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Archive for the ‘law’ Category

Summary — A security guard, Seth Eklund, employed by Paragon Security under contract to the Federal Protective Service as a Federal Security Officer (who is still a civilian security guard, not a credentialed law officer) is sitting at a checkpoint inside an Ohio state office building where the IRS rents offices on the second floor. A Sheriff’s deputy on his lunch break shows up, wanting to see someone who sent a letter to him. The security guard says “you can’t come in here while armed” and the deputy says “what? I’m a law officer in uniform!” and the security guard says “you’re not coming in with that weapon.” Then the deputy says fine, okay, do you have a gun locker where I can safely store the weapon. The security guard says no, you need to store it in your car. The officer says he can’t do that, that violates departmental policies, can you store the weapon in a locked desk drawer? The security officer then starts getting angry and irate and screams at the officer “you need to leave!” and the officer is like, “whoa, what?” and the security guard pulls his gun on the deputy and screams “you’re under arrest!” while someone in the office behind him dials 911. The deputy then turns around, later saying “I felt he was about to shoot me, if he’s going to shoot me I want it to be in my back so it’s clear I’m not being a threat to him” and starts ambling off towards the elevator saying “okay, I’m leaving.” The security guard then runs towards the elevator and sticks his foot in it and prevents the deputy from leaving, screaming “it’s too late to leave!”

Cue *more* Sheriff’s deputies (responsible for security in the building) arriving in response to the 911 call. And shenanigans ensue as the deputies try to figure out what the literal fuck is going on, given that it’s a state office building and they thought they had authority over the entire building. They’re informed no, the IRS section of the building is a federal installation and the Federal Protective Service has authority there, not the Sheriff’s Department. They appear to accept that, then the question of, uhm, why was your guy pointing a gun at one of our guys? comes up. Past a certain point the security guard realizes, “oh shit, I didn’t have legal authority to point a gun at anybody”. You can see the panic start in his eyes as he starts panicing and whines that he needs to get back to his guard post and the deputies say “uh-uhn, we’re investigating a possible crime here, you’re not free to go.”

Whoa.

Okay, let’s deconstruct this.

Legally speaking, the area where this confrontation takes place is a gray area. The deputy never entered the area behind the security checkpoint with his firearm, and was not demonstrating criminal intent when stopped. He *may* have been guilty of violating 18 USC 930 section A, possession of a firearm in a Federal facility without criminal intent… which is a misdemeanor. He *may* have been guilty of remaining after being told to leave, which is… misdemeanor trespassing under both Ohio law and Federal law.

So, does a Federal Security Officer have the power to detain or arrest someone for misdemeanors committed in his presence? Oops, NOPE! 40 U.S. Code § 1315 gives private security contractors employed by the government ONLY the power to:

… make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony;

A misdemeanor, or even two of them… are not felonies. All that a Federal Security Officer as defined by 40 USC 1315 can do when he observes a misdemeanor is… call law enforcement to handle the situation.

OOPS!

Okay, now let’s look at the act of pulling a gun upon a person. This security guard is a private citizen, i.e., a civilian. 40 USC 1315 does not explicitly grant a right for security guards to point a gun at someone, however it would be likely covered by agency regulations that allow use of a firearm only to protect the life or safety of the FSO or others. No other use is authorized by agency regulations. A civilian pointing a gun at someone on Federal property in situations other than self defense would be simple assault. It would also be covered under Ohio law, Ohio law is similar to the law in most other states — civilians can only point a gun at a person if they feel that they are in danger of death or severe bodily harm, i.e., self defense. Otherwise it is aggravated menacing, which is roughly equivalent to the Federal simple assault crime.

Okay, so oops! Now, let’s see what happened:

What happened to the Sheriff’s deputy:

NADA. Federal prosecutors and law enforcement looked at the hazy status of where this encounter took place, and decided that pursuing misdemeanor charges against the deputy was not a wise use of their time. There have been no charges filed against the deputy.

Meanwhile, what happened to Paul Blart, Rent-a-Cop:

  1. Security agency policies and procedures only allow pulling gun out of holster in self defense. Strike 1 — Paul Blart, Rent-a-Cop is fired.
  2. Paul Blart, Rent-a-Cop, is charged with two misdemeanor counts of aggravated menacing under Ohio law, one for each time he pulled his pistol out of his holster and pointed it at the deputy. Because he was not a Federal employee, he has no sovereign immunity. Oops! Strike 2.
  3. Paul Blart, Rent-a-Cop, is sued (along with his employer) for civil rights violations, causing emotional distress, failure to properly train the security guard, etc. Again, because he was not a Federal employee, he has no sovereign immunity. Strike 3, UR OUT!

Luckily Paul Blart, Rent-a-Cop, undoubtedly lives in his mother’s basemment (he has that look about him) so he has a place to live. That’s all he has. He’s not ever going to be employed in security again, that’s for sure.

Some takeaways from all of this.

