Illegal raids. Illegal arrests. Perjury. Theft. Conspiracy to murder witnesses?
Video clip here.
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Interesting voting pattern in a Supreme Court ruling today. Instead of the usual conservative & liberal voting blocs, we find Scalia, Thomas, Ginsburg, Souter, and Stevens in the majority–while Breyer, Kennedy, Alito and Roberts dissent.
The case is called United States v. Santos and the issue was how to interpret the term “proceeds” in the federal money laundering statute. The case was easy and should have been unanimous. When a term in a criminal law is unclear, the defendant should get the benefit of the doubt, not the rule-making, rule-enforcing state. That’s a legal doctrine called the “rule of lenity.” Unfortunately, the Supremes do not apply that rule consistently. Happily, the Court reached the correct outcome today. Here’s the money quote from Scalia: “When interpreting a criminal statute, we do not play the part of a mind reader.” The “we” in that sentence referred to the justices. But that goes double for the individuals & business firms that are regulated by vague federal regulations.
The newest justices, Alito and Roberts, are showing their pro-state tendencies again.
Bureaucrats in the United Kingdom must be getting jealous that their French counterparts are getting all the attention, so they have gone above and beyond the call of duty to demonstrate unparalleled government stupidty. Security officials at Heathrow Airport barred a man from flying until he removed a t‑shirt with an image of an armed robot. The Evening Standard (not The Onion) reports:
An airline passenger claimed that a security guard threatened to arrest him because he was wearing a T‑shirt showing a cartoon robot with a gun. Brad Jayakody, 30, from London, said he was stopped from passing through security at Heathrow’s Terminal 5 after his Transformers T‑shirt was deemed ‘offensive.’ …Mr Jayakody said the first guard started joking with him about the Transformers character depicted on his French Connection T‑shirt. ’ ”Then he explains that since Megatron is holding a gun, I’m not allowed to fly,’ he said. ‘It’s a 40ft tall cartoon robot with a gun as an arm. There is no way this shirt is offensive in any way, and what I’m going to use the shirt to pretend I have a gun?
Travelers in the United States, needless to say, have no reason to be smug. The keystone cops at the Transportation Security Administration, after all, have become experts at confiscating such well-known terrrorist weapons as fingernail clippers and bottles of shampoo.
Andrew McCarthy: “If we are detaining such a terrorist, it is because we already know he is a terrorist.”
Orin Kerr is a law professor at George Washington University and a blogger on the popular Volokh Conspiracy. He is a thoughtful, open-minded legal scholar, but I don’t think it’s unfair to say that he reliably sides with law enforcement on Fourth Amendment issues.
He recently posted a draft article defending the third-party doctrine, which is an interpretation of the Fourth Amendment holding that a person sharing information with a third party cannot make a Fourth Amendment claim to protection of that information. Use an ISP to transmit your email? No Fourth Amendment protection for its contents. Have a bank account? No Fourth Amendment protection for your banking records. Etc.
He treats as similar two issues that I see as separate: revelations gleaned from informants/agents and from business records. I have always thought of the third-party doctrine as being about business records. My remarks here apply to that area only.
I think the third-party doctrine was never right, and that it grows more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The third-party doctrine exempts law enforcement from the Fourth Amendment’s reasonableness and warrant requirements when it looks at these records.
It’s wonderfully contrarian to run against the grain and defend the third-party doctrine, which has plenty of detractors, but sometimes contrarians can be wrong. I think Professor Kerr is, and here I’ll briefly lay out a few of the fundamental differences I have with his paper—all toward the end of perfecting it before it’s published in the Michigan Law Review next year, of course!
Yesterday, the Supreme Court of Texas ruled that Child Protective Services (CPS) abused its discretion by seizing 468 children from the Fundamentalist Church of Latter Day Saints ranch in Eldorado. Eugene Volokh has a roundup of the legal analysis.
I wrote about this case a few days ago at NRO, but space limitations kept me from going into more detail about how the women and children were treated while in state custody. For those who have not followed this matter closely, the children were seized by CPS but the mothers were “permitted” to remain with their children on the condition that they comply with all CPS rules and commands.
CPS invited some mental health workers to the various shelters to help care for the hundreds of children. The mental health workers were disturbed by what they saw of CPS’s treatment of the women and children, and their written reports corroborate the bitter complaints of the FLDS mothers. I don’t think the news media has given this aspect of the story the attention it deserves — so here are some excerpts from the various reports that have been made public:
Passed into law Wednesday:
Section 1. AS 44.99 is amended by adding a new section to article 1 to read:
4 Sec. 44.99.040. Limitation on certain state expenditures. A state agency may not expend funds solely for the purpose of implementing or aiding in the implementation of the requirements of the federal Real ID Act of 2005 (P.L. 109–13, Division B).