Category Archives: Civil Liberties

No-one Should Be Forced to Join a Union Against Their Will…

seiu-protest-reuters-e1415042946858

From Reuters:

Wisconsin Senate approves right-to-work bill, sends to state Assembly

BY BRENDAN O’BRIEN

(Reuters) -

The Wisconsin Senate narrowly approved a “right-to-work” bill on Wednesday that would bar private-sector employees who work under union-negotiated contracts from being required to join their unions or pay them dues.

 

 

The bill, which would make Wisconsin the 25th U.S. state with a right-to-work law on the books, cleared the Republican-led Senate on a 17-15 vote following hours of debate marked by periodic angry shouts from opponents in the Senate gallery.

 

 

Supporters of organized labor chanted “Shame!” as the legislation was passed and sent for further consideration to the state Assembly, where Republicans also hold a majority.

 

 

One Republican senator, Jerry Petrowski, broke with his party and joined all 14 Democrats in the chamber in voting against the measure.

 

 

Wisconsin Governor Scott Walker, a possible Republican presidential hopeful, is expected to sign the bill if it reaches his desk.

Walker drew accolades from conservatives across the nation in 2011 when he ushered through legislation curtailing the powers of most public-sector unions in Wisconsin amid large protests at the state capitol in Madison.

 

 

Supporters of the right-to-work measure contend it could attract more businesses to the Midwestern state.

“I think this is something that is going to have a direct impact on the manufacturing sector in Wisconsin,” Senate Republican leader Scott Fitzgerald said after the vote.

 

 

Opponents cast the bill as an assault on organized labor and blue-collar workers that would limit union revenues.

“They are evaporating the middle class, and no one in this room seems to care,” Senator Dave Hansen, a Democrat, said during the floor debate.

So ignore the rather clearly biased language in the piece and video linked above, if you bother clicking through and reading it… If you’ve seen one piece about the subject, you’ve pretty much seen them all, and this one is no different.

Wisconsin is debating “Right to Work” legislation in house committee right now, after passing in the senate. A right to work measure (which may or may not be substantially identical to the one passed by the senate) is likely to pass the house as well, and governor (and likely Republican presidential candidate) Scott Walker is likely to sign it.

As per usual, leftists are up in arms about anything that might favor individuals over organized labor…”Anti-worker, anti-poor, anti-little guy, anti-union, destroying the middle class, 1% evil” etc… etc…

Bull

Can someone tell me how making it illegal to force someone who doesn’t want to join a union, to join a union… is anti-union?

That’s all “right to work” means… You can’t be forced to join a union if you don’t want to, and employers can’t be forced by the government to recognize or deal with a particular union if they don’t want to.

The “right to work”, is simply the right to freely associate and form contracts as we choose, which is supposed to be a right guaranteed us in this country (of course, so often it is not… but that’s another issue entirely).

Wait… What? Unions can force people to join who don’t want to?

Yes, they can, and they do.

Most people don’t know this, but in 26 states, unions are given special powers and privileges by the government, which you as in individual, or a private company or other organization would not have.

One of these, is that you can be forced to join a union against your will, if you want to get a job in a particular industry, or at a particular employer, or to keep your job at an employer after a union comes in.

Worse, in some states, you can opt out of the union, but even if you do, the union can still take dues straight out of your paycheck against your will, as if you were a member. They can also negotiate for you against your will, and set the terms and conditions under which you work, against your will.

Of course, since you aren’t a member, even though they’re taking your money and controlling your job, you don’t get to vote in the union, control its decisions in any way, or get any of the benefits of membership. The union gets your money, and all the benefit as if you were a member, without actually having to be accountable to you at all. And there’s nothing you can do or say about it.

Oh and the union can then do things like use that money to get politicians you oppose elected, get legislation you oppose passed, and change the terms and conditions of your employment against your will, without your approval or consent.

In those same 26 states (as well as federally in some cases), employers can be forced to recognize and negotiate with a union, even if they don’t want to. In fact, even if the union doesn’t actually represent their employees in some cases, or only 50.01% of their employees decide that a particular union will represent them.

“Right to Work”, is about ending some of those, frankly insane, conditions that unions operate under.

