Author Archives: Christopher Bowen

“No Refusal” Laws: A Perversion of Well Intended Law And A Violation of Personal Liberty

Delaware-lawyer-fights-DUI-Checkpoint-arrests

I received a tip from a friend of mine who does a lot more Reddit browsing than I do that in Texas, this weekend is what’s called a “No Refusal” weekend in Tarrant County, Texas.

What is a “No Refusal” weekend? The tipped-off post, from Reddit user Korietsu (emphasis mine):

Just a warning to those traveling via I-35, 290, and 45. TxDPS and local LE are out in large numbers for No Refusal Weekend and using all of their tools at their disposal. TxDPS will be monitoring via Radar, Helicopter and Laser for all speeding infractions.

There are also sobriety checkpoints, and it is No Refusal Weekend. This means that you can have your blood drawn at mobile testing stations, as judges will be on hand to sign warrants 24/7 this weekend. Don’t drink and drive, and please, if you have been drinking, call a cab.

In short: if, at a sobriety checkpoint, officers feel that a driver is driving under the influence, they can order the suspect to submit to a breathalyzer or blood test. If the driver refuses the blood test, then the police may use a warrant to forcibly seize the blood. On-call judges expedite that process, ostensibly before the suspect can sober up. In addition, refusing the test subjects the suspect to additional penalties under implied consent laws.

The first reaction anyone would have is “come on, that can’t be legal, right?”, but the right to take blood is authorized in Texas law.

1. Texas Transportation Code Section 724.012. TAKING OF SPECIMEN. (a) One or more specimens of a person’s breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person: (1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or (2) was in violation of Section 106.041, Alcoholic Beverage Code. (b) A peace officer shall require the taking of a specimen of the person’s breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer’s request to submit to the taking of a specimen voluntarily: (1) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident: (A) any individual has died or will die; (B) an individual other than the person has suffered serious bodily injury; or (C) an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment; (2) the offense for which the officer arrests the person is an offense under Section 49.045, Penal Code; or (3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person: (A) has been previously convicted of or placed on community supervision for an offense under Section 49.045, 49.07, or 49.08, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections; or (B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections. (c) The peace officer shall designate the type of specimen to be taken.

In Tarrant County, Texas – which covers Dallas, Fort Worth and Arlington – nine no-refusal weekends are funded by various grants by the federal government, which Texas allows to be conducted county-wide. Normally, DUI checkpoints are illegal in Texas. DUI checkpoints themselves have been codified by the Supreme Court of the United States as being legal, per Michigan Dept. of State Police v. Sitz in 1990. Typically speaking, major holidays and major concerts are designated “No Refusal” weekends due to the higher rate of alcohol-related accidents.

I do not dispute the legality or the cause for DUI checkpoints. When motorists take to taxpayer-funded roadways, they acquiesce to the rules of the road, which include laws designated around an acceptable level of blood-alcohol content (BAC). I also am behind additional scrutiny on holiday weekends where drinking – and resulting accidents and fatalities – are increased. This is smart policing, it saves lives, and it’s not a violation of liberty due to the fact that they’re publicly owned roads. I’m not nearly as big of a fan of implied consent laws – which punish a person for simply exerting their Fourth Amendment rights against illegal search and seizure – but I believe that battle has been lost.

But the idea that the police can – on mere suspicion – force a person to be tied down, stick a needle in them, and take their blood, against their will is stomach churning. If we don’t have liberty to our own bodies from invasion by the state, unless we have been legally convicted of a crime, what liberty do we, as citizens, have? It is important to note that in this case, no crime has yet been even charged; the blood test is used to prove the crime, it is not taken after the fact. That is a gross violation of the Fourth Amendment, which starts to look shambolic when one considers the hits it’s taken over the years due to judicial overreach and milquetoast courts.

Typically, the probate judge’s role would be to supervise this process and ensure that the police have reasonable suspicion of a suspect. However, that process has been made ruthlessly efficient, with many warrants being granted over the phone within a matter of minutes, rendering the whole process meaningless. I would love to see how many warrant requests actually get turned down; I’m willing to bet the number is single digits at best. Who says the government doesn’t move quickly?

Of course, Texas – a state marked by a conservative, independent mindset that so hates government overreach that they frequently threaten to secede from the United States – is perfectly fine with invasions of a person’s individual liberty, even their bodies, when it suits the state’s desires. Texas calls for mandatory transvaginal sonograms for anyone seeking an abortion, despite other, less invasive methods of sonogram being available. They also lead the nation in state sponsored executions by an almost five to one margin. People in Texas seem to be perfectly fine with penetrating citizens with foreign objects when it suits something popular.

