Scanning the Heavens

wilwheaton: jenniferdeguzman: He said Star Trek is too...

Wed, 15 May 2013 15:11:03 -0500

jenniferdeguzman:

He said Star Trek is too “philosophical”? Screw that noise.

mechcanuck:

I don’t know when this interview happened but I AM SAD AND ANGRY NOW

The philosophies in Star Trek are kinda part of the actual setting. If you don’t get that, why are you allowed to make Star Trek movies.

Sigh. The whole point of Star Trek is that it’s philosophical. If you don’t want philosophical Science Fiction, there’s plenty of that for you to enjoy, but Star Trek is philosophical. Philosophy is part of Star Trek’s DNA, and if you’re given the captain’s chair, you’d better damn well respect that.

Agreed! Screw JJ Abrams.

rockstareddie: The right of the people to be secure in their...

Tue, 23 Apr 2013 22:32:13 -0500

rockstareddie:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

we must not let this become the new Normal.

It is time to revisit Professor James Duane’s potent...

Tue, 23 Apr 2013 12:01:52 -0500

It is time to revisit Professor James Duane’s potent reminder about WHY one should not cooperate with the police when questioned. Even more relevant as we talk about the issue of self-incrimination. Give this video a watch.

I'm digging Justice Sotomayor. Voice of reason on SCOTUS

Tue, 23 Apr 2013 11:43:00 -0500

Another Justice Sotomayor criminal procedure opinion out today, in a technical deportation case about whether possession of 1.3G of marijuana constitutes an aggravated felony and thus is deportable, Once again, the good justice gets it right (not deportable). She is proving herself to be the primary voice of reason on the Court in the area of criminal procedure. And I am liking her more and more. She won me over last year with her concurrence in US v Jones, the GPS case.

The opinion - not one I’d recommend for light reading - is Moncrieffe v Holder, available at http://www.supremecourt.gov/opinions/12pdf/11-702_7kh7.pdf

The consequences of turning Bean-town into Baghdad

Tue, 23 Apr 2013 07:26:00 -0500

For the last several days I have been bothered by what I saw transpire in Boston. Initially my concern was focused on plans to use the “public safety exception” to avoid Mirandizing Tsarnaev once he was apprehended. But there was something deeper that I could not initially put into words. It was a deep sense of discomfort at the image of police dressed like storm troopers going house to house, armed with machine guns doing sweeps of homes and neighborhoods to find the suspect who had eluded them. These warrantless searches of the home cut to the very core of the Fourth Amendment’s protection. The right to retreat into one’s home and be free from unreasonable governmental intrusion has always been accompanied by the constitutional requirement of a warrant based on probable cause. The home is our castle, it is the one place where our privacy rights are most cherished and exalted. Yet apparently all it takes is to label a suspect as a terrorist and those protections get thrown away.

I am well aware that the people in Boston last week were traumatized, that there was real fear. I am not trying to diminish that. Yet, I can’t help but think that some of that fear was the direct result of the government’s response to the shoot-out Thursday night and the imposition of a city wide “lock-down” (read: martial law?) on Friday. The entire city was put on a lock-down to conduct a manhunt for a 19 year old suspect. This wasn’t just a couple neighborhoods, it was the entire city. People were told to stay in their homes; taxis, trains, and buses were shut-down. It was followed by images (and videos) of police in armored vehicles with machine gun turrets on top,accompanied by officers in full battle gear (soldiers?) walking down the street with AR-15s in hand, entering into homes, dragging the owners outside with their hands above their head as if they were under arrest, conducting full searches without a warrant. A student of mine who is a Vet pointed out to me that “this is exactly what we did to clear out cities in Iraq.” It was a textbook military operation. Yet, this Op occurred on the streets of an American city. It was a paramilitary operation in which a massive violation of civil liberties occurred, orchestrated by the Federal Government, the State of Massachusetts, and the City of Boston. And we accepted it without question.

In what other place in the free world would an entire city be put in a lock-down to find one criminal? Nowhere has this ever happened. It did not happen in Atlanta in 1996, it did not happen in London in 2010. It does not happen in Jerusalem or Tel Aviv. And there is a reason it hasn’t happened, because by doing so - we are basically letting the terrorists win by feeding off of the fear from the original event. You don’t need to hijack airplanes and crash them into skyscrapers — just put together a cheap “instructions-available-over-the-internet” explosive device, which you can purchase at your local Walmart — cause some mayhem (i.e., kill some people) and then shut down a city. What is the economic cost of that? Hundreds of millions of dollars? What a lesson this provides to other scumbags with a pipe-bomb.

