Saturday, December 27, 2014

Outrageous "affluenza" defense sentencing!

The Ethan Couch case is a serious case of injustice benefitting a defendant.  The 16-year old got a slap on the wrist sentence after he killed 4 people while DWI.  The 'affluenza" defense is not a recognized defense, but it worked at sentencing.  Thanks God for Lucas MConnell and others who refused to accept a generous financial settlement and will try to get justice on the civil side.

Interesting article on self-defense under state and natural law theories

Law Review article by Eugene Volkh.

Thursday, December 25, 2014

Open Carry advocate nominated for "Texas of the Year" award.

C.J. Grisham is on a mission to reform Texas laws which ban open-carry of handguns.  He founded "Open Carry Texas" (OCT).  I bet many you don't live in Texas, are surprised this ban exists as TX is usually strongly pro-gun rights.  He has been nominated by the usually anti-gun rights Dallas Morning News. Most states allow open carry of rifles and shotguns.  It appears that even majority of states allow open civilian carry of hanguns in some form.  Keep up the good work C.J.!

OT: The Christmas Day Truce, 1914

I can't let Christmas day and the closing of 2014, the centennial of the beginning of  "the war to end all wars," to pass without some comments.  On Christmas Day 1914, a spontaneous, temporary, truce broke out on the Western Front.  A triumph of the human spirit over the blood lust and horror of war.  Of course, it was only a one-day triumph.  The brass and politicians on both sides were livid.  Of course, they weren't the ones being used as cannon fodder.  To paraphrase a quote I vaguely recall, wars are started by old men while young men make the sacrifices

P.S.  Merry Christmas & Happy Holidays.

The "Gay Wedding Cake Wars," Equality v. Freeom and Religious Freedom.

Don't let anyone kid you, no system can maximize both the values of both equality and freedom.  Personally, I believe freedom should trump equality.  Freedom will disappear under the push for equality.  The "Gay Wedding Cake wars" (small bakery owner refuses to make wedding cakes for gay couples, state civil rights commission threatens to punish owner) are an example of  both culture wars and legal wars.   I am having trouble deciding this one.  If the decision is purely a personal one, e.g. who to have a child with, freedom must triumph even if racism is behind the decision.  Fortunately, we still believe in this country, that not everything is within the power of the government.  However, when one starts a business, new dimensions enter.  On the other hand, if one's faith "informs" their business, and it is not a publicly traded business, but a personal or family business, this is both a personal and business decision.  This is a close case.  I would have to with freedom of the business person here.   As stated above an obsession with equality destroys freedom. Without a healthy dose of freedom the idea of a representative democracy/republic becomes meaningless.

Monday, December 22, 2014

2 NYPD officers murdered

In apparent retaliation for police killings of unarmed blacks, two NYPD officers were shot while sitting in their vehicle.  This is outrageous and unacceptable, no matter what the grievances.  Ironically, the two officers killed were minorities.  RIP Ramos and Liu.  Protest leaders and families of the black victims have spoken out against revenge.  However this has not stopped some people from putting spin on tragedies for partisan advantage. (I am reminded of the calls for gun controls, which will not work, after every tragic gun killing.)  Here is one of the worst:

"In the raw hours following the killing of the officers, police union officials and politicians accused those who have protested the deaths of Garner and Brown of fanning anti-police fervor. Patrick Lynch, president of the Patrolman's Benevolent Association in New York, said there was "blood on the hands" of demonstrators and elected officials who have criticized police tactics."

Protesters worry that these murders of police will distract the public and derail reform movements.  Let's hope this doesn't happen.

Thursday, December 18, 2014

Traffic Stops and mistakes of law, comment on; Heien v N.C.

We can't expect officers to know every detail of every relevant criminal and related statutes.  However, where and how to draw to draw the line between acceptable/excusable mistakes, on the one hand, an inexcusable or feigned ignorance on the other, is a slippery task. See this article for background and additional points.

