Tag: in-the-news

It’s usually best to not delve into politicians’ motivations lest one end up stupider for the effort. Nowhere is that truer than in the bills signed Monday by New York Gov. Kathy Hochul (D) that, among other foolish restrictions, ban the acquisition of body armor by anybody outside of a few favored, government-controlled professions. These protective devices, incapable of offensive use unless thrown especially hard, are now unavailable for legal purchase by New Yorkers seeking even the most passive means of defending themselves and their loved ones.

“As in far too many other mass shootings, the gunman in Buffalo went into the store wearing a bulletproof vest so he would be safe while he slaughtered innocent victims,” insisted Assemblyman Jonathan Jacobson. “Unless your profession puts you at risk of gun violence, there is no reason you need this kind of body armor. This bill will help keep bulletproof vests out of the hands of those who want to protect themselves from law enforcement or other security officers while harming others.”

It’s true that the mass-murderer at Tops supermarket in Buffalo wore body armor, as have several other criminals in recent years. The same factors that drive sales to the public at large, specifically the ability of armor to protect users from injury, make the product unavoidably attractive to people who intend harm.

“A veteran Marine and former police officer in both Wyoming and Iowa, Waldrop started his company to make body armor for his fellow law enforcement officers and servicemen and women,” according to a January 2021 report from Iowa’s WOI about RMA Armament Inc. “And until March of 2020, 80% of his sales were law enforcement and defense contracts. The rest he said was often to veterans or tactical gear enthusiasts. Those figures are now flipped.”

Company CEO Blake Waldrop attributed soaring sales to economic uncertainty and social unrest. The public wants to protect itself against the criminals who are part of that social unrest, while criminals want to protect themselves against members of the public defending themselves and against police who might, on occasion, care to intervene in crimes. New York’s new law would ban body armor sales on the grounds that armor plates are sometimes used by bad guys as well as the good ones. It’s the same moral cooties theory of legislation that drives gun control laws, but this time applied to passive protective devices. At the risk of giving anybody ideas, the same arguments might well apply to the cars criminals drive or any first aid gear they might carry. 

Until now, the only state with body armor restrictions beyond penalizing their use in crime was Connecticut, which requires that transactions take place in-person. “It is a class B misdemeanor, punishable by imprisonment for up to six months, a fine of up to $1,000, or both, to sell or deliver body armor unless the transferee meets in person with the transferor to accomplish the sale or delivery,” reads that state’s law, which makes exceptions for military and law enforcement personnel.

New York’s new law goes further, making it a Class A misdemeanor if people “not being engaged or employed in an eligible profession…knowingly purchase or take possession of a body vest.” As in Connecticut, the law exempts military and law-enforcement personnel and “such other professions designated by the Department of State.”

Incidentally, New York and neighboring Connecticut both already have plenty of experience with performative and unenforceable laws seeking to restrict self-defense rights. When Connecticut in 2013 required the registration of military-looking semiautomatic rifles tagged as “assault weapons,” compliance never got higher than about 15 percent. The next year, a similar law in New York scored about 5 percent compliance. It’s obvious that many Americans aren’t impressed by lawmakers and are unwilling to go along with their dictates.

Now New York government officials think they’re going to deprive people of items that can’t be used to hurt anybody, but which may protect their wearers against criminals and, yes, against cops good and bad. They want to prevent the public from purchasing protection even as stories continue to appear about the unwillingness and inability of police to act in Uvalde, Texas, and in many violent incidents before. Rather than rely on law enforcement, people take responsibility for their own safety by purchasing firearms and, unsurprisingly, body armor. Parents are eagerly buying protection for their kids.

“Parents are doing anything to keep their kids safe on the heels of another school mass shooting — and that means an all-new run on bulletproof backpacks,” reports TMZ. “Former Secret Service agent, Mike De Geus, is the founder and CEO of Leatherback Gear, and he says his company has seen an 800% spike in sales for their fortified knapsacks” after the Uvalde, Texas murders.

