Today, for the first time since well before my father was born (Colorado went dry even before prohibition was enacted), it was legal to buy liquor and wine and real beer on a Sunday in Colorado. I've refrained (with one exception for a wedding present for someone who works in my building) from buying any since the law was enacted to partake of history today in a big way, at the Argonaut liquor store in Denver. Thank you Jennifer Veiga (my state senator and the bill's sponsor)!
The Rocky Mountain News appropriately, also editorialized in favor of ending Colorado's law blue law, the one banning car sales on Sunday. Ironically, its survival is attributable, in part, to the fact that it wasn't really a religiously motivated law when it was enacted in the 1950s, and remains a bit to cut costs and get time off today.
06 July 2008
03 July 2008
Associated Press Licensing Policies
The Associated Press Licensing Policies (and their dubious legal basis) deserve the examination they get at this post. Particularly notable is that people who license an AP news story (or part of it, they are priced by the word), contractually waive their right to criticize the AP or the author.
The trouble is that it isn't at all clear that they have any legal right to protect what they are licensing, and their legal rights are even more attenuated when the quotation of their stories is critical of the AP or its authors.
Some countries, Poland, for example, expressly prohibit copyright protections for news at all. Intellectual property scholars have noted that there are serious questions about the extent to which the factual core of a news report and its intimately intertwined with the facts headlines are protected by copyright even under U.S. law.
If the Associated Press is going to insist on non-content neutral licensing practices that go against the values necessary to its own existence, and attempt to impose a tax on sharing factual information about what is going on in the world for legitimate discussion purposes, perhaps Congress needs to intervene, abrogating any treaties that interfere if necessary, to expressly strip factual news reporting and minimal incidents to it of intellectual property protection entirely.
The trouble is that it isn't at all clear that they have any legal right to protect what they are licensing, and their legal rights are even more attenuated when the quotation of their stories is critical of the AP or its authors.
Some countries, Poland, for example, expressly prohibit copyright protections for news at all. Intellectual property scholars have noted that there are serious questions about the extent to which the factual core of a news report and its intimately intertwined with the facts headlines are protected by copyright even under U.S. law.
If the Associated Press is going to insist on non-content neutral licensing practices that go against the values necessary to its own existence, and attempt to impose a tax on sharing factual information about what is going on in the world for legitimate discussion purposes, perhaps Congress needs to intervene, abrogating any treaties that interfere if necessary, to expressly strip factual news reporting and minimal incidents to it of intellectual property protection entirely.
Judge Orders YouTube Privacy Armageddon
The ongoing Google/YouTube-Viacom litigation has now officially spilled over to users with a court order requiring Google to turn over massive amounts of user data to Viacom. . . . That data includes every YouTube username, the associated IP address and the videos that user has watched on YouTube. Google will also be required to hand over copies of every video removed from Youtube for any reason (DMCA notices or user-initiated deletions). . . .
I can understand why Judge Stanton, who graduated from law school in 1955, may be completely and utterly clueless when it comes to online videos services. But perhaps one of his bright young clerks or interns could have told him that (1) handing over user names and a list of videos they've watched to a highly litigious copyright holder is extremely likely to result in lawsuits against those users that have watched copyrighted content on YouTube, and (2) YouTube's source code is about as valuable as the hard drive it would be delivered on, since the core Flash technology is owned by Adobe and there are countless YouTube clones out there, most of which offer higher quality video.
YouTube's core value is in it's network effect - the library of content along with its massive user base.
From the Washington Post. The Order is here.
The biggest flaw in the opinion's reasoning is the conclusion that privacy interests are not compromised by the mere disclosure of userIDs and IP addresses, since they, standing alone, are not necessarily enough to definitively identify the user in question. While this information is not actually a name, address or social security number, they are significant identifying information that can be linked to people in the real world. UserIDs are names, sometimes aliases, but names nonetheless. And, while IP addresses aren't equivalent to real world street addresses, they do provide location information of detail comparable to a full nine digit zip code. An alias, a nine digit zip code, and a list of when and what someone with the Internet address was posted or watched on the Internet (which may include, for example, home movies) goes a very long way towards identifying someone.
Instead, the reasoning identified in footnote five of the opinion, which is considered and rejected by the court, should apply. This footnote states:
The statute defendants point to, 18 U.S.C. § 2710 (titled “Wrongful disclosure of video tape rental or sale records”), prohibits video tape service providers from disclosing information on the specific video materials subscribers request or obtain, and in the case they cite, In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. 570, 572-73 (W.D.Wis. 2007) (the “subpoena is troubling because it permits the government to peek into the reading habits of specific individuals without their prior knowledge or permission”), the court on First Amendment grounds did not require an internet book retailer to disclose the identities of customers who purchased used books from the grand jury’s target, a used book seller under investigation for tax evasion and wire and mail fraud in connection with his sale of used books through the retailer’s website.
Notably, who views a particular video, or the viewing habits of a particular customer, aren't relevant to the inquiry in the case at hand, which asks "Did Google violate copyright law by operating YouTube?" This case does not ask whether or not particular individual YouTube users violated copyright law is not at issue in the case.
This case is the equivalent of forcing a public library to disclose the names and book borrowing habits of its patrons, in a suit alleging that some of the books in its possession were illegally copied, because the library has a policy of allowing people who disclose their nine digit zip code to use pseudonyms on their library card.
The Electronic Frontier Foundation, one of my brother's favorite advocacy groups and increasingly one of mine as well, understands this, explains the situation.
The Court . . . stated that Google did “not refute that the ‘login ID is an anonymous pseudonym that users create for themselves when they sign up with YouTube’ which without more ‘cannot identify specific individuals.’”
As an initial matter, this is factually insufficient. If any single one of the YouTube users in the Logging database picked a Login ID that does identify that user (i.e. if my YouTube login was kurtopsahl), then the Logging database' information about viewing habits is protected by the VPPA, even if others pick anonymous pseudonyms.
Furthermore, even Google’s IP address statement only asserts that “in most cases” the IP address is not identifiable, certainly not in all cases. Putting aside whether a Google Public Policy blog's statement on an unrelated topic can waive the privacy rights of YouTube users, the statement means that at least some YouTube users are identifiable, and must be protected by the VPPA.
In any event, the court ordered production of not just IP addresses, but also all the associated information in the Logging database. Whatever might be said about 'an IP address without additional information,' the the AOL search history leak fiasco shows that the material viewed by a user alone can be sufficient to identify the user, even with neither a login nor an IP address.
The mere fact that Viacom insisted on this discovery illustrates just how much contempt big media has for the general public.
I sincerely hope that this Order will be reconsidered by the trial judge, or reversed on appeal, even though appeals ordinarily aren't allowe for discovery orders.
Bush's Economic Legacy
The Bush Legacy In The Stock Market
From here.
The Dow's close yesterday was 11,215.51.
The Dow when Bush took office (January 20, 2001) was 10,732.
The absolute increase in the Dow since Bush took office is 4.5%. The annualized increase in the Dow since Bush took office has been 0.5859%, which is about three-quarters of the going rate of passbook savings accounts at my local bank. Capital gains tax cuts don't matter very much when stock market prices aren't rising.
Despite the flat market, the nation's wealth has surged into the financial industry, causing the incomes of financial industry executives to dwarf those of executives in the real economy, and driving economic inequality with income and wealth concentrated in the rich at levels we haven't seen since the 1920s just before the Great Depression.
The Dow is the most politically important market indicator, even if it is not necessarily the broadest or most representative indicator.
Bush's Legacy Of Oil Prices
Oil prices yesterday crossed the $145 a barrel mark, another record high in both nominal and inflation adjusted terms. In January 2001, when President Bush took office, oil was $28.66 a barrel, less than a fifth of the current price.
Bush's Legacy For Manufacturing Jobs
When President Bush took office there were 12,236,000 production workers employed in the manufacturing indusry in the United States (on a seasonally adjusted basis). In June 2008, there were 9,761,000. Employment in the manufacturing sector has shrunk by 20.2% during the Bush Administration.
Bush's Legacy For The National Debt
The federal government's total debt is currently about $9.47 trillion, of which $5.70 trillion is held by the public, $2.29 trillion is held by the Social Security trust fund (from FICA taxes), and the $3.77 trillion balance is held by other government trust funds such as the Medicare trust fund (from FICA taxes) and highway maintenance trust fund (from gas taxes).
When Bush took office the federal government's total debt was about $5.63 trillion, of which $3.41 trillion was held by the public.
The portion of the national debt held by the public has increased by $2.29 trillion during the Bush Administration, which is about $7,633 per man, woman and child in the United States. About 40% of the federal debt has been accumulated during the Bush Administration.
On Wednesday, the Dow Jones industrial average and the Nasdaq composite index closed more than 20 percent below the peaks they reached in October. The S&P 500 is close to a 20 percent decline, the threshold of a bear market.
From here.
The Dow's close yesterday was 11,215.51.
The Dow when Bush took office (January 20, 2001) was 10,732.
The absolute increase in the Dow since Bush took office is 4.5%. The annualized increase in the Dow since Bush took office has been 0.5859%, which is about three-quarters of the going rate of passbook savings accounts at my local bank. Capital gains tax cuts don't matter very much when stock market prices aren't rising.
Despite the flat market, the nation's wealth has surged into the financial industry, causing the incomes of financial industry executives to dwarf those of executives in the real economy, and driving economic inequality with income and wealth concentrated in the rich at levels we haven't seen since the 1920s just before the Great Depression.
The Dow is the most politically important market indicator, even if it is not necessarily the broadest or most representative indicator.
Bush's Legacy Of Oil Prices
Oil prices yesterday crossed the $145 a barrel mark, another record high in both nominal and inflation adjusted terms. In January 2001, when President Bush took office, oil was $28.66 a barrel, less than a fifth of the current price.
Bush's Legacy For Manufacturing Jobs
When President Bush took office there were 12,236,000 production workers employed in the manufacturing indusry in the United States (on a seasonally adjusted basis). In June 2008, there were 9,761,000. Employment in the manufacturing sector has shrunk by 20.2% during the Bush Administration.
Bush's Legacy For The National Debt
The federal government's total debt is currently about $9.47 trillion, of which $5.70 trillion is held by the public, $2.29 trillion is held by the Social Security trust fund (from FICA taxes), and the $3.77 trillion balance is held by other government trust funds such as the Medicare trust fund (from FICA taxes) and highway maintenance trust fund (from gas taxes).
When Bush took office the federal government's total debt was about $5.63 trillion, of which $3.41 trillion was held by the public.
The portion of the national debt held by the public has increased by $2.29 trillion during the Bush Administration, which is about $7,633 per man, woman and child in the United States. About 40% of the federal debt has been accumulated during the Bush Administration.
02 July 2008
Taser Loses Lawsuit
The maker of the Taser, a less lethal weapons that shocks and immobilizes its targets with electrodes, lost a $6.2 million product liability lawsuit in California on Friday. This is the first time that the company has lost any of the many product liability suits brought against it. The ACLU, including the Colorado branch, has expressed long standing concerns that Tasers are overused by police officers in situations where less dangerous force is appropriate.
Interesting Quantum Gravity Paper
Eyo Eyo Ita III, a man in his 40s studying for his PhD in theoretical physics at Cambridge after grauating from a U.S. Naval College, who appears to be the grandson of one of the pivotal figures in the Nigerian independence movement, has published an interesting pre-print of an ambitious quantum gravity paper that appears to be his dissertation. Essentially, he claims to have a quantum gravity derivation of a close approximation to classical general relativity worked out.
In its classical form general relativity is fundmentally inconsistent with quantum mechanics, although, in practice, the inconsistencies that arise from trying to merge the two core theories of modern physics usually seem to manifest under conditions of no practical engineering or observational importance.
As I've discussed before, a quantum theory of gravity is something of a Holy Grail in theoretical physics, even if it produces no interesting new phenomenological predictions (although to be meaningful, the difference between a classical and quantum theory must be more than semantic). This paper has not yet been peer reviewed at this point (although another paper by the same author on a related subjet has been approved for publication in a scholarly journal) and honestly, is likely to amount to nothing directly, but is notable because it is more ambitious than most papers by people who have legitimate training in the field. Quantum gravity researchers have been taking baby steps towards goals like this paper for decades.
Ito's writing style is certainly superior to the average physicist, without departing from established conventions for scholarly physics papers or addressing himself to a layman. He is a master of using seemingly vague words in a precise way. He sets forth his thesis with remarkable economy without losing the reader's attention, by knowing what has to be said and what can be assumed to be known by his chosen audience of professional theoretical physicists in the field, and he more clearly outlines his approach up front than most physicists. If his theories don't pan out, he has a sound future for himself as a technical writing editor.
Ito's treatment is primarily mathematical, with phenomenological predictions from the theory mostly reserved for future papers. The only notable distinction of the theory mentioned in the paper, aside from the fact that it works, is that it suggests from first principals why the cosmological constant should be so small, a constant problem in quantum theories that have tried to explain the cosmological constant (i.e. dark energy) as a function of zero point energy in the vacuum.
In its classical form general relativity is fundmentally inconsistent with quantum mechanics, although, in practice, the inconsistencies that arise from trying to merge the two core theories of modern physics usually seem to manifest under conditions of no practical engineering or observational importance.
As I've discussed before, a quantum theory of gravity is something of a Holy Grail in theoretical physics, even if it produces no interesting new phenomenological predictions (although to be meaningful, the difference between a classical and quantum theory must be more than semantic). This paper has not yet been peer reviewed at this point (although another paper by the same author on a related subjet has been approved for publication in a scholarly journal) and honestly, is likely to amount to nothing directly, but is notable because it is more ambitious than most papers by people who have legitimate training in the field. Quantum gravity researchers have been taking baby steps towards goals like this paper for decades.
