Quotulatiousness

August 11, 2010

Jonathan Rauch on overturning Proposition 8

Filed under: Law, Liberty, Politics — Tags: , , — Nicholas @ 12:08

Jonathan Rauch has concerns about the judicial decision that overturned California’s Prop. 8:

Last week, U.S. District Judge Vaughn Walker declared that California’s ban on same-sex marriage — and, by implication, any state’s ban — violates the U.S. Constitution. The case is on its way to appeal, where it may be overturned. Already, though, gay men and women across the country are celebrating unreservedly. I only wish I could join them.

That feels strange to say. After all, as a gay man, a leading proponent of gay marriage and half of a same-sex marriage myself (my partner and I got married in the District of Columbia in June), I find so much to celebrate. How could I not?

[. . .]

So I think the decision is a radical one, but not, ironically, as it pertains to homosexuality or to marriage. No, Walker’s radicalism lies elsewhere: In his use of the Constitution to batter the principles of its two greatest exponents — Madison and Abraham Lincoln, a Burkean who was steadfast in his belief that ideals must be leavened with pragmatism.

History will, I believe, vindicate Walker’s view of marriage. Whether it will see him as having done gay rights a favor is less clear. For all its morally admirable qualities, his decision sets the cause of marriage equality crosswise with moderation, gradualism and popular sovereignty. Which, in America, is a dangerous place to be.

August 9, 2010

Lovely little bit of legal legerdemain

Filed under: Cancon, Law — Tags: , , , , — Nicholas @ 09:44

Colby Cosh points out that Catch-22 was really a highly accurate predictor of Canadian law:

To put it another way, you can conceivably be tried for “participating in or contributing to” a criminal organization even if it didn’t get around to committing any crimes, you didn’t do anything to help it actually commit crimes, you didn’t know what particular crimes it might be thinking of committing, and you couldn’t possibly pick anybody else in the group out of a lineup.

This might seem to make things pretty easy for the police and the prosecutors. Nonsense! According to them, their job can never be easy enough. Like farmers and civil servants, they cease complaining only intermittently to inhale oxygen, and there is no shortage of Joint Multi-Level Integrated Discussion Committees before which they can retail their grievances.

[. . .]

Justice Minister Nicholson, in introducing the new schedule of patently less serious and mostly victimless “serious offences” on Wednesday, offered a dazzlingly simple heuristic: “The fact that an offence is committed by a criminal organization makes it a serious crime.” You will note that this introduces a curious logical circularity into our manner of upholding justice. How does the law define a “criminal organization”? See above: a criminal organization is a group of people that bands together to commit serious crimes. How do we know what a serious crime is? It’s any activity that is characteristic of criminal organizations. What, you thought Catch-22 was fiction?

The inevitable decline in public respect for the police

Filed under: Bureaucracy, Law, Liberty, Media — Tags: , , , , — Nicholas @ 09:13

Paul Bonneau examines the declining levels of respect among members of the public for the police:

I’ve gotten the impression lately that cops aren’t getting very much support in Internet forums these days, even in places where in the past you’d find almost unqualified support. About everyone seems fed up with ’em.

I wondered why this should be. Why are they becoming so much more frequently scorned?

[. . .]

I think one reason cops are hated is that people generally don’t like being scrutinized, and put under suspicion for minding their own business; they really, really don’t like that. Cops are always checking you out, looking for a reason to “brace” you (an old meaning of the word that looks very useful these days).

The War on Some Drugs has to cause some hatred, as more and more peoples’ lives are ruined by it. Indeed, this prison industry boondoggle has stained all aspects of the “Justice” system, not just cops.

Another reason is that cops are treated, and see themselves, as superior to the rest of us. In innumerable ways, cops are always given the benefit of the doubt; certainly legally, and also informally — although the latter seems to be fading a bit, as trust in cops fades. They are “The Only Ones”, we are “mundanes”, “proles”, peons. They can lie to us, we can’t lie to them; they can beat us up and torture us, but if we touch them it is “assault”.

Along with this insufferable attitude is a self-regard that what they are about is important and good. I suppose everyone suffers from this malady, but usually it does not impact a person as it does when one runs into a cop in the throes of it. As C.S. Lewis put it, “Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good, will torment us without end for they do so with the approval of their own conscience.” What are cops, if not “omnipotent moral busybodies”? At least when the Mafia runs a protection racket, they don’t deceive themselves they are doing you a benefit. One appreciates the Mafia’s honesty, in comparison.

