Recently in Law & Justice Category

A little over a year ago I wrote about Missouri's tightening pseudoephedrine restrictions and predicted that they would cause all sorts of negative unintended consequences without significantly curbing the production of use of methamphetamine. I was right! Reduced access to pseudoephedrine has caused meth users to move to a new meth production method called shake-and-bake that is much more dangerous.

So-called shake-and-bake meth is produced by combining raw, unstable ingredients in a 2-liter soda bottle. But if the person mixing the noxious brew makes the slightest error, such as removing the cap too soon or accidentally perforating the plastic, the concoction can explode, searing flesh and causing permanent disfigurement, blindness or even death.

An Associated Press survey of key hospitals in the nation's most active meth states showed that up to a third of patients in some burn units were hurt while making meth, and most were uninsured. The average treatment costs $6,000 per day. And the average meth patient's hospital stay costs $130,000 - 60 percent more than other burn patients, according to a study by doctors at a burn center in Kalamazoo, Mich. ...

Larger meth labs have been bursting into flame for years, usually in basements, backyard sheds or other private spaces. But those were fires that people could usually escape. Using the shake-and-bake method, drugmakers typically hold the flammable concoction up close, causing burns from the waist to the face.

Why is this more dangerous method so popular?

Also known as the "one-pot" approach, the method is popular because it uses less pseudoephedrine - a common component in some cold and allergy pills. It also yields meth in minutes rather than hours, and it's cheaper and easier to conceal. Meth cooks can carry all the ingredients in a backpack and mix them in a bathroom stall or the seat of a car.

And the effect on taxpayers? Not only do we need prescriptions for cold medicine, but we're footing the bill for all these burn victims.

Burn experts agree the annual cost to taxpayers is well into the tens if not hundreds of millions of dollars, although it is impossible to determine a more accurate number because so many meth users lie about the cause of their burns.

Maybe it's time to ease up on the pseudoephedrine restrictions.

So organizers of online internet poker are going to jail while the Department of Justice is busy authorizing states to put their lotteries online.

This kind of double-dealing (ha!) is why many people don't respect the law very much. It's sad that our government looks more like a protection racket for favored groups than a protector of liberty and purveyor of justice.

Eugene Volokh argues that in the First Amendment "the press" is the freedom to use a technology, not a freedom only for members of a specific industry.

But other judges and scholars -- including the Citizens United majority and Justice Brennan -- have argued that the "freedom ... of the press" does not protect the press-as-industry, but rather protects everyone's use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters. ...

The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model -- as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.

That is: professional journalists have no more and no less freedom than any of the rest of us.

Never talk to the police without a lawyer.

An innocent man has told of a five-month nightmare which 'destroyed my life' after being wrongly accused of being a serial sex attacker.

William Giraldo was threatened with deportation and thrown in the notorious Rikers Island prison in New York when he was mistaken for the 'Brooklyn Groper'.

He was picked out of a lineup, arraigned on his wedding day and spent a month in jail until DNA evidence cleared him.

Police thought Mr Giraldo was responsible for not only that crime but three other incidents and circulated his picture to the media.

Mr Giraldo handed himself in to clear his name - but got caught up in his own personal hell.

Thinking it would be over quickly, he did not call a lawyer and to his surprise was taken to the special victims unit, which deals with sex crimes, where detectives spent hours questioning him.

Mr Giraldo told the New York Daily News: 'I don't have anything to hide, so why not go over there and clear my name. I told them I have nothing do to with this.

'Detectives were telling me to confess to something I didn't do, saying it would be easier for me, they would reduce my sentence.'

Never talk to the police without a lawyer, even if you're completely innocent or "not a suspect".

More videos on wht not to talk to the police, many including tips from law enforcement officers and legal experts.

(HT: The Agitator.)

Blago sentenced to 14 years in prison.

U.S. District Judge James Zagel handed down the sentence on Wednesday, shortly after Blagojevich made a plea for leniency, following his conviction on 18 corruption counts. ...

At his retrial earlier this year, Blagojevich, 54, was convicted of 17 charges, including allegations he tried to sell or trade an appointment to the U.S. Senate seat once held by President Barack Obama.

Blagojevich is a crook, but I stand by my earlier arguments that non-violet criminals should not be imprisoned.

