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Cert Denied in Peruta v. California

The Supreme Court will not hear Peruta. It looks like Thomas and Gorsuch dissented from the cert denial, signaling that Gorsuch is willing to take the torch from the late Justice Scalia when it comes to Second Amendment issues. From the dissent, written by Justice Thomas:

Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to “bear arms” means to “wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offen­ sive or defensive action in a case of conflict with another person.”

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem anti­ quated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.

Also, some tea leaf reading: if Kennedy retires this summer, as is rumored, if you ask me it’s a strong signal that he’s not the weak link in the Heller majority. The case would be heard before whatever justice replaces him, which given Trump’s short list, is liable to be good on the issue. I’ve long argued that I believe Roberts’ judicial minimalism is the issue we’re up against, and not Kennedy’s tendency to switch hit. Though, it could be a combination of both.

What we do know is that Thomas, Alito, and now Gorsuch have written or joined forceful dissents of the Supreme Court abrogating its responsibility to the Second Amendment. That’s three solid votes. Unfortunately, we need five solid votes to move the ball forward.

No One Should Have to Own Crazies

I for one am glad that Ladd Everitt, formerly of the Coalition to Stop Gun Violence, and now working for George Takei’s new gun control effort, has decided to start a column at Medium.com. His latest piece contains some glorious schadenfreude, into which I shall delve.

First, credit where credit is due: Ladd Everitt is at least trying to own up to the political violence on the left just like he’s demanded Second Amendment advocates own practically every act of political violence that’s come along since… well… as long as I can remember. I’ll give him points for being consistent. But maybe the issue is that he’s just wrong, and that it’s fundamentally unfair to blame the actions of kooks and whack jobs on people who are in no way, shape or form responsible for their actions.

Hodgkinson didn’t come to his violent anti-government extremism by way of right-wing politics (as is common with mass shooters). Hodgkinson was a Bernie Sanders volunteer. He loved Rachel Maddow. He couldn’t stand Karen Handel. He said things like, “I have never said ‘life sucks,’ only the policies of the Republicans.”

You can’t get away from it, can you Ladd? You have to tie the nuts to your opponents, don’t you? Jared Loughner thought that the US government was using grammar to control our minds. Loughner wasn’t on the left or right spectrum: he was a paranoid schizophrenic, who, like many mentally ill people, slipped through the cracks of the system and was never put “into the system” until after he committed an act of violence.

The Pulse shooter? In his mind, at least, on a revenge mission for ISIS. The San Bernardino shooters? Same deal. The Charleston Church Shooting? I’m pretty sure everyone was uniformly disgusted by his actions, and I’m pretty sure no one in the mainstream conservative movement advocates or condones that kind of racial violence.

Ladd, you don’t own Hodgkinson any more than I own Roof or Loughner. Neither does Bernie Sanders own Hodgkinson. And you know what? Sarah Palin has never owned Loughner either. Maybe your insufferable insistence on spouting this kind of nonsense is why no one is listening to you.

If there are some on the left who have bought into the NRA’s perverse “Insurrectionist Idea” regarding the citizen / state relationship, make your voices heard now. Suggestions that the solution to our political problems can be found at the end of a gun barrel must no longer be might with silence by progressives. It’s time for a robust debate about the civic health of our democracy.

No Ladd, they’ve bought into the caricature that exists in your head. This “Insurrectionist Idea” has always been a straw man bandied about by your former boss. The “Insurrectionist Idea” you imagine is not part of nor has it ever been part of any mainstream conservative or libertarian thought.

This might be a shock to you Ladd, but I too an concerned about this country’s apparent descent into the type of madness we’ve been seeing. I’m also concerned about the nastiness, the factionalism, the anger, divisiveness and thoughtlessness we’re seeing today. I don’t want to see this descend into pitched street battles or even worse any more than you do. But the solution is not, and has never been, to disarm people who scare us. A disarmed populace is going to be more easily bullied by extremists factions than a confident and armed population. Think Weimar Germany.

