April 22, 2014
In other news, if you’re in or around Albany on May 5, you should probably attend this event.
New York State Prisoner Justice Network

In other news, if you’re in or around Albany on May 5, you should probably attend this event.

New York State Prisoner Justice Network

April 22, 2014
Newspaper Article Accidentally Sums Up The Marijuana Legalization Debate

A newspaper in Ohio tried to create a forum for opposing viewpoints on marijuana legalization.  Un(?)fortunately, they were unable to find a writer that was willing to take the anti-legalization viewpoint:

Priceless.

April 22, 2014
"Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving."

Justice Scalia, dissenting in Navarette v. California, released today.  The Court decided 5-4 that an anonymous tip from a 911 caller accusing a motorist of reckless driving, without more, provides police with reasonable suspicion to conduct a traffic stop and detain the motorist.  This is a departure from the general rule that anonymous tips must be corroborated by extrinsic evidence or other “indicia of reliability” in order to provide a basis for reasonable suspicion.

April 21, 2014

Why You Need To Pay Attention To Gary Johnson’s Lawsuit To Fix Presidenial Elections In America

Gary Johnson has released an ad for his “Our America Initiative,” which is asking for crowd-sourced donations to his lawsuit to sue the Commission on Presidential Debates (CPD), a private organization created by both the Democratic and Republican Parties which controls access to the Presidential debates.

The Issue

The Democratic and Republican parties have secured a monopoly on access to Presidential Debates by working with institutionalized media to create a system that blocks candidates from other parties from entering the debates.  Eric W. Dolan summed up the details during the 2012 debates:

The debate rules specify that to be included, candidates must receive at least 15 percent in a major poll. Most major polls do not even list [third party candidates] as an option. Televised presidential debates date back to 1960, and have been a regular event since the 1976 election. Originally administered by the League of Women Voters, they’ve been jointly organized by the Democratic and Republican parties through the Commission on Presidential Debates—a group the two parties jointly formed—since 1987.

In other words, the CPD has created a shell game.  In order to have access to the Presidential Debates, you need at least 15% approval rating in a major national poll.  But most major national polls do not list third party candidates as an option, making it de facto impossible for most third party candidates to enter the debates.

What The Lawsuit Would Achieve

Gary Johnson’s lawsuit would ask the court to order the CPD to allow any candidate access to the Presidential Debates who is listed in enough states to garner at least 50% of the electoral college votes.  This requirement would give third party candidates access to the debates, while ensuring that only serious candidates were allowed in.

Why It Matters

Access to the debates is not simply a token gift to third parties to make them feel better.  As recent lawsuits over campaign finance laws indicate (i.e. Citizens United McCutcheon), access to mass media is a very big deal.  When third parties are denied access to the debates, large swathes of voters are not given an opportunity to compare the ideas of the candidates in real time.  

The forum of the Presidential Debate itself also grants an air of legitimacy to the candidates.  Candidates who are denied access to the debates are both literally and figuratively shoved into the unwilling role of “outsiders,” which makes many voters afraid to commit to them for fear of wasting their vote.  The CPD and institutionalized media have thus created a system that effectively prevents third party candidates from achieving legitimacy in America’s 2-party system.

If Gary Johnson’s lawsuit is successful, third party candidates would have real access to the Presidential Debates, and would have an opportunity to bring their message to the largest national media platform during election season.  Third party candidates would finally have an opportunity to bring their message to large swathes of voters on a platform which has historically been denied to them.  In the process, they would be given an opportunity to change voter’s minds at the time when it matters most.

April 20, 2014
Craigslister seeks woman to sit in bathtub full of ramen noodles

Today in news about things, we have this completely ordinary Craigslist ad from a totally normal dude that is looking for a woman whose willing to put on a bathing suit and sit in a bathtub full of ramen noodles for 30 minutes in exchange for $175.

Don’t worry, he won’t be home at the time.  And it’s just ramen noodles.  Don’t make it weird.

April 18, 2014

893thecurrent:

St. Vincent at the State Theatre in Minneapolis. Photos by Nate Ryan. See more.

LTMC: Annie Clark is amazing.  She blows me away every time she picks up an instrument.  The hook from Bring Me Your Loves off her new album is revolutionary.  Blew my mind the first time I heard it.  I love this woman and all that she does.

