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Archive for the ‘law’ Category

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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Apparently he wants to get on that $100K/speech wingnut welfare rubber chicken circuit, showing up at Young Republicans conkkklaves at universities and public rallies calling for white pride and giving speeches about how the white man is oppressed, oppressed I say, oppressed by The Man. But to do that, he has to raise his profile. Like, for example, by actually filing a lawsuit against Google:

<blockquoteMore specifically, it accuses Google of singling out, mistreating and systematically punishing and terminating employees who “expressed views deviating from the majority view at Google on political subjects raised in the workplace and relevant to Google’s employment policies and its business, such as ‘diversity’ hiring policies, ‘bias sensitivity’ or ‘social justice’…”

There’s one problem with this: California is an “at will” employment state. You have no right to a job in California. You can be fired for any reason in California other than for membership in a protected class enumerated in law. And “conservative asshole” isn’t a protected class in any law of the country.

In short, Google would have been in the right for firing him because they didn’t like his hairstyle or his shoes, because California requires no cause for firing — you can be fired for any reason, no matter how stupid, as long as it’s not because of your sexual orientation, sex, race, or religion, or the special case of “whistleblower” (which requires reporting illegal conduct to the government). Damore claims he was fired for being white or male, but chances of him proving that via discovery are virtually nil. There will be no smoking gun saying “let’s fire this guy because he’s white!”. No, the only smoking gun they’ll find is “let’s fire this guy because his opinions are an embarrassment to our company!”. Which is an entirely legal thing to do in the state of California, because employment here is a private contractual relationship between employer and employee that can be terminated by either side. The Governor Reagan era employment laws in California were written in an era where having Big Government telling a private company who they must employ or not employ would have been considered Communism and thus evil, thus basically your only remedy if you’re fired is to get another job.

But hey, this isn’t actually a real lawsuit anyhow, it’s just to raise Damore’s profile on the wingnut welfare circuit, so it doesn’t matter that a judge will take one look at that and bang “Dismissed” upon receiving Google’s “motion to dismiss for lack of cause”. That’ll give Damore just one more talking point about how he’s being oppressed, oppressed I say, by Big Liberal Meanies. I just find it amusing that Damore is whining about being fired for his opinions, when it’s perfectly legal to do so outside of a union contract or a socialist country. Amazing how Damore hates unions and socialism — both of which probably would have kept him in his cushy job at Google. Talk about reaping what you sow!

Once again, James Damore: Right wing asshole is not a protected class under California law, thus Google can decide they don’t like you so they won’t employ you. It’s called FREEDOM. Google has it. Why do you hate FREEDOM, James Damore? Oh wait, because hating FREEDOM gets you those cushy wingnut welfare speaking gigs. Alrighty, then!

– Badtux the Snarky Penguin

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I mean, this isn’t even controversial. It’s a warning right there when you log into a government computer that anything you do there is a public record. Note that confidential information has to go onto a separate confidential network that has different protections, but if it’s not confidential information, it’s a public record, and can be retrieved via FOIA request by *anyone*.

Let’s not forget how Wikileaks got Hillary Clinton’s emails: A FOIA request by a VICE reporter. Not by hacking her server. Nope. Just by scraping the emails off the State Department’s servers as they publically released them in response to Jason Leopold’s FOIA request. Jason Leopold isn’t law enforcement. Jason Leopold is just an ordinary citizen who files requests for public documents. And gets them, albeit sometimes having to sue to get them.

If you are a law enforcement officer, getting access to public documents is even easier. You show up with your badge and say you need them for law enforcement purposes. They hand you what you ask for. That’s it. Because they’re public documents. There isn’t a need to get a warrant to get access to information already owned by the public, especially information that could be FOIA’ed. About the only thing that requires additional paperwork is if there are privacy rights involved — e.g., if you’re requesting records that have been deemed “private” under various privacy acts, you’ll need to file paperwork saying that you need the information for law enforcement purposes. You still don’t need a warrant, because it’s still information the government already has — you only need a warrant for information the government *doesn’t* have. None of that privacy stuff even applies to emails sent to or from government computers. You explicitly waive all privacy rights when you log on to a government computer. It’s right there in the notice that you’re forced to sit through. Anybody can file a FOIA request and get those emails. Anybody. Doesn’t require a badge, or anything, just two working brain cells and a fax machine (yeah, most departments require FOIA requests to be faxed. Hilarious, huh?).

None of which is brain surgery, and anybody who has ever been a government employee knows all of this. Well, except the Trump administration. Which claims that Mueller’s request of emails sent by Trump administration officials on government computers was “improper”. Because they’re fucking morons. Duh. Look, it’s been over twenty years since I was last a government employee, and even *I* remember that anything I generate using government equipment is a public record! Fuck, now that Mueller has these emails, it’s time to get Jason Leopold on the case again, because I’m curious to see what’s in them. The only real question is whether Wikileaks (which appears to be an arm of the Russian government) will throw off their reputation as Russian stooges and publish the emails…

– Badtux the Not-moron Penguin

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Louisiana Supreme Court states that the right to an attorney only applies if you state a request for an attorney in standard English. Speak Spanish? Tough shit. Speak vernacular Creole? Tough shit.

I mean, look. Gotta send them darkies to prison, y’all. You know they’re all criminals, after all. As for the Constitution? Yeah, well, according to the U.S. Constitution, the amount of justice you receive isn’t supposed to be different based upon the language that you speak (that whole “equal protection of the law” thingy in the 14th Amendment). But hey, the Constitution is just a piece of paper, right? Right?!

