Category Archives: Individual Rights

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

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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.

Let Us Rediscover the Art of the Peaceful Protest and Civil Disobedience this MLK Day

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In the year 2015 there are many good reasons to protest: police brutality, injustice, the war on (some) drugs, the war on (some) terror, etc. One thing from Martian Luther King Jr.’s legacy that seems to be lost and something we should rediscover is the art of the peaceful protest and civil disobedience.

King understood that for positive change to occur, he had to truly win the hearts and minds of his fellow Americans. Being a positive example by showing the world that he and his followers would take a stand against injustice without resorting to violence was even more important than the words he spoke to that end. Certainly, not everyone believed in using the non-violent approach. Malcolm X and the Black Panthers believed that violence was necessary to achieve their shared goals.*

Who was right?

Personally, I find the pictures and the videos from the non-violent protests and the acts of civil disobedience to be far more compelling. There’s just something about seeing people refusing to act in a violent fashion against the state which inherently IS violence. This has a way of changing hearts and minds.

Contrast this with today’s protests in Ferguson, New York, and elsewhere concerning the police. For the most part, the protesters are peaceful and are using tactics which King would likely be proud. Unfortunately, however; it’s the nasty protesters that are violent, incite riots, or cheer at the news of cops being ambushed which receives far too much of the publicity. Even holding up signs like “The only good cop is a dead cop” or “fuck the police,” though certainly permissible as recognized by the First Amendment, turns people off who might otherwise be sympathetic to one’s cause.

Sadly, it’s not just a few misfit protesters who think that aggression is sometimes warranted to get one’s way. No less than the pope himself last week in the wake of the Charlie Hebdo terror attacks said: “(If someone) says a curse word against my mother, he can expect a punch. It’s normal. You cannot provoke. You cannot insult the faith of others. You cannot make fun of the faith of others.”

The leader of the same Catholic Church which normally advocates finding non-violent solutions to conflict (such as the Just War Doctrine) says that because someone says something offensive about one’s parents or faith it is permissible to use violence against that person! People’s feeling are more important than the concept of free expression.

I’m not interested in living in a world where I cannot insult the pope or his religion nor do I want to live in a world where the pope cannot insult me or my atheism. The world I am interested in living in is one where we can have passionate, even hurtful disagreements without fearing physical harm to my family, my friends, or myself.

Let us all rediscover the art of peaceful protest and civil disobedience on this Martian Luther King Jr. Day.

NY Jets RB Learns the Hard Way What Happens When You “Just Cooperate” With the Police

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With the plethora of news stories about police misconduct, excessive force, non-indictments, and the understandable corresponding outrage to such perceived injustices in the waning days of 2014, certain law and order types thought it proper to offer some advice to stop the bloodshed. Quite simple advice really: obey the laws and/or cooperate with the police.

But maybe instead of “simple” I should say “simplistic.” It seems most of those who offer such advice are middle aged white guys who don’t fit the profile the police look for when they decide to stop someone who “looks suspicious.” Take this jackass by the name of Kelly Ogle for example:

It use to be simple… when you come in contact with a police officer, you do what they say.

Unfortunately, an unrealistic distrust of police officers is being fostered by some protesters, even some public officials, which is disgraceful.

Just “do what they say” and everything will be just fine huh?

Don’t tell that to NY Jets RB Chris Johnson. Johnson was recently pulled over in Orlando, Florida for rolling through a stop sign. According to a source close to Johnson, the police asked permission to search his vehicle. Because Johnson didn’t feel like he “had anything to hide” or wanted to “be cooperative,” he foolishly waived his Fourth Amendment rights and allowed the police to search his vehicle.

What did “cooperating” with the police get him? A second degree misdemeanor charge for having his lawfully owned firearm improperly stored in the vehicle according to Florida law. There’s a good chance that Johnson didn’t know he was breaking the law. As we have heard ad nauseum, ignorance of the law is not a legal defense for breaking the law (unless of course, you happen to be a cop).

Just over a month ago, I offered what I believe to be more constructive advice than that the aforementioned badge worshiper. There is a way to be respectful of the police while firmly and intelligently asserting your rights. It seems that had Johnson followed advice similar to mine than that similar to Kelly Ogle’s, he would likely not have been arrested.

