As we’ve been showing this past week on this blog, Governor Dayton has been using poor Minnesotans as an anvil on which to try to hammer the GOP, intentionally ratcheting up the pain to them of a possible government shutdown.

It’s part of a great liberal liberal tradition; individuals can, and if need be must, be sacrified to “the greater good” (which, to modern progressives, means “liberals retaining power”).

Perhaps you’ve heard – the Bureau of Alcohol, Tobacco and Firearms has been busted running a “sting” that only stung Americans.

Operation Gunwalker – aka “Fast and Furious” –  has unravelled, with allegations that at very best, it was an incompetently-run operation which allowed thousands of guns to go, untraceably but with tacit, undercover government blessing, to Mexico.  Guns involved in Gunwalker are alleged to have been involved in the death of at least one Border Patrol agent.

And that’s the best that can be said about it.  Because…

The most damning revelations coming out of the hearings on Operation Fast and Furious held by the House Committee on Oversight and Government Reform are the unmistakable indications that the program was never designed to succeed as a law enforcement operation at all.

The fact that failed as law-enforcement is bad enough.  It gets worse:

A quartet of Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) agents and supervisors turned into whistleblowers to bring the operation down, but only after U.S. Border Patrol Agent Brian Terry was gunned down in the Arizona desert. Two of the weapons recovered at the scene of Terry’s murder were traced to the operation.

Bear in mind that every single weapon was bought by a known “straw buyer” under surveillance from the ATF; every single weapon was brought to, and across the border, where it vanished from ATF surveillance.

No, really:

ATF agents testifying in front of the House Oversight Committee could not explain how the operation was supposed to succeed when their surveillance efforts stopped at the border and interdiction was never an option.

ATF Agent John Dodson, testifying in front of the committee, said that in his entire law enforcement career, he had “never been involved in or even heard of an operation in which law enforcement officers let guns walk.” He continued: “I cannot begin to think of how the risk of letting guns fall into the hands of known criminals could possibly advance any legitimate law enforcement interest.”

Note that the entire gun rights movement – the NRA, the GOA, GOCRA, every single one of us – favors keeping guns out of the hands of criminals.

But why would the government do this?  Emphasis added:

The obvious answer is that Gunwalker’s objective was never intended to be a “legitimate law enforcement interest.” Instead, it appears that ATF Acting Director Ken Melson and Department of Justice senior executives specifically created an operation that was designed from the outset to arm Mexican narco-terrorists and increase violence substantially along both sides of the Southwest border.

Success was measured not by the number of criminals being incarcerated, but by the number of weapons transiting the border and the violence those weapons caused…At the same time in 2009 that federal law enforcement agencies (the ATF, the DOJ, and presumably Janet Napolitano’s Department of Homeland Security) were creating the operation that led to the executive branch being the largest gun smuggler in the Southwest, the president’s team was crafting the rhetoric to sell the crisis they were creating.

On television, in various news outlets, and even in a joint appearance with Mexican President Felipe Calderon, Obama pushed the 90 percent lie, implying that 90% of the guns recovered in Mexican cartel violence came from U.S. gun shops.

Like Dayton here in Minnesota, Obama and his administration cynically created a crisis to advance their “progressive” political goals.

It’s the stuff of conspiracy theories – except the evidence is right there, in the words from the ATF whistle blowers.

Unlike Dayton (so far), Obama’s perfidy has claimed the life of a US public servant.

This is worse than Iran-Contra, which never killed any Americans.   Indeed, if the allegations are true, it may be the worst abuse of government power I can remember – because with its complete lack of law-enforcement value, it is intended solely to infringe on the human rights of millions of law-abiding Americans, by way of killing hundreds of Mexicans and one unwitting US cop.

If it were a Republican plan, it would be front-page news.

Progressivism will kill you – literally – if it needs to to meet its goals.

I’ve been off the grid for the past couple of days. I was shocked to hear from friends this morning that Joel Rosenberg has died.

Joel was accomplished at many things; a science fiction writer with dozens of book credits, he was best known to civil liberties advocates in Minnesota as the beating heart and the rapier wit of the Self Defense movement.  That’s where I met Joel, of course, close to 20 years ago, one of the small group of activists with a vision that led to the most successful bit  of pre-Tea-Party grassroots politics in Minnesota history, the passage of the Minnesota Personal Protection Act.  A long-time DFLer, Joel had a mission.  From his obit at the Gun Owners Civil Rights Alliance:

Rosenberg became interested in guns and self defense more that 20 years ago, after receiving a series of anonymous death threats from a professed neo-Nazi. He applied for and received an unlimited permit to carry a pistol from the Minneapolis Police, a rarity at the time, when citizens had to convince an official of a need for personal protection before being allowed to carry a gun for self defense.

Not content with securing the then-privilege for himself, Rosenberg worked with GOCRA pass the Minnesota Citizens Personal Protection Act of 2003, and was instrumental in its re-passage in 2005 after it was suspended by a court challenge. His online forum, active from 2005 to 2010, was an electronic gathering place for activists, hobbyists, students and others interested in guns in Minnesota.

He was my carry permit instructor; he was also Ed Morrissey’s, and Ed eulogizes him for his response in a moment of need:

When a friend or even an acquaintance was in trouble, he’d drop everything he could to help. I know this personally, and I’ll tell a story here that I’ve refrained from sharing for some time. I have long supported individual rights under the Second Amendment, but had rarely owned or shot a firearm until last summer. I was made aware of a threat against my life by law enforcement that they considered credible (I won’t get more specific than that; the suspect is now serving a prison sentence), and it was made clear to me that I needed to step up my personal security.

The first person I thought to call was Joel. He had made many appearances on our NARN shows over the years, so I knew him a little, but Joel responded like I was a long-lost brother. He immediately trained and certified me for a carry permit, and then helped me select the best pistol for the job. He offered me continuing support while agreeing to keep the matter very, very private. As it turned out, thankfully, the need for the pistol has diminished, but I feel much more secure thanks in large part to Joel. My family and I are safer because of him.

Joel was a mainstay of the local libertarian alt-media; he and his wife Felicia Herman had attended, as I recall, every single MOB party; his various  blogs and forums were the electronic gathering halls for the local human rights movement.  He was, of course, a mainstay of this blog’s comment section.

Joel died of complications from a heart attack.  He leaves behind his two daughters, as well as Felicia; today would have been their 32nd wedding anniversary.

Joel’s long battle with Minneapolis’ soulless autocracy had already exhausted the family and, I can’t help but think, Joel himself. If you can help out, his site is accepting donations.

“Progressives” – or at least, way too many of them – hate the free and open interchange of ideas.

Over on this thread at MinnPost on the cancellation of “Sons of Liberty” on AM1280, a commenter sniffed “Freedom of speech has been stretched to the limit by “Patriot” radio”.  And I’d love to ask – what are the “limits” of free speech?   (And, by the way – for all of you who got the vapors over Brad Dean’s radio show or prayer in the house – are you OK with lefty host Randi Rhodes repeatedly calling for then-President Bush’s murder?  Or with Ed Schultz calling his talk-radio better Laura Ingraham a “slut”?  Just curious).

To many progressives, apparently, the limit is “whatever challenges what I believe“; students at Georgetown turned out to sign a (staged) petition to censor conservative websites:

“The undersigned hereby adamantly demand that the United States government shut down right wing hate sites. The hate speech propagated by sites like the Drudge Report, Hot Air, Instapundit, Big Government, and others must not be allowed to corrupt our political discourse any longer. These sites are dangerous not only to truth and freedom but also to our society as a whole. BAN THEM NOW!”

This is at Georgetown, mind you – incubator for our nation’s putative future elites.  And it’s not pretty; it might be time to look into getting some new “elites”.

Ed Morrissey – whose site was specifically targeted in the petition – quotes some of the new power generation:

“There has to be some control,” one young woman says. “I mean, freedom of speech is good, but, there is a certain modicum of control — I mean, look at the Tea Party.” Yeah, look at that freedom of assembly and freedom of political speech that garnered so much support that Republicans won more new seats in a midterm election than either party had in 72 years. We have to control that kind of thing! I particularly liked the one woman who signed the petition because sites like ours “cause a lot of debate.” Oh, heavens, no! Not debate! Why, then one might have to actually pay attention and think for one’s self!

Most common reaction to the question, “What do you think of the First Amendment?” was “I think it’s great, but ….” Maybe Georgetown should consider remedial Civics and American History classes.

I’d say Georgetown, and much of the public education bureaucracy, is thinking “Mission Accomplished” right about now.

It’s nothing new, of course.  Back in 1986, on my old graveyard-shift show on KSTP, I interviewed some members of “Women Against Military Madness” after their leader, Polly Mann, called for censorship of media that didn’t promote the “peace at any price” line.  With a straight face.

To: Opponents of Gay Marriage Amendment

From: Mitch Berg, small-“l” libertarian

Re: Your Sudden Conversions

Dear Gay Marriage Supporters,

Over the weekend, as the House debated the Marriage Amendment, I saw a lot of  you talking about “Civil Rights” and “Liberties” and “Principles”.  About how civil rights are not, no-how, not never, up for popular vote.

Great!  Today we are all libertarians!