That is unacceptable. The American Civil Liberties Union has been fighting this for some time, as should anyone, even those who feel that anything that reduces the number of people driving drunk on the roads is a good thing. We can’t shread the Constitution because it’s popular.

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.

Kimberly Guilfoyle’s Rant Against Millennials Was Not About Millennials

I saw popping up in my Facebook feed a discussion on Kevin’s Facebook regarding the comments that Fox News’ Kimberly Guilfoyle made during a forum on what Democrats offer young women, a typically liberal voting bloc. Her controversial comments noted that she believed “millennial” women (and men, as she later clarified on Twitter) should stay out of the voting box and “go back to Tinder and Match.com”.

I was left with a pressing question… what the hell is “Tinder”? After doing some research (GPS based Hot or Not? Kind of creepy, but I wish it was this easy to get laid when I was in my 20s), I instantly dismissed the initial comments. After all, if I wanted to get emotional any time a Fox host said something stupid, I’d be writing for Media Matters instead of The Liberty Papers. But the discussion on Kevin’s page – largely involving younger conservative women, many of whom were critical of the remarks themselves – gave me an epiphany regarding “millennials”.

I remember when I was a teenager – I’m 34 – everyone was making a big deal out of Generation X. We were these new breed of teenagers, and we were Everything Wrong With America™: we were uncouth, undisciplined, and uncontrollable. We were, in short, animals who were going to destroy America, said a generation of Americans who, before we were born, engaged in free love, did LSD by the bucket, and wore bell-bottom pants.

All I'm saying is, anyone who willingly puts on these clothes probably shouldn't be yelling too hard because they found a pack of fags in their kids' dresser.

All I’m saying is, anyone who willingly puts on these clothes probably shouldn’t be yelling too hard because they found a pack of cigarettes in their kids’ dresser.

That generation of children that slammed my own generation – the Woodstock generation – was rebelling against their own conservative parents, who… wait, wasn’t Rock and Roll music going to destroy America, too? That Elvis Presley and his gyrating hips and oh my goodness are those black singers on my radio!? Help a young buck out. This is a conservative site, I know my readers here are old enough to remember.

I don’t know if their parents had anything that was Destroying America™ – between the Great Depression and World War II, they seem like they were too busy not dying to worry about how Jazz music was affecting our future – but there’s a history, through multiple generations of kids being dumb, getting older, becoming comparatively less dumb, and then railing at the dumbness of their own children. Add in a few hack journalists – old people, what did we call “clickbait” in the 80s? – and it’s always a case of The Youth Destroying America.

We’re no different. Many of my associates from my youth, possessed with a combination of strong libido, poor impulse control and even poorer sex education, have had children who are now either in or approaching their teens, and many of these people naturally rail against what children and millennials have become, forgetting that in many cases, they were even dumber when they were that age.

Where this ties into Guilfoyle’s comments is that I don’t necessarily think this is a consequence of ageing. I don’t think people just automatically go from being dumb to being smart as they get older. The only difference is how their vapid, narrow-minded worldview affects arbitrary political views, and who that happens to align with at the time. Voters aren’t absent-minded because they’re young, or because they vote for one side or the other; it’s an issue that stretches across all ages.

Poorly educated younger voters – who don’t read the news, don’t consider alternative worldviews, and generally only care whose bed they’re going to spend the night in – tend to vote liberal for many narrow reasons, but for simplicity’s sake, we’ll boil it down to “screw the man”. They support Operation Wall Street, favour income redistribution, are against the drug war and support higher property taxes because it boils down to more for them, less for everyone else. Forget nuance. Forget learning the issues. Damnit, the world is burning, and they don’t have time for that shit!

Eventually, those kids will get older, and get married and have kids of their own. Now, with the burden of that higher tax on their shoulders, and scared for their children, they slam into the other extreme. Ban all drugs! Put away criminals! Lower taxes! End social safety nets! Lock up potential predators (even if guilty of nothing more than thought crimes)! All because If It Only Saves One Child!™ Forget nuance. Forget learning the issues. Damnit, Timmy has to get to football practice, and they don’t have time for that shit!

Soon, my generation, like those behind us, will get old. Now, the same people who railed for school spending in their 20s will want to pull it back. What do they care? Their kids are graduated. Instead, it will be about protecting their social security, their Medicare, and their freedom, no matter how poor their understanding of that word is. People who couldn’t stop putting drugs into their bodies as youths will continue to rail against those that do so now, because it’s their property that could be TP’d as some youth’s prank. Forget nuance. Forget learning the issues. Damnit, they’re old, they’re running out of time for that shit!