… Or at least that’s what it’s supposed to be about… It doesn’t always end up that way, because politics is what it is, so you have to be careful and pay attention to the details…

In “right to work” states, unions are still free to form, recruit members, and to collectively bargain in those members interests with employers. Workers are still free to join unions. Employers are still free to negotiate terms and contracts with the union, and if the employers don’t want to negotiate, unions are still free to use the power of their membership to make the employer negotiate through strikes, work stoppages and slow downs, and other organized labor actions.

The only difference, is that the union just can’t FORCE anyone to join the union, or force employers to negotiate with the union, or get the government to do it for them.

Why is this a bad thing?

It isn’t. Straight up, it isn’t.

It’s not bad for employees, it’s not bad for employers, it’s not actually bad for the unions if the unions are doing what they’re supposed to be doing, It’s not bad for consumers who consume the goods and services these employers provide.

In fact, in reducing union overreach to whatever extent it may (probably not too much, but one can hope), and in reducing the overall cost of doing business in the state of Wisconsin, it’s likely to benefit consumers with lower prices, and potentially with more business and more jobs in the state

This doesn’t always work out… It has generally done so in relatively business friendly states like Tennessee, North and South Carolina, Georgia, Alabama (I said relatively… relative to Illinois, New York, Wisconsin etc..). In those states, which are right to work, non union manufacturing has generally done well, in some cases even boomed. Not only that, but wages have substantially increased in those areas, not crashed as predicted by unions.

Right to work has not had as positive an impact in say, Indiana, or Michigan (yes, Michigan has been right to work since 2012… and yes, organized labor is still having a collective fit over that fact), which are comparatively less business friendly, higher tax, higher regulatory burden, and higher cost of living. In fact, mostly, companies have used the change in status to help them get rid of legacy contracts which were burdening their bottom lines, and then move to other states.

That however isn’t really the fault of right to work… it’s the decades of anti-business regulation and being forced to accept bad union contracts (and to be fair, decades of bad management as well).

Overall, right to work in and of itself is not a negative for anyone… well… except two groups.

The only parties it’s bad for, are union officials, and the politicians they’re in bed with). The officials depend on the politicians to pass legislation that favors the union officials, in exchange the politicians depend on the officials for large donations, and the use of their organization for street level politics (campaign volunteers, donor lists, call lists, phone rooms, rally fillers, doorbell ringers etc…). Without the forced membership and dues, the union officials don’t have as much money to donate to those politicians in exchange for favors, nor as many warm bodies to throw at their campaigns.

Also, if people can leave the union at will, it means that those officials have to watch their steps, and actually be accountable to union members…. Unfortunately something which has proven to rarely be the case today.

Leaving aside the corruption angle, and even the economics of it…

Does “right to work” reduce unions power? Potentially yes, if people don’t want to join, or want to quit the union.

However, I don’t see that as a bad thing. Why would that be a bad thing?

If people don’t want to be members of the union, why should the union get more power? Or any power at all?

Shouldn’t a union get it’s power from the strength of it’s membership, who support it, and in turn are supported by it? Shouldn’t a union attract and retain members because they are effective at doing so?

If they can’t do that… why should the union exist at all?

If they CAN do that, then why do they need the government to force people to join, and force companies to negotiate with them exclusively?

If the unions actually do what they’re supposed to do, and what they say they do… Why is this even an issue?

Right… thought so… 

Here’s the thing though… Even if it were a provable economic net negative, that actually did harm jobs and wages, and even if all of the horrible terrible no good very bad things unions and democrats claim of right to work were true…

…I would still be in favor of right to work.

Why?

It’s a question of individual rights

I generally favor right to work, because I’m in favor of fundamental individual rights, including, but definitely not limited to: freedom of conscience, freedom of association, freedom of self determination, the right to private property, the right to the fruits of ones labors, and the freedom to make contract as one sees fit.

I generally support right to work legislation, presuming that’s what it really is (as with all legislation, what it claims to be, is often nothing to do with what it is, so pay attention to the details), because no-one should be forced to join any organization against their will (even if it’s absolutely for their own good), and no organization should have the right to control others in the way unions do, without those persons consent (even if doing so is to those persons benefit). It really is that simple.

For that matter, in general, I oppose involuntary collectivism, and preventing involuntary collectivism is what “right to work” is supposed to be about.

I’m all for voluntary collectivism… absolutely 100%. If you agree and consent to be a part of a group, and to take action as part of that group, or be represented by that group, great. More power to you, and to them.