Monday, December 15, 2014

Celebrate Bill of Rights Day

Dec. 15 is Bill of Rights Day!  This part of the U.S. Constitution is one of the reasons we live in the freest society on the face of the earth.  Support ALL these rights, even if they seem "politically incorrect" or don't affect you directly.  Remember the famous  words of German pastor Martin Niemoller:

When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for the Jews,
I remained silent;
I wasn't a Jew.

When they came for me,
there was no one left to speak out.

Open Carry of Handguns Coming up for Texas?

Open carry of handguns is allowed in the great majority of states.  Texas, surprisingly to many who view it as the worst example of the gun crazy wild-west, doesn't allow it.  However, it is likely to authorize it next legislative session. Texans have been very active lobbying for the change.  Perhaps the leading organization is "Open Carry Texas." Check out their website.  It's not only "gun nuts" who are supporting it.  Many libertarians, even those who don't own a gun are supporters.   There is no credible evidence at increases in open or concealed carry result in more gun crime.  In fact, both gun crime and violent crime rates have been going down for years. Yet, authoritarians on the Left often get squeamish when they see people exercising politically incorrect constitutional or statutory rights. For more on open carry see Wikipedia.

Dire predictions following U.S. S.Ct's Citizens United decision not borne out

Every time the U.S. Supreme Court expands constitutional rights someone in the country is unhappy.  The Far Right is still fuming over Roe v. Wade.  The Left is still fuming over the Second Amendent decisions.  No matter who is moaning and groaning, they always predict dire consequences flowing form the expansion of rights.  Citizens United elicited much moaning, groaning and gnashing of teeth.  There were hysterical predictions of more corruption in politics (as if that were possible) and the wealthy and corporations buying elections.  However, we know that the biggest spender does not always win, and corporations don't always get their man.  This article from the Left-leaning New York Times also suggests that the dire consequences have not and probably will not emerge. It states, in part,

“Dire warnings rang out that the decision [Citizens United] would herald a new era in politics,” wrote Adam Bonica, a Stanford University political scientist, in a 2013 paper about the effects of Citizens United. “Three years on, there is little evidence that these predictions have come to pass.” Over the past year, Americans spent more on almonds than on selecting their representatives in Congress." 

OT: Heart wrenching story of 4 year old African orphan

I don't often post links to this kind of story, but this one is a heart-wrencher.  However, there may at least be something positive on the horizon for this 4-year old African orphan girl.  Be sure to read the whole article.  Keeps your fingers crossed for her and others like her.

Obama pulls a "Biden'

VP Joe Biden has a been a long-term gaffe machine.  For instance, a few years back he talked about how FDR got on TV to reassure the American people.  Obama pulls on by quoting a non-existent Bible verse.

Saturday, December 13, 2014

Houston DA to provide $2 million for body cameras for cops

Harris County (Houston) DA to spend nearly $2 million to buy body cameras for area cops.  It's easy to find the negatives in the criminal justice system, it's nice to have something positive to report for a change.  Hope spring eternal!

Friday, December 12, 2014

Two more relatively unknown heroes of the American Revolution, Burgin and Higday

The "Secret Six" book reviewed below briefly mentions Elizabeth Burgin and George Higday.  Two more heroes of the American Revolution who deserve a book about their contributions to the war effort  (if there isn't one already).
Elizabeth Burgin, may have been the female spy of the "Secret Six."
George Higday, another spy, who also assisted Burgin in helping free British captives from British prison ships in NY harbor.

Recommended Read: "George Washington's Secret Six: The Spy Ring that Saved the Secret Six"

Other than Nathan Hale, most American's know little or nothing about how a small group of spies helped win the Revolutionary War.  This is a short book that everyone interested in the American Revolution should read. One of the six was a woman.