So tomorrow, we’ll count on your support on…:

• Abolishing Campus Speech Codes.  Young citizens are citizens too! And there is no “civil right” not to be offended!  And just as you claim gay marriage won’t destroy breeder marriage, certainly being exposed to ideas that challenge or even offend them won’t destroy students’ education. Right?
• Second Amendment Rights.  Unlike gay marriage, our Right to Keep and Bear Arms is in the constitution, right next to speech, assembly, the press, jury trials, searches and seizures and the whole gamut. You may not understand the Second Amendment – most “progressives” don’t  – but it’s a right, not for trivial restriction – or how closely-knit it is with the Fourteenth Amendment – but  I expect to see you calling your legislator the next time she votes against, say, the “Stand Your Ground” bill.  It’s a civil right.  And a human right.  Pardon the redundancy.
• Enumerated Powers: You can stop calling people “Tenthers” and claiming that defendin the Tenth Amendment’s enumerated powers is akin to supporting slavery.
• Property and Possessions: You can not gabble about civil liberties without duefending the civil liberty that crosses all races, orientations, faiths, and other divides; the right to keep as much of what you earn as possible, as opposed to feeding it into the stifling maw of big government.   You’re all gonna be tax hawks now, right?
• Self-determination: Government mandates to buy heathcare are a civil-liberties abomination.  I’ll trust you’ll join me in attacking Obamacare.

I’ll expect the same level of civil-liberties absolutism that you have developed on the make-or-break issue of gay marriage.

See you at the barricades!

Chuckles Schumer demands a “Do Not Ride” list for Amtrak

Sen. Charles Schumer is calling for better rail security now that the raid on Osama bin Laden’s compound has turned up plans to attack trains in the U.S.

“Anyone, even a member of al-Qaida could purchase a train ticket and board an Amtrak train without so much as a question asked,” Schumer said. “So that’s why I’m calling for the creation of an Amtrak no ride list. That would take the secure flight program and apply it to Amtrak trains.”

Of course, except for the tiny fragment of America living in the congested mid-Atlantic strip, Amtrak is largely on Amerca’s “do not ride” list.  Amtrak is an epic money pit.

In vast swathes of the US, terrorists would be the only person on an Amtrak train.

This should really help!

Joe Doakes from Como Park writes (with occasional emphasis added):

Watch this video when you’re sitting down but not eating. At first, it looks like a typical chick-fight: slapping, hair pulling, minor kicking, nothing major. Certainly no reason to suspect the victim is in danger of Great Bodily Harm. Keep watching until you get to the 2:00 mark, then STOP it. Seriously, don’t watch the ending yet.

Here’s the video:

Remember – STOP THE VIDEO at the 2:00 mark.  Don’t peek.

If the victim in this video had been a pistol permit holder who resisted the assault by brandishing the pistol, would she have been justified?

Should she have run away, out the door into the parking lot where the attackers were waiting? Where else could she have retreated to, the bathroom where the attack started? The kitchen where the staff stood around watching but not helping? Was she legally obligated to flee McDonalds? How? Where?

What if the third time the attackers returned, the victim felt she was too weak and battered to safely flee so she drew her permitted pistol and opened fire? Would that use of force have been justified as self-defense?

In Minnesota?  Currently?  A county attorney, sitting in a warm office with a cup of Starbucks on her desk and a Sheriff’s deputy guarding the building will decide that according to whatever abstruse legal theory she thinks applies, and whatever political priorities her superiors have committed to.

Now, turn the video back on.

The problem with present self-defense law is that up until the minute of that video, any reasonable observer would have said no, deadly force is not justified, it’s just some chicks acting stupidly. There’s no danger of serious harm so no right of self-defense. But watch the ending again.

That’s the danger of allowing the prosecutor and jury, sitting two years after the fact, with six months to spend analyzing the evidence from every angle while experts debate the proper course of action. The last few seconds of that encounter changed lives forever. Should the victim have been legally obligated to endure it? Or should she have had the right to prevent it?

Should she have been able to Stand Her Ground, using deadly force if necessary?

Gotta smash some eggs for a better society, right?

Right?

This morning, we went over the claims from “Spotty” from Cucking Stool that Rep. Cornish’s “Stand Your Ground” bill (HF 1467, which we discussed at great length last week) would allow people to make spurious claims of self-defense and, literally, get away with murder.

It won’t, of course – although Minnesota’s “progressives” want you to think so.  We’ll come back to that.

What it will do is bring some much-needed rationality to Minnesota’s self-defense law.

Let’s go through a  hypothetical example that, unlike Spotty’s, actually occurs in the real world.

———-

Say that you are a woman.  You’re walking from your garage back to your  house, coming home from a picnic.  It’s dusk.  Your two kids are indoors, but the back door is open.  Suddenly, you hear a shout; it’s that stalker-y collections lawyer you met on Match.com, the one you told to pound sand after a noncommittal first date and a weird second one.  You told him you weren’t feeling it, and he’s been stalking you ever since.  You’ve even explored taking out a restraining order – but there’s no restraining him now.  He’s standing where he could come between you and the back door of the house.  He has a knife – a big, long knife.  Being a carry permit-holder, you grab your pistol and point, frantically remembering what your carry permit instructor taught you about the law last year:

• He’s got a knife – so you have reasonable fear of death or great bodily harm to yourself and your children.  Check.
• You are not a willing participant in this incident; you’ve made your lack of interest clear (which is one of the things that’s set the little fella off). Check.
• If someone is coming at you with a knife, then you can probably convince a sane jury that lethal force is reasonable. Check.
• You are in the back yard of your house.  The law re self defense says that you have to be sure of all of the above and make every “reasonable” effort to disengage and avoid the use of lethal force.  As you stand in the back  yard facing a stalker moving toward you with a knife, you need to decide; do you retreat toward the house to protect your kids, even though he could cut you off?  Or do you retreat back toward the garage (because defending your children means, conceivably, advancing on him)? And if he follows you, do you retreat completely off your property?  You need to decide this immediately, under life or death pressure, with your adrenaline pumping, in dimmer-than-ideal light, under mind-boggling stress.  However, the question “did you make every reasonable effort to avoid shooting” will be decided by a cop at a secured crime scene after the fact, and – more importantly – by a county attorney in a nice, warm, brightly lit office, protected by sheriff’s deputies and a metal detector.  How will they decide?  If you live in Kandiyohi County, you’ll probably get the benefit of a doubt.  If you live in Ramsey?  Your fate will be decided by a former frat boy who graduated in the top 60% of his class at the U of M Law School, who got his job because of his DFL party connections with Susan Gaertner, and who keeps his job based on how he pleases his city and county’s DFL leadership, who believe as a matter of policy that a shooting is a shooting is a shooting, whether it’s a woman defending herself or a gang-banger shooting a 15 year old girl.  Feel safer now?  Uh-oh.

Back to “Spotty”.

And  here are two subdivisions that deal with the consequences to the user of deadly force after the event.

The bill says that if some one even claims self defense, they are immune from arrest — which might include even detention at the place of an incident of the use of deadly force — until an arresting officer weighs all of the circumstances. The would be hard to gainsay the absurdity of subdivision five and the complete impracticality of its application. It makes the police into arraignment judges.

And he goes on to say…:

But subdivision six contains the most monumental change in the criminal law. Under current law, in both federal and state courts in Minnesota, a defendant has the burden of establishing self defense. Once the acts are established beyond a reasonable doubt, i.e., the weapon was used by the defendant, the defendant must show that the killing or wounding was justified. The proposed statute flips that burden around, placing it on the prosecution.

Now, I’m nothing if not a civil guy (unlike more than a few of my critics, including “Spotty”).  But between this passage, and his little opening fantasy, it’s pretty clear he hasn’t the foggiest idea how “Self Defense” works.

Let’s say that you are the woman in my example above.  As the stalker charges toward you, you shoot.  Two shots to the chest; he drops like a dog.  The cops respond; and say “Good shot, he had it coming, you had to protect yourself and your kids, there was no way you could have done it differently under the circumstances”.  But there’s a body – so the county attorney opts to press charges, based on the fact that, in the County Attorney’s opinion (sitting in his brightly-lit office, with a cup of coffee on his desk and all the time he needs to think through all the angles) the fact that there was a shooting is all that matters; county policy is to “arrest and charge the gun” – no matter who used the gun, and why.

Which means the woman in my example will be arrested, and charged with murder, and have to float bail and hire a lawyer and go to court and say “yes, I killed the guy – but he came to me, he had a knife, and it was clear my kids and I were in lethal danger, and my response was reasonable, and under the circumstances retreat was, if not impossible, unreasonable “.  After which the County Prosecutor gets to tell a jury – also working in a nice, brightly-lit room, with sheriff’s deputies guarding them and all the donuts they can eat – that no, you should have run up the stairs, or out the back door, or put your gun down and negotiated with him, or anything but end his unstably-minded life.

The best you can hope for is that your attorney can convince 12 people who couldn’t get out of jury duty that you were in the right (for between $10,000 and $50,000 in court costs and attorney fees); your life’s savings will be exhausted, your credit will be shot, you have a good chance of losing your job – but you will have proved your innocence of murder – something no actual murderer has to do (because they’re innocent until proven guilty, remember?) while you, a law-abiding citizen who shot in self-defense, are “guilty with an explanation”.  The worst?  That your lawyer does a bad job, and that your judge – a DFLer, maybe? – gives jury instructions that virtually ensure your conviction, and a prison term, and a lifetime in court defending “wrongful death” suits, because you were found guilty of…well, not “wrongfully killing” someone, so much as of not retreating far and fast enough.  And in between the two, there’s the chance that the County Attorney fights you so aggressively on the case that, even though you were right to shoot, you have to take a plea bargain, because you are bankrupt and can’t afford to continually fight the entire weight of the County’s legal bureaucracy by yourself; to take a smaller felony in exchange for maybe, someday, getting your life back.