In fact, I’m all for unions. I think collective bargaining is a wonderful and powerful tool, and I wish more people across more industries and market segments would take advantage of it.

An aside… I’m not just blowing theoretical smoke here. I’ve got a personal stake in this, both as a matter of principal, and as a practical matter in my own profession.

The level of worker exploitation, and in general negative, harmful, and just plain stupid labor practices in information technology, my chosen profession, is absolutely despicable.

Employers routinely extract far more labor from employees than they are paying for, or than that is reasonable for employees quality of life or professional development; while at the same time deliberately suppressing those employees wages, and denying them opportunities for improvement or advancement.

… and we allow them to do this. We accept it, because we don’t believe we have the power to change it, or we feel too insecure to do so.

The only way these conditions are going to change, is if they obviously  and clearly no longer work to increase profits or improve stock prices.

Actually, it’s been repeatedly and conclusively proven they not only don’t help, but they substantially harm organizations, including their bottom lines… but execs still love them because the stock market loves them (That’s another issue entirely)

That being the case, the only way needed change is going to happen, is if enough of us in the profession stop accepting these conditions, and do something about them.

A company can’t be pumping its stock prices, if it doesn’t have anyone keeping it’s computers and networks operational…. or at least not for more than a few weeks. 

 

 

Stop working for companies that use these practices. Insist on being paid for our time. or in receiving compensatory time off. Report companies for labor law violations, and make sure the laws are properly and evenly applied, through the use of the media and political pressure (I think most labor laws are horrible and stupid and shouldn’t exist, but so long as they do, the greater tyranny is that they are applied capriciously and unevenly based on political whim, and lobbying).

Most importantly, as managers, leaders, and thought leaders in the industry, don’t allow and accept these practices in your own organization. When they pop up… and they will.. gather together, and pound them into the dust before they can take over.

One of the more effective ways we could do all of that, is with collective bargaining, and collective and consistent messaging to the media, and politicians (though sadly, I don’t think it’s likely to happen any time soon). Not necessarily a union, but some type of voluntary collective organization to increase our negotiation power and leverage, and help to prevent things like companies requiring hundreds of hours of uncompensated overtime.

If enough of  us act… whether collectively or as individuals, we can force changes. Without enough of us acting in concert, we can’t… And if we can’t, we’re left depending on the government to “fix” things… and you know how I feel about that. 

It’s when you take that choice away by force, that I have issues. Forced unionization is never OK… and that includes “democratic” forced unionization.

Just because you got a few dozen of your friends together and you all voted to give you the “right” to control everyone else, doesn’t actually give you the right to control everyone else. Even if there’s 50 million of you, and 1 of everyone else. Otherwise, there are no individual rights, only privileges and entitlements dispensed by the will of the majority. That’s no less tyranny than a dictatorship of one man… and in some ways is a greater one.

“Oh, but democracy is great. It’s the will of the majority, so you just have to go along”

Right… because giving more control over your life to everyone else is always a great idea, especially when jobs and money are at stake.

Giving your coworkers a vote on how much you can make, how much you can get paid per hour and how much of a raise you can get when, how many hours you can work, what tasks you can do, how you can do them, whether or not you can be promoted and when…

…Actually, often a veto, not just a vote…

And people like this idea why?

No thanks. Not up for that.

I have no problem with unions, in fact I think they’re great in theory, and I’d like to see a lot more of them, a lot more active, doing what they are supposed to be doing…

So long As:

1. Participation (including fees or dues) is voluntary
2. They are not given special privileges or powers over individuals or employers by the government
3. Individuals and employers are free to negotiate and form contracts outside the union
4. The union cannot set the wages, benefits, conditions and terms of employment, and working conditions; for individuals or employers, without their consent.

If they’ve got consent for collective representation of all the workers, and the employer agrees to the conditions and terms… GREAT. That’s what collective bargaining is for.

Otherwise, what gives you or anyone else, the right to determine those things for me, my employer, or anyone else?

Just because you and your friends voted on it?

I don’t think so, no.

 

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Chicago Police Using Domestic “Black Site,” The Guardian Reports

Homan Square in Chicago. Image retrieved from New York Daily News website.

Chicago’s police department is running an “off-the-books interrogation compound” that attorneys liken it to the domestic equivalent of a CIA black site, according to a chilling report from the Guardian’s Spencer Ackerman.

