As if this wasn’t bad enough, bone marrow is included as part of the ban. The act of paying an individual for his or her bone marrow is a felony which is punishable for up to five years in prison for everyone involved in the illegal transaction.

The Institute for Justice has decided to challenge this most absurd provision of this absurd bill. Below is a video from the organization explaining their lawsuit against U.S. Attorney General’s Office:

For the sake of the Flynn family, here’s hoping that the Institute for Justice wins the day.

Hat Tip: The Agitator

The woman, horrified that her and her son saw Williamson naked, called the police.

How does the police/District Attorney choose to deal with this situation? (Hint we are dealing with government officials here, throw common sense out the window)

A. Nothing. Police advise Williamson to make sure the windows are properly covered next time.
B. Nothing. The woman is advised not to take this shortcut again.
C. Both A and B.
D. The woman is charged with criminal trespass and violation of Williamson’s privacy. She could face up to 6 months in jail and a $1,000 fine if convicted.
E. Williamson is charged with indecent exposure and could face up to 1 year in jail and a $2,000 fine if convicted.
F. Both D and E. Both parties broke the law as both parties violated the rights of the other.
G. Neither D nor E. Both parties broke the law, therefore the penalties offset and no charges will be filed. (Replay 3rd down?)

(See the correct answer below the fold.)

If you guessed E then you are correct.

Apparently no consideration was given the fact that the woman and her son were trespassing in Williamson’s yard or that she was looking into his home. Imagine if Williamson was a woman and it was a man cutting through the yard with his son. Would the woman be charged with indecent* exposure or would the man be charged for being a peeping Tom?

That will have to be another quiz for another day.

*It may depend on how “indecent” the woman looks naked : )

Two Hundred Twenty Two years ago in Philadelphia, the Constitution Convention in Philadelphia completed it’s work.

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it” responded Franklin.

222 years later, Mrs. Powell’s question, and Franklin’s response, remain undecided.

Do yourself a favor — read The Constitution, and then ask whether we’re still following it the way the Founders intended, and whether we’re going to be able to keep the Republic that Franklin was talking about.

WASHINGTON — The Obama administration supports extending three key provisions of the Patriot Act that are due to expire at the end of the year, the Justice Department told Congress in a letter made public Tuesday.

Lawmakers and civil rights groups had been pressing the Democratic administration to say whether it wants to preserve the post-Sept. 11 law’s authority to access business records, as well as monitor so-called “lone wolf” terrorists and conduct roving wiretaps.

The provision on business records was long criticized by rights groups as giving the government access to citizens’ library records, and a coalition of liberal and conservative groups complained that the Patriot Act gives the government too much authority to snoop into Americans’ private lives.

As a presidential candidate, Barack Obama said he would take a close look at the law, based on his past expertise in constitutional law. Back in May, President Obama said legal institutions must be updated to deal with the threat of terrorism, but in a way that preserves the rule of law and accountability.

The most egregious thing about Obama’s extension proposal is that none of the provisions he wants to extend require a search warrant issued by a judge or even the existence of probable cause. Moreover, as Jason points out over at United Liberty, the PATRIOT Act itself has been rife with abuse ever since implementation:

In 2007, FBI Director Robert Mueller admitted to abuses of the PATRIOT Act. In fact, there were more than 1,000 instances of the FBI misusing the law. According to the Washington Post, the “audit [covered] just 10 percent of the bureau’s national security investigations since 2002, and so the mistakes in the FBI’s domestic surveillance efforts probably number several thousand.”

And yet Obama wants to extend it.

The more things change, the less hope I have.

Civil liberties attorney Harvey Silvergate agrees:

Under well-established First Amendment jurisprudence, what Gates said to Crowley–even assuming the worst–is fully constitutionally protected. After all, even “offensive” speech is covered by the First Amendment’s very broad umbrella

(…)

Today, the law recognizes only four exceptions to the First Amendment’s protection for free speech: (1) speech posing the “clear and present danger” of imminent violence or lawless action posited by Holmes, (2) disclosures threatening “national security,” (3) “obscenity” and (4) so-called “fighting words” that would provoke a reasonable person to an imminent, violent response.

