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68

Texas v. Johnson … v. Berg

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1989:

wikipedia.org

Texas v. Johnson, 491 U.S. 397 (1989), was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant Gregory Lee Johnson's act of flag burning was protected speech under the First Amendment to the United States Constitution.

2014:

wpxi.com

BLAIR COUNTY, Pa. — A Blair County man said he was standing up for this American Indian heritage and expressing his beliefs when he hung an American flag upside down and spray painted it earlier this week…

“I was offended by it…” said Allegheny Township police Assistant Chief L.J. Berg. Berg said he took the flag down and charged Joshua Brubaker with desecration and insults to the American flag. “I removed it from the building, folded it properly and seized it as evidence,” said Berg…

In Chief Berg's defense, intelligent people are barred by law from becoming police in many jurisdictions, and so we should perhaps not hold the chief to the same standards that we would use for a decent member of productive society.

22

The truth about rule

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viaangusI am on the run. I have had a lot of ventures. I will tell you a truth of my ventures.

One day I saw a farm that had no fence. I saw sheep and long neck sheep and goats and geese. In a corner of the farm was a tin tub up side down on a flat form, and a front eyes sat on the tub and watched.

The front eyes was like the man but not like the man. I went to him and asked why all the sheep and long neck sheep and goats and geese were there in the field.

They chose to make me their ruler, he said. I take care of them and do what is right. You are a big, strong bull. I will make you my side bull and you can rule them with me!

I asked, What is rule?

The front eyes said, Watch. So I stood to a side of the flat form.

After some time a goose came up and said, I do not get enough food. I think you should take some of the food from the sheep and the goats and give it to us geese and the long neck sheep. They are strong and we are not strong.

The front eyes said to the goose, You know, you are right! Then the goose left.

Later a goat came up and said, I do not get enough food. You should take some from the long necks and give it to us goats and sheep. They are swift and we are slow.

The front eyes said to the goat, You know, you are right! Then the goat left.

I said to the front eyes, That is rule? You said this and also not this!

The front eyes said to me, You know, you are right!

Then I left the farm that had no fence. I do not want to rule.

38

A Riddle Wrapped In a Mystery Inside an Enigma

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Bruce Schneier:

https://www.schneier.com/blog/archives/2013/09/the_limitations.html

[ sometimes when ] we were sure of our [ covertly gained information ], we couldn't act because that would reveal "sources and methods." This is probably the most frustrating explanation. Imagine we are able to eavesdrop on al-Assad's most private conversations with his generals and aides, and are absolutely sure of his plans. If we act on them, we reveal that we are eavesdropping. As a result, he's likely to change how he communicates, costing us our ability to eavesdrop. It might sound perverse, but often the fact that we are able to successfully spy on someone is a bigger secret than the information we learn from that spying.

This dynamic was vitally important during World War II. During the war, the British were able to break the German Enigma encryption machine and eavesdrop on German military communications. But while the Allies knew a lot, they would only act on information they learned when there was another plausible way they could have learned it. They even occasionally manufactured plausible explanations. It was just too risky to tip the Germans off that their encryption machines' code had been broken.

The World War II bit isn't news to anyone who reads history (or, for that matter, Neal Stephenson novels).

I had an insight just now.

We know that the NSA collects all sorts of information on American citizens. We know that the FBI and the CIA have full access to this information. We know that the
DEA also has full access to that data. And we know that when the
DEA busts someone using information gleaned by the electronic panopticon of our internal spy organization, they take pains to hide the source of the information via the subterfuge of parallel construction.

The insight is this: our government is now dealing with the citizenry the same way that the British dealt with the Nazis: treating them as an external existential threat, spying on them, and taking pains to obfuscate the source of the information that they use to target their attacks.

Yeah, Godwin's law, whatever, whatever. My point is NOT that the NSA is the same as the Nazi party (in fact, my argument has the NSA on the opposite side). My point is that the government now treats ordinary civilians as worthy of the same sort of tactics that they once used against the Nazis.

This isn't really shocking, given that I think that the government has long been at war with the populace…but it's still a somewhat stark distillation of the trend.

