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Archive for the ‘law’ Category

Opposition to birthright citizenship by Republicans is often claimed to be about immigration.

It isn’t. This is good ole’ fashioned neo-Confederate pining for the return of slavery.

Birthright citizenship as created by the 14th Amendment to the Constitution exists for a reason, which is to both eliminate the slave class that existed at that time, and to prevent the emergence of a new slave class that can be exploited because its members are not citizens. Granted, we’re doing that to Mexicans right now… but only one generation’s worth. Their children are Americans with full rights, meaning that we’re not generating a perpetual slave class.

The authors of the 14th Amendment were clear: They wanted to not only eliminate the current slave class of the time, but to also prevent the creation of a new slave class based upon stripping or denying citizenship to people born in America. Opponents of birthright citizenship may claim they are not proponents of slavery, just as readers of Playboy may claim that they read it only for the stories and don’t actually support pornography. But that argument doesn’t hold water. If you’re paying for Playboy, you’re supporting pornography. If you’re eliminating the 14th Amendment, you’re supporting slavery. The fact that you claim you’re doing it for some other reason is irrelevant.

That is all.

– Badtux the Constitutional Penguin

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ICE is transferring 1,600 people detained pending administrative removal to Federal prisons. Note that these people have not been arrested. The term “arrest” means that they’ve been charged with a crime. Instead, they’ve been detained, pending appearance before an administrative law judge who will rule whether they are subject to removal or not.

This is not a trivial distinction. You cannot place someone into a Federal prison unless they have been indicted for a crime, or have been convicted of a crime. These immigrants have not been indicted for a crime — they haven’t been charged with a crime at all, because that would require the Federal government to provide them with a lawyer and due process rights as guaranteed by the Constitution, which requires due process and provision of a lawyer if you’re going to charge someone with a crime. Instead, they have been scheduled to appear before an administrative law judge pending administrative removal, which gets around that whole Constitution thing by *not* being a punishment, it’s just returning the person back to where they came from. The administrative detention in a civilian detention facility is not a punishment, it’s part of a removal process wherein people who have been cited for being here without authorization are temporarily held pending their hearing. They can waive their hearing and be removed immediately, so under the law they’re there voluntarily.

But that’s a civilian detention facility, which, I might point out, is not a prison and is not a punishment for a crime. A prison is a prison and is a punishment for a crime. Punishing someone by putting them in prison without an indictment, lawyer, or due process is a violation of the 4th, 5th, and 6th amendments of the Constitution, which applies, I might remind you, to *all* people on US soil regardless of their citizenship (the Supremes have ruled on this repeatedly). But I guess the Constitution is just a piece of paper as far as the regime of Orange Julius Caesar is concerned.

— Badtux the Constitutional Penguin

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So, a prosecutor raids an attorney’s office. What, exactly, can he seize from there?

First of all, he cannot seize any documents protected by attorney-client privilege. No contracts, no transcripts, no tape recordings, no confidential work product. So what’s left?

Financial documents, primarily. How much was he paid. How did he handle client escrow funds, did he embezzle them for his own purposes? (Lots of attorneys have been sent to prison for embezzling client escrow funds). *EVIDENCE OF MONEY LAUNDERING* such as a foreign client putting an unduly large amount of money into an escrow fund and then the attorney disbursing it to entities controlled by a different client in order to launder its origins.

In short, embezzlement and money laundering are pretty much the *only* reasons a lawyer’s office would be raided. So Donald Trump’s lawyer’s office got raided? How many Russian clients did this lawyer have, and how much money did he disburse from these Russian clients’ escrow funds in order to benefit the Trump campaign?

That’s the *real* questions, not anything to do with Stormy Daniels — unless the question is, “was her payoff made with laundered Russian money?”. But nobody would issue a warrant if it was *just* Stormy Daniels. Someone in the New York US Attorney’s Office thinks Trump’s lawyer was laundering money from foreign sources in order to benefit the Trump campaign (which, I might add, is illegal), and any records seized will be financial records related directly to that question. The salacious details of the various contracts that Trump’s lawyer signed with various women he sexually assaulted over the years will just have to remain secret — unless Cohen runs out of money and sells those details to the highest bidder, of course.

— Badtux the Law Penguin

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There is apparently a new law, Fight Online Sex Trafficking Act (FOSTA), which allows the FBI to seize and prosecute the owners of any site that has posts on it where people advertise sex for money. The infamous classifieds web site Backpage.com was removed from the Internet and its owner charged with crimes after passage of this law.

