Monthly Archives: July 2009

Just to show that it’s possible . . .

I’m thinking, more and more, that the whole Henry Louis Gates thing is a racial Rorschach test.  It’s a misshapen blob of an incident that, regardless of what can and should be learned from it, everybody with a strong opinion about The Important Issue of Race in America learns, once again, what they already believed.

I don’t think that’s necessary to explain what happened.  I’m not, at this point, interested in discussing the actual racial aspects of their encounter, or the aftermath. 

Because there is a much simpler explanation — one that might even be true — which quite fully explains the unpleasantness, the deception, and the bombastic behavior on both of their parts.

Let’s review the facts.  Well, no, we can’t; we don’t have the facts.  We have some of the facts, and, far as I can tell, they’re summarized pretty well here. My short version:

Guy comes home from a trip, with a driver. Front door is jammed, so he goes in through the back door, and then comes back around to try to force the front door open. Neighbor, seeing two guys apparently (and, in fact) trying to force a door open, calls 911 to report it, adding that maybe it’s not a burglary because they’ve got suitcases and might be returning from a trip or something.

Cops are dispatched, and arrive more or less promptly, but after the driver is gone, and the resident is home alone.

So far, everybody agrees on that, more or less.

The next part is unclear, to me, and not just because there’s two stories.

According to the police report, the cop — Crowley — asks Gates to step outside.  This means to me that, at least according to the police, Gates was inside the house, and suggests that Crowley was outside when he was doing the asking.  Okay.

According to Gates, Wikipedia says that “when the officer asked for ID, Gates replied he had to get it inside, and then officer Crowley followed him into his home without permission.”  Which suggests that Gates was outside his house when asked for the ID.

I’m sensing some idiocy here.  (I think both the cops and Gates are lying, actually, and each is doing so against their own best interests.)  But let’s, for the sake of argument, go with this:  Gates is inside his house when there’s a knock on the door, and there’s a cop there, asking him for ID.  He agrees to provide it, and leaves the door open as he goes to get it; he does, and it makes clear to the cop that this is the guy who lives there, and that there’s no reason for any further investigation.

Up to this point — assuming that all that’s just what happened, and nothing more is — nobody’s done anything wrong, although at least arguably Gates has been stupid by not locking the door.

Let’s try that again, this time with a bit more sense.  There’s a knock on the door, and Gates answers it — why not? — to find a cop there, demanding ID from the person inside the house.  Now, he’s in his home (provided to him by the U, but it’s his home), and he’s got every right to say, “No, thank you; go away, please,” and, leaving the door locked behind him, go to bed, but he doesn’t. 

Let’s let him be reasonably cooperative.  “Sure.  I’ll get my ID.”  He does, holds it up to the door; the cop reads it, and we’re at about the same place.

Except, of course, that didn’t happen. Both men tried to pull rank, and I’m guessing that both of them did it for precisely the wrong reason — as they’re both members of classes of people who often both see themselves as beleaguered and oppressed, while both live a life of almost preposterous privilege, often seeing it as their due.

Gates is a tenured professor, and Crowley’s a cop.  Both are surrounded by colleagues and sycophants — fellow tenured types and students in one case; other badged types, badge bunnies, and badgelickers in the other — who will, even without request, leap to the unfounded and often utterly preposterous conclusion that they did the right thing simply because of who they are, and both have been inculcated to believe that they have earned special respect from all they encounter because of the status that they have achieved.  Both are used to having their word taken as holy writ, no matter whether or not they happen to be full of it — and, in the case of both tenured professor types and badged types, they often are full of it, and rarely called to account.

Why would it surprise anybody that when two such archtypical examples of puffed egos and manifest privilege would bump heads — regardless of their relative status as a man in his own home and a cop investigating a report of a possible break-in — it would be anything but ugly?

So, yeah, it is possible to discuss their encounter, and explain it fully, even without reference to race.

Why the racial explanation utterly dominates the discourse about this is, alas, yet another sign that this society is just too obsessed with the whole subject.
 