Ito's writing style is certainly superior to the average physicist, without departing from established conventions for scholarly physics papers or addressing himself to a layman. He is a master of using seemingly vague words in a precise way. He sets forth his thesis with remarkable economy without losing the reader's attention, by knowing what has to be said and what can be assumed to be known by his chosen audience of professional theoretical physicists in the field, and he more clearly outlines his approach up front than most physicists. If his theories don't pan out, he has a sound future for himself as a technical writing editor.
Ito's treatment is primarily mathematical, with phenomenological predictions from the theory mostly reserved for future papers. The only notable distinction of the theory mentioned in the paper, aside from the fact that it works, is that it suggests from first principals why the cosmological constant should be so small, a constant problem in quantum theories that have tried to explain the cosmological constant (i.e. dark energy) as a function of zero point energy in the vacuum.
About Vail
Last week, as a gift from my inlaws, I vacationed in Vail, Colorado. If you're like me and can not ski, summer is an excellent time to visit there.
Vail is fundamentally a utopian community, indeed, arguably it captures almost all of the principals of emerging New Urbanism, while also throwing into stark relief the contradictions of the American economy.
It is an elegant community with predominantly high income people living in small condominums with a predominant housing stock of three to seven story buildings, the eptiome of high density housing. Bus and shuttle bus service is widely used, easily available, and not confined to the poor and disabled as it is in most of the United States. The community is walkable, has abundant bike paths, and confines vehicles mostly to multi-story parking structures through parking limitations. The few roads that exist have traffic circles more often than four way stops, which is both safe and gives the community a European flair.
The community, like almost all cities in their formative stage, had a die cast by a predominant developer and affiliated companies. It is, of course, elaborately planned, but for most of its history the municipal government has been a captive of the developer, which has had a free rein to do as it wishes. The money in the ski industry is in the real estate, not on the slopes. Create paradise, and millionaires everywhere will flock to buy a piece of it at stratospheric prices.
The 2000 census claimed that it had a population of 4,531 people, 2,165 households, and 762 families residing in 2000 (and only about 450 children), but those numbers count only people domiciled there. This grossly misstates the nature of the community.
The census notes that are 5,389 housing units in Vail (about 2.5 per permanent resident household), at an average density of 1,188.1/sq mi, but this appears to omits temporary hotel accomodations, while including large swaths of golf courses, parks, ski areas, open space and a huge swath of interstate highways in the area of the town, so even this measure grossly understates the population density.
Vail has had as many as 1.6 million skier visits in a single season. This year's ski season there began on November 21, 2007 and ended on April 13. Thus, on an average day during ski season, Vail has roughly 100,000 ski visitors, more during the middle of the season (after December 23) and less in the early season and the spring.
The daytime population density of Vail during ski season is on the order of half the population density of Manhattan, and is greater than the most densely populated census tract in Colorado, judged by domiciliary population, Denver's Capital Hill neighborhood.
Of course, in addition to people who are skiing on a given day in Vail, or are sleeping in Vail on any given evening, the bulk of the workers there, who can't afford to live there and don't have some of the scarce supply of affordable worker housing, commute from far away. Indeed, at a mere 100 miles from Denver with both Denver's city center and Vail very close to I-70, Vail is almost within a New York City commute of Denver.
Vail is what America would look like if the economy continues on its current course, with a fabulously wealthy elite (Vail real estate is more expensive than most neighborhoods in Manhattan and it is hard to find dinner there for under $25 a plate), served by a stuggling, low wage, service industry working class.
Few Vail employees are in poverty, by federal standards, but the cost of living is high. The Vail Valley Charitable Fund, one of the leading local charities in the town, provides financial assistance to Vail residents facing major medical emergencies who can't afford to pay for their care (and by inference, often lack health insurance). The middle class between the wealthy and strongly international group of those who visit, and the service class that does most of the work in the community, is small, even though there are a few permanent resident teachers, doctors, lawyers, nurses, property managers, real estate agents, resort administrators, mechanics, resort administrators and properous business owners who benefit from a massive tax base that supports government services for a small geographic area and small resident population.
The question, of course, is whether Vail is an economically sustainable model for the rest of the country. If it isn't, then one must question what part of its New Urbanist model breaks down without outside infusions of cash driven by unique attractions.
Vail is fundamentally a utopian community, indeed, arguably it captures almost all of the principals of emerging New Urbanism, while also throwing into stark relief the contradictions of the American economy.
It is an elegant community with predominantly high income people living in small condominums with a predominant housing stock of three to seven story buildings, the eptiome of high density housing. Bus and shuttle bus service is widely used, easily available, and not confined to the poor and disabled as it is in most of the United States. The community is walkable, has abundant bike paths, and confines vehicles mostly to multi-story parking structures through parking limitations. The few roads that exist have traffic circles more often than four way stops, which is both safe and gives the community a European flair.
The community, like almost all cities in their formative stage, had a die cast by a predominant developer and affiliated companies. It is, of course, elaborately planned, but for most of its history the municipal government has been a captive of the developer, which has had a free rein to do as it wishes. The money in the ski industry is in the real estate, not on the slopes. Create paradise, and millionaires everywhere will flock to buy a piece of it at stratospheric prices.
The 2000 census claimed that it had a population of 4,531 people, 2,165 households, and 762 families residing in 2000 (and only about 450 children), but those numbers count only people domiciled there. This grossly misstates the nature of the community.
The census notes that are 5,389 housing units in Vail (about 2.5 per permanent resident household), at an average density of 1,188.1/sq mi, but this appears to omits temporary hotel accomodations, while including large swaths of golf courses, parks, ski areas, open space and a huge swath of interstate highways in the area of the town, so even this measure grossly understates the population density.
Vail has had as many as 1.6 million skier visits in a single season. This year's ski season there began on November 21, 2007 and ended on April 13. Thus, on an average day during ski season, Vail has roughly 100,000 ski visitors, more during the middle of the season (after December 23) and less in the early season and the spring.
The daytime population density of Vail during ski season is on the order of half the population density of Manhattan, and is greater than the most densely populated census tract in Colorado, judged by domiciliary population, Denver's Capital Hill neighborhood.
Of course, in addition to people who are skiing on a given day in Vail, or are sleeping in Vail on any given evening, the bulk of the workers there, who can't afford to live there and don't have some of the scarce supply of affordable worker housing, commute from far away. Indeed, at a mere 100 miles from Denver with both Denver's city center and Vail very close to I-70, Vail is almost within a New York City commute of Denver.
Vail is what America would look like if the economy continues on its current course, with a fabulously wealthy elite (Vail real estate is more expensive than most neighborhoods in Manhattan and it is hard to find dinner there for under $25 a plate), served by a stuggling, low wage, service industry working class.
Few Vail employees are in poverty, by federal standards, but the cost of living is high. The Vail Valley Charitable Fund, one of the leading local charities in the town, provides financial assistance to Vail residents facing major medical emergencies who can't afford to pay for their care (and by inference, often lack health insurance). The middle class between the wealthy and strongly international group of those who visit, and the service class that does most of the work in the community, is small, even though there are a few permanent resident teachers, doctors, lawyers, nurses, property managers, real estate agents, resort administrators, mechanics, resort administrators and properous business owners who benefit from a massive tax base that supports government services for a small geographic area and small resident population.
The question, of course, is whether Vail is an economically sustainable model for the rest of the country. If it isn't, then one must question what part of its New Urbanist model breaks down without outside infusions of cash driven by unique attractions.
Non-Profit Cyber Squatting Legal
Activity that would otherwise be cybersquatting is legal if carried out for the purpose of executing a parody not involving financial gain to the domain name registrant according to the United States Court of Appeals for the 10th Circuit in a May 29, 2008 ruling.
The 10th Circuit also held that a mere link to a for profit blog does not constitute commercial use, and that a claim of parody is part of the analysis of the prima facie case for trademark infringement, rather than an affirmative defense that must be raised at trial to be preserved.
This continues of trend of 10th Circuit hostility to attempts to use business torts to chill free speech. The case in question involved a suit by a Mormon apologist website directed at a website that questions mainstream Mormon doctrine through parody.
Hat Tip to Eric Goldman's blog.
The 10th Circuit also held that a mere link to a for profit blog does not constitute commercial use, and that a claim of parody is part of the analysis of the prima facie case for trademark infringement, rather than an affirmative defense that must be raised at trial to be preserved.
This continues of trend of 10th Circuit hostility to attempts to use business torts to chill free speech. The case in question involved a suit by a Mormon apologist website directed at a website that questions mainstream Mormon doctrine through parody.
Hat Tip to Eric Goldman's blog.
01 July 2008
Federal Center Goes Solar
I drove by the Federal Center in Jefferson County, Colorado last weekend for the first time in many months. It was sporting a large array of solar panels that wasn't there the last time I looked. I was driving, so I can't offer you a picture. You'll have to either trust me or drive on Highway 6 (near the Kipling cross street) to see for yourself.
Water Court Gets Absurd
Colorado's water laws (and water courts) need to develop a sense of proportion. Small water conservation innovations like this one, where a Southern Colorado woman stored rain from her roof to water her garden, are approaches that need encouragement from water officials, not a tsunami of economically prohibitive paperwork to overcome.
Another Round Of Colorado Judicial Nominations
There is a vacancy in the 17th Judicial District for a trial judge position in the court of general jurisdiction (i.e. felonies, domestic cases and civil disputes in excess of $15,000 or involving title to real estate) there, which basically comprises suburbs North of Denver proper. Historically, these appointments have been virtually lifetime appointments. An e-mail seeking input on a very short time frame was issued by Governor Ritter's office:
From a position of pure personal bias, I appreciate the experience Mr. Kiesnowski would bring to the kind of cases I handle in that court, as the other two candidates have primarily practiced criminal law (an area of law in which I do not practice, even though it is an important part of the District Court docket). But I do not know any of the candidates at all, and each of them appear to have the basic qualifications necessary to deserve serious consideration for such a position on paper.
I encourage anyone with personal knowledge of these candidates to promptly contact the Governor at the e-mail address above.
[T]he Governor received a slate of three nominees for the judgeship in the Seventeenth Judicial District Court. This judgeship was created by the retirement of Judge Harlan Bockman. Brief biographies of each of the nominees are provided below.
Due to the Governor’s travel schedule, the interviews for this position will be conducted on Thursday morning, July 3, 2008. To have the greatest impact, please submit your comments by 4:00 p.m tomorrow, Wednesday, July 2, 2008. Because of this tight schedule, we will consider comments received by the close of business on Monday, July 7, 2008. We apologize for this tight schedule for receiving comments. Unfortunately, the volume of judicial appointments and constraints on the Governor’s schedule make such tight turnaround necessary for this and some future judicial appointments.
Please e-mail your comments to this e-mail address(judicial.appointments@state.co.us). . . .
The three nominees are:
Frederick Michael Goodbee of Westminster is currently the 17th Judicial District Assistant District Attorney, a position he has held since 2005. Mr. Goodbee focuses on complex criminal cases in addition to administrative, management and media relations duties. Prior to taking this position Mr. Goodbee supervised the criminal justice section of the Colorado Attorney General’s Office (2003-2005); served two terms as the 5th Judicial District Attorney (1997-2002) and as Deputy and Chief Deputy District Attorney in that office (1991-1996); and practiced privately (1989-1991, 1996-1997). Mr. Goodbee is currently a member of the Colorado Bar Association Board of Governors and Sitting Chair of the Executive Council for the Colorado Bar Association Criminal Law Section. Additionally, he serves as President of the Board for the Colorado Organization for Victim Assistance, is a Board Member of Access Housing, works with the 17th Judicial District Teen Court, is active in the Adams County Youth Initiative, and is a member of the Brighton Kiwanis Club. Mr. Goodbee received his B.A. from Colorado State University (1985) and his J.D. from Tulane University (1989).
Robert Walker Kiesnowski, Jr. of Commerce City is currently a partner with Worstell & Kiesnowski, Attorneys at Law. Mr. Kiesnowski has a general practice focusing on business/commercial litigation (30%), torts/civil rights litigation (20%), appellate matters (20%), employment litigation (10%), construction litigation (10%), estate/probate matters (5%), and criminal defense (5%). Prior to starting this firm, Mr. Kiesnowski was an Associate with the Law Offices of Mitch Geller (1994-1996), a Partner in the Law Offices of Maguire & Kiesnowski (1992-1994), and an Associate with the Law Offices of Frank Moya & Daniel Recht. Mr. Kiesnowski is a member of the Colorado Bar Association, the Adams/Broomfield County Bar Association, and the Colorado Civil Justice League. Additionally, he serves as president of the Eagle Creek Homeowner’s Association. Mr. Kiesnowski received his B.S. and B.A, from Regis College (1987) and his J.D. from the University of Puget Sound School of Law (1990), which is now the Seattle University School of Law.
Leroy D. Kirby of Brighton is currently a 17th Judicial District Magistrate Judge, a position he has held since 2007. Mr. Kirby presides over domestic relations (40%), civil (30%), juvenile (15%), and criminal (15%) cases. Prior to this appointment, Mr. Kirby was a Deputy State Public Defender (1996-2007). Mr. Kirby also served as an intelligence officer in the United States Navy (1990-1992), and then joined the United States Navy Reserve, where he holds the rank of Commander. He has been recalled to active duty three times and has been awarded the Meritorious Service Medal and two Joint Service Commendation medals. Additionally, he is a volunteer with the Boys and Girls Club in Brighton. Mr. Kirby obtained a B.A. from Regis University (1989) and received his J.D. from the University of Denver (1995).
From a position of pure personal bias, I appreciate the experience Mr. Kiesnowski would bring to the kind of cases I handle in that court, as the other two candidates have primarily practiced criminal law (an area of law in which I do not practice, even though it is an important part of the District Court docket). But I do not know any of the candidates at all, and each of them appear to have the basic qualifications necessary to deserve serious consideration for such a position on paper.
I encourage anyone with personal knowledge of these candidates to promptly contact the Governor at the e-mail address above.