  • Private security guards are private citizens. They are not police officers. In most states they have the same power of citizens arrest as any other private citizen, i.e., they can only arrest someone for a felony occuring in their presence, or as part of enforcing “merchant’s privilege” (detaining someone for investigation of suspected shoplifting). That’s all they can do. The only thing special in most states’ laws about private security guards is the part allowing them to be armed while on duty if they are properly licensed as an armed security officer.
  • Federal law similarly classifies private security guards under contract to the Federal government as private citizens, and similarly only grants them the right to arrest someone for a felony occuring in their prescence.
  • For any non-felony crime observed by a private security guard, all they can do in most states (or in Federal installations) is call 911 just like any other private citizen.
  • Attempting to detain someone for a misdemeanor (other than the special case of “merchant’s privilege”) is not allowed by the laws of most states or by Federal law, or for that matter by the policies of most security agencies even in states like California where a “citizen’s arrest” for misdemeanors is allowed by law. All that private security guards can do in that case is call 911 just like any other private citizen.
  • If you are an armed security guard, your gun is removed from your holster only if your life (or the life of someone else) is in danger. Otherwise it stays there. You don’t brandish it, you don’t wave it around, you don’t point it at anybody, it stays in your fucking holster. If someone is too big and strong for you to safely detain, or is armed and you feel you cannot safely detain him without using your firearm, don’t. Call the police. Call for backup. Call for Mommy, even. But you pull that gun out of its holster to try to detain someone, you are fired, at the very least — there isn’t a private security company in the nation that allows that, and very few state laws allow it either (and Federal law and regulations don’t allow it either, except in certain very specific cases like, e.g., defending nuclear weapons against theft).
  • Remember that it’s just a job. Putting your life on the line isn’t part of the job. That’s why the police exist. If you feel it’s too dangerous to intervene in a situation, don’t. Call the police. If you feel it’s safe to inform the person that you’re calling the police, inform him. If he decides to leave, let him leave. It’s literally not your job to endanger your life in order to detain someone, you’re a private citizen, you’re not a cop. If someone’s life is in danger, of course use whatever force is necessary to save that person’s life, but that’s because you’re not a sociopath, not because you’re a security guard. Hopefully you’d do the same off the clock too, right?
  • And unfortunately, too many legends in their own mind think a gun is some sort of magic talisman to be waved around like a magic wand and having an armed security officer license makes you special. No. Keep the goddamn thing in the holster and behave like a reasonable adult. You’re not Dirty Harry, even Dirty Harry wasn’t Dirty Harry, it was a fucking movie already, okay? Sheesh.

Paul Blart, Mall Cop, would still be employed if he had remembered all of that — and we would be spared the hilarious entertainment value of a bunch of blockhead Sheriffs’ deputies standing around scratching their heads wondering WTF just happened here, ROFL.

– Badtux the Law Penguin

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That new California law is, of course, a law requiring all candidates for President and Governor to provide 5 years of tax returns in order to appear on the ballot. And they’re screaming, “This adds qualifications for president beyond what’s in the Constitution!”

No. Donald Trump can still run for President. Nothing bars him from running for President. He just has to file all the required paperwork. Which has been expanded a bit, but there’s nothing physically preventing him from filing it, it’s not as if the state passed a law saying that no person who is orange can run for President in the state of California. Furthermore, the Constitution gives the states the right to set how electors for President shall be selected, via Article II, Section 1, Clause 3.

The biggest argument is going to be that the State of California cannot tell the Republican Party how they will select their candidate. That is true. Freedom of association says that the Republican Party can select their candidate any way they wish. If they want to select a candidate via party delegates meeting in a smoky room, or via holding party-sponsored caucuses, or any other method they determine, they can do so — as long as they don’t use state money to do it. But if they want to participate in the state-funded primaries they have to abide by the rules the state lays down. The candidate has to pay a filing fee, provide the signatures of X number of registered voters, provide the name and address of his campaign organization, and otherwise provide information that — oh yeah — now includes 5 years of income tax forms too.

And if the Republican Party doesn’t want to abide by those rules, nobody is forcing them to do so. They can hold their own party-funded caucuses like Nevada does. But if you’re going to accept the state’s money, you abide by the state’s rules. That’s just how it is.

– Badtux the Law Penguin

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Devin Nunes sues Twitter over mean tweets from parody accounts.

You can’t get more ridiculous than this. Simultaneously complaining that Twitter silences its critics while asking Twitter to silence his critics is a curious legal strategy, but that’s Devin Nunes for you. He’s always been a twit, the kind of kid who probably wore bow ties and carried a briefcase when he was in high school, and being so far up Mango Mussolini’s ass that he can see the back of Mango’s teeth hasn’t made him any less a whiny asshole.

Such a pathetic special little snowflake, wah, parody accounts was *mean* to you! Wah! What a whiny baby!

— Badtux the Soon to be sued by Nunes like rest of Twitterverse Penguin

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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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