As Silvergate goes on to discuss in an article well-worth reading, none of these four exceptions can reasonably be said to have applied to the confrontation between Crowley and Gates. Additionally, as Jacob Sullum notes, neither would Massachusetts state law on disorderly conduct justify the arrest in this case:

In Massachusetts, as in many states, the definition of disorderly conduct is drawn from the American Law Institute’s Model Penal Code. A person is considered disorderly if he “engages in fighting or threatening, violent or tumultuous behavior…with purpose to cause public inconvenience, annoyance or alarm” or “recklessly creates a risk thereof.”

Crowley claims Gates recklessly created public alarm by haranguing him from the porch of his house, attracting a small crowd that included “at least seven unidentified passers-by” as well as several police officers. Yet it was Crowley who suggested that Gates follow him outside, thereby setting him up for the disorderly conduct charge.

It’s hard to escape the conclusion that Crowley was angered and embarrassed by Gates’ “outburst” and therefore sought to create a pretext for arresting him. “When he has the uniform on,” Crowley’s wife later told The New York Times, “Jim has an expectation of deference.”

As the Massachusetts Appeals Court has noted, “the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others.” Yet police officers often seem to think the purpose of such laws is to punish people for talking back to cops.

And yet, that’s not what the law says, as Massachusetts’ highest Court has recognized:

The officers’ presence, alone, did not suffice to prove the public element, regardless of any concern they may have felt as they witnessed the defendant’s confrontation with Sergeant Boss. As recognized in the commentaries to the Model Penal Code, behavior that has an impact only upon members of the police force is significantly different from that affecting other citizens in at least two respects: it is an unfortunate but inherent part of a police officer’s job to be in the presence of distraught individuals; and, to the extent that the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others, “one must suppose that [police officers], employed and trained to maintain order, would be least likely to be provoked to disorderly responses.” Model Penal Code § 250.2 comment 7, at 350. Accordingly, police presence in and of itself does not turn an otherwise purely private outburst into disorderly conduct.(9)

In other words, the mere act of talking back to a cop does not constitute a crime and should not justify arrest.

Gates was a hothead, but Crowley stepped outside the bounds of his Constitutionally-limited authority.

THIS BOOK IS BASED on a single idea: You should be allowed to do whatever you want with your own person and property, as long as you don’t physically harm the person or property of a nonconsenting other.

Thus begins a book that everyone interested in politics should read; Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in a Free Country by Peter McWilliams.  Published in 1998, it is a damning survey of how the United States had become a state composed of “clergymen with billy-clubs”.  It analyzes the consequences of punishing so-called victimless crimes from numerous viewpoints, demonstrating that regardless of what you think is the most important organizing principle or purpose of society the investigation, prosecution and punishment of these non-crimes is harmful to society.

This remarkable book is now posted online, and if one can bear to wade through the awful website design, one will find lots of thought-provoking worthwhile commentary, analysis, theory and history.

His final chapter, on how to change the system, while consisting mainly of pie-in-the-sky, ineffective suggestions of working within the system, starts of with an extremely good bit of advice that I urge all our readers to try:

The single most effective form of change is one-on-one interaction with the people you come into contact with day-by-day. The next time someone condemns a consensual activity in your presence, you can ask the simple question, “Well, isn’t that their own business?” Asking this, of course, may be like hitting a beehive with a baseball bat, and it may seem—after the commotion (and emotion) has died down—that attitudes have not changed. If, however, a beehive is hit often enough, the bees move somewhere else. Of course, you don’t have to hit the same hive every time. If all the people who agree that the laws against consensual crimes should be repealed post haste would go around whacking (or at least firmly tapping) every beehive that presented itself, the bees would buzz less often.