You may now return to your scheduled program.

April 17, 2014
Astronomers spot most Earth-like planet yet

From the article:

So it’s only 3,000,000,000,000,000 miles away.  No big deal.

April 17, 2014
An orangutan recovers at the Sumatran Orangutan Conservation Center in Indonesia on Wednesday, April 16, 2014 after being injured by poachers.
Photo via NBC

An orangutan recovers at the Sumatran Orangutan Conservation Center in Indonesia on Wednesday, April 16, 2014 after being injured by poachers.

Photo via NBC

7:22pm  |   URL: http://tmblr.co/ZMMjnx1DLXiRc
  
Filed under: animals pics 
April 17, 2014
Exclusive: Does Cliven Bundy Have Something Called “Prescriptive Rights”, Why The BLM May Be Afraid To Go To Court

So this is probably the sanest take on the Cliven Bundy/BLM conflict that I’ve seen so far.  From the article:

what exactly are prescriptive rights? Prescriptive right to property is an easement that gives some one the right to use land owned by someone else for a particular purpose. An example is using a path through Party A’s land to get to your land, a prescriptive easement is allowed which gives the user the right to get to his land through A’s property.

In most states, if a trespass or use of land occurs regularly for at least 5 years without the “owner” of the land taking legal action, prescriptive rights come into play. Because Bundy stopped paying his grazing fees to the BLM in 1993 but continued to use the land for over 20 years, it is possible he now has prescriptive rights to the land. That might explain why the BLM has not taken this issue to court and never bothered to file a lien against the cattle.

Granted, there have been court actions over the years. In 1998 a federal judge issued a permanent injunction against Bundy, ordering him to remove his cattle from the federal lands. He lost an appeal to the San Francisco 9th Circuit Court of Appeals. Yet, the “trespass cattle” remained on the BLM land. In fact, it took until August of 2013 for a court order to be issued saying Bundy had 45 days to remove his cattle from federal land. 15 years went by from the time of the last court case over the cattle until the BLM attempted to remove the livestock.

Of course, Bundy has not made the claim that he will not pay the fees, he simply says he will not pay those fees to the BLM because he doesn’t recognize federal authority over the land. Bundy has said that in the past, that he would pay fees to Clarke County, Nevada, though Clarke County has refused to accept them. The BLM has insisted that Bundy owes $1.1 million dollars in grazing fees for his trespass cattle.

I haven’t seen the court documents, so I can’t make any definitive conclusions about Bundy’s legal position.  But if I was to judge based on this summary of the facts alone, I think that legally speaking, Cliven is boned.  I don’t see how a claim for a prescriptive easement would defeat a permanent injunction.  Since it was permanent, that means he continued to stand in violation of it in August 2013, when the court issued a new order for Bundy to vacate his cattle from the land.  Walter Olson, a conservative lawyer who runs Overlawyered, seems to agree:

It has been objected that ownership of vast tracts of the American West by the federal Bureau of Land Management is a very bad idea, might have appalled many Framers and early legislators, and has been advanced into our own era through aggressive policies to curtail the participation of private users. I’m having trouble seeing the relevance of all this, however, to Bundy’s supposed right to defy multiple court orders. The federal government should not be in many different lines of business that it currently is in, but that doesn’t create a right of individual citizens to occupy federal installations for personal economic benefit despite court orders directed against them to the contrary.

John Hinderaker, who is sympathetic to Bundy, nonetheless makes a similar point:

[I]t must be admitted that legally, Bundy doesn’t have a leg to stand on. The Bureau of Land Management has been charging him grazing fees since the early 1990s, which he has refused to pay. Further, BLM has issued orders limiting the area on which Bundy’s cows can graze and the number that can graze, and Bundy has ignored those directives. As a result, BLM has sued Bundy twice in federal court, and won both cases. In the second, more recent action, Bundy’s defense is that the federal government doesn’t own the land in question and therefore has no authority to regulate grazing. That simply isn’t right; the land, like most of Nevada, is federally owned. Bundy is representing himself, of necessity: no lawyer could make that argument.