Suspects, like the trio of potheads who wanted to attack Obama’s re-election campaign headquarters with a slingshot and marbles in protest of the NATO summit, are taken to “Homan Square.” But no one is ever booked inside it walls. No public, searchable record of their time there is generated. Neither their families nor their attorneys are informed of their whereabouts. Lawyers attempting to gain access are turned away, even if their clients are in custody inside.

At Homan Square they don’t process paperwork about your arrest. You’re just gone. No one knows.

At some point they have to do the paperwork and prosecute you. After they get your confession, you wind up back in the paperwork.

Suspects allege being beaten, kept in chain link cages, and shackled for extended periods while held inside Homan for as long 24 hours, without access to a lawyer, before being transferred precincts for booking or simply released.

“They just disappear,” said Anthony Hill, a criminal defense attorney, “until they show up at a district for charging or are just released back out on the street.”

Brian Jacob Church, one of the NATO Three, was picked up for suspected terrorist plotting in connection with protests against the NATO summit. He was taken to Homan Square, handcuffed to a bench for 17 hours, and interrogated without being read his Miranda rights. Anticipating he might be arrested in connection with the protests, Church had scrawled an attorney’s phone number on his arm, and explicitly demanded an opportunity to call that lawyer. That request was denied.

“I had essentially figured, ‘All right, well, they disappeared us and so we’re probably never going to see the light of day again,’” Church said.

Since the raid that resulted in Church’s arrest was well publicized, a team of attorneys was simultaneously searching for him to offer their services. Through 12 hours of active searching, he and his co-defendants could not be located. No booking record existed. Attorneys ultimately complained to Mayor Rahm Emanuel. Only then did they learn about Homan Square, and only hours later were Church and his co-defendants taken for booking at a police precinct.

Richard Brzeczek, Chicago’s police superintendent from 1980 to 1983, who also said he had no first-hand knowledge of abuses at Homan Square, said it was “never justified” to deny access to attorneys.

“Homan Square should be on the same list as every other facility where you can call central booking and say: ‘Can you tell me if this person is in custody and where,’” Brzeczek said.

“If you’re going to be doing this, then you have to include Homan Square on the list of facilities that prisoners are taken into and a record made. It can’t be an exempt facility.”

The NATO Three were ultimately found guilty of lesser charges (possessing an incendiary device and “mob action”), but acquitted of terrorism related offenses.

[D]efense attorneys, bolstered by undercover police recordings that prosecutors played in court, argued that the three were “goofs” who talked big and were goaded on by two undercover police officers.

[T]hey were frequently drunk, high and unable to complete simple tasks, once missing out on a protest because Church had to wait for his pot dealer.

One of the undercover officers told an apologetic Church that he needed to make a to-do list in the morning before smoking pot.

Church also said he wanted to attack four police stations but didn’t want to Google the locations of two of them. Chase advocated attacking Obama’s re-election campaign headquarters with a slingshot and marbles.

Church declined when Nadia Chikko, one of the undercover officers, asked Church if he wanted to try out one of the Molotovs they’d built with four empty beer bottles, some gasoline and a cut-up bandana from Mehmet Uygun, the other undercover officer.

“I’m too (expletive) cold to be going anywhere. I want to wrap up in my blanket and sleep,” he said.

A lawyer named Eliza Solowiej told The Guardian that she had represented a man who had already been entered into Chicago’s central booking station, and she had personally observed him in a police station without any injuries. Thereafter, someone changed his name in the system and had him moved to Homan Square without any record of the transfer. After his time in Homan Square, he was then taken to a hospital to be treated for head injuries he had incurred sometime in the interim.

Another lawyer reported taking a call from a worried mother. She believed her 15-year-old son had been arrested, but she was having trouble finding where he was being held. After “12, maybe 13” hours, the 15-year-old was released without charges.

A 44-year-old detainee named John Hubbard died in an interview room at Homan, allegedly of heroin overdose. But The Intercept’s Juan Thompson says there are no official records or even a coroner’s report confirming that cause of death. Nor are there records that explain why he was detained in the first place.

Chicago police at first did not respond to The Guardian’s questions about the facility. Once the story was initially published, the department issued a statement insisting there was nothing untoward taking place at Homan, that records are generated for arrests, and that if “lawyers have a client detained at Homan Squire, just like any other facility, they are allowed to speak to and visit them.”