Note that there’s absolutely nothing stopping New Yorkers from driving to Pennsylvania (or Connecticut, for that matter) and purchasing body armor. State residents might want to take advantage of that option, since criminals planning attacks are unlikely to be terribly observant of any inconvenient laws. Don’t be surprised if New Yorkers worried about their safety once again refuse to comply with an astoundingly foolish law.

Let’s go back to Assemblyman Jacobson’s justification for this new law. “This bill will help keep bulletproof vests out of the hands of those who want to protect themselves from law enforcement or other security officers while harming others,” he said. That is, he wants to make it more difficult for people to avoid being shot, on the assumption that it will be good cops doing the shooting. But there are far more decent human beings concerned about their safety than there are bad people intending harm. It’s unfortunate that those who intend harm are capable of using the same tools available to good people, but that’s an inevitable byproduct of shared humanity. Decent people shouldn’t be made collateral damage of anti-crime efforts.

“In response to the recent high-profile mass shootings, lots of legislators are hinting about restricting the sale of body armor to private citizens,” writes former police officer and current tactical trainer Greg Ellifritz. “Obviously, that will do nothing to prevent an active killer attack but they feel pressed to ‘do something.'”

Ellifritz’s words introduce a helpful guide to body armor including his recommendations. I’m sure that nobody with brains and opinions worth considering would object if you make a purchase on behalf of a friend in New York.

The post New York's Body Armor Ban May Be Stupidest Gun Legislation Yet appeared first on Reason.com.

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6/9/1970: Justice Harry Blackmun (no relation) takes oath.

 

The post Today in Supreme Court History: June 9, 1970 appeared first on Reason.com.

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South Carolina has the highest eviction rate in the country, and the state chapter of the NAACP wanted to find out why. Given the difficulty of tracking down every case by hand, the organization hoped to use a software program called a “scraper” to collect data from South Carolina’s online repository of legal filings.

Researchers, academics, and investigative journalists frequently use scrapers to automate this kind of laborious, large-scale project. But the South Carolina Court Administration categorically bans such automated data collection.

Now the American Civil Liberties Union (ACLU) of South Carolina and the South Carolina NAACP are challenging the state’s scraping ban in federal court. In a lawsuit they filed in the U.S. District Court for the District of South Carolina in March, the groups argue that the policy unreasonably restricts their First Amendment rights. “This case is about ensuring core First Amendment principles, like the right to access public court filings, are applied in a way that meets our rapidly expanding digital reality,” Allen Chaney, the ACLU of South Carolina’s legal director, said in a press release.

The NAACP says collecting eviction filings would allow it to research the issue and contact affected tenants to ensure they have meaningful access to the courts. But scraping has numerous other legitimate uses.

In 2018, for example, I wanted to find out how often Texas police used a loophole in the state’s public record law to hide information on deaths in custody. So I wrote code to scrape more than 300,000 pages of public-record rulings that the Texas Attorney General’s Office had posted on its website. Then I filtered the results for those that cited the specific provision I was investigating.

That would have been impossible without a bot to do the heavy lifting. By scraping data, I identified more than 80 cases in which Texas police withheld information about deaths in custody from families, lawyers, and journalists.

The South Carolina lawsuit is the latest challenge to state anti-hacking laws and the federal Computer Fraud and Abuse Act (CFAA). The U.S. Court of Appeals for the 9th Circuit issued a landmark ruling in April that scraping publicly available data from websites does not constitute “unauthorized access” under the CFAA. While it’s true that scrapers can bog down websites, ethical coders add courtesy delays to their programs that avoid that problem and include identifying information in their HTTP requests to government website administrators.

Banning scrapers is not about preventing unauthorized hacking. It just makes it harder for the public to know what the government is doing.

The post Data Scraping Is Not a Crime appeared first on Reason.com.

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New York City school teacher Shannon Hall has been charged with sexual abuse, forcible touching, aggravated harassment and endangering the welfare of a child after police said he sexted one of his students at Jamaica Gateway to the Sciences High School and groped another. Police said he texted one 14-year-old repeatedly, saying he wanted to kiss her and have sex with her. He also repeatedly apologized when she confronted him, saying he was drunk at the time. Police said that when they were investigating those texts they found he had also touched the breasts of another student.