Cliven Bundy is in criminal contempt of multiple court orders.  That means that even if he pursues a claim for a prescriptive easement, he’d probably lose due to unclean hands.

Another issue is that, as Ben Swann notes above, Bundy’s claim isn’t that he doesn’t owe the grazing fees, but simply that he doesn’t owe them to the federal government.  He’ll pay to the county, but not the BLM.  Swann suggests that this might be a reasonable resolution:

When Devlin reached out to the BLM, he suggested that the federal agency just allow Bundy to pay the fees to the county rather than continuing with these aggressive tactics to confiscate his cattle.

“Why don’t you just let him pay them there (Clarke County)? I got a call back from the liaison saying ‘Yes, pursue it.’”Devlin reached out to contacts in Nevada to get that process moving forward. If that were to happen, Clarke County could collect the grazing fees and if it desired to do so could hand those fees over to the BLM.

But there’s a couple problems with this.  First, the fact that Bundy thinks he owes money to the county rather than the federal government places him in a tough legal position.  In court, this would function as an admission that he wasn’t the true owner of the land, which would then mean that only issue for the court to decide is whom Bundy’s grazing fees were owed to.  Since the Ninth Circuit has already decided against Bundy twice, I imagine a new court would also resolve this decision in favor of the BLM.

Second, it seems unlikely that Bundy would even agree to this arrangement if he knew the County was simply acting as a middle man for the BLM.  Bundy’s claim is that the federal government doesn’t own the land, and hence the BLM has no jurisdiction.  If he knew the county was just funneling his grazing fees to the BLM, that would seem to defeat the purpose of Bundy’s resistance to paying grazing fees to the BLM.

With all that being said, it seems like the BLM really wants to avoid an armed conflict with Bundy and his supporters.  Swann notes that the BLM is now considering placing a lien on the cattle.  This probably wouldn’t do anything to change Bundy’s position in the near term, but it would make BLM a creditor of Bundy’s estate when he dies, meaning that they could ask a Nevada probate court to order the unpaid fees to be paid out of Bundy’s probate estate.  That would probably be the most peaceful resolution to this issue, since Bundy’s primary concern seems to be with immediate possession of the land, and the BLM simply wants to obtain its grazing fees.

April 16, 2014
portiaofourchambers:

via.
This is a pretty helpful infographic, but like most “know your rights” information out there, it raises more questions than it answers.  
Generally speaking, I tell clients, friends and family that in a police encounter the best thing to do is be respectful and truthful. If you don’t feel like you can tell the truth without getting into trouble or arousing further suspicion, ask if you are free to leave, and if you are told you are not free to leave, inform the officer that you will not be answering any more questions until you have spoken with an attorney.  Then just stand your ground, continue to be respectful and polite but don’t say anything more.
"I’m sorry, officer, I don’t consent to searches," is a great phrase to have in your back pocket.  And you guys — don’t consent to searches.  Even if you believe you have nothing to hide.

LTMC: I like to tell people that it’s not their job to help the Government prove them guilty of anything.  Never consent to searches.  Always say “no” when they ask you if you know why they pulled you over, even if you think you do (you’re not in the officer’s head, and they may have pulled you over for a different reason.  Don’t accidentally implicate yourself to another crime!).  
Never give them more information than they ask for.  Keep your answers as brief as possible.  Even if you think you have nothing to hide, you’d be surprised how often people are breaking the law without even realizing it.  Giving elaborate answers may inadvertently provide police probable cause to search you or your vehicle.
They can ask you for your driver’s license and registration, and in New York, they can ask you to take a breathalyzer (you technically can refuse, but if you do, it’s an automatic license revocation).  Police can also order you to step out of your vehicle.  Even if they start to search you or your car illegally, let them do it.  Don’t be a martyr.  You’ll just get yourself into more trouble.  It’s not fair, but it’s reality.  Remember, they have a gun.  And they’re far more concerned about their own safety than yours.  Challenge it in court, not on the sidewalk.
With that being said, I’m in the process of writing an article premised on the idea that no attorney should advise a client to voluntarily speak to the police under any circumstances—even if they witness or are a victim of criminal activity*—because anecdotal evidence suggests it will always be against their penal interest to do so, absent structural reforms in the law.
People do dumb and/or weird things when they’re in stressful situations.  They say things they don’t mean.  They utter sentences that come out wrong.  They misspeak.  They remember things wrong.  They give vague answers that can be interpreted in multiple ways.  This creates a high risk of accidentally implicating yourself in a crime.  It’s even higher when you’re being detained.  
Other times, people simply react as one would expect, and they end up paying for it. Like Kenny Dixon, who discovered his stepson’s dead body in his garage after the latter committed suicide.  A police officer at the scene grabbed Dixon’s arm and tried to push him away from his stepson’s body.  Dixon, who was understandably inconsolable, asked the officer not to touch him.  Dixon was tackled, punched, and beaten by several officers at the scene, then arrested and charged a felony.  Thank goodness the police were there to help the victim’s family cope with their grief!
So yes, don’t talk to the police unless you have to.  If you’re being detained, don’t consent to searches, always answer “no” when asked if you know why you’re being detained, and don’t give them more information than they ask for.  Even fi you think you’re helping your case, it’s far more likely that you aren’t.