Beyond knowing your rights and knowing how to deal with the police, how is one to know if s/he is committing a crime at any given time? In a country in which the average person commits as many as three felonies every single day (to say nothing of any number of misdemeanors a day), there’s no good answer…at least not yet. There soon may be an “ap for that,” however; if this Kickstarter project called “Atlas” generates enough donations by January 31st (they have a long way to go).

Here’s their promotional video explaining the project:

Even if this project doesn’t quite get off the ground, its good to see that there are people out there thinking about how to mitigate the reality of the numerous criminal laws on the books. But until that day comes, understand that when you are stopped by the police, they stopped you because they have some suspicion that you are breaking a law that you may or may not be aware of. Don’t help them by waiving your rights (“just cooperating”) as Chris Johnson did. You can’t assert your rights if you don’t know what they are. Now that you have found these links (here, here, and here), there is no excuse for ignorance of these rights.

Connecticut Supreme Court: Tying a 17 Year Old To a Bed And Injecting “Poison” Into Her Body Against Her Will Is A-OK

Image credit: Hartford Courant

Image credit: Hartford Courant

In a stunning, tyrannical ruling, the Supreme Court of Connecticut has ruled that the Department of Children and Families has acted correctly in ruling that a 17 year old girl from Windsor Locks, identified in court documents as “Cassandra C”, was right in taking her from her home and forcing her to undergo chemotherapy for Hodgkin’s Lymphoma:

A 17-year-old Connecticut girl with a highly curable cancer is not mentally competent to make her own medical decisions and will continue to receive the chemotherapy treatments she’s battled to halt, the Connecticut Supreme Court ordered Thursday.

Chief Justice Chase T. Rogers ruled that the teen — listed only as Cassandra C. in legal records — is not mature by any standard.

That means Cassandra will remain at a Hartford hospital, in the temporary custody of child-welfare workers, and will receive her full course of chemotherapy to treat Hodgkin lymphoma. Doctors have said her odds at recovery are 80 to 85 percent with chemo, but that she will die without it.

(…)

In an interview Wednesday with NBC News, (Mother Jackie) Fortin denied pressuring her daughter into her decision to forgo chemo.

“I am not coercing her at all and that is what this is about, what they think I am doing,” Fortin said.

Cassandra simply does not want to be infused with “toxic” chemicals, Fortin added.

“My daughter does not want poison in her body. This is her constitutional right as a human being,” Fortin told NBC News. “She is almost 18. [Her birthday is nine months away]. If she was 18, I don’t think this would be an issue. She is not 10. She is over 17. She is very bright, very smart.”

In a Hartford Courant editorial, Cassandra told her own side of the story. Her description of what she went through when DCF got involved is surreal and gut-wrenching:

In December, a decision was made to hospitalize me. I didn’t know what was going to happen, but I did know I wasn’t going down without a fight.

I was admitted to the same room I’m in now, with someone sitting by my door 24/7. I could walk down the hallway as long as security was with me, but otherwise I couldn’t leave my room. I felt trapped.

After a week, they decided to force chemotherapy on me. I should have had the right to say no, but I didn’t. I was strapped to a bed by my wrists and ankles and sedated. I woke up in the recovery room with a port surgically placed in my chest. I was outraged and felt completely violated. My phone was taken away, the hospital phone was removed from my room and even the scissors I used for art were taken.

I have been locked in this hospital for a month, missing time from work, not being able to pay my bills. I couldn’t celebrate Christmas and New Year’s with my friends and family. I miss my cat and I miss fresh air. Having visitors is complicated, seeing my mom is limited, and I’ve not been able to see all of the people I’d like to. My friends are a major support; I need them. Finally, I was given an iPad. I can message my friends on Facebook, but it is nowhere near like calling a friend at night when I can’t sleep or hearing someone’s voice to cheer me up.

This experience has been a continuous nightmare. I want the right to make my medical decisions. It’s disgusting that I’m fighting for a right that I and anyone in my situation should already have. This is my life and my body, not DCF’s and not the state’s. I am a human — I should be able to decide if I do or don’t want chemotherapy. Whether I live 17 years or 100 years should not be anyone’s choice but mine.

Hodgkin’s Lymphoma is 80-85% curable with chemotherapy, but likely fatal without it.

