Justplainbill's Weblog

February 22, 2016

New York City rejects US, NY constitutions and goes Sharia, posted on snopes [c]

Oath Creepers
Carolyn Walker-Diallo, a Muslim, used a Quran for her swearing-in as a New York City Civil Court Judge in December 2015.
Kim LaCapria
Kim LaCapria
Dec 14, 2015

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Claim: New York State Judge Carolyn Walker-Diallo is Muslim and was sworn into office using a Quran.
True

Origin:On 13 December 2015, the web site Allen West Republic published an article about the swearing in of Judge Carolyn Walker-Diallo, titled “Obama’s America: Muslim Woman Sworn in As Judge, Look at the FIRST Thing She Does!”:

New York Judge Carolyn Walker-Diallo, a Black Muslim woman took oath as a civil court judge in New York on Thursday, while swearing to abide by the U.S. Constitution placing her hand on the Holy Quran.

The article’s primary assertion was that the “first thing” Walker-Diallo did upon becoming a judge was to was place her hand upon the Quran, although technically she didn’t become a judge until the swearing-in was complete. (Judges are sworn in using a Bible, religious text of their choice, or a copy of the U.S. Constitution.)
muslim judge

A similar controversy erupted regarding Minnesota Congressman Keith Ellison’s use of a Quran in 2006. At that time, UCLA law professor and legal analyst Eugene Volokh responded to a CNN panel question about whether the use of religious texts other than the Bible was addressed in extant law, explaining (in a response that has nothing to do with President Obama):

Well [the Constitution] actually does say a couple of things. First, it doesn’t even require congressman to use any religious text or any religious component. It specifically provides that they may affirm, rather than swearing. That was for the benefit of people who have a religious objection to invoking God in an oath.

Quakers were a traditional example. And for example, President Herbert Hoover was sworn in without putting his hand on any book.

It also says no religious text shall be used for government office. And when you’re required to swear on the book of a religion that is different from you, not traditionally you’ve done it, that would be an impermissible religious test.

As for the claim’s veracity, New York State Senator Martin Malave Dilan published the following status update to Facebook on 11 December 2015:

Multiple news sources reported that Walker-Diallo used a Quran as her religious text of choice for her swearing-in (noting the controversy it engendered), and the event was captured on video:

A New York City judge is facing a backlash after taking her oath using the holy book of Islam in recognition of her Muslim faith. Carolyn Walker-Diallo was elected in Brooklyn’s 7th Municipal District and took her oath of office last week using the Quran.

After attenders posted a video of the swearing-in session to social media, conservatives unleashed a storm on insults toward the public servant. “Sickening,” one Facebook user posted in response to the video. “Is this America or the Middle East.” “Another piece of s— Muslim,” another user wrote, “trying to take over this country.”

[Conservatives unleashed? Based on what? Muslims are, by explicit chapters in the Qu’Ran, see posted verses elsewhere on this blog, to place Islam and Sharia law above all others, meaning above the US Constitution and the NYS Constitution. This is Hajiri at its finest!

And, y’all keep wondering why I push secession!]

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December 1, 2014

Witness 10, The Washington Post [see prior comment on the law] Michael Brown/Ferguson MO

Witness 10 proves Darren Wilson had a reasonable belief he needed to shoot Michael Brown
By Paul Cassell December 1 at 2:57 AM

Missouri law allows a person to use deadly force defending himself when he has a “reasonable belief” he needs to use deadly force. The law goes on to define a reasonable belief as one based on “grounds that could lead a reasonable person in the same situation to the same belief.” Unsurprisingly, Officer Darren Wilson testified to the grand jury that he reasonably believed he needed to use deadly force to defend himself against Michael Brown. But the clinching argument on this point is that other reasonable people — i.e., some credible eyewitnesses — agreed with Wilson.

In previous posts, I have discussed how the grand jury process was fair, how Officer Wilson’s testimony covered the bases of Missouri self-defense law, and how the physical evidence bolstered his credibility. In this post, I turn to eyewitness testimony — which the Post has helpfully collected in this story. It would be difficult to discuss in detail the testimony of all of several dozen eyewitnesses. But a defendant raising self-defense need not show that his interpretation was the only one; rather he need only show that it was a reasonable one — i.e., a conclusion a reasonable person could reach based on all the facts.

Against that backdrop, I want to review in detail the testimony of one seemingly reasonable and neutral observer — Witness Number 10. If his objective assessment was that Officer Wilson acted appropriately, that would be strong evidence demonstrating Wilson’s belief was reasonable.

Witness 10 told the grand jury that he was outside while working a job on Canfield Drive when two men (later identified as Mike Brown and Dorion Johnson) walked by him. He then was able to see the events in question with a direct line of sight. Witness 10 saw the struggle in Wilson’s police car — with Brown confronting Wilson inside the car:

I just see Mr. Brown inside the police officer’s window. It appeared as [though] some sort of confrontation was taking place. . . . [T]hat took place for seconds, I’m not sure how long. . . . And one shot, the first shot was let loose and after the first shot, Mike Brown came out of the window and took off running. So my initial thought was that wow, did I just witness this young guy kill a police officer (grand jury testimony, Vol. 6, page 165, line 23, hereafter cited by just page and line number).

Witness 10 elaborated about Brown’s position: “Half of his body, his feet was still planted on the ground, his upper body was inside the window in a leaning motion inside the window, his upper body was inside” (169:21). And while the witness could not hear what was being said inside the car, “it just looked out of the norm with somebody being leaned over inside the police officer’s car” (171:15). Witness 10 then explained that, after the firing of a shot, Michael Brown and his friend took off down Canfield Drive. Officer Wilson remained in his car briefly, and then pursued with his gun drawn — but not firing at Brown (177:15). Eventually Brown stopped.
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According to Witness 10, Brown then turned and ran “full charge” toward Wilson:

He [Mike Brown] stopped. He did turn, he did some sort of body gesture, I’m not sure what it was, but I know it was a body gesture. And I could say for sure he never put his hands up after he did his body gesture, he ran towards the officer full charge. The officer fired several shots at him and to give an estimate, I would say roughly around five to six shots was fired at Mike Brown. Mike Brown was still coming towards the office and at this point I’m thinking, wow, is this officer missing Mike Brown at this close of a range. Mike Brown continuously came forward in the charging motion and at some point, at one point he started to slow down and he came to a stop. And when he stopped, that’s when the officer ceased fire and when he ceased fire[], Mike Brown started to charge once more at him. When he charged once more, the officer returned fire with, I would say, give an estimate of three to four shots. And that’s when Mike Brown finally collapsed . . . . (166:21-167:18).

