Category Archive 'The Law'
05 Jul 2017

Fireworks Are Not Legal in LA

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08 Oct 2016

What Happens If Trump Has to Withdraw?

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trump-sad

LawNewz provides answers to the question a lot of people are asking right now.

So, with exactly a month to go until Election Day, what happens if Trump is forced to drop out of the Presidential race? Or if the GOP forces him out? It’s a bit complicated, so let’s explain what we know about the process.

Republican National Committee Rule # 9 outlines what happens when there is a Republican nomination vacancy due to “death, declination or otherwise.”

It basically says that there are two ways for the Republicans to re-nominate a candidate if Trump drops out. 1) They could reconvene at another convention and have all of the 2,472 delegates vote, or 2) the 168-member committee could decide with each member getting a portion of votes based on the population of the state they represent. Number 2 seems like a more likely scenario.

Seems simple? Not so fast. Since we are exactly a month away from the election, there is one major problem: The ballot deadlines have passed in nearly every state. For example, in West Virginia, the law says a candidate must withdraw “no later than eighty-four days before the general election.” With thirty days to go, we are obviously too late. Each state has different rules about what happens if there is a vacancy. So, even if the Republicans pick a new nominee, it is likely Trump’s name will appear on the ballot in most states. …

Professor Edward Foley, who is the director of election law at Moritz School of Law at Ohio State, talked to LawNewz.com about what could happen if the GOP decided to go with another Presidential candidate (for example, Mike Pence):

    If Trump publicly withdraws, it makes it easier for GOP leadership to orchestrate a public plan in which to explain to the electorate that by voting for “Trump/Pence” on the ballot they are actually voting for Pence/Kasich (or Pence/_______, whoever they pick for the new V-P slot). It would be legally equivalent to the circumstance in which Trump had died, and the GOP needed to announce a replacement even though it was too late to reprint the ballots.

    But Trump doesn’t need to withdraw for the GOP leadership to pursue a comparable public plan whereby they repudiate him. The RNC could attempt to invoke its own rules to declare that, over Trump’s objections, he’s no longer the party’s nominee. If the RNC were to take that route, it might put the GOP on stronger legal footing under various state laws concerning the party’s slate of presidential electors.

    But from the perspective of the U.S. Constitution, and the Electoral Count Act of 1877, which are the two key pieces of federal law, it is not essential that the RNC take that kind of formal step under its own party rules. If there is a well-publicized plan in which McConnell, Ryan, and other party leaders all announce that they want the GOP presidential electors to vote for Pence for president, not Trump, and that’s what the GOP presidential electors do on December 19—in those states in which the GOP presidential electors received more popular votes that Clinton electors—then Pence (or whoever the GOP picks) is the choice that gets sent by those electors from those states to Congress for opening and counting on January 6.

    It obviously matters whether or not the GOP can reach 270 Electoral College votes for Pence (or whomever they pick) under this strategy. If not—in other words, if Clinton wins enough states so that her electors have 270 or more—what the GOP electors do is irrelevant. Clinton is declared presidential-elect, assuming Congress confirms so on January 6.

06 Aug 2016

Commit the Perfect Crime in Yellowstone

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YellowstoneCrime

Vox describes how a law journal paper on an interesting legal loophole provided the plot for a mystery series novel.

C. J. Box’s 2007 thriller Free Fire, the seventh in a book series about a Wyoming game warden. The novel’s plot spins on the premise that in an uninhabited, 50-square-mile portion of Yellowstone National Park, you can legally get away with murder.

The book’s premise originates from a 14-page article called “The Perfect Crime” by Michigan State University law professor Brian Kalt. The article describes a judicial no-man’s land in the Idaho part of Yellowstone, where a person can commit a crime and get off scot-free due to sloppy jurisdictional boundaries.

In 2004, … he wanted to churn out one last article to stay on track for tenure. He was researching obscure jurisdictional gray areas when he found a reference to the unusual jurisdiction of Yellowstone National Park. Like all national parks, Yellowstone is federal land. Portions of it fall in Idaho, Montana, and Wyoming, but Congress placed the entire park in Wyoming’s federal district. It’s the only federal court district in the country that crosses state lines.

