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December 2014

Posted by Amy Miller on December 03, 2014 13 Comments
Privacy advocates cheered when Apple announced last month that an updated encryption scheme would disallow Apple from bypassing user passcodes at the request of law enforcement officials armed with search warrants. Now, the Justice Department is fighting back against these updates, and they're using an ancient tactic to do it. The Wall Street Journal explains:
That technological shift prompted tense private meetings this fall between Apple and Justice Department lawyers... Amid that standoff, the government on Oct. 10 obtained a search warrant to examine the contents of the phone in the credit-card case. The phone was locked, so prosecutors asked U.S. Magistrate Judge Gabriel Gorenstein to order the manufacturer to unlock it. They cited the All Writs Act, originally part of a 1789 law that gives courts broad authority to carry out their duties. Judge Gorenstein agreed. “It is appropriate to order the manufacturer here to attempt to unlock the cellphone so that the warrant may be executed as originally contemplated,” he wrote on Oct. 31. The judge gave the manufacturer, referred to only as “[XXX], Inc.,” five business days after receiving the order to protest. Much remains unknown, including the maker of the phone, and what happened next. The language of the opinion suggests it could apply to a company like Apple. The order is directed at the “manufacturer of the cellphone,” and Apple is one of the few companies that produce both the phone itself and the software that would manage the encryption.
The order (full embed at bottom of post) was signed and published by a federal magistrate; this is significant because, as the article above explains, these types of decisions don't normally come down in a published opinion. (Magistrates usually just sign an order granting or denying a request.) The fact that this decision is now published is a signal to other judges who may examine it that we could be looking at the development of a new legal precedent to answer evolving technology.

Posted by Mike LaChance on December 03, 2014 5 Comments
As politics and media have continued to obsess about Ferguson, a very serious thing has occurred. Our national debt topped $18 trillion dollars. That's more than our GDP. John Hinderaker of Powerline reports:
Federal Debt Soars to Over $18 Trillion A year or so ago, the Democrats started telling us that the national debt was no longer an issue. This was based on the fact that the deficit was only around half what it was during President Obama’s first few years in office. The fiscal year 2014 deficit came in at *only* $483 billion, a cause for rejoicing in Washington. This represents the smallest deficit as a percentage of GDP since the George W. Bush administration. Still, $483 billion exceeds any deficit ever racked up during the administration of any president other than Barack Obama. (Don’t try to play the silly game of attributing the Democratic Congress’s FY 2009 deficit, which among other things included spending under the failed Obama/Reid/Pelosi “stimulus,” to President Bush.) Word came today that the national debt now exceeds $18 trillion, a little more than the GDP of the United States.
Remember all the times Obama said he was going to cut our deficit in half? Dan Spencer of RedState does:
Our ‘Irresponsible’ and ‘Unpatriotic’ $18 Trillion National Debt

Posted by Leslie Eastman on December 03, 2014 5 Comments
Has anyone else noticed that since Ferguson hit the news, there has been a lot less press attention paid to America's favorite virus? When checking the status of the epidemic, I discovered that there is another potential Ebola patient in this country.
Massachusetts General Hospital is treating a patient suspected of having contracted the Ebola virus, Public Affairs Officer Noah Brown has confirmed to Boston.com. Dr. Paul Biddinger, Director Of Emergency Preparedness at MGH, said the patient involved in the suspected Ebola case meets the CDC definition of a “person under investigation” to possibly have the ebola virus. “This definition involves the possibility of travel to where Ebola is present, the possibility of exposure to that virus, and symptoms that are consistent with that virus,” Biddinger said at a press conference Tuesday evening. The patient is in stable condition and good spirits, according to Biddinger. He declined to answer specific questions about the patient—including travel history, potential exposure to others, and location in the hospital—citing an inability to comment on individual patient details. Biddiger did say, though, that there is not a reason for panic.