Why Own A Gun?
Most people can legally own a gun. Does that mean it is wise to do so? Today's Denver Post offers facts that you give you pause before doing so.
A gun in your home increases your risk of dying from suicide of homicide:
Deaths, of course, don't tell the whole story of the costs and benefits of owning a gun.
On one hand, many other misues of firearms don't cause death. Aggravated assaults with a firearm, robberies with a firearm, extortion with a firearm, kidnapping with a firearm, burglaries with a firearm, illegal menancing incidents, and other firearm related crimes aren't captured by the figure. There were about 477,000 non-fatal firearm related violent crimes in 2005 (a classification that appears to exclude menancing with firearm apart from another crime). Neither are intentional self-harm incidents that don't cause death, something that the statistics above indicate happen about 1,815 times a year.
Use of a firearm in a crime hurts both the crime victim, and the person who used it who almost universally faces serious, normal life ending, criminal charges for doing so if caught, and the odds of being caught at some point in a career of armed crime are high.
Simple possession of a gun in the wrong place at the wrong time can also be a basis for criminal liability, sometimes petty, but sometimes severe. A good quick layman's summary of Colorado's most important gun control laws is found here. For example, if you make it your habit to carry a firearm, and then accidentally bring it with you to pick up your children on school grounds, you could face a felony prosecution that could have immense consquences for you, even if you manage to eventually win a plea bargain or obtain an aquittal or dismissal of the charges. Bringing the gun with you into a post office is similarly a crime.
The threshold for criminal liability for disorderly conduct or menacing can likewise be quite low. For example, one commits the crime if disorderly conduct, a class 2 misdemeanor punishable by up to a year in jail and a fine if one "intentionally, knowingly, or recklessly . . . [n]ot being a peace officer, displays a deadly weapon, displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm."
On the other hand, the statistics about firearms deaths don't capture legitimate uses of firearms for self-defense that merely injure the person shot or are limited to brandishing or pointing the gun at the threatening person. The data on how many crimes are prevented by non-lethal uses of firearms is poor in quality and varies greatly from one source to another. Upper bound survey based estimates put the number of cases as high as a million, but the actual number is probably lower. The number of cases where a firearm is actually fired in self-defense is probably much, much lower.
The statistics also don't capture ues of firearms for legitimate means other than self-defense against criminals, like hunting, defense against animals, and target shooting for pleasure. There are relatively good hunting statistics available. As of 2006:
The vast majority of legal hunting is done with shotguns, rifles and bows, while exceedingly little legal hunting is done with handguns.
Further the statistics don't break out incidents between people who use firearms professionally, like law enforcement officers, ordinary citizen's who own firearms legally, and persons who are illegally in possesion of firearms.
Law enforcement officers account for something more than half of justified killings with firearms, and it wouldn't be unreasonable to guess also make up disproportionate shares, although perhaps somewhat smaller, of justified injuries caused by firearms and justified brandishing of firearms in self-defense or defense of others.
It is also fair to suppose that a large share of homicides are committed by people who aren't legally allowed to own guns, that homicides committed by ordinary citizens who legally own guns (or their family members) disproportionately impact family members and people known to the gun owner, and that suicides with firearms are disproportionately committed by ordinary citizens and members of their families (relative to law enforcement and people who possess guns illegally).
Bottom line: While it is legal to own a handgun for the purpose of self-defense and keep it in your home; the risk that you will face criminal violence while at home must be dramatically higher than average for this to be a sensible choice weighing only the safety of yourself and your family. In you live in a crime ridden pocket of lawlessness, the risks of having a firearm in your home may be outweighed by the benefits. But for most of us, owning a firearm is little more than emotion driven stupidity.
Suicides accounted for about 55 percent of the nation's nearly 31,000 firearm deaths in 2005, the most recent year for which statistics are available from the Centers for Disease Control and Prevention. . . . Gun-related suicides have outnumbered firearm homicides and accidents for 20 of the past 25 years. In 2005, homicides accounted for 40 percent of gun deaths. Accidents accounted for 2.6 percent. The remaining 2 percent included legal killings, such as when police do the shooting, and cases that involve undetermined intent.
A gun in your home increases your risk of dying from suicide of homicide:
Public-health researchers have concluded that in homes where guns are present, the likelihood that someone in the home will die from suicide or homicide is much greater.
Studies have also shown that homes in which a suicide occurred were three to five times as likely to have a gun present as households that did not experience a suicide, even after accounting for other risk factors. . . .
One public-health study found that suicide and homicide rates in the district dropped after the ban was adopted. . . .
More than 90 percent of suicide attempts using guns are successful, while the success rate for jumping from high places was 34 percent. The success rate for intentional drug overdose was 2 percent, the brief said, citing studies.
Deaths, of course, don't tell the whole story of the costs and benefits of owning a gun.
On one hand, many other misues of firearms don't cause death. Aggravated assaults with a firearm, robberies with a firearm, extortion with a firearm, kidnapping with a firearm, burglaries with a firearm, illegal menancing incidents, and other firearm related crimes aren't captured by the figure. There were about 477,000 non-fatal firearm related violent crimes in 2005 (a classification that appears to exclude menancing with firearm apart from another crime). Neither are intentional self-harm incidents that don't cause death, something that the statistics above indicate happen about 1,815 times a year.
Use of a firearm in a crime hurts both the crime victim, and the person who used it who almost universally faces serious, normal life ending, criminal charges for doing so if caught, and the odds of being caught at some point in a career of armed crime are high.
Simple possession of a gun in the wrong place at the wrong time can also be a basis for criminal liability, sometimes petty, but sometimes severe. A good quick layman's summary of Colorado's most important gun control laws is found here. For example, if you make it your habit to carry a firearm, and then accidentally bring it with you to pick up your children on school grounds, you could face a felony prosecution that could have immense consquences for you, even if you manage to eventually win a plea bargain or obtain an aquittal or dismissal of the charges. Bringing the gun with you into a post office is similarly a crime.
The threshold for criminal liability for disorderly conduct or menacing can likewise be quite low. For example, one commits the crime if disorderly conduct, a class 2 misdemeanor punishable by up to a year in jail and a fine if one "intentionally, knowingly, or recklessly . . . [n]ot being a peace officer, displays a deadly weapon, displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm."
On the other hand, the statistics about firearms deaths don't capture legitimate uses of firearms for self-defense that merely injure the person shot or are limited to brandishing or pointing the gun at the threatening person. The data on how many crimes are prevented by non-lethal uses of firearms is poor in quality and varies greatly from one source to another. Upper bound survey based estimates put the number of cases as high as a million, but the actual number is probably lower. The number of cases where a firearm is actually fired in self-defense is probably much, much lower.
The statistics also don't capture ues of firearms for legitimate means other than self-defense against criminals, like hunting, defense against animals, and target shooting for pleasure. There are relatively good hunting statistics available. As of 2006:
*12.5 million people 16 years old and older enjoyed hunting a variety of animals within the United States. They hunted 220 million days and took 185 million trips. . . .
* An estimated 10.7 million hunters pursued big game, such as deer and elk, on 164 million days.
* There were 4.8 million hunters of small game including squirrels and rabbits. They hunted small game on 52 million days . . .
* 2.3 million hunted migratory birds such as doves or waterfowl
* 1.1 million hunted other animals such as woodchucks and raccoons
The vast majority of legal hunting is done with shotguns, rifles and bows, while exceedingly little legal hunting is done with handguns.
Further the statistics don't break out incidents between people who use firearms professionally, like law enforcement officers, ordinary citizen's who own firearms legally, and persons who are illegally in possesion of firearms.
Law enforcement officers account for something more than half of justified killings with firearms, and it wouldn't be unreasonable to guess also make up disproportionate shares, although perhaps somewhat smaller, of justified injuries caused by firearms and justified brandishing of firearms in self-defense or defense of others.
It is also fair to suppose that a large share of homicides are committed by people who aren't legally allowed to own guns, that homicides committed by ordinary citizens who legally own guns (or their family members) disproportionately impact family members and people known to the gun owner, and that suicides with firearms are disproportionately committed by ordinary citizens and members of their families (relative to law enforcement and people who possess guns illegally).
Bottom line: While it is legal to own a handgun for the purpose of self-defense and keep it in your home; the risk that you will face criminal violence while at home must be dramatically higher than average for this to be a sensible choice weighing only the safety of yourself and your family. In you live in a crime ridden pocket of lawlessness, the risks of having a firearm in your home may be outweighed by the benefits. But for most of us, owning a firearm is little more than emotion driven stupidity.
30 June 2008
A Troubling Sexual Assault Case
The defendant in a case decided by the Colorado Supreme Court on Monday was tried on three different occassions for the rape of three different women. The first two trials resulted in acquittals. The alleged victim in the third case consistently testified after her first communication with the police that her sexual encounter with the defendant was consentual, and claimed that she lied on the first occassion because she feared that she would be prosecuted for prostitution.
Evidence from all three cases was introduced in the third case with evidence from the two prior cases presented before any evidence regarding the case before the jury was offered. The jury concluded that he had been tried in the two prior cases, but the jury was not told that he had been acquitted in the two prior cases.
The defendant was also not permitted to reveal to the jury in the third case that a witness in the third case (a victim in one of the cases that produced an acquittal) was facing misdemeanor charges at the time she testified which prior conduct of prosecutors might cause he to think would be dismissed if she testified as prosecutors wished.
The Colorado Supreme Court reversed the conviction for which the defendant faced sixteen years or more in prison, and ordered a new trial, because the jury was not informed of the prior acquittals despite being aware of the prior trials, and the Colorado Supreme Court also noted that the jury should have been permitted to learn of the misdemeanor pending against the key witness.
Two possibilities in these series of cases are both disturbing.
One is that the defendant was in fact guilty of being a serial rapist. In this case, the prosecution botched the first two cases and is well on its way to botching the third, which was arguably weaker than the first two. The additional evidence the Colorado Supreme Court has held must be admitted will ether leave the prosecution with a considerably weaker version of the same case, or will cause the prosecution to refrain from offering prior act evidence which appears to have been important in the porsecution's ability to secure a conviction in the third case by proof beyond a reasonable doubt. Thus, a serial rapist who has somehow managed to intimate at least some of the witnesses against him, may go free.
Another possibility is that the defendant has been wrongfully prosecuted three times in a row for rapes he didn't commit, or at least, that he has been prosecuted three times for rapes in which there were serious questions about the Defendant's guilt. Moreover, Colorado, like most states, provides no compensation for representation by a private attorney, lost earnings, or harm to one's reputation, when one is charged with a crime and then acquitted. Three prosecutions for serious felonies in the course of a decade, even if they result in acquittals, are enough to financially ruin and destroy the reputation of even a fairly prosperous individual with an otherwise good reputation. The facts in the current case recited by the Court of Appeals, the multiple run ins with the law of some of the witnesses, and the testimony recited by the Colorado Supreme Court suggest that it is possible that the defendant was a repeat prostitution customer, rather than a serial rapist.
Only the defendant and the three alleged victims know what really happened. But it isn't obvious a case brought against the wishes of and contrary to the testimony of the alleged victim, in a case where consent rather the fact that the two had sex is at issue, based largely on the strength of two prior prosecutions in separate incidents that resulted in acquittals, is the best way to use scarce prosecutorial resources, regardless of the truth.
Evidence from all three cases was introduced in the third case with evidence from the two prior cases presented before any evidence regarding the case before the jury was offered. The jury concluded that he had been tried in the two prior cases, but the jury was not told that he had been acquitted in the two prior cases.
The defendant was also not permitted to reveal to the jury in the third case that a witness in the third case (a victim in one of the cases that produced an acquittal) was facing misdemeanor charges at the time she testified which prior conduct of prosecutors might cause he to think would be dismissed if she testified as prosecutors wished.
The Colorado Supreme Court reversed the conviction for which the defendant faced sixteen years or more in prison, and ordered a new trial, because the jury was not informed of the prior acquittals despite being aware of the prior trials, and the Colorado Supreme Court also noted that the jury should have been permitted to learn of the misdemeanor pending against the key witness.
Two possibilities in these series of cases are both disturbing.
One is that the defendant was in fact guilty of being a serial rapist. In this case, the prosecution botched the first two cases and is well on its way to botching the third, which was arguably weaker than the first two. The additional evidence the Colorado Supreme Court has held must be admitted will ether leave the prosecution with a considerably weaker version of the same case, or will cause the prosecution to refrain from offering prior act evidence which appears to have been important in the porsecution's ability to secure a conviction in the third case by proof beyond a reasonable doubt. Thus, a serial rapist who has somehow managed to intimate at least some of the witnesses against him, may go free.
Another possibility is that the defendant has been wrongfully prosecuted three times in a row for rapes he didn't commit, or at least, that he has been prosecuted three times for rapes in which there were serious questions about the Defendant's guilt. Moreover, Colorado, like most states, provides no compensation for representation by a private attorney, lost earnings, or harm to one's reputation, when one is charged with a crime and then acquitted. Three prosecutions for serious felonies in the course of a decade, even if they result in acquittals, are enough to financially ruin and destroy the reputation of even a fairly prosperous individual with an otherwise good reputation. The facts in the current case recited by the Court of Appeals, the multiple run ins with the law of some of the witnesses, and the testimony recited by the Colorado Supreme Court suggest that it is possible that the defendant was a repeat prostitution customer, rather than a serial rapist.
Only the defendant and the three alleged victims know what really happened. But it isn't obvious a case brought against the wishes of and contrary to the testimony of the alleged victim, in a case where consent rather the fact that the two had sex is at issue, based largely on the strength of two prior prosecutions in separate incidents that resulted in acquittals, is the best way to use scarce prosecutorial resources, regardless of the truth.