I need to put forth some of my own perspective on Connecticut’s Department of Children and Families. Growing up poor in Connecticut, DCF was never, EVER the “good” guy. Even in cases where intervention to protect a child was warranted, DCF was viewed by everyone I knew as nothing short of terrorists. They were often called in by people who did not have a child’s best interests in mind – often by a former boyfriend/girlfriend of a single parent to “get back” at their ex – and were known to forcefully remove children from their houses and homes, putting them in a foster care environment that is comparable to prison, with all of the social issues (read: constant larceny, constant beatings, and constant sexual abuse by both peers and superiors) that entailed. The threat of DCF coming into my life was a constant for the child of a single mother that worked full time, and led to other consequences in my life that I will tell publicly at a later time. To put it bluntly: DCF was basically the Ministry of Love in our eyes, and rightly so.

Their actions in this case justify that mindset. They took a 17 year old girl out of her house – someone who can legally enlist to fight in a war – and blew away any idea of a mature minor1, judging her too immature – in a state where the sexual age of consent is sixteen – to reject medication that they are forcing her to take by strapping her wrists and ankles to a bed, drugging her, and sticking a pipe in her chest to inject, while removing any form of communication with her family and friends. You know, for her own good. Just One Child™, and all that.

So she can enlist to get shot at in our (illegal) wars, she can have sex with whoever she wants, and she can work. But she can’t say that she doesn’t want something she’s called “poison” to be forcefully injected into her body by a state that is keeping her prisoner and abusing her Constitutional rights.

The mindset of the state – assuming anyone has any good intentions beyond simply exerting their authority – is likely that she will thank them in twenty to thirty years. This assumes that her fears of not being able to give birth, or that her fears of other side effects, do not come true. The quality of Cassandra’s medical care has been atrocious. Now, she would be right to distrust the state for any reason. She was terrorized by people who ostensibly have her best interests in mind, and has been routinely degraded in demeaned in the one way no one should be: by losing total bodily autonomy. She has had her dignity permanently destroyed, and I would not blame her, or her mother, for leaving the state of Connecticut forever, if they haven’t been put on some No Fly List for daring to cross a few bureaucrats.

This is pure fascism. Hateful, evil fascism. There is no other way to put it. And I am ashamed to say I live here right now.

1 – From a legal perspective, Cassandra, her mother, and her lawyers did not assert the mature minor doctrine, which asserts that minors as young as 15 can make their own medical choices without authorization or knowledge of their parents, though the American Civil Liberties Union of Connecticut mentioned it in their amicus brief (PDF). Connecticut is not one of the states that has codified a mature minor doctrine into law. DISCLOSURE: I am a member of the Connecticut ACLU.

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.

The Minimum Wage Lie

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When “progressives” say “the minimum wage hasn’t kept up with inflation”, they’re lying.

Not shading, the truth, exaggerating, or interpreting things differently… they are flat out lying.

… And what’s more, the ones who made up the lie in the first place, know they’re lying (the rest mostly just parrot what they’ve been told).

What exactly would “keeping up with inflation” mean?

The minimum wage has been $7.25 an hour since 2009.

In 1938, when the federal minimum wage was established, it was $0.25 an hour. In constant dollars (adjusted for inflation) that’s $4.19 as of 2014.

So, not only has the minimum wage kept up with inflation, it’s nearly doubled it.

Ok.. well what about more recently?

Minimum wage 15 years ago in 2000: $5.15, or $7.06 in constant dollars

Minimum wage 20 years ago in 1995: $4.25, or $6.59 in constant dollars.

Minimum wage 25 years ago in 1990: $3.80, or $6.87 in constant dollars.

Minimum wage 30 years ago in 1985: $3.30, or $7.25 in constant dollars.

Funny… that’s exactly what it is today… How shocking.

So, for 30 years, the minimum wage has not only kept up with inflation, for most of that time it’s been ahead of it.

So, how are they lying?

The way “progressives” claim minimum wage hasn’t been “keeping up with inflation”, is by comparing today, with the highest level it has ever been; almost 50 years ago, in 1968, when the minimum wage went to $1.60 an hour ($10.86 in constant dollars).

This was a statistical anomaly.

There’s a long and loathsome tradition of lying with statistical anomalies.