Perhaps interpretation of the 8th Amendment has eliminated so many other potential punishments that we're forced to use imprisonment for everything, but this need not remain the case. For example, public floggings have a long history of use in every part of the world, and could be performed under proper medical supervision such that no permanent injury would be inflicted. Non-violent offenders could also be subject to terms of indentured servitude, and could thus contribute to society during their punishment.

Prison is extremely expensive, and it is very hard for prisoners to re-enter society after they have served their terms. We could save a lot of money and enhance justice by implementing other forms of punishment.

David Post writes about an atrocious new intellectual property bill that threatens to destroy the internet as we know it as well as eliminate our rights to privacy and due process. It's sponsored by the various media corporations who have been hurt by internet file sharing and the looming death of society's intellectual property regime. Go ahead and read about it... it's pretty absurd.

However, it's hard for me to get worked up over the bill. Why? Because the internet always wins. It won all over the Middle East and North Africa, it's winning in China, it's winning against the Republican political machine, and it will defeat the intellectual property rent-seekers. Any IP that is widely disseminated to the public will not be protected. Deal with it.

And of course it's not going to work. I guarantee that. It's too easy to circumvent -- anyone who understands the technology will agree with that. Sure, it will ensnare many unlawful actors. But at Internet scale, ensnaring some of the bad guys does not and cannot appreciably affect the conduct in question. Think of it this way: If there are 10 bad guys out there, and you've got a way to catch, say, 5 of them, that's usually a pretty good scheme. We'll have 5 fewer bad guys, and who knows, maybe just by probabilistic chance you'll catch all 10; after all, if you're 50 percent likely on average to catch each bad guy, it's unlikely but by no means impossible that you'll get 'em all.

But if there are 10 million bad guys and you get rid of half of them, there are still 5 million bad guys out there. And, with intellectual property, 5 million bad guys can do precisely as much "damage" to your intellectual property as 10 million. If "stamping out copyright infringement" looks like a nightmarish game of whack-a-mole that you can't possibly win -- well, I'm sorry about that, but that's just the way the world is, so get over it. There's more -- much more -- peer-to-peer file-sharing going on today than in the heyday of Napster and Grokster. Deal with it -- not by killing my Internet, thank you very much.

The internet will win. Our modern-day Neanderthals need to adapt.

It's pretty clear that sex-selective abortion is currently Constitutionally protected by Roe v. Wade and subsequent Supreme Court decisions. Abortion supporters need to grapple with the fact that hundreds of millions of babies have been aborted solely because they were girls.

Sex-selection abortion occurs in America, too, and the practice is likely to increase. In August, a study in the Journal of the American Medical Association reported that a simple blood test seven weeks into pregnancy can reliably identify the sex of the child. Watch for a spike in abortion rates over the next few years as parents find it easier and cheaper to "choose" to have a boy by killing the fetus if--in a bitter reversal of an expression of joy--"it's a girl."

The shocking reality of sex-selection abortion cries out for laws banning the practice. Polls have shown that about 95 percent of the American people oppose sex-selection abortion. Even those who style themselves "pro-choice" overwhelmingly agree that abortion should not be allowed when the reason for such a choice is that the child to be born is female. The most pernicious radical feminist argument for abortion rights--that abortion is essential for "gender equality"--doubles back on itself in the case of sex-selection abortion: if abortion on the basis of the sex of the child--killing girls because they are not boys--is not sex discrimination, it is hard to know what is. (Hvistendahl is, awkwardly, pro-choice, yet horrified by the consequences of "unnatural selection.")

Four states--Illinois, Pennsylvania, Oklahoma, and most recently Arizona--have enacted laws prohibiting sex-selection abortion. Those laws have yet to be tested in the courts. At least seven other states have considered bills that would ban the practice. A sex-selection-ban bill was introduced in Congress in 2009--I worked with committee staff on the bill--but it died in the then Democrat-controlled House.

When the Supreme Court visits the issue of sex-selective abortion it could bring down the whole house of cards that began with Roe.

Lots of international busybodies have their panties in a bunch over the summary execution of Muammar Gaddafi, but let's be adults: justice doesn't always require a courtroom.

Libya's rebel army has been accused of executing both Colonel Muammar Gaddafi and his son Mutassim in cold blood as the United Nations suggested their deaths amounted to war crimes.

