Category Archives: Legal

Quote of the Day: A Question for “Pro-Life” Death Penalty Advocates Edition

Matthew DesOrmeaux over at United Liberty poses a very important question to those in the “pro-life” community who support the death penalty. This question comes in response to a South Carolina judge vacating the conviction of George Stinney Jr. who was executed at the age of 14 in 1944.

Is the execution of an innocent person, even a child, enough to undermine faith in the criminal justice system as a whole, and capital punishment in particular? If one error is not convincing enough, is there some acceptable level of innocent life ended at the hands of the state (or their peers, if that makes you feel better) that would change your mind? Or is the (spurious) deterrent factor of the death penalty or faith in the process, regardless of further evidence, so strong as to make all wrongful convictions and executions irrelevant?

I’ve already seen one person respond in the comments section to the effect “Well that was during Jim Crow [1]; our criminal justice system is so much better now.”

Even as cynical as I am about the American criminal justice system, I believe it’s fair to say that there has been some improvements since 1944. I cannot imagine a 14 year-old being executed in 2014 (someone with the mental capacity of less than a 14 year-old…sadly yes but not an actual 14 year-old). DesOrmeaux’s overall point is relevant as the National Academy of Sciences found that currently 1 in 25 death row prisoners is innocent.

With the learning curve so steep for supporters of capital punishment, at this rate it will be 2074 by the time a Texas judge admits that Rick Perry allowed (likely innocent) Cameron Todd Willingham to be executed on his watch.

[1] For what it’s worth, George Stinney Jr. was black.

A Public Service for Our Readers Regarding Federal Drug Enforcement

We are posting this as a public service and informational notice, for our cannabis using, interested, curious, or just plain liberty oriented readers and friends…

Contrary to articles such as this:

Congress Effectively Ends The Federal Ban On Medical Marijuana
HighTimes

It seems the controversial $1.1T spending bill that is preventing the U.S. government from shutting down is chock full of surprises.

As you may know, much to the dismay of marijuana activists and lovers of democracy everywhere, the bill smacked down Washington DCs referendum that legalized recreational marijuana in the nation’s capital. What you may have missed (because those shifty politicians are doing everything under the table) is that the bill also quietly, but effectively lifted the federal ban on medical marijuana.

Let us be VERY clear… NO the federal government has not legalized, or ended the federal prohibition of medical marijuana.

No, really, they didn’t, no matter what High Times says.

Manufacture, distribution, transportation, storage, sale, possession, and use, of Marijuana are all still federal crimes. Further, they are automatic disqualification on a background check, or a drug test, or a security clearance etc… etc…

They also make one a prohibited person with respect to firearms, explosives, and destructive devices.

Yes… even in Washington and Colorado. 

All they did in this omnibus appropriations bill, was to partially defund and deprioritize enforcement of federal marijuana prohibition, against medical marijuana dispensaries only (NOT grow ops, or users) in those states with medical marijuana, between January and September.

That’s it. 

Here is the actual text, of the portion  of the bill in question:

“Sec. 538. None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana. Sec. 539. None of the funds made available by this Act may be used in contravention of section 7606 (“Legitimacy of Industrial Hemp Research”) of the Agricultural Act of 2014 (Public Law 113-79) by the Department of Justice or the Drug Enforcement Administration.”

There has been no real change in the law, there is just a change in the administration of a small subset of enforcement.

In fact, this action makes getting the changes we need in the law harder and less likely.

Far worse though, it furthers the toxic notion that we can just arbitrarily, capriciously, and disparately, choose to not enforce the law, when we feel like it… But then any time we change our mind we can go ahead and start enforcing it again.

This disrespects and debases the very foundation of rule of law.

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

Torture and Denial

torture

If the tiny percentage of the torture documents that were released yesterday should give us a clue about anything, it should be the degree to which the federal government officials and politicians lie to cover their own asses. Those of us who called for the documents to be released were admonished that in releasing them, U.S. troops and diplomats will be put in greater danger. Of course if these “enhanced interrogation” techniques aren’t really “torture,” then it seems to me that those who are fearful of the release should have nothing to worry about (one can’t have it both ways). Why not prove to the world that everything going on at Gitmo and the various black sites are on the up-and-up?