August 7, 2010

Bereaved Ohio family suing Norfolk Southern for failing to change laws of motion

Filed under: Law, Railways, Science, USA — Tags: , — Nicholas @ 21:28

Sorry for their loss, but suing the railroad because the train crew didn’t change the laws of physics to avoid hitting Matthew Johnson as he ran along a trestle won’t work:

The family of a man who was hit by a train while jumping off a trestle into a river two years ago is suing the railroad and a local canoe center, according to documents filed in Clark County Common Pleas Court Thursday, Aug. 5.
Matthew Johnson, 21, died Aug. 10, 2008 while he and three other people were standing on a train trestle between Old Mill Road and the Masonic Temple grounds.
Johnson’s mother, Carol Johnson, of West Carrollton, has filed suit against Norfolk Southern Railway Company and Aaron’s Canoe and Kayak Center, Springfield.

[. . .]

Among the allegations listed in the complaint:
• The canoe company “knew or should have known that individuals frequently went onto the train trestle and jumped into the Mad River.”
• Train conductors “failed to timely and effectively stop the train,” causing Johnson’s death.
• The railroad was negligent in its duty to “maintain and equip its train with all necessary navigational and/or safety devices.”

Just so we’re clear here: there is no “navigational and/or safety device” ever conceived that can safely stop a multi-thousand ton freight train in less than hundreds of metres of distance. Physics does not play favourites — once that much mass is in motion, it takes a lot of energy to stop it without catastrophic dis-assembly.

August 6, 2010

Tide turning on porn prosecutions in the UK?

Filed under: Britain, Law, Liberty — Tags: , , , , — Nicholas @ 09:00

After the US government’s prosecution of a pornography company owner collapsed last month, the British anti-porn campaign has suffered a setback. The Register reports on the case:

A stunning reversal for police and prosecution in North Wales may herald the beginning of the end for controversial legislation on possession of extreme porn.

The case, scheduled to be heard yesterday in Mold Crown Court, was the culmination of a year-long nightmare for Andrew Robert Holland, of Coedpoeth, Wrexham, Clwyd as the CPS declined to offer any evidence, and he left court a free man. The saga began last summer when, following a tip-off, police raided Holland’s home looking for indecent images of children. They found none, but they did find two clips, one involving a woman purportedly having sex with a tiger, and one which is believed to have depicted sado-masochistic activity between adults.

Despite Holland’s protests that he had no interest in the material, and that it had been sent to him unsolicited “as a joke”, he was charged with possessing extreme porn. In a first court appearance in January of this year, the “tiger porn” charge was dropped when prosecuting counsel discovered the volume control and at the end of the action heard the tiger turn to camera and say: “That beats doing adverts for a living.”

The laws are seriously skewed when the potential punishment for simple possession of “extreme” pornography approaches the actual punishment for serious violent crime.

August 4, 2010

Canada’s (lack of) abortion rules

Filed under: Cancon, Government, Health, Law — Tags: , , , , — Nicholas @ 09:31

Apparently lots of Canadians think that the country’s laws are far more restrictive of abortion than they really are:

Two-thirds of Canadians do not know that Canada has no abortion law, according to a new poll that indicates Canadians are woefully misinformed about a landmark ruling in the country’s history.

The poll, which asked 1,022 Canadian adults about their understanding of the country’s abortion regulations, found that just 22% of Canadians correctly identified a woman’s right to an abortion with no governmental restrictions. Canada has not had legislated abortion rules since 1988, making the country an “absolute outlier” on the issue, according to a medical ethicist.

“There’s really only a very small number of Canadians that correctly identify the current situation in Canada,” says pollster Jaideep Mukerji, who worked on the Angus-Reid poll, which was released on Tuesday. “That could be problematic.”

This was highlighted over the last couple of months, with the government and opposition wrangling over Stephen Harper’s initiative to increase funding for maternal health in the developing world. Because opinions widely differ over what the law covers in Canada, it was easy for the opposition to portray Harper’s plan as being ideological rather than humanitarian due to the exclusion of abortion.

Canadians don’t want to re-open the debate, although most appear to want more restrictions in place.