Low information voters go across generations, and across virtually any boundary one can think of, be it race, gender, age, income, etc., and despite the protests from people who usually are older, the margins are far thinner than people think. The difference is that we’re willing to tolerate the idiots who happen to align their views with our own. When Kim Guilfoyle slams millennial women, she’s not slamming a generation – young Republican voters are surely her equivalent to how a racist refers to his Black Friend – she’s slamming people who vote Democrat. Likewise, young people are more willing to tolerate Occupy, no matter how noxious it gets, because old people don’t get it, despite the many, many of them that actually do, if anyone took the time to talk to someone instead of yelling at them.

The kind of voters who don’t read, don’t learn, and ultimately just fumble their way through life, and still vote in who gets to run the country, are an issue and a problem that needs to be dealt with, no matter the political persuasion. Our democracy is a chain, and that chain is as strong as its weakest link. Whether that link is concerned about getting laid on… uh, that get laid app thingy… or is foolishly buying gold coins because someone on TV told them the economy was going to crash, is irrelevant.

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.

57,000 Federal Workers On Paid Leave For Months: WaPo

The Washington Post has written about a Government Accountability Office (GAO) report that makes the claim that over 57,000 federal workers are on paid administrative leave for over a month.

Tens of thousands of federal workers are being kept on paid leave for at least a month — and often for longer stretches that can reach a year or more — while they wait to be punished for misbehavior or cleared and allowed to return to work, government records show.

During a three-year period that ended last fall, more than 57,000 employees were sent home for a month or longer. The tab for these workers exceeded $775 million in salary alone.

(…)

But a forthcoming report by the Government Accountability Office found that 53,000 civilian employees were kept home for one to three months during the three fiscal years that ended in September 2013. About 4,000 more were kept off the job for three months to a year and several hundred for one to three years. The study represents the first time auditors have calculated the scope and cost of administrative leave.

All of this is despite clear government regulations stating that paid time off should never go beyond a few days; the Justice Department, in one example, limits the time to ten days unless the assistant attorney general approves a longer period. However, one particular case – of someone who was put on leave, and wanted a resolution – indicates a clear problem with the left hand not talking to the right:

“Six months went by and we didn’t hear anything,” said Scott Balovich, who was put on administrative leave from his computer job at the National Oceanic and Atmospheric Administration in Alaska. “You’re so anxious. You don’t know if you’ve got a job. You’re getting paid, but it’s no vacation.”

Balovich was kept out of work while investigators examined how pornographic images had gotten onto his computer hard drive. He ultimately was cleared of any personal involvement and returned to his job last week. His attorney, Debra D’Agostino, a founder of the Federal Practice Group, said he “got stuck in the inertia of bureaucracy.”

Linked in the piece is another WaPo report from December 30, 2012, going over the minutia of the federal workers themselves when they get stuck in legal pergatory.

Paul Brachfeld, the inspector general for the National Archives, planned to ring in the new year with his wife with a relaxed visit to their vacation home near Bethany Beach, Del. In October, the couple took a cruise to Puerto Rico. Brachfeld runs every morning in Silver Spring, hikes with Spree, his Jack Russell terrier, in the woods most afternoons and catches up with his adult daughters in the evening. All while collecting his $186,000 government salary.

These days, his life seems like one long vacation. The veteran watchdog for the historical records agency is entering his fourth month on paid time off, one of an unspecified number of federal employees who are collecting paychecks and benefits to do .?.?. nothing. At least nothing to advance the immediate interests of the government.

(…)

In a system that rarely fires people, no one can say how many are on paid administrative leave. It’s one number the government apparently doesn’t track.

There are many reasons for this, and most of them involve a desire to not be sued by workers. Between union contracts, interpersonal squabbles and outright sour grapes, workers are a threat to sue their employer, and when it’s the federal government, there’s additional layers of oversight, obfuscation and confusion worked in. This leads to many people having an interest to prevent that from happening, and those people tend to work slow.

As far as direct supervisors – middle managers – are concerned, putting someone on administrative leave is a win-win situation: they get rid of a problem for whatever reason, and they don’t have to pay the person so they could care less. What’s another $50,000? But it adds up, to the tune of $775m, plus benefits, and asking the government to oversee itself in this case is like asking a wolf to guard the flock.