Scattershot 2009-07-27

Random shots around the web:

  • Postal service hell.
  • Launch a fake North Korean Twitter feed, watch real media pick it up. Kudos to Popehat.
  • Whatever else I may think of Obama, I really hope that on his last day in office he provides the “vault copy” of his birth certificate that all the idiot birthers have been asking for.
  • The guys at Second City Cop chime in on the arrest of Professor Gates: It’s a scheme by Gates to create an incident so he can sue.
  • I understand that they’re posted on Friday, but remind me why they’re called “Funnies”
  • When you search for “recursion” on Google, it askes you if you meant “recursion”. How cool is that?

 (Hat tip: Google Blogoscoped)

Adventures In Avvo – Take 3

I’ve been posting about my attempt to get an answer to a simple question using Avvo Answers. In Take 1, an out-of-state lawyer provided a wrong answer. In Take 2, our own Jeremy Richey provided a good answer that misseda part of the question. I clarified my question, and now Jeremy has provided the final answer in a comment to Take 2.

My clarified question was:

If the bond is $1000/10%, that means I only had to pay $100 to get the person out. I’ll lose that. But what happens to the other 90% of the bond? Is it entirely a fictional amount that never materializes? Or could someone have to cough it up? In other words, if I post $100 on a $1000/10% bond, and then the defendant skips, am I just out the $100, or am I out the whole $1000?

Jeremy’s response nails it:

The other 90% is fictional. You won’t have to pay it. You are only out the $100.

That’s exactly what I needed to know.

I’m not entirely talentless when it comes to writing, and Jeremy is the right kind of lawyer in the right state, yet we had enough miscommunication that it took two attempts for me to ask the question right and Jeremy to answer it right.

I’m beginning to understand why Scott Greenfield thinks Avvo Answers is a bad idea.

Adventures In Avvo – Take 2

Out of some curiosity about how bail works, I posted a question on Avvo Answers. The first answer I got was a clean miss by an out-of-state lawyer. Now Illinois’s own Jeremy Richey has stepped up.

To review, here’s the question I asked:

What’s my exposure if I bail someone out of jail?

Chicago, IL Viewed 4 times. Posted about 17 hours ago in Criminal Defense

If a friend has been arrested, it’s my understanding that I can get them out by paying 10% of their bail to the court. I assume I’d lose that money if they don’t show up to court. Do I get it back if they do? If they don’t show up, am I responsible beyond the 10%, financially or otherwise? If it matters, assume I can’t trust my friend’s family with the money and want to deal with the court directly–i.e. I don’t just want to loan them the money.

And here’s Jeremy’s answer:

Illinois did away with bail bondsmen, so don’t worry about what my out-of-state colleague wrote. The 10% rule is pretty easy. For example, if bond is set at $1,000/10%, then it will cost $100 to bond the person out. This money is paid directly to the sheriff’s department or police department holding the person. There will also be a small sheriff’s fee.

As a practical matter, you probably will never see your money again. The court will likely take the bond money and apply it to the person’s fines when his case is over. If he fails to show up for court, his bond could be forfeited. Never pay a person’s bond unless you never want to see your money again.

Good luck.

Short, simple, polite, and correct.

Well, I’m assuming it’s correct. With my meager non-lawyer knowledge of the law, I can’t really tell. Which is an improvement over the previous answer, which was clearly wrong.

I have a few comments about this answer. Let’s look at that last paragraph in a little more detail:

As a practical matter, you probably will never see your money again. The court will likely take the bond money and apply it to the person’s fines when his case is over.

Aw, cheer up, Jeremy. Every once in a while someone is found not guilty.

Aren’t they?

If he fails to show up for court, his bond could be forfeited.

What exactly does that mean? It appears Jeremy has missed the part of my question where I ask “If they don’t show up, am I responsible beyond the 10%, financially or otherwise?” Perhaps my concerns are so non-sensical that he has no idea what I’m asking.

Let me try again: If the bond is $1000/10%, that means I only had to pay $100 to get the person out. I’ll lose that. But what happens to the other 90% of the bond? Is it entirely a fictional amount that never materializes? Or could someone have to cough it up? In other words, if I post $100 on a $1000/10% bond, and then the defendant skips, am I just out the $100, or am I out the whole $1000?