Interpreter Use in U.S. District Courts
In 2005, according to the Florida Bar Journal (July/August 2008 at page 22) citing the Adminstrative Office of the U.S. Courts, Annual Report of the Director, there were a total of 227,361 "events" at which interpreters were required in the U.S. District Courts. The number of events by language was as follows:
Spanish 214,355 (94%)
Mandarin 1,792
Arabic 1,250
Vietnamese 863
Korean 796
Cantonese 745
Russian 610
French 417
Foochow 409
Mandarin, Cantonese and Foochow are all languages spoken primarily in China or by persons of Chinese descent.
Total number of languages interpreted 111.
In 2000, the total number of events in all languages was 190,127 and the number of those that involved Spanish language interpretation was 179,271.
Spanish 214,355 (94%)
Mandarin 1,792
Arabic 1,250
Vietnamese 863
Korean 796
Cantonese 745
Russian 610
French 417
Foochow 409
Mandarin, Cantonese and Foochow are all languages spoken primarily in China or by persons of Chinese descent.
Total number of languages interpreted 111.
In 2000, the total number of events in all languages was 190,127 and the number of those that involved Spanish language interpretation was 179,271.
Hardwired for SOV
English uses a subject-verb-object word order. For example, "the man hit the ball." Other languages, such as Turkish, use a subject-object-verb word order. For example, "The man, the ball, hit" to express the same idea. New research suggests that we may be hardwired for a subject-object-verb word order, and use alternate word orders found in some world languages only as a result of nuture that overcomes this natural tendency.
Researchers asking subjects to express ideas non-verbally, and situations where sign language evolves among deaf people without involvement for the local linguistic culture, have both shown a preference for SOV, rather than SVO word orders. The studies were small, but were notable for the near uniform extent to which people from different cultures where the spoken language uses an SVO word order revert to an SOV word order in non-verbal expression.
Linguists in the tradition of Noam Chomsky (better known for his political views which are anti-authoritarian, distrust the mass media, and reject many political assumptions shared by more moderate members of the political left and right) have argued that grammar is a largely hardwired part of our brains (a "universal grammar"), in which the grammatical features that differ from one language to another are mostly in the nature of multiple choice switches triggered one way or another early in the language acquisition process. The most recent research argues that some of those "switches," (called "parameters") like the one controlling word order, have default settings that apply if cultural influences do not intervene.
Critics of this approach argue that proponents of universal grammars have failed to be sufficiently diligent in rooting out counter-examples from less well known languages, and suggest that the brain function rules involved in language acquisition are more rudimentary than the "universal grammer" with parameters, or successor approaches would suggest.
Researchers asking subjects to express ideas non-verbally, and situations where sign language evolves among deaf people without involvement for the local linguistic culture, have both shown a preference for SOV, rather than SVO word orders. The studies were small, but were notable for the near uniform extent to which people from different cultures where the spoken language uses an SVO word order revert to an SOV word order in non-verbal expression.
Linguists in the tradition of Noam Chomsky (better known for his political views which are anti-authoritarian, distrust the mass media, and reject many political assumptions shared by more moderate members of the political left and right) have argued that grammar is a largely hardwired part of our brains (a "universal grammar"), in which the grammatical features that differ from one language to another are mostly in the nature of multiple choice switches triggered one way or another early in the language acquisition process. The most recent research argues that some of those "switches," (called "parameters") like the one controlling word order, have default settings that apply if cultural influences do not intervene.
Critics of this approach argue that proponents of universal grammars have failed to be sufficiently diligent in rooting out counter-examples from less well known languages, and suggest that the brain function rules involved in language acquisition are more rudimentary than the "universal grammer" with parameters, or successor approaches would suggest.
After Heller, What Now?
As expected, in an opinion from Justice Scalia, the U.S. Supreme Court held in the D.C. v. Heller case that the 2nd Amendment to the United States Constitution protects an individual right to own a gun for the purpose of self-defense.
The Court was modest in its holding, however, by making clear a number of limitations present in the ruling.
Does The Second Amendment Apply To The States?
Most critically, the majority opinion noted that under current U.S. Supreme Court precedent in post-14th Amendment cases, that the Court has held that the Second Amendment is not one of those parts of the Bill of Rights which is "incorporated" in the 14th Amendment. Thus, until the U.S. Supreme Court decides to overrule this line of case (and the majority opinion implied that the time to do so could be ripe), the Second Amendment may not invalidate any state or local law.
Mr. Heller was able to resort to the Second Amendment in this case solely because the District of Columbia, which enacted the law, is part of the federal government, and hence, it is subject directly to the provisions of the Second Amendment. The NRA, and presumably other parties, are now bringing test cases in places including Chicago and San Francisco to see if the U.S. Supreme Court will reverse itself on the issue of incorporation, but that is a case for another day.
The relevant language in the opinion says (slip op. at 48, footnote 23):
The notion that overruling prior precedent to permit incorporation of the Second Amendment might be ripe is also suggested when the Court states (slip pp. at 53-54):
Also importantly, the Court notes: “It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.” (Slip Op. at 44).
The Court's suggestion is that the meaning of the Second Amendment is an evolving area of law and that the prior non-incorporation holdings may have outlived their due date.
But footnote 23 probably prevents any federal court from holding that the Second Amendment is incorporated as to do so would violate binding U.S. Supreme Court precedents, although a federal court could suggest an alternate ruling if this precedent were overruled. Until then, Heller, and the Second Amendment, apply only to the law in the District of Columbia, federal territories and possessions, and Congressionally enacted federal laws.
Only one member of the Heller majority would have to defect to prevent the Second Amendment from being incorporated.
Related, but of unclear implication, is the Court's observation that the Second Amendment has not come up very often because legislators have rarely passed laws abridging the right (slip pp. at 53-54):
The existence of many versions of the right to bear arms in many state constitutions, perhaps even all of them, and the vast differences in circumstances in matters relevant to gun possession between say, Wyoming or Alaska on one hand, and Rhode Island or Hawaii, on the other, argues for not incorporating the Second Amendment. It also virtually eliminates most future litigation of local gun laws in the U.S. Supreme Court. Likewise, the fact that few jurisdictions do regulate guns as tightly as the District of Columbia did in Heller is notable.
While not all justices in the majority in Heller may be convinced that state constitutions, state legislatures and state courts may be trusted to limit gun control by state and local governments, such an idea might appeal to Justice Kennedy, and might also flow naturally into the observation that other rights which Justice Scalia treasures, such as the right to a trial by jury in civil cases or a unanimous jury in criminal cases, are not protected at the state level. Cases where rights have not been held to be incorporated generally argue that a civilized society can be maintained without them. The examples of Japan and the United Kingdom, to take just two examples, establish that it is possible to have a civilized democratic society without a right to bear arms with federal constitutional force.
States rights has long been a rallying cry of conservatives. But in this situation, that commitment to federalism may undermine the cause of a potent and widely effective Second Amendment.
Reasonable Regulation
While Heller did not enact a precise scrutiny level for analyzing the extent of the Second Amendment's individual right, the holding, the logic of the ruling, and the majority dicta in the opinion suggest that considerable regulation of an individual's Second Amendment rights is permitted. Some regulations which are reasonable are set forth in the opinion (slip op. at 54-55). They include bans on felons owning guns, on the rights of the mentally ill to own guns, and bans on the sort of highly dangerous weapons found only in military use (apparently including anything as military specific and unusually dangerous as an automatic rifle).
The dangerous weapon requirement exception to the Second Amendment prohibits more than just automatic weapons. "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Slip Op. at 53.
The mere existence of a licensing requirement was not overruled in Heller, but in that particular case, the requirement wasn't challenged. But, presumably, if felons and the mentally ill may be prohibited from owning weapons, and if regulations of commercial sales of firearms are permitted, then some sort of licensing or application process to enforce this limitations is likewise permissible.
What Does The Right Protect?
On the other hand, the right to possess a functional handgun in the home, for the proposes of self-defense, even if the alternative of a long gun was available, was held to be protected by the Second Amendment.
The Court observes “that the American people have considered the handgun to be the quintessential self-defense weapon.” Slip Op at 57. “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Slip Op. at 57-58.
To my knowledge, no U.S. state has a statewide ban on the possession and use for self-defense of handguns in one's own home by mentally sound adults with no criminal justice involvement, although some municipalities do have such bans.
It also seems likely that, at least some class of people, in some places, have an individual right to carry arms, including handguns, when out and about, as well as a right to keep them in their homes, as the quotes below (slip op. 10-11, 19, 22), suggest, albeit with some limitations:
The confrontation most prominently protected appears to be one in which the use of deadly force for self-defense is required. It isn't clear if this right is more narrow than the right in the home, however, where various constitutional considerations involved in a right to security in one's home converge.
Open Questions Regarding The Scope Of The Second Amendment
Most states allow some citizens to obtain concealed weapons permits, but some jurisdictions are very parsimonious in granting them, while others allow them for almost any citizen not disqualified for an express reason from doing so. Certainly, it would seem that it would be improper under the Second Amendment to deny a concealed weapons permit to someone like Mr. Heller, a police officer, who carries such weapons when he is on the job. If the Second Amendment right is strong in one's home than in public, this distinction may survive constitutional challenge, if it is not, "must issue" concealed weapons permits may be constitutionally required.
Given the Court's holding, in addition to incorporation, other open issues seem to include (1) whether open carrying of firearms in non-sensitive public places must be permitted; (2) whether possession of firearms in places of business by proprietors of the business is entitled to the same protections as possession of firearms in the home; (3) whether a ban on semi-automatic assault weapons or Saturday night specials, large caliber but otherwise unexceptional ammunition, body armor, gas masks or similar prohibitions on non-automatic firearms and self-defense equipment is within the dangerous weapon exception to the 14th Amendment, (4) what classes of people other than felons and the mentally ill may be prohibited from possessing weapons, (5) what recording keeping regarding gun ownership and transfers may be maintained in connection with commercial sales of firearms, and (6) what regulations may be imposed upon non-commercial firearm transfers.
The examples provided in the Heller opinion suggest that reasonable regulations of the Second Amendment right may be upheld without excessive scrutiny, certainly not the kind of piercing review that rights subject to strict scrutiny have been afforded, although something more than a highly deferential rational basis review of gun regulations may be required. Like the Court's regulation of discrimination on the basis of gender under the equal protection clause and related civil rights laws, the scrutiny afforded gun laws is likely to be intermediate in intensity and responsive to the realities of the situation. Individual prohibitions may produce splits of authority until they are resolved by the U.S. Supreme Court, the number of cases in the gray area may turn out to be quite small after a rather small number adjudications of the right. If the right is not incorporated, the number of adjudications is likely to be quite small.
Another important class of gun regulations not really addressed is whether the Second Amendment applies when the government acts in its capacity as a landlord or welfare program operator, as opposed to acting in a regulatory setting. Can public housing tenants or adults in a university dormitory, for example, be required to relinquish their Second Amendment right to have handguns in their home as a condition of their tenancy? Likewise, are private limitations enforceable via the eviction process imposed by private landlords and/or employers enforceable?
Given the Court's prior rulings upholding waivers of 4th Amendment protections from search and seizure by public housing tenants, and prior rulings holding that enforcement of private rights through litigation does not constitute state action, I think that it is likely that both of these classes of gun regulation may be upheld against Second Amendment challenges.
One of the most direct insights we are provided regarding the class of persons who may lawfully be prevented from bearing arms is not terribly helpful, because it would be unconstitutional under current equal protection standards (Slip Op. 42):
Both the prohibition of gun ownership by felons, and by public housing residents, have strong subtexts of racial disparity in impact. But it isn't clear if an echo of the expressly racially based prohibitions found in the post-Civil War South would cause the Court to reach out and strike down these prohibitions. I suspect that it will not do so.
Indeed, a fair reading of Heller could suggest another class of people that would cause racial disparity in application that could be excluded from the right to bear arms. The Court states that the right of the "People" in the Second Amendment is a right that extends only to "all members of the political community," (slip op. at 6), the body out of whom the militia was drawn at common law. While, the Court is exceedingly unlikely to hold that this exclude able bodied adult women, who have never been subject to a military draft or considered part of the militia at common law or under state constitutions, this description of the "People" might be used to hold that non-citizens who reside in the United States do not have a Second Amendment right to bear arms, on the theory that bearing arms, like voting, is to some extent a political right.
Finally, the extent to which the Second Amendment can be applied to interpret other laws in an effort to apply them in a constitutional manner is an open question. Could, for instance, the Second Amendment be used to interpret a concealed carry permit issuance law that on its face gives local law enforcement absolute discretion to deny issuance of a permit to do so only given some solid probable cause to believe that the permit would be abused? Or, could the Second Amendment be used to allow even felons to bear arms in exigent circumstances without criminal penalties?
Did The Heller Court Create A Right To Self-Defense?
Sometimes recognizing one right implies the existence of another. For example, while the entitlement of state governments to sovereign immunity is nowhere expressed in the text of the U.S. Constitution, it has been held to be implied by the 11th Amendment which prevents states from being sued in federal court by private individuals.
As the Court notes “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.” Slip Op. at 26.
A strong thread of Second Amendment theory is that it protects a natural right to self-defense. If the Second Amendment establishes the constitutional right of an individual to bear arms for the purpose of self-defense, then it follows that armed self-defense must be lawful, at least in some circumstances.
The U.S. Supreme Court has thus far more or less entirely left to the states the issue of when the use of deadly force is permitted in self-defense or in the defense of others. All states (and even the District of Columbia) permit this in some situations as a defense to the crimes of assault and murder. But there is ongoing legislative ferment over when this right exists, and state law is not uniform. At the center of this debate are "make my day" laws that permit the use of deadly force to stop a crime, even when alternatives like retreat or the use of non-deadly force may be sufficient. Some states don't have these laws at all. Colorado allows the use of deadly force in home invasion situations, even when the option of retreat is available. Some jurisdictions expand "make my day" laws to businesses. Florida imposes no geographical boundaries on its "make my day" law, never imposing a duty to retreat before using deadly force.