July 29, 2010

BC government finds an issue to distract the media

Filed under: Cancon, Health, Law — Tags: , , , , — Nicholas @ 09:44

Adrian MacNair linked to this Vancouver Sun article, saying “”B.C. halts penis-arousal test for youth sex offenders” Say whaaaaaaatttt?”

A moratorium has been placed on tests done on B.C. youth sex offenders measuring their penis arousal in response to sexual stimuli after the province’s top child advocate launched an immediate investigation Wednesday.

The device in question is called a “penile plethysmograph” — or PPG. In a lab setting, it is attached to male genitals so technicians can measure changes in “penile tumescence” — essentially erections that reflect the state of arousal in subjects shown photographs of adults, children and even babies in varying states of undress while at the same time being read a story that describes coercive or forced sexual activity.

So, until it came to light, the government was showing provocative images and reading pornographic stories to teenage boys to find out if they got erections during the process? Would anyone be surprised to find that teenage boys found this whole exercise sexually arousing? Teenage boys are hard-wired to find all sorts of things sexually arousing!

The point of the test is to reportedly predict whether offenders have gained control of their deviant arousal patterns through treatment or if they have not learned how to suppress deviance and will be a strong risk for re-offending.

Again, we’re talking about teenage boys . . . I’d be more suspicious if they found that one of them was managing not to react to such stimulus!

Okay, yes, I’m unfairly stereotyping, at least to some degree. But this sort of “test” or “experiment” would be flagrantly illegal if it were being done by anyone other than a government-funded health organization, wouldn’t it?

An end to ASBOs in sight?

Filed under: Britain, Law, Liberty, Media — Tags: , , , — Nicholas @ 09:01

BBC News thinks that the much-maligned ASBO may be going away.

Home Secretary Theresa May has signalled the possible end of Asbos in England and Wales, saying it is “time to move beyond” the orders, first introduced by Labour 11 years ago.

They have been imposed on 10-year-old boys and 80-year-old women, used to sober up persistent drunks and mute noisy neighbours.

Of course, one of the more useful aspects of the ASBO has been to allow the media an easy way to find stories to run in the quiet times, like this one:

A 60-year-old man from Northampton was banned from dressing as a schoolgirl.

Peter Trigger’s Asbo stopped him from wearing skirts or showing bare legs on school days between 0830 and 1000 and 1445 and 1600.

The authorities acted after parents complained he was waiting near a primary school dressed in clothes similar to school uniform. He then breached this in December last year by bending over in front of his neighbours repeatedly.

You see, without the ASBO, reporters would have to dig up gems like that themselves, instead of having the local police blotter highlight the most newsworthy items for them.

I often wondered, when reading some of the weird and whacky things that people were hit with ASBOs over, why existing laws weren’t applied (lots of these violations were clearly against the law before ASBOs were created). The intent may have been to give judges more flexibility in sentencing, but in practice it appears to have created a “market” in unusual sentences and distorted the notion of equality before the law.

July 28, 2010

More on that elusive right to photography

Filed under: Law, Liberty — Tags: , , — Nicholas @ 12:13

Jon, my former virtual landlord sent me a link to this article, with more on the “you have the right only if they don’t stop you” aspect of imaginary laws and their not-so-imaginary enforcers:

Legally, it’s pretty much always okay to take photos in a public place as long as you’re not physically interfering with traffic or police operations. As Bert Krages, an attorney who specializes in photography-related legal problems and wrote Legal Handbook for Photographers, says, “The general rule is that if something is in a public place, you’re entitled to photograph it.” What’s more, though national-security laws are often invoked when quashing photographers, Krages explains that “the Patriot Act does not restrict photography; neither does the Homeland Security Act.” But this doesn’t stop people from interfering with photographers, even in settings that don’t seem much like national-security zones.

Tennessee law student Morgan Manning has compiled a list of incidents in which individuals were wrongly stopped. Cases like that of Seattle photographer Bogdan Mohora, who was arrested for taking pictures of police arresting a man and had his camera confiscated. Or NASA employee Walter Miller, who was stopped for photographing an art exhibit near the Indianapolis City-County Building and told that “homeland security” forbade photos of the facility. More recently, a CBS news crew was turned back from shooting the oil-fouled gulf coastline by two U.S. Coast Guard officers who said they were enforcing “BP’s rules.”