Most important, I think, is the way the government’s actions served to enhance the psychological terror that many residents of Boston were feeling. They were already vulnerable, they were scared. It was real. But turning Bean-town into Baghdad multiplied that fear one-hundred fold. It was not only unprecedented, it was completely unnecessary. There could have been a middle ground. They could have requested people in parts of the city to stay off the streets. They could have gone house to house, asked permission to search yards, they could have asked questions of residents at the front door, and if they received a suspicious response, perhaps proceeded to do a search, but the video clips I have seen look like they should have been in a war zone in the middle east, not in urban residential communities in the United States.

And then what do we do at the end? What do we do when it is all over? We cheer them. We celebrate good police work catching the bad guy, while ignoring the means used to accomplish it. It is good versus evil, and the ends are all that matter. A massive violation of constitutional rights occurs, and we are complacent. Yes, they got the bad guy. But at what cost? What precedent does this set for our civil rights and liberties. I think we need to ask hard questions about what type of society we have, and why we are so willing to be complacent about our rights, and sacrifice them so easily.

We also need to ask hard questions to the government about how and why they chose to act the way they did. And we should not allow it to happen again in the face of fear. Writing about freedom of speech, Justice Louis Brandeis once said that “fear breeds repression; repression breeds hate” and “hate menaces stable government.” We simply cannot accept last week’s events as the new normal. We must not.

Yes, I care that the Boston marathon suspect has not been mirandized

Sat, 20 Apr 2013 17:20:30 -0500

“No person shall be compelled in any criminal case to be a witness against himself.” Those are the words of the Fifth Amendment. It says nothing about a “public safety” exception. And what the government can do to the most serious offenders, it can do to you or me too.

Justice demands that the suspect be read his rights, and have access to counsel, from the beginning of custodial interrogation.

As Emily Bazelon in Slate points out

[The] FBI will surely ask 19-year-old Tsarnaev anything it sees fit. Not just what law enforcement needs to know to prevent a terrorist threat and keep the public safe but anything else it deemed related to “valuable and timely intelligence.” Couldn’t that be just about anything about Tsarnaev’s life, or his family, given that his alleged accomplice was his older brother (killed in a shootout with police)? There won’t be a public uproar. Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.

Let’s repeat that last part. WHY do we have Miranda? It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.

You know you are in trouble when..

Sat, 20 Apr 2013 09:50:00 -0500

a Supreme Court opinion begins with..

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II–C and III, in which SCALIA, GINSBURG, and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C.J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

Sigh…

But in this instance, it really means Kennedy joined all of the opinion except two sections (II-C and III, in case you are wondering) he thought un-necessary, and which did not add to the ruling.

If you are curious, this is from Missouri v McNeely, the Court’s case this week that says the dissipation of alcohol from the bloodstream does not by itself create an “exigent circumstance” (or emergency) justifying a warrantless blood draw after a DUI. But it might, if in the totality of the circumstances, the officer can demonstrate the need for the blood test. Yet, the Court won’t specify what such circumstances might look like.

Double sigh….

I too find it to be an interesting time for Fourth Amendment jurisprudence. May I ask you whom you agreed with more: Scalia's majority opinion or Kagan's concurrence?

Fri, 12 Apr 2013 18:21:56 -0500

Thanks for your question. I agree more with Kagan in Jardines, and Sotomayor in US v Jones; I think the Scalia “trespass doctrine” minimizes the value of individual expectations of privacy, and results in a Fourth Amendment that excludes a lot. More so in the GPS case from last term, but together the two decisions seem to suggest a new regime for the Fourth Amendment, and I have a lot of questions about that.

There is no doubt that protected places have always been important, and physical intrusion has been a part of the Fourth Amendment, but his approach tends to minimize Justice Stewart’s wise statement from US v Katz that “the Fourth Amendment protects people not places.”