With regard to the body gesture, Witness 10 explained: “All I know is it was not in a surrendering motion of I’m surrendering, putting my hands up or anything, I’m not sure. If it was like a shoulder shrug or him pulling his pants up, I’m not sure. I really don’t want to speculate [about] things . . . .” (180:5). But “[i]mmediately after he [Brown] did his body gesture, he comes for force, full charge at the officer” (180:16). Ultimately, in the view of Witness 10, the officer’s life was in jeopardy when Brown charged him from close range (206:4).

Under Missouri law, this testimony by itself (even apart from any other evidence) would have provided a sound basis for the grand jury to decline to return any charges against Wilson. A Missouri appellate decision approves the following jury instruction allowing deadly force when supported by a “reasonable belief” in the need to use such force:

In order for a person lawfully to use force in self-defense, he must reasonably believe he is in imminent danger of harm from the other person. He need not be in actual danger but he must have a reasonable belief that he is in such danger. . . . But a person is not permitted to use deadly force, that is, force that he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes he is in imminent danger of death or serious physical injury. And, even then, a person may use deadly force only if he reasonably believes the use of such force is necessary to protect himself.

Of particular importance for this post, Missouri law defines a “reasonable belief” as one that would be held by a reasonable person knowing the same facts:

As used in this instruction, the term “reasonable belief” means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.

Witness 10 was a neutral observer who saw all the same things that Officer Wilson saw (albeit from a safe distance). He concluded that Wilson’s life was in jeopardy. This would seem to be very strong evidence that a reasonable person could reasonably conclude that deadly force was required to protect against 300-pound Mike Brown’s “full on charge.”

Moreover, Witness 10′s version of the facts is quite credible. Witness 10 saw a “confrontation” and Mike Brown’s DNA was later found inside the car. Indeed, witness 10 was afraid that Brown might have killed the police officer inside the car when he heard the firing of a single shot. (The ballistics evidence shows two shots were fired at the car, so that is a point of difference.) Witness 10 then describes Wilson pursuing Brown but not firing any shots along the way. Here again, the ballistics tracks this testimony.

November 26, 2014

The Legalities of Shooting People, by Correia [nc]

http://monsterhunternation.com/2014/11/25/the-legalities-of-shooting-people/

The Legalities of Shooting People

Posted on November 25, 2014 by correia45

I’m writing this blog post because I’ve seen a lot of really ignorant comments from a lot of otherwise intelligent folks about some recent shootings. It is really easy to be swayed by knee jerk emotion, but luckily we live in America, where we have a justice system based on evidence and the rule of law. I’m not going to get into the Brown shooting too much because I wasn’t on the grand jury and haven’t read the evidence presented in that particular case, but I’m going to explain how use of force laws work so I don’t have to keep repeating myself.

This will vary state by state, but these are the fundamentals for most places in the US. There are some legal differences between police and regular folks shooting people, but basically the rules are similar. I’m not an attorney in your state, and this is not meant as legal advice for your state. Again, this isn’t meant as legal advice, rather as a primer to get people to not be so damned ignorant about the fundamentals of how the law works.

And the law usually does work.

I’m going to keep this simple. Before I became a novelist, I was a Utah Concealed Weapons instructor for many years. I’m condensing a few hours of lecture and discussion into one article. Again, this will vary state by state.

First off we must understand some terms.

Lethal Force is exercising an action against someone which may potentially take their life. If you shoot somebody and they don’t die, you still exercised Lethal Force. If you shoot somebody in the leg or arm, legally that is still Lethal Force, and contrary to the movies, you can still die if get shot in the arm or the leg (but we train to shoot for center of mass, more on why later).

Serious Bodily Harm (often called Grievous Bodily Harm) is any injury that is potentially life altering or life threatening. Rape is serious bodily harm. A beating is serious bodily harm. Anything that may render you unconscious is serious bodily harm.

Reasonable Man – I will often refer to this. The question isn’t whether the shooter perceives themselves to be justified, but whether a “reasonable man” would perceive you to be justified. Contrary to popular opinion, you can’t just say “he was coming right at me!” and be justified in shooting somebody. The evidence will be examined and the question will be if you made the assumptions a reasonable man would make, and acted in a manner which seems reasonable based on that evidence. This is where the jury comes in, because they are a group of reasonable people who are going to look at your actions and your situation and make a call. Basically, do your actions make sense to them? Would they believe similar things in the same situation?

To be legally justified in using lethal force against somebody you need to meet the following criteria.

1. They have the Ability to cause you serious bodily harm.

2. They have the Opportunity to cause you serious bodily harm.

3. They are acting in a manner which suggests they are an Immediate Threat of serious bodily harm.

If your encounter fits these three criteria, then you are usually legally justified in using lethal force.

Let’s break each one down a bit.

Ability just means that they have the power to hurt you. A gun or a knife can obviously cause serious bodily harm. However, a person does not need a weapon to seriously hurt you. Any blow to the head sufficient to render you unconscious or cause internal bleeding is sufficient to kill you.

Opportunity means that they can reach you with their ability. A hundred yards away with a gun, they can still hit you, so they have the opportunity. A hundred yards away with a knife, pipe, or chain, and they aren’t a danger to you. However, thirty feet away with a contact weapon is easily within range to cause most people serious bodily harm before they are capable of using a firearm to neutralize the threat. I’ll talk more about distances later.