Human rights groups and Gaddafi's wife Safia called for an independent investigation into the deaths, which robbed victims' families of the chance to see Gaddafi put on trial for his murderous acts.

Both Gaddafi and his son were filmed or photographed alive and relatively uninjured after their capture on Thursday, before both died of multiple gunshot wounds.

Unless there's doubt about the identities of men, there's absolutely no reason that Gaddafi or his sons need to be tried before their are executed. Their evil is well-known, and they reveled in it for decades. If there were trials, everyone knows that the outcomes would be preordained anyway.

Good riddance to some of the most evil people on earth.

As a child I was always told that "ignorance of the law is no excuse" and it wasn't until I grew up that I realized the fundamental offensiveness of such an approach to law. The ancient Common Law principle of mens rea stands in opposition to such tyranny.

Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind is also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged. As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault.

The modern proliferation of laws, rules, and regulations -- often created by bureaucrats and not elected officers -- makes it impossible for people to know the boundaries of legality, thereby putting every person in peril of accidental criminality. Even people who ask government agencies for clarification are out of luck.

It has thus become impossible for an ordinary citizen to know what is legal and what is not. In fact, as anyone who has ever tried to assure his or her legal safety by asking for guidance from the IRS or EPA knows, the agencies themselves don't have a clue, and are prompt to disclaim any immunity to prosecution for actions based upon their own advice.

I've experienced this. When I called the IRS for information about how to fill out a tax form I asked if there would be any record of my call in case I was audited after following their advice. The lady just laughed and informed me that "the IRS told me to do it" is no defense.

Crazy animal hoarder releases dozens of wild animals and then kills himself.

Authorities say that in all, 56 exotic animals escaped from a farm in Muskingum County last night, and one was still missing this afternoon.

Of those animals, 49 were killed. Six animals -- a grizzly bear, three leopards and two monkeys -- were captured alive and taken to the Columbus Zoo and Aquarium, and a monkey and a grey wolf were at large. The animals that were killed included 18 tigers, nine male lions, eight female lions, six black bears, three mountain lions, two grizzly bears, one baboon and two wolves, Sheriff Matt Lutz said.

Ohio apparently has no laws regulating ownership of exotic animals. I think that's good policy... let counties and municipalities regulate animals on their own. In this case, the local authorities probably should have intervened before these animals were released.

The real question in my mind: how could this guy afford to feed almost 50 large carnivores?

Jerry Pournelle muses about the American government's authority to assassinate American citizens.

The obvious question for discussion is whether this activity - summary execution of citizens without trial - is permissible or desirable under Constitutional Government as part of the discretionary war powers of the President, and if so, do they apply within the United States as well as in foreign nations? It is not a simple question. What acts must a citizen perform to earn a place on the proscription list? One of those killed was "Samir Khan, who edited an online magazine that spread the word on ways to carry out attacks inside the United States", but is that the totality of his acts that made him an enemy of the people? (I say enemy of the people, but I don't know what designation is given to people who may be killed on sight without trial.) What agents of the Republic are authorized to carry out the act of proscription?

Could a private citizen who somehow got wind of the fact that a given person was on the list plead that as a defense? I killed him because he is proscribed. You cannot prosecute me. (As we certainly cannot prosecute the members of Seal Team Six for the execution of Osama, although I suspect the government of Pakistan would do just that if they could get custody of the team. As for example, suppose that one of the operators of an armed drone, told to kill a certain American citizen on sight if found in Oman or Pakistan, sees that person coming out of a casino in Las Vegas and takes the opportunity to gun him down. Would that be a valid plea in Nevada? Or suppose he follows this proscribed American to federal property and shoots him the instant he sets foot on federal soil? Improbable, or course. Probably impossible, although it might make for a good novel.

The bolding is mine, and my favorite part.

I think that the "assassinations"/non-judicial killings can be justified as a component of war. If American citizens join an army that fights against America then we can kill them without trial. That's war. Is that a lot of power to entrust to the President? Yes it is. That's why we should be careful about who we elect.

The city of San Juan Capistrano is requiring a home Bible study to get a permit to keep meeting, and fining them meanwhile for their lack thereof.

An Orange County couple has been ordered to stop holding a Bible study in their home on the grounds that the meeting violates a city ordinance as a "church" and not as a private gathering.