21

Kaiju Dreaming

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The road that lead to the next Godzilla movie (release: imminent) was an unlikely one, but not altogether unexpected. 1998’s debacle notwithstanding, Toho is not inherently against being offered what I assume is large amounts of money for licensing. Director Gareth Edwards has never helmed a project whose budget surpassed 500k. But the work he did on that project, Monsters, was extremely promising. He wrote a character drama with a giant monster backdrop. Most importantly, Monsters suggests that Gareth Edwards gets Kaiju. That’s important. It’s tremendously important. To 8 year old me, staring across a summer in a new place hundreds of miles from where I was born and had grown up, it was one of the few things that mattered. I had two passions: video games and monster movies. I had an Atari 2600 and I loved it, but there was nothing quite like an arcade. Arcades sent me into a sort of trance. The world just faded away as I moved from one cabinet to the next, mesmerized. Monster movies were one of the few things that came close.

I don’t know how I developed a taste for either horror or monster movies. I was pretty afraid of the dark as a kid. But I did love dinosaurs, and movie monsters are a natural transition for a kid who is obsessed with dinosaurs. Movies like The Land that Time Forgot, The Last Dinosaur, and Dinosaurus! provided easy transitions into the broader realm of monster movies, and monster movies themselves are just an offshoot (or are offshoots, really) of horror. I can clearly remember my first: The Giant Gila Monster. I was in complete awe after ignoring significant portions of the build up. Effects didn’t matter back then. Here was something like a dinosaur, something impossible, but something that could have been menacing my block. I was impossibly hooked. At that age – 7 or possibly even 6 – I think what I really craved was stimulus for my imagination. Looking back, I think my father had an acute understanding of that. He had found me watching it and sat down to watch with me.  We talked through parts of the movie (I being absolutely terrified, watching parts through my hands).  After it ended, I remember asking him if such things could be real.  I mean, I knew there were no more dinosaurs, I had seen fossils and read many books.  But this was something else.   I can see his expression, sober and somber “It’s a big planet, and I don’t think we know everything there is to about it”. The perfect answer.   Like Star Wars, and Indiana Jones (and later, Dr Who), Monster movies became something we shared.  A secret language we had that nobody else understood.   How could I not have given over my heart, mind, and soul at this point?  I was hooked.

I was an active kid who loved to play outside, with friends. Monster movies became a drug for me, though, even if they didn't quite rival Arcades. We were fortunate to have a nearby metropolitan area (such as it was) which had a station dedicated to this stuff. I had a couple of summers of monster movie heaven. Viewings snatched and stolen on Saturday mornings and late Saturday afternoons, and occasionally on week days, in between play time spent outside doing whatever (roaming, exploring, playing Star Wars, going hours and hours without every seeing an adult). I watched every one I could get my eyes on. Them!, The Beast From 20,000 Fathoms, King Kong, Mighty Joe Young, Tarantula, Beginning of the End, The Monolith Monsters, Creature from the Black Lagoon. . . no monster movie was above viewing. But few of them managed to get under my skin like the king of all of them: Godzilla. I watched all of the Showa series but one movie, as many times as I could. Even my friends – friends who loved video games, arcades, Star Wars, Tron, Indiana Jones, and Superfriends – thought me odd for this.

And then it was all gone. My father was transferred, and I found myself staring down a summer in a strange, new, location with no means to get a fix in sight. I was shattered. I would get each week’s new cable guide frantically scanning for signs of. . . well life. Civilization. Surely some person in this godforsaken place understood what I needed? VCRs appeared not long after this and there was once a time (the authors of this blog understand it well) where families would rent a VCR for the weekend, and a handful of movies to go with it. I couldn't ever get anyone interested in renting monster movies, though. Eventually proper monster movies and even Godzilla himself, found their way to my TV in this strange land. But there were lean years, before they did. I don't remember when the dreams started. I had been in my new home for longer than a season, though, possibly two. Long enough to make new friends, but recognize that I was very decidedly on the outside of most of the social groups I was around. I don't know what kicked it all off. I had always been prone to vivid dreams and nightmares. But these dreams. . . I wonder if they were inevitable. I wonder if that dry spell did something deep inside the recesses of my mind.  Pulled something loose, as it were.