Posted by William A. Jacobson on December 02, 2014 27 Comments
The Dellwood Market, near Ferguson, has been looted three times, on August 10 and 17, and again after the non-indictment announcement in November. Here's one of the times, on August 17: The owner was on Hannity tonight, and said he's probably going to call it quits after 25 years. He just can't take it anymore. Dellwood Market Ferguson Owner Hannity 2 Very sad. The Hannity segment video below:

Posted by Amy Miller on December 02, 2014 2 Comments
We're just days away from the Louisiana Senate runoff election, and Mary Landrieu is in trouble. Recently released polling data has Republican challenger Bill Cassidy up by almost 16 points over the embattled incumbent, and internal polling conducted by the Cassidy campaign is showing a similar lead. Although Cassidy has earned and maintained a nearly-unbeatable spread, he's not leaving anything to chance. I'm spending time in Louisiana this week campaigning for Cassidy, and I'm not the only "foreigner" putting her boots on the ground. Activists by the hundreds are busing in from all over the country to help Team Cassidy maintain their lead and secure a win in Saturday's runoff. These people are motivated, excited about Cassidy, and ready to pound the pavement to secure a thin-but-comfortable majority +9 caucus for Senate Republicans.

Posted by William A. Jacobson on December 02, 2014 6 Comments
Common Core is generating a lot of concerns around the country, and teacher input without fear of retaliation is essential. The reality is, however, that teachers critical of Common Core may be intimidated by school district and state officials into silence. That is what a teacher is alleging in a lawsuit (full Complaint here) filed in Maricopa County Superior Court against the Arizona Superintendent of Education, as described by The Goldwater Institute press release:
Today the Goldwater Institute filed a lawsuit on behalf of Tucson, Ariz. teacher Brad McQueen, who was retaliated against by employees of the Arizona Department of Education for speaking out against the Common Core State Standards. For years, Mr. McQueen was paid to serve on several committees of teachers who advised the state department of education on issues related to standardized testing. When he spoke out against the Common Core and its accompanying standardized test earlier this year in a newspaper article, he was removed from the committees (even those that had nothing to do with the Common Core), notes were made in his file at the department that could impact future employment opportunities, and he was disparaged in official department emails. “The First Amendment guarantees that all Americans have the right to speak out on important issues of the day without fear of being persecuted,” said Kurt Altman, a senior attorney at the Goldwater Institute. “When you exercise your rights and find your livelihood and reputation are threatened, especially by the government, that sends a message to everyone around you to keep their mouths shut.”

Posted by Amy Miller on December 02, 2014 7 Comments
The relationship between the media and Connecticut courts is about to get very, very ugly. The Connecticut Law Tribune has come forward with information showing that New Britain Superior Court Judge Steven Frazzini has enjoined the newspaper from publishing a story based on court documents entered into the public record and published on the Judicial Branch's website. Tribune lawyer Daniel Klau has already filed an appeal, but even Klau himself has been slapped with a court order demanding his silence on the subject. From the Connecticut Law Tribune:
The action before Frazzini was in juvenile court session, where judges have the discretion to limit proceedings to those participants deemed necessary. A writer representing the Law Tribune was not permitted to remain in the courtroom to witness the proceedings, after his presence was objected to by a lawyer for one of the parents in an underlying custody case and by a guardian ad litem. Klau said he was not sure he could talk specifically about who the lawyers were in the case, or even the judge. The lawyer for the mother in the custody case is Stephen Dembo, of West Hartford, who took the unusual step of requesting the injunction to prevent the newspaper's publication of a story about the court filing. The guardian ad litem is Susan Cousineau, a prominent voice in the ranks of guardians ad litem, who also cochaired a legislative task force on GAL reform in the last legislative session. The Department of Children and Families legal director, Barbara J. Claire, wanted to make it clear that her agency was not behind the request for the publication ban, and said in a statement: "The department did not request that a court grant a motion to prevent media coverage in a confidential child protection case." The motion to bar publication was filed on Friday, Nov. 17. The Law Tribune immediately filed an objection to the motion, arguing that any prior restraint on publication is unconstitutional. "Prior restraints on speech and publication are the most serious and the least tolerable infringements on First Amendment rights," the brief states, quoting the 1976 U.S. Supreme Court case of Nebraska Press Association v. Stuart.