Recommended Read: Negroes and the Gun: The Black Traditon of Arms

If you are interested in an excellent historical study and a look into the 2 black perspectives on guns (the traditional self-defense model and the pro-control approach taken by much of the liberal black leadership) this is your book.  Excellent material  about gun control politics and blacks and the problems with gun control.

Highly recommended read.

"Leap into Darkness:  Seven Years on the Run in Wartime Europe" by Leo Bertholz, is the touching and harrowing story of a Jewish man from Vienna who is trying to escape the Holocaust.  If you love liberty you will love this one and it will bring tears to your eyes.  If you liked "The Diary of Ann Frank," you may like this one even more. It is relatively short and hard to put down. I'm surprised this hasn't been made into a movie yet as was "The Defiant," a somewhat similar topic, and a great movie.

Thursday, December 11, 2014

"Shoot to Wound?"

Many people wonder why officers don't "shoot to wound."  I've never seen or heard of police being trained onthis strategy.  In a stressful, fast-moving situation, it is argued, and perhaps rightly so, that it is not really feasible and may put the officer's life in danger.  It takes an extremely serious gunshot wound to immediately incapacitate a suspect.  Even a shot in the heart will not immediately incapacitate.  See this article on the topic.

Wednesday, December 10, 2014

Protests over police killing of unarmed black males spreads: "Movement or Moment?"

The protests over the Ferguson MO and NYPD Garner killings are continuing in Ferguson and New York and other places, and spreading to more cities, even conservative Salt Lake City Utah. More whites and older people are getting involved.  Many of the protesters are novices.  Every city has its questionable uses of force by police, many of them relatively recent (e.g. Cleveland, Albuquerque).  The crucial question is will the protests become a movement and result in real change?  "Is this a movement or just a moment?" said Marshall Ganz who participated in the 1964 civil rights movement in Mississippi.  One of the things that led to victories for the Civil Rights movement in the 1960's was increased involvement by whites and celebrities.  Whites viewing abuse by police in Selam AL and elsewhere  helped get more support.  The video from the Garner killing has caused widespread outrage, even among conservatives. Let's hope the similarities to the 1960's successes result in successes now.  Let's also hope it doesn't take widespread rioting, fires etc. as occurred in the 1960's for Americans to start asking questions.  Let's hope it becomes a real movement that results in real change. 

After the "Rodney King" riots, there were a lot of reform efforts and studies.  After awhile, things returned to the same old unsatisfactory status quo.  We need REAL reform and commitment from the various levels of government.

A movement needs a name for media, group and personal purposes.  A number of names have emerged. Among them are "Black Lives Matter" and "Hands up, Don't Shoot."  Hopefully, a common, unifying name will emerge.  Personally  I like BLM.

I don't know how we can insure the movement continues and has fruitful results. Perhaps, the feds need to start a national dialogue with a National or Presidential commission on the problem. The closest example is probably Pres. Johnson's National Advisory Commission on Civil Disorders, established in 1967.  It pointed out the problem of excessive use of force by police. The entire problem and possible solutions can be aired and reports made. However, this cannot be just an attempt to buy time. An alternative is a full scale Congressional investigation and report.  Any suggestions?
 We cannot afford to waste this opportunity!

Tuesday, December 09, 2014

Don't forget about DNA exonerees

Another issue we must never lose sight of is making sure that the truly innocent are exonerated, released and compensated.  See the latest data here.  There may be a few truly guilty people who for a variety of reasons are exonerated by DNA evidence.  However, there is no data on this.  I suspect the number of cases in this category is miniscule. This is the Innocence Project website.  This is a very valuable resource on this issue.

NRA Guide to Interstate Transportation of Firearms

Good resource for travelling gun owners.

How many people are lawfully killed by cops in the U.S."

Data on felons  lawfully killed by law enforcement officers by year.