And people wonder why I would never move back to Louisiana even if I had a million bajillion dollars and was wanting to start up a business… shit, their “justice” system is so goddamn corrupt, it’s worse than India. Like in India, if the rich and powerful who control the state decide they want your shit, they’ll use corrupt D.A.’s and judges to take it. At least in India the judges will take bribes to stop the process. In Louisiana, the judges are basically selected by the rich and powerful, so they just rubber stamp whatever the rich and powerful in the state want rubber stamped. It’s a “justice” system, not a justice system.

– Badtux the Corruption Penguin

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There are multiple lawsuits claiming that Trump is in violation of the Emoluments Clause of the Constitution. Right now, a judge is trying to decide whether the litigants in one of those lawsuits have standing to proceed, i.e., that they were directly impacted by the President’s violation of the fundamental law of the country. If no standing, then no lawsuit.

But let’s say that the judge does rule that the litigants have standing. And let’s say that eventually Trump is found by the court to be in violation. Then what?

Well: not what the proponents of these lawsuits are claiming.

First of all, the lawsuits aren’t going to remove His Fraudulency Donald the Trump from office. There is only one provision in the Constitution for removing a President from office: impeachment. Secondly, the lawsuits aren’t going to put Hillary Clinton in office. If Trump is harassed by the lawsuits enough he might resign, and of course he could be impeached by Congress, but either way the Constitution is clear: Say hello to President Pence, R-Handmaid’s Tale.

So what can the lawsuits accomplish? Well, lawsuits award damages. Lawsuits can also include court orders to cease and desist. In this case, damages are going to be the actual losses of those who lost business due to Trump’s violation of the Emoluments Clause. Identifying how much business was lost is likely to require a Special Master to look at the books of Trump’s businesses to determine how much of their income is coming from foreign sources now as versus from before he was President, and then distribution of the excess foreign income to surrounding businesses in the same field of business who presumably were harmed by the violation of the emoluments clause. It could also include a court order ordering the Trump businesses to cease and desist accepting business from foreign sources, and, if the Trump businesses violate that order, could even involved seizing the Trump businesses, selling them at auction, and then giving the Trumps any excess left over from liquidating the businesses (ie, likely $0, since any money remaining likely would go to pay creditors).

All of that is a real long shot, but here’s the thing: None of that would result in ex-President Trump. Trump would still be President. He would still have the many opportunities for enrichment of a President and, once he leaves office, all the opportunities that ex-Presidents get. Frankly, given how heavily indebted his businesses are, he might even be relieved if a court seized them and sold them at auction. It would save him the trouble of declaring bankruptcy (again) and give him a handy scapegoat to use for his next money-making venture, “I didn’t go bankrupt, a fake judge took all my properties away!”.

And that’s the *worst* case. The most likely case is that this is going to drag on for years and years and years, and then President Trump is going to leave office (either voluntarily or because he had a massive coronary) and the lawsuits will basically end up dropped as moot.

Under *no* circumstances will Trump be removed from office by these lawsuits.

Under *no* circumstances will Hillary Clinton be installed as President by these lawsuits.

At best, they are a nuisance to Trump. Furthermore, given the current makeup of Congress, Trump could basically eliminate the lawsuits in a minute by having Congress make a law saying his businesses can accept foreign money. The Constitution does give Congress the right to do that.

In short, the lawsuits are pointless, other than as yet another way to harass a sitting President. Of course, turnabout is fair play — these lawsuits at least have more possibility of standing than the hundreds of lawsuits about Obama’s birth certificate. But beyond that… there’s no there, there.

– Badtux the Law Penguin

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The U.S. Supreme Court has never ruled that you have a right to drive on a public highway without a driver’s license or valid vehicle registration.

Never.

Not ever.

This is not controversial, unless you are a sovereign citizen dimwit, in which case you spew, “Thompson vs Smith! Campbell versus Walker!”

Really?

Thompson vs. Smith was a Virginia state court case in 1930. The question there was whether a police officer or judge could revoke someone’s driver’s license without cause. The Virginia Supreme Court said no — due process rights were vested in a driver’s license, and it could only be revoked for cause via due process. Thompson vs. Smith did *not* state that there was a right to drive upon a public highway without a driver’s license. Rather, it ruled that your driver’s license could not be revoked arbitrarily without cause because that violated due process rights under the Virginia constitution.

Campbell vs. Walker was a Delaware state court case in 1910 and was about whether Walker was negligent when his automobile struck Campbell’s wagon. Both vehicles had a right to be on the road in question because Delaware at the time had no licensing or registration laws, that was mentioned solely in passing while attempting to determine the question of negligence. Walker was sued to pay for Campbell’s medical bills and the wagon. The question before the court was the standards for proving negligence, not whether either party was in compliance with drivers’ licensing laws — there were none in Delaware at the time. At no time did the court rule upon the constitutionality of Delaware’s (at the time non-existent) driver’s licensing law, it was strictly a vehicle liability case and attempting to determine the evidence needed in order to prove liability in such cases.

I stand by my statement: The U.S. Supreme Court has never ruled that you have a right to drive on a public highway without a driver’s license or valid vehicle registration.

Never.

Not ever.

– Badtux the “Man, these people are stupid” Penguin

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