Of course then there’s the argument: “The Bush administration/CIA/Senate did not know nor approve some of these techniques…”

Ah, the good old “plausible deniability” excuse. The people in charge can’t be held responsible because some underlings decided to go all Jack Bauer on the detainees.

no evil

Of course then there is the ass-coverer-in-chief President Obama responding to the report:

Today’s report by the Senate Select Committee on Intelligence details one element of our nation’s response to 9/11—the CIA’s detention and interrogation program, which I formally ended on one of my first days in office. The report documents a troubling program involving enhanced interrogation techniques on terrorism suspects in secret facilities outside the United States, and it reinforces my long-held view that these harsh methods were not only inconsistent with our values as nation, they did not serve our broader counterterrorism efforts or our national security interests […] That is why I will continue to use my authority as President to make sure we never resort to those methods again.

President Obama is trying to convince the world that torture is a thing of the past which occurred when George W. Bush was president. Obama, we are to believe, ended torture on one of his first days in office. We are supposed to forget that he was also supposed to close Guantanamo Bay and that he has a secret kill list which sometimes includes American citizens (killing people without any sort of due process with a drone is morally superior to torture, you see).

Beyond this, President Obama is also misleading the world about no longer torturing detainees at the now infamous island prison which he promised to close. As The Intercept reports:

Abu Wa’el Dhiab, a 43-year old Syrian national, was among the six Guantanamo Bay prisoners freed last week and transferred to Uruguay after spending 13 years in U.S. detention. He had been cleared for release since 2009, yet the husband and father of three found himself imprisoned several years longer in circumstances characterized by indefinite detention, humiliation and inhumane treatment.

In response to what they saw as their increasingly desperate conditions, Dhiab and many other Guantanamo detainees repeatedly sought to employ the only means of resistance left available to them: refusing food. “We have given up the very things which are important: food and drink,” Dhiab stated last year, describing his motivations and those of his other hunger-striking prisoners. “And we have done so to get answers to our questions: What is our guilt and what is our crime?”

I suppose President Obama can use weasel words about not using torture to interrogate detainees but clearly torture is being used for other such things as force-feeding. Skipping ahead a little, the article continues:

While military officials may be able to casually characterize the force-feeding of such prisoners as some kind of innocuous guard-detainee interaction, they are correct that many others in the United States and around the world would likely not have the same reaction to such footage.

So far, the actual videos remain classified. At the end of The Intercept article a video was posted to show what is difficult to convey in words. The video (below) is a re-creation of what this force-feeding looks like.

Does this look like torture to you?

No?

Suppose it was American soldiers subjected to this treatment as well as what was detailed in the torture report? Would you still consider these techniques as “enhanced” but not torture? Suppose it was your own son?

Even if you think that it is permissible to treat actual terrorists this way, we should all agree that keeping individuals who haven’t been charged (again, this includes American citizens) or who have been cleared of any wrong doing should not be treated this way and should be returned to their homes.

We the people have the right to know what is being done in our name. The rest of the world needs to know that not all of us approve of what is being done in our name.

This Advice Could Save Your Life and Preserve Your Liberty

garner

The fact that the police can get away with killing an individual who presented no threat to anyone with the whole incident caught on camera is quite disturbing. A grand jury decided not to indict a NYPD officer by the name of Daniel Pantaleo who used a choke-hold banned by his own department which resulted in the death of Eric Garner. Unlike the incident in Ferguson which contained conflicting testimony and forensics which support Darren Wilson’s version of the event, this event in New York was caught on video from at least two different camera angles (and available on YouTube for the whole world to see). This seems pretty cut and dry at least for an indictment.

So how is it that almost any accused individual brought before a grand jury is indicted unless the accused individual happens to wear a government issued costume? Are grand juries really that biased toward the police? After reading a few dozen comments on threads responding to the grand jury decision, I’m afraid the answer is yes (if you want to lose all hope for humanity, read the comment section to any article of consequence). I reach this conclusion because these are the sort of people who serve on juries and decide that it’s perfectly okay for the police to kill someone if the suspect had any criminal record of any kind, resisted in any way, or even “disrespected” the police on the scene.