The answer, however, isn’t necessarily to just make government work right-to-work. Between existing workers unions (which have brought good things to American workers all around, whether they’re union or not), the continued skittishness of the existing job market, and the potential for abuse due to personal or political connections – imagine a Democratic takeover of an office resulting in any Republicans in that office being thrown out onto the streets – going completely right-to-work would be a tremendous shock to the system that would damage workers and cause tremendous instability in public sector work. The only justification for that is that the resulting inefficiency that comes from such high turnover could potentially lead to a reduction in government because the existing one isn’t working, but breaking ones toys to get new ones is never a solid answer.

The answer here is simply stronger enforcement: five working days of leave, with back pay due if no issues are found or if termination cannot be adequately justified. If an HR department cannot build a case for termination within that amount of time, then the worker can go back to work, even if they’re a “threat”. It will force people to think long and hard before going that route. Government bureaucrats who need a fainting couch reading that can simply look at the other side of the argument – full right-to-work, which I’m sure many of my colleagues would argue for – and pick which side they prefer.

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.

John Grisham Had A Point On Child Porn Punishments

John Grisham, a lawyer famous for his legal thrillers who has advocated for a more reasonable approach to crime sentencing and is on the Board of Directors for the Innocence Project, has caused a stir with his comments on some men who watch child porn:

“We have prisons now filled with guys my age. Sixty-year-old white men in prison who’ve never harmed anybody, would never touch a child,” he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week.
“But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn which should be distanced from alluring content from websites similar to TubeVSex.”

Mr. Grisham referred to a person he knew from law school who got himself in trouble regarding 16 year old girls:

“His drinking was out of control, and he went to a website. It was labelled ‘sixteen year old wannabee hookers or something like that’. And it said ’16-year-old girls’. So he went there. Downloaded some stuff – it was 16 year old girls who looked 30.

“He shouldn’t ’a done it. It was stupid, but it wasn’t 10-year-old boys. He didn’t touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people – sex offenders – and he went to prison for three years.”

“There’s so many of them now. There’s so many ‘sex offenders’ – that’s what they’re called – that they put them in the same prison. Like they’re a bunch of perverts, or something; thousands of ’em. We’ve gone nuts with this incarceration,” he added in his loft-office in Charlottesville, Virginia.

Reaction has been negative, and somewhat predictable. Think Progress was quick to condemn. Others have gone beyond condemnation and gone straight to calling for government intervention. Rosie O’Donnell has hinted that he should be targeted by the police:

(…) “Did John Grisham feel like these people needed a champion and he was it? I actually was horrified by what he said, as was most of the country because now he’s issued an apology… Nobody accidentally stumbles onto child pornography. If I were the police, I’d look at John Grisham’s hard drive right now.”

Despite the rage, Grisham has had defenders, including Radley Balko of the Washington Post:

Grisham certainly could have chosen his words better. But he isn’t wrong, and the invective he’s receiving right now is both misinformed and wildly over the top. There are Twitter users calling him a pervert, or for his home to be raided by the FBI. It isn’t all that different than suggesting that people who criticize the drug laws must be doing or selling drugs.

Take this quote out of context, and one could make Grisham look like he thinks the biggest problem with the criminal justice system is that old white guys are getting locked up for looking at child porn. But context is important. Grisham has spent a great deal of time, money, and influence advocating for criminal justice reform. He helped found the Mississippi Innocence Project, and sits on the board of directors for the Innocence Project in New York. He wrote a nonfiction book about a wrongful conviction, and helped another get published. He testified before Congress about the need for reforming the forensics system, addressing the problems he’s seen firsthand in Mississippi.

Grisham, feeling the heat, apologized:

Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography—online or otherwise—should be punished to the fullest extent of the law.

My comments made two days ago during an interview with the British newspaper “The Telegraph” were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of children. I can think of nothing more despicable.

I regret having made these comments, and apologize to all.

Even the “law school buddy” he was referencing, a Gulfport, MS personal injury lawyer named Michael Hollemann, has stated that he deserved his punishment:

Speaking to the Daily Mail, Mr Holleman, once one of Mississippi’s top criminal lawyers, said that did something illegal and it was right to have received punishment.

“I did something wrong and I don’t have a bit of resentment about the way I was treated,” he said.

“It’s illegal and should be punished. If it’s a crime, it’s a crime. There’s a violation of the right of privacy involved. There’s people now who, because of the internet, who are making child pornography so they can share it across the internet. There are good reasons for it to be illegal and punished.”