The first sort was in some ways the worst; I dreamt about scanning the cable guide for monster movies; typically fruitlessly. The banality of these dreams hung in the air even after waking, casting a pall over the day. Sometimes in these dreams I found something, something that was coming on that I would be able to watch. The disappointment on waking up and realizing not merely that there was no new Godzilla fair to watch is surely trumped by the fleeting promise that there was. But these dreams occasionally took strange turns, where I not only found monster movies, but the titles were unrecognizable. What coded Lovecraftian things did I witness back then? Would that the titles had stayed with me on waking, just once (or perhaps it's for the best that they did not). I always *knew* this was some as yet unseen monster movie. And I always knew when they were Godzilla movies (in my dreams, they were never titled “Godzilla vs X”). In truth it was after that sort of dream started that the feeling they left me with turned. Disappointment at these things not existing (and my not even having poor substitutes to turn to) gave way to wonder. The dream of these movies was powerful. The dreams eventually (and only very occasionally, at that) changed. I started to catch glimpses of movies that did not exist, showing Godzilla battling familiar foes in unfamiliar settings, or sometimes even strange new creatures. Years later when I finally discovered Lovecraft, I wondered if perhaps he could have explained all of this to me. I did not have many of these dreams, but they were good dreams.

The dreams again grew stranger and more vivid still, often intense to the point of forcing me awake. There was no middle man this time; I was *there*. Some of them were absurd (twice as a famous actor shooting a monster movie, the monster in question threw a tantrum on set and I suddenly found myself living a part I was supposed to be playing, scrambling to escape impossible doom). Some of them were the genuine article – I can recall frantically trying to convince a general not to go ahead with some absurd plan to try to kill Godzilla. No one else could perceive some threat that I could, and only Godzilla would be able to deal with it. I remember manning another where I manned a sort of watch station on Monster Island, carefully studying the activities of creatures less they become active again. The last dreams, though. . . these I think Lovecraft would have understood all too well I found myself in hilly (if I was lucky, such as it was) or flat but otherwise featureless terrain, in the middle of who-knows-where. *Something* lurked nearby (as much as nearby counts for creatures hundreds of feet tall). I would scramble about looking for any place to shelter but never find it. Tension would mount as the feeling of being exposed would begin to smother me. Sometimes, *something* would shake me to the core (a roar? A thunderous footstep? Glimpses of a monstrous form off in the distance as the moon appears between clouds?) and I would wake with a start. Alone and irrelevant, entirely unsure of my place in any world. These were terrifying dreams. But I sometimes welcomed them.

The dreams stopped coming after a couple of years; after I had finally found monster movies again (if less frequently than I used to). I've never stopped having nightmares, though I don't have them as much as I used to. Some of them have travelled down stranger tides than monster movies. None of them has quite captured that feeling of wandering on a plain, alone, waiting for a titan to come and render me entirely irrelevant and lost, not even knowing myself. I think Lovecraft understood that. I think Guillermo Del Toro understands it. Monsters suggests to me that maybe Gareth Edwards does too. Sometimes I wonder if the dreams stopped because I lost something important. Sometimes I wondered if they stopped because my brain figured out a way to provide me a little cover. I miss them, terribly.

I'll see Godzilla in the next few days. Will the king return to reclaim his throne? I'll go because I have to know. I'll go because I hope to catch a glimpse of that feeling those most terrifying dreams left me with, writ impossibly large. I've been waiting to see Godzilla for months. For true, years. Since almost as far back as I can remember.

35

That Claim Won't Fly

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For my money, this is the best lawyer-to-lawyer letter of all time, involving, as it does, a millionaire throwing a porn star off a balcony into a swimming pool by – and I quote – "her vagina".

The issue apparently begins when the porn star grabbed the millionaire's shirt and alters her trajectory (something I'm pretty sure all the tutorials for Kerbal Space Program tell you not to do), thus breaking her foot during reentry.

The letter is from the lawyer of the tosser to the letter of the tossee.

http://totalfratmove.com

I represent Dan Bilzerian and received your letter on behalf of Janice Griffith.