The truth is that reforming the way police do things is going to take time as changing people’s attitudes is going to take time. There are things that we as individuals can do here and now so that we don’t become victims of the police, however. Many of these perfect, law abiding specimens of humanity who like to share their wisdom with the rest of us on the internet say that if Eric Garner hadn’t resisted (at all) he would never have been put in the choke hold that contributed or caused his death. On this point, I grudgingly have to agree.

I don’t say this because I believe the use of force against Garner was appropriate but because far too many people do (and juries are composed of people who aren’t always very reasonable).

One common thread in many of these viral videos where the police overreact is that the individual either resists (however mildly), makes a sudden move, or is perceived as being armed [1]. The worst thing you can do is give the cops a reason to use force and an excuse for jurors who will normally give the police the benefit of the doubt a reason to doubt.

So how does one increase one’s odds of surviving an encounter with an overzealous cop? Here are a few suggestions.

1. Before you end your session on the internet today, watch Flex Your Rights’ “10 Rules for Dealing With Police.” I have the entire series and a summary of the rules posted here. If you know how you can respectfully but firmly assert your constitutional rights before the next time you are confronted by the police, you will have advantages most people do not and you will reduce the chances that the encounter will escalate to violence.

2. Act as if the encounter is being recorded and your actions will be scrutinized in front of a judge, jury, and/or the general public. For better or worse, cameras have become ubiquitous, so the chances the encounter is being recorded increase everyday. Use this to your advantage. Better yet, if you have a camera phone, record the encounter yourself. Recording the police in public is legal almost everywhere in the U.S. Follow this link to be sure of the specific legalities of your state. Once you have the camera rolling, follow the aforementioned “10 rules” and be the kind of person a judge, jury, and the general public would be sympathetic toward. If you act like a jerk or are disrespectful in any way (regardless of how the cop acts) this could all backfire.

3. Don’t make any sudden moves and keep your hands visible at all times. If you are pulled over keep your hands on the steering wheel and turn on the dome light if its dark out. When the cop asks for your license and registration, say something like “My license is in my wallet” and very slowly reach for it and hand it over. Then say “My insurance card and registration is in the glove box” then slowly open the glove box and retrieve the documentation. Better yet, have the documentation ready before the cop comes to your window; its less movement and you know you will be asked to produce these items anyway. Had this man followed similar advice, he might not have been shot by a South Carolina State trooper.

4. Understand that you are NOT in control. If the police have decided to put cuffs on you and/or arrest you, do not physically resist, attack, or run. If you do, the results will not end in your favor. Whatever injustice has befallen you will not be settled until later. Also, keep your mouth shut and only speak of the event with your attorney.

Its my hope that these cases which have scandalized us all will lead to better understanding of how we can peacefully resist the growing police state. Its not my intention to blame the victims such as Eric Garner, John Crawford III, Kelly Thomas and countless others but to do my part in not creating new victims of overzealous cops afraid of their own shadows.

[1] Its become a pet peeve of mine seeing headlines that state that the police shoot an “unarmed” man. For one, unarmed does not mean harmless. Also, its probably safe to say that most of the time when the cops shoot an unarmed person, it was unclear if s/he was armed at the time. While we can and should scrutinize the police when they use force, we cannot expect them to have perfect knowledge in real time.

Police should wear body cameras to protect themselves when they’re accused of wrongdoing

camera

President Obama has just proposed $263 million for police body cameras in an effort to improve police relations in the communities they serve. My co-contributor at United Liberty Matthew Hurtt argues that this is an overreaction and cautions that this is “further federalizing local law enforcement.” To this, I have to respectfully disagree.

The federal government has already “federalized” local police if by federalization he means providing military grade toys at a discount. I don’t quite understand how providing tools which can actually protect the public such as body cameras “further” federalizes the police. As long as these departments receive these toys, the public damn well has the right to review in HD quality video and audio how these toys are being used (along with the normal police activities).

The following post was originally published on 8/18/2014 @ United Liberty

 

It sems that there is at least one area of agreement (with caveats) between some in law enforcement and some civil libertarians: cops should wear body cameras. The how, when, and where is still a question for all concerned but at least there seems to be some agreement on the broad outlines.

