Currently viewing the tag: "Law"

Let Me Educate You A Bit On The Legal Implications of the Arizona Immigration Law

by Metavirus on 5 May 2010

One thing that continually gets missed in the coverage of the new Arizona immigration law are the implications of the requirement that a police officer have a “reasonable suspicion” that someone is an illegal before asking for their papers.

Many people seem to think, “Problem solved! The police are prohibited from asking for papers unless they have a reasonable suspicion!”
Wrong. As any lawyer who’s taken Evidence can tell you, the “reasonable suspicion” requirement is only a basis on which a criminal defendant can seek to exclude evidence at trial.

The reason there is extensive case law interpreting what “reasonable suspicion” means is because defense attorneys routinely move to suppress any evidence procured by way of an illegal stop or frisk, at which point the police must articulate the basis of their reasonable suspicion. If they can’t do so to the judge’s satisfaction, the evidence is suppressed and the charges are often dismissed. Police quickly learn to follow the rules if they want their charges to stick.

In the immigration context, however, there is no evidence to suppress. Defense attorneys will not have an obvious mechanism for contesting the reasonability of the request for documentation. I can see an occasional civil rights complaint filed by the ACLU or a similar group, but I don’t see what circumstances would lead to any kind of routine judicial review of these decisions. The police will largely be on the honor system.

And that’s why this law is so problematic. It a recipe for police abuse, for unchecked racial profiling. And even if the police generally do a good job of controlling themselves, the mere spectre of such abuse will only drive the undocumented community farther underground. There will be no cooperation with the police. No reporting of crimes. More fleeing the scene of accidents. More children not getting medical care because their parents are afraid to take them to the hospital. It’s just really bad policy.

So you see, there isn’t any independent cause of action against the police department for stopping someone and asking for their papers without reasonable suspicion.
And because we’re not talking about a circumstance where a criminal defendant would be looking to suppress evidence, there would be no remedy or recourse whatsoever for police officers that violated this standard.
That’s your law lesson of the day. You’re welcome. :)
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"Did they Mirandize him? I know he’s an American citizen but still…"

by Metavirus on 4 May 2010

Reacting to the swift capture of the failed Times Square bomber, this quote from a top leader in the GOP just about sums up the contempt and insanity that drives the Republican Party today:

“Did they Mirandize him? I know he’s an American citizen but still…” Rep. Pete King (R-N.Y.)

“But still”!?!? What the fuck is that supposed to mean?
Steve Benen plods through the bullshit:

First, as a practical matter, we know that the Mirandizing suspects does not undermine our national security interests. For decades, this wasn’t even a subject open to debate until Republicans decided last year this might be exploited politically to confused scared voters.

Second, on Fox News this morning, both Glenn Beck and Andrew Napolitano supported following the law and Mirandizing Shahzad. Congratulations, John McCain and Pete King, you’re now slightly less reasonable than Fox News personalities.

Third, as Matt Yglesias noted, reading a suspect his/her rights isn’t just some nicety: “[T]o give [a suspect] the death penalty, or indeed any penalty, you need to put him on trial. Which is to say you need to prove that the guy in custody is actually responsible for the crime. And the whole reason cops mirandize suspects is that if you don’t, you risk having your evidence thrown out of court. If you gather all the information before mirandizing, you could be throwing the whole thing into doubt. Which is why professionals give out the warning.”

And finally there’s this important contextual observation from Adam Serwer: “Yesterday, when the primary suspect in the attempted bombing of Times Square was a middle-aged white guy, Republican leaders were the picture of calm, sober leadership. High-ranking Republicans on committees related to national security like Pete Hoekstra and Peter King urged people not to jump to conclusions, while Senate Majority Leader Mitch McConnell praised New Yorkers for not succumbing to fear…. That was yesterday.”

Update: You know the world is spinning in the opposite direction when GLENN BECK is to “the left” of King and McCain on this one:

“He is a citizen of the United States, so I say we uphold the laws and the Constitution on citizens,” the bombastic Fox News host said to the stunned co-hosts of “Fox and Friends”. “If you are a citizen, you obey the law and follow the Constitution. [Shahzad] has all the rights under the Constitution.”

“We don’t shred the Constitution when it is popular,” Beck added. “We do the right thing.”

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Always Remember How Valuable Our Freedom of Speech Is

by Metavirus on 1 April 2010

This is abominable:

A STREET preacher has prompted concerns over religious freedom in Scotland after being fined £1,000 for telling passers-by in Glasgow city centre that homosexuals deserved the “wrath of God” and would go to hell.