*(excepting mandatory reporting laws, of course)

portiaofourchambers:

via.

This is a pretty helpful infographic, but like most “know your rights” information out there, it raises more questions than it answers.  

Generally speaking, I tell clients, friends and family that in a police encounter the best thing to do is be respectful and truthful. If you don’t feel like you can tell the truth without getting into trouble or arousing further suspicion, ask if you are free to leave, and if you are told you are not free to leave, inform the officer that you will not be answering any more questions until you have spoken with an attorney.  Then just stand your ground, continue to be respectful and polite but don’t say anything more.

"I’m sorry, officer, I don’t consent to searches," is a great phrase to have in your back pocket.  And you guys — don’t consent to searches.  Even if you believe you have nothing to hide.

LTMC: I like to tell people that it’s not their job to help the Government prove them guilty of anything.  Never consent to searches.  Always say “no” when they ask you if you know why they pulled you over, even if you think you do (you’re not in the officer’s head, and they may have pulled you over for a different reason.  Don’t accidentally implicate yourself to another crime!).  

Never give them more information than they ask for.  Keep your answers as brief as possible.  Even if you think you have nothing to hide, you’d be surprised how often people are breaking the law without even realizing it.  Giving elaborate answers may inadvertently provide police probable cause to search you or your vehicle.

They can ask you for your driver’s license and registration, and in New York, they can ask you to take a breathalyzer (you technically can refuse, but if you do, it’s an automatic license revocation).  Police can also order you to step out of your vehicle.  Even if they start to search you or your car illegally, let them do it.  Don’t be a martyr.  You’ll just get yourself into more trouble.  It’s not fair, but it’s reality.  Remember, they have a gun.  And they’re far more concerned about their own safety than yours.  Challenge it in court, not on the sidewalk.

With that being said, I’m in the process of writing an article premised on the idea that no attorney should advise a client to voluntarily speak to the police under any circumstances—even if they witness or are a victim of criminal activity*—because anecdotal evidence suggests it will always be against their penal interest to do so, absent structural reforms in the law.

People do dumb and/or weird things when they’re in stressful situations.  They say things they don’t mean.  They utter sentences that come out wrong.  They misspeak.  They remember things wrong.  They give vague answers that can be interpreted in multiple ways.  This creates a high risk of accidentally implicating yourself in a crime.  It’s even higher when you’re being detained.  

Other times, people simply react as one would expect, and they end up paying for it. Like Kenny Dixon, who discovered his stepson’s dead body in his garage after the latter committed suicide.  A police officer at the scene grabbed Dixon’s arm and tried to push him away from his stepson’s body.  Dixon, who was understandably inconsolable, asked the officer not to touch him.  Dixon was tackled, punched, and beaten by several officers at the scene, then arrested and charged a felony.  Thank goodness the police were there to help the victim’s family cope with their grief!

So yes, don’t talk to the police unless you have to.  If you’re being detained, don’t consent to searches, always answer “no” when asked if you know why you’re being detained, and don’t give them more information than they ask for.  Even fi you think you’re helping your case, it’s far more likely that you aren’t.

*(excepting mandatory reporting laws, of course)

Liked posts on Tumblr: More liked posts »