H/T Unvirtuous Abbey

Fri, 12 Apr 2013 08:54:38 -0500

H/T Unvirtuous Abbey

This made me laugh. I average 10-14 days. LOL

Sat, 06 Apr 2013 21:18:42 -0500

This made me laugh. I average 10-14 days. LOL

Truncated transcript from today's SCOTUS argument

Sun, 31 Mar 2013 09:00:00 -0500

Just perfect!

courtneymilan:

For those of you who don’t want to read the transcript of the oral argument in Hollingsworth v. Perry, which is all of 82 pages long, or whose heads exploded when you tried to read it, I’ve written a helpful summary. It’s available below the jump.

This summary is still fairly long, but it’s shorter and I’ve worked to make things as accessible as possible to those without legal training.

As a result, there are some places where I might have oversimplified the legal argument. My summarizing might be partially colored by my personal viewpoints, but this is basically what happened, plus or minus the aliens eating children.

Read More

Interesting Times for the Fourth Amendment: The Trespass Doctrine is Dead, Long Live the Trespass Doctrine

Fri, 29 Mar 2013 08:32:00 -0500

In all of the excitement over the marriage equality cases, the Court’s important decision in Florida v Jardines has gone by the wayside.

Jardines involves the use of a K-9 narcotics dog sniff done on the front porch or curtilage of a home. This was the second case in 13 months in which Justice Scalia has decided a search and seizure case using his newly reborn “trespass doctrine.” Last January, in United States v Jones, he ruled in a “unanimous” decision (with 2 concurring opinions that make Jones look more like a 5-4 decision) that the warrantless placement of a GPS tracking device on the under-carriage of a car was a physical intrusion and thus a trespass on a constitutionally protected area. Scalia argued that the trespass doctrine was the historical basis for 4th Amendment protection, and the Katz “reasonable expectation of privacy” test added to, but did not substitute for the earlier test. He conveniently ignored Justice Stewart’s unambiguous statement in his Katz majority opinion that the trespass doctrine was “no longer good law” and that the Fourth Amendment protects “people and not places.”

Scalia used the same trespass rationale in Jardines. The home is a constitutionally protected area. The front porch is part of the curtilage of the home,and is entitled to the same protection. Therefore, bringing a dog to the front steps to do a narcotics sniff was a physical intrusion of a constitutionally protected area. He did not rule on whether it violated Jardine’s expectation of privacy because in his view, he did not need to reach that question.

What was interesting about this case is that Scalia ignored his own precedent from Kyllo v. United States (2001), in which he used the Katz reasonable expectation of privacy test to strike down the use of a thermal visioning imager to collect information on heat emanating from the home. Justice Kagan points this out in her Jardines concurrence, and suggests that Jardines is an easy case — it really is just Kyllo with a highly trained narcotics dogs instead of the Agema 210 thermal visioning imager.

In re-reading Scalia’s decision in Kyllo, there was good reason for him to ignore his majority opinion from that case. He does not want to acknowledge that he once decided cases using Katz, which he would prefer to go away, as he wants to rely entirely on his newly reborn trespass doctrine. In Kyllo he admitted that Fourth Amendment searches had been “decoupled” from the tresspass/property origins in Katz. Yet in Jones last year he acted as if the trespass doctrine has always been the way the 4th Amendment has been interpreted, and always the law, He repeats that claims in Jardines. Somehow he has brought the trespass doctrine back to life, disregarding the Katz’ precedent which said the trespass doctrine was no longer good law. He is trying his best to make Katz go away. Whether that will happen, however, is questionable, since in both Jones and Jardines other justices (Sotomayor in the former; Kagan in the latter) have focused heavily on Katz expectations of privacy to reach their decision. Plus Alito’s concurrence in Jones and dissent in Jardines also use Katz (but with different results).

There is one other interesting tidbit that comes out of the “new trespass doctrine” cases. In Jardines, we have a physical intrusion on a constitutionally protected area (the home). In Jones, the placement of the tracker on the vehicle was an intrusion on a constitutionally protected area (the vehicle, an “effect”). Yet, a vehicle has long been ruled to posses a “diminished expectation of privacy.” Thus, all of the other K-9 cases have had no problems with the use of a dog sniff. It does not violate any expectation of privacy, and Stevens went so far in Illinois v Caballes (2005) to argue that one has no expectation of privacy in possessing contraband. It strikes me that if the vehicle is a constitutionally protected area in Scalia’s logic, why is the K-9 sniff of the vehicle not a search? Scalia himself rejected the “through the wall” vs. “off the wall” argument of Justice Stevens’ dissent in Kyllo. Would he be willing to make the same distinction with a K-9 search of a car? I doubt it, and this position would not likely command a majority in any event, but it illustrates some of the limitations and inconsistencies of the new Fourth Amendment regime he is trying to create.