Unlike “Spotty’s” little flight of fancy at the top of the post, this scenario actually happens.  Ask Martin Treptow.

So Cornish’s bill would allow two things:

• In cases where the shooter has met all of the criteria for self-defense (not a willing participant, and the fear of death or GBH, the lethal force and the attempt to disengage are all “reasonable”), it would allow law enforcement to recognize the fact that it was a justifiable shoot, without putting the defendant behind the legal eight ball from the very beginning.
• In shootings that meet all the criteria, it switches the burden of proof to where it belongs; the state.

Spot:

The bill also immunizes the vigilante from civil liability — to anybody, including bystanders waiting at the bus stop or walking down the street.

Well, sort of.  Here’s what Cornish’s bill says, with emphasis added:

7.23 Subd. 5. Criminal investigation; immunity from prosecution. (a) An individual|

7.24who uses force, including deadly force, according to this section or as otherwise provided
7.25by law in defense of the individual, the individual’s dwelling, or another individual is
7.26justified in using such force and is immune from any civil liability or criminal prosecution
7.27for that act.

7.28(b) A law enforcement agency may arrest an individual using force under
7.29circumstances described in this section only after considering any claims or circumstances
7.30supporting self-defense or lawful defense of another individual.

In other words, it gives clear-cut cases of self-defense a chance to be resolved without making a thoroughly-lawful shooter go through the entire judicial process as a criminal on trial, and protects people who carry out thoroughly legitimate self-defense shootings from retribution in civil court from the people they shot.  (Not bystanders; the law would not legalize shooting bystanders; the imperative to “know  your backstop” doesn’t change).

Back to Dog the Red Herring Hunter:

The practical effect is that if a defendant says “I felt threatened,” it is the prosecutor’s burden to show that the defendant was not “reasonably” threatened.

Again, I’m not the one who is going to come around with the personal insult – but “Spotty” is a lawyer in real life.  I’m not sure if he’s just unfamiliar with how the system works, or if he’s being willfully disingenuous.  But it’s not enough to say “I felt threatened”; it isn’t now, and it won’t be under Cornish’s law.  If the body on your floor is  not holding a knife or gun, it’d be well within the cop’s discretion to say  I know you claim to have shot in self-defense, but it appears at the least  you were mistaken” under Cornish’s proposal, whereas today he’s more likely forced to say “I know you’re innocent, but our county policy is “arrest the gun””.

The burden of proof for demonstrating, for example, insanity or diminished capacity as a defense to a crime also rests with the defendant. If this bill becomes law, it would give the user of deadly force a procedural advantage not shared by any other defendant seeking to use an affirmative defense.

“Spot” is begging the question here – using Minnesota’s current treatment of self-defense as “evidence” that Minnesota’s current treatment of self-defense is the right approach.  It’s illogical, notwithstanding that it’s wrong.   “Affirmative Defense” – saying “yes, I committed the crime, but there are some factors due to which you should modify my culpability” – makes sense, arguably, for modifying the consequences of acts committed under diminished capacity.  An obviously legitimate self-defense shooting should not be treated as analogous to someone who hacks someone up and offers up the bits and pieces as a sacrifice to his invisible masters.  Defending life and limb from predators is an unalloyed good; it should not be treated as an anomaly to be carefully screened and treated.

Under the bill, if an insane man shot somebody, he would have a better chance of beating the rap by claiming he used  the gun in self defense than defending on the basis that was insane.

Only if you assume cops and, yes, county attorneys are complete idiots.  Can “Spotty” spell out a case where an insane man…:

• …who was not a willing participant in a fight, and…
• …who had a legitimate fear of death or great bodily harm, and…
• …in a case where his use of lethal force was reasonable, and…
• …where he did whatever was reasonable to avoid the use of lethal force…
• …in a place where he had, as Cornish’s bill spells out, the “legal right to be”?

I’m guessing this doesn’t even rise to the level of a reasonable hypothetical.

And for my money, if you shoot somebody, or knife them, it ought to be you who has some explaining to do.

If “Spot” thinks no explaining will be involved after even a perfectly legitimate shooting, he’s clearly floating free of all reason.

Fortunately Spot’s “money” isn’t what governs us.   Our elected legislature and governor are.

Cornish’s bill will come up in the Public Safety Committee on Thursday.  It’ll likely pass on a straight party-line vote (although outstate Dems will likely support it as well – they know the power of the Gun Owners Civil Rights Alliance  (GOCRA) outstate), but please contact everyone on the committee anyway (info below the jump).  After that, it’ll likely pass the House and Senate the same way, and go to the Governor.

Who will face a conundrum; sign the bill and keep his promise to the outstate but largely pro-Second-Amendment DFLers who believed him when he said he kept a pair of .357s in a lock box in his bedroom for self-defense, and that he was (against his entire voting record) a pro-Second-Amendment guy, or veto it and lose still more outstate legislative seats in 2012 (because outstate DFLers who forget the power of GOCRA will live to regret it).

Update: Forgetful old dog that I am, I neglected to mention that the post was prepared with the able editorial assistance of MNO.

As I’m a kind and gentle guy, I’ll let that blooping slow-ball sail outside for an easy ball.

(more…)

Because “progressives” are telling fairy tales about guns again.

Back in 1987, when Florida became the first major state to pass a “shall-issue” law, Senator Ron Silver set a standard for rhetoric (“It’ll be like Dodge City”, “there’ll be blood running in the streets”) that he, at least, had the decency to admit was overblown ten years after the fact, when it turned out that not only had nothing he or the bill’s other detractors predicted came true, but that law-abiding citizens with carry permits were about 1/100 as likely to commit any crime at all as the general public.

The standard was “topped”, of course, here in Minnesota during the final debate on the Minnesota Personal Protection Act.  During the final debate on the floor vote in 2003, the Senate DFL caucus came out to the floor wearing flak jackets.  Wes “Lying Sack of Garbage” Skoglund continued his years-long trail of just-plain delusional fantasy, claiming that “gang-bangers will be able to get permits” and “I’m worried carry permit holders will be stalking me”.

Of course, every single casualty of post-MPPA carry permits to date – I can think of one, actually – was ruled justifiable.  The Hiawatha Light Rail line kills more people in a typical year, none of them justified.

Still, you can’t blame “progressives” for resorting to fantasy and delusion when attacking pro-Second Amendment legislation; since the facts are against them and the law (from the SCOTUS on down) is against them, it’s really all they have.

And “Spotty” from Cucking Stool is reliably cliché-driven on the subject (yep, he’s even done the “gunnies are teh compensating” narrative, a few years back).  So he’s not exactly breaking new ground with this post on the Cornish “Stand Your Ground” bill (which I wrote about last week).  Although it’s an interesting little view into a “progressive’s” fantasy life:

But officer, I felt so threatened

Sir, I see you standing over the dead body of that man, and you’re holding a gun. Care to explain yourself?

Well, officer, I shot him.

I figured that. But can you tell me why?

He threatened me.

What did he say?

Well he didn’t say anything, actually.

Did he pull a gun or a knife, or take a swing at your?

No, not really.

What do you mean, “not really?” What did he do that you felt justified in killing him?

He gave me the stink eye and well, he kind of sucked his teeth. It really scared me.

Okay then. Sorry to bother you. Say, can you move aside so we can get at this guy? We have to take him to the morgue and call his family and stuff; I need to pull his wallet.

Sure; no prob.

Scary!

This may be a scenario coming to a corner near you.

But only if the cop and the county attorney don’t bother figuring out if the shooter had a legitimate fear of death or great bodily harm (“stink-eye” doesn’t cut it, even in the most conservative counties in Minnesota), or if lethal force was appropriate  under the circumstances (ibid), or if the shooter was a willing participant in the squabble.

Which are, I’m sure, annoying technicalities to “Spot”, but pretty much life-and-death to anyone who needs to defend his/herself.

Also, the law.

I’m just picking on Cornish because’s he the Chairman of the Public Safety Committee in the House — of the chief authors of HF 1467, a bill that, inter alia, removes the obligation of a person to retreat from a threatening situation, if possible, before opening fire. Under the bill, if an individual “reasonably” (ah, the devil is in the details, isn’t it?) believes there is a threat to him or her or a third person, they’ll be justified in using deadly force to meet the threat. It’s a little more complicated than that, but you can read the whole bill at the link. And here are some of the key sections of the bill. It’s in pdf format,

[Well, not just PDF .  See 609.065, Subd. 2 in the linked bill – Ed.]

Here are the circumstances when deadly force is authorized. The first subsection is already permitted under Minnesota law, the second probably is, too, save for the issue of a safe retreat. The third subsection is quite vague, and it is a complete departure from current Minnesota law. A “forcible felony” might include something like breaking and entering (burglary) on property that is not occupied, and which is not even yours. This is the true vigilante section of the bill.

I’m getting tired of typing “this is just patent rubbish”.  I need a hot key of some kind.  But you get the idea.

