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Golden State Killer DNA Use – Getting Past the Media Hype to Potential Legal Issues

First, let’s establish that I am not an attorney. I talk to lots of attorneys and even attend law seminars from time-to-time, but I have never studied law in any meaningful way. My post on this matter is because I have a gut feeling the use of DNA searching in the case of the Golden State Killer is probably new territory.

Second, let’s establish that though I’m not a geneticist, I am experienced enough in genetic genealogy that I can tell you mainstream media reporting on DNA testing is as terrible as it is on guns. Most reporters know absolutely nothing about the types of DNA that can be tested in the consumer market, how matching happens, what the policies on use are with those sites, and the limitations of DNA. DNA doesn’t lie, but it’s sure as hell misinterpreted – often. Add to the problem of reporters not knowing anything about it the fact that most of the people in front of the cameras from the police department and the district attorney also know nothing about it, and you’ve got a recipe for terrible reporting.

Based on some of the most detailed reporting that didn’t come out until late last night and this morning, the investigators did not use a commercial DNA testing company you commonly see advertised. In the US, the big ones are Ancestry.com, 23andMe, FamilyTreeDNA, and MyHeritage. Three out of the four confirmed in statements when the media started getting things wrong that they in no way cooperated with any criminal investigation with their DNA databases. While the fourth one didn’t issue a statement, the police didn’t use their private databases, either. All of them have pretty solid policies not cooperating without a warrant.

However, because these companies all offer different tools, many of which are useful in their own ways to us genealogists, but you can’t compare to someone who tested at another site, some folks built a website called GedMatch that’s sort of like a public open source comparison tool. It’s database is made up of people who have taken their raw DNA data from other companies that run the tests and upload them to be compared to each other. Why? Well, in cases like my grandfather’s, he only tested at Family Tree DNA before he died. If a great match tests at Ancestry, we can’t compare the two kits except at Gedmatch. (Technically there are a few alternatives now, but there weren’t for a long time. Gedmatch became the place to do it.)

The police created a raw data format that looked like one of the major testing company’s raw data forms based on the DNA sample recovered from a crime scene. Using that form, they uploaded it to Gedmatch as though it was a sample from one of the major testing companies. There’s nothing in Gedmatch’s terms that says you can’t “spoof” a major company format with data obtained elsewhere. The entire purpose of the site is to compare across testing platforms.

BUT, where things get interesting is that when you upload a kit at Gedmatch, you must answer a question:

Please acknowledge that any sample you submit is either your DNA or the DNA of a person for whom you are a legal guardian or have obtained authorization to upload their DNA to GEDmatch: Yes or No

Now, the officer who uploaded it 1) is not the source of the DNA, 2) is not the legal guardian of the suspect, and 3) does not have the authorization of the DNA sample provider to upload. Yet, s/he uploaded it anyway by directly misrepresenting his/her status as the legal representative with permission of the source of the sample.

Only with that misrepresentation did they find enough information to focus in on one subject and follow him around to find a source of publicly disposed DNA to run a direct test against the original sample using the traditional law enforcement test (CODIS).

Is the misrepresentation of who has permission to use a website under specific terms a violation on the part of police? I think it’s a reasonable argument to make, though I don’t know how much precedent we have in this area of law because we’re talking technology that most previous cases don’t really cover.

Now, GedMatch was also recently used to solve a Jane Doe victim status. I tend to believe that there’s a more solid case that police are legal representatives of an unidentified deceased victim in their “custody” than they are over a possibly still living suspect’s DNA sample. That said, any law enforcement use of the database makes people, understandably, uneasy. There have been calls for years for law enforcement to consider an opt in GedMatch-like database in order to solve John/Jane Doe cases with clear terms and conditions for those who opt in. Plenty of people are willing to help in those cases, and even in searches for criminals. But the authorities didn’t give people that option, they held themselves out as representatives of criminal suspects to gain access to a database.