Immediacy (often called Jeopardy) means that they are acting in a manner that suggests they intend to cause serious bodily harm right now. Somebody can have the ability and opportunity, but if a reasonable person wouldn’t believe that they are acting like a threat, then they aren’t one.

###

Now let’s break this down in more depth.

Under Ability you will see self-defense experts refer to Disparity of Force, this is where there is such a physical disparity between two individuals that Ability is assumed. I’m 6’5, 300, and I’ve rendered people unconscious with my bare hands. If I’m unarmed, but I am attacking an average sized person, and they shoot me, then a reasonable person could assume that there was a disparity of force, and they were justified in shooting me. Usually when a man attacks a woman, or a fit strong young person attacks a frail old person, then disparity of force is assumed.

However, you don’t have to be bigger or stronger (it only helps convince the reasonable people you are justified). Regardless of size, if you knock someone down and are sitting on them and raining blows on their head, then you are demonstrating the ability to cause them serious bodily harm. A small woman could brain a big strong man over the head with a rock and proceed to beat them, thus demonstrating ability.

A person doesn’t need to even demonstrate that he’s got the ability, he just needs to act in a manner that would suggest to a reasonable person that he did. If you tell somebody, “Give me your purse or I’ll shoot you,” but you don’t show them your gun, a reasonable person would assume that you wouldn’t make that threat if you didn’t have the ability. You don’t need to wait to see the muzzle flash to confirm their gun is real. That’s suicidal.

On the distance someone can reasonably be a threat with just a contact weapon, you’d be surprised. It is easy to underestimate how much distance a human being can cover in a very short period of time. During my classes I used a series of role playing scenarios to demonstrate various issues and test the shoot/no shoot decision making process. While playing an aggressor I routinely covered in excess of twenty feet and caused serious bodily harm before most students could even draw their gun, let alone aim.

Gun people have all heard of the Tueller drill, which demonstrated that the average person could cover about 21 feet before the average police officer could draw and fire a shot (and as we’ll see later, one shot doesn’t often mean much, assuming it hits something vital). That’s average. Basically, without going into a whole lot of detail, the reasonable people are usually stunned to learn how much distance can be covered to provide opportunity.

The last one is the most complicated. Say a man with a gun has Ability and Opportunity, but if he is just minding his own business with the gun in the holster, slung, or being carried in a non-threatening manner then he’s not acting as an immediate threat. But if he is acting like he is going to use it or waving it around, now he is acting like an immediate threat. Again, it all comes down to how a reasonable person would perceive it.

This is why it is silly when anti-gun people start ranting about how they’re justified in harming people who are openly carrying firearms on their person. Nope. #3, unless they’re acting in a manner that suggests they’re an immediate threat, then they’re fine. Otherwise it would be legally justifiable to shoot everybody like me that shops at the Xtra Large Casual Male outlet because of disparity of force. You can’t just have Ability or Opportunity, they must be acting in a manner which a reasonable person would take to be a threat.

You’ve got to have all three.

In most states these rules apply to yourself or a third person being the potential recipient of serious bodily harm, however I believe there are still some states where it is only for you, and not a bystander. Some states suck.

You’ll hear people talking (usually ignorantly) about Castle Doctrine or Duty to Retreat. Some states require you to try and flee before exercising Lethal Force, and it allows the prosecution to question your inability to flee. Some states require you to flee your own home. Most states don’t have that.

Not that escaping or avoiding isn’t a great idea if given the opportunity, but it sucks to have a prosecutor second guessing your running ability.

###

Violent encounters are a triangle. There are three aspects to every violent encounter, the legal side (the decisions that keep you out of jail), the tactical side (the decisions that keep you alive), and the moral side (the decisions that let you sleep at night). These don’t always all match up neatly. There are times when you can be totally legally justified but tactically stupid.

Say somebody breaks into your house. Before you’ve even seen them you can make some assumptions, they came into your house while you are home, they probably wouldn’t do that if they didn’t have the ability, now they’ve certainly got the opportunity, and their presence is an immediate threat. So you’re legally justified, however you still need to identify the target before firing to make sure that it is actually a threat, and not some mistaken identity shooting, your drunk teenager, or the neighbors autistic kid.

I worked primarily with regular folks, and a little with the police. Their triangle is different. There are situations where a permit holder might be legally justified in getting involved, but tactically they are probably going to get killed, so their best bet is to run away. In fact, in most scenarios avoidance is the best answer, and in the vast majority of real life violent encounters involving a permit holder, no shots are fired, because simply producing the gun is enough to deter the attacker.

One thing the permit holders I taught needed to get through their heads was that they weren’t cops. Their permit was simply a license to carry a concealed firearm in order to defend themselves from violence. Luckily the vast majority of permit holders get that.

###

Cops on the other hand are expected to respond to violent people and apprehend them. As a result police have what is known as the Use of Force Pyramid. That means that they are to respond with the lowest amount of force necessary to stop any given situation. That is why they are expected to use tasers or pepper spray before they use physical force or guns. Their goal is to stop the situation, and they’ll try to respond with one level more force than the person they’re trying to stop. However, and this is a BIG damned however, just like the rules for regular people above, if they are in immediate danger of serious bodily harm, then they are justified in using lethal force.

Tasers and pepper spray are not magic. Most people’s understanding of these tools comes from TV and TV isn’t reality. Tasers don’t knock you unconscious. They stream electricity through your body which causes your muscles to lock up for a moment, and if the circuit ends (the tiny wires break or the barbs fall out) then you are back to normal and it is game on. (and I’m talking about air tasers, the little stun guns or “drive tasers” are useless toys. They feel like being pinched with a red hot pair of pliers, which sucks, but if you’re tough enough you can play tag with the damned things). Pepper spray hurts and makes it hard to see and breathe, but you can build up a resistance to it (ask anybody in prison) and it can also bounce back on the user. In reality these tools work sometimes and sometimes they don’t. You’ll note that when you see cops dealing with actual violent types and they use the less lethal tools, there is usually cop #2 standing there with a real gun in case Plan A doesn’t work.