There is nothing “vigilante” about it.  One of the biggest ambiguities of Minnesota’s self-defense law is that while current law – dating back to well before the Minnesota Personal Protection Act – allows citizens to use lethal force to defend themselves “or others” from death or great bodily harm (henceforth “GBH”), it gives prosecutors immense, and arbitrary, power over how they treat self-defense shooters – and force self-defense shooters to go down a very hazardous legal path to justify their actions.

The next subdivision of the proposed statute is the part that eliminates the duty to retreat if you can. The law has always permitted you to defend yourself, with deadly force if necessary, if you can’t retreat. But you do have a duty to avoid violence if you can.

“If you can”.

“Spotty” writes it with the blasé tone of someone for whom the concept is utterly academic.

If you’re ever in a life or death situation, it’s not.

Let’s delve into reality over the noon hour today.

(more…)

Michgan state troopers are downloading peoples’ “smart phone” info during routine traffic stops:

ACLU learned that the police had acquired the cell phone scanning devices and in August 2008 filed an official request for records on the program, including logs of how the devices were used. The state police responded by saying they would provide the information only in return for a payment of $544,680. The ACLU found the charge outrageous.

To be fair, the ACLU were lucky the Michigan State Police didn’t put them in cuffs first.

“Law enforcement officers are known, on occasion, to encourage citizens to cooperate if they have nothing to hide,” ACLU staff attorney Mark P. Fancher wrote. “No less should be expected of law enforcement, and the Michigan State Police should be willing to assuage concerns that these powerful extraction devices are being used illegally by honoring our requests for cooperation and disclosure.”

A US Department of Justice test of the CelleBrite UFED used by Michigan police found the device could grab all of the photos and video off of an iPhone within one-and-a-half minutes. The device works with 3000 different phone models and can even defeat password protections.

“Complete extraction of existing, hidden, and deleted phone data, including call history, text messages, contacts, images, and geotags,” a CelleBrite brochure explains regarding the device’s capabilities. “The Physical Analyzer allows visualization of both existing and deleted locations on Google Earth. In addition, location information from GPS devices and image geotags can be mapped on Google Maps.”

The idea that any contact with the police is “probable cause” for losing all your rights needs to be revisited.  In some places, some cops and prosecutors are running completely amok.

“Let me please indroduce myself,
I’m Janet, from HHS.
I’ve been around for about two years
The One called, and I said “yes””.

“I was around when Tim McVeigh
had his moment of spotlight.
And all you middle-class conservatives
are what keep me up at night…”

The [counter terror disaster] exercise scenario describes shootings occurring after rising tensions in the community because of an influx of minorities, Reed said. The newcomers, some who are American citizens and some who are illegal immigrants, were to have moved into a rural area from urban areas in search of more-affordable living. The newcomers are not welcomed by racial extremists, and controversy sweeps the community, he said.

“I am in charge of keeping you safe
that is what I’m supposed to do.
So you shouted out “who are the terrorists?”
when after all, it’s  you and… you:”

One of the fictional suspects involved in the shootings is described an 18-year-old white male with a quick-tempered father who is a firearms enthusiast with ties to an underground white supremacy group. A second fictional suspect is described as an isolated 17-year-old white male student who was befriended by the older student and who mimics his new friend.

“Pleased to meet you.  Hope you guessed my name”.

I get the impression there’s  not much middle ground when it comes to John “Johnny Northside” Hoff.   I didn’t entirely know that when I first wrote about his defamation trial last week.  People either seem to support him for his crusading against mortgage fraudsters in North Minneapolis, or they detest him for being a showboating publicity whore who plays waaaay below the belt, publishing his targets’ phone numbers, home addresses and employers when he really wants to screw with ’em.

That, in fact, was my first encounter with Hoff; back in 2007, he vowed in the Minnesota Daily to stalk Republican National Convention delegates at their hotels.

One of his subjects, a Jerry Moore – a community organizer who went to work for the University of Minnesota – became the target of Hoff’s ire, after Moore’s involvement in a mortgage fraud scam (for which some people went to jail for long terms, but in which Moore was never convicted).  Not satisfied with the results of the legal system, Hoff turned the attention on the University, drawing enough attention to Moore that the U fired him.

Moore sued, for defamation and “Tortuous Interference” with his employment.  The proceedings dragged on for the better part of two years, before ending Friday with a jury awarding $60,000 to Moore; $35K for damages, $25K for emotional distress.

Not for defamation – libel, in this case – but for “Tortuous Interference” with Moore’s employment.   The ruling seems to have been that while Hoff’s postings didn’t meet the legal standard for libel, which in Minnesota means…:

1. Party A (Hoff) says something about Party B (Moore) to Party C (Hoff’s readers, the public)…
2. …which is untrue…
3. …which has a reasonable chance of harming Party B’s livelihood or reputation…
4. …and, if Party B is a public figure, he must prove Party A’s intent was malicious – and “public figure” can mean “even in a limited sense”, as in a community organizer or, for that matter, a blogger.

…they did interfere illegally with Moore’s employment.

Since the court classed Moore as a “limited public figure”, a defamation suit was all but impossible; to win, a blogger would basically have to write something utterly untrue, be told it was untrue, and respond via email “I don’t care, I’m going to get you not matter what!”.

That was a “hypothetical” example.  Scout’s honor.

Anyway – the defamation suit got tossed, but Hoff lost on “tortuous interference”, whose legal definition I’m not at all sure about; some commentators (David Brauer among them) immediately tweeted that the case was eminently appealable.

Abby Simons at the Strib covered the story – and it’s not quite so clear-cut:

Jane Kirtley, a U of M professor of media law and ethics, called the lawsuit an example of “trash torts,” in which someone unable to sue for libel, which by definition involves falsity, reaches for another legal claim. She predicted the verdict will be overturned.

“This is based on expression, and expression enjoys First Amendment protection,” Kirtley said. Just last week, she said, the U.S. Supreme Court ruled that the First Amendment protected the Westboro Baptist Church’s antigay protests at military funerals.

“I find it really hard to believe that there was a degree of emotional distress caused by this reporting that outstrips that suffered by [a Marine’s] family,” Kirtley said.

The verdict also surprised U of M law professor William McGeveran, but he wasn’t so certain that it will be easily overturned. Appeals courts tend to give a lot of credence to jury verdicts, he said.

Leaving appellate law issues aside, the lessons for bloggers seem fairly clear:

Learn what “Defamation” is, and don’t do it.  The short form?  Don’t present as facts things that can damage other people’s livelihood or reputation, if they are not true (things that are clearly presented as opinion are another matter). If you write something damaging, believing it to be true, and it turns out not to be the case, issue a correction; correcting an error is a pretty clear indicator you’re not acting out of malice.

Know when to stop. There are a few bloggers – mostly but not exclusively on the left – who can’t leave the story where the story ends.  They go to their subjects’ homes, or they publish where their subjects work.  They attack their subjects’ families.

It’s been my personal policy since the beginning to leave peoples’ jobs out of the story (unless it is a part of the story, legitimately.  And that means not creating a story out of someone’s job or family; there are a few regional bloggers who will write stories theorizing that other bloggers, for example, write on company time; I figure that’s between the blogger and their employer).   Families?  Always, always off-limits – including trying to find ways to make the families of people I disagree with into stories.

The point isn’t my own facility for horn-blowing; it’s that not only is going after peoples jobs, families and personal lives (that aren’t parts of the story) scuzzy; until the “Johnny Northside” case is resolved, it’s legally dicey as well.

As, I think, it should be.

Ed Kohler has a roundup of other coverage.

UPDATE:  Just so I’m clear on this: it’s a very, very good thing that Hoff was found not guilty of defamation.  It’s pretty clear that he stayed within the letter of the law.

David Brauer at MinnPost on the verdict:

The award left media lawyers flabbergasted because, as Faegre & Benson’s John Borger puts it, “If the statement was true, there should be no recovery. There is caselaw in Minnesota that the providing of truthful information is not a basis for tortious interference.”

Hoff’s lawyer, Paul Godfread, says “we will file any post-verdict motions that are appropriate.” Two common ones: filing for judgment based on a matter of law, and a motion for a new trial. The former wouldn’t challenge the jury’s fact-finding, instead arguing there is only one proper legal conclusion — no monetary damages.

The question “which prevails, the jury verdict or the case law?”, is one of those things that lawyers get rich hashing out.

But I have  question, especially for the media über alles types that have adopted Hoff as a cause celébre: let’s make this a hypothetical case, not directly related to Hoff vs. Moore.

Hypothetically, let’s say that a blogger wrote something incendiary and damaging, but true, about a nemesis’ activities – activities which happened in the past, at (let’s say) the nemesis’ last employer.

Nemesis has moved on since the activities about which Blogger was writing. The Blogger, in addition to pointing out his Nemesis’ past activies, carries a vendetta against the Nemesis into the present.  The Blogger starts a campaign against his Nemesis, intending to damage the Nemesis, to cost him his job, damage his reputation (above and beyond damage caused by the factual story from the past).  The vendetta is above and beyond, really separate from, the actual story about which the blogger reported.

Should the First Amendment protect not only legitimate free speech, but the malicious use of the reporter’s platform to harass the subjects of his/her reporting?  (I ask this stipulating that I’m not saying Hoff did this – although an ethical person might be forgiven for being concerned about some of the lengths he goes to to attack his targets).