Like your client, the facts of the claim won't, quite, fly.

Maybe your client's theory is that Mr. Bilzerian negligently violated the established standard of reasonable care for one who throws a porn actor off a roof and into a pool during a photo shoot for an adult magazine.

I'll let that one sink in for a moment.

Far be it for me to cast aspersions on the editorial standards of Hustler magazine and "totalfratmove.com", but I'd say that there's a reasonable chance that the entire event (including the allegation of a broken foot, the initial demand letter, and the response letter) was staged.

Even if it's performance art instead of cinema verite, it made me laugh. Go read the whole thing.

93

Department of Health And Human Services Threatens Blogger Over Satirical Posts

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The blog Addiction Myth is devoted to a very out-of-the-mainstream proposition about medicine: that the entire concept of drug and alcohol addiction is a scam perpetrated by law enforcement, rehab groups, and the entertainment industry. By contrast, the United States Department of Health and Human Services is devoted to mainstream medical and scientific propositions1 It is perhaps inevitable that these two worldviews would conflict one day.

But it was not inevitable that HHS's Office of General Counsel would bumptiously threaten Addiction Myth over obviously satirical posts. That, given minimal good sense, could have been avoided.

(more…)

26

Terminology and connotations

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The documents were taken from at least 24 supersecret compartments that stored them on computers, each of which required a password that a perpetrator had to steal or borrow, or forge an encryption key to bypass.

Once Mr. Snowden breached security at the Hawaii facility, in mid-April of 2013, he planted robotic programs called "spiders" to "scrape" specifically targeted documents.

This excerpt from Edward Jay Epstein's WSJ article sounds awfully sinister and, well, advanced. Not just compartments, but supersecret, Houdini-defying compartments! Except that "supersecret" just means "above secret"– top secret — and "compartments" aren't physical devices but logical, taxonomic infosec categories.

But robotic programs, of all things… in fact, robotic spiders! Oh, wait. He's talking about mundane bulk copy utilities and scrapers. Nevermind.

However one feels about Snowden's ideological self-presentation and whatever case can be made that he was/is under the control of foreign intelligence entities and using whistleblowing as a cover, I don't think this sort of rhetorical obfuscation is appropriate. The strength of a case should depend on its substance and validity, not on frosting applied through orc mischief or ignorance.

43

Who the what?

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A. Suppose there's a standard recipe for people who want to make coffee: harvest and prepare (or simply buy) some coffee beans, grind them up, boil them for a few minutes, and serve.

B. Suppose a company — let's call it Feurig — declares a patterned approach toward following this recipe:

  • Provide penetrable cups of a certain size containing prepared, ground beans.
  • Provide a ring sized to hold the cup, a mounted pin to puncture the bottom of the cup, a mounted injection nozzle to penetrate the top of the cup, and a hinged apparatus to automate these penetrations when a cup is inserted into the ring and covered by depressing a handle.
  • Provide an encompassing container capable of heating water, detecting its temperature, and injecting that water into the cup at a rate suitable for cooking the bean dust.

C. Suppose Feurig then implements this patterned approach toward following the recipe by making cups and a device to accommodate and process them.

D. Suppose further that a competing company with an interest in making coffee notes Feurig's success in the marketplace and creates a different machine — made from different materials, employing a different heating, monitoring, and injection facility, and penetrating the cup differently.

E. Suppose even further that yet another company makes a cup different from Feurig's but consistent with the scale of the holding ring  on Feurig's machine and capable of being refilled with arbitrary contents (such as tea or sympathy).

What is the API?

The API is not the standard recipe (A) for making coffee: that's an obvious practice deeply embedded in the common culture and widely exercised in industry and among hobbyists.

The API is not the device that Feurig made as an implementation (C) of the patterned approach that Feurig had declared, and it is not the competing machine (D), and it is not the alternative cup (E).

The API is B: a patterned recipe-following approach capable of being realized in a concrete implementation.

F. Suppose now that a complex culture of innovation and competition has arisen around the API defined in B, and that a company — let's call it Deploracle — comes along and buys Feurig.