Such trivia would scarcely summon a yawn from a layperson, but to a constitutional lawyer like Kalt, it was a flapping red flag. Kalt knew that Article III of the Constitution requires federal criminal trials to be held in the state in which the crime was committed. And the Sixth Amendment entitles a federal criminal defendant to a trial by jurors living in the state and district where the crime was committed. But if someone committed a crime in the uninhabited Idaho portion of Yellowstone, Kalt surmised, it would be impossible to form a jury. And being federal land, the state would have no jurisdiction. Here was a clear constitutional provision enabling criminal immunity in 50 square miles of America’s oldest national park. …

When the paper was published, the media went nuts. Stories appeared in the Washington Post, the BBC, NPR, and even a Japanese newspaper. Wyoming-based crime writer C. J. Box read about it and thought it would make a great plot for a novel.

“I write about mystery, suspense, and crime, so the idea of a perfect crime anywhere, and especially in my neighborhood, was just really intriguing,” Box told me over the phone.

His novel, Free Fire, made the New York Times extended best-seller list and continues to be popular. “Every time I go on tour, someone asks me about it,” Box said. “The book is sold all over Yellowstone, which I find really interesting. People are still buying it like crazy.”

Read the whole thing.

06 Jul 2016

“Forget It, Jake, It’s Clintontown.”

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ClintonsGetAwayWithIt

Rod Dreher seems to need a double Bourbon.

It is somehow comforting to find that one’s pitch-black cynicism is vindicated. I did not believe that official Washington would indict Hillary Clinton, not in a presidential election year, and not when she’s the only thing standing between Donald Trump and the White House.

The thought of four more years of those people, the Clintons, in the White House, with all their sleaziness, their drama, their sense of entitlement — it’s sick-making. What a country. What a year.

Hillary Clinton is the democrat party’s best chance of keeping its grip on the presidency for another four years. Did anyone really think that Mr. Comey was going to seek her indictment?

This is the same James Comey, who initiated the Plamegame investigation that tarnished the Bush Administration, convicted Vice Presidential Chief of Staff Scooter Libby of perjury and obstruction of justice and got him sentenced to 30 months in prison, a $250,000 fine, two years of supervised release, and 400 hours of community service. George W. Bush magnanimously commuted the prison time, but Libby lost his license to practice law and his reputation.

Valerie Plame, of course, really had used her CIA position to arrange for her hubbie Joe Wilson to be selected to go to Niger in 2002 to inquire about attempts to purchase yellowcake uranium for nuclear bomb-making by Saddam Hussein. Wilson came home and wrote an editorial in the Times in July, attacking the Bush Administration, and concluding that “it was highly doubtful that any such transaction had ever taken place.” in 2008, 550 tons of non-existent yellowcake uranium was sold by the new Iraqi government, acting under US supervision, to Canada’s Cameco Corporation.

Madame Wilson’s identity and CIA employment in the Directorate of Analysis was actually disclosed by Deputy Secretary of State (Colin Powell associate and Bush Foreign Policy opponent) Richard Armitage. That Armitage was the leaker was known to Plamegame prosecutor Patrick Fitzgerald (appointed by Comey) in 2003, but that did not prevent him from proceeding with four years of unnecessary witch-hunting or from convicting Libby in 2007.

And, so we see how Justice operates in the United States in the 21st Century. They’ll investigate and hunt you down and convict you of something, whatever the facts, whatever it takes, if you are a Conservative Republican whom they do not like. But if your last name is Clinton, whatever you do will fall outside the scope of prosecutorial discretion.

10 Jun 2016

There Are Really No Bound Delegates

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Trump-sad-face

David French explains that, really, there is no such thing as a bound delegate.

Let’s begin with a simple proposition: As a matter of law and history, there is not a single “bound” delegate to the Republican National Convention. Not one delegate is required to vote for Donald Trump, Ted Cruz, Marco Rubio, or any other individual who “won” votes in the primary process. Each delegate will have to make his or her own choice. They — and they alone — will choose the Republican nominee. The paragraph above contradicts much of what you’ve been told about the presidential nominating process, and it even contradicts state law in multiple jurisdictions, but state law does not govern the Republican party. The party governs itself, and according to the rules it has implemented, there is only one convention where the delegates were truly bound: 1976’s, when Gerald Ford fended off a challenge from Ronald Reagan. In every other Republican convention ever held, every delegate has been free to vote their conscience.

Read the whole thing.

He’s right and, if Trump continues screwing up and sinking in the polls, there will be a revolt.

11 May 2016

How To Beat the DOJ Lawsuit

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NorthCarolinaFormerly

Rush Limbaugh has the legal argument in hand that should allow North Carolina to defeat the Department of Justice lawsuit overturning that state’s law banning transgendered use of ladies’ public bathrooms.