OK, it’s not totally hypothetical; back in 2005, a major leftyblog (TBogg or Kos or one of the other big loony bins) published John Hinderaker’s home and office phone numbers; hundreds, maybe thousands called; being readers of major leftyblogs, they were a pretty depraved bunch.  They were trying to get Hinderaker fired.  Not because his day job – a lawyer for a major law firm – had anything to do with the story, or was even three degrees of separation away from it.  It was a  malicious attempt to attack Hinderaker’s non-blogging, non-activist livelihood.

Was Hoff’s attack on Moore’s post-mortgage-fraud proceedings career warranted?  Was it protected by the First Amendment, or was it tortuous interference?

UPDATE 2:  Well, there’s a possible answer; Eugene Volokh writing at the Volokh Conspiracy:

Even if Hoff was trying to get Moore fired, people are constitutionally entitled to speak the truth about others, even with such a goal. (The tort actually requires either knowledge that such a result is practically certain or a purpose of producing such a result, but I take it that here the allegation is that Hoff wanted Moore to get fired.) The First Amendment constrains the interference with business relations tort, just as it constrains the infliction of emotional distress and other torts. See NAACP v. Claiborne Hardware Co. (1982); Blatty v. New York Times Co. (Cal. 1986) (speech constitutionally protected against a libel claim is also protected against an interference with business relations claim); Paradise Hills Assocs. (Cal. Ct. App. 1991) (same); Delloma v. Consolidated Coal Co. (7th Cir. 1993) (“permitting recovery for tortious interference based on truthful statements would seem to raise significant First Amendment problems”); Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s Investor’s Services (10th Cir. 1999) (holding that interference with business relations and interference with contract claims can’t be based on expressions of opinion). The same should apply to the closely related interference with contract tort. See, e.g., Jefferson Cty. Sch. Dist.

Not positive that I think this is a good thing – but going back to my hypothetical, it also seems that the best answer to this is the proverbial “more good speech”

In some ways, John “Northside Johnny” Hoff represents the upside of blogging.  He’s found a niche, and he covers it in a way that conventional news reporters just can’t.  Or won’t. In his case, the niche is the mortgage fraud that left a frightening share of North Minneapolis’ homes foreclosed:

I don’t know what fascinates me so much about mortgage fraud. I’m not a victim and I’ve never had a mortgage before. Initially, I was just looking for some houses that might be “damaged goods” because of the fraud, looking for a bargain, but then I got totally into the topic when I saw a role that could be filled digging up info. People give me some kudos for digging up info, but I don’t think it’s such a big deal. I’m just compulsive about it. Once I catch the scent, I just don’t quit, because I love the digging, the solving of a complicated mystery.

In some other ways, ironically, John Hoff may represent the worst of citizen journalism, as I noted back in 2007, when he wrote a piece in the U of M’s Minnesota Daily…:

Maybe it was all the wine my buddy salvaged from some trash containers after a high-class tasting party, and then served up at his own festive blow-out gathering of assorted radicals on Friday night, but I’m really starting to have hope.

Yes, I’m starting to believe certain vague, visionary plans to throw our Republican friends a street party in St. Paul in 2008 are really, truly going to happen.

Look away, you fun-loving Republicans, we’re planning a big surprise party for little ol’ you during your special convention in 2008…Will enough people come to the street demonstrations in 2008? Will it be a gas? Will demonstrators have enough sense to focus on a target of opportunity outside the main security perimeter, like a luxury hotel where delegates will be staying with their laptops and revealing documents, instead of going up against massive security surrounding the convention center? It would be good to apply the hard-earned lessons of Seattle in 1999.

…where he called for not only street violence, but the physical stalking of individual RNC delegates (which, to the best of my knowledge, never happened).

(Note – I‘m not positive that both stories involve the same John Hoff, although the writing styles in the blog and the Daily piece have most of the same written “Tells”.  If it is not the same John Hoff, I’ll promptly correct the story. I don’t think it’s going to be an issue, though UPDATE:  It’s  him).

There’s a little bit of both on display in the “landmark” lawsuit against Hoff, filed by a U of M employee, Jerry Moore.  MPR’s Laura Yuen wrote as complete a coverage of the suit as I’ve seen so far, and who has a pretty concise setup of the backstory:

But what landed him in court is a blog post he wrote in June 2009 after Hoff learned that a former community leader was hired by the University of Minnesota’s Urban Research and Outreach/Engagement Center. On his blog, Hoff accused that man, Jerry Moore, of being involved in a high-profile mortgage fraud case, even though Moore was never charged.

The university fired Moore the next day, according to the lawsuit.

Moore is suing Hoff for defamation.

Now, under Minnesota law, to prove defamation one has to prove four things:

1. That party A said something about party B to one or more Party Cs…:   Where A=Hoff, B=Moore, and C=the public.  Since Hoff publishes on a blog, that’s pretty much a given.
2. …that is untrue, and…
3. …has a reasonable chance of damaging Party B’s livelihood or reputation in the community…:  like, by getting him fired from his job
4. …and if Party B is a public figure, it can be proven that Party A acted with malice: As in “a jury will buy the idea that Party A lied about B, and knew he was lying, because his goal was to do damage to B”.  Minnesota recognizes two classes of “public figures”, by the way; regular “public figures” – elected officials like Mark Dayton, or people who are just plain prominent, like Denny Hecker or Don Shelby or Joe Mauer, and “limited public figures”, people who may not necessarily be famous, but are public within a profession, a community group, a neighborhood, or some other subset of the general population; whatever kind of public figure one is, the burden of proving “malice” is the same.

The real contentions are “did Hoff lie”, and – since the court held that Moore is some form of public figure, did he lie maliciously.

While the backstory to this case looks like a legal chinese fire drill according to Hoff’s own description, Yuen notes that, win or lose, this case might have big implications for bloggers:

Legal experts say the case against John Hoff will be tough to prove. Now that the judge has ruled that Jerry Moore is essentially a public figure, Moore himself bears the burden of proving Hoff acted maliciously. That means he must show Hoff knew his allegations were false, or had reckless disregard for the truth.Hoff says his defense is the truth, and he stands by his blogging.

“I don’t want to get sued,” Hoff said. “Whatever I’m writing, I’m thinking, ‘It better be true. Better be careful.'”

Which is a useful tip for any blogger.

But I strongly suspect (and be advised that I am no lawyer) that this suit is not the one that’s going to be the landmark case about community journalism and media freedom; Hoff merely needs to show that he told the truth – that Moore was involved in mortgage fraud – and not have done anything that jumps up and down and screams “I’m lying and I’m being malicious about it!” (like, say, having sent an email saying “I know I’ve got the wrong facts, and I don’t care, because I’m that angry at you!”, or something equally stupid [1]).

Now – if it turns out Jerry Moore was not involved in any sort of mortgage fraud, and Hoff was dumb enough to leave evidence of malice, there’s really no landmark suit; bloggers should no more be able to lie without consequences about their subjects than the mainstream media.

Jerry Moore’s attorney did not return a phone call seeking comment for this story. In the suit, she argues that John Hoff is not protected by the First Amendment because he does not objectively report the news or have journalistic standards.

That argument perplexes some experts on free speech.

And if the first question isn’t “how did Moore hire such a delusional lawyer”, I’m a leftyblogger’s uncle.

Still, there is a nasty side to these sorts of suits, if not this specific suit: bigger, better-funded people than Moore can use such suits to stifle criticism:

A wide range of similar cases around the country is seeking to clarify free speech issues in a digital landscape…Fred Cate, a law professor at Indiana University who wrote a book on the Internet and the First Amendment, says he’s concerned about the case against the Minneapolis blogger for what he believes will be a chilling effect.

“Defamation suits are really expensive,” he said. “If we’re going to start seeing more of these suits brought against bloggers, we’re almost naturally are going to see a timidity from bloggers because they don’t want to pay the costs of having to defend the suits, even if they ultimately win the suit in the long run.”

“Johnny Northside”, naturally, is covered:

Blogger John Hoff, however, is not paying for legal representation. News of his defamation suit garnered the attention of a Harvard University group working to protect the rights of online media.

The moral, of course, is tell the truth, and try to leave your more obstreporous emotions – say, malice – out of your blogging.

UPDATE: Ed Kohler has links to a broad swathe of other reporting on the trial.

UPDATE 2:  For those who didn’t get it from my second example above, not everyone is thrilled with John Hoff’s blogging.  No, not at all. Let’s just say there are two sides, at least, to this story.  Also, the people of Grand Forks, about ten years ago, were un-thrilled with his term as a Green Party city councilman.

UPDATE 3: And, naturally, the other side has another side.  And so does that side.

Like I said – many sides to this story.  Bottom line:  keep it factual.

(more…)

For want of 8,000 more votes…

Scott Walker is doing what governments at every level should do – ending collective bargaining for public union employees :

Gov. Scott Walker said Friday that he wants to end collective bargaining for nearly all public employees because the state is broke and there’s no point negotiating with the unions when there is nothing to offer.

Union leaders and Democrats, powerless to stop Walker’s plan from passing the Republican-controlled Legislature next week, were reeling. They blasted the proposal as a naked power-grab that will gut Wisconsin’s deep organized labor tradition and result in layoffs that devastate the economy.

If I were a Wisconsin taxpayer – and a place in Hudson is looking better and better every time I look at the Dayton “budget” – I’d say “screw your tradition”.

As to the layoffs?  If the jobs aren’t actually needed to run the state’s government, then why are we paying them?  Why is a public-sector job more sacrosanct than a private sector one?