The post Brickbat: That Was Just the Alcohol Talking appeared first on Reason.com.

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If you log onto NYTimes.com now, and check above the fold, you will see a lovely story about the Jurassic Park cast and Kelly Clarkson’s performance. If you scroll down, down, down, down, down, you will find a story about the attempted assassination of a Justice. By my count, the Kavanaugh assassination attempt is perhaps the sixteenth most important news item of the day! Oh, and according to the Washington Post, Kavanaugh and his family were home last night.

I agree with Nate Silver.

I don't agree at all with blaming the leak for it, but yeah it's sort of crazy that it's not being treated as a bigger story (NYT homepage screenshot presented for posterity). There's often more bias in which stories are deemed to be salient than how they're written about. pic.twitter.com/aNJZAdmUG8

— Nate Silver (@NateSilver538) June 8, 2022

 

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In the late 1970s, the American Civil Liberties Union (ACLU) famously—and controversially—defended the right of neo-Nazis to march through the Chicago suburb of Skokie, Illinois, which was home to many Holocaust survivors. It was a defining moment for the group and for the idea that free speech, no matter how vile, must be guaranteed to everyone.

But over the past 20 years—and especially over the past few years—the ACLU has seemingly retreated from its unwavering defense of free speech in favor of supporting progressive candidates and causes. It ran ads supporting Stacey Abrams in her gubernatorial campaign in Georgia, for instance. It’s called for the forgiveness of $50,000 in student loan debt. It even ghostwrote and placed the Washington Post op-ed about domestic violence that led to Amber Heard losing a defamation case against Johnny Depp.

Its lack of focus on its traditional mission of defending free speech has gotten to a point where its former executive director, who led the group during the Skokie controversy, has become one of its biggest critics. “If the Skokie case happened again,” Ira Glasser told me in 2020, “would the ACLU take it? I don’t know.”

But if the ACLU is retreating, another free speech group is expanding to fill the void left behind. Founded in 1999 to combat speech codes on college campuses, the Foundation for Individual Rights in Education—FIRE—has announced a new name and an expanded mission of defending free speech off-campus as well as on. 

The new name is the Foundation for Individual Rights and Expression and the group has announced “a three-year, $75 million litigation, opinion research and public education campaign aimed at boosting and solidifying support for free-speech values.” FIRE’s longtime president is Greg Lukianoff, the co-author of the bestselling book The Coddling of the American Mind, and, as it happens, a former employee of the ACLU—a group for which he has lots of praise. 

In today’s episode, he tells me about why he’s concerned that support for what he calls the “culture of free speech”—broad-based belief in the value of tolerance and civil disagreement—has been declining for the better part of a decade and how FIRE is going to work to turn that around.

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Economists sometimes say that when the U.S. sneezes, the world catches a cold. With that in mind, given that famously left-wing San Francisco has booted a prosecutor accused of being “soft on crime” from office, many might assume the rest of the nation will reflexively reject prosecutors who don’t define their job as seeking the maximum punishment for every defendant. The reality is much more complicated, but the recall of San Francisco District Attorney (D.A.) Chesa Boudin does demand a rethinking of the “progressive prosecutor” brand.

First, let’s unpack the popular claim that this recall is a harbinger of an anti-reformist tsunami poised to sweep across the nation. For one thing, most elected prosecutors do not have nearly $7 million working against them, as Boudin did, and most jurisdictions do not have recall elections, which create unique electoral dynamics. Specifically, these plebiscites tend to generate lower turnout, with about a third fewer people voting this time than in 2019 when Boudin was elected, and attract the segment of voters most dissatisfied with the status quo.

Unlike the attempted recall of Democratic California Governor Gavin Newsom, replacements for Boudin were not on the ballot, and San Francisco Mayor London Breed is now set to appoint his successor. In an age when the public is skeptical of most elected officials and candidates, an election without an opponent to criticize creates a referendum on the status quo—a setup far more perilous for an incumbent than a choice between flawed options.