Homeowners Chuck and Stephanie Fromm, of San Juan Capistrano, were fined $300 earlier this month for holding what city officials called "a regular gathering of more than three people".

That type of meeting would require a conditional use permit as defined by the city, according to Pacific Justice Institute (PJI), the couple's legal representation.

The Fromms also reportedly face subsequent fines of $500 per meeting for any further "religious gatherings" in their home, according to PJI.

Of course the city's permit requirement and fines are atrocious, unconstitutional, and immoral... but what's the proper Biblical response to such persecution?

1. Civil disobedience. Continue to meet, refuse to pay fines.

2. Legal challenge. Take the city to court and try to use the law against them.

3. Compliance. Get the permit, pay the fines, and keep quiet.

Remind me how many people died in Watergate?

The investigation into Gunwalker continues.

After reiterating that every law enforcement agent that has been asked about Operation Fast and Furious has said that there is no way that it could have been a viable law enforcement operation, I asked Chairman Issa if there was any evidence of another reason for the implementation of Operation Fast and Furious and the other alleged gun-walking operations.

"This was dumb, it was useless, and it was lethal," was the soundbite most of us will take away from the call in answer to that question, but his longer answer -- which I regret I do not have a transcript of -- is far more telling. ...

Issa put it rather bluntly: "The administration wanted to show that guns found in Mexico came from the United States."

He elaborated a bit when he noted that while he wouldn't presume to know the precise goals of Operation Fast and Furious, it certainly did seem to tie in with the narrative the Obama administration was trying to push -- that U.S. guns were turning up at Mexican crime scenes. That allowed, the suggestion hanging in the air was that a goal of the Administration was indeed a "Reichstag fire" designed to support a narrative that has been publicly woven by Attorney General Holder, Secretary of State Clinton, Secretary of Homeland Security Napolitano, and President Obama himself on multiple occasions.

I hope that the truth comes out and that all wrongdoers are brought to justice.

Rock-throwing 16-year-old shot with crossbow.

San Diego police say a 16-year-old boy throwing rocks at a sport utility vehicle was struck by a crossbow arrow fired by a passenger.

Police say the shirtless boy and a friend were throwing rocks at a black Toyota RAV4 in the Linda Vista neighborhood Monday afternoon when a passenger fired a crossbow out the window.

The boy was shot in the right side and was taken to a hospital. The San Diego Union-Tribune says his injuries are not life-threatening.

His name wasn't released.

Nobody has been arrested.

Inference: If the police know he was throwing rocks at an SUV, then they probably know who was in the SUV and who fired the crossbow.

My take: Ok, I'm torn. Rocks are deadly weapons in the right circumstances, and if the person in the SUV felt that his safety was threatened then firing the crossbow at the assailant was completely legitimate. However, if these were normal hand-sized rocks then it's unlikely that they'd be able to endanger people inside an SUV. The SUV owner has a right to protect his property even if his life isn't in danger, especially if he attempted to warn off the attacker before using deadly force against him.

But! Driving away and calling the police would have been the more prudent choice, especially since law enforcement is at likely to come down hard on the victim (Mr. Crossbow) as on the attacker. Mr. Crossbow will probably be sued and will end up with a lot more trouble and expense than he would if he had driven away. That may not be Right, but it's very probable.

It's very risky to use force to protect property if you can't make a credible claim that you were afraid for your life.

I know that hobbit comparisons are supposed to be insulting, but remember that the hobbits win... and if you're against the hobbits then who does that make you? Walter Russell Meade writes that after decades spent mocking him the Left is just beginning to realize that Clarence Thomas is approaching their Mount Doom.

There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm. Twenty years of married life have not erased the conventional liberal view of his character etched by Anita Hill's testimony at his confirmation hearings. Not only does the liberal mind perceive him as a disgusting lump of ungoverned sexual impulse; he is seen as an intellectual cipher. Thomas' silence during oral argument before the Supreme Court is taken as obvious evidence that he has nothing to say and is perhaps a bit intimidated by the verbal fireworks exchanged by the high profile lawyers and his more, ahem, 'qualified' colleagues.

At most liberals have long seen Thomas as the Sancho Panza to Justice Antonio Scalia's Don Quixote, Tonto to his Lone Ranger. No, says Toobin: the intellectual influence runs the other way. Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas' tracks.

If Toobin's revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.