Never pay a person’s bond unless you never want to see your money again.

That much, I had figured out.

I approved Jeremy’s answer, but I’ll post again if anyone else answers the question.

Update: Adventures In Avvo – Take 3

Adventures In Avvo – Take 1

After a recent episode of Raising the Bar, I’ve been wondering if some do-gooder could go around bailing indigent people out of jail so they can go home to their families even though they don’t have $500. Not that I could afford to do that, but how would that work? I know it only takes a fraction of the bail amount to get them out, but would I be on the hook for the whole amount if they skipped their court appearances?

I tried Googling around for the answer, but couldn’t find anything useful. I’d have to ask a lawyer. The problem is, I don’t really know any criminal lawyers in Illinois who will answer my stupid questions for free.

Or do I? Isn’t this what Avvo Answers is all about? You ask a question, and a real lawyer answers it.

Scott Greenfield is always bashing Avvo Answers, saying that legal problems are rarely simple enough for this kind of treatment. The questions lack the detail that a lawyer would need to give a good answer. You really need to have a conversation.

I’m skeptical. Scott worries a lot about anything that smacks of lawyer marketing. Besides, aren’t lawyers supposed to be smart professionals? Shouldn’t they know better than to fill in too many blanks with guesswork? Isn’t giving careful answers part of their skillset?

I guess it was time to find out. I posted the following question:

What’s my exposure if I bail someone out of jail?

Chicago, IL Viewed 4 times. Posted about 17 hours ago in Criminal Defense

If a friend has been arrested, it’s my understanding that I can get them out by paying 10% of their bail to the court. I assume I’d lose that money if they don’t show up to court. Do I get it back if they do? If they don’t show up, am I responsible beyond the 10%, financially or otherwise? If it matters, assume I can’t trust my friend’s family with the money and want to deal with the court directly–i.e. I don’t just want to loan them the money.

That was yesterday. Today someone posted a response. See if you can spot any problems:

The 10% you pay to a bondsman is the price you pay for them to put up the rest of the money. Even if your friend makes each and every court appearance, at the end of the case, that money you paid is gone. That’s the bond company’s fee.

If your friend skips bail, then the bonds company revokes his bond and they send bounty hunters out for him. If you signed a contract to be responsible, you could be on the hook for any costs they incur for tracking your friend down.

The other option is to put up a cash bond or property bond directly with the court. If you post the entire amount with the court and your friend makes all appearances, then you get all your money back at the end of the case. Of course, if your friend skips, you lose whatever you put up.

This guy is a “Level 7 Contributor” on Avvo. He got his license 13 years ago and now does 80% criminal defense work. His Avvo rating is 9.5 out of 10. I think his answer is well-written, concise, and thorough.

I have only one question for him: What is this “bond company” of which you speak? Is that like the bail-bond outfit that Dog the Bounty Hunter works for? Fascinating. We don’t have those here in Illinois.

In Illinois, private bail bond services are not allowed. You have to make your arrangement directly with the court. I guess the lawyer who answered the question was unaware of this, probably because he’s in California.

Wow. Right out of the gate—first answer to my first question. I’m beginning to understand what Scott Greenfield is complaining about.

Next contestant please?

Update: An earlier version of this post had a typo that indicated the lawyer got his license 30 years ago instead of 13.

Update: Got a better answer: Adventures in Avvo – Take 2

Playing Catch Up

“A lie gets halfway around the world before the truth has a chance to get its pants on.” — Winston Churchill

For those of you who didn’t follow it, an amendment to a bill in the US Senate was defeated this week, on a 58-aye, 39 nay vote.  (Yeah, I know that sound strange; another time, okay?)  You’ll find a remarkably typical MSM take on it here, and, honest, I’d love to discuss all the issues involved, but let’s save that for another time; that’s not this story. 