Deploracle argues that its newly acquired intellectual property extends not just to the physical brewing device its wholly owned subsidiary invented, but also to the abstract pattern to which that device and its successors (and many knock-off devices) conform to ensure interoperability, substitutability, and some other seven- or eight-syllable word.

That's sort of like claiming IP rights not only over the particular car you manufacture, but also over the general idea of exposing a latch to open a door, providing access to a seat, and presenting a wheel, some pedals, and a feedback display to enable intentional control of a driving machine– a contingent set of conventions that declare a patterned approach to the general recipe for driving a car. (Adherence to those declared conventions of capability and method ensure that many automobile manufacturers can make a car, that many people can learn to drive a car, and that people who learn to drive a car can thereby drive any car that conforms to the expectations implicit in that training.)

So Diabetes-Benz lays claim not only to its actual line of cars, but also to the very idea of doing a car in that way, simply because they declared that convention when implementing their car.

Does that seem right to you?

seemright

23

D.C. Court of Appeals Agrees To Hear Merits of Anti-SLAPP Appeal In Michael Mann's Defamation Case

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In our last episode of the saga of Michael Mann's defamation suit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg, I explained that the matter was wrapped in a dry, but crucial, procedural issue: the District of Columbia Court of Appeal was faced with whether a defendant who loses a motion under D.C.'s anti-SLAPP law may appeal immediately, or must wait until the end of the case.

As I argued, the strategic implications are dire for defamation plaintiffs and defendants: if anti-SLAPP denials are not immediately appealable than much of the value of the statute is lost to defendants, but if they are immediately appealable then defendants may often delay defamation cases for years.

On Wednesday2 the D.C. Court of Appeal decided to decide, probably. That is, they issued an order denying Mann's motion to dismiss the appeal, and accepting all of the amicus briefs on the issue, and directing the parties to brief the issue of appealability along with the merits of the anti-SLAPP issue. On the one hand, this signifies that the Court didn't think that the procedural issue was completely obvious, and therefore didn't dismiss the appeal or accept it without reservation. On the other hand, the Court still wants to hear more arguments about whether it should be hearing more arguments. The Court also ordered that the appeal be expedited, which means something somewhat different than you or I mean when we say "expedited."

The upshot: the defendants (save for Mr. Steyn, who apparently is not joining this appeal) will get to brief their arguments that Mann's lawsuit should have been dismissed under D.C.'s anti-SLAPP statute. Mann will get to re-make his argument that the appeal should be dismissed because the defendants shouldn't be able to appeal until the end of the case. The Court will then either punt by dismissing the appeal as premature, or agree that D.C. anti-SLAPPs are immediately appealable and address the anti-SLAPP merits.

Stay tuned. The First Amendment and anti-SLAPP issues in the case are very important, and I hope the Court reaches them.

Why Should Guns Trump Principles?

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Charles W. Cooke highlighted this story of state legislation proposed by Florida Republicans:

With supporters pointing to Second Amendment rights, the Florida House on Tuesday gave final approval to a bill that seeks to prevent insurers from denying coverage or increasing rates based on customers owning guns or ammunition.

. . .

House members voted 74-44, along party lines, to approve the bill (SB 424). The Senate also passed the National Rifle Association-backed bill last month, meaning the measure is ready to go to Gov. Rick Scott.

The bill would apply to property and automobile insurers and add language to part of state law that deals with “unfair discrimination.” As an example, the bill would seek to block insurers from refusing to issue policies because of customers’ lawful ownership or possession of firearms. Similarly, it would bar them from charging “unfairly discriminatory” rates based on gun ownership or possession.

The Republican party attempts, with mixed success, to brand itself as the party of small government, reduced regulation, and free markets. This bill illustrates why that branding is not entirely successful — because too many Republicans, given a favored issue (Guns! Drugs! Crime!), are as unabashedly nanny-statish as Bloomberg on his most Big-Gulp-decrying day.

The proposition is, apparently, that because gun ownership is a cherished right under threat, private insurance companies should be regulated and precluded from charging gun-owning customers more based on the insurance companies' risk assessment. I suppose this is a coherent argument taken in isolation; it's just not consistent with economic conservatism. Saying "greedy insurance companies should be regulated and not permitted to charge what they want, because the free market isn't working" sounds, instead, more like a classic progressive position.