At $1.60 an hour, the minimum wage in 1968 was a huge 20% spike from what it had been just 3 years before in ’65, more than 40% above what it had been in 1960, and nearly double what it had been 12 years before in 1956 when politicians started throwing minimum wage increases faster and bigger (again, all in constant dollar terms. The minimum wage at the beginning of 1956 was about $6.30 in constant dollars)

In constant dollar terms, the minimum wage today, is about the same as it was in 1962 (and as I showed above, 1985).

It just so happens that from 1948 to 1968 we had the single largest wealth expansion over 20 years, seen in the history of the nation (about 5-8% annual growth)… Which then crashed hard starting at the end of ’68.

From 1968 to 1984, the U.S. had 16 years of the worst inflation we ever saw, and the purchasing power of ALL wages fell significantly, as wages failed to come even close to keeping up with inflation (we saw 13.5% inflation in 1980 alone, which is about what we see every 4 years today).

It took until 1988 for real wages to climb back to their 1968 constant dollar level, because we were in a 20 year long inflationary recession, complicated by two oil shocks and a stock market crash (actually a couple, but ’87 was the biggest one since ’29).

However, the minimum wage was boosted significantly in that time period, far more than other wages rose, and stayed above the 1962 water mark until the end of that high inflationary period in 1984, declining slightly until 1992, then spiking and declining again until 1997 etc… etc…

By the by… household income in 1968? appx. $7,700, which is about the same as today in constant dollar terms… About $51,0000 (about 8% more than it was in 1967, at $47k). Which is almost exactly what it was in 1988 as well. Household income peaked in 1999 and 2007 at around $55,000, and troughed in 1975 at around $45,000

Of course, income was on a massive upswing from 1948 to 1968 (and in fact had been on a massive upswing overall since 1896 with the exception of 1929 through 1936). In 1941 household income was about $1500 ($24,000 constant), in 1948 $3,800 ($37,000 constant).

Like I said, it was the single greatest expansion in real income and wealth over a 20 year period, in American history.

1968 was a ridiculous historical anomaly… Not a baseline expectation.

So, From 1964 to 1984, the minimum wage was jacked artificially high (proportionally far above median wage levels), and “progressives” chose to cherry pick the absolute peak in 1968 from that part of the dataset, in order to sell the lie.

A living wage?

As to the minimum wage not being a living wage… No, of course its not. It never was, its not supposed to be, and it never should be.

The minimum wage is intended to be for part time, seasonal workers, entry level workers, and working students.

Only about 4% of all workers earn the minimum wage, and less than 2% of full time workers earn the minimum wage.

Minimum wage is what you pay people whose labor isn’t worth more than that. Otherwise everyone would make minimum wage. But since 98% of full time workers can get more than minimum wage, they do so.

What should the minimum wage be?

Zero.

Wait, won’t everyone become poor suddenly?

No, of course not. Literally 98% of full time workers already get more than minimum wage. If we abolished the minimum wage, most of them wouldn’t suddenly be paid nothing.

Wages should be whatever someone is willing to work for. If you’re willing to work for $1, and someone else isn’t, you get the job. On the other hand, if an employer is offering $10 and no-one is willing to take the job for that, they need to offer $11, or $12, or whatever minimum wage someone is willing to take.

If you don’t want to work for $7.25 an hour, don’t take the job. If nobody offers you more than that, too bad, but that’s all your labor is worth.

If you are willing to work for someone for $7.00, and they’re willing to pay you $7.00, what right does some “progressive” have to tell either of you, that you can’t work for that much?

No-one is “exploiting the workers”, if those workers took the jobs voluntarily, and show up for work voluntarily… If all you can find is a job for less than what you want to work for, you’re not being exploited, THAT’S ALL YOUR LABOR IS WORTH TO THOSE EMPLOYERS.

You may think your labor worth more, but things aren’t worth what you want them to be worth, they’re only worth what someone else is willing to pay for them.

But let’s be generous…

All that said, I don’t think we’ll be able to eliminate the minimum wage any time soon.

So, to those “progressives” who would say “let’s make the minimum wage keep up with inflation”, I agree wholeheartedly… Let’s make it $4.19.

Oh and if you don’t believe me on these numbers, they come from the department of labor, the department of commerce, and the census. If I’m lying to you, it’s with the governments own numbers… the same ones “progressives” are lying to you with. 

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

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