Walker, a Republican who took office in January, argued that his proposal is an alternative to ordering furlough days and laying off 12,000 state and local public employees over the next two years to balance a $3.6 billion budget shortfall.

“The state’s broke,” Walker said. “Local governments are broke. They don’t have anything to offer.”

Walker wants to remove all collective-bargaining rights, except for salary, for roughly 175,000 public employees starting July 1. Any requests for a salary increase higher than the consumer price index would have to be approved by referendum.

He also wants – gasp – to require   public employees to pay half the cost of their gold-plated public employee pensions, and pay 12.5% of their healthcare costs.

I caught MPR’s coverage of the protests “sweeping” Wisconsin today.  Standout note – a Minnesota public-employee union leadership stooge whinging that the changes will “cost union employees’ …”

I was ready for the next word to be “jobs”.

“…money toward their retirement”.

I wished, fervently, that I could have met that woman face to face, and showed her what I – a self-employed guy – pay for retirement.

8.000 more freaking votes.

If there’s an upperclassman in the Legislature that seems ready to pick up Pat Pariseau and Linda Boudreau’s mantel as the champion of the Second Amendment in Minnesota, it’d seem to be Representative Tony Cornish.  Cornish – from Good Thunder, and a police chief in his non-legislative life – has been the Second Amendment movement’s legislative point man in the post-Personal-Protection-Act era.

And as a Second Amendment point man, he’s been busy this past week.

Sally Jo Sorenson at leftyblog Bluestem Prairie has a  critique.   To an extent, it’s one I expected; to another…:

Bluestem readers know that I favor gun rights, and my position might not be the most popular one in America right now, especially among my friends on the left. So be it.

…less so.  We in the Second Amendment Civil Rights movement are always well-advised to give our props to the outstate Democrats who supported the Minnesota Personal Protection Act, the Pre-Emption statute, and so many other of the bits of legislation that have made Minnesota suck less than it could have as re the human right to self-defense.

So: Props.

That being said, an article in the Mankato Free Press has left me scratching my head. What is state representative Tony Cornish, who chairs the Public safety committee in the Minnesota House, really asking for in Cornish: What if somebody had been at shooting and returned fire?

It’s not as academic a question as some on the left – maybe including Sorensen, maybe not, we’ll see later – think it is.

Cornish is suggesting no major changes in the way security is provided for state lawmakers. But his take on the Arizona assassination attempt of Congresswoman Gabrielle Giffords, which killed six people and wounded 13, matches previous opinions he’s offered after shooting sprees: He wishes someone in the crowd had a weapon and had been ready to respond.

I can see the grandstanding on guns. I can see the pandering to those of us who support gun rights. It’s politically astute, and Cornish is as polished a politician as ever had a Good Thunder post office box as a mailing address.

What I can’t see is the logic, given the set of facts at the scene of the spree murder in Arizona. Slate reports in Gabrielle Giffords and the perils of guns: How an armed hero nearly shot the wrong man:

Almost.

The article – by the generally not loathsome Will Saletan – notes that Zamudio very nearly shot the wrong person:

Saletan:

But before we embrace Zamudio’s brave intervention as proof of the value of being armed, let’s hear the whole story. “I came out of that store, I clicked the safety off, and I was ready,” he explained on Fox and Friends. “I had my hand on my gun. I had it in my jacket pocket here. And I came around the corner like this.” Zamudio demonstrated how his shooting hand was wrapped around the weapon, poised to draw and fire. As he rounded the corner, he saw a man holding a gun. “And that’s who I at first thought was the shooter,” Zamudio recalled. “I told him to ‘Drop it, drop it!’ “

But the man with the gun wasn’t the shooter. He had wrested the gun away from the shooter. “Had you shot that guy, it would have been a big, fat mess,” the interviewer pointed out.

And it would have.   It illustrates one of the major travails of self-defense – it’s full of risks.  There are thousands of self-defense shootings a year in the United States.  The shooter kills the wrong person about 1-2% of the time.  The rate for cops, by the way, is about three times higher; not because cops are irresponsible shooters (usually), but because they arrive on the scene of an incident later, when the situation gets more fraught and confusing.  A classic example: in Saint Paul a few years ago, the police got into a gun battle with a couple of armed robbers.  One of the robbers, hit by police gunfire, dropped a shotgun.  A passerby – a twenty-something guy – picked up the shotgun, perhaps hoping to get a piece of the robbers.  The cops, not knowing who was who, shot and killed him; in the confusion of the situation, there was no way to know he wasn’t one of the robbers.

Sort of like Mr. Zamudio almost did.  Only not being a cop, Zamudio is not legally indemnified against such mistakes.

Sorenson:

One thing Zamudio didn’t have was the training required of every carry permit holder in Minnesota, and under Arizona’s laws, there’s no telling how effective a random good citizen can have been in the situation.

Which cuts both ways; Minnesota’s concealed carry training focuses on legalities, not tactics.  The record nationwide among law-abiding citizens, with or without training, is generally very good.

Certainly, Loughner, who had purchased his Glock legally, was aware of the fact that anyone in the crowd or nearby (like Zamudio) could be carrying. He was not deterred.

Insanity, like drugs and booze, both make their victims a little dodgy on consequences.

Cornish suggests that more people start carrying at the Capitol; it’s legal, and there’s nothing stopping a law-abiding citizen who follows the rule for the premises to do so. But his concerns about the state capitol’s design and the nature of the foot traffic inside make me wonder whether counting on an attacker being a “coward” in the face of returned fire is much defense at all.

I’ve noticed that among the left when they’re talking about guns and citizens’ right to self-defense; criminals turn into infantry.  The sound of 230 grains of steel-jacketed hurt sailing by at 750 feet a second is enough to make just about anyone turn and high-tail away; the military works long and hard to train people to go about their business with bullets whizzing past.  Most criminals won’t.  Oh, some will; the odd veteran (like the ex-Marine who shot the two Saint Paul cops in 1994), the very high, the extremely dissociative.  But most people, criminal or otherwise, have a pretty finely-tuned self-preservation instinct.

But here’s where Rep. Cornish is important; situations like Mr. Zamudio’s are also full of legal pitfalls.

Imagine this.  You’re in Saint Paul.  Betty McCollum has decided to come out from under her rock, and in a moment of not being distracted by shiny objects, she decides to do a public appearance (this requires some suspension of disbelief).  You attend.  Being a law-abiding citizen with a carry permit, you bring your piece, tastefully hidden in your pocket.

As Rep. McCollum stands on the platform surrounded by Teachers Union goons, you see someone next to you raising a gun.  With nightmarish slowness as the adrenaline warps your perception, the woman – wearing a “Public Option NOW” T-Shirt – fires three shots.  Thankfully, she shanks the shot high and away, and misses the Representative and everyone else – but she’s firing a Glock, so you know there’s more where that came from.  You draw (as you responsibly note that your “backstop” is a cement-block wall, and that there are no innocent parties in the line of fire), and fire two shots at center mass, just like Joel Rosenberg taught you.  The target drops to the ground.  You call 911 first, and then your lawyer – again just like Joel taught you – perhaps saving as many as a dozen lives (one for each bullet the woman’s Glock still had in the magazine).

Were you right?

In terms of overriding moral principles?  Hell yeah.

Under Minnesota law?  You’re only as safe as your County Attorney’s relative level of anti-gun zealotry will let you be.  Since someone’s dead, the police would pretty much have to arrest you.  Ramco Attorney John Choi and his minions could note that Minnesota law requires four elements for you to claim self-defense; you can not be a willing participant, you have to reasonably fear death or great bodily harm, you have to make a reasonable effort to disengage, and lethal force has to be reasonably appropriate – where “Reasonable” means, in every case, “would convince a jury”.   And if they wanted to (and it is entirely a matter of their discretion) they could point out that while, yes, it’s nice that you saved all those lives, you didn’t try to retreat, and the woman wasn’t actually shooting at you, so your fear of death or mutilation wasn’t reasonable.  And if you get a jury full of Merriam Park harpies with “You Can’t Hug A Child With Nuclear Arms” stickers on their Volvos and Subarus and Prii, then it’s off to jail with you.

Perhaps Rep. McCollum will send you a Christmas card in jail?

Rep. Cornish has tried in successive sessions to introduce bills that’d take some of the ambiguity out of Minnesota’s self-defense law; to remove the very ambiguous requirement to try to retreat, and also to stop requiring people to assess the motives of someone who breaks into their home.  The DFL legislature gundecked…er, sorry, scuppered those very sensible bills (with a leg up from a compliant media).

And whether you call it “grandstanding” or “being a great American”, now is Rep. Cornish’s time.  There’s a conservative majority, and a Governor who bragged on the campaign trail about having twin .357s in a gun locker in  his house.

And that’s why Cornish is important.

Since Glenn Maxham – former TV news editor-turned-moral-scold of the Tea Party – wants a “list of enumerated freedoms that We The People have lost” so that we angry peasants’ complaints satisfy his own rigorous standards for standing (he was a tourist in the USSR, doncha know), I just thought I’d let him know i’m on the job.  Because they’re popping up all over the place, like this DUI Dragnet in Florida:

Florida is among several states now holding what are called “no refusal” checkpoints.

It means if you refuse a breath test during a traffic stop, a judge is on site, and issues a warrant that allows police to perform a mandatory blood test.

It’s already being done in several counties, and now Unfried is working to bring it to the Tampa Bay area.