Then there is going hands on, “pain compliance techniques” (arm bars, wrist locks, and wrestling until you say enough of this crap and let them put the cuffs on) but like anything in life that requires physical force one human being to another, these things are dangerous too, and bad things might happen. Bones break, arteries are cut off, people get hurt, sometimes they die.

But the cops are going to try to respond to their subject a level above what the subject is using, until they surrender or comply. Which means that if they think you are going to lethal force, they are going to go to lethal force, and the time it takes to switch gears is measured in fractions of a second.

When a cop shoots somebody, depending on the state, it now goes before whatever they use for Reasonable People.

If you try to wrestle away a cop’s gun, that demonstrates Ability, Opportunity, and Immediacy, because right after you get ahold of that firearm, the reasonable assumption is going to be that you’re intending to use it. If you fight a cop, and he thinks you’re going to lethal force, he’s going to repeatedly place bullets into your center of mass until you quit.

Everybody who carries a gun, whether they be police or not, are trained to shoot for the middle of the largest available target, which is normally the center of mass, and to do so repeatedly until the threat stops. Contrary to the movies, pistols aren’t death rays. A pistol bullet simply pokes a hole. Usually when somebody is stopped by being shot it is A. Psychological (as in holy crap! I’m shot! That hurt! I surrender), but if they keep going it is until B. Physiological (as in a drop in blood pressure sufficient for them to cease hostilities) If that hole poked is in a vital organ, then the attacker will stop faster. If it isn’t in a vital organ, they will stop slower. Pistols do not pick people up, nor do they throw people back. Pistol bullets are usually insufficiently powerful to break significant bones.

Shooting people who are actively trying to harm you while under pressure is actually very hard, which is why people often miss. This is why you aim for the biggest available target and continue shooting until they stop doing whatever it is that caused you to shoot them in the first place.

You’ll hear ignorant people say “why didn’t you just shoot them in the arm/leg?” That is foolishness. Legally and tactically, they’re both still lethal force. Only if they bleed to death in a minute because you severed their femoral artery, they’re not any less dead, only they had one more minute to continue trying to murder you. Basically limb hits are difficult to pull off with the added bonus of being terribly unreliable stoppers.

##

In a fatal shooting you’ll often hear someone say “there was only one side to the story told.” That is false

.

In the aftermath of any shooting, whether it is police or the general public, there is going to be an investigation. There will be evidence gathered. There will be witnesses. There will be an autopsy. There is always multiple sides to any shooting, even if it is just the autopsy results.

Contrary to the media narrative, most police officers don’t want to shoot anyone, regardless of their skin color. Those of us who carry guns don’t want to shoot anybody. One big reason is that because after we had to make that awful shoot/no-shoot decision in a terrifying fraction of a second, then hundreds of people are going to spend thousands of man hours gathering evidence, then they are going to argue about our actions, analyze our every move, guess at our thoughts, and debate whether we were reasonable or not, all from the comfort of an air conditioned room, and if they get hungry, they’ll order pizza. When all is said and done, these people will have a million times longer to decide if what you did in those seconds was justified or not. No pressure.

Each state is different, but if there is any question as to the justification of the shooting, there is usually some form of grand jury, and if there is sufficient question or evidence of wrong doing, then the shooter will be indicted.

Now, an argument can be made as to how shootings—especially those committed by law enforcement officers who are expected to exercise a higher standard of care—should be investigated. However, no matter how the shooting is investigated, it should be done through our constitutional protections and our agreed upon legal system. No one should ever be convicted through the court of public opinion or the media.

In ten years of studying violent encounters and learning everything I could about every shooting I could, I never once found a newspaper article that got all the facts right. Usually they weren’t even close. In that same time period I offered free training in Use of Force to reporters or detractors, and never once had any of them take me up on it.

You may believe that grand juries are too soft on police involved shootings. That may be a valid argument. You may believe that prosecutors are too lenient on police officers because they both work for the government and there is an existing relationship between the prosecutors and the police. That may be a valid argument. Burning down Little Ceasers isn’t the answer.

There are stupid cops, and there are cops who make mistakes. As representatives of an extremely powerful state, they should be held to a higher standard. Just because somebody works for the government doesn’t make them infallible, and if they screw up and kill somebody for a stupid reason, they should have the book thrown at them, but damn if it doesn’t help to know what actually happened before you form up your angry lynch mob!

Violent encounters are complex, and the only thing they have in common is that they all suck. Going into any investigation with preconceived notions is foolish. Making decisions as to right or wrong before you’ve seen any of the evidence is asinine. If you are a nationally elected official, like say for example the President of the United States, who repeatedly feels the need to chime in on local crime issues before you know any facts, you are partly to blame for the resulting unrest, and should probably go have a Beer Summit.

You can’t complain about the bias in our justice system against some groups, and how the state unfairly prosecutes some more than others, and then immediately demand doing away with the burden of proof, so the state can more freely prosecute. Blacks are prosecuted more and sentenced more harshly, so your solution is to remove more of the restraints on the state’s prosecutorial powers, and you think that’ll make things better? You want people to be prosecuted based on feelings rather than evidence, and you think that’ll help? The burden of proof exists as a protection for the people from the state. We have a system for a reason. Angry mob rule based on an emotional fact-free version of events isn’t the answer.

So my request is this, at least learn how stuff works before forming a super strong opinion on it.

