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)

April 16, 2014
US elections are rigged. But Canada knows how to fix them.

From the article:

So is it possible to end gerrymandering? Well, the country just north of us managed to pull it off. “Canadian reapportionment was highly partisan from the beginning until the 1960s,” writes Charles Paul Hoffman in the Manitoba Law Journal. This “led to frequent denunciations by the media and opposition parties. Every ten years, editorial writers would condemn the crass gerrymanders that had resulted.” Sound familiar?

Eventually, in 1955, one province — Manitoba — decided to experiment, and handed over the redistricting process to an independent commission. Its members were the province’s chief justice, its chief electoral officer, and the University of Manitoba president. The new policy became popular, and within a decade, it was backed by both major national parties, and signed into law.

Independent commissions now handle the redistricting in every province.  "Today, most Canadian ridings [districts] are simple and uncontroversial, chunky and geometric, and usually conform to the vague borders of some existing geographic / civic region knowable to the average citizen who lives there," writes JJ McCullough. “Of the many matters Canadians have cause to grieve their government for, corrupt redistricting is not one of them.” Hoffman concurs, writing, “The commissions have been largely successful since their implementation.”

April 15, 2014
Former police officer pleads guilty to faking DUI reports, collecting overtime

LTMC: emphasis mine.  This is what happens when you give financial incentives to police departments to “make” crime.  Corruption inevitably follows.

(Source: generalinjusticeblog)

7:39pm  |   URL: http://tmblr.co/ZMMjnx1D9XF5B
  
Filed under: politics police dui dwi 
April 15, 2014

Late Night Music: Rose Cousins, This Light

Lyrics 

You in this light
I give up my fight
In the deepest of the night
I give up my fight

I wanted to say
That though time gets in the way
I want you to stay
I want to stay

Here in this dark
We have made a spark
It has made a mark
Oh my heart

3:46am  |   URL: http://tmblr.co/ZMMjnx1D5f7c3
  
Filed under: late night music 
April 12, 2014
How Lending A Friend Your Car, Then Going to Bed Can Land You a Life Prison Sentence

From the article:

Several years ago I read a piece in The New York Times by Adam Liptak about Ryan Holle. Ryan, who had no prior record, is serving a life sentence with no chance of parole in Florida. He was convicted of pre-meditated murder, even though no one, including the prosecutor, disputes that Ryan was asleep in his bed at home at the time of the crime. This could only happen in America, because we are the only country that retains the Felony Murder Rule. What the Felony Murder Rule essentially says is if anyone has anything to do with a felony in which a murder takes place, such as a robbery, that person is as guilty as the person who has committed the murder. Every other country including England, India and Canada has gotten rid of it because of its unintended consequences. In America, Michigan, Kentucky and Hawaii no longer have the law. The Canadian Supreme Court ruled, when they discarded the Felony Murder Rule, that a person should be held responsible for his own actions not the actions of others. 

Read more

April 11, 2014
When Judges Attack: Prosecutorial Smackdown Edition

An Assistant District Attorney in the Bronx was recently destroyed in open court by a Bronx Criminal Court Judge.  The judge was livid about the D.A.’s failure to turn over exculpatory evidence to the Defense during a rape trial.  The Defendant spent eight months in prison awaiting trial, and the evidence wasn’t disclosed until the end of the trial, after closing arguments.  The judge took the rare step of barring the prosecutor from ever appearing in his courtroom again.  The transcript of the hearing is epic, to say the least:

The Court: I think I’ve heard enough. You can stay standing. 

I was admitted to the bar in April of 1987, and I was, at the time, an Assistant District Attorney in the Bronx DA’s Office.  I’ve always been very proud of that association, until today.  I also served as a defense lawyer and 18B counsel.  I’ve tried homicides; I have tried child molestation cases; and I have tried drug sale cases.

I have now been on this bench nine years and three months.  In all that time, as a prosecutor, as a defense lawyer, as judge, I have never once seen a Brady violation as egregious as this.

To my mind, this is an utter and complete disgrace, not just for you, but for your office in general.  Disgrace.

