our current situation.  Here is one view.  Remember, however, that PD's are only part of the picture.  Many jurisdictions also use court-appointed private attorneys. (I strongly recommend Anthony Lewis' award winning  short and readable book on the Gideon case--"Gideon's Trumpet.")

Another attempt to try to help clean up NYPD.

Widespread abuses of stop and frisk and questionable tactics against Muslim-Americans have led to a new attempt to clean up NYPD.  (Why didn't Mayor
Bloomberg clean up this mess long ago?) Will it work? Historically, reform efforts lead to temporary improvements which are soon abandoned or forgotten with the passage of time.  However, let's hope this effort really works long-term.   Let's also remember that not everyone in NYPD has been invovled in these problems. 

Reid cuts back Senate gun control bill

Perhaps fearing that many of the provisions could not even get out of the Senate, Dem. Sen. Maj. Leader Harry Reid cut the assault weapons ban out of the Senate package. Broadening background checks might not make it either.  There seems to be consensus, however, on trying to crack down better on illegal gun trafficking (e.g. straw-man sales).  He also may have been worried about a possible anti-Dem. backlash in the next Congressional elections (as happened in the Clinton administration). Ideologues Obama, Schumer and  Feinstein threatened to fight on for the full package.   Although their crime-control effects are dubious at best, I support  cracking down on illegal trafficking.  This is clearly criminal activity.   The targets of these  measures are not law-abiding citizens.  Measures that go after the law-abiding (e.g. large magazine and "assault weapon" bans) threaten 2nd Amend rights and will do nothing about gun crime.  Why target law abiding citizens with arguably unconstitutonal  measures that will not cut crime?  The reason is, obviously, not crime control but ideological warriors fighting the culture wars, symbolic politics and symbolic (status) crusdades. 

Tuesday, March 19, 2013

TIH: Mar. 19, 1991

Earl Warren, the 14th chief justice of the United States, was born in Los Angeles.

Although he and his Court may have pushed the boundaries a few times, overall, Warren and the Warren Court did more than any other Court to make consitutional rights a reality.  They also had a understanding how things work in the real world and an appreciation of civil liberties.  For intance, the Warren Court was the first to  seriously ty to  make Equal Protection a reality and not just a theory.  He is one of my heroes of American history.                                                             

Sunday, March 17, 2013

Corruption in El Paso. TX

The El Paso times has been aggressively following corruption in area schools and local governments.  For instance, a public school official  recently went to prison for his manipulatons.  See this excellent website.

Obama Admin continues to stonewall on BATF's Opn. Fast & Furious

Candidate and Pres. Obama made lots of promises about increased transparency and less secrecy in the Executive Branch. There have been very few examples and lots of stonewalling.  The administration stone-walling on what it knew, did, etc. about BATF's disastrous Operation Fast and Furious continues.  It should be obvious by now that there is something the administration does not want to see hit the light of day. Of course, all administrations have attempted to cover-up their transgressions.  Looks like it's become SOP in the executive branch.

FBI's national security letters unconstitutional

A U.S. District Court judge has found that the FBI's national security letters violate the First Amendment.  Individual rights trump the slow slide down the slippery slope to a police state.  It is sad that so few in the Obama administration value a free and open society.

Texas Prisons to block inmate cell-phones

Texas prisons will install equipment to block inmate cell-phones.The system is known as a managed access system.

Friday, March 08, 2013

Holder on killing US citizens on US soil.

I watched some of AG Holder's testimony on killing U.S. citizens on U.S. soil by drone, etc. (i.e. without due process).  Lots of evasion and double-talk and refusal to release documents. What else is new (remember BATF's Opn Fast nd Furious)?  Even some Democrats in Congress and the left-leaning NYT were unappy.  So much for Obama's promises of "transparency."  We are not talking about overseas.  We are talking about on U.S. terrritory where the Constitutuion, including due process, applies with full force.  On the other hand, there might be some emergencies so extreme and dangerous where this might be lawful as in the authority of law-enforcement to use deadly force when unlawful deadly force against others is imminent

Rand Paul's filibuster grand-standing was  perhaps more of a distraction than an aid to facing this issue. On the other hand, his actions, at least suggested, that this is a issue that needs to be taken seriously and addressed.

Use of Force Report on Spokane, P.D.

The report  raises questions about the "culture" or "subculture" of policing within the Dept.

Wednesday, March 06, 2013

Off-Topic: Orca v. Great white

My apologies: OT: Occasionally I come across something so fascinating that I can't resist sharing.  The killer whale (orca) is a much more intelligent and social animal than most of us imagine.

TIH: 3/6

2007: Republican Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, was convicted of lying and obstructing an investigation into the 2003 leak of CIA operative Valerie Plame's identity.  Doesn't make much difference which party is in the White House.  Dirty tricks will be attempted.  However, convictions are, unfortunately, rare.

Tuesday, March 05, 2013

High capacity magazines and self-defense.

High capacity magazines and self-defense. Even police officers who are trained tend to be lousy shots when under stress.   Excellent article with lots info. most people don't have the foggiest idea about.

TIH 3/5

1770 The Boston Massacre took place as British soldiers, taunted by a crowd of colonists, opened fire, killing five people.

1867 An abortive Fenian uprising against English rule took place in Ireland.

1933 The Nazi Party won 44 percent of the vote in German parliamentary elections, enabling it to join with the Nationalists to gain a slender majority in the Reichstag. 

Monday, March 04, 2013

"Assault Rifle," v. Sporting Rifle

I suspect many gun control advocates out there are confused about what is an "assault rifle." In the military sense, an assault rifle is capable of fully-automatic firing (They usally have a selector switch which allows the shooter to select semi- or full- automatic fire).  Many probably incorrectly assume that new federal laws are necessary to get rid of fully automatic rifles.  The situation is further confused by sloppy use of the term "Assault rifle," in statutes and propose legislation.  This video sorts things out.  Thanks to Dale Christopherson for the link.

Next U.S. Supreme Court 2nd Amend case?

The U.S. Supreme Court has, in my opinion, behaved irresponsibly in not deciding a new 2nd Amend case.  There are crucial unanswered questions (e.g. standard of review, lawful uses or only lawful self-defense), and many obviously incorrect lower court decisions.  A  split on a constitutional issue between U.S. Court's of Appeals is a type of case where the Court will sometimes grant certiorari (review).  One Circuit Court honestly payed attention to the word "bear" in the Second Amendment, while another basically read it out of the Amendment.  With potential federal legislation on the way and a number of new, strict state gun laws, clarification is badly needed.