Consider, for instance, the position of Republican state representative Matt Gaetz:

But bill sponsor Matt Gaetz, R-Fort Walton Beach, said Floridians have a constitutional right to bear arms, and even one case of insurers taking action because of gun ownership is “too much.”

“How much discrimination based on the exercise of a constitutional right is tolerable?” Gaetz asked.

Gaetz apparently believes that a private insurer charging a customer more based on its own risk assessment is a violation of that customer's constitutional right to do whatever he or she wants. So, Mr. Gaetz: would an insurance company that offers policies covering defamation be violating my First Amendment rights if it charged me — a mouthy blogger — more than a homebound shut-in who never utters or writes a word? Does an insurance company interfere with my right to procreate if it charges me more for a family health plan than an individual one? Should private insurance companies assume the risk of our exercises of constitutional rights? If the government disagrees with the private insurance market's risk assessment, should it intervene? Is it a good thing to increase the power of government bureaucracies and the courts to regulate whether insurance rates are "discriminatory?" Is the insurance market broken and incapable of addressing anti-gun-bias by driving customers away from gun-penalizing insurers and to gun-friendly insurers? I can see why someone would say those things, Mr. Gaetz. I just find them difficult to reconcile with your other positions:

Healthcare and Insurance

Matt Gaetz believes that health care decisions should be made by doctors and patients, not the government. That’s why Matt Gaetz wants to make sure that you can keep the health insurance you currently have. He will fight to keep health care costs down by eliminating junk lawsuits and fraud in the system.

Uh-huh.

This is not new. Florida is the state that passed a patently unconstitutional law purporting to regulate what doctors could ask their patients about guns. Florida is the state that decided the right to carry a gun trumps the right of private property owners to control their property.

Treating guns as an asterisk to principles — treating the Second Amendment as if it empowers the government to regulate private conduct, rather than just limiting the government — is incoherent and un-conservative.

The Procedural Tail That Wags The Substantive Dog: Update On Michael Mann's "Hockey Stick" Lawsuit

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I've collected, under this tag, my posts about Michael Mann's defamation lawsuit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg.

The lawsuit is back to the District of Columbia Court of Appeal upon the National Review's denial of their renewed anti-SLAPP motion. The key issue currently presented is a procedural one that will strike many non-lawyers as irritatingly dry, obscure, and removed from the heart of the case: when a District of Columbia court denies an anti-SLAPP motion under DC's anti-SLAPP statute, can the losing party appeal immediately, or do they have to wait until the end of the case?

Though seemingly procedural, the question has such a substantive impact that it transforms how anti-SLAPP statutes work and how effective they are at stopping and deterring frivolous suits.

Stand by while I put you in a coma with my lawsplaining.

(more…)

When Your Enemy Is in the Process of Destroying Himself, Stay Out of His Way

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When Your Enemy Is in the Process of Destroying Himself, Stay Out of His Way

The gentle souls at the New York Police Department came up with a great idea: let's give the little people a way to really express how they feel about us!

Within the cloistered halls of the precinct stations this probably sounded like a can't fail idea. After all, everyone they knew loved the NYPD.

Thus was born the hashtag #myNYPD.

What could go wrong?

In short:

Yep.

< munches popcorn >

Keep them coming.

Supreme Court Conjures Corrorboration of Anonymous Tip Out of Thin Air To Justify Traffic Stop

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Today the United States Supreme Court decided Navarette v. California, upholding a California court's determination that a traffic stop of Navarette's truck — which, as it turned out, contained drugs — was supported by reasonable suspicion, and therefore constitutional. The opinion is here. It's a 5-4 decision, with Justice Thomas writing the majority opinion and Justice Scalia writing the dissent. It should have gone the other way.

The issue at hand is the power and reliability of anonymous tips. Here the California Highway Patrol received an anonymous tip through a 911 dispatcher that a silver Ford 150 pickup on a particular highway had run the tipster off the road. The CHP saw a truck matching the description on the highway and stopped it on suspicion of drunk driving — but did not first observe the truck doing anything illegal or reckless. In fact, the cops followed the truck for five miles without observing any traffic violations. The cops approached the truck and (allegedly) smelled marijuana, which led to a search and the discovery of a substantial amount of marijuana in the truck bed.