It wouldn't be a great stretch to rule, given the Court's ruling in Heller that the right to use deadly force for self-defense is an unenumerated right protected by the constitution which is coincident to the Second Amendment. Indeed, even if the right to bear arms isn't incorporated, it isn't inconceivable that minimum standards for permitting the use of deadly force in self-defense might be.
More Symbol Than Substance
The bottom line is that, outside the District of Columbia, Heller is more of a symbolic victory for gun rights, than one of substance. The rights Heller protects, most states, including Colorado, already to provide to their citizens, and it isn't clear that this ruling invalidates any law enacted by Congress and currently in force.
Indeed, by establishing that even a very conservative U.S. Supreme Court is willing to enshrine only a circumscribed and narrow right to bear arms, and by expressly enunciating the limitations on the right to bear arms at the same time that the right is announced, the U.S. Supreme Court may have stolen the N.R.A.'s thunder on the issue of judicial appointments and Second Amendment rights.
While Heller has acknowledged that there is an individual right to bear arms, something that even Democratic Presidential candidate Barack Obama with political roots in anti-gun Chicago was willing to do, the Court in this case has also shut down, perhaps in perpetuity, more a more absolutist scope for the right.
By rooting the Second Amendment more in common practice and self-defense, than the political goal of popular violent revolution, the Court has removed any constitutional objection to keeping hand grenades, military explosives, sawed off shotguns, metal detector evading firearms, automatic weapons, missiles, armor piercing bullets, tanks, chemical weapons, biological weapons and nuclear weapons out of private hands.
Democratic politicians can now point to Heller and say that they agree with the conservative U.S. Supreme Court that there is an individual right to bear arms which is subject to substantial, reasonable regulation. Moreover, if later cases do not apply the Second Amendment to the states, the ability of states to tailor their gun control laws to local desires, free of significant federal court or Congressional influence, Heller may actually bring increased harmony to this area of law, which is a political perennial.
The Court was modest in its holding, however, by making clear a number of limitations present in the ruling.
Does The Second Amendment Apply To The States?
Most critically, the majority opinion noted that under current U.S. Supreme Court precedent in post-14th Amendment cases, that the Court has held that the Second Amendment is not one of those parts of the Bill of Rights which is "incorporated" in the 14th Amendment. Thus, until the U.S. Supreme Court decides to overrule this line of case (and the majority opinion implied that the time to do so could be ripe), the Second Amendment may not invalidate any state or local law.
Mr. Heller was able to resort to the Second Amendment in this case solely because the District of Columbia, which enacted the law, is part of the federal government, and hence, it is subject directly to the provisions of the Second Amendment. The NRA, and presumably other parties, are now bringing test cases in places including Chicago and San Francisco to see if the U.S. Supreme Court will reverse itself on the issue of incorporation, but that is a case for another day.
The relevant language in the opinion says (slip op. at 48, footnote 23):
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
The notion that overruling prior precedent to permit incorporation of the Second Amendment might be ripe is also suggested when the Court states (slip pp. at 53-54):
Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, ChampaignCty., 333 U. S. 203 (1948).
Also importantly, the Court notes: “It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.” (Slip Op. at 44).
The Court's suggestion is that the meaning of the Second Amendment is an evolving area of law and that the prior non-incorporation holdings may have outlived their due date.
But footnote 23 probably prevents any federal court from holding that the Second Amendment is incorporated as to do so would violate binding U.S. Supreme Court precedents, although a federal court could suggest an alternate ruling if this precedent were overruled. Until then, Heller, and the Second Amendment, apply only to the law in the District of Columbia, federal territories and possessions, and Congressionally enacted federal laws.
Only one member of the Heller majority would have to defect to prevent the Second Amendment from being incorporated.
Related, but of unclear implication, is the Court's observation that the Second Amendment has not come up very often because legislators have rarely passed laws abridging the right (slip pp. at 53-54):
It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.
The existence of many versions of the right to bear arms in many state constitutions, perhaps even all of them, and the vast differences in circumstances in matters relevant to gun possession between say, Wyoming or Alaska on one hand, and Rhode Island or Hawaii, on the other, argues for not incorporating the Second Amendment. It also virtually eliminates most future litigation of local gun laws in the U.S. Supreme Court. Likewise, the fact that few jurisdictions do regulate guns as tightly as the District of Columbia did in Heller is notable.
While not all justices in the majority in Heller may be convinced that state constitutions, state legislatures and state courts may be trusted to limit gun control by state and local governments, such an idea might appeal to Justice Kennedy, and might also flow naturally into the observation that other rights which Justice Scalia treasures, such as the right to a trial by jury in civil cases or a unanimous jury in criminal cases, are not protected at the state level. Cases where rights have not been held to be incorporated generally argue that a civilized society can be maintained without them. The examples of Japan and the United Kingdom, to take just two examples, establish that it is possible to have a civilized democratic society without a right to bear arms with federal constitutional force.
States rights has long been a rallying cry of conservatives. But in this situation, that commitment to federalism may undermine the cause of a potent and widely effective Second Amendment.
Reasonable Regulation
While Heller did not enact a precise scrutiny level for analyzing the extent of the Second Amendment's individual right, the holding, the logic of the ruling, and the majority dicta in the opinion suggest that considerable regulation of an individual's Second Amendment rights is permitted. Some regulations which are reasonable are set forth in the opinion (slip op. at 54-55). They include bans on felons owning guns, on the rights of the mentally ill to own guns, and bans on the sort of highly dangerous weapons found only in military use (apparently including anything as military specific and unusually dangerous as an automatic rifle).
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. . . .
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons. . . .
It may be objected that if weapons that are most useful in military service - M-16 rifles and the like - may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.
The dangerous weapon requirement exception to the Second Amendment prohibits more than just automatic weapons. "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Slip Op. at 53.
The mere existence of a licensing requirement was not overruled in Heller, but in that particular case, the requirement wasn't challenged. But, presumably, if felons and the mentally ill may be prohibited from owning weapons, and if regulations of commercial sales of firearms are permitted, then some sort of licensing or application process to enforce this limitations is likewise permissible.
What Does The Right Protect?
On the other hand, the right to possess a functional handgun in the home, for the proposes of self-defense, even if the alternative of a long gun was available, was held to be protected by the Second Amendment.
The Court observes “that the American people have considered the handgun to be the quintessential self-defense weapon.” Slip Op at 57. “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Slip Op. at 57-58.
To my knowledge, no U.S. state has a statewide ban on the possession and use for self-defense of handguns in one's own home by mentally sound adults with no criminal justice involvement, although some municipalities do have such bans.
It also seems likely that, at least some class of people, in some places, have an individual right to carry arms, including handguns, when out and about, as well as a right to keep them in their homes, as the quotes below (slip op. 10-11, 19, 22), suggest, albeit with some limitations:
At the time of the founding, as now, to ‘bear’ meant to ‘carry.’. . . When used with ‘arms,’ however, the term has a meaning that refers to carrying for a particular purpose - confrontation. . . . Although the phrase implies that the carrying of the weapon is for the purpose of ‘offensive or defensive action,’ it in no way connotes participation in a structured military organization. . . . Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.
The confrontation most prominently protected appears to be one in which the use of deadly force for self-defense is required. It isn't clear if this right is more narrow than the right in the home, however, where various constitutional considerations involved in a right to security in one's home converge.
Open Questions Regarding The Scope Of The Second Amendment
Most states allow some citizens to obtain concealed weapons permits, but some jurisdictions are very parsimonious in granting them, while others allow them for almost any citizen not disqualified for an express reason from doing so. Certainly, it would seem that it would be improper under the Second Amendment to deny a concealed weapons permit to someone like Mr. Heller, a police officer, who carries such weapons when he is on the job. If the Second Amendment right is strong in one's home than in public, this distinction may survive constitutional challenge, if it is not, "must issue" concealed weapons permits may be constitutionally required.
Given the Court's holding, in addition to incorporation, other open issues seem to include (1) whether open carrying of firearms in non-sensitive public places must be permitted; (2) whether possession of firearms in places of business by proprietors of the business is entitled to the same protections as possession of firearms in the home; (3) whether a ban on semi-automatic assault weapons or Saturday night specials, large caliber but otherwise unexceptional ammunition, body armor, gas masks or similar prohibitions on non-automatic firearms and self-defense equipment is within the dangerous weapon exception to the 14th Amendment, (4) what classes of people other than felons and the mentally ill may be prohibited from possessing weapons, (5) what recording keeping regarding gun ownership and transfers may be maintained in connection with commercial sales of firearms, and (6) what regulations may be imposed upon non-commercial firearm transfers.
The examples provided in the Heller opinion suggest that reasonable regulations of the Second Amendment right may be upheld without excessive scrutiny, certainly not the kind of piercing review that rights subject to strict scrutiny have been afforded, although something more than a highly deferential rational basis review of gun regulations may be required. Like the Court's regulation of discrimination on the basis of gender under the equal protection clause and related civil rights laws, the scrutiny afforded gun laws is likely to be intermediate in intensity and responsive to the realities of the situation. Individual prohibitions may produce splits of authority until they are resolved by the U.S. Supreme Court, the number of cases in the gray area may turn out to be quite small after a rather small number adjudications of the right. If the right is not incorporated, the number of adjudications is likely to be quite small.
Another important class of gun regulations not really addressed is whether the Second Amendment applies when the government acts in its capacity as a landlord or welfare program operator, as opposed to acting in a regulatory setting. Can public housing tenants or adults in a university dormitory, for example, be required to relinquish their Second Amendment right to have handguns in their home as a condition of their tenancy? Likewise, are private limitations enforceable via the eviction process imposed by private landlords and/or employers enforceable?
Given the Court's prior rulings upholding waivers of 4th Amendment protections from search and seizure by public housing tenants, and prior rulings holding that enforcement of private rights through litigation does not constitute state action, I think that it is likely that both of these classes of gun regulation may be upheld against Second Amendment challenges.
One of the most direct insights we are provided regarding the class of persons who may lawfully be prevented from bearing arms is not terribly helpful, because it would be unconstitutional under current equal protection standards (Slip Op. 42):
Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia.
Both the prohibition of gun ownership by felons, and by public housing residents, have strong subtexts of racial disparity in impact. But it isn't clear if an echo of the expressly racially based prohibitions found in the post-Civil War South would cause the Court to reach out and strike down these prohibitions. I suspect that it will not do so.
Indeed, a fair reading of Heller could suggest another class of people that would cause racial disparity in application that could be excluded from the right to bear arms. The Court states that the right of the "People" in the Second Amendment is a right that extends only to "all members of the political community," (slip op. at 6), the body out of whom the militia was drawn at common law. While, the Court is exceedingly unlikely to hold that this exclude able bodied adult women, who have never been subject to a military draft or considered part of the militia at common law or under state constitutions, this description of the "People" might be used to hold that non-citizens who reside in the United States do not have a Second Amendment right to bear arms, on the theory that bearing arms, like voting, is to some extent a political right.
Finally, the extent to which the Second Amendment can be applied to interpret other laws in an effort to apply them in a constitutional manner is an open question. Could, for instance, the Second Amendment be used to interpret a concealed carry permit issuance law that on its face gives local law enforcement absolute discretion to deny issuance of a permit to do so only given some solid probable cause to believe that the permit would be abused? Or, could the Second Amendment be used to allow even felons to bear arms in exigent circumstances without criminal penalties?
Did The Heller Court Create A Right To Self-Defense?
Sometimes recognizing one right implies the existence of another. For example, while the entitlement of state governments to sovereign immunity is nowhere expressed in the text of the U.S. Constitution, it has been held to be implied by the 11th Amendment which prevents states from being sued in federal court by private individuals.
As the Court notes “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.” Slip Op. at 26.
A strong thread of Second Amendment theory is that it protects a natural right to self-defense. If the Second Amendment establishes the constitutional right of an individual to bear arms for the purpose of self-defense, then it follows that armed self-defense must be lawful, at least in some circumstances.
The U.S. Supreme Court has thus far more or less entirely left to the states the issue of when the use of deadly force is permitted in self-defense or in the defense of others. All states (and even the District of Columbia) permit this in some situations as a defense to the crimes of assault and murder. But there is ongoing legislative ferment over when this right exists, and state law is not uniform. At the center of this debate are "make my day" laws that permit the use of deadly force to stop a crime, even when alternatives like retreat or the use of non-deadly force may be sufficient. Some states don't have these laws at all. Colorado allows the use of deadly force in home invasion situations, even when the option of retreat is available. Some jurisdictions expand "make my day" laws to businesses. Florida imposes no geographical boundaries on its "make my day" law, never imposing a duty to retreat before using deadly force.
It wouldn't be a great stretch to rule, given the Court's ruling in Heller that the right to use deadly force for self-defense is an unenumerated right protected by the constitution which is coincident to the Second Amendment. Indeed, even if the right to bear arms isn't incorporated, it isn't inconceivable that minimum standards for permitting the use of deadly force in self-defense might be.
More Symbol Than Substance
The bottom line is that, outside the District of Columbia, Heller is more of a symbolic victory for gun rights, than one of substance. The rights Heller protects, most states, including Colorado, already to provide to their citizens, and it isn't clear that this ruling invalidates any law enacted by Congress and currently in force.
Indeed, by establishing that even a very conservative U.S. Supreme Court is willing to enshrine only a circumscribed and narrow right to bear arms, and by expressly enunciating the limitations on the right to bear arms at the same time that the right is announced, the U.S. Supreme Court may have stolen the N.R.A.'s thunder on the issue of judicial appointments and Second Amendment rights.
While Heller has acknowledged that there is an individual right to bear arms, something that even Democratic Presidential candidate Barack Obama with political roots in anti-gun Chicago was willing to do, the Court in this case has also shut down, perhaps in perpetuity, more a more absolutist scope for the right.