Part of the fight against passing this was the notoriously anti-gun advocacy group, the “Violence Policy Center,” headed by Josh “Sugar Daddy” Sugarman*, and, as you’d expect, they were slaughtering trees, right and left, to turn out their agitprop, foremost among it, a “study” (actually, a collection of unreliable anecdotes, including at least one just plain lie) that purports to show that shouts that “Concealed Handgun Permit Holders Kill 7 Police, 44 Private Citizens Over Two-Year Period”, which is, presumably, a bad thing and, putatively, some sort of reason that a law-abiding citizen who has been issued a carry permit in Minnesota can’t be trusted to, say, carry a handgun in New York. 

(Pinky swear, since right about now I know that a bunch of you are reaching for your keyboards:  yes, there’s a whole lot of other issues, around Federalism, states rights, carry permit laws, full faith and credit and all that stuff.  Not now, okay?)

Enter John Lott. Dr. Lott first came to public attention with the Lott/Mustard study that shows — pretty clearly, I think; others disagree — that among the effects of modern, mainstream, “shall issue” permit laws are to drive violent crime down slightly (when controlling for other factors), drive property crime up, also slightly.  By profession an economist, he’s kind of been dragged, kicking and screaming only a little, into the national gun debate, and like anybody else who has been around for awhile, noticed that the antigun folks need to spend a whole lot of money on Nomex undies, what with their pants bursting into flame from lying a lot.

He noticed an unlikely anecdote on page 17:

Minnesota
# Concealed Handgun Permit Holder: Michael C. Iheme
Date: July 24, 2008
People Killed: 1
Circumstances: On July 24, 2008, Michael C. Iheme shot and killed his wife after she left
her job at an assisted living center. Court records show that she had an active harassment
restraining order against him and suggest a history of domestic abuse, including threats to kill her. After the shooting, Iheme called 911 and said, “I have killed the woman that mess my life up….” Iheme, who had a concealed handgun permit, was found guilty of second degree murder.

Source: “911 call: ‘I have killed the woman that mess my life up,” Minneapolis Star-Tribune, July 26, 2008;
“Man found guilty of killing estranged wife in St. Louis Park,” Minneapolis Star-Tribune, February 6, 2009.

Yeah.  That does look strange, and unlikely, if you know anything about the subject.  The subject of a domestic OFP having a carry permit?  Unlikely.  Somebody with a history of domestic abuse being issued one?  It’s not impossible, but it’s not the way to bet.  Know a bit more, and it gets more unlikely — Sheriff Stanek’s office screwing up by issuing a permit to a domestic abuser with an OFP out on him?  Nah. 

But “nah” isn’t a debunking.

Lott dropped an email to Andrew Rothman, a local Minnesota activist — he’s a friend of mine, and also the Executive Director of MADFI — asking him to check it out, and Andrew got busy, sending one flunky off to see if there was some wisdom on the subject (check, but the flunky knew that) and interest in helping out on the part of David Gross (one of the few essential people in Minnesota Second Amendment activism, David’s also an attorney, who knows the laws around this stuff backwards and forwards, having been involved in the writing of some and the practice of a lot of them for decades), and dispatching another — John Pierce, second year law student at Hamline — to the courthouse to look for the documentation that would have existed if Iheme had been a carry permit holder arrested on suspicion of murder.

Gross struck paydirt — Hennepin County Sheriff Rich Stanek, who would have been the issuing sheriff, took a quick look at both the relevant laws, regulations, and facts, and went on the record that Iheme not only had not had a carry permit, but had never even applied for one.

Yup. Stanek didn’t say it — I am — but the VPC was lying.  What they said just ain’t so.

And Pierce, looking for the nonexistent orders around the carry permit, stumbled across the smoking gun:  the police report that showed that what had been seized was Iheme’s purchase permit.  Iheme had a permit to purchase a firearm, not one to carry.  But that fact had been carefully left out of the Star Tribune’s reporting with the Strib’s reckless disregard for the truth, and picked up and repeated by the folks at the VPC, who — having endlessly picked at all of the states’ carry laws — had every reason to believe that the Strib had gotten it wrong, but just passed off the lie to their easily-gulled audience.