In the context of guns, Sebastian & I figured it is most closely represented with this type of analogy:

A plainclothes cop shows up to your gated, private gun club and tells a board member that he has a document attesting that he’s a representative & there with permission of your club’s Membership Chairman and is just looking some things up on his behalf without ever disclosing that he’s law enforcement. He is allowed into the gated club only based on this form that says he really is representing your Membership Chairman, even though the officer really plans to investigate your Membership Chairman on a case not related to your club or its business. When he comes in, the officer looks through the guest log and sees a name he recognizes as similar to a felon known to him. He uses the information on the guest log to start following around your Membership Chairman to see if he’s allowing a felon to use his firearms. When it turns out to be the case, the cop sweeps in to make an arrest. Now technically the arrest is based on what he witnessed. But he never would have been following him if not for what he saw when he entered the gated property by falsifying documents that claim he was the Membership Chairman’s representative and was there with his permission. Is this a fruit of the poison tree problem?

I don’t know exactly how this will all play out, and I don’t know enough law to know if this is absolutely a violation. What I do know is that it violates ethics of the genetic genealogy community. While I understand that GedMatch doesn’t really have the same “gates” restricting access to its database as the commercial companies, the fact that they aren’t addressing the very real issue of how the cops represented themselves in order to be matched against others bothers me. That question in their upload process either means something or it doesn’t, and GedMatch isn’t taking it seriously. I made our kits private in the meantime.

As a final thought on DNA & crimes. I think it’s important to remember that as much as guns are misrepresented and therefore misunderstood, so is DNA.

DNA alone can tell you remarkably little without extra context and information. It doesn’t lie, but it is sure as hell misunderstood and treated as inappropriately damning. Consider that California was going to put a man away for life for a murder he absolutely did not commit based on the officer’s lack of detailed analysis in considering how DNA might have appeared on a victim. I mean we all “know” that if you find someone else’s DNA under a victim’s nails and they struggled, then that must be your assailant. It’s what tv tells us! Except what if the EMT called to the scene reuses a pulse oximeter on the victim that was used hours before on a man he took to the hospital? That was an important detail that nearly cost a man his life. Even in genealogy, something as obvious as a parent/child match? If you don’t know whether that parent has an identical twin, then you don’t have all of the information you need to make a sound conclusion.

It’s complex. And that’s why the media will f*ck it up almost every time they report on it – just like guns and gun owners.

UPDATE: The NYT has a decent article on the ethics & possible legality issue. A law professor who professes to know about DNA searches says there may be questions about the legality of the evidence. I’m going to assume that’s why they went after the other samples so that any warrants were technically issued on those grounds rather than the legally dubious GedMatch grounds.

Anyone Watch the New “Lost in Space?”

I try not to binge watch these days. The problem is, you end up watching a whole season in a weekend, and by the time the next season comes around, you forget everything and have to watch the whole thing over again. I prefer spacing things out these days. One thing kids today probably don’t appreciate is that my generation was too small for the entertainment industry to really cater to. Gen X got recycled Baby Boomer culture. We watched the same shit our parents watched when they were kids. So most Xers are pretty well acquainted with shows from the 1960s like “Lost in Space,” “Gilligan’s Island,” “Bewitched,” or “Hogan’s Heros.” My mom watched “Star Trek” TOS as a teenager, and what did I end up watching with her in syndication? We were fans. I remember mom crying at the end of Star Trek II the Wrath of Kahn (Best. Star Trek. Ever.) when Spock died.

I’ve been watching the “Lost in Space” remake. The original series is one of those shows I used to watch on daytime TV if I was home sick from school. It was on Netflix or maybe Amazon for a while, and I rewatched it. I was surprised by how well the early episodes held up. The show went downhill in later seasons, but the early seasons are still pretty good. The remake borders on being really good, but it never quite reaches it. In terms of excellence in remaking old sci-fi shows… the Battlestar Galactica remake before it went off the rails… that was excellent. This could have been that good, because they are using talented actors, writers, and clearly have decent budget.

I agree with the Federalist that the new LiS anti-gun plot line is “forced and ludicrous.” Seriously, your on-board 3D printers can make firearms, and you’re having people fashion spears to battle alien predators? Are you fucking kidding me? In the original series, Will Robinson used guns like, well, of course he would use guns. I find myself through the entire series saying to the TV: “You know what would be pretty useful right about now? Some fucking guns.”