Of course, this data does not show how many are killed who are not felons and  /or who were killed unlawfully by officers.  Arguably Garner was not a felon.   I cannot easily find the data on race of persons lawfully killed.  However, as it is for homicides in general, black males are greatly overrepresented. (Anyone have this data?  Please put it  or a link in a Comments)  Caveat:  Law enforcement agency practices sometimes result in under-reporting.  I suspect the “real” figures are higher.  But who knows?There does not appear to be any reliable national data on these 2 categories.  Even wonder why certain types of data are not collected or published. (see posts directly above for more on these issues)

Source: FBI

Hundreds of police killings missed by federal (FBI) stats

Federal statistics on many topics are not reliable.  See this article from the WSJ.

How dangerous are routine traffic stops?

While this research is far from definitive, it does provide something to go on.  Thanks to Prof. Joseph Olson for the link.

How dangerous is policing? More cops die in traffic accidents, Felonious killings down

We all understand that policing is dangerous and that officers must be given limited authority to use deadly force to protect themselves and others.  However, what are the casualty numbers for peace officers in the U.S.?

"According to statistics collected by the FBI, 76 law enforcement officers were killed in line-of-duty incidents in 2013. Of these, 27 law enforcement officers died as a result of felonious acts, and 49 officers died in accidents. In addition, 49,851 officers were victims of line-of-duty assaults. Comprehensive data tables about these incidents and brief narratives describing the fatal attacks and selected assaults resulting in injury are included in the 2013 edition of Law Enforcement Officers Killed and Assaulted, released today.
Felonious Deaths
The 27 felonious deaths occurred in 16 states. The number of officers killed as a result of criminal acts in 2013 decreased by 22 when compared with the 49 officers who were feloniously killed in 2012. The five- and 10-year comparisons show a decrease of 21 felonious deaths compared with the 2009 figure (48 officers) and a decrease of 30 deaths compared with 2004 data (57 officers)."

Stephen Halbrook on gun control and self-defense

One of the nation's leading scholars and attorneys on the Second Amendment and gun control weighs in.

Monday, December 08, 2014

Time for action on unjustified police homicides is NOW

Like many of you, I was willing to give the officer in the Ferguson case the benefit of the doubt.  It is more difficult to give it to officers in the NYPD Garner case.  The failure to indict the officers in the Garner case is highly questionable and has only fueled the fires and increased the need for action.  When an overweight suspect in a cigarette tax case who refuses to cooperate and says he “can’t breathe” it’s time to ease up.  I'm not presuming the officers committed a crime.  Obviously, it was not a murder, the more appropriate charge would be a reckless or criminally negligent homicide.  I don't know what other evidence the grand jury heard, maybe they are right.  However the effect on the public was devastating for police and the criminal justice system.  Legitimacy is crucial in democracies.  The government needs to take action, NOW.  Unfortunately, about the only time things get done by politicians is when, rightly or wrongly, there is massive public doubt and disruption.  Right now is a chance for meaningful reform.  The media, politicians and public have short attention spans.  We are talking about human life, public attitudes toward the police and system and, as mentioned above, the legitimacy so crucial to successful democracies. 
For an excellent short article on the Ferguson and Garner cases see Chavez.  She writes:

“The two cases are worlds apart in terms of the actions of the men who died and the officers who caused their deaths. Unfortunately, on both sides of the argument, proponents seem all too ready to adopt a narrative that fits their politics rather than examining the facts.

In Ferguson, the race hustlers and their enablers, from Al Sharpton to Eric Holder, turned an unfortunate confrontation that ended in the death of a black man into a cause celebre. Racism did not cause Brown’s death. Nor was he the victim of a police execution, as thousands of protesters try to convince us with their “hands up, don’t shoot” mantra.

What happened on the streets of Staten Island between Eric Garner and a group of police officers looks nothing like what happened in Ferguson. Moreover, we know what happened far more clearly because a bystander filmed much of the confrontation. Those images make the grand jury’s decision far less understandable. For all of the criticism of St. Louis County Prosecutor Robert McCulloch’s decision to release the transcripts and evidence from the grand jury, at least we have some idea of what led to the decision not to indict. In the New York case, we don’t have a clue.