All of which leads people to believe that there really are laws restricting peoples’ right to take photographs or videos, because police and other government officials keep acting like there are such laws.

So what should you do if you’re taking photos and a security guard or police officer approaches you and tells you to stop? First, be polite. Security people have tough jobs and probably mean well. Ask them what legal authority they have to make you stop. (If you’re in a public place, like a street, a park, etc., they have none; if you’re in a private place, such as a shopping mall, they may have a basis for banning pictures.) Krages advises those hassled by security guards to threaten to call law enforcement. If it’s an actual police officer who’s telling you to stop shooting, ask to speak to a superior. And remember — you never have a legal duty to delete pictures you’ve taken.

More importantly, we need better education among security guards and law enforcement. In Britain, the country’s police chiefs’ association is attempting to educate officers about the rights of photographers. So far, nothing like that has happened in the U.S., but it should. Trying to block photography in public places is not only heavy-handed and wrong but, thanks to technology, basically useless. With the proliferation of cameras in just about every device we carry, digital photography has become too ubiquitous to stop. Let’s have a truce in the war on photography and set our sights on the real bad guys. Who, it seems, don’t carry cameras anyway.

What is a “fusion center”?

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 07:50

Wendy McElroy thinks you should know how much domestic surveillance has increased in recent years:

The Fort Wayne Journal Gazette reported on July 25 that “there are 72 fusion centers around the nation, analyzing and disseminating data and information of all kinds. That is one for every state and others for large urban cities.”

What is a fusion center?

The answer depends on your perspective. If you work for the Department of Homeland Security, it is a federal, state, local, or regional data-coordination units, designed to improve the sharing of anti-terrorism and anti-crime data in order to make America safer. If you are privacy or civil-rights advocate, it is part of a powerful new domestic surveillance infrastructure that combines data from both the public and private sectors to track innocent people and so makes Americans less safe from their own government. In that respect, the fusion center is reminiscent of the East German stasi, which used tens of thousands of state police and hundreds of thousands of informers to monitor an estimated one-third of the population.

The history of fusion centers provides insight into which answer is correct.

July 27, 2010

Short form: he’s treating them like civilians

Filed under: Cancon, Humour, Law — Tags: , — Nicholas @ 14:16

In the elevators of my clients’ office building, there are video displays with short news items, stock market performance, weather, and (of course) ads. The short form of this story was something like:

Top RCMP officers claim boss is verbally abusive, close-minded, arrogant and insulting

My immediate reaction was “so he’s acting like a cop dealing with a group of citizens?”

Photography is legal in Britain . . . unless they catch you at it

Filed under: Britain, Bureaucracy, Law — Tags: , , , — Nicholas @ 12:22

The continuing story of police harassment of peaceful photographers has still not come to a middle:

The Metropolitan Police Force cannot be guaranteed to abide by the law when it comes to allowing the public their right to take photographs.

That was the startling admission made last week by Met Police Commissioner John Stephenson under sharp questioning from Liberal Democrat London Assembly Member Dee Doocey during a Police Authority Meeting on 22 July in City Hall. Video footage of the exchange is available on the Metropolitan Police Authority site, with relevant footage from around the 68 minute mark.

[. . .]

He admitted that he was aware of a recent disturbing incident that took place in Romford, which according to Doocey represented “eight minutes of two of your officers intimidating somebody”.

She continued: “At one stage they say that they don’t need a law to stop them photographing, but much more worrying, they don’t need a law to take them away. It’s not a question in my view of . . . It’s so serious that it don’t think it should be somebody giving them words of advice and I don’t also agree with you that it is a question of officers using their discretion.

“This was very black and white: Two of your officers who, despite the fact that I know you have given them guidelines because I have a copy of it, who totally disregarded them and were either so completely ignorant of the law, or decided to ignore the law — they were just going to say they knew the law better than the person they were talking to — they were very seriously intimidating. I find it quite worrying that I don’t think you are taking this quite as seriously as I think you should be.”

In short, the powers-that-be have grudgingly acknowledged that photographers do indeed have the right to take photos unmolested by PC Plod, but admitted that it’s still not actually been properly communicated to Plod and the other coppers on the beat.

We asked the Met for official comment as to why, despite the numerous efforts made by Assistant Commissioner John Yates and other serving officers to get the message about photography across, such incidents kept occurring. They suggested that these incidents were a very small part of the whole story of London policing, that to expect zero incidents was unrealistic, and that when such incidents occurred, they tended to be blown up out of all proportion by the press.