Boudin was also more vulnerable because San Francisco adopted some of the nation’s strictest COVID-19 restrictions. This affected both perceived and actual levels of public safety, as well as Boudin’s ability to prosecute crime. With more people holed up in their homes instead of commuting to work or going out to eat, those seeking to perpetrate crimes constituted a greater share of the total number of people on the street. Thus, even though the number of reported crimes in San Francisco was lower in 2021 than in 2019, there is evidence that in dense urban environments where the denominator of total people on the street went down precipitously, those that did go out had a greater chance of becoming a victim of street crime. 

While the pandemic and related restrictions challenged the work of prosecutors nationwide, including through mandated closure of their own offices and courts, San Francisco’s halls of justice were particularly slow to reopen.This created a backlog of 441 felony defendants  who, as of May 2022, had gone beyond their last legal date for trial. As Boudin acknowledged, this outcome not only delays the delivery of justice, but also frustrates crime victims seeking accountability and closure. 

Finally, although Boudin never expressly called for “defunding the police,” comments he made during his initial campaign led some to believe that he was sympathetic to the idea, a perception promoted by his critics. The defund slogan has rightly become toxic over the last two years as homicides have spiked, though the rise in killings has occurred in all jurisdictions, regardless of the D.A.’s ideological orientation. 

To be clear, San Francisco police unions also attacked Boudin’s predecessors, including  Vice President Kamala Harris, and would have probably continued opposing him anyway, in part because he has discharged his duty to prosecute nine officers for alleged misconduct.. But other district attorneys who campaigned as “progressive prosecutors” smartly avoided quips that could leave them carrying the “defunding” baggage, an association that can exacerbate tensions with officers on whom they depend to arrest suspects and gather evidence. 

This mix of dynamics may not apply to all prosecutors who have campaigned on reform, but the Boudin recall should still prompt a rethinking of the notion that prosecution should be “progressive.” That word typically connotes expanding the size and cost of government, often without sufficient accountability. In fact, however, policies and practices that seek to more efficiently allocate limited resources and provide public visibility into a prosecutor’s work and outcomes resonate not just with voters in liberal jurisdictions, but elsewhere as well.

Take the top prosecutor in Jacksonville, Florida, Melissa Nelson. Nelson won office as a conservative Republican by pledging to reduce the number of youths tried in adult court, identify and correct wrongful convictions, and divert many defendants with mental health and substance use disorders to specialized courts and treatment programs. At the same time, her balanced approach has included focusing prosecutorial resources on serious gun crimes, seeking both tough sentences when warranted and developing partnerships with community-based violence prevention groups, and championing expanded victims’ services. Since being elected in 2016, she has not only fulfilled these commitments but deployed an online dashboard of prosecutorial performance measures, providing greater public transparency. This dashboard is identical to those used by her Democratic counterparts in Milwaukee and Philadelphia, and similar to a dashboard that Boudin expanded after it was initially developed by his predecessor, George Gascon, who is now the D.A. in Los Angeles and may face his own recall election.

The point is that the choice should not be cast as between right and left, but between two conceptions of a prosecutor’s role. Under an antiquated approach, the prosecutor’s only mission is to send as many people to prison for as long as possible, despite burgeoning research showing that in many instances, opting for formal prosecution and jail over diversion for those arrested for the most minor crimes increases recidivism. Yet reality has always been more complex than the sign in some stores declaring “Shoplifters Will Be Prosecuted to the Full Extent of the Law.” Indeed, Americans of all ideologies can appreciate the difference between a random kid who steals a candy bar and organized shoplifting like the “smash and grab” robberies that bedeviled San Francisco and surrounding areas late last year.

The alternative model, in which the prosecutor is a “minister of justice,” involves not only reaching a just resolution in the case at hand, but also weighing the aggregate impact of how each case is processed on metrics such as reducing recidivism, controlling costs, and ensuring proportionality in case resolutions regardless of the victim or defendant’s background.