These are interesting times for the Fourth Amendment, with many issues that still need to be answered.

Beautiful “spring” day in #BloNo

Tue, 26 Mar 2013 11:23:35 -0500

Beautiful “spring” day in #BloNo

I want to live in a country that prioritizes protecting its children over protecting its guns.

Fri, 14 Dec 2012 19:11:00 -0600

This captures my views so well.

"Speak peace. Speak peace now. Live peace. Live peace now. Be peace. Be peace now."

Fri, 14 Dec 2012 15:39:29 -0600

“Speak peace. Speak peace now. Live peace. Live peace now. Be peace. Be peace now.”

- Derrick Weston, http://derricklweston.wordpress.com/2012/12/14/advent-day-13-i-dont-want-to-write-about-peace-right-now/

Three days until the Alabama adventure

Thu, 13 Dec 2012 15:34:53 -0600

I finish grading finals tomorrow, and then on Sunday morning, at 6am, I head off with 40 college students and 4 other faculty/staff mentors on a Leaders of Social Change Trip to Birmingham, Alabama. A ten hour bus ride, staying in a YMCA Camp outside of Birmingham (its actually a retreat center, with beds, showers, etc..) and then five days of visits to civil rights sites and service opportunities, with lots of stuff thrown in.

The students organized the whole trip, including where we are visiting, and doing service. Am I nervous? A little, for sure. But excited too. How will this trip unfold? I have absolutely no idea, I am told by those who have gone before that it is a lot of fun, and worth doing.

I’ll blog the experience as it transpires.. For now, I am more concerned with making sure I bring enough food so I don’t starve…

Well played, student, yes... well played indeed.

Wed, 12 Dec 2012 12:30:13 -0600

I teach a constitutional law course oncriminal procedure and evidence, and after 15 weeks of caselaw, I give the class a novel to read, Michael Connelly’s The FIfth Witness, one of the great courtroom dramas of our day. Easy read, we discuss it, they write a reflection paper for the final.

Those papers were due this morning at 10am. Sometime in the middle of the night I received an email that will go down in the annals of my career.

I once wrote a paper about a book called nisei daughter. I had never even seen the book and managed to squeeze out 15 pages. I’ve never seen this one either but can’t manage 4 lousy pages. You honestly have picked the only book in the history of publishing that has no plot summary anywhere. I know you are an apple guy so you know much you can get done in 3 hours. That being said i spent 3 hours today trying to find anything besides whats on the cover on the “Fifth witness” and had no luck at all. Well played sir, well played indeed!”

Wow. I apparently had the audacity to give an assignment from a book that was not cheat-able. If I could only take the credit. And never mind the admission of plagiarism in another class. This one is for the ages.

Yeah, lets blame the workers. :roll eyes:

Mon, 19 Nov 2012 10:16:12 -0600

Yeah, lets blame the workers. :roll eyes:

"A few years later, jury duty again. The judge states that the defendant is charged with possession..."

Sat, 17 Nov 2012 07:58:13 -0600

“A few years later, jury duty again. The judge states that the defendant is charged with possession of 1,700 milligrams of cocaine. It was found on his body, he was arrested, and he is now on trial. This time, after the Q&A is over, the judge asks us whether there are any questions we’d like to ask the court, and I say, “Yes, Your Honor. Why did you say he was in possession of 1,700 milligrams of cocaine? That equals 1.7 grams. The ‘thousand’ cancels with the ‘milli-’ and you get 1.7 grams, which is less than the weight of a dime.” Again I’m out on the street.”

- Neil deGrasse Tyson (via politicalprof)

The absurdity of the war on drugs.

azspot: Mapping Racist Tweets in Response to Obama’s...

Sun, 11 Nov 2012 19:30:43 -0600

azspot:

Mapping Racist Tweets in Response to Obama’s Re-election

Some very interesting use of social media research; disturbing as heck, but interesting research.