“I think you’ll see the difference because people will not drink and drive. I truly believe that,” she said.

Not everyone is on board, though.

DUI defense attorney Kevin Hayslett sees the mandatory blood test as a violation of constitutional rights.

“It’s a slippery slope and it’s got to stop somewhere,” Hayslett explained, “what other misdemeanor offense do we have in the United States where the government can forcefully put a needle into your arm?”

The federal government says Florida has among the highest rates of breathalyzer refusal.

That’d be the Fourth Amendment being torched there, Mr. Maxham.

Indeed – Mothers Against Drunk Driving has become one of the most insidious attackers of liberty in this nation.  Other enemies – Janet Napolitano, Julius “Seizure” Genachowski – come and go with different political waves.  But MADD is always there, through “up” and “down” waves in civil liberty, always there to sap more of the Fourth and Fifth Amendments (and keep the police chasing after ever-more revenue, at the expense of all other law enforcement), no matter who’s in office.

But we’re not done yet, Mr. Maxham!

Joel Rosenberg is holding a Legal Defense Fund fundraising dinner tonight:

Location: Chanhassen AmericInn conference room. Donations can be made at the door, or by contributing to the Legal Defense Fund either by mail or in person at any Wells Fargo location, in or out of Minnesota.

It’ll feature photographer and Second Amendment activist – and yes, he combines the two – Oleg Volk:

Oleg Volk will be both speaking and giving a photo presentation*.

Joel will be attending but, on advice of counsel, won’t be discussing pending legal matters.

All profits, after the room and the food are paid for, will go to the Legal Defense Fund. (Oleg and all of the servers — Joel, Felicia, Judy, Rachel, and friends — are donating their time, of course.) Attending registrations are limited to 40 people — the Fire Marshall insists — so please sign up in advance, if you can.

Note: the Legal Defense Fund is not a registered charity, and contributions are not tax-deductible. Alas.

Volk’s an interesting guy, and I hope you can make it.  I have family stuff tonight, but I’ll be donating via other means…

To:  The new Republican majority in Congress

From: Mitch Berg, First and Fourth Amendment Buff

Re: In re the FCC

Dear new majority,

Please see to abolishing the Federal Communications Commission.

Julius “Seizure” Genachowski, Obama’s current puppet as chairman of the FCC’s board, is involved in an epic power grab that indulges the classic liberal conceit that “if we can make the law say it’s right, then it must be right”.  Scott Johnson shreds Genachowski’s legal approach.  Kevin O’Brien gets the rest of it in this Cleveland Plain Dealer op-ed, noting that Genachowski’s latest power grab has something for everyone to hate:

[MN Senator Al] Franken wrongly believes the FCC can make the rules. He just finds what is proposed too generous to big corporations — a legitimate concern. When the feds make rules, they tend to preserve the primacy of whoever the industry leaders are at the time. As Franken wisely notes (now, there’s a phrase you may never see in this space again), if the big boys like it, be suspicious.

[SC Senator Jim] DeMint, while properly dismissing the FCC’s authority to require anything at all of Internet providers, is more worried about a government takeover of the Internet. He’s right, too.

The idea that this is all about consumer protection and a level playing field is plainly ludicrous. It’s just another a power grab, nobly camouflaged in the familiar progressive guise of Making Life Fair.

Leftyblogs’ cases for Obama’s power grab usually involve plaintive pleas of “why shouldn’t everyone have equal access to the Internet?”.  For the same reason that I don’t have equal access to your refrigerator or your retirement account; it’s not theirs.  The Internet’s costly grows almost exclusively due to private investment; it’s not been a government or academic preserve since DARPA let the genie out of the bottle.  The Internet is not like the broadcast spectrum, as dubious as the FCC’s case is for regulating even that.

The end result would be an Internet tied up in rules and regulations, with government setting rates and stifling competition. It can’t go any other way, because it never goes any other way.

In a speech announcing that the FCC would ignore the courts and dare the Congress to stop it, Genachowski unwittingly explained just how unnecessary it is for his agency to “protect” us:

“Internet companies have started as small startups, some of them famously in dorm rooms and garages with little more than a computer and access to the open Internet. Many have become large businesses, providing high-paying, high-tech jobs in communities across our country. It’s the American dream at work.”

The rest of the speech was unadulterated bunkum, but he was right about that.

It’s time to shut down the FCC.  Please see to this ASAP.

Use the Air Force if necessary.

That is all,

MBerg

Georgia cop considers a concealed carry advocacy bumpersticker “probable cause” for turning a speeding stop into a pat-down.

The second thing the officer asked me, after asking for my license, was if I had any firearms. I responded that I was choosing to exercise my right to remain silent on that question. That answer prompted the officer to have me get out of the car for a pat down. The officer told me that the reason for his question (about firearms) was because I had a “right to carry” sticker on my car. Yes, he actually said that. It’s a sticker for Georgia Carry.org (GCO) Although the audio isn’t 100% clear for that part, you can clearly hear him reference the sticker when talking to me and to another officer. Additionally, it appeared as if “back up” had been called, because there were 3 police right cars behind me and two more across the street. In the end, I got a ticket for speeding and for not having a working light bulb over my license plate.

The state; terrorizing dissent into submission for 5,000 years.

Governor Christie of New Jersey has commuted Brian Aitkin’s sentence:

Brian Aitken, who was convicted of illegally possessing two handguns he had legally purchased in Colorado, will be out of prison in time for Christmas.Gov. Chris Christie commuted Aitken’s sentence Monday, from seven years to time served, according to an order signed by the governor. It was Christie’s first commutation since taking office almost a year ago.

“We are overjoyed at the news,” his younger brother Robert Aitken said in an e-mail. “It’s been an extremely emotional time and we all had our own doubts at one time or another I’m sure. I was hoping for the best but preparing for the worst — for this to be the first battle of a long war to get him out of jail.”

We wrote at some depth about this case last week.   It was as gross a miscarriage of justice as I’ve personally seen.

Still, there is room for improvement.  It was a commutation, not a pardon, so Aitkin still has the conviction on his record.   I have no idea how he needs to go about clearing his record and getting exonerataed for this shameful abuse of judicial power.

But that’s what real justice would require.

Well, that and putting that scumbag former “Judge” James Morley in jail.  Morley refused to allow the jury to consider the relevant federal laws that would have gotten Aitken acquitted, or gotten the entire case dismissed.  Morley, like all such globs of semi-human pus, should be put cuffed and hauled off – preferably with great violence or at least humiliation – to rot in jail for every single day he stole from Mr. Aitken’s life.   Plus one.

That would be justice.

…when “government gathering information about Americans” was an existential threat to democracy?

Nine years after the terrorist attacks of 2001, the United States is assembling a vast domestic intelligence apparatus to collect information about Americans, using the FBI, local police, state homeland security offices and military criminal investigators.

The system, by far the largest and most technologically sophisticated in the nation’s history, collects, stores and analyzes information about thousands of U.S. citizens and residents, many of whom have not been accused of any wrongdoing.

The government’s goal is to have every state and local law enforcement agency in the country feed information to Washington to buttress the work of the FBI, which is in charge of terrorism investigations in the United States.

Either do the Democrats.

Look for an avalance of “paranoid wingnut” stories coming soon to a major media near you.

The ragged edges of liberty often involve defending the lowest form of scum who benefit from it.

So as repulsed as I am by Julian Assange and “WikiLeaks'” release of leaked diplomatic communications, I’m not behind the government’s efforts to try to find some way – any way – to try him as a spy.

It just doesn’t work.

Still, with defenders like this, who needs enemies:

This is worrying some members of the Columbia University Graduate School of Journalism, who wrote a letter to Holder and President Obama urging restraint. Professor Todd Gitlin, who signed the letter, says freedom of the press is at stake.

Assange should try to get them to just shut up…

The financial crisis is over!  Our bank system is sound!

Seriously!

The FDIC has nothing better to do than harass banks that display Christian seasonal imagery!

Federal Reserve examiners come every four years to make sure banks are complying with a long list of regulations. The examiners came to Perkins last week. And the team from Kansas City deemed a Bible verse of the day, crosses on the teller’s counter and buttons that say “Merry Christmas, God With Us.” were inappropriate. The Bible verse of the day on the bank’s Internet site also had to be taken down.

“I don’t think there should be a problem with them displaying whatever religious symbols they want to display,” said Amy Weierman, a Perkins resident.

Specifically, the feds believed, the symbols violated the discouragement clause of Regulation B of the bank regulations. According to the clause, “…the use of words, symbols, models and other forms of communication … express, imply or suggest a discriminatory preference or policy of exclusion.”

Of course, now that the Feds and, soon, the UN will be regulating what goes on the Internet, I’m sure I’ll have to start wishing people a happy freaking “Festivus” before too long.

The FCC – led by Julius “Caesar” Genachowski – is voting on its first “Net Neutrality” rules:

Contentious Internet traffic rules facing a vote next week are likely to be adopted without radically veering from a proposal unveiled earlier in the month, telecommunications policy analysts said on Wednesday.

The Federal Communications Commission will vote on Dec. 21 on whether to adopt regulations that ban the blocking of lawful traffic but allow Internet service providers to ration Web traffic on their networks.

So now the Internet – developed from a scientists’ and academics’ toy by immense private-sector investment – is now under government control.

And if the FCC is now telling service providers what they can’t block, then it’s a short step to them saying what they must block.

It’s the camel’s nose in the tent.