PoliceOne.com‘s editor-in-chief Doug Wyllie argues that police departments should embrace the idea of body mounted cameras on almost every police officer. Wyllie writes:

In the week following the officer-involved shooting in Ferguson (Mo.), many have asked me for a comment and/or my commentary on the matter. My reply has generally been, “What, precisely, might that comment be? We know very little detail regarding the incident itself, so any ‘analysis’ on my part would be tantamount to irresponsible speculation. Further, analysis of the rioting and looting (and police response to same) would be redundant — we’ve got reams of columns on crowd control tactics and strategies.”

One thing, however, merits mention in this space. It’s directly related to the first thought that came to my mind when news of this tragedy broke: “Man, I hope that officer was wearing a body camera.”

By now, we can correctly surmise that he was not, and it’s a reasonable contention that if he had been wearing a body camera — and that video was examined by agency leadership and released responsibly to the public — Ferguson would probably have been spared the violence and unrest.

Wyllie anticipated that there would be some cops, departments, and PoliceOne members who would disagree with this notion. From there he offered 3 reasons why the upsides outweigh the downsides:

1. Officers’ fears about “Big Brother” are crushed by good, sound policy collaboratively created by all stakeholders — administrators, police unions, civil rights groups, local lawmakers, and others. Citizens’ fears about Fourth Amendment issues — for victims, witnesses, and other uninvolved persons — are similarly crushed by that same policy.

I must interject here. We have street cameras on just about every major intersection in every major city in America. If its good enough to place you and I under constant surveillance, its good enough for the police. The police should also be reminded that they do indeed work for us. Any time the police are on duty and in public, there is a chance that they are being watched by the public. They do not have a right to privacy when they interact with the pubic. This is especially true when the actions of the police have the potential to take freedom or life away from individuals concerned.

Wyllie continues with his other 2 points:

2. Concerns over budgeting for the investment in new gear (and training for same) are quelled by the statistical data suggesting that the outlay in cash is far less than the cost of settling frivolous (and baseless) lawsuits over alleged officer misconduct when no such misconduct occurred.

3. Any argument alleging that “the technology just isn’t there yet” is flat out false. Five years ago, such a statement may have held some water, but companies like TASER International, Digital Ally, L-3 Mobile Vision, and VIEVU now offer rugged, patrol-ready products with high-definition recording capabilities in light, wearable form factors.

Doug Wyllie sees the writing on the wall; he points out that the White House petition for the “Mike Brown Law” which says “all state, county, and local police [should be required] to wear a camera” already passed 100k signatures. Wyllie is probably correct arguing that there would be fewer misconduct lawsuits with the cameras. One PoliceOne member added:

Personally I look forward to being able to show the jury exactly what the POS I arrested was doing, saying and what he looked like when I arrested him; rather than the cleaned up chap in a borrowed suit that the defense brought to court.

I think its also fair to say that cops would be discouraged from being involved with any misconduct in the first place. If we lived in a world where everyone involved in a police encounter is being recorded, everyone involved has every reason to be on his or her best behavior.

Another posted:

I’m all for body cameras. Yet, when they go against what people want them to say, it will be: “The police fixed the cameras.”

To this concern I have two answers. First the technology is already available to determine if a video has been tampered with. If the video shows the video at the 5:07:29 minute mark and then it suddenly skips to the 8:10:12 minute mark, most people are going to understand that there is some missing footage. The second answer is to policy of how, when, and where body cameras will be used.

Will cameras solve all questions of misconduct? Of course not. Cameras certainly have their limitations. But having a video of an event presented to a jury is certainly better than relying solely on conflicting eyewitness testimony.

Point of clarification: One person who commented on the Face Book link mentioned “And audio might be nice.” I assumed Doug Wyllie meant that audio should be part of the video recording as well. After re-reading his article, I realize that he never mentioned anything about audio. Perhaps this too will become a very important part of the debate. It’s my position that audio should be included. Video alone might be helpful in very clear cut cases but distort the meaning of what the viewer sees in other cases.

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