The Supreme Court has found that the Fourth Amendment permits brief, investigative stops of vehicles based on reasonable suspicion alone — that is, a "particularized and objective" basis to believe some crime is being committed. That's not new. Nor is it new that an anonymous tip can form part of the basis for reasonable suspicion or probable cause — if the tip is corroborated.

What's novel here is that the majority agrees that reasonable suspicion can be premised entirely on a functionally anonymous tip.3 Traditionally the key to corroboration has been confirmation of incriminating details, not details that any observer could make about a innocent subject. So, for instance, if you call in an anonymous tip that I am running a meth lab in my blue house on the corner, and the cops confirm that I have a blue house on the corner, those details are not meaningfully corroborative. If the cops find evidence of witnesses seeing me move precursor chemicals into my blue house on the corner, that's meaningfully corroborative. Here, the police observed no erratic driving or other corroboration of meaningful facts. In fact, they observed five minutes of unremarkable driving. The only corroboration was the innocent fact of the truck being present on the highway.

The majority uses sophistry to turn innocent facts into facts that corroborate the anonymous typster:

By reporting that she had been run off the road by aspecific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability.

. . . .

A driver’s claim that another vehicle ran her off the road, however, necessarily implies that the informant knows the other car was driven dangerously.

. . .

There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m.(roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.

. . . .

Another indicator of veracity is the caller’s use of the 911 emergency system. See Brief for Respondent 40–41,44; Brief for United States as Amicus Curiae 16–18. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.

The majority is turning three things into corroboration here: (1) the fact that the person claimed something happened immediately after it allegedly happened, (2) the fact that a person predicted that a particular car would be on a particular highway, and (3) the fact that the person called 911 and made the claim. But the 911 caller could have claimed anything — that someone was pointing a rocket launcher out the window of the truck, that someone was stabbing a nun in the back of the truck — and gotten the same result. (1) and (3) are just restating the premise "we got an anonymous tip about this," and (2) is a purely innocent fact that any public observer could know. This approach renders the concept of corroboration almost meaningless by making calls to 911 about highway behavior effectively self-corroborating. If I want to call 911 and report that you are weaving in and out of traffic and appear drunk, under this decision, I just created reasonable suspicion to stop you. The cops can pull you over without observing you driving oddly at all — in fact, they can stop you even if they follow you for five minutes and you are driving perfectly.

Justice Scalia's dissent is thorough and merciless, as it should be. Here's how he ends it:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.

Justice Scalia is right. This decision waters down corroboration to the point that it is meaningless, effectively making any anonymous tip of a driver's behavior sufficient to justify a traffic stop. That's a bad result.

See also Jonathan Adler.

nihil sub sole novum

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We have to remember that 12-year-olds nowadays are at about my 7-year-old level, and your 4 and 5 year old level. Infancy is being prolonged by every possible agency now. I have just read an article on college education … by the President of the University of Chicago, and he calls college students "children" throughout. Remember that the Federal Government is taking care of "underprivileged children aged 16 to 24". Minds are not permitted to develop as they used to…

21 January 1938, Rose Wilder Lane to her mother

You Have Questions? The Road To Popehat Has Answers

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It's time for the Road to Popehat, the feature in which we examine the search logs, see what inquiries brought you here, and wonder whether literacy wasn't a cosmic mistake.

This week: people have questions!

how to the fucking? You're going to have to take that up with parents or perhaps a medical professional.

how to proceed when you are a too naive victim of a sociopath Run for Senate?

How to write an affidavit about underage drinking Our law enforcement, always looking to improve themselves.

As of May 2014 when are the Bush family going to shut down America and jail & kill their enemies Hold on a sec, I was just reading about this on Salon.

Was mule rape a form of torture The Department of Homeland Security prefers "animal asset assisted enhanced interrogation techniques."

How much jail time can you get for slander? Depends. Is the person you slandered rich or a politician?