By rooting the Second Amendment more in common practice and self-defense, than the political goal of popular violent revolution, the Court has removed any constitutional objection to keeping hand grenades, military explosives, sawed off shotguns, metal detector evading firearms, automatic weapons, missiles, armor piercing bullets, tanks, chemical weapons, biological weapons and nuclear weapons out of private hands.
Democratic politicians can now point to Heller and say that they agree with the conservative U.S. Supreme Court that there is an individual right to bear arms which is subject to substantial, reasonable regulation. Moreover, if later cases do not apply the Second Amendment to the states, the ability of states to tailor their gun control laws to local desires, free of significant federal court or Congressional influence, Heller may actually bring increased harmony to this area of law, which is a political perennial.
26 June 2008
Pre-Heller
An opinion in the Second Amendment case Heller v. D.C. is expected from the U.S. Supreme Court shortly, probably written by Scalia and probably greatly expanding the scope of the individual right to bear arms for self-defense free of unreasonable federal regulation. I previously discussed at this blog the most attractive theory to back such a right in February. SCOTUS Blog and How Appealing will probably have the scoop most quickly.
25 June 2008
Tooting My Own Horn
James Joinder has given me greatly appreciated praise at the Outside the Beltway blog, reacting to a post of Ezra Klein at the American Prospect's blog which in turn cited a blog post of mine called Against Homeownership (emphasis added):
Both the American Prospect's blog and Outside the Beltway have orders of magnitude more traffic than my own little piece of the blogosphere.
Getting ahead of the curve on public policy issues is what this blog is all about.
Ezra Klein jumps on a growing meme the home ownership isn’t all it’s cracked up to be and that the government should stop subsidizing it. He points to Paul Krugman, who argues in today’s NYT that it’s time to rethink our decades-long bipartisan consensus that home ownership should be encouraged. . . .
Anyway, I see from Ezra’s “link blog” that James Surowiecki wrote almost exactly the same article for the New Yorker back in March. Better yet, Andrew Oh-Willeke wrote all of this in a May 2006 blog post, before the subprime lending crisis hit, putting him way ahead of the curve.
Klein, Surowiecki, and Oh-Willeke all note that easy lending exacerbated these issues, since so many people are now mortgaged up to their eyeballs, buying ever-bigger homes, and now feeling the crunch as the economy has slowed down. Back in the days when one had to put 20 percent or more down to buy a home, people were much more insulated from these effects.
Both the American Prospect's blog and Outside the Beltway have orders of magnitude more traffic than my own little piece of the blogosphere.
Getting ahead of the curve on public policy issues is what this blog is all about.
The Broader Impact of The Kennedy Case
Today's U.S. Supreme Court decision may invalidate part of Colorado's death penalty. Justice Kennedy's decision in the U.S. Supreme Court case of Kennedy v. Louisiana went further than simply abolishing the death penalty for child rape in Louisiana.
The opinion was written broadly enough to invalidate the death penalty for child rape in five other states and Montana, even though most of those statutes, unlike the statute in Louisiana, apply only to more aggravated cases. Democrat Joe Rice introduced legislation last year to impose a death penalty for child rape in Colorado, but it quickly failed in committee.
Child rape isn't the only non-homicide crime for which the death penalty is possible, and the opinion went beyond the case of child rape to provides that “[a]s it related to crimes against individuals, the death penalty should not be expanded to instances where the victim’s life was not taken.”
As I noted previously:
The Kennedy opinion preserves the death penalty's constitutionality for treason, espionage and the federal drug kingpin statute, for now, at least:
But Kennedy may invalidate statutes like Colorado's death penalty for kidnapping (also found in Idaho, Illinois, Missouri and Montana), although it would be possible to view the Colorado statute as something in the nature of a rebuttable presumption of homicide in connection with kidnapping, rather than an actual non-homicide death penalty, or to view the fact that a kidnapping may be ongoing as an aggravating factor that mandates a different analysis. To my knowledge, there is no one convicted of non-homicide kidnapping on death row anywhere in the United States today, so the issue is not ripe for adjudication at this time. Everyone on death row in Colorado was convicted of murder.
The ruling also almost certainly invalidated the Montana death penalty for aggravated assault statute. It may also invalidate the Missouri death penalty for placing a bomb near a bus station and aircraft hijacking, and the Georgia aircraft hijacking death penalty statute. It isn't clear if the death penalty for attempted murder to obstruct justice by an organized crime figure survives this decision either -- there is an argument that the emphasis on the judicial process makes it a crime against the state similar to treason.
The opinion also restates when the death penalty is available in felony-murder cases for someone who is not the actually killer:
Also, while this decision does not invalidate the federal drug kingpin statute, the Court's emphasis on the importance of which death penalties are carried out is notable. While rare, there have been a steady trickle of executions for espionage and treason over the nation's history. But the federal drug kingpin statute has no such heritage, and hence, may be on feeble ground. Also, the fact that only two states have the death penalty for drug kingpins, even though there is a federal statute to that effect, and that none of the other non-homicide/non-treason death penalties have been carried out or even enacted in more than five states, suggests that they are on questionable ground constitutionally. More background can be found here.
The opinion was written broadly enough to invalidate the death penalty for child rape in five other states and Montana, even though most of those statutes, unlike the statute in Louisiana, apply only to more aggravated cases. Democrat Joe Rice introduced legislation last year to impose a death penalty for child rape in Colorado, but it quickly failed in committee.
Child rape isn't the only non-homicide crime for which the death penalty is possible, and the opinion went beyond the case of child rape to provides that “[a]s it related to crimes against individuals, the death penalty should not be expanded to instances where the victim’s life was not taken.”
As I noted previously:
The other non-murder crimes on the books are as follows:
Three address cases where death is likely but hard to prove:
* Treason (Arkansas, Calif., Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, Washington, Federal)
* Espionage (New Mexico, Federal)
* Aggravated kidnapping (Co., Idaho, Il., Missouri, Mont.)
Three more amount to particularly aggravated cases of what amount to attempted murder:
* Aircraft hijacking (Ga., Mo.)
* Placing a bomb near a bus terminal (Mo.)
* Aggravated assault by incarcerated, persistent felons, or murderers (Mont.)
* Attempting, authorizing or advising the killing of any officer, juror, or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs. (Federal)
One is a product of war on drugs hysteria:
* Drug trafficking (Fl., Missouri, Federal)
The only Colorado crime on this list, First Degree Kidnapping, Section 18-3-301, Colorado Revised Statute provides that: "no person convicted of first degree kidnapping shall suffer the death penalty if the person kidnapped was liberated alive prior to the conviction of the kidnapper." Likewise, life in prison without parole is not a sentencing option for the offense "if, prior to his conviction, the person kidnapped was liberated unharmed."
The Kennedy opinion preserves the death penalty's constitutionality for treason, espionage and the federal drug kingpin statute, for now, at least:
Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.
But Kennedy may invalidate statutes like Colorado's death penalty for kidnapping (also found in Idaho, Illinois, Missouri and Montana), although it would be possible to view the Colorado statute as something in the nature of a rebuttable presumption of homicide in connection with kidnapping, rather than an actual non-homicide death penalty, or to view the fact that a kidnapping may be ongoing as an aggravating factor that mandates a different analysis. To my knowledge, there is no one convicted of non-homicide kidnapping on death row anywhere in the United States today, so the issue is not ripe for adjudication at this time. Everyone on death row in Colorado was convicted of murder.
The ruling also almost certainly invalidated the Montana death penalty for aggravated assault statute. It may also invalidate the Missouri death penalty for placing a bomb near a bus station and aircraft hijacking, and the Georgia aircraft hijacking death penalty statute. It isn't clear if the death penalty for attempted murder to obstruct justice by an organized crime figure survives this decision either -- there is an argument that the emphasis on the judicial process makes it a crime against the state similar to treason.
The opinion also restates when the death penalty is available in felony-murder cases for someone who is not the actually killer:
[I]n Enmund v. Florida, 458 U. S. 782 (1982), the Court overturned the capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place. On the other hand, in Tison v. Arizona, 481 U. S. 137 (1987), the Court allowed the defendants’ death sentences to stand where they did not themselves kill the victims but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial.
Also, while this decision does not invalidate the federal drug kingpin statute, the Court's emphasis on the importance of which death penalties are carried out is notable. While rare, there have been a steady trickle of executions for espionage and treason over the nation's history. But the federal drug kingpin statute has no such heritage, and hence, may be on feeble ground. Also, the fact that only two states have the death penalty for drug kingpins, even though there is a federal statute to that effect, and that none of the other non-homicide/non-treason death penalties have been carried out or even enacted in more than five states, suggests that they are on questionable ground constitutionally. More background can be found here.
24 June 2008
More To Pot Than THC
THC is the best known active ingredient in marijuana. But it turns out there another active ingredient is also present in marijuana which also has medical benefits.
Fresh beta-caryophyllene works best. A THC extract is approved for medicinal purposes in Canada to treat M.S., but in the U.S. marijuana is treated under the federal controlled substances act as it there are no medicinal benefits to marijuana for political reasons contrary to the scientific evidence.
Jürg Gertsch [is] a biologist at the Institute of Pharmaceutical Sciences in Zürich, Switzerland, and lead researcher on the study, published June 23 in Proceedings of the National Academy of Sciences.
The team extracted the compound, called beta-caryophyllene, from oily resin in Cannabis sativa L. buds . . . beta-caryophyllene works by turning on CB2 cannabinoid receptors, molecules that THC acts on and that are also known to reduce swelling, pain and inflammation.
THC works its anti-inflammatory magic by activating both CB2 and CB1 receptor molecules; CB1 receptors are concentrated in the brain and lead to the psychological effects of marijuana. Beta-caryophyllene, however, has little or no effect on CB1 and, therefore, might be used to ease inflammation without the psychological side effects . . . beta-caryophyllene has previously been isolated from a number of plants and spices including black pepper, oregano and cinnamon. . . . But the amount of pepper one would have to ingest to get the desired benefit might also lead to a nasty stomach ache, Gertsch says.
Fresh beta-caryophyllene works best. A THC extract is approved for medicinal purposes in Canada to treat M.S., but in the U.S. marijuana is treated under the federal controlled substances act as it there are no medicinal benefits to marijuana for political reasons contrary to the scientific evidence.
Closing Time
After a spat of closing time shootings, Mayor Hickenlooper is taking a look at options for tougher gun laws and adjusted nightclub operating hours.
Gun control is a ball of wax that I'll leave for another day.
Nighclub operating hour adjustments are something that has been tried, that worked, when similar problems (absent the guns) arose in London. There, closing hours are staged. Most bars close at one hour, a few close an hour or two later, and some close after that, with the plan being to funnel hard core light night partiers to bars the close the latest, until a mere trickle of then docile drunks are left at the couple of bars that close the latest.
Hickenlooper is uniquely qualified to know what would work in this arena as a long time LoDo bar owner himself. I don't know what level of government sets the 2 a.m. closing time, or whether home rule provides an room for meddling with limits set by state law on the issue.
Gun control is a ball of wax that I'll leave for another day.
Nighclub operating hour adjustments are something that has been tried, that worked, when similar problems (absent the guns) arose in London. There, closing hours are staged. Most bars close at one hour, a few close an hour or two later, and some close after that, with the plan being to funnel hard core light night partiers to bars the close the latest, until a mere trickle of then docile drunks are left at the couple of bars that close the latest.
About one year ago, Hickenlooper said, the city brought bar owners together to discuss changing the 2 a.m. bar closing time, but no changes were made. He hopes to bring the owners together once more to talk about changing closing hour.
Whitman said there has been discussion of staggering closing times. But if bars are left open longer, even if no alcohol is served for the last hour or more, it will require more police to patrol them, he added.
Bars throughout the city contribute to the rowdiness that accompanies closing time when they fail to cut off those who have had too much to drink, he said.
Hickenlooper is uniquely qualified to know what would work in this arena as a long time LoDo bar owner himself. I don't know what level of government sets the 2 a.m. closing time, or whether home rule provides an room for meddling with limits set by state law on the issue.
What Statutes Get The Most SCOTUS Attention?
The statutes that have been the most frequent subject of U.S. Supreme Court Review are as follows with the number of reviews in the subject time period (possibly from this source):
* Internal Revenue Code 199
* National Labor Relations Act 123
* Federal Rules of Civil Procedure 87
* Civil Rights Act of 1964 76
* Bankruptcy Code 71
* Sherman Act 69
* Habeas Corpus 68
* Immigration and Nationality Act 62
* Section 1983 (Civil Rights) 59
* Internal Revenue Code 199
* National Labor Relations Act 123
* Federal Rules of Civil Procedure 87
* Civil Rights Act of 1964 76
* Bankruptcy Code 71
* Sherman Act 69
* Habeas Corpus 68
* Immigration and Nationality Act 62
* Section 1983 (Civil Rights) 59
The Pantograph Revisited
In the future, cars and buses will be powered like laptop computers. Sometimes, they will run on batteries that will supply electric power to run the vehicle for short periods of time disconnected from the power grid. Sometimes, they will operate connected to the power grid and get their power from there.
Existing batteries are capable of powering electric cars which are identical in all respects but one, range, to existing internal combustion vehicles. But while a typical car or truck has a range of about 300 miles on a single refueling, a comparable electric vehicle can only go 40 to 100 miles on a single night's charge. Many people have assumed, as a result, that this will limit personal vehicles to intracity traffic unless a better battery is invented. But this doesn't have to be the case.
Electric vehicles are fine for light intracity travel. My average daily driving is about 16 miles a day, and my home garage already has plugs connected to the power grid that I could use to use to recharge it in the evenings. My bookkeeper drives more than I do, an average of 70 miles a day, but could also probably manage typical daily intracity driving completely on battery power.
But suppose I want to commute from Colorado Springs to Denver, or travel to Vail for the weekend? How do I plug in then?