Ultimately, voters’ decision to toss out Boudin is at least substantially attributable to local circumstances – and serves as an indication that some jurisdictions went too far in stopping the wheels of justice from turning during the pandemic. What it does not suggest is the existence of some powerful public demand that prosecutors dispense with anything other than a punitive impulse. 

Sending the most dangerous and chronic lawbreakers to prison so that they cannot continue to threaten the public will always be part of a prosecutor’s job, but a broader toolbox and vision are needed to deliver individually tailored justice to maximize the use of public resources. If we pigeonhole the performance of the vital government function of prosecution as either progressive or conservative, it obscures the truth that enforcing the law and balancing safety and justice are moral and practical imperatives, rather than ideological crusades. The recall in San Francisco is over, but a holistic, data-driven approach to prosecution is too important to forget.

The post There's Still Hope for Prosecutorial Reform After Recall of San Francisco District Attorney Chesa Boudin appeared first on Reason.com.

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The plan to kill Justice Kavanaugh is horrible for many obvious reasons. But the one nonobvious question that might arise, and that I thought I’d address, is this—it appears that the would-be killer likely changed his mind, which is why he was arrested:

On June 8, 2022, at approximately 1:05 a.m., two United States Deputy Marshals saw an individual dressed in black clothing and carrying a backpack and a suitcase, get out of a taxicab that had stopped in front of the Montgomery County, Maryland residence of a current Justice of the United States Supreme Court. The individual looked at the two Deputy S. Marshals, who were standing next to their parked vehicle, and then turned to walk down the street.

Shortly thereafter, Montgomery County Emergency Communications Center fielded a call from an individual who identified himself as NICHOLAS JOHN ROSKE. ROSKE informed the call taker that he was having suicidal thoughts and had a firearm in his ROSKE also told the call taker he came from California to kill a specific United States Supreme Court Justice. The Montgomery County Police Department officers were dispatched to the location near the Supreme Court Justice’s residence where they encountered ROSKE, who was still on the telephone with the Montgomery County Emergency Communications Center. ROSKE was taken into custody without incident and law enforcement officers seized both the backpack and the suitcase that were still in his possession.

Assume, for purposes of this question, that Roske called 911 because had completely and voluntarily changed his mind (rather than because, say, he was worried about getting caught). Does that mean that he’s not guilty of the crime of attempt (setting aside the separate question of whether he’s guilty of threatening a Justice), under the “abandonment” or “renunciation” defense?

The Model Penal Code, and followed by some state courts and statutes, say that yes, such a defense would be available; here, for instance, is the New Jersey statute, based on the MPC:

When the actor’s conduct would otherwise constitute an attempt under subsection a. (2) or (3) of this section, it is an affirmative defense which he must prove by a preponderance of the evidence that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.

But federal law appears to generally say no (though I know of no precedents from the Fourth Circuit, where the case is being prosecuted). U.S. v. Young (8th Cir. 2010) lays it out thus (and see also U.S. v. Tilotta (S.D. Cal. 2022)):

The Model Penal Code lists two considerations for recognizing such a defense [of abandonment] in attempt crimes: (1) “renunciation of criminal purpose tends to negative dangerousness,” and (2) “to provide actors with a motive for desisting from their criminal designs, thereby diminishing the risk that the substantive crime will be committed….

[A]ll of our sister circuits that have faced this issue have either held that a defendant cannot abandon a completed attempt or have alluded to such a determination. See U.S. v. Crowley (2d Cir. 2003) (not formally addressing the issue but noting, “[t]he only other circuits that have formally addressed the question have rejected the defense as a matter of federal law”); U.S. v. Shelton (6th Cir. 1994) (“[W]ithdrawal, abandonment and renunciation, however characterized, do not provide a defense to an attempt crime.”); U.S. v. Bussey (9th Cir. 1974) (“A voluntary abandonment of an attempt which has proceeded well beyond preparation as here, will not bar a conviction for the attempt.”); U.S. v. Wales (10th Cir. 2005) (unpublished) (“[N]either this circuit nor any other circuit to have addressed the issue has held that abandonment or renunciation may constitute a defense to the completed crime of attempt.”).