I highly recommend this book.  Even though I have some pretty fundamental disagreements with some of his proposals, I think that this book is a fine addition to the bookshelf of any advocate of freedom and civilization.

Hat Tip: J.D. Tuccille of Disloyal Opposition.

Now Dr. Ron Paul’s prescription for reforming healthcare in America

Reuters Reports:

“Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution,” Justice David Souter wrote for the court majority.

The school’s policy prohibits the use, possession or sale of any drug on school grounds, including prescription and over-the-counter medications. A week before the search, a student became sick after taking pills from a classmate and said certain students were bringing drugs to school.

Following an assistant principal’s orders, a school nurse had Redding remove her clothes, move her bra to the side and pull her underwear out, exposing her breasts and pelvic area, to see if she was hiding any ibuprofen pills.

[…]

Only Justice Clarence Thomas dissented from the part of the ruling that Redding’s privacy rights had been violated.

Thomas said the ruling “grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge.”

While the court agreed that the school district violated Redding’s privacy rights, only Justices Ginsburg and Stevens believed the school administrators should be held liable; the remaining Justices believed that prior to this ruling, the law had not been clearly established.

The ACLU attorney Adam Wolf who represented Redding was also quoted in the article saying: “Today’s ruling affirms that schools are not constitutional dead zones. Savana … is pleased that other students will not have to go through the trauma that she experienced.”

I think we sometimes forget that public school teachers and administrators are actually agents of the government. At times, schools have become “constitutional dead zones” but we should always remember that government agents of all kinds should be expected to respect legitimate rights of students. If the school administrators had good reason to believe that Redding had contraband, they could apply for a search warrant and allow the proper authorities to conduct the search.

“I’m sorry for the loss of their family pets,” Jackson said. “But this is the unfortunate result of the scourge of drugs in our community. Lost in this whole incident was the criminal element. . . . In the sense that we kept these drugs from reaching our streets, this operation was a success.”

What criminal element? The mayor? His wife? His elderly mother-in-law? The two labrador retrievers they shot?

Did they suspect Calvo was a drug-runner? Obviously not, because they ALREADY knew the drugs were intended (from an on-going investigation) for a false drop.

If there’s a criminal element, don’t you think it might be the guys, dressed in black, who busted down the door of a law-abiding citizen, terrorized his family, and shot his dogs? All without even a cursory investigation to see if they’d done anything wrong other than having their own address on a package that even the cops weren’t sure was intended for them?

This isn’t the result of the scourge of drugs or the criminal element. This is the result of shoddy police work. This Sheriff should be ashamed of his wanton disregard for logic and humanity.

While I’m not happy that Mr. Lynch is doing time for legally dispensing marijuana under California’s compassionate use law, he certainly could have received a much harsher sentence (up to 100 years). U.S. District Judge George Wu should be commended for finding an exception to the 5 year mandatory minimum sentence and reducing it to a relatively reasonable sentence of 1 year. That’s probably the best he could do under the circumstances.

There is however, one person who can correct this injustice perpetrated by the Bush Justice Department: President Obama. I urge all those who support the Tenth Amendment to join me in calling on President Obama to pardon Charles Lynch. Federalism is a much larger principle in this case than medical marijuana or even the war on (some) drugs. The State of California (whether one agrees or not with using marijuana for medicinal purposes), passed a law the federal government did not like. This law does not violate the U.S. Constitution and is, therefore, beyond the reach of the federal government according to the Tenth Amendment.*

Furthermore, President Obama and his Attorney General Holder have both said on several occasions that the federal raids on these dispensaries would end provided the operators are not violating both state and federal law. A full pardon of Charles Lynch would go a long way toward reversing a bad policy from the previous administration.

*At least that’s my lay reading of it.