The technology necessary to do this is more than a century old and is used today in street cars and in the Northeast Corridor's Amtrak service. The vehicle is connected to an Overhead Catenary, which is a system of overhead wires used to supply electricity to a vehicle equipped with a pantograph.
Historically, we have only equipped locomotives and street cars with pantographs, but this wouldn't have to stay that way. A car or bus can be equipped with a simple guidance system, that is a part of the pantograph-caternary system that keeps the vehicle traveling in line with the overhead wires on a road without tracks.
The place it makes the most sense to do this is on interstate highways. Many passenger rail plans already call for using the same basic routes as interstate highways. The vast majority of the people in the United States live within 30 miles of an interstate highway. A large share of intercity traffic takes place on interstate highways, but interstate highways make up only a small share of all roads in linear miles. The limited access nature of these highways makes them attractive places to use guidance systems that keep vehicles in line with the overhead wires powering them. Constant maneuvering from lane to lane isn't necessary on most long haul trips (hence, we have cruise control as a common feature in cars for highway driving). Many interstates either have or have planned high occupancy vehicle lanes which already favor buses and would be perfect places to add an overhead catenary. Many interstate highways are also already paralleled by high voltage power lines. Because the only upgrades necessary to the highways would be a set of overhead wires, and vehicles are designed with the height limitations of interstate highways in mind, adding an overhead caternary system would not prevent conventional internal combustion vehicles from sharing the road with electrically powered vehicles with pantographs during the transition period.
Interstate highways generally operate at or near the speed of existing passenger rail in the United States. They already connect most major cities, have systems in place to maintain them, and are already built, so no major new right of ways would have to be acquired.
Adding overhead catenary wires to existing interstate highways would be much less expensive than building new passenger rail tracks. I've heard estimates of $1 million a mile to put in streetcar lines on existing streets (far less than most kinds of rail and essentially what Denver has downtown). But it would be cheaper per mile to add overhead catenary wires without embedding rails flush with the street, and it would also probably be easier and cheaper to do the bulk of the work on lonely rural interstates, rather than in dense urban centers, where battery powered vehicles (some with pantographs and some without) could ply existing city streets. I suspect that a demonstration project adapting the FREX bus that goes from Colorado Springs to Downtown Denver, and electrifying the part of its route that goes on interstate highways, could probably be put in place for $25 million ($5 million for the buses, $20 million for the overhead catenary and fleet charging infrastructure), which is a small fraction of the cost of any type of electrically powered passenger rail system.
This kind of system would also be more robust than a traditional rail system. For example, if an accident or debris or a sinkhole or construction obstructed the area under the overhead catenary at some point, pantograph powered vehicles could simply detach for a few miles to detour around the problem area, while running on battery power, and then reattach to the wires down the road. This flexibility would also make the system a less attractive target to terrorists, because simply disrupting the wires at a single point could not bring the system to a halt the way destruction of train rails could.
The system could start with pantograph equipped buses, and could latter be expanded to include other pantograph equipped vehicles. The pantographs used to power vehicles on highways could also be used to recharge the vehicle in their home garages -- keeping high voltage connections above the level where people would be prone to accidentally making contact with them.
Why bother doing this at all? The main reason is the rising price of oil. Oil prices are expected to increase far more than electricity prices in the next many decades. We also have more mature technologies make the electrical power grid greener, by replacing high pollution coal powered plants with less polluting power plants that use renewable or nuclear sources, than we do technologies that allow internal combustion driven vehicles to be less polluting.
This low tech solution is also a much more plausible candidate for countries like China and India that are likely to see a huge rise in the number of vehicles operating on their roads, that aren't ready to pay the big bucks that an affluent country like Japan or France can afford to spend on expensive new high speed rail systems.
Existing batteries are capable of powering electric cars which are identical in all respects but one, range, to existing internal combustion vehicles. But while a typical car or truck has a range of about 300 miles on a single refueling, a comparable electric vehicle can only go 40 to 100 miles on a single night's charge. Many people have assumed, as a result, that this will limit personal vehicles to intracity traffic unless a better battery is invented. But this doesn't have to be the case.
Electric vehicles are fine for light intracity travel. My average daily driving is about 16 miles a day, and my home garage already has plugs connected to the power grid that I could use to use to recharge it in the evenings. My bookkeeper drives more than I do, an average of 70 miles a day, but could also probably manage typical daily intracity driving completely on battery power.
But suppose I want to commute from Colorado Springs to Denver, or travel to Vail for the weekend? How do I plug in then?
The technology necessary to do this is more than a century old and is used today in street cars and in the Northeast Corridor's Amtrak service. The vehicle is connected to an Overhead Catenary, which is a system of overhead wires used to supply electricity to a vehicle equipped with a pantograph.
Historically, we have only equipped locomotives and street cars with pantographs, but this wouldn't have to stay that way. A car or bus can be equipped with a simple guidance system, that is a part of the pantograph-caternary system that keeps the vehicle traveling in line with the overhead wires on a road without tracks.
The place it makes the most sense to do this is on interstate highways. Many passenger rail plans already call for using the same basic routes as interstate highways. The vast majority of the people in the United States live within 30 miles of an interstate highway. A large share of intercity traffic takes place on interstate highways, but interstate highways make up only a small share of all roads in linear miles. The limited access nature of these highways makes them attractive places to use guidance systems that keep vehicles in line with the overhead wires powering them. Constant maneuvering from lane to lane isn't necessary on most long haul trips (hence, we have cruise control as a common feature in cars for highway driving). Many interstates either have or have planned high occupancy vehicle lanes which already favor buses and would be perfect places to add an overhead catenary. Many interstate highways are also already paralleled by high voltage power lines. Because the only upgrades necessary to the highways would be a set of overhead wires, and vehicles are designed with the height limitations of interstate highways in mind, adding an overhead caternary system would not prevent conventional internal combustion vehicles from sharing the road with electrically powered vehicles with pantographs during the transition period.
Interstate highways generally operate at or near the speed of existing passenger rail in the United States. They already connect most major cities, have systems in place to maintain them, and are already built, so no major new right of ways would have to be acquired.
Adding overhead catenary wires to existing interstate highways would be much less expensive than building new passenger rail tracks. I've heard estimates of $1 million a mile to put in streetcar lines on existing streets (far less than most kinds of rail and essentially what Denver has downtown). But it would be cheaper per mile to add overhead catenary wires without embedding rails flush with the street, and it would also probably be easier and cheaper to do the bulk of the work on lonely rural interstates, rather than in dense urban centers, where battery powered vehicles (some with pantographs and some without) could ply existing city streets. I suspect that a demonstration project adapting the FREX bus that goes from Colorado Springs to Downtown Denver, and electrifying the part of its route that goes on interstate highways, could probably be put in place for $25 million ($5 million for the buses, $20 million for the overhead catenary and fleet charging infrastructure), which is a small fraction of the cost of any type of electrically powered passenger rail system.
This kind of system would also be more robust than a traditional rail system. For example, if an accident or debris or a sinkhole or construction obstructed the area under the overhead catenary at some point, pantograph powered vehicles could simply detach for a few miles to detour around the problem area, while running on battery power, and then reattach to the wires down the road. This flexibility would also make the system a less attractive target to terrorists, because simply disrupting the wires at a single point could not bring the system to a halt the way destruction of train rails could.
The system could start with pantograph equipped buses, and could latter be expanded to include other pantograph equipped vehicles. The pantographs used to power vehicles on highways could also be used to recharge the vehicle in their home garages -- keeping high voltage connections above the level where people would be prone to accidentally making contact with them.
Why bother doing this at all? The main reason is the rising price of oil. Oil prices are expected to increase far more than electricity prices in the next many decades. We also have more mature technologies make the electrical power grid greener, by replacing high pollution coal powered plants with less polluting power plants that use renewable or nuclear sources, than we do technologies that allow internal combustion driven vehicles to be less polluting.
This low tech solution is also a much more plausible candidate for countries like China and India that are likely to see a huge rise in the number of vehicles operating on their roads, that aren't ready to pay the big bucks that an affluent country like Japan or France can afford to spend on expensive new high speed rail systems.
23 June 2008
8% Godless
About 8% of people surveyed don't believe in God according to a Pew Survey of 36,000 people in 2007. Those numbers aren't huge, but are far more than the 1-2% answering that way in many other surveys.
This implies, of course, that a third of the faithful don't believe that their religion's sacred texts are the word of God, and that Evangelicals who attend church infrequently are comparably liberal to mainline Christians who attend church frequently.
While 92 percent of Americans believe in the existence of God or a universal spirit, only about 70 percent say they are "absolutely certain."
Almost two-thirds of the faithful take the view that their religion's sacred texts are the word of God. That group is almost evenly divided between those who think the text should be interpreted literally and those who don't. . . .
"[I]n the United States today is that people who regularly attend worship services and hold traditional religious views are much more likely to hold conservative political views," . . . For example, about 73 percent of Evangelical Christians who attend church at least once a week say abortion should be illegal, compared with 45 percent of Evangelicals who attend less often.
This implies, of course, that a third of the faithful don't believe that their religion's sacred texts are the word of God, and that Evangelicals who attend church infrequently are comparably liberal to mainline Christians who attend church frequently.
Arapahoe County Juries Racially Biased But Harmless?
The Colorado Supreme Court held today in a pair of cases out of Arapahoe County, Colorado, that the jury selection system in that county had a statistically significant racial bias that must be eliminated immediately, although it also held that these biases were not a basis for overturning convictions arising from that jury pool.
As previously noted in this blog, Aurora, Colorado, much of which is in Arapahoe County, is one of the most racially diverse cites in the state, while the rest of Arapahoe County has a smaller non-Hispanic white population on a percentage basis.
Given these demographics, any process with disproportionately removes Aurora residents from the jury pool leads to statistically significant reductions in minority populations in Arapahoe County jury pools.
Arapahoe County had such a practice. Someone in Aurora who is called for jury duty in municipal court is removed from the county and district court jury pools. But people in unincorporated Arapahoe County can't be called to appear for jury duty in municipal court, and so they are less likely to be disqualified from county and district court jury pools.
Notably, Sir Mario Owens was recently sentenced to death by an all white Arapahoe County jury. While the Colorado Supreme Court decision in this case may deny him state court review of this issue, the fact that the Colorado Supreme Court ruled that there was a statistically significant disparity at the time his jury was selected, provides a possible issue in federal court review of his case.
As previously noted in this blog, Aurora, Colorado, much of which is in Arapahoe County, is one of the most racially diverse cites in the state, while the rest of Arapahoe County has a smaller non-Hispanic white population on a percentage basis.
Given these demographics, any process with disproportionately removes Aurora residents from the jury pool leads to statistically significant reductions in minority populations in Arapahoe County jury pools.
Arapahoe County had such a practice. Someone in Aurora who is called for jury duty in municipal court is removed from the county and district court jury pools. But people in unincorporated Arapahoe County can't be called to appear for jury duty in municipal court, and so they are less likely to be disqualified from county and district court jury pools.
Because this systematic practice resulted in a statistically significant underrepresentation of African-American and Hispanics on jury panels in Arapahoe County, we disapprove of it and direct that it be stopped immediately. As the evidence presented by the expert showed, the likelihood that the underrepresentation of African-Americans on jury panels in Arapahoe County occurred by chance was 0.008%, or eight out of every 100,000 times, and that the likelihood that the underrepresentation of Hispanics on jury panels in Arapahoe County occurred by chance was 0.120%, or 120 out of every 100,000 times.
However, upon review of the other statistical evidence presented by Washington, we conclude that the underrepresentation of African-Americans and Hispanics as measured by statistical significance was minimal. As measured by absolute impact, the practice of giving double credit to prospective jurors for service in Aurora municipal court resulted in a decrease of less than one African-American and one Hispanic in every three 90- to 100-person jury panels in Arapahoe County. As measured by absolute disparity and comparative disparity, the underrepresentation of African-Americans and Hispanics here was slight when compared with other cases in which the underrepresentation violated a defendant’s constitutional right to a jury selected from a fair cross-section of the community.
Therefore, although we disapprove of the practice of giving double credit to prospective jurors for service in Aurora municipal court, our review of all the statistical evidence presented by Washington leads us to conclude that the underrepresentation of African-Americans and Hispanics on jury panels in Arapahoe County at the time of the defendants’ trials was not unfair or unreasonable, and thus did not violate the Sixth Amendment’s fair cross-section guarantee. We therefore affirm the judgments of the court of appeals.
Washington and Sayles also argue that the evidence of statistical significance in this case is sufficient to establish a violation of their statutory rights under the Colorado Uniform Jury Selection and Service Act, §§ 13-71-101 to -145, C.R.S. (2007). However, because neither Washington nor Sayles raised this argument at trial, on appeal to the court of appeals, or in their petitions for certiorari review, we reject their statutory claims as untimely.
Notably, Sir Mario Owens was recently sentenced to death by an all white Arapahoe County jury. While the Colorado Supreme Court decision in this case may deny him state court review of this issue, the fact that the Colorado Supreme Court ruled that there was a statistically significant disparity at the time his jury was selected, provides a possible issue in federal court review of his case.
Colorado Public Defender Rules Unconstitutional?
Colorado Public Defender Rules May Be Unconstitutional
In a not terribly surprising decision, the U.S. Supreme Court ruled that the right to counsel attaches when you are incarcerated and arraigned before a magistrate, even if the prosecutor's office has not yet become involved in the case because the proceedings were begun by a police officers authorized to do so in local practice. Rothgery v. Gillespie County, Texas.
The only surprising part of the decision is that the District Court and 5th Circuit Court of Appeals had ruled to the contrary (apparently the 5th Circuit had ruled the wrong way in a previous case).