The excuse you offer, passing the file back and forth, no one looking and no one knowing what anything is, saddens me on one level and makes me sick on another.

For my own peace of mind, I absolutely refuse to believe that you did this on purpose.  However, it is gross negligence on your part to have not found this information, and turned it over to Defense, and for your supervisor to find it and turn it over right after Defense summations.  I emphasize those words: Gross negligence.

I recall the Defense asking before the trial started for any notes that the People had in their possession, and you blithely said, “No, we don’t have any notes.”  It turned out, unfortunately, to be a lie.  Your actions bring disgrace to both your office and to yourself.

But what really concerns me more than anything else is: Where is the justice for your complaining witness?  Where is her justice?  She had the right to have this case heard by a jury and have that jury decide whether or not they believed her allegations.  She’s lost her chance at that justice due to your conduct.

What about [the Defendant’s] justice?  The Defendant had a right to have a jury decide whether or not they believed those allegations.  Where is his justice waiting for his trial?  You have failed on so many levels, on so many levels.

Here are your sanctions:  You’re going to leave this room, and you’re never going to come back.  You can’t appear before me anymore.  I’ll tell you why, because I cannot trust anything you say or do.  I can’t believe you.  I can’t believe your credibility anymore.  The only thing a lawyer has has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this Court.

Step out.

March 31, 2014
Judge said du Pont heir 'will not fare well' in prison

kohenari:

A Superior Court judge who sentenced a wealthy du Pont heir to probation for raping his 3-year-old daughter noted in her order that he “will not fare well” in prison and needed treatment instead of time behind bars, court records show.

Judge Jan Jurden’s sentencing order for Robert H. Richards IV suggested that she considered unique circumstances when deciding his punishment for fourth-degree rape. Her observation that prison life would adversely affect Richards was a rare and puzzling rationale, several criminal justice authorities in Delaware said. Some also said her view that treatment was a better idea than prison is a justification typically used when sentencing drug addicts, not child rapists.

A lot of people are furious about the sentence handed down in this case, not to mention the language used to justify it. And I understand their shock and their outrage. But I don’t share it.

As someone who advocates for a more restorative approach to justice, it seems to me that a prison sentence in this case isn’t accomplishing anything other than punishment. And, given the details of the offense, the judge is almost certainly right that the offender would not fare well in prison. He’d likely be savagely beaten, raped, murdered … or all of the above. He might be put in protective custody in prison, but that would mean solitary confinement all day every day for the duration of his sentence which is, I think, a form of torture.

Of course, this is precisely what some people want: Offenders ought to be made to suffer in prison. The virtue of that suffering is the suffering itself; we are outraged by the offense and we want to pay back the offender in kind. That, for a great many people, is the whole point of prison. It’s why people complain about anything from prisoners’ access to educational opportunities, to television privileges, and to three square meals a day. If you’re watching tv or taking a correspondence course, you’re obviously not suffering enough for the offense that landed you in prison.

For my part, I think we’d do better to think about steps we can take to right the wrong that occurred and to ensure that it isn’t repeated. Of course, it’s clear that society needs to be protected from dangerous offenders and so, in some cases, probation would be completely inappropriate; this doesn’t appear to be one of those cases. But in case my reading of the situation is incorrect and this offender presents a potentially ongoing danger, the judge has mandated treatment (both inpatient and then outpatient) and has ordered the offender to stay away from children. Failure to comply will surely result in a prison sentence.

What remains, then, is an attempt to right the wrong or respond to the harm that has been done. In cases where an offender is sentenced to prison, the public feels that justice has been done and we can all move forward. But there’s absolutely no line drawn for us between a prison sentence for the offender and righting the wrong experienced by the victim … because there really isn’t any immediate connection between those two things and because we don’t spend a whole lot of time considering the needs of victims.

Restorative justice isn’t about leniency for offenders; it’s about discovering and attempting to meet the needs of victims while encouraging offender accountability. It’s just not clear that lengthy prison sentences under the worst possible conditions accomplishes either of those things.