How easy?  Well, the next morning, on the Senate floor, Robert Menendez of New Jersey quoted the VPC “study”, as though it proved something — only to be shot down (metaphorically, honest) by the sponsor of the amendment, John Thune, who had been informed that there were provable lies in it, this among them.

What can we learn from this?

Well, we can’t learn, alas, that 58 yes votes is enough to get something through the Senate; it wasn’t, the other day.  We can’t learn that the Star Tribune, in knowing and reckless disregard for the truth, will carefully leave out the word “purchase”, when talking about a “gun purchase permit” held by a murderer — we already knew that.  That’s just how they roll.

We can’t learn that the anti-gun folks like the VPC simply don’t care about truth — we already knew that, too.

We can learn, though, that networked grassroots activism can do things that the highly-paid lobbyists — from the VPC or anywhere else — just plain can’t do.

That’s worth learning, again.

____
* Okay, okay:  I don’t have the slightest idea if Josh Sugarman has a nickname, and, if so, what it is. 

in Ethics

Customs Agents Beat You Back

In response to my recent missive (“Beating Customs Agents With Your Laptop”) about the fourth-amendment-free zone overseen by U.S. Customs and Border Protection, Lawrence Friedman at Customs Law sent an email explaining some of what can really happen when you try to apply technogeek law to the real world:

In response to your encryption-deleted key suggestion, you might think in terms of a lost key to a suitcase.  If CBP decides they want to search your locked suitcase, they will ask for the key.  If you say you lost the key, they will find the nearest pry bar and open it.  Same goes for your laptop.  The inspector at the border does not necessarily know or care anything about encryption levels.  What he or she knows is that he or she has the authority to take it, turn it over to Immigration and Customs Enforcement, and wait to see what they say.  You could be without your laptop for a very long time.

If Customs decides it wants to play hardball, the next thing that will happen is that you will get a summons demanding the release of the encryption key.  Even if you don’t know it, the key is in your possession or control (since you left it with someone else).  That’s good enough.  Fail to turn over the key, and you may find yourself in court with a federal judge threatening to toss you in jail until you come up with the key.

To me, that made no sense, so I explained my thinking:

Hypothetically, they wanted to see what was on my laptop, and it contained 160 gigabytes of ciphertext. They saw that. The decryption key is stored inside the country and is not crossing the border, so it’s none of their business under the fourth amendment, and the plaintext doesn’t even exist unless I decrypt the disk, so how can I be legally required to provide it?

I knew he’d eviscerate my argument, but the way he did it was chilling:

Your response, I think, points out the false premise in your thinking. The law is clear that the fourth amendment protects the interests of people, not property. And, it only applies to people inside the US. At the border, the fourth amendment offers you no protection against an unreasonable search and seizure with the limited exception of the most egregiously personal physical searches. The Supreme Court famously said that border searches are almost always reasonable because they are border searches.

Er, yes…I believe that is technically referred to as the “fuck you and your rights” theory of constitutional interpretation.

Actually, as Kip Esquire explained in a comment last year:

The same session of Congress that passed the Bill of Rights (to send to the states for ultimate ratification) had two months earlier passed a plenary customs search statute. Therefore the Fourth Amendment was “obviously” not meant to apply to customs searches — the “legislative intent” is, we are told, unambiguous and not open for debate.

By the way, Lawrence Friedman was a really nice guy to answer my idiot questions, and his blog, Customs Law, is well-written. If you have an urgent desire to keep up with the latest word in enforcement of laws relating to textile imports and preference programs, fumigation of wood packing materials, and denial of special licenses to unlade, it’s the only place to be.

One more thing. In his first message, Friedman also had this advice:

Best thing to do is cooperate with the search, identify any documents that may be privileged or business proprietary, and smile a lot.  Whenever possible, leave the laptop at home.  You can take some solace in the fact that these searches really are quite rare.

Heck, I’ve never been out of the country. It’s the principle of the thing that pisses me off. I’d like to think that lying back and trying to enjoy it is not the American way.

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