Posted by Kemberlee Kaye on December 02, 2014 5 Comments
Arizona Senator Jeff Flake released a report on the EPA's misuse of taxpayer money called the Science of Splurging. “For an agency keen to regulate every puddle from a rainstorm, the EPA has proven itself remarkably inept when it comes to managing its own affairs,” said Flake. “After years of handing out blank checks in the form of omnibus appropriations bills and continuing resolutions, it’s time for Congress to return to regular order and restore accountability at the EPA.”

Posted by Andrew Branca on December 02, 2014 13 Comments
The Orlando Sentinel reported recently on an interesting self-defense law matter currently being taken up by the Florida Supreme Court. As seems inevitable, they have of course incorrectly categorized the case as centering on the state's "Stand-Your-Ground" law. In fact, the case centers on Florida's self-defense immunity statute, and not on Stand Your Ground.  (For those interested in understanding how utterly different these are from each other, take a look at my tutorial video: LOSD University Video Tutorial 003 SD Immunity and SD "Insurance".) Florida's self-defense immunity statute is §776.032. Immunity from criminal prosecution and civil action for justifiable use of force.  It provides in relevant part:
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . . . As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
Statutes, of course, merely represent the stated intent of the Legislature, which does not bear the burden of actually applying them.  That task falls to the courts.  As if often the case, in the instance of §776.032 the Legislature declined (some would say "failed") to specify the precise procedures that were to be applied in determining whether a particular individual qualified for self-defense immunity.  This naturally led to months of fun for Florida's trial, appellate, and Supreme Court judges. Among the first issues that had to be settled was simply the standard of evidence to be applied to self-defense immunity, in other words how much evidence in support of self-defense was required before immunity could attach to a defendant.

Posted by Amy Miller on December 02, 2014 22 Comments
For all the spin the left has provided on the protests in Ferguson, Missouri, you'd think they'd have a little more respect for their own race-based premise. Democrats in Congress probably thought they were performing an act of solidarity when they engaged in a "hands up, don't shoot" protest on the floor of the House last night, but all they did was cheapen the efforts of actual protesters and make the popular "white cop attacks unarmed black teen" narrative that much more ridiculous. Mediaite has the scoop:
Democratic members of Congress showed solidarity with Ferguson protesters tonight by making the “Hands up, don’t shoot” gesture on the House floor tonight. New York’s Hakeem Jeffries and Yvette Clarke, along with Texas’ Al Green, all made the protest gesture on the House floor tonight. Green made the gesture in reference to what the St. Louis Rams did, but touted it as a “new symbol” of protest.
You can also watch the video here, via C-SPAN. [caption id="attachment_108136" align="alignnone" width="600"]http://www.washingtonpost.com/blogs/the-fix/wp/2014/12/01/rep-hakeem-jeffries-d-n-y-brings-hands-up-dont-shoot-to-house-floor/ (Image via WaPo)[/caption]

Posted by Amy Miller on December 02, 2014 30 Comments
The madding crowd has claimed another meaningless scalp, and it couldn't be happier about it. The internet exploded on Thanksgiving after Congressional staffer Elizabeth Lauten criticized the First Teens for their less-than enthusiastic attitude at the annual Presidential Turkey Pardoning. Yesterday, nearly a week after the offending Facebook post, Lauten resigned her job rather than allow the backlash to harm the reputations of her boss and fellow staffers. Anyone who has ever worked for an elected official knows that the slightest slip up can quickly turn from foible to gaffe to complete professional nightmare. In terms of self-preservation, staffers are defenseless, which makes them easy targets and a mess-free launchpad for a larger agenda. Let's be clear: the Right has engaged in plenty of staffer-shaming over the years, but it's been a long time since a member of a Congressional office has been so completely and utterly destroyed over comparatively mild Facebook commentary. The media's (both old and new) scalping of Elizabeth Lauten started on Twitter, blossomed in the quirky world of internet news, and then roared to life as mainstream news outlets roused themselves from their tryptophan stupor to engage in some serious journalism. Since that night, Lauten has been targeted online by both the mainstream media and private citizens, and doxed by professional "journalists" at home and abroad. In an act of ruthless messaging, the White House took charge of the situation and pitched the story to national news outlets. We're now at a point where no one knows what Elizabeth said, and furthermore no one cares what she said; her rude comment has been twisted and transformed into a rabid attack on the First Daughters, and there's no amount of commentary that can unring the bell.