I completely understand the gut feeling that something terrible ought to happen to a person who harms a child; as a father myself, I’m disgusted and outraged by this man and what he did to his children. But that doesn’t mean we ought to turn that feeling into policy, especially if doing so accomplishes nothing more than making the public feel good about getting vengeance. Taking out our collective wrath on offenders doesn’t necessarily do anything to help their victims, nor does it automatically lead to offender accountability. Working to accomplish those things, rather than to sate our desire for vengeance, would likely result in a radical change in the way we think about justice and punishment, and the way we respond to crime.

LTMC: With stories like this, I find that people often have difficulty separating two issues: inequality of outcomes versus the qualitative justice of each outcome.  

It is unjust that poor sex offenders typically get thrown to the wolves in prison, while a rich sex offender is given treatment and probation because he “won’t fare well” in prison.  Wealth shouldn’t dictate the kind of justice a person receives.  That’s an inequality of outcomes that everyone can agree is unfair.

The question remains, however, of how outcomes should be equalized. The knee-jerk reaction to this situation is that this guy escaped a well-deserved stint in the punitive hellscapes America calls prisons.  But sentencing a person to eternity in a concrete hate factory is not necessarily the right result, for all the reasons Prof. Kohen stated above. 

There are ways that we can deal with serious sex offenders that don’t involve subjecting them to the absolute worst humanity has to offer—particularly since sex offenders have one of the lowest recidivism rates of all violent crimes.  Contrary to popular belief, many of these people are  redeemable.  

But what about the victims?  How will they get justice unless the offender suffers commensurate to their crime?  I’ll let the infamous bleeding heart hippie Winston Churchill plead my case:

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal, against the State— a constant heart-searching by all charged with the duty of punishment— a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it.

March 31, 2014

darthvadersmoms:

  • AKP (yellow): %45.5
  • CHP: (red): %28.1
  • MHP: (blue): %15.3
  • BDP/HDP: (green+purple) %6

Turkey, my country, is a lost cause. After all the things happening since June 2013 (killing of 9 peope, proven allegations of corruption, violation of human rights and freedoms,) AKP still gets 45% of the votes. 

However, a part of the votes are stolen or manipulated. AKP officials shut down the electricity for hours in nearly every town where CHP is leading the race. There are eyewitness reports from all over the country that voting attendants turned CHP votes into AKP votes/or didn’t count CHP votes properly/burned the vote papers, especially in Ankara and Istanbul. You can see how close the race was in Ankara, the capital of the country. 

Please reblog this or at least talk about this one of your friends or your family so people would know what we are dealing with. Firm believers in democracy slept on bags full of votes last night because they were afraid that some people would steal them before they are counted. I believe both Mustafa Sarıgül (CHP/Istanbul) & Mansur Yavaş (CHP/Ankara) won the elections by close votes, and it is killing me knowing that we actually won the elections first time in 13 years, and they didn’t count our votes. 

LTMC: With Ukraine stealing the international spotlight recently, best not to forget that things are happening in other parts of the world, too.

3:16pm  |   URL: http://tmblr.co/ZMMjnx1Bkan3v
  
Filed under: politics turkey 
March 30, 2014

Late Night Music: Birdy, Skinny Love (Bon Iver Cover)

Lyrics

Come on skinny love just last the year
Pour a little salt, we were never here
My my my, my my my, my my
Staring at the sink of blood and crushed veneer

Tell my love to wreck it all
Cut out all the ropes and let me fall
My my my, my my my, my my
Right in this moment this order’s tall

And I told you to be patient
And I told you to be fine
And I told you to be balanced
And I told you to be kind

In the morning I’ll be with you
But it will be a different kind
I’ll be holding all the tickets
And you’ll be owning all the fines

Come on skinny love, what happened here?
Suckle on the hope in lite brassieres
My my my, my my my, my my
Sullen load is full, so slow on the split

And I told you to be patient
And I told you to be fine
And I told you to be balanced
And I told you to be kind

And now all your love is wasted
And then who the hell was I?
And I’m breaking at the britches
And at the end of all your lines

Who will love you?
Who will fight?
Who will fall far behind?

2:48am  |   URL: http://tmblr.co/ZMMjnx1BbPm0Q
  
Filed under: late night music 
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