Revolution or “insurrection” is not a mechanism for settling differences over health care, welfare policy, immigration, or any number issues that bedevil us today. We’ve never believed that. To quote Judge Kozinki’s dissent in the Silveira case:

The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

That’s what most of us believe, Ladd. We don’t think it’s OK to start shooting elected officials because an election didn’t go our way. Neither did another group of people who actually used this “Doomsday Provision”:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

This is what we believe. Maybe it’s true that some disturbed people don’t get the details right, but we don’t own those people. Neither of us do.

Good Advice

Greg Ellifritz, of Active Response Training, and a police officer, has some advice for both cops and carriers that’s worth reading:

Look at this shooting. The reason for contact (only one functioning brake light) is valid legally, but what do people think about cops pulling people over for minor infractions like that?  They don’t like it.  Following the logic, they will like it even less when someone gets shot as a result of a “bullshit” stop.

I know what the cop was doing, he was likely hunting for criminals and people who have warrants. I see it pretty regularly. Cops pull over crappy cars for equipment violations, hunting for an arrest. Poor people who can’t afford to fix busted tail lights often can’t afford to pay their tickets, their child support, or their court fees. Their driver’s licenses are frequently suspended and they regularly have warrants.

So, aggressive cop looking to arrest “bad guys” pulls over a beater car and runs everyone inside for warrants. About 25% of the time he gets lucky and gets an arrest or a bunch of tickets. Every once in awhile, bad shit happens, innocent people die and the cop ends up in the national media spotlight.  Is it worth it to take the chance of such a negative outcome to enforce a relatively inconsequential  traffic violation ?

Read the whole thing.

One Last Thing: The Overarching Problem

I linked to this multi-part Twitter rant by journalist Julian Sanchez in the last post, but since I know some of you don’t Twitter, I thought I’d preserve it here for posterity, because this is probably the best summary of the problem I’ve seen to date:

After that, the inevitable question of “But what do we do about it?”:

And that is the tough nut to crack. The more I write on topics like this, the more convinced I become that there are very few problems we face as a country that have easy answers, and very few controversies that have simple causes. The Castile case is not as simple as straight up racism, even if race is a factor. It’s not as simple as police are too militarized, or too quick to use force. It’s not as simple as “NRA doesn’t care about black people.” It’s representative of a lot of pathologies we carry as a nation, and I don’t have easy answers.

Final Thoughts on the Castile Case

I think whether or not a person cares about an injustice depends on whether they can see themselves in the shoes of the victim. That’s why it’s hard to make systematic change. People don’t tend to care about injustices they can’t ever see happening to them.

In this case, I think the answer is an unqualified yes that for just about all of us, we can see ourselves getting burned in a situation like this. Police training on how to deal with armed citizens has been a drum we’ve been collectively beating for a while, and the Castile shooting is a prime example of a department that isn’t offering proper training to its officers. I’ve seen on other forums people pointing out in the dash cam video: “Watch the action of his partner on the far right of the screen. That’s not the kind of behavior you’d expect from a backup officer when shots are being fired.”

This all jibes with what Prof. Joe Olsen, who lives in Minnesota, mentioned when this all first came to light in the media: the department in question would seem to have serious training issues. Here is the basic issue, from my point of view:

  1. Mr. Castile informed Officer Yanez that he was armed. At this point, he should have been reading the “not a cop killer” signals loud and clear, since cop killers don’t tend to inform the officer they intend to shoot that they have a gun before they shoot them. Philando Castile was signaling “I’m one of the good guys,” by informing Officer Yanez he was armed.
  2. Officer Yanez claims that Mr. Castile then reached for the gun. The girlfriend disputes this. Perhaps he could have been reaching for his wallet to show his license to carry. It looked to me in the dash video he already had some documentation out. If Castile did make a move for something without instruction, this was his mistake. But because of item one, it did not need to be a fatal mistake. The Officer overreacted.
  3. Our legal system is set up to create a high burden for prosecutors. The burden the state bears is “beyond a reasonable doubt.” This means that the prosecution has to disprove a claim of self-defense beyond a reasonable doubt. Absent any other evidence, I believed this case was going to end in acquittal, unless there was some evidence that was not released to the public that showed Castile didn’t make any kind of sudden or “furtive movement.” It is also a fact, perhaps an unfortunate fact but a fact nonetheless, that police are afforded a lot more leeway for reasonableness by juries than you or I would.
  4. Like Colion Noir, I don’t think Officer Yanez woke up that day hoping he’d have the opportunity to shoot a young black man. I don’t have any evidence he is racist one way or the other. I believe the proximate cause here is a lack of training on dealing with legally armed civilians. Do I think race played a role? Yes. I believe cops are going to be biased towards a certain way of thinking and acting when dealing with young black men. To argue that police don’t profile is foolish. That would be to assume they are machines rather than flawed people with biases. But the way that is overcome is training.