Specifically, in Shelton, the Sixth Circuit rejected the Model Penal Code’s approach and held that “withdrawal, abandonment and renunciation, however characterized, do not provide a defense to an attempt crime.” The court explained:

… [T]he attempt crime is complete with proof of intent together with acts constituting a substantial step toward commission of the substantive offense. When a defendant withdraws prior to forming the necessary intent or taking a substantial step toward the commission of the offense, the essential elements of the crime cannot be proved. At this point, the question whether a defendant has withdrawn is synonymous with whether he has committed the offense.

[But a]fter a defendant has evidenced the necessary intent and has committed an act constituting a substantial step toward the commission of the offense, he has committed the crime of attempt, and can withdraw only from the commission of the substantive offense.

We are not persuaded that the availability of a withdrawal defense would provide an incentive or motive to desist from the commission of an offense, especially since the success of the defense presupposes a criminal trial at which the issue would be submitted to the jury for decision. A remote chance of acquittal would appear to have an even more remote chance of deterring conduct….

We therefore adopt the Sixth Circuit’s approach in Shelton, specifically reject the Model Penal Code approach, and hold that the defense of abandonment is not warranted once a defendant completes the crime of attempt. We acknowledge, that “[a]fter a defendant has evidenced the necessary intent and has committed an act constituting a substantial step toward the commission of the offense, he has committed the crime of attempt, and can withdraw only from the commission of the substantive offense,” not the attempt of such offense.

Note also that different states take different views of when something shifts from mere preparation (not a crime) to a punishable “completed attempt”; but the federal courts, as Young note, follow the “substantial step” test: The government must prove that the defendant had the purpose of committing a crime, and that the defendant took a substantial step. Traveling armed to the victim’s house, with the intent to commit the crime, would surely qualify as a substantial step. And the attempt is a punishable “completed attempt” even if the defendant didn’t take the final step that would have been in his control (such as shooting the gun, even if the shot missed).

Disclosure: I clerked the same year as Brett Kavanaugh, and got to know him and like him then (and we also both clerked for the same circuit judge, Judge Alex Kozinski though a year apart). Our paths have crossed on occasion after that, always pleasantly, though not very often.

The post The "Abandonment" Defense to Criminal Attempt, and the Person Who Was Planning to Kill Justice Kavanaugh appeared first on Reason.com.

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Late last night, police in Montgomery County, Maryland, arrested a man near the home of Supreme Court Justice Brett Kavanaugh.

According to NBC News, the suspect—26-year-old Nicholas Roske from Simi Valley, California—was found with a gun, a knife, pepper spray, and “burglary tools.” Police stopped him a block away from Kavanaugh’s Chevy Chase home, where he allegedly admitted he was there to kill the justice.

NBC further reports that Roske initially contacted authorities himself, indicating that he had “homicidal thoughts” and “had traveled from California” with a gun “to attack the justice.” Officials told The Washington Post, which first broke the story, that Roske was upset over the recent leaked draft opinion that would overturn Roe v. Wade, as well as recent mass shootings. News of his arrest was confirmed by the Supreme Court. He has been charged with attempted murder.

Speaking of political violence: tomorrow night, the House Select Committee tasked with investigating the January 6 attack will air its first public hearing. The committee’s investigation entails political violence on one particular date, committed by partisans on one side of the political aisle. But political violence is neither new nor one-sided. While supporters of then-outgoing President Donald Trump erected a gallows on U.S. Capitol grounds that day, a few months earlier and a few miles away, pro-labor protesters constructed a guillotine outside the Washington, D.C., home of Amazon founder Jeff Bezos.

A 2020 survey showed that 36 percent of Republicans and 33 percent of Democrats said it would be “a little” justified “to use violence in advancing [their side’s] political goals.” This was an increase from 30 percent for each side just a few months earlier. In February of last year, 56 percent of Republicans indicated that violence could be appropriate “to arrest the decline of the traditional American way of life,” a sentiment that 35 percent of independents and 22 percent of Democrats agreed with.

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