Now, about Backpage.com, they knew what was going on, especially when underage children were being peddled on it, and they did nothing about it, so I’m not particularly concerned that they’re gone. But here’s the problem. Want to get your favorite sites shut down? Just rent yourself a botnet on the darknet (it’s easy, requires nothing but some bitcoin and a bit of trawling through the darknet), create thousands of fake ID’s, flood the site with advertising offering sex in exchange for money, and call the FBI. Voila. You’re done. Site gone.

Congress tailored the law specifically to take out Backpage. The problem is that since the Constitution doesn’t allow laws that apply only to a specific listed individual or company, they had to write a general law. Which can basically be applied to *anybody* who allows users to post comments. Heck, even Facebook could end up in trouble.

Just chalk it up to the law of unintended consequences…

— Badtux the Law Penguin

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An administrative offense is something like a OHSA violation, where you are violating rules and regulations. When you are cited for an administrative offense and are penalized with a fine or other administrative action, you appear before a hearing officer and argue your case that you should not have to pay the fine or comply with the administrative action. You are never convicted of a crime as part of this, and you never have a criminal record as a result of this.

Immigration removal of those without a valid visa, here in the United States, is an administrative action. Those who have overstayed their visas or entered without a visa appear before an administrative law judge, who then either orders them to be released, or orders them to be administratively removed. These people are not convicted of a crime as part of this administrative action, and do not have a criminal record as a result of this administrative action. Because, as I’ve previously pointed out, if it were charged as a crime, then the Constitution requires a grand jury to indict, requires providing a lawyer, and requires a jury for conviction. Thus ICE deliberately does not charge immigrants slated for deportation with any crime, because that would trigger civil rights protections that they don’t want triggered.

So anyhow: In 2016 the NYPD received 80 “administrative detainer” requests from ICE of prisoners slated for release who they claimed had criminal records. The NYPD investigated those claims, and in those cases where prisoners had a felony record, released the prisoners into ICE custody. This was done as a favor to ICE, which in turn has done favors in the past for the NYPD such as deporting a felon they really don’t want released back to the streets. It is not the job of the NYPD to spend significant resources dealing with administrative actions associated with another agency altogether and they have no obligation under the Constitution or under New York law to do so.

In 2017, however, after Trump unleashed them for an overall war on immigrants, ICE sent a whopping 1,526 detainer requests to the NYPD claiming that immigrants were felons who needed to be deported upon release — or basically one for every single immigrant slated for release. After the first few dozen didn’t pan out as being felons, the NYPD basically started waste-binning these requests. The NYPD investigated the first few, and after a few dozen proved to not have criminal records the NYPD started returning the detainer requests wholesale rubber stamped “Unable to verify criminal record.” Because really, if ICE lies to you a dozen times, why bother validating that they lied to you the other 1,500 times?!

Police officers are not immigration agents. Their job is to maintain public order and arrest people who commit crimes in order to prosecute them as criminals in a court of law. Note that undocumented immigrant are never prosecuted for being undocumented. That would give them rights, such as the right to an attorney and trial by jury. Instead, they are removed from the United States via an administrative action that requires only an administrative hearing with far fewer rights. This administrative action does not result in a criminal record for the immigrant, because it is an administrative action, not a criminal action. Requiring police officers to treat people as criminals who have never been convicted of any crime in the United States and never *will* be convicted of any crime in the United States is un-American and utterly ridiculous, and attempting to use police officers in order to enforce administrative actions rather than to enforce criminal law is a complete and total waste of their resources.

In short, it is not surprising to me that the NYPD started wholesale refusing these detainer requests. Once you want them to be enforcing administrative actions rather than enforcing criminal law, you’re no longer an ally — you’re the enemy. Because their sole reason for existing is to enforce criminal law. End of story. Asking them to do something outside their reason for existing is okay for a few times a year as a favor, but if you’re demanding massive use of their resources that they should be using to chase and prosecute criminals, you are their enemy.

– Badtux the Law Penguin

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Whenever there’s one of these school shootings there’s a quick rush by the NRA to shout “we need better mental health treatment!”. Here’s the thing: Mental illness has nothing to do with school shootings. The DSM5, the master book of diagnosable mental disorders, doesn’t even have a single classification that applies to most school shooters.

Most school shooters are angry. Not mentally ill. The stats are pretty clear — violence by the mentally ill is no more common than violence by non-mentally-ill people. Anger is not a mental illness, otherwise half the shouters on talk radio would be in asylums.

But, you say, threatening to shoot up schools is at least a threat! Well, uhm…. not so fast. First of all, it has to be provably what’s called a “true threat”. It has to cause someone to be alarmed, thus it has to be specific — there has to be someone that is the target of the speech who feels threatened by the speech. Furthermore, the State must prove that you intended for people to feel alarmed. It can’t be a joke mentioned in passing, there has to be intent to cause alarm. You can thus post a YouTube video of you posing with an AR-15 saying “I’m going to be the best school shooter ever!” and it does not qualify under the Elonis Test as a “true threat”. Because it’s not a specific threat against a specific school at a specific time, there’s nothing actionable there — it’s protected speech under the 1st Amendment.