Posted by William A. Jacobson on December 02, 2014 43 Comments
Al Sharpton is now an advisor to and go-to guy on race relations for Obama, including on Ferguson. And you didn't think it could get any worse than Obama having Jeremiah Wright as a spiritual advisor for much of his adult life, until the political heat got too hot. Which is worse? You can only pick one poison. Poll open until midnight (Pacific Time) December 2, 2014. Update 10:00 a.m.: I don't usually update Reader Poll posts, but it's worth noting that Godwin's Law has been invoked fairly early in the Twitter debate:

Posted by Amy Miller on December 02, 2014 5 Comments
Both parties in the high-profile Elonis vs. United States had their day before the Supreme Court yesterday, and lawyers and analysts alike aren't sure what to make of the Court's reaction to oral arguments. Elonis (described in detail here) is shaping up to be a real barn burner because it tackles a question almost all of us have asked ourselves at some point: can you SAY that on Facebook? "That" being, of course, profanity- and violence-saturated rants directed at a particular person or group of people. We don't have a cohesive standard for what constitutes a "true threat" against another person, and the murky waters of social media have added an extra layer into an already complicated case. Platforms like Facebook and Twitter provide a kind of semi-anonymous catharsis for users; you can post a picture, or a song lyric, or random thought, and (barring any run-ins with the platform's TOS) no one can find cause to complain because it's your space on the internet to use as you wish. Enter Elonis' pointed, violent rants. Is it enough to claim catharsis and artistic expression when your content is clearly aimed at another person, and that person feels threatened? Elonis' attorneys are banking on the Nine to accept this argument:
John Elwood, a lawyer for Mr. Elonis, said prosecutors should have to show that someone accused of making threats intended to put the listener in fear. Merely being reckless with comments on Facebook or elsewhere shouldn’t be enough to make someone guilty, he said. “Many of the people who are being prosecuted now are teenagers who are essentially shooting off their mouths or making sort of ill-timed, sarcastic comments which wind up getting them thrown in jail,” Mr. Elwood said. He cited a Texas prosecution of a teenager who made remarks in a videogame chat room about attacking a school. And he suggested the government’s preferred legal approach would allow the prosecution of someone from Ferguson who tweeted a violent message along with a picture of police officers during the riots.
Justices Alito and Ginsburg balked at this argument, with Alito citing concerns that condoning Elonis' conduct could lead to a situation where estranged spouses could post threatening content against their partner and get away with it, and Ginsburg asking how a prosecutor could somehow tease out what was in the perpetrator's mind when he posted the threatening content.

Posted by New Neo on December 01, 2014 35 Comments
John McWhorter's Time essay on Ferguson demonstrates his graceful way with words, and his struggle to fight the truth about Ferguson. The only bit of truth that survived McWhorter's preferred narrative is this:
I’m not sure that what happened to Michael Brown — and the indictment that did not happen to Officer Darren Wilson — is going to be useful as a rallying cry about police brutality and racism in America.
McWhorter recognizes that, yet it is instructive to see the mental gymnastics he performs in order to stay with the liberal line:
The key element in the Brown-Wilson encounter was not any specific action either man took — it was the preset hostility to the cops that Brown apparently harbored.
So far, so true---although Brown's hostility, and the acting-out of that hostility, seems hardly to have been limited to cops. But then McWhorter writes this:
And that hostility was key because it was indeed totally justified.
So, despite the fact that McWhorter goes on to agree that Wilson's actions were not necessarily motivated by racism, and despite the fact that he even acknowledges that Brown had just robbed a convenience store, and despite the fact that McWhorter knows nothing---absolutely nothing---of Brown's actual attitudes towards police, why he might hold those attitudes, and what his previous encounters with police had been, he claims that this supposed attitude of Brown's was not merely justified, but totally justified.