What is another word for how to coerce innocent citizens "Criminal justice system"

Can you get an animal search warrant with an anonymous tip? Wait. Do you mean a warrant to search an animal, or a warrant to use an animal to search? These days, probably both.

Guest Post: Peoria Mayor Jim Ardis On The Rule of Law

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  • BOWYOURHEAD

Today's guest author, Jim Ardis, is the Mayor of Peoria, Illinois.

Ladies and gentlemen, the rule of law is what separates us from animals and barbarians and people from Joliet. It is that rule of law that I now invoke to prevent so-called "satire" from being used to abuse my person and position.

By now you have heard that someone pretending to be me on Twitter has breached the peace by suggesting that I am some sort of corrupt, disturbed drug fiend. The statements attributed to me have been scandalous, personally hurtful, and textually ambiguous.

Let me clear some things up right now:

  • I am devoted to my loving family and have not "shacked up" in a motel with a so-called "notorious furry."  I do not visit motels because their low thread-count sheets make my skin chafe.  I have not been observed at any motels and if I had been it would have been to visit with community leaders about growing jobs in Peoria's business climate.  I had a soiled fox costume in my car because I was going to participate in a pantomime for children at a local cancer hospital.  My staff's nickname for me is "Swift," not "Yiff."
  • I have not hired any sex workers.  I have nothing against them, and feel our system should do a better job protecting them from harm and providing them with opportunities to better themselves and stop being such fucking liars about important people.
  • I do not have a "drug problem."  Drugs are a scourge of impoverished, powerless, and dark people everywhere.  I am fortunate to be affluent, to have friends, and to know many people in the criminal justice system.  Throughout my career I have strongly advocated that people, including myself, avoid the ruinous consequences of drugs.
  • Interns hallucinate and are prone to sudden unconsciousness.  It's a thing.  You can Google it.
  • I have not accepted cash in low denominations for political favors, as has been claimed.  That's ridiculous.  I am reliable and honest.  Look — I have a lapel pin!

People may believe that they can get away with mocking me or saying unpleasant things about me because of the "First Amendment."  They are mistaken.  Here in Peoria we have a system that respects the law — and respecting the law means respecting the Office of Mayor.  When I was victimized by satire — abused by someone with no regard to my right to self-esteem and dignity — my good friend Peoria Police Chief Steve Settingsgaard sprang into action. Could you get the police to devote substantial resources to investigating someone being making fun of you on the internet? Probably not — but frankly you don't carry the burdens of state that I do. Uneasy lies the head that wears the crown, and all that.

With the help of Steve, your tax dollars, scores of police hours, and other resources, we were able to present search warrant applications. First we got a warrant for Twitter from Judge Kirk D. Schoenbein. Good old Kirk understood that "satire" is no excuse for disrespect here in Peoria. Then we went to Judge Lisa Wilson to force Comcast to cough up the subscriber information associated with the Twitter account. Lisa gets it too: who does this punk think he is, making fun of the mayor? Finally we went to Judge Kim Kelley with an application for a warrant to search this asshole's home, and to toss it for drugs while we were at it. And what do you know? They found drugs! Time for this little shit to face some real consequences.

You hear all the time about judges getting all bent out of shape about the First Amendment. So why did three judges issue warrants here? Well first of all, they all understood that as the Mayor of Peoria I am an important man, and my reputation is something that should be protected under the law. Second, I made it clear in the warrant application how just plain mean some of those "satirical" tweets were. Now, some eggheads out there might say that the warrant suggested, on its face, that the tweets were not meant to be taken seriously, and that there's no articulated basis to search for drugs in the warrant. You just remind those eggheads that a Mayor in a town like Peoria can get things done. I know people, and people know me, and when I want a warrant, then by God I get a warrant. I know all of these judges. This is exactly why you cultivate relationships, my friends. That kid in your fourth grade class eating paste and wetting himself during story time may seem worthless to you now, but you never know when he's going to wind up having the power of life and death over people because he's got an inoffensive name and photographs well.

In conclusion: this is a case of the system working the way it ought to. Someone disrespected me, a man of respect. The system turned around and bit him in the ass. That will teach you to think twice about mouthing off about people like me, won't it?