As noted by The Guardian, the statement does not address how long into an arrest or detention those records are generated, or whether they are made available to the public, such as family members looking for relatives who have been picked up and attorneys searching for their clients. The department did not respond to The Guardian’s request for clarification on that issue.

[A] retired Washington DC homicide detective, James Trainum, could not think of another circumstance nationwide where police held people incommunicado for extended periods.

“I’ve never known any kind of organized, secret place where they go and just hold somebody before booking for hours and hours and hours. That scares the hell out of me that that even exists or might exist,” said Trainum, who now studies national policing issues, to include interrogations, for the Innocence Project and the Constitution Project.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Sympathy for Paranoia

cat in the tin foil hat

The moon landing was faked by the U.S. government for propaganda purposes to win the Cold War. The terrorist attacks of 9/11 was actually an inside job as a pretext to go to war. Space aliens landed in Roswell, NM but the government has been covering it up. The Sandy Hook massacre was faked to increase support for new gun control laws; the “victims” were actually actors who are all alive and well today. The Illuminati is the secret entity which actually governs the whole world…

The natural response to these statements is to say “these people are mad barking moonbats” and to keep ourselves as distant as possible from the people making them. Those of us in the liberty movement who want to be taken seriously are very quick to renounce anyone who is within six degrees of Alex Jones or anyone else who states any of the above. It’s difficult enough to be taken seriously about legalizing drugs, the non-aggression principle, free markets, and freedom of association; the last thing we need is to be lumped in with “those people.”

While it is very important to defend the “brand” of the liberty movement, it’s also important to recognize the reasons why people believe some rather nutty things.

[W]hen I say virtually everyone is capable of paranoid thinking, I really do mean virtually everyone, including you, me, and the founding fathers. As the sixties scare about the radical Right demonstrates, it is even possible to be paranoid about paranoids. – Jesse Walker, The United States of Paranoia: A Conspiracy Theory, (p. 24) (Read my book review here)

Once one learns about some of the activities governments been proven to have been involved in, some conspiracy theories no longer seem as outlandish. I used to refer to conspiracy theories and wacky beliefs as “black helicopter” stories and I’m fairly certain that others used the same terminology. Once I learned that black unmarked helicopters were used in the assault by the FBI on the Branch Davidians in Waco, TX,(Napolitano, p.110) I stopped calling such ideas “black helicopter.”

Not everything that sounds crazy is.
» Read more

Rand Paul Caters To The Insane Anti-Vaxxer Crowd

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On Monday, Senator Rand Paul (R-KY), a prospect for the 2016 Presidential Election, put forth his opinion on vaccinating children. It wasn’t Dr. Paul’s finest moment.

In light of the recent measles outbreak in California, Dr. Paul was asked about the disease, and the ant-vaccination movement, on Laura Ingraham’s radio show. He stated that while he felt vaccinations were a “good idea”, he felt that parents should have the option to decline them:

“I’m not arguing vaccines are a bad idea. I think they’re a good thing, but I think the parents should have some input,” he added. “The state doesn’t own your children. Parents own the children and it is an issue of freedom.”

Dr. Paul noted to Ms. Ingraham in his interview that he believed vaccinations should be optional. In the same show, Ms. Ingraham stated that she didn’t believe measles was “that big of a deal“.

Later in the day, in a CNBC interview, Dr. Paul used anecdotal evidence to state that parents were justified in their skepticism:

“I’ve heard of many tragic cases of walking, talking normal children who wound up with profound mental disorders after vaccines,” Paul, R-Ky., said in an interview with CNBC anchor Kelly Evans.

This coincides with fellow GOP hopeful Chris Christie, who explained that while he vaccinates his children and believes they are a good thing, believes parents deserve more input:

He said that he and his wife had vaccinated their children, describing that decision as “the best expression I can give you of my opinion.” He said they believe doing so is an “important part of making sure we protect their health and the public health.”

“But,” Christie added, “I also understand that parents need to have some measure of choice in things as well. So that’s the balance that the government has to decide.”

Mr. Christie made greater input into vaccinations for parents part of his campaign for Governor of New Jersey in 2009.