Posted by Amy Miller on December 01, 2014 14 Comments
The brutal truth of electoral politics is that, not unlike Supreme Court reasoning, wins, losses, and philosophies exist on a pendulum. Whether the dog wags the tail, or the tail wags the dog, the power of one party over the other waxes and wanes as sure as the sun rises and sets. The midterm elections ushered in a massive pendulum swing away from progressive power plays and toward the comparatively common sense conservatism of both established Republicans and eager newcomers. The right ran against Obama, his caucus, and their destructive policies, while the left ran against the increasingly faded spectres of microaggression; the result? They failed miserably, embarrassingly, and in toto. Roger Simon writes for PJ Media:
Liberalism n’existe pas — and almost everybody knows it. It is completely out of ideas. Obama was the last gasp of a dying ideology. All they have left is some pathetic and teetering identity politics. That is why the Democratic Party was so flummoxed over the last few days over the words of their stalwart Chuck Schumer, when he criticized the risibly titled Affordable Care Act. The New York senator said his party (and Obama clearly), rather than trying to reform healthcare, should have concentrated on improving the state of the middle class. But crucially, Schumer didn’t say how. That’s because in his ideology, there is no more how. It’s all been tried and shown to be useless or, worse, destructive of the people it pretends to be helping. At this point, we no longer need Gertrude Stein to tell us there’s no there there.
No more how, and for progressives like Schumer, no more need for how. How implies solutions that look ahead toward a better future; what progressives offered this cycle---and indeed, during the totality of the Obama Administration thus far---was a catharsis for loyal Democrat voters who at this point have got to be questioning the Commander in Chief's figurehead status.

Posted by Kemberlee Kaye on December 01, 2014 9 Comments
Demonstrations called "Hands Up Walk Out" are taking place all over the country today. According to the event website:

In the wake of events in the last weeks, including the non-indictment in the killing of Mike Brown and the senseless killings of Akai Gurley in New York and 12-year-old Tamir Rice in Cleveland, our communities are hurting and justifiably angered. What gives us hope in this moment of pain and anguish is the thousands of people who have poured into the streets of America to demand change.

From the #ShutItDown actions that have blocked major highways and intersections to the #BlackoutBlackFriday protests,the message is clear: No more business as usual. We can no longer do what we have always done and cooperate with a system that does not respect Black Lives. We will only get the change we want if we disrupt the daily order and insists that Black Lives Matter. If that means shutting down the entire country, that’s what we’ll do.

On Monday, Dec 1st people around the country will be walking out of their schools and places of work in solidarity with Ferguson communities across the country effected by police violence.

Where? It can be any central location at your school or the area where you work . Consider if there is a place that has relevance to social justice such as a monument, chapel, or scene of previous protests.

"Hands Up" refers to early reports that suggested Mike Brown had his hands up in the air as a sign of surrender when he was shot by police officer, Darren Wilson. Later, it was revealed this was not true.

Participants of "Hands Up Walk Out" were encouraged to post photos of their events online.

Not surprisingly, the largest turnouts seemed to have occurred at ivy league campuses and leftist organized marches, but even those were not particularly large. The rest? They were itty bitty. Take a look:

Posted by Kemberlee Kaye on December 01, 2014 43 Comments
A 32 year old Bosnian man is dead after a fatal attack in St. Louis early Sunday morning. Zemir Begic, who'd only been married for six months was beaten to death with hammers in front of his wife and friend. According to CNN:

Two juveniles are in custody Sunday, suspected in the death of a man beaten with hammers on a St. Louis street.

The victim, 32-year-old Zemir Begic, suffered injuries to his head, abdomen, face and mouth, according to police.

He was unconscious by the time officers arrived. Begic was taken to an area hospital, where he was pronounced dead, police said.

"Investigation revealed the victim was traveling in his vehicle when several juveniles approached his vehicle on foot and began damaging it.

"The victim exited his vehicle and the juveniles began yelling at the victim and striking him with hammers. After the assault, the juveniles fled the scene on foot," read an incident report.

Two suspects were later located and taken into custody, police said. They are 15 and 16.

A motive for the attack was not immediately clear. An investigation is ongoing.

Some reports indicate race has already been ruled out as a motive for the violent attacks, while others say motive is as of yet unclear. Police are still looking for two other suspects, a 16 year old black male and a 15 year old hispanic male, according to Fox News St. Louis.

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