November 14, 2014

ABA Weekly – Note particularly 2 articles: 2 lawyers stab 2 lawyers, & bar exam scores way down

ABA Journal Weekly Newsletter

ABA Journal Weekly Newsletter Home Topics Magazine Blawgs Stay Connected

The Top Stories of the Week
November 14, 2014

Prominent attorney and wife stabbed in home invasion are identified; lawyer suspects are in custody

Nov 13, 2014, 7:52 am CST
A Message From Abacus Data Systems
12 Proven Ways the Cloud Helps Law Firms Do More With Less

Sep 4, 2014, 4:53 pm CDT
Study of chief legal officers finds more bad news for law firms

Nov 10, 2014, 8:49 am CST
Drop in nationwide bar exam scores is likely due to ‘less able’ test takers, memo says

Nov 11, 2014, 8:11 am CST
Posner researches Chabad online; Bauer explains his ‘religious inclinations’ concurrence

Nov 11, 2014, 5:45 am CST
Would-be condo developer sues residents who spoke out against project at city meeting

Nov 11, 2014, 10:35 am CST
Woman is in hot water over spilled-coffee claim against McDonald’s

Nov 11, 2014, 3:35 pm CST
Lawyer cites high-risk pregnancy in trial delay request; federal judge questions her travel plans

Nov 10, 2014, 7:36 am CST
How to curb the law firm exodus? Study looks at traits of those most likely to leave law practice

Nov 13, 2014, 5:45 am CST
Once described as ‘creepy’ in judge’s opinion, former Sedgwick partner says he’s been vindicated

Nov 10, 2014, 8:52 am CST
It’s unethical for prosecutors to lend out letterhead to debt collectors, ABA opinion says

Nov 12, 2014, 7:02 am CST
SCOTUS overturns ‘perplexing’ appellate decision, rules for cop asserting warrant exception

Nov 10, 2014, 9:55 am CST
Attack ads will target SCOTUS as ‘least accountable’ branch of government

Nov 12, 2014, 9:25 am CST
Unconscious woman with medical insurance is taken to out-of-network hospital, owes $50K

Nov 12, 2014, 5:20 pm CST
Jail escapee eludes detection for 33 years because of typo

September 4, 2014

Who was Antonio West, from Earl, [c]

Th​is happened earlier this year. This would really open up a bucket of worms if I put this in the local paper

Antonio West?

Hello. Don’t recognize me?

That’s OK; I understand.

My name was Antonio West. I was the 13-month old child who was shot in the face at point blank range by two black teens, who were attempting to rob my mother, who was also shot.

I think my murder and my mommy’s wounding made the news for maybe a day, and then disappeared.

A Grand Jury of my mommy’s peers from Brunswick, Georgia ruled the black teens who murdered me will not face the death penalty… Too bad it was me who got the death sentence from my killers instead, because Mommy didn’t have the money they demanded.

See, my family made the mistake of being white in a 73% non-white neighborhood, but my murder wasn’t ruled a ‘hate crime’.

Oh, and President Obama didn’t take a single moment to acknowledge my murder.

He couldn’t have any children who could possibly look like me – so why should he care?

I’m one of the youngest murder victims in our great Nation’s history, but the media didn’t care to cover the story of my being killed in cold blood.

There isn’t a white equivalent of Shithead Sharpton or Jesse Jackasshole Jackson because if there was he would be branded a ‘racist’.

So no one’s rushing to Brunswick to demonstrate and demand ‘justice’ for me. There’s no ‘White Panther’ party, either, to put a bounty on the lives of the two black teens who murdered me.

I have no voice, I have no strident representation, and unlike those who shot me in the face while I sat innocently in my stroller – I no longer have my life.

Isn’t this a great country?

So while you’re out seeking ‘justice for Trayvon Martin and Michael Brown, please remember to seek ‘justice’ for me. Tell your friends about me, tell your families, get tee-shirts with my face on them, and make the world pay attention, just like you did for Trayvon and Michael.

I won’t hold my breath.

I don’t have to anymore!

[17 y/o Demarquis Elkins and a minor, did this. He did not acquire his weapon legally, nor register it, nor get himself a concealed carry license. Add Elkin’s unmarried momma, unmarried auntie, with whom he lived; his baby mommas; and Holder, Perez, Michelle Obama, and King Barry’s spiritual adviser Jeremiah Wright to the list.]

July 3, 2014

The Reality of “Climate Change”

1. For the 2nd time in the last 2 weeks, scientists have measured and recorded the largest amount of Antarctic ice in history. And “yes”, you read correctly, the record has been achieved/broken 2 times in the last 2 weeks!

2. Last year NOAA, one of the “scientific” groups that expounds the “man made climate change” and “CO2” myths, went on record as saying July 2012 was the hottest July on record (if you recall MO was in a drought). This replaced July 1936 as the hottest July on record (July 1936 being smack dab in the middle if the dust bowl). Well over the last 2 weeks NOAA has very “quietly adjusted” the findings and surprise, July 1936 is once again the hottest July on record. Apparently NOAA’s pronouncement in 2013 that July 2012 was the hottest July was based completely on computer modeling and not real data. I gathered from the story that I heard that really the only reason they went back and “re-modeled” the data and “adjusted” the findings is due to a couple of very serious and vigilant watch dog groups. These groups are dedicated to ensuring there is accuracy and transparency w/ respect to the data, findings and stated causation impacts when it comes to the “man made climate change” debate. So they called NOAA out in several articles w/ respect to how they reached their conclusion and NOAA “quietly” “adjusted” the findings.

3. And, again, for those of us who watch “Deadliest Catch”, this is all true as confirmed by the men, and now woman (Mandy Hansen), who fish for crab in The Bering Sea.

July 2, 2014

Precis of SCOTUS NLRB Ruling, read carefully, [c]

U.S. Supreme Court Finds President Obama Lacked the Power to Make Three Recess Appointments to the National Labor Relations Board

This Hot Topic was prepared by the ABA Section of Labor and Employment Law, Practice and Procedure Under the National Labor Relations Act (“NLRA”) Committee, with the assistance of Brian R. Garrison of Faegre Baker Daniels LLP in Indianapolis, Indiana, representing employers in labor and employment matters, and Lisa C. Demidovich of United Nurses Associations of California/Union of Health Care Professionals in San Dimas, California, representing the Union and its represented employees.