It’s important to note one thing: no one involved, including myself, is stating that downloading child pornography should not be punished. It should be, without a doubt. Plus, even Grisham admits he spoke poorly.

However, the larger context of Grisham’s overall point is one about inflexibility. In Hollemann’s case, he was looking at a site of women advertised as 16. It is illegal – in both the United States and Canada1, where the sting was conducted – to look at pornography involving anyone under 18. But the age of consent in many states is 16; that means that some states have determined that 16 year olds are mature enough to decide when they want to have sex. We currently sentence looking at a 17 year old – such as former porn star Traci Lords, as noted by Balko – as harshly as looking at children half that age, despite the fact that that 17 year old can enlist and fight in a war if they want.

Of course, Holleman was guilty of looking at a site that clearly advertised 16 year olds. There are no provisions in the law as it stands for looking at something that’s not advertised as such. There’s also no allowance for minors looking at minors (e.g.: sexting). This has allowed a few attorneys general to make grandstanding pledges to arrest and charge all of the kids involved in cases where sexting has gone wrong – such as images being leaked, be it maliciously or via hacks like the recent Snapchat hack – with either possession of or manufacturing child pornography.

In both cases, the issue isn’t just the threat of jail time, it’s being permanently branded with a scarlet letter via the databases created by Megan’s Law. The intent behind the law is noble, but the consequences have been people being branded as heinous sex criminals – forever limiting their ability to get and hold a job, travel, or even live peacefully – for accidentally downloading child pornography, or for sleeping with the wrong teenager in the wrong state who has the wrong father. The ends do not always justify the means.

On a troubling note at a societal level is the call for John Grisham to be raided by the FBI. The fact that such a call flaunts the very purpose of the First Amendment – that government cannot punish people for their opinions or statements – is flagrantly obvious, but many people would be willing to trample the Constitution If It Protects Just One Child™. It’s easy to laugh at Rosie O’Donnell because she’s Rosie O’Donnell, but any time someone gets busted for anything relating to child pornography, there’s an arms race of sorts to see who can think of the best way to punish the perp. Lifetime jail term! Chemical castration! Execution! Mob mentalities accomplish nothing.

This is a bipartisan issue as well. The left is generally concerned with protecting victims, while the right is generally concerned with removing society’s unfit, but they both agree that children must be protected. This is noble. But the calls to raid John Grisham show why it’s very hard to get moderation on this issue: any calls for such are perceived as the person in question proclaiming that child pornography is a wonderful thing, and to Hell with the kids. Nothing could be further from the truth, but it makes even agreeable goals such as fixing Megan’s Law or adding provisions for things such as sexting leaks virtually impossible to reach.

John Grisham wasn’t railing in favour of child porn, he was really coming out against mandatory minimum sentencing, which is consistent with his statements on this subject for years. We can’t shred the Constitution because it’s popular. In the meantime, I urge people who have the welfare of exploited children in mind to consider supporting or donating to the Rape, Abuse and Incest Network or to the Polaris Project.

1 – Canada’s federal age of consent laws – key here, draw a line between regular sexual activity – where the age of consent was raised from 14 to 16 in 2008 – and that which “exploits” the person in question, with listed examples being that of pornography, prostitution, or anyone in a position of trust, e.g. teachers, caretakers, coaches, etc. Source: Canadian Department of Justice.

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.

#GamerGate: The Microcosm of the Culture Wars

As a games writer by trade, it’s been funny watching mainstream news sites pick up the story known simply as “GamerGate”. Everyone from Reason to The New York Times has picked up on the story, with some doing a better job of reporting a two month old story than others. Naturally, the articles have a slant of their own for the most part that goes along that site’s political lines, and the signal-to-noise ratio at this point has gotten so poor that it’s hard to even remember what caused all of this in the first place.

When looking at GamerGate, it’s important to remember a couple of points:

1) Ultimately, it’s really not about video games, it’s about culture. GamerGate is a microcosm of the culture wars.
2) Everyone is missing key free-market solutions to all of the issues brought up.

I will preface, in the interests of full disclosure, a few things about myself in this that people will want to bear in mind as they read everything below the cut. First, I have been, on my video game Twitter feed (@gamingbus), 100% anti GamerGate. Also, as previously mentioned, I spent a while writing about video games, centred around the industry itself, for a living, a perspective I believe few other political sites have, so a lot of the smoke regarding issues with women – particularly opinionated ones on both sides of this issue – has a fire that I’ve personally witnessed. With that in mind, I will do my utmost to keep this one down the middle. » Read more

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.
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