The solution here might be that the North Carolina governor could say that we don’t identify as North Carolina anymore, and therefore your lawsuit against us is irrelevant. We’re not North Carolina. We don’t identify that way, as long as your lawsuit — I mean, it’s absurd here! What do you mean, the way I want to present one day? So North Carolina, I say just turn it right around, “You know what, we do not identify as North Carolina for the length of your suit.”

19 Apr 2016

Bounty Hunters Today

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dillingerwantedposter4

Katie Bo Williams, in the Atlantic, looks at the Bounty Hunting industry and finds that it is pretty good at policing itself.

Bounty hunters usually grab national attention only when somebody gets shot, but in many states, they’re an active part of the criminal-justice system. The modern bail-recovery industry, mostly identified with Wild-West-like Hollywood depictions like Dog the Bounty Hunter or the novels by Janet Evanovich, is largely invisible to the public eye. This kind of incident usually drives two separate criticisms: that America’s archaic bail system disproportionately impacts the poor, and that bounty hunters are acting as wildly unregulated quasi-police. Some areas have addressed the first with pretrial services programs that screen and release low-risk defendants. In certain states the second might be partially true—but the industry is far more sophisticated than it appears at first glance. …

There are four major players in the bail-bonding process: the person who has been arrested, the judge who sets his bail, the bail bondsman, and the bail-recovery agent. Bail is a security—usually money but sometimes property—paid to the court in exchange for release of an arrested person, to be returned when the defendant appears at his or her court date. A judge will typically set a higher bail for defendants who are considered a flight risk or a danger to society. A bail bondsman, backed by insurance policies, then signs a civil contract with the defendant to post bail for a 10 to 15 percent fee. Under the terms of these contracts, should a defendant fail to appear at a court date, the bondsman has the right to apprehend his or her client. If the bondsman fails to procure the “skip,” he or she is on the hook for the entirety of the bail to the court.

Although some bondsmen do their own recovery work in-house, many will contract with independent bounty hunters to apprehend skips. Bounty hunters are considered private contractors, but they are authorized to use deadly force when making an arrest. …

The common perception is that bounty hunters are above the law—and in fact, they are not subject to many of the constitutional amendments that govern law enforcement. Bounty hunters are not bound by the constitutional protections against unreasonable search and seizures under the Fourth Amendment, the privilege against self-incrimination under the Fifth Amendment, or the right to counsel under the Sixth Amendment. For the most part, the industry draws its legal standing from Taylor v. Taintor, a 1872 Supreme Court ruling that allows bounty hunters to, among other things, “pursue [a fugitive] into another State; arrest him on the Sabbath; and, if necessary, break and enter his house for that purpose.”

That sounds archaic, but skips actually agree to these terms. The fugitive is a client of a bail bondsman—he or she has signed a civil contract with the bondsman that effectively gives him the right to come arrest him should he fail to appear. This contract is what gives bounty hunters the right to come on to a fugitive’s property to affect an arrest; it’s also part of the industry’s incentive not to abuse skips. It’s tough to get return business if your recovery agents have a reputation for roughing folks up.

Read the whole thing.

In the early 1990s, my wife and I had both sold off our former companies, and had tried a few things that didn’t work out. Time had gone by, we were both still out of work, and we were starting to run out of money.

I happened upon an ad looking for a Bail Bond Recovery Agent, and it occurred to me that this was something I could do. I am a pretty good hunter. I do excellent research. And I come from a family loaded with police, and am not at all frightened of criminals.

I bought myself a very compact and highly powerful Taser, and laid in a supply of plastic wrist restraints. I already owned a number of handguns and even had around a somewhat-antique leather sap I sometimes used as a book weight, which I’d inherited from an uncle who had been a Pennsylvania state cop.

When I talked to a few Bail Bondsmen down in Bridgeport, though, I found that the real deal was the guys I’d be hunting and bringing in were basically just local blacks and Puerto Ricans charged with a variety of petty drug offenses. I did plenty of drugs myself back in college, and I figured that I’d be a very evil bastard indeed if I went out and made a buck enforcing victim-less crime laws on people less fortunate than myself. So I dropped that particular scheme.

01 Mar 2016

Without Scalia

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Ramirez46

04 Dec 2015

Gun Control Laws and the San Bernardino Massacre

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FarookGuns
Syed Farook and Tashfeen Malik’s weapons

Media reports about the guns were misleading as ever, describing them as “legally purchased” typically as part of a ideologically-loaded effort to demonstrate the lack of Gun Control regulations which might have kept such weapons out of the hands of mass killers like Farook & frau.