Finally, is the NRA wrong not saying much? Now that the jury verdict is in, no. I’m not big on second guessing juries, and so I can’t blame anyone else for not doing so. But I think they should have been out there talking about the case and expressing concern a lot more often and loudly than they were. The Castile case was talked about in the NRA Legal Seminar, but NRA certainly wasn’t out there talking about it much in public. It’s possible to have a discussion while still being respectful to the justice system and to the millions of police officers out there who know how to handle armed citizens.

The fact is that NRA needs to diversify its membership. It needs to attract young people. So it should be talking about these issues. While people with law enforcement and military backgrounds will probably always remain heavily represented among NRA’s membership, if the Association is to have a future, that future is going to look a like more Colion Noir, and a lot less like Ted Nugent’s fan base. By NRA’s silence, they’ve given the media and their opposition a great example to show the people NRA needs to attract that “Those NRA people don’t care about people like me.”

Finally, I want to end with this video by Massad Ayoob and Tom Gresham:

UPDATE: I’m also adding this multi-part Twitter rant by Julian Sanchez, because it’s brilliant.

An Open Letter From Colion Noir

I offer without commentary:

In The case of officer Jeronimo Yanez, I don’t feel he woke up that day wanting to shoot a black person. However, I keep asking myself, would he have done the same thing if Philando were white? As I put on my Monday morning quarterback Jersey, it is my opinion that Philando Castile should be alive today. I believe there was a better way to handle the initial stop. If he suspected Philando was a suspect in a robbery, there were ways to conduct that stop in a way that would have completely avoided the shooting altogether, but Yanez neglected to do so.

Read the whole thing.

How Not to Get Shot in a Traffic Stop

I’ve heard a lot of advice over the years, but if you ask me, the following things make the most sense:

  1. Don’t tell the officer you’re armed unless you’re in a state where you’re legally required to. This goes against the advice of a lot of trainers (who tend to be former cops and who also tend to know how to deal with armed civilians). Not every cop who pulls you over will be Massad Ayoob. Don’t talk about it, and definitely don’t touch it. The only negative encounter I’ve had in a stop has been in Texas, where I was legally required to inform. In all other cases, I’ve kept my mouth shut and things went smoothly.
  2. Note that the first bit of advice will only work if you’re not likely to be searched. That’s most of us, but not all of us. If you live in a “duty to notify state” or you fit the profile for being highly likely to be searched, you’ll need to inform the officer. When you inform the officer, don’t even think about uttering the word “gun.” If an officer hears that word, and misses some context, there can easily be an overreaction. I’ve heard this advice from Massad Ayoob at NRA’s legal seminar, and I like it. Turn your license to carry over with your driver’s license and inform the officer you are carrying, where the firearm is, keep your hands on the steering wheel, and ask him what he would like you to do.
  3. Do not, under any circumstance, make any sudden move once the cop knows you’re armed. Don’t reach for your wallet unless the officer knows what you’re going to do and OKs it. Don’t reach for anything. Don’t do anything without the officer giving you the OK. Don’t even itch your nose. Some cops will want to disarm you. Others will just tell you to sit tight and keep it holstered.

In my case in my Texas stop where I had to inform, the cop asked me to unload and make clear, then took the firearm. I was glad he had me do it. One of my fears with “duty to inform” is having a cop relieve me of a firearm who does not have good trigger discipline. That’s a big reason I’m a proponent of the first item: keep your mouth shut if you legally can and you’re not likely to be searched.

I’d rather deal with the fallout from “Officer, I will comply with your order to get out of the vehicle but I need to inform you that I have a license to carry and I am carrying. Please tell me what you want me to to do,” than to risk being the next Philando Castile.