The Daily Mail always has some of the best UK coverage, and I especially like the huge, high resolution images they embed in their stories. Here's their coverage of last night's rioting in London. Is the UK a third-world country now?

The army of police officers on-duty in London will swell to 16,000 tonight - compared with just 6,000 last night - as reinforcements are drafted in from 26 forces across the country.

Today huge swathes of the capital woke up to the charred debris of burned out buildings and streets littered with waste. David Cameron has recalled Parliament for the day on Thursday as he pledged to bring the situation under control. ...

After cutting short his Tuscany holiday to deal with the worsening public disorder crisis, Mr Cameron said today: 'We will do everything necessary to restore order to Britain's streets and to make them safe for the law-abiding.

'Let me, first of all, completely condemn the scenes that we have seen on our television screens and people have witnessed in their communities.

'These are sickening scenes - scenes of people looting, vandalising, thieving, robbing, scenes of people attacking police officers and even attacking fire crews as they're trying to put out fires. This is criminality, pure and simple, and it has to be confronted and defeated.

'I feel huge sympathy for the families who've suffered, innocent people who've been burned out of their houses and to businesses who have seen their premises smashed, their products looted and their livelihoods potentially ruined.

'I also feel for all those who live in fear because of these appalling scenes that we've seen on the streets of our country. People should be in no doubt that we are on the side of the law- abiding - law-abiding people who are appalled by what has happened in their own communities.

'I am determined, the Government is determined that justice will be done and these people will see the consequences of their actions.'

More embarrassing than a credit downgrade?

Forget the actual topic under discussion -- whether or not Amazon should be forced to collect sales tax -- and look at the mental processes at work inside the mind of a tax lawyer. It's no wonder our tax laws are so Byzantine.

You have to look to the nature of the link or connection between the state and the transaction. That link shouldn't be limited to physical presence any more than it should be expanded to include merely having an online presence.

One factor to consider is the solicitation of orders. Targeted advertising inside a state, including TV, radio and print ads, may not by itself be determinative but is a piece of a bigger picture. Also important are local agents and affiliates. Despite arguments from Amazon, I think states like New York and California are getting it right when considering locations of affiliates.

How and where orders are processed also matters. The location of warehouses, telephone operators and return centers should be part of the equation.

Finally, I think that you have to look to whether the retailer gets anything in return. What kinds of services and protections are being offered to the retailer inside the state? Does the retailer benefit from access to state courts, police protection and transportation systems?

There's not an easy answer to many of these questions. But then, when it comes to tax, you wouldn't expect anything different.

Do I "expect anything different" from a tax lawyer? No. But maybe that's a flaw with tax lawyers and not a problem inherent with collecting revenue for operating the government.

I can't help but think that many of those Norwegian kids would have lived if there had been a few responsible gun-carrying adults on the island. Unfortunately Norway doesn't allow the carrying of concealed weapons.

To own a gun in Norway, one must document a use for the gun. By far, the most common grounds for civilian ownership are hunting and sports shooting, in that order. Other needs can include special guard duties or self defence, but the first is rare unless the person shows identification confirming that he or she is a trained guard or member of a law-enforcement agency and the second is practically never accepted as a reason for gun ownership. ...

There is no apparent public desire to introduce a concealed carry permit at this point in time, and there is no such license available to civilians.

I bet that Anders Behring Breivik was the only person with a gun on the island, and wasn't too interested in obeying any laws.

(HT: The Truth About Guns.)

Monkey "borrows" photographer's camera and takes pictures.

After three days of hanging out with some crested black macaques in Indonesia, photographer David Slater walked away from his camera tripod for a minute and one of the monkeys started playing around with the equipment. Eventually he hit the button, and the monkeys all enjoyed the noise so much that he kept hitting it. Slater said the monkey had taken "hundreds" of pictures by the time he got his camera back. Probably most were no good (neither are most of mine), but there were also some utterly hilarious self-portraits like this one. ...

A monkey takes an image ...
....but gets no credit?
... but a human takes the credit. How does that work?

Don't worry, there's a lengthy legal analysis in a later post at Lowering the Bar.

(HT: The Legal Satyricon.)

What is "the rule of law"? Megan McArdle has a concise definition:

The rule of law is not where you have trials; the rule of law is where the government cannot use prosecution to eliminate alternative centers of power, because there's no way for the government to get a conviction.