One quote from the article stood out and seems to support what I wrote about her in a post I wrote last week:

“[Sotomayor] certainly doesn’t seem to have a pro-criminal bias and, if anything, because of her history, may have a pro-state bias.” – Law Professor and Sentencing Expert Doug Berman

I take exception to the “pro-criminal” part of the quote because in our system (at least in theory), individuals are innocent until proven guilty. Beyond this, I am troubled that a nominee for the Supreme Court would show a detectable bias toward either toward the prosecution or the defense. The only bias a judge should have should be toward the Constitution (the Bill of Rights in-particular).

This is one bias Judge Sotomayor appears not to have.

MINNEAPOLIS (AP) — A Minnesota judge is expected to decide whether a family can refuse chemotherapy for a 13-year-boy’s cancer and treat him with natural medicine, even though doctors say it’s effectively a death sentence.

With chemotherapy, Daniel Hauser has a 90 percent chance of surviving his Hodgkin’s lymphoma, according to his cancer doctor. And without it?

“It is almost certain that he will die,” said Dr. Bruce Bostrom, a pediatric oncologist at Children’s Hospital and Clinics of Minnesota. Bostrom, who diagnosed the disease, is an ally of the legal effort in southwestern Minnesota’s Brown County to make Hauser submit to chemotherapy even though he and his parents believe it’s potentially more harmful than the cancer itself.

District Judge John Rodenberg was expected to rule Friday on Brown County’s motion.

Bostrom said Daniel’s chance of survival without chemotherapy is about 5 percent. Nevertheless, parents Colleen and Anthony Hauser are supporting what they say is their son’s decision to instead treat the disease with nutritional supplements and other alternative treatments favored by the Nemenhah Band. The Missouri-based religious group believes in natural healing methods advocated by some American Indians.

This case is similar to one that made headlines here in Virginia, and around the country three years ago when a Chesapeake County Judge was faced with deciding whether then 16 year-old Abraham Cherrix, who was suffering form the same form of cancer as Daniel Hauser, should be forced to undergo chemotherapy. After a Court fight that lasted nearly two months, the case was settled and Cherrix was ultimately permitted to refuse the undergo chemotherapy. His case, however, led to a change in Virginia law which gives children the right to refuse to undergo medical treatment after they reach the age of 14.

Of course, Abraham’s Law, as it came to be called as it made it’s way through the Virginia Legislature, wouldn’t really apply in Hauser’s case since he’s under 14, and it’s age that is one of the major factors that distinguishes this case from the Cherrix case. Is a 13 year old really mature enough to understand the implications of a decisions that could very well result in his death ? Is he really making the decision on his own, or is he being influenced by his parent’s rather unorthodox religious beliefs:

The Hausers, who are Roman Catholic, have eight children. Colleen Hauser told the New Ulm Journal newspaper that the family’s Catholicism and adherence to the Nemenhah Band are not in conflict, and said she has treated illness with natural remedies her entire life.

Nemenhah was founded in the 1990s by Philip Cloudpiler Landis, who said Thursday that he was one-fourth American Indian. Nemenhah adherents are asked to pay $250 to be members. “We’re non-dogmatic, a very universal faith,” Landis said.

Landis said he founded the faith after facing his diagnosis of a cancer similar to Daniel Hauser. He said he treated it with diet choices, visits to a sweat lodge and other natural remedies. Landis also once served four months in prison in Idaho for fraud related to advocating natural remedies.

So, the Hauser case seems to be a much closer call that the Cherrix case was, but I think the default position should be the same as the one I stated when I first heard the name Abraham Cherrix:

It seems pretty clear to me, though, that the state has little, if any, right to interfere in what is essentially a private decision for the Cherrix family, and specifically for Abraham. Who is the state social worker to say that his decision is wrong ? As someone who has witnessed first-hand what happens to someone on chemotherapy, its pretty clear that modern cancer therapy is often based on the hope that the chemicals being pumped into the patient will kill the cancer cells before killing the patient. The side effects are visible, painful, and often permanent. Abraham has been through one round of chemotherapy already and, apparently it didn’t work. If he chooses not to subject himself to that again, and his parents support that, that decision should be respected.