Some of these public statements of support for anti-vaccination proponents can be explained as a matter of timing: earlier in the morning, an interview the Today Show did with President Obama made clear his thoughts on the matter: there are no reasons not to vaccinate:

“I understand that there are families that in some cases are concerned about the effect of vaccinations. The science is, you know, pretty indisputable. We’ve looked at this again and again. There is every reason to get vaccinated, but there aren’t reasons to not,” the president explained.

Anti-vaccination proponents – often called “anti-vaxxers” – believe that vaccinations for many diseases once viewed as eradicated can cause mental defects, with autism being the most commonly referenced, due to the amount of mercury in the vaccinations. More fringe elements of the anti-vaxxer movement believe that the government intentionally puts mercury in vaccinations as a passive form of population control.

However, most anti-vaxxers, if I’m putting this bluntly, are not very smart. They read a few articles on Infowars, see Jenny McCarthy speak for twelve seconds, put on their finest tin-foil hats, and let loose their ridiculous, half baked ideas, just before their diatribe about chemtrails. These people are clearly cuckoo for Cocoa Puffs. But what’s truly harmful is to have people like Senator Paul – a DOCTOR, for heaven’s sake! – and Governor Christie (a successful lawyer) giving oxygen to these people by enabling their nonsense.

The argument being made is that parents should have the liberty to do whatever they want with their children. However, that argument ends at my child’s body. This isn’t something like school choice, or even a voucher program that would use tax dollars in religious schools against the wishes of secular parents. Not vaccinating a child against measles puts that child’s life in danger before they even know what measles are. They also put other children at risk, particularly other children who either are not vaccinated or can’t be vaccinated due to other health concerns.

It’s one thing to argue that a parent – or even a mature minor has the right to put a child at risk if they believe the treatment is worse than the disease; I’m sympathetic to that argument to an extent. But a measles epidemic has been cut loose for the first time since “Leave It To Beaver” was being taped, and it’s affected a lot of people. Parents affected who willingly did not vaccinate their children should be held liable for the damage they have personally caused.

It’s easy to call the anti-vaxxer issue a bipartisan one – thank the “Whole Foods crowd” for that – but this is a problem that is disproportionate among hardcore, anti-government right wingers, who have been raised into a froth into believing that anything involving the government, or Barack Obama, is a bad thing. Such constant pandering – particularly by grifters like Sarah Palin and others – replaces education with nonsense because to them, these “facts” are education. Due to this, they distrust anything that goes against their worldview. “The CDC!? Liberal media fascists!” If President Obama said the sky was blue in a speech, that would be the tinder that starts a purple sky movement.

We expect “I’ve heard it causes brain damage!” to come from the wingnuts. But coming from Doctor Paul, a very intelligent man, calls into question his sincerity, his respect for the American primary voter – part of me thinks “he can’t believe that shit, can he?” – and his qualification to hold the highest office in the country.1

1 – I’m not holding Governor Christie to so strong a flame because I feel his statements, and clarifications, exhibit more nuance than those of Dr. Paul, who is no stranger to some real whoppers in his time.

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.

Brandon Duncan May Do 25 to Life for Singing About a Gang

tiny+doo

In 2013, San Diego experienced a rash of shootings.

Brandon Duncan is a San Diego musician. He has no criminal record. He is not alleged to have pulled the trigger, to have been present, to know who was present, or even to have known contemporaneously that the shootings had occurred. He is not alleged to have masterminded the murders, paid anyone to commit them, or otherwise aided in their commission.

Nevertheless, Duncan may wind up doing 25 years to life for the shootings.

The reason?

Sales of an album Duncan made in 2012 may have benefitted from a surge in gang stature and respect in the wake of the shootings.

Duncan apparently creates music about gang activities. As Kevin Boyd reports at IJ Review, the lyrics include one line about holding a gun with no safety and another about a full clip making someone’s top disappear. The tracks can be heard here.

In any case, creating music about violence and criminal activity is not illegal. That is Constitutional Law 101. The First Amendment protects freedom of expression, including violent content in music, literature, art, media, video games, etc.

Mario Puzo could not do 25-to-life if an upsurge in Mafia violence caused a renewed interest in his Godfather novels. He could not do 25-to-life even if prosecutors alleged that his books glamorized organized crime, thereby contributing to an increase in such activity.

That California does not attempt to prosecute authors like Puzo invites speculation that the state is discriminating against certain content and certain genres of art and its creators. Italian-American authors writing fiction novels about Mafia violence are acceptable. African-American musicians creating rap music about street gang violence are not.