But MRC TV’s Dan Joseph yesterday noted that, in fact, those two AR rifles were almost certainly not legally acquired.

San Bernardino, Calif., officials have confirmed that the two rifles used by gunman Syed Rizwan Farook in Wednesday’s massacre were purchased not by Farook himself, but rather by a friend. This means that at some point the rifles were either sold, stolen or given to Farook by his friend, sometime within the last three or four years.

According to California’s firearms laws, it is “illegal for any person who is not a California licensed firearms dealer (private party) to sell or transfer a firearm to another non-licensed person (private party).” The prohibition on transfers – except those between family members- that do not involve a licensed gun deal Went into effect on January 1, 2011.

This means that unless, Farook’s friend was an authorized weapons dealer in the state of California or the transfer occurred in another state, then the rifles were acquired illegally.

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Today, Jacob Sullum, at Reason, confirms that either a straw purchase or an illegal transfer must have occurred.

Federal officials say Syed Rizwan Farook, one of the massacre’s perpetrators, bought the two 9mm pistols used in the attack, a Springfield and a Llama, from gun shops in San Diego and Corona. That means he passed background checks, which indicates he did not have a disqualifying criminal or psychiatric record. An acquaintance of Farook’s bought the two AR-15-style rifles used in the attack, a DPMS A-15 and a Smith & Wesson M&P15, also at gun shops in San Diego and Corona.

Sullum goes on to note the ineffectiveness of legislation targeted at “bad” military-style weapons in preventing human ingenuity from developing work-arounds which render the regulations meaningless.

The DPMS A-15 and Smith & Wesson M&P15 both come in “California legal” versions, which means they have “bullet buttons” that require the insertion of a loose round (or some other tool) to detach the magazine. With that feature, the magazine is not considered “detachable,” which is part of the state’s “assault weapon” definition.

Gun controllers tend to view bullet buttons as a sneaky end run around California’s “assault weapon” ban. Huffington Post reporter Daniel Marans calls the bullet-button option a “technical loophole.” Josh Sugarmann, executive director of the Violence Policy Center (VPC), complains that gun manufacturers are “cynically exploiting an inadvertent limitation” of the law. But bullet buttons are explicitly allowed by California Department of Justice regulations, which say “‘detachable magazine’ means any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required.” The DOJ adds that “a bullet or ammunition cartridge is considered a tool.”

Since rifles with bullet buttons do not have what California considers detachable magazines, they can include military-style features that would otherwise be forbidden, such as folding stocks, pistol grips, or flash suppressors. “Assault weapon” is an arbitrary, legally defined category, so the fact that California does not consider these rifles to be “assault weapons” means they aren’t “assault weapons.” It makes no sense to complain that California’s “assault weapon” ban misses some “assault weapons,” which are whatever legislators say they are. Nor does it make sense to complain about design changes, such as bullet buttons, aimed at complying with the law. Gun manufacturers that produce “California legal” guns are doing precisely what the state has told them to do.

But, wait, more than human ingenuity and work-arounds using technical loopholes occurred here. According to The Wall Street Journal, the ATF discovered that two highly-illegal modifications of those rifles were made.

The rifles used in the San Bernardino mass shooting were illegal under California law because they were modified and violated the state’s ban on assault weapons, the Bureau of Alcohol, Tobacco, Firearms and Explosives determined on Thursday. …

The two semiautomatic rifles were versions of the popular AR-15 model, according to San Bernardino officials. One was made by DPMS Inc., and the other by Smith & Wesson.

While they were originally sold legally, with magazine locking devices commonly known as bullet buttons, the rifles were subsequently altered in different ways to make them more powerful, according to Meredith Davis, a special agent with the ATF.

The Smith & Wesson rifle was changed in an attempt to enable it fire in fully automatic mode, while the DPMS weapon was modified to use a large-capacity magazine, she said.

Modifying the DPMS A-15’s to accept larger capacity magazines would be a felony in California. On the other hand, converting Smith & Wesson M&P15 to full-auto capability did not only violate California gun laws, it was also a serious federal crime, violating the National Firearms Act of 1934, the Gun Control Act of 1968 (which would make the couple, as felons, persons prohibited from owning full-auto weapons), and the Firearm Owners Protection Act of 1986 (banning civilian ownership of new machine guns).