Yes, Abraham is 16 and technically a minor, but if its clear that his decision is really his, then what right does the government have to stick a needle in his arm and pump toxic chemicals into his body ? None that I can see.

Replace Abraham’s name with Danie’ls, and I think those words apply just as strongly in this case. The state has no right to force someone to put chemicals in their body, not even a child.

And what ever happened to Abraham Cherrix ? Well, after initially appearing to suffer a setback in 2007, he turned 18 in June of last year showing no signs of the Hodgkin’s Disease that had been ravaging his body for years.

Update @ 4:15pm: The judge hearing Daniel’s case has issued his decision and has ruled that Daniel must undergo the chemotherapy treatments.

C/P: Below The Beltway

Well, perhaps someone can explain exactly how a 16 year-old in North Carolina constitutes a terrorist threat:

Oxford, N.C. — Sixteen-year-old Ashton Lundeby’s bedroom in his mother’s Granville County home is nothing, if not patriotic. Images of American flags are everywhere – on the bed, on the floor, on the wall.

But according to the United States government, the tenth-grade home-schooler is being held on a criminal complaint that he made a bomb threat from his home on the night of Feb. 15.

The family was at a church function that night, his mother, Annette Lundeby, said.

“Undoubtedly, they were given false information, or they would not have had 12 agents in my house with a widow and two children and three cats,” Lundeby said.

Around 10 p.m. on March 5, Lundeby said, armed FBI agents along with three local law enforcement officers stormed her home looking for her son. They handcuffed him and presented her with a search warrant.

“I was terrified,” Lundeby’s mother said. “There were guns, and I don’t allow guns around my children. I don’t believe in guns.”

Lundeby told the officers that someone had hacked into her son’s IP address and was using it to make crank calls connected through the Internet, making it look like the calls had originated from her home when they did not.

Her argument was ignored, she said. Agents seized a computer, a cell phone, gaming console, routers, bank statements and school records, according to federal search warrants.

“There were no bomb-making materials, not even a blasting cap, not even a wire,” Lundeby said.

And yet her son remains in custody in a juvenile facility in Indiana and the government doesn’t even feel obligated to explain the charges against him:

Passed after the Sept. 11, 2001, terrorist attacks on the U.S., the Patriot Act allows federal agents to investigate suspected cases of terrorism swiftly to better protect the country. In part, it gives the federal government more latitude to search telephone records, e-mails and other records.

“They’re saying that ‘We feel this individual is a terrorist or an enemy combatant against the United States, and we’re going to suspend all of those due process rights because this person is an enemy of the United States,” said Dan Boyce, a defense attorney and former U.S. attorney not connected to the Lundeby case.

(…)

Boyce said the Patriot Act was written with good intentions, but he said he believes it has gone too far in some cases. Lundeby’s might be one of them, he said.

“It very well could be a case of overreaction, where an agent leaped to certain conclusions or has made certain assumptions about this individual and about how serious the threat really is,” Boyce said.

Gee, do you think ?

Here’s a report from a local television station in North Carolina about the incident:

Rick Sincere, whose post early this morning pointed me to this horrendous story, sums up all of this up quite nicely:

In addition to incompetences like this, government law enforcement agencies are extremely shy about apologizing for mistakes. (They almost never do so, unless by court order.) So Ashton Lundeby, no matter how strong the case for his innocence is, will likely be kept in jail for years as the government tries out new and more ridiculous charges against him, until they find one that sticks or they wear Ashton down so thoroughly that he confesses to crimes he did not commit (and probably did not occur).

Welcome to the new America, my friends.