Whether or not such speculation is justified, prosecutors claim that Duncan is not merely a musician creating unsavory content. They allege that Duncan is actually a member of a gang based in Lincoln Park, California.

Of course, it is also not illegal to belong to a gang.

That too is Constitutional Law 101. The freedoms of assembly and expression necessarily entail the right to free association. The State of California can neither prohibit Duncan from associating with the people of his choosing, nor punish him for doing so.

But there is yet another dot to connect. Duncan is being charged under a California penal statute purporting to make it a crime to “benefit from” the illegal activities of a “criminal street gang” in which one “actively participates:”

…[A]ny person who actively participates in any criminal street gang…, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity…, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.

According to NBC San Diego, prosecutors explain their theory of this offense as follows:

“If you are a documented gang member, and you benefit from or promote the activities of the gang, you can be held responsible for crimes the gang commits,” the district attorney said.

To be found guilty, prosecutors must prove the suspects are active gang members, that they had “general” knowledge of the gang’s activity and that they profited, assisted or benefited from the activities. The suspects do not have to be directly involved with the crime to be found guilty.

Those benefits could be economic, like album sales, or intangible, like respect, the district attorney argues.

Prosecutors are apparently presenting the aforementioned music lyrics, plus social media pictures, to demonstrate Duncan’s membership in the Lincoln Park gang. They further argue that the sales of his 2012 album benefitted from the 2013 shootings.

Duncan’s defense attorney, Brian Watkins argues that the songs are just artistic expression, and that while Duncan has associated with some members of the gang because he grew up in the same area, he is not himself a member. In an interview with NBC San Diego, Watkins had this to say:

“I mean, to imprison someone for 25 years to life because of artistic expression is something not even the worst communist regimes have done…”

The DA’s office counters that the law was passed by the voters and found constitutional by California’s Supreme Court. That decision was People v. Johnson (2013), wherein the Court analyzed ways in which Section 182.5 diverges from the traditional crime of conspiracy:

[T]raditional conspiracy requires both the specific intent to agree, and specific intent to commit a target crime. … A 182.5 conspiracy does not require any prior agreement among the conspirators to promote, further, or assist in the commission of a particular target crime.

The Court seemingly reassures itself that the intent requirement is replaced with a requirement of “active and knowing gang participa[tion] … with the … intent to promote, further, or assist in the commission of a felony by other gang members.” However, just two paragraphs later, the Court concedes that:

[S]ection 182.5 brings within its ambit not only a gang member who promotes, furthers, or assists in the commission of a felony. It also embraces an active and knowing participant who merely benefits from the crime’s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense.

So Section 182.5 dispenses with the traditional intent requirement, replaces it with a requirement that the defendant have been an active and knowing participant in the gang (but not the crime), and then punishes the defendant for receiving any benefit, however intangible, from a crime committed by other members of the gang.

That sure sounds like doing 25 years to life for one’s unsavory associations.

Long-standing criminal statutes already address racketeering, commission of or participation in, conspiracy to commit, or aiding and abetting a crime. What is the need for this particular statute other than to prosecute someone who cannot be demonstrated to have violated those traditional criminal statutes?

Ken White at Popehat reached out to the San Diego District Attorney’s office and reports that:

* The DA’s theory is that Duncan promoted the gang by writing rap music about gang activity, and that he received an “intangible benefit” — their words — by his music becoming more credible or popular. The DA did not present any evidence that the gang’s crimes had any impact on album sales.

* The DA tried to show that Duncan was a member of the gang by some photos of him with gang members throwing gang signs. But they asserted that his rap music also showed that he participated in the gang, one of the elements of the offense.

* The DA’s theory is that when a gang commits a crime all members of the gang automatically benefit for purposes of Section 182.5. That theory, if accepted, would effectively eliminate one of the elements of the crime so that the DA would no longer need to prove that any individual gang member “willfully promotes, furthers, assists, or benefits from” the criminal activity.

In short, based at least on reports of their stance at the prelim, the DA seems to be saying that Duncan violated the statute by being a member of the gang and by rapping about the gang.

In the meantime, Duncan said on an interview with CNN that the studio is his “canvas” and that he would love to continue to make music, but:

“[T]hese people have you scared to do anything around here.”

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.
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