On June 26, 2014, the United States Supreme Court decided NLRB v. Noel Canning, holding that President Obama lacked the power to make three of his recess appointments to the National Labor Relations Board (“NLRB”). 573 U.S. ___ (2014). Notably, this is the first time the Supreme Court has interpreted the U.S. Constitution’s Recess Appointments Clause, Art. II, §2, cl. 3. See Slip Op. at 9.
Background

The NLRB is composed of five members and cannot issue decisions or take other actions in the absence of a valid three-member quorum. Over the course of 2011, President Obama nominated three people–Sharon Block, Terence Flynn, and Richard Griffin–to serve as members of the NLRB. Their nominations required Senate confirmation and remained pending through 2011. On December 17, 2011, the Senate adopted a resolution stating that it would take a series of brief recesses beginning the following day. Under that resolution, the Senate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. During each pro forma session, the Senate would be gaveled to order and then immediately adjourned without conducting any actual business.

The Senate held one such pro forma session on January 3, 2012, which was the same day that NLRB Member Craig Becker’s term expired. This left the NLRB with only two confirmed members–Chairman Mark Gaston Pearce and Member Brian Hayes. The next day, President Obama appointed Block, Griffin, and Flynn to the NLRB, using his authority under the Recess Appointments Clause in Article II, section 2 of the U.S. Constitution. This clause provides that the President has the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting commissions which shall expire at the End of their next Session.” The President took the position that the Senate was in “recess” on January 4 within the meaning of the Recess Appointments Clause, so he had the authority to fill the three NLRB vacancies.

On February 8, 2012, after an administrative trial and an appeal to the NLRB, a three-member panel consisting of Members Hayes, Flynn, and Block found that Noel Canning–a bottler and distributor of Pepsi-Cola products based in Washington State–had violated the NLRA by refusing to reduce to writing and execute a collective-bargaining agreement with Teamsters Local 760. The NLRB ordered Noel Canning to execute the agreement and make employees whole for any loss.

Noel Canning petitioned the U.S. Court of Appeals for the District of Columbia Circuit to review the NLRB’s decision. It argued that the NLRB’s order was invalid and unenforceable because the President’s January 4, 2012, appointments were unconstitutional, as they were made during a period when the Senate was not in recess. As a result, Noel Canning submitted that the NLRB did not have a valid quorum of three members when it issued its order. In response, the NLRB argued that the President’s recess appointment power is not so limited as to prevent him from making recess appointments during a recess that is a “break in the Senate’s business when it is otherwise in a continuing session.” Therefore, the NLRB argued that the President’s appointment of the NLRB members was constitutionally valid and the NLRB’s order should be enforced.
The D.C. Circuit’s Decision

On January 25, 2013, a three-member panel of the D.C. Circuit agreed with Noel Canning that the President’s recess appointments were unconstitutional. Writing for the court, Chief Judge David Sentelle found that the appointments fell outside the scope of the Recess Appointments Clause for two reasons. First, the D.C. Circuit unanimously found that the phrase “the Recess of the Senate” does not include “intra-session” recesses–those that occur within a formal session of Congress–and applies only to “inter-session” recesses–those that occur between such sessions when a return date is not set. Therefore, as the Senate was holding pro forma sessions at the time of the President’s January 4, 2012, NLRB appointments, they were not made during an inter-session recess. Second, the D.C. Circuit found, by a 2-1 vote, that the vacancies filled by the President’s recess appointments did not “happen” during “the Recess” as required by the Recess Appointments Clause. As the NLRB vacancies existed at the time the “recess” began and did not arise during the Senate’s recess, the majority concluded that they did not “happen” during the “recess” so could not be filled pursuant to the Recess Appointments Clause. Consequently, the D.C. Circuit concluded that the NLRB lacked a quorum of validly appointed members when it issued its order in the Noel Canning case, so that order was invalid and unenforceable.
Supreme Court Proceedings

On April 25, 2013, the NLRB petitioned the United States Supreme Court for a writ of certiorari. Noel Canning did not oppose certiorari. The Supreme Court granted certiorari on June 24, 2013, and heard oral arguments on January 13, 2014.

The Supreme Court’s Ruling

Justice Breyer delivered the Court’s decision unanimously affirming the D.C. Circuit’s decision that the Recess Appointments Clause does not give the President authority to make the three challenged appointments to the NLRB. NLRB v. Noel Canning, No. 12-1281, Slip Op. at 1 & 41 (U.S. June 26, 2014). The majority opinion, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan, rejected the reasoning of the lower court in its “first time in more than 200 years” call to interpret the Recess Appointments Clause. Id. at 9 & 41. With three of the five NLRB members’ appointments invalidated, the Court found the Board lacked a quorum and set aside its order. Id. at 2-5 & 41. Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, filed a concurring opinion.

The Opinion, rich in historical references, recognized that the issue of first impression has been extensively considered by the Executive Branch as “Presidents have made recess appointments since the beginning of the Republic.” Id. at 8.

The first aspect of the Recess Appointments Clause the Court examined was whether it applied to intra-session recesses in addition to undisputed inter-session recesses and concluded–contrary to the D.C. Circuit–that the Clause applies to both kinds of recess so long as the intra-session recess was for more than ten days. Id. at 1 & 9-21. Historically, “Presidents have made thousands of intra-session recess appointments,” likely because “opinions of Presidential legal advisers . . . are nearly unanimous in determining that the Clause authorizes these [intra-session] appointments.” Id. at 12. While all Justices agreed the President may make recess appointments during any break–“no matter how short”–between sessions, compare id. at 19 with Concurrence Slip Op. at 15 n.4, the majority found that an intra-session recess “of more than 3 days but less than 10 days is presumptively too short to fall within the Clause,” except for “a national catastrophe,” preventing the Senate from reconvening to approve the President’s needed recess appointments to address the emergent situation. Slip Op. at 21.