…unless it’s your car, you leave the keys in it and you’re from Tennessee. Then you and the criminal are in cahoots whether you like it or not.

A suit was brought against a man who left his keys in his car, which was promptly stolen and then collided with another vehicle causing injuries to three passengers. Initially, the lawsuit was filed against the city of Murfreesboro and its police department– however, that suit was dismissed by the Tennessee Court of Appeals. But the court is allowing the suit against the owners of the vehicle to continue.

It’s a dumb idea to leave your keys in your car. It’s a dumb idea to leave a loaded gun out in the open. If a criminal uses either to commit a crime, are you liable? Some would say in the latter, yes; but in the former?

So if I leave a pile of bricks in my front yard for a landscape project and someone comes by and uses one to smash someone’s head in am I liable for that too? Where does the law draw the line?

Discuss.

We’ve been covering the Joel Rosenberg  case.  Joel carried a handgun and knife into Minneapolis Police Department’s headquarters, leading him into a rhubarb (here, here and here) with a Sergeant Bill Palmer.  A month after the rhubarb, Hennepin County issued an arrest warrant, and held him for a couple of days (Joel was bailed late last week).

Now, I’m no lawyer.  But Mark Bennett is – a criminal defense lawyer in Texas – and last week he had a pretty sanguine view of Rosenberg’s chances both against the charges and in his future lawsuit against Hennepin county.

Joe Doakes of Saint Paul is also an attorney.  And he takes a rather different view.

Joel Rosenberg is charged with violating Minn. Stat. 609.66, Subd1(g), possession of a dangerous weapon in a courthouse complex.  I think he’s in grave danger of being convicted.

“Dangerous weapon” is defined in Minn. Stat. 609.02, Subd. 6 to include guns, of course, but also includes “. . . any device designed as a weapon and capable of producing death or great bodily harm . . . .”

Minn. Stat. 609.66, Subd. 1(g) (b) (2) provides an exception for persons carrying pistols pursuant to a valid permit, if that person gives notice to the Sheriff.  The method and timing of notice is not specified.   Joel claims he gave notice, the Complaint claims the Sheriff has no record of it.  This raises both a matter of legal interpretation (can you give notice once and it’s good forever, or must you give notice for each visit, and how far in advance) as well as a matter of proof (did he actually give the notice).

Rosenberg has pointed out that he has is notice on file.  Hopefully that won’t be an issue; I’m looking forward to seeing the county claiming that  you have to notify them before every visit…

Even assuming both go in Joel’s favor, the case is not ended.

A knife is capable of producing death.  A knife is a dangerous weapon within the meaning of Minn. Stat. 609.66.  If the office where the incident took place is part of a courthouse complex, then Joel’s gun may have been legal but his knife certainly was not.

Hm.

Of course, the big question has been “can a judge more or less arbitrarily call buildings “courthouses”…

Red: Henco Gov't Center - Green: City Hall, where Rosenberg was arrested.

…that, in fact, are not ?

“Courthouse complex” is not defined.  The statute does not specify who has authority to designate a building as being part of the “courthouse complex.”

Minnesota’s government is divided into three co-equal branches.  The legal doctrine of Separation of Powers means the Judicial Branch has exclusive authority over matters of judicial administration and judicial officers.  Lawyers, for example, are licensed not by the Executive Branch in the manner of electricians or land surveyors, but instead are licensed and disciplined by the Supreme Court.  Naturally, there is a great deal of overlap (for example, under Article VI, Section 5 of the Minnesota Constitution, judges’ salaries are set by the Legislature).  There is no clear line dividing the branches’ powers.

Minn. Stat. 484.77 provides the County Board must furnish suitable facilities for court purposes; thereafter, the County Board and the District Court must mutually agree upon relocation, renovation, etc.   To my knowledge, the Hennepin County Board has not designated any buildings to be part of a “courthouse complex.”

There is no specific statutory authority for judges to designate buildings as part of a “courthouse complex,” but because of the Separation of Powers doctrine, judges historically have had the power to maintain order in their own courts.  Bailiffs are Deputy Sheriffs (Executive Branch) but they are assigned to work under the control and direction of the court (Judicial Branch).

S0 – separation of powers is good.  So how about a branch of government using that separation to more-or-less arbitrarily decide which state law applies to them?

There is a standing Order designating the City Hall as being one of the “court facilities” for purposes of banning dangerous weapons. I assume “court facilities” is the functional equivalent of “courthouse complex.”  The Order was issued by Chief Judge James Swanson in 2008.  In my experience, it is unlikely for such an Order to be the work of one rogue judge; instead, all the judges on the Hennepin County bench likely agreed on the order and the Chief Judge signed it.

The Order states its authority to designate buildings as part of the court facilities for purposes of banning dangerous weapons is the inherent responsibility of the Judicial Branch to ensure order in the court.  Joel may argue that Judge Swanson lacked authority to issue the order because of Minn. Stat. 6624.714, Subd. 23, which provides: “No sheriff, police chief, governmental unit, government official, government employee, or other person or body acting under color of law or governmental authority may change, modify, or supplement these criteria or procedures, or limit the exercise of a permit to carry.”  But the named officers are Executive Branch officials.  Judges are conspicuously absent from the list perhaps because, under Separation of Powers, the Legislative Branch knew it lacked authority to tell the judicial branch how to run its shop.

When a statute is ambiguous, the courts look to the legislative history to determine the intent of the law.  The harm meant to be addressed by Subdivision 23 was the problem of local officials exercising discretion in issuance of carry permits and this subdivision cures that ill.  I don’t remember anybody testifying to the need to carry guns in courtrooms.  Reading this subdivision to limit the judicial branch’s inherent authority to maintain order in the courts is a stretch.

So is the Henco judge’s order “overly broad?”

Another possible argument is that the Order is overly broad because it lists entire buildings, not only those sections of the buildings used for courtroom purposes.  In contrast, the Ramsey County judges issued a similar order in May 2003 that limited the definition of “courthouse complex” to those areas of buildings where court activities took place, except where the layout of a building made that impossible (50 West Kellogg) in which case the entire building is designated.  Hennepin’s Order is not so narrowly tailored.

Over-breadth is a fact-specific analysis.  If it would be difficult or burdensome to reconfigure the building to segregate the courts portion from the rest of the users of the building, then designating the entire building as part of the “complex” probably would be found to be valid.  Certainly the local trial court judge will think so.  The Court of Appeals and the Supreme Court tend to defer to the trial court in matters of fact because the trial court had the best opportunity to assess the credibility of the witnesses and hear all the evidence.

And in places like Henco, if there’s one thing that’s more important than upholding state law, it’s never, ever offending the Chief Judge:

As a practical matter, no District Court judge is going to find that her own Chief Judge lacked authority to issue the Order or that it was over-broad.

Then, there’s the matter of the knife:

Assuming the trial judge finds the Chief Judge had authority to issue the Order designating the entire City Hall building as a courthouse, the statute prohibits knives as dangerous weapons.  Aside from Sgt. Bill Palmer’s word, is there any proof Joel had a knife?  Sadly, yes; Joel himself shot a video of it and posted it on YouTube.  But a YouTube video is not eyewitness testimony, it is hearsay; can that be used against him?  Sure, when Joel publicly posted the video and its taunting follow-up, he made an admission against interest, basically a voluntary confession, which is an exception to the hearsay rule.   It was an unforced error but it still goes against him.

If this goes to trial, Joel will be convicted and the conviction will be upheld on appeal.

Ouch.

More on this later today.

Now, Joel’s been on a mission for a while now.  Was there another way?

But he had no choice, right?  He had to carry the gun to bring a test case to have the Order thrown out, right?  What else could Joel have done to contest the overbreadth of the Order?

He could have filed an Application for the Writ of Prohibition under Rule 120 of the Minnesota Rules of Appellate Court Procedure.   That application asks the Court of Appeals to prohibit the Hennepin County court from enforcing its order.  The Court of Appeals then decides whether Judge Swenson had authority to issue the Order, and whether designating the entire building made the Order overly broad.  If Joel doesn’t like the Court of Appeals’ answer, he goes to the Supreme Court.  If he doesn’t like their answer, he goes to the Legislature for an amendment to the law.  But no matter how many times he loses in those places, he doesn’t go to jail.  The filing fee is $550, the attorneys will cost a couple of grand, he probably could get a group of people to join in the application (form a non-profit named “Citizens for Safer Courtrooms” and have it accept donations to fight the case).  That’s the proper way he should have proceeded.

Bear in mind, Joe is not a critic of Joel’s:

I like Joel.  He’s a great writer and a good teacher.  But this time, I think he’s stepped in it.  I suspect his preoccupation with his wife and daughter’s troubles prevented him from thinking the problem all the way through.

If he hadn’t brought the knife, if he hadn’t videotaped himself violating the Order, if he hadn’t published his confession on YouTube . . . maybe things would have worked out differently and I’d have been eager to stand behind him.  I’ve hit his Donate button on the Ellegon website out of respect for his past contributions to the carry movement, but I don’t think the carry community benefits from making his case a hill to die on.  I won’t be publicly supporting him.

Joe Doakes

Como Park

So to sum up – judges can walk all over the intent of state law because “separation of powers” allows them to.

Even if it means walking over it to attack people – carry permit holders – who are, statistically, two orders of magnitude less likely to commit crimes than the general public.  And I suspect that includes county judges.

More on this later this week.