Shawn Holes admitted breaching the peace earlier this month by “uttering homophobic remarks” that were “aggravated by religious prejudice”.

Sure, the guy is a religious asshole but it’s disturbing to me that he could be fined just for saying offensive stuff.

Always remember how valuable our freedom of speech is.

h/t Sully

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Quote of the Day: Liz Cheney Is a Despicable Void of Personified Demon Excrement

by Metavirus on 5 March 2010

Well, not quite, but still good:

“That those in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers — and on the integrity of our legal system — is shameful. Shameful,”

Walter Dellinger, former head of the OLC and senior partner of a firm that represented a Gitmo detainee pro bono at the behest of Bush DOD lawyers.

( File Photo by I.P. Freely, “Liz Cheney’s Soul”, Copyright 2010, Associated Press )
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Yoo: President Can Order The Extermination of a Civilian Village

by Metavirus on 22 February 2010

I am just so royally pissed off about the Office of Professional Responsibility’s granting of a get-out-of-disbarment-free card for the Torture Lawyers that I can’t even write a cogent post on it.

But I can pass this along, which is an excerpt from an OPR investigator interview with one of the authors of the Torture Memos:

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney’s legal counsel, that the president’s wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

“What about ordering a village of resistants to be massacred? … Is that a power that the president could legally—”

“Yeah,” Yoo replied, according to a partial transcript included in the report. “Although, let me say this: So, certainly, that would fall within the commander-in-chief’s power over tactical decisions.”

“To order a village of civilians to be [exterminated]?” the OPR investigator asked again.

“Sure,” said Yoo.

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Australian Court Smacks Down Big Content In Seminal Ruling

by Metavirus on 4 February 2010

Don’t get me wrong, I am a strong defender of the rights of copyright holders to enforce their rights. In this case, however, the film studios really overstepped their bounds and the Australian judge laid what I consider to be a well-deserved smackdown upon them:

In a definitive defeat for film studios—and in a first case of its kind worldwide—Australia’s Federal Court has ruled that ISPs have no obligation to act on copyright infringement notices or to disconnect subscribers after receiving multiple letters. If copyright holders want justice for illegal file-sharing, they need to start by targeting the right people: those who committed the infringement.

[The ruling] concerns iiNet, the third largest ISP in Australia, which was sued in 2008 by a group of movie studios—many of them American—for not doing enough to stop copyright infringement. Letters sent to iiNet were treated as allegations rather than facts and were therefore not acted upon; iiNet instead sent the letters on to the police, saying that it would not act unless a court first ruled that actual infringement had occurred. [...]

As [iiNet CEO Michael] Malone [wrote in a] forum post, the issue should be handled by the relevant authorities; he had no wish to start acting like a private copyright cop. “With the evidence that AFACT has, I’m betting that a magistrate will happily issue an order for us to disclose the account holder’s identity for under $50. AFACT can then directly contact the customer, warn them, raid them, or sue them. Whatever the action, it will then be overseen by the independent legal system.”

The judge agreed, saying that the law “recognises no positive obligation on any person to protect the copyright of another. The law only recognises a prohibition on the doing of copyright acts without the licence of the copyright owner or exclusive licensee, or the authorisation of those acts.”

I always like it when 20th century judges can take in the facts of the 21st century problem and come down on the side of justice.

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The Topsy-Turvy Conservative Approach To Law Enforcement

by Metavirus on 2 February 2010

Matt Yglesias makes a great point about how topsy-turvy the so-called “limited government” conservative movement has become:

Conservatives didn’t like the Miranda ruling or any of the Warren Court’s other famous criminal procedure rulings. And since the Supreme Court became more conservative, right-wing justices have consistently sought to narrow the exclusionary rule, make it more difficult for convicted felons to get hearings for new evidence, etc.

For all the “tea party” talk of freedom, and the right’s general blather about “limited government,” unrestricted violence by the agents of the state is a core priority for the right-wing. The view is that ideally you just detain people indefinitely. If forced, they get a military commission. If you have to have a civilian court, the accused shouldn’t have any rights. People should be tortured as a routine investigative technique. Wars should be routinely against foreign countries that haven’t attacked us. It’s a worldview soaked in violence and authoritarianism, and the relatively narrow question of what venue you try terrorism suspects in is just a small part of it.

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