The Court next examined whether the Clause covered “vacancies that arise prior to a recess but continue to exist during the recess” or whether the power was limited to “vacancies that first come into existence during a recess,” and concluded–again contrary to the D.C. Circuit–that the Clause applies to both kinds of vacancy. Id. at 1-2 & 21-33. Again, relying on history, the Court noted that Presidents, dating back to at least President James Madison and including “every President since James Buchanan,” have made recess appointments to pre-recess vacancies. Id. at 26-29. The Court noted Presidents would not likely abuse this power because of limitations on recess appointments, such as they serve “a limited term” and they may have more difficulty tackling controversial issues without the credibility commensurate with Senate approval. Id. at 25.

The Court’s final consideration was whether pro forma sessions where no business was transacted could be excluded when calculating the length of the recess. It concluded that the pro forma sessions could not be ignored and break up a recess where the Senate “retain[ed] the capacity to transact Senate business,” “received a message from the President,” and actually “passed a bill by unanimous consent during the second pro forma session after its [initial] adjournment.” Slip Op. at 2 & 33-40. Because of the pro forma session every Tuesday and Friday during the recess at issue here, the President’s three NLRB recess appointments occurred during a three-day recess, which is “too short a time to bring a recess within the scope of the Clause.” Id. at 2.

The Concurrence

Concurring in “judgment only,” Justice Scalia criticized the majority opinion for “transform[ing] the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates.” Concurring Op. at 2. Instead, Justice Scalia, just as the D.C. Circuit held, would have limited the Recess Appointments Clause to inter-session recesses and to “offices that become vacant during the intermission.” Id. at 1-2. Justice Scalia concludes his opinion by offering alternative speculations of the import of the majority’s opinion: Either the Senate may seek to “avoid triggering the President’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted” or “[m]embers of the President’s party in Congress may be able to prevent the senate from holding pro forma sessions with the necessary frequency, and if the House and Senate disagree, the President may be able to adjourn both ‘to such Time as he shall think proper.'” Id. at 62 (quoting U.S. Const., Art. II, §3).
Implications

Management Perspective

The Noel Canning decision calls into question every official action taken by the NLRB during the terms of its unconstitutionally appointed Members. This means all the NLRB’s actions between January 4, 2012 and August 2, 2013–which includes issuing over 700 decisions and appointing several Regional Directors–are likely invalid. The NLRB now must revisit and reconsider all the invalid decisions that return to it. It is likely that the parties to many of these cases have already complied with the NLRB’s order or otherwise resolved their disputes, which may render the underlying issues moot. For those cases that have not been resolved and return to the NLRB, the NLRB will have to review each of these cases as new decisions and reissue decisions after this review, just as it did after the Supreme Court’s 2010 New Process Steel decision. As happened after New Process Steel, the NLRB will likely reconsider and reaffirm its decision in most, if not all, of these cases. But that may take substantial time, as many of the invalidated decisions were high-profile cases in which the decisions departed from NLRB precedent and had significant implications for employers. They are much different from the decisions invalidated by New Process Steel, which were issued in cases where a two-member NLRB, with one Democratic Member and one Republican Member, could find consensus. So, while it is unclear what will happen in the decisions invalidated by Noel Canning and in current cases the General Counsel’s office is prosecuting based on those decisions, employers are wise to take guidance from them. On the other hand, the likely invalidation of the NLRB’s Regional Director appointments poses a thornier issue, as its consequences may extend beyond the need to merely revisit cases and reissue decisions. Employers may challenge as invalid a variety of decisions made and actions taken by those Regional Directors since their appointments, such as those related to determining the appropriate bargaining unit, ruling on election objections, and certifying election results in union representation cases.

In conclusion, due to the time necessary for the NLRB to revisit the invalid decisions, Noel Canning will likely bog down the NLRB and inhibit its ability to proceed as planned on the other cases and issues currently before it. This means it will likely take some time before the NLRB takes action on two fronts of significant concern for employers: finalizing new rules to expedite representation election procedures and issuing decisions in cases in which the NLRB has invited amicus briefs (such as Purple Communications, Inc., which addresses employees’ right to use an employer’s email system for activity unrelated to the employee’s business purposes, and Browning-Ferris Industries, which addresses the NLRB’s joint employer standard). Due to Noel Canning and the NLRB’s obligation to continue addressing other pending cases, it may not get around to these two significant issues until after December 16, 2014, when Member Nancy Schiffer’s term ends. That would mean that instead of a Democratic majority, the NLRB would have two Democratic and two Republican members. While lawfully able to operate, the lack of Democratic control would mean uncertainty for the cases and issues pending before the NLRB at that time. And depending on the results of the November 2014 elections, a Republican-controlled Senate may significantly limit the President’s ability to make a recess appointment upon Member Schiffer’s departure. At bottom, during the period while the uncertainty caused by Noel Canning is resolved, employers should work closely with labor counsel when making strategic decisions on how to proceed before the NLRB.

Union Perspective

Subsequent events–namely the Senate rules change to allow for the President’s Executive Branch appointments to be confirmed by a Senate majority and the Senate’s confirmation of the NLRB General Counsel and five board members–have circumscribed the continuing impact and scope of the Court’s holding on NLRB decisions. The greatest effect of the Court’s ruling on labor will be the decisions that were decided by former Members Block, Flynn, and Griffin where the unsuccessful party sought review on the basis that their appointments were invalid, but unions are optimistic that the NLRB–having experience with reconsideration after the Court’s 2010 invalidation of the Agency’s delegation of power to a two-member board in New Process Steel v. NLRB, 560 U.S. 674 (2010)–will handle those pending cases expeditiously and effectively to ensure the NLRA’s purposes are effectuated.