The dash cam video in the Castile case is now public. If you carry a firearm legally, you should watch this:

The officer claimed he reached for the weapon. I shared Bob Owen’s belief on this:

While I have strong doubts about the validity of Yanez’s claims that he thought Castile was reaching for a gun, how do prosecutors prove beyond a reasonable doubt that Yanez’s response to that perceived threat was both unreasonable and criminal?

A jury found the claim reasonable, or at least credible enough to support the Officer Yanez’s self-defense claim. I was not on the jury, and I did not follow the trial closely. If someone did, feel free to chime in if you have information I don’t.

But if you inform an officer that you’re armed, and then move for the gun, or move for your wallet or something else, even if your intention is to hand it over to the officer, you’re running a very very severe risk of being shot. Once you inform, and you should have your hands in plain view on the wheel when you do, do not do anything that the officer does not first order you to do.

UPDATE: I should mention, though it won’t help you avoid being shot, is recording your encounter. If Castile’s girlfriend were recording the whole encounter, and not just after the shooting, it could have changed the entire dynamic as to whether the officer’s actions were reasonable.

Jurors Tend Not to Convict Cops

I’m not surprised by the result in the Philando Castile. I disagree with the assertion that the system is broken. Trial by jury is one of the best things we ever inherited from the British, and while it’s flawed, like every human endeavor, a properly functioning jury system is one of the ultimate checks the people have on the power of the state.

But the system only works as well as the people who comprise it, and the fact of the matter is that jurors will give cops breaks they wouldn’t give you and me under similar circumstances. It might not be right, but it is a fact. So it was always an uphill battle for Castile to get justice.

The Washington Post and other outlets are trying to make hay out of NRA’s silence. I’ve seen other outlets suggesting the reason for NRA’s silence is racism. That’s nonsense. The reason for NRA’s silence is that a not insignificant number of NRA’s membership are police officers. Hell, a not insignificant number of NRA’s staff and Board are former police officers. They aren’t going to be speaking out against a jury verdict acquitting a cop. NRA doesn’t care very much about pain coming from the media, anti-gun groups, or politicians. As I’ve noted, they actually thrive on that. NRA does care about internal pressure from its membership. If you don’t believe that, just ask Harry Reid.

Not Dead

I’m extremely busy. Also had a doctor’s visit yesterday. Because I have pretty serious white coat, I do home monitoring of my BP. Home BP has been good, but then when Doctor time starts creeping up, it starts to head into the high range. For me it’s like taking an exam. When I know it counts, I get nervous about it and it throws the result. I do best when it’s a reading I know I don’t have to write down.

Other than that, LDL is down to slightly elevated. HDL still good. Triglycerides were a little bit elevated, whereas they were normal last time. Since I’ve been busy, my diet has been atrocious, so considering that I’m not unhappy. Statins do work, at least at bettering your lipid profile. I have a theory that in a few years they are going to conclude the lipid theory was all wrong and the reasons statins work is through some currently unknown anti-inflammatory mechanism. I’m not just pulling that out of my butt — recently there have been drugs that have proved very effective at managing your lipid profile, but don’t show any effect on the rate of heart attack and stroke.

The big thing is I need to lose weight. Over the winter I regained everything I lost last summer. If there’s one thing I really wish I could do is go back in time, find my rail thin younger self grabbing that fourth slice of pizza, and smack the shit out of me while screaming: “Do you have any idea how hard it’s going to be to work that shit off when you’re in your 40s?”

Quote of the Day: Anger Issues Edition

I can’t find much to disagree with here:

But something new has happened to American politics in the last few years: Politicians have realized that the simplest path to power is to humor everyone’s anger. If you take someone’s anger from them, you’ve emotionally castrated them. More important, you run the risk of driving them into the arms of someone who will feed their anger — an anger that will now turn on you for the sin of having discounted that anger in the first place. This is deeply unhealthy.

Yes. And the data crunchers are getting very adept at manipulating people’s emotions for gain. They aim to sell you something, whether it’s a better razor, or an ideology. Big data means those with a product to sell will know what buttons to push to get you to buy.

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