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The notion that more Gun Control laws would prevent such shootings was satirized yesterday on Facebook with this image:

NeedMoreLaws

09 Oct 2015

Obey the Constitution and State Law, Not Five Judges

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Photoshopped version of: Vasili Pukiriev, Неравный брак [The Unfitting Marriage], 1862

Breitbart:

More than sixty prominent legal scholars are out with a statement saying the Supreme Court’s Obergefell decision “cannot be taken to have settled the law of the land.” Therefore the scholars are calling upon federal and state office holders, along with regular citizens, to act as if the decision is invalid.

The scholars write that the bare-majority decision on gay marriage lacks “anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution.” The ruling “must be judged anti-constitutional and illegitimate,” they say.

Signers of what some will consider a controversial proposition include Professor Robert George of Princeton University, who said, “We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is. We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.”

Specifically, the signers are telling office-holders to, “refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case, recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.”

The letter urges government officials to, “pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons, and to open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evident in Obergefell.”

They remind office-holders that they pledge to uphold the Constitution of the United States, “not the will of five members of the Supreme Court.”

They cite Presidents Madison and Lincoln as justification for their position. President Lincoln acted as if the Dred Scott decision — that neither slaves nor free blacks could be considered American citizens and that the federal government had not right to regulate slavery in the federal territories — was illegitimate and he refused to recognize that it effected anyone in the country except the immediate plaintiffs.

The letter was signed by scholars from a wide range of academic institutions including Kansas State, Boston College Law School, Boston University, Michigan State University, Texas Tech, University of Oxford, Villanova, Vanderbilt, Amherst, Notre Dame, Catholic University of America and many others.

30 Sep 2015

Sophistry as the New Constitutionalism

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ObergefelCartoon

Bruce P. Frohnen, at the University Bookman, points out how the recent SCOTUS Obergefel decision typifies the operation of modern American government outside the realm of law.

Can’t get the votes you need? Simply change the rules of the Senate. Lack sufficient support to ratify a treaty? Re-define it as an Executive Agreement. Can’t get Gay Marriage through the legislatures? Interpret some new “rights” out of the Constitution.

Limited government with defined powers is magically transformed into totally unlimited government, free to do anything the community of fashion strongly desires to do.

What made Justice Kennedy´s decision in Obergefell so damaging was not its seemingly endless, vapid paeans to individual autonomy and other pseudo-intellectual claptrap. The inferior quality of Kennedy´s musings is beside the point. The problem is that his musings have no basis in our Constitution or in the moral and intellectual traditions that shaped it and our culture. Kennedy´s legal reasoning, such as it is, flagrantly violates the rule of law in order to impose the “correct” policy on the nation.

The judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.

I am hardly the first to point out that Obergefell substitutes the will of judges for the rule of law. It demands of the people that they forego their obligation to follow and uphold the law of the land and instead bow to the will of the rulers. Such commands are inimical to any semblance of ordered liberty. Unfortunately, these commands, issuing ever-more frequently from the courts and the administrative state, have become deeply embedded in our legal culture and have rendered our legal nomenklatura immune to arguments rooted in reason and to principles of fair play and civil discourse. At the same time, the judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.

Read the whole thing.

04 Sep 2015

Constitutional Jurisprudence in 2015

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ConstitutionTorn

Christopher Taylor identifies the point we’ve reached in America’s relationship to its Constitution.

And so we reach the point at which I’ve given up the idea of ever getting back to the constitution today. In fact, I’ve come to the realization that there’s no point in appealing to the document as any kind of governing and restraining document because the government and people have simply abandoned it except as a fetish.

Recent supreme court decisions have simply negated the constitution entirely, building on decades of ignoring and twisting the document, inventing things not in it until its simply trash. And all of this happened because of well-meaning tiny little steps, any one of which the founding fathers would have been enraged at, but we sigh and shrug at today.

There is no rational basis for thinking that any government will reverse this. It simply is without precedent in human nature and history for a politician to voluntarily surrender their own power or a government to weaken its self. There is only one direction, one trend: toward tyranny.

The founders knew this. They did their best to lock in our freedom and protect this inevitable tendency of the state. It was so well done that the nation lasted more than a century with great, widespread liberties. That era is over, and only one future lies before us, barring some act of God.

The only question is what lies beyond that point, and how we get through it.

04 Jul 2015

John Roberts & Obamacare

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22 Jun 2015

Tweet of the Day

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Hat tip to Walter Olson.

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