[This is from the ABA LEL section, of which I am a member. Read this carefully, noting the arbitrary 10 rule, and that there are several different opinions involved. Different opinions means that although they all agree on the outcome, they all DISAGREE on WHY. In future rulings, courts and lawyers will point to different opinions, claiming that they were unanimous, which they obviously are NOT. Everyone needs to read this carefully because of the potential impact this case will have in the future. Good outcome, very bad decision making.]

April 23, 2014

the other shoe just dropped, by Simon Black, no comment

The Next Shoe Just Dropped: Court Denies Attorney-Client Privilege
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Submitted by Tyler Durden on 04/19/2014 22:14 -0400

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Submitted by Simon Black via Sovereign Man blog,

In the Land of the Free, people grow up hearing a lot of things about their freedom.

You’re told that you live in the freest country on the planet. You’re told that other nations ‘hate you’ for your freedom.

And you’re told that you have the most open and fair justice system in the world.

This justice system is supposedly founded on bedrock principles– things like a defendant being presumed innocent until proven guilty. The right to due process and an impartial hearing. The right to counsel and attorney-client privilege.

Yet each of these core pillars has been systematically dismantled over the years:

1. So that it can operate with impunity outside of the law, the federal government has set up its own secret FISA courts to rubber stamp NSA surveillance.

According to data obtained by the Electronic Privacy Information Center, of the nearly 34,000 surveillance requests made to FISA courts in the last 35-years, only ELEVEN have been rejected.

Unsurprising given that FISA courts only hear the case from the government’s perspective. It is literally a one-sided argument in FISA courts. Hardly an impartial hearing, no?

2. The concept of ‘innocent until proven guilty’ may officially exist in courts, but administratively it was thrown out long ago.

These days there are hundreds of local, state, and federal agencies that can confiscate your assets, levy your bank account, and freeze you out of your life’s savings. None of this requires a court order.

By the time a case goes to court, you have been deprived of the resources you need to defend yourself. You might technically be presumed innocent, but you have been treated and punished like a criminal from day one.

3. Attorney-Client privilege is a long-standing legal concept which ensures that communication between an attorney and his/her client is completely private.

In Upjohn vs. the United States, the Supreme Court itself upheld attorney-client privilege as necessary “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law. . .”

It doesn’t matter what you’re accused of– theft. treason. triple homicide. With very limited exceptions, an attorney cannot be compelled to testify against a client, nor can their communications be subpoenaed for evidence.

Yet in a United States Tax Court decision announced on Wednesday, the court dismissed attorney client privilege, stating that:

“When a person puts into issue his subjective intent in deciding how to comply with the law, he may forfeit the privilege afforded attorney-client communications.”

In other words, if a person works with legal counsel within the confines of the tax code to legitimately minimize the amount of taxes owed, that communication is no longer protected by attorney-client privilege.

Furthermore, the ruling states that if the individuals do not submit attorney-client documentation as required, then the court would prohibit them from introducing any evidence to demonstrate their innocence.

Unbelievable.

While it’s true that attorney-client privilege has long been assailed in numerous court cases (especially with regards to tax matters), this decision sets the most dangerous precedent yet.

With this ruling, government now has carte blanche to set aside long-standing legal protections and even deny a human being even the chance to defend himself.

Naturally, you won’t hear a word about this in the mainstream media.

But it certainly begs the question, what’s the point of even having a trial? Or a constitution?

When every right and protection you have can be disregarded in their sole discretion, one really has to wonder how anyone can call it a ‘free country’ any more.

August 18, 2013

Mark Levin is part of the problem

Filed under: Political Commentary — Tags: , , , , , , , , — justplainbill @ 7:08 pm

Mark Levin is part of the problem

 

I caught the open audience broadcast of Sean Hannity (Friday, 16 Aug 13 FOXNews) and found myself in the unhappy position of talking back to the TV. First things first, back in 2007, a little recognized, strongly vilified book, The Heartland Plan, was published. Succinctly, it says most of what Levin says in The Liberty Amendments, but covers more and offers more, and in my personal opinion, a much better solution than Levin, Hannity, and other non-hackers (a non-hacker is someone who has never served in the military, it is not a pejorative, simply a blue-collar expression denoting that a set of important and unique personal experiences is lacking in an individual). Their source materials are the same, only the conclusions are different.

 

One of many points missed by Levin & Friends, is that the founders limited the voting franchise to those males who paid taxes, which included free blacks, thus, only about 10% of the population voted. The Heartland Plan predicted Obama-Soetoro and the completion of Roosevelt-Wilson’s post-constitutional America. For those interested, The Just Plain Bill podcast show, archives available at www.blogtalkradio.com/justplainbillshow, used much of the material in The Heartland Plan during its limited lifetime. One of its May 2009 shows is worth listening to several times as it clearly and concisely explains business and business’s place in the economy.

 

In 2013, a follow-up to The Heartland Plan was published. The Albany Plan Re-Visited, available at www.bn.com/ebooks, it projects the devastating effects of the Obama Administration, and offers a viable solution to many of the current problems. One of them is, again Levin & Friends ignore it, that there is no difference between the Democrats and Republicans. The Tea Party does not have a philosophical core as evidenced by their lack of a written charter, and absence of a manifesto. The Albany Plan Re-Visited, includes instructions for a viable third party, Whigs, a reincarnation of the moderate party of the 1840’s & 1850’s, which would actually represent those who pay federal taxes, the states being completely separate, legal entities.

 

The Albany Plan Re-Visited, also explains government on the 10th grade level, not the 4th grade level, so, if you are unaccustomed to reading, you’ll need a dictionary.

 

People like Levin & Friends, would have us go back to 1787 and ignore the advances that we’ve made in sociology, psychology, and political philosophy. The 1787 constitution was being destroyed as early as 1798 with the Supreme Court rulings on The Alien and Sedition Acts. Marshall, with his line of decisions starting with Marbury vs Madison, continued the destruction until Lincoln absolutely destroyed the 1787 constitution with his illegal invasion of a free and independent nation.

 

It’s time to move forward, not backward. Buy, read, and promote, The Albany Plan Re-Visited.

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