An alternative explanation, suggested to us by current and recently serving police officers with whom we have spoken, is that such incidents represent a far more disturbing aspect of police culture. They suggest that a small minority of officers see the law as being “what they say it is”, and these officers are quite prepared to take their chances, on the basis that the number of times they will be caught out by being recorded is likely to be few and far between.

It’s almost as if the police are sublimating their frustrations with the out-of-control but politically favoured members of certain religious groups and instead victimizing members of the public who don’t have political favour.

July 20, 2010

Welcome back to the draft era

Filed under: Government, Law, Liberty, Military, USA — Tags: , , , — Nicholas @ 07:11

. . . at least, if Representative Charles Rangel gets this piece of dreck through the legislative process:

HR 5741 IH

111th CONGRESS
2d Session
H. R. 5741

To require all persons in the United States between the ages of 18 and 42 to perform national service, either as a member of the uniformed services or in civilian service in furtherance of the national defense and homeland security, to authorize the induction of persons in the uniformed services during wartime to meet end-strength requirements of the uniformed services, and for other purposes.

If this passes, I’ll be happy to welcome the next generation of draft dodgers into Canada. In spite of their sometimes loopy politics, we managed to absorb the last bunch reasonably well.

July 16, 2010

Another round of anti-drug hysteria?

Filed under: Food, Law, Media — Tags: , , , — Nicholas @ 10:00

In times of economic uncertainty, we seem to get more off-the-wall panics about other things. Things like kids trying to find legal ways to get high. Jon, my former virtual landlord, sent me this link saying “. . .this is not The Onion! But it is hard to tell. I think I’ll try it when I get home.”

It’s not even news. Nutmeg’s (very mild) hallucinogenic qualities have been known for centuries. As they allude to in the video, the required dosage is so high that it’s the equivalent of smoking a rope: there may be a benefit, but it’s not worth the effort.

Stock up on nutmeg for your ordinary cooking needs, as this inevitably will lead to hysteric calls to ban the substance, or to have it only sold in registered outlets with a log kept.

July 13, 2010

Lacrosse team caught in international issue over passports

Filed under: Britain, Bureaucracy, Law, USA — Tags: , , , , , — Nicholas @ 07:24

This is a confusing situation, as Aboriginal tribes/nations are sometimes considered separate political entities from the country within which they live and other times are not. The Iroquois nation apparently has been issuing their own passports, but now the British and US governments don’t want to honour them as they have in the recent past:

The Iroquois team, known as the Nationals, represents the six Indian nations that comprise the Iroquois Confederacy, which the Federation of International Lacrosse considers to be a full member nation, just like the United States or Canada. The Nationals enter this year’s tournament ranked fourth in the world.

The Nationals’ 50-person delegation had planned to travel to Manchester, England, on Sunday on their own tribal passports, as they have done for previous international competitions, team officials said.

But on Friday, the British consulate informed the team that it would only issue visas to the team upon receiving written assurance from the United States government that the Iroquois had been granted clearance to travel on their own documents and would be allowed back into the United States. Neither the State Department nor the Department of Homeland Security would offer any such promise.

If the US government has allowed the use of Iroquois travel documents before, why are they now pretending they’ve never encountered them before? Is it a formal change in policy or just a bureaucrat flexing his or her ability to cause inconvenience and delay on a whim?

Update, 14 July: The New York Times reports that the team has been allowed to travel on their Iroquois passports:

The State Department’s blessing ends a five-day standoff between the Iroquois team and the federal government over whether the players could travel on their own documents instead of United States passports, as they have done in past international competitions.

Representative Louise M. Slaughter, Democrat of New York, said in a statement that Secretary of State Hillary Clinton personally intervened in the case on Wednesday morning and that the team would be able to depart on Wednesday afternoon.

“I am extremely grateful to Secretary of State Clinton, who responded to this glitch promptly and efficiently,” Ms. Slaughter said. “Going forward, we must find a way to balance homeland security concerns with some common sense and a border policy that does not create unintended consequences.”

Part of the reason appears to have been technical: “The Iroquois passports are partly hand-written and do not include any of the security features that make United States passports resistant to counterfeiting.”

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