Now, let’s talk about someone who is mentally ill, who is in possession of an AR-15. Surely we can take the AR-15 away from him, right?

Uhm, no. First of all, only those who have been involuntarily committed as a threat to themselves or others lose their gun rights. You can be on more psychotropic drugs than Keith Richards and still be legally allowed to own firearms.

Now, let’s look at what’s necessary to get someone involuntarily committed: Mental health professions must make a case at a court hearing that you present an eminent danger to yourself or others due to a disorder described in the DSM5. They must *prove* that you are a danger. The fact that you utter vague threats is not enough. They have to prove that you’re actually trying to carry out those threats, and furthermore that this is because of a psychiatric condition diagnosable under DSM5. If it’s because of other issues — because, say, someone cut you off in traffic and you threatened to beat his ass, i.e., simple anger (which, remember, is *NOT* a DSM5 psychiatric disorder) — then you won’t be involuntarily committed.

The reality is that the bar for involuntary commitment is so high in the United States, thanks to past abuses of the process, that basically the only way you can be involuntarily committed as a threat to others is if you’ve already done harm to others. You have a 4th Amendment right to be secure in your person against seizure by the state. Simply ranting that you intend to do harm to (non-specific) others is insufficient to violate that right, you have to have actually done something that is harmful to yourself or others or at least credibly threatens yourself and others. And remember, you have to do this while being diagnosable with a condition under DSM5 and it must be related to your diagnosis. Simply uttering threats and ranting aren’t enough, otherwise Alex Jones would be in jail.

In short: Better access to mental health treatment would certainly be nice. But it won’t stop school shootings, and the people claiming it does are just lying to you when they say it would. And the way the Constitution works, there’s nothing — zero — that the police can do beforehand in most cases. “I hate school” is protected speech under the 1st Amendment. “I hate school and I wish someone would shoot it up” is protected speech under the 1st Amendment (see: Brandenburg v. Ohio, it has to be a specific incitement to a specific person to do a specific thing, wishful thinking isn’t enough). Even saying “I will be the best school shooter ever” isn’t enough. The 1st Amendment protects speech that is ominous but not specific. For the vast majority of school shooters, there is nothing — zero, nada — that can be done beforehand. They can’t be committed. They can’t be charged with issuing threats. All that can happen is that the police issue a notice to schools to be on the lookout for this person and call the police if you see them on your campus. Even that’s problematic, because the city or county could be sued for defamation.

The reality is that there’s only one sure-fired solution for school shootings, and that is to outlaw the weapons most used in school shootings — pistols and rifles with box magazines. Nobody has ever done a school shooting with a .38 revolver and nobody has ever done a school shooting with a single-shot bolt action rifle or lever gun. And because of this reality, the NRA and their cronies in power are quick to redirect attention to mental health, police failing to follow up on threatening speech, etc… none of which, thanks to the 1st and 4th Amendments, are anything that the police can do anything about.

– Badtux the Civil Liberties Penguin

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So apparently, according to a bunch of criminals who happen to be elected Republican officials (plus Alex Jones, can’t forget him), there is a “secret society” within the FBI intent upon investigating the President. The evidence? They hold meetings in secret.

They hold meetings in secret.

Like every other investigative team like, well, evah.

Because, look. If a police agency is investigating someone, they don’t want the suspects to know about it. They don’t want the suspects to know what evidence they’ve found thus far, or even that they’re under investigation. Because then the suspects could hide evidence or flee the country or otherwise make it impossible to gather the evidence needed to get an indictment.

So law enforcement teams investigating wrongdoing don’t hold meetings in the open saying “Hi everybody, we’re investigating Jon Doh on suspicion of money laundering, and here’s the evidence we have right now!”. No. That’s not how it’s done. They collect evidence in secret, and they hold meetings in secret to share the evidence with each other that each team member has gathered. Then once they have sufficient evidence, they take the evidence before a grand jury and get a criminal indictment. Only after there is an indictment is their evidence shared with the criminals (or more likely with the criminals’ lawyers since only a fool represents himself when charged with a criminal charge).

That’s how it’s *done*, and how it’s been done for the entire history of the FBI, and for the entire history of most big city police departments for that matter. It’s called standard investigative procedures. And it’s not evidence of a conspiracy. It’s evidence of a police agency operating the way it’s supposed to work.

Which is a problem, I suppose, if you’re a criminal politician and you’re worried that you might go to jail at the end of the investigation….

— Badtux the Law Enforcement Penguin

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