According to the majority in Rothgery, Colorado is one of seven U.S. states that do not "take the first step toward appointing counsel 'before, at, or just after initial appearance.'" It went on to state with regard to these states (citations omitted):
One brief cited by the majority suggested "that the practice in Alabama, Kansas, South Carolina, and Virginia might actually be consistent with the majority approach." Thus, Colorado and Oklahoma practice, in addition to the Texas practice at issue in the case, might have to be reformed as a result of this decision.
I don't practice criminal law in Colorado on a regular basis and thus, I am not familiar with this detail of Colorado practice. I invite comment from those better informed than I about the impact of the Rothgery decision in Colorado.
Juries For Juveniles In Kansas
Another interesting ruling came out of the Kansas Supreme Court Friday, which held, in the case of In re L.M., that juveniles were entitled to jury trials in juvenile court deliquency proceedings because the juvenile justice system was no longer sufficiently different from the adult process (as a result of tough on crime reforms) to justify denying juveniles a right to a trial by jury.
To my knowledge, Kansas is now the only state in the United States where juveniles have a right to a jury trial in juvenile court. The ruling, arising under the Kansas Constitution, and hence, not reviewable by the U.S. Supreme Court or subject to amendment by the Kansas legislature without a constitutional amendment, was not retroactive in effect.
The decision would provide cover to other state supreme courts similarly disillusioned with the state of juvenile justice, and will almost certainly spawn copy cat litigation in other states, particularly if the right to a jury trial proves unproblematic.
I recall reading the U.S. Supreme Court decision that eliminated the right to a jury trial in juvenile court delinquency cases in law school and found it unpersausive. The Kansas Court summarized that U.S. Supreme Court decision at the outset of its analysis:
When Wrong Is Right
The Colorado Supreme Court and U.S. Supreme Court, in unrelated decisions, held today that sometimes a clearly incorrect legal ruling must be upheld when no timely objection is made to it.
In the Colorado case, Kancillia v. Pearson, a debtor was entitled to exempt disability payments from creditors claims in an amount greater than the amount authorized by statute, because a timely objection to the claim of exemption was not made by the creditor. The Colorado case was unanimous.
In the U.S. Supreme Court case, Greenlaw v. United States, a 15 year sentence was upheld, despite the fact that the defendant was convicted of a crime with a 25 year minimum sentence, because federal prosecutors didn't appeal that sentence, even though they had objected at trial to it. The U.S. Supreme Court ruling was a 6-3 decision not made on the usual partisan lines.
The idea that a clearly legally incorrect decision can be legally binding and unreviewable is sometimes hard for non-lawyers to understand, even though these situations come up fairly often, although usually less blatantly.
Judges and lawyers often make mistakes, and if there weren't limits upon reopening those mistakes, the judiciary's authority would be undermined by the uncertainty involved in judicial rulings.
In a not terribly surprising decision, the U.S. Supreme Court ruled that the right to counsel attaches when you are incarcerated and arraigned before a magistrate, even if the prosecutor's office has not yet become involved in the case because the proceedings were begun by a police officers authorized to do so in local practice. Rothgery v. Gillespie County, Texas.
The only surprising part of the decision is that the District Court and 5th Circuit Court of Appeals had ruled to the contrary (apparently the 5th Circuit had ruled the wrong way in a previous case).
According to the majority in Rothgery, Colorado is one of seven U.S. states that do not "take the first step toward appointing counsel 'before, at, or just after initial appearance.'" It went on to state with regard to these states (citations omitted):
[E]ven in the remaining 7 States (Alabama, Colorado, Kansas, Oklahoma, South Carolina, Texas, and Virginia) the practice is not free of ambiguity.
One brief cited by the majority suggested "that the practice in Alabama, Kansas, South Carolina, and Virginia might actually be consistent with the majority approach." Thus, Colorado and Oklahoma practice, in addition to the Texas practice at issue in the case, might have to be reformed as a result of this decision.
I don't practice criminal law in Colorado on a regular basis and thus, I am not familiar with this detail of Colorado practice. I invite comment from those better informed than I about the impact of the Rothgery decision in Colorado.
Juries For Juveniles In Kansas
Another interesting ruling came out of the Kansas Supreme Court Friday, which held, in the case of In re L.M., that juveniles were entitled to jury trials in juvenile court deliquency proceedings because the juvenile justice system was no longer sufficiently different from the adult process (as a result of tough on crime reforms) to justify denying juveniles a right to a trial by jury.
To my knowledge, Kansas is now the only state in the United States where juveniles have a right to a jury trial in juvenile court. The ruling, arising under the Kansas Constitution, and hence, not reviewable by the U.S. Supreme Court or subject to amendment by the Kansas legislature without a constitutional amendment, was not retroactive in effect.
The decision would provide cover to other state supreme courts similarly disillusioned with the state of juvenile justice, and will almost certainly spawn copy cat litigation in other states, particularly if the right to a jury trial proves unproblematic.
I recall reading the U.S. Supreme Court decision that eliminated the right to a jury trial in juvenile court delinquency cases in law school and found it unpersausive. The Kansas Court summarized that U.S. Supreme Court decision at the outset of its analysis:
[I]n McKeiver v. Pennsylvania, 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971), . . . a plurality of the Court held that juveniles are not entitled to a jury trial under the Sixth and Fourteenth Amendments to the Constitution.
In McKeiver, the United States Supreme Court addressed the constitutionality of the Pennsylvania and North Carolina juvenile justice systems, neither of which afforded juveniles the right to a jury trial. Although the resulting plurality opinion held that juveniles are not entitled to a jury trial under the federal constitution, the justices could not agree on the reasoning to support that holding. Four of the justices supported their decision with the following 13 policy considerations and assumptions or speculations about the impact of jury trials on juvenile proceedings:
(1) The Court had previously refrained from flatly holding that all constitutional rights assured to adults accused of crimes were imposed on state juvenile proceedings;
(2) Imposing jury trials might remake juvenile proceedings into fully adversarial proceedings, thereby putting an end to the intimate, informal proceedings envisioned by the creators of the juvenile justice system;
(3) A governmental task force that had studied the juvenile justice system did not make any recommendation regarding jury trials as a means of improving the deficiencies and disappointments in the juvenile system;
(4) As noted in dictum in Duncan v. Louisiana, 391 U.S. 145, 149 n.14, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968), a jury trial is not a necessary part of every fair and equitable criminal process;
(5) The imposition of a jury trial would not strengthen the factfinding process and would eliminate the juvenile system's ability to function in a unique way, placing the juvenile "squarely in the routine of the criminal process;"
(6) The Court was reluctant to preclude the States from experimenting with different ways of handling juvenile problems;
(7) The Court refrained from concluding that the abuses in the system were of constitutional dimension;
(8) Nothing prevented the juvenile court judge from using an advisory jury;
(9) Twenty-eight States and the District of Columbia denied juveniles the right to a jury trial, while 10 States provided a jury trial under certain circumstances;
(10) A great majority of States had previously concluded that In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), and Duncan did not require jury trials for juveniles;
(11) The Uniform Juvenile Court Act stopped short of proposing a jury trial;
(12) Injecting a jury trial into juvenile proceedings would bring "the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial"; and
(13) The possibility of prejudgment by a judge who has had prior access to the juvenile, the juvenile's record, and the juvenile's social file would ignore every aspect of fairness, concern, sympathy, and paternal attention contemplated by the juvenile system. McKeiver, 403 U.S. at 545-50.
Two concurring justices relied on other reasoning. Justice Harlan concurred with the result because he did not believe that the Sixth Amendment or the right to due process required the states to provide criminal jury trials for anyone. McKeiver, 403 U.S. at 557 (Harlan, J., concurring). Justice Brennan also concurred with the result but relied on the concept of fundamental fairness. According to Justice Brennan, the State did not have to provide jury trials for juveniles as long as some other aspect of the process adequately protected the juvenile's Sixth Amendment interests by preventing governmental oppression. Justice Brennan concluded that the Pennsylvania system was adequate because it allowed public trials, thereby "exposing improper judicial behavior to public view, and obtaining, if necessary, executive redress through the medium of public indignation." 403 U.S. at 555 (Brennan, J., concurring). Under this rubric, Justice Brennan concluded that the North Carolina system was not constitutionally sound because it did not allow public trials. 403 U.S. at 556-57 (Brennan, J., concurring).
Justices Douglas, Black, and Marshall dissented, stating that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." McKeiver, 403 U.S. at 559 (quoting In re Gault, 387 U.S. at 13). Noting that the "Sixth Amendment . . . speaks of denial of rights to 'any person,' not denial of rights to 'any adult person,'" the dissenting justices discerned no difference between allowing juveniles the right to a jury trial and the previously granted rights to notice, counsel, protection against self-incrimination, confrontation, and conviction under the beyond a reasonable doubt standard. 403 U.S. at 560-61 (Douglas, J., dissenting). The dissenting justices looked behind the facade of the delinquency charge to the underlying criminal statute and concluded that juveniles who are prosecuted for a criminal act involving a potential loss of liberty are entitled to the same protections as adults accused of a crime. 403 U.S. at 560-61.
When Wrong Is Right
The Colorado Supreme Court and U.S. Supreme Court, in unrelated decisions, held today that sometimes a clearly incorrect legal ruling must be upheld when no timely objection is made to it.
In the Colorado case, Kancillia v. Pearson, a debtor was entitled to exempt disability payments from creditors claims in an amount greater than the amount authorized by statute, because a timely objection to the claim of exemption was not made by the creditor. The Colorado case was unanimous.
In the U.S. Supreme Court case, Greenlaw v. United States, a 15 year sentence was upheld, despite the fact that the defendant was convicted of a crime with a 25 year minimum sentence, because federal prosecutors didn't appeal that sentence, even though they had objected at trial to it. The U.S. Supreme Court ruling was a 6-3 decision not made on the usual partisan lines.
The idea that a clearly legally incorrect decision can be legally binding and unreviewable is sometimes hard for non-lawyers to understand, even though these situations come up fairly often, although usually less blatantly.
Judges and lawyers often make mistakes, and if there weren't limits upon reopening those mistakes, the judiciary's authority would be undermined by the uncertainty involved in judicial rulings.
19 June 2008
Dismal DPS
Another day, another report on the dismal academic achievement of Denver Public Schools students.
Denver high school freshmen took standardized final exams in a variety of subject this year, based upon state curriculum requirements. It appears that most students took one of two English classes and one of five math classes. There were also standardized final exams in science and geography. Across the board, the results were awful. The percentage failing the final exam (and the number of students taking each test) appear below (following in brackets by the percentage getting Ds or Fs):
English
Introduction To Literature and Composition (3615) 34% [54%]
American Literature (3338) 41% [66%]
Math
Algebra II (1656) 67% [81%]
Geometry (2722) 47% [71%]
Algebra I (2730) 68% [85%]
Interactive Math Program 2 (229) 52% [67%]
Interactive Math Program 1 (469) 58% [75%]
Science and Social Studies
Biology (2722) 56% [78%]
Earth Science (2933) 69% [87%]
Geography (2842) 31% [71%]
The plurality grade in every English, math and science subject was F. In geography, the plurality grade was a D.
Kids were flunking their final exams, which unlike CSAPs they have an incentive to perform upon because they count towards the final grade in the class, at high rates at every level, despite the fact that, for example, high school freshmen in Algebra II should presumably be better at math than high school freshmen in Algebra I. Yet, more than two-thirds of DPS freshmen in each class flunked their final exam.
While it is possible that the exams are simply ill crafted, and they are certainly not perfect, the results largely coroborate the CSAP and ACT results from the district.
The numbers suggest some combination of two factors. One, students are being placed in classes that are grossly beyond their abilities, and hence are set up to fail. The other, is that students simply do not care across the board, even if they are able to perform.
A properly placed student who makes even a modicum of good faith effort ought to be able to score at least a C or D on a final exam.
The percentage of students scoring an A or B on the final exam, which suggests that they actually "get it" is tragically small as well. The percentage varied from 3% to 12% of students taking each exam, depending upon the class.
The Denver Public Schools may be teaching 7,000+ freshmen, but fewer than 1,000 of them are getting much out of it.
Denver high school freshmen took standardized final exams in a variety of subject this year, based upon state curriculum requirements. It appears that most students took one of two English classes and one of five math classes. There were also standardized final exams in science and geography. Across the board, the results were awful. The percentage failing the final exam (and the number of students taking each test) appear below (following in brackets by the percentage getting Ds or Fs):
English
Introduction To Literature and Composition (3615) 34% [54%]
American Literature (3338) 41% [66%]
Math
Algebra II (1656) 67% [81%]
Geometry (2722) 47% [71%]
Algebra I (2730) 68% [85%]
Interactive Math Program 2 (229) 52% [67%]
Interactive Math Program 1 (469) 58% [75%]
Science and Social Studies
Biology (2722) 56% [78%]
Earth Science (2933) 69% [87%]
Geography (2842) 31% [71%]
The plurality grade in every English, math and science subject was F. In geography, the plurality grade was a D.
Kids were flunking their final exams, which unlike CSAPs they have an incentive to perform upon because they count towards the final grade in the class, at high rates at every level, despite the fact that, for example, high school freshmen in Algebra II should presumably be better at math than high school freshmen in Algebra I. Yet, more than two-thirds of DPS freshmen in each class flunked their final exam.
While it is possible that the exams are simply ill crafted, and they are certainly not perfect, the results largely coroborate the CSAP and ACT results from the district.
The numbers suggest some combination of two factors. One, students are being placed in classes that are grossly beyond their abilities, and hence are set up to fail. The other, is that students simply do not care across the board, even if they are able to perform.
A properly placed student who makes even a modicum of good faith effort ought to be able to score at least a C or D on a final exam.
The percentage of students scoring an A or B on the final exam, which suggests that they actually "get it" is tragically small as well. The percentage varied from 3% to 12% of students taking each exam, depending upon the class.
The Denver Public Schools may be teaching 7,000+ freshmen, but fewer than 1,000 of them are getting much out of it.
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