What the video shows is a large black man arguing with police officers who are about to arrest him for the alleged resale of individual cigarettes. He is frustrated, angry even.

He accuses the officers of harassing him — he was arrested in an earlier incident on the same charge, the pettiest of offenses, a crime with no victims. But Garner is not a threat, although he resists arrest when a group of officers surround him, telling them not to touch him as he moves backward, not toward the police.

The video clearly shows Officer Daniel Pantaleo grabbing Garner from behind, with the officer’s forearm pressed against Garner’s neck, and wrestling him to the ground, the forearm against Garner’s throat the whole time. I doubt that Pantaleo intended to kill Eric Garner, but that does not mean Pantaleo was blameless. The audio also demonstrates that Garner pleaded with what were by then several officers who held him on the ground, including one who pressed Garner’s skull into the sidewalk. “I can’t breathe,” the asthmatic Garner begs over and over as a bevy of officers hold him down.

Police have difficult, dangerous jobs in which split-second decisions can have deadly consequences. But Eric Garner was no Michael Brown, and the officers who held down Garner — including, but not limited to, Daniel Pantaleo — had no reason to fear for their lives as Darren Wilson did.

To pretend that police never overreact or use excessive force is as wrong as to claim racism is usually to blame when a police officer kills a black or Latino suspect. Neither serves the public good."

 Massive protests, occasional violence, media coverage and public frustration are creating an atmosphere where momentum is building for change.  It is long overdue. Pres. Obama has called for millions of new federal dollars for local police training, increased use of police-community relations, body cameras, etc.  This is long overdue as the feds have been giving military vehicles and weaponry to local police departments for free.  Much of this equipment seems more appropriate for Iraq and Afghanistan than for America.  The influx of this equipment may have only exacerbated pre-existing problems which foster excessive use of force.  Body cameras are not a magic bullet, and increased “training” is the traditional, standard government response to questionable use of force by police.  I applaud these efforts, but it’s going to take much more than just federal dollars for these “fixes,” to have an appreciable effect.  I have taught in police academies, talked with officers, taught graduate and undergraduate courses of police corruption and “use of force.” The basic, underlying problems are deeper and more complex.  In many police agencies, there is a pervasive subculture that encourages and tolerates corruption and excessive uses of force.  Civil service rules, the “code of silence” and police unions make it extremely difficult to discipline and discharge bad cops.  Police internal discipline is often law and inconsistent.  Mayor, politicians and police executives wring their hands every time a questionable incident arises, but it’s usually only for show.  We need leaders who are willing to take the political risks of fixing a system that is clearly broken. There are very few criminal prosecutions of cops.  Prosecutors rely on the police and except in extreme cases, police cover-up for bad cops.  Juries may be too sympathetic to police.  Don’t get me wrong, policing can be extremely difficult and numerous officers die in the line of duty.  The U.S. Supreme Court has, in my opinion, too generous in establishing legal doctrines make it too difficult to obtain money damages against officer (e.g., qualified immunity) and governments/agencies.  There is little in the way of effective deterrence.  Unfortunately, there are too many Americans who tolerate police use of excessive force.  Many feel a need to come down hard on the “dangerous classes.”  There are additional problems and I don’t have an answers for all of these, but if we are going to get serious, we have to go beyond what Obama is calling for.   I am not calling for derogation of the constitutional rights of police officers of police unions. 

We don't need more racial polarization in this country. Please call or write your federal, state and local political leaders and demand that they get moving in a serious fashion on this nationwide curse that never seems to be addressed seriously.  Under the 14trh Amendment, Congress has power to legislate pursuant to the Amendment.  14th Amendment due process includes the Fourth Amendment which bans excessive use of force by police in arrest, stop and related situations.  This problem needs effective federal (nationwide) action.  The states and cities don't seem to really case.  Let’s take advantage of the momentum.