C/P: Below The Beltway

As it turned out, Savanna had no drugs on her, but the strip search is something she’ll never forget, and, yesterday, her case against the school officials who did this to her was argued before the Supreme Court of the United States:

An important case at the Supreme Court sometimes informs as much about the justices as the issue at hand, and yesterday’s animated hearing on whether school officials have the right to strip-search a 13-year-old female student seemed just such a case.

Justice Stephen G. Breyer wondered if the incident was much different from the experience of disrobing for gym class. Justice Anthony M. Kennedy affirmed his deep concerns about illicit drugs. Justice Ruth Bader Ginsburg seemed at times on the edge of exasperation with her all-male colleagues. And Chief Justice John G. Roberts Jr. searched for a way to make the issue go away.

But it was Justice David H. Souter who seemed to sum up the dilemma for a majority of the court. He put himself in the place of a school official balancing the need for keeping his young charges safe from drugs while respecting the constitutional protections even middle school students should receive.

“My thought process is, I would rather have the kid embarrassed by a strip search, if we can’t find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry,” Souter said.

As ScotusBlog’s Lyle Dennison notes, the Justice’s questioning seemed to indicate that their decision in this case will be motivated by fear more than anything else:

With an undercurrent of fear running across the Supreme Court bench about drug abuse among school students, and a perception that young people will try hard to avoid detection, the Justices searched anxiously on Tuesday for a way to clarify — and perhaps to enhance — public school principals’ authority to conduct personal searches of the youths in their charge.

(…)

No more telling illustration of the Court’s mood emerged than Justice David H. Souter — whose vote would almost have to be won for student privacy to prevail – expressing a preference for “a sliding scale of risk” that would add to search authority — including strip searching — based on how school officials assessed whether “sickness or death” was at stake.

“If the school official’s thought process,” Souter asked, “was ‘I’d rather have a kid embarrassed rather than some other kid dead,’ isn’t that reasonable under the Fourth Amendment?” Stated in that stark way almost compelled agreement, without regard to whether a student singled out for a strip search was actually adding to such a risk, but was only the target of a classmate’s unverified tip.

Along with Souter, two other Justices whose votes might turn out to be crucial — Stephen G. Breyer and Anthony M. Kennedy — were plainly more concerned about the drug problem than with student privacy. Both of those Justices, in past cases involving students and suspected drug use, have suggested that students’ rights were not very sturdy.

You can read the full transcript of yesterday’s oral argument in the case here.

Given this, I find myself in agreement with Radley Balko, who says that the reports from yesterday’s oral argument are not encouraging at all for anyone who believes in civil liberties:

Can anyone think of a single incident in the last 30 years in which several children have died after ingesting drugs distributed by one of their classmates on school grounds? Before we let school principles go rummaging through the panties of underage girls, shouldn’t we be at least be able to cite a few examples?

It’s a little troubling to see how comfortable these old men (Ginsburg isn’t quoted in the article) seem to be with allowing school administrators access to the genitalia of school children based on nothing more than a hunch that they might be “crotching” some ibuprofen.

And Steve Verdon notes that the school officials could have exercised just a small degree of common sense:

The strip search was based on a snitch’s statements, something that should be taken with a shovel of salt. When you are down to the underwear and you haven’t found drugs on a student with no history of drug abuse, good grades, good attendance, and no other indicators of being a problem student maybe it is at that point that you should call the child’s parents and involve them.

I summed my own opinions about this story up last month:

I cannot imagine any circumstances where it should be acceptable for school officials to strip search a child. If there is some suspicion that a crime was committed, then the matter should be turned over the police — in which case she couldn’t have been strip-searched until she was actually placed under arrest.

It is, however, John Cole who comes away with the quote of the day on this story:

I can state that as someone with an IQ over room temperature, the fact that we are debating whether it is appropriate for school authorities to strip search kids is a sure sign that something has gone horribly, horribly wrong with this country and our sense of perspective, and I blame the war on drugs.

The fact that Supreme Court Justices, and likely a large segment of the American public, can’t recognize that makes it all even more troubling.

C/P: Below The Beltway