I don’t have any issues making Dr. Smith a woman. There’s no reason that character has to be male. But the original Smith sometimes had redeeming qualities. I find myself wondering why they don’t just suck the current Smith out an airlock and be done with it. She’s cartoonishly deceitful. She’s like Hillary Clinton without all the Chardonnay. The Smith remake could have been pretty excellent if they wrote her better. They almost wrote a compelling character.

Men in the show have been dumbed down. This is something the Battlestar Galactica remake did not do. It introduced strong women characters, but without diminishing the male characters. In the original LiS, John Robinson was a capable person. In the remake, he’s not really. He’s kind of a brute. Everything that John Robinson was in the original series has been transferred to Maureen Robinson. She’s the brains. She’s also a bitch. I find the reboot Maureen to be very unlikable. And it’s not like the original Maureen Robinson was June Cleaver, so why did they feel the need to do this, other than virtue signaling?

The new Robinson dynamic detracts from the story. They even dumbed down Will a bit with the unnecessary subplot that he didn’t actually qualify for the mission, and mommy had to pull strings. I actually like the Don West remake. There’s a bit of a swindler element to him that I don’t remember in the original character, but as a whole his character works.

Despite the problems I’ve outlined, the show is very watchable. Some of the other SciFi series on Netflix I just can’t get into. Good acting and writing makes up for a lot, even if there are aspects of the characters that are eye rolling.

Has anyone else been watching it? What do you think?

Delco Op-Ed Encouraging Education on Guns

Congratulations on gun owners who managed to get published supporting gun rights in their local outlets in these tough times! Gotta love this line from a guest column in the Delaware County Daily Times on the differences between semi-automatic AR-15s and fully automatic firearms:

I explain it simply, an AR is a Chevy Malibu with a racing stripe; it is not an Indy Car.

Article on AR-15s Not Completely Awful for CNN

There is a lot of sensationalist nonsense in this article on AR-15s, like “As gun sales kept climbing, so did the body count,” and a lot of crap about the AR-15 being designed for spray fire, but for the most part, this isn’t so badly done for agenda driven media, and reflects a lot of my memory of the issue. The big question I have, because I wasn’t in the issue at the time, is when high-power competitors made the jump from mostly using Garands and M1As to using AR-15s: did that transition start happening before the ban? Or did the ban culture of the late 80s and early 90s trigger competitors to give ARs a second look?

The Media Darling

I can’t count how many article I’ve seen about Caleb Keeter (if you’re saying “Caleb who?,” join the club) in the media. I passed on most of them, since I’ve never heard of the guy, and I frankly don’t care what celebrities think. But this article from the Canada Free Press is worth reading:

Someone in Keeter’s position will be assigned absolute moral authority on the issue because of what he went through in Vegas. You still oppose gun control? Oh yeah? Go through a shooting rampage and then come back and tell me that!

The many people who went through the same rampage and did not have their minds changed will presumably not be assigned the same absolute moral authority, for reasons I suppose are obvious. But authority is not what makes an idea good. It’s the quality of the idea itself. So let’s examine Keeter’s full statement explaining his change of mind …

As I said, this one hit close to home, but it didn’t change our minds. The article makes the very good point that although the very careful planning this mass murderer did made return fire an unrealistic option, there are plenty of other public mass shootings where someone with immediate access to a gun could and has made a difference.

Victims at the Four Seasons

Today’s Philadelphia Inquirer has an attention-grabbing headline: “For Bucks couple in Vegas, a horrifying view of the carnage.” With a headline like that, you click on it thinking that maybe they were in the midst of the crowd and saw things you can never forget.

And, let me tell you, I don’t think they will ever forget the horrifying view of an empty littered lot 35 stories below their posh Four Seasons room the morning after the shooting. The art deco-inspired wall papers and giant shiny silver mirrors to reflect the lights coming in from their floor-to-ceiling windows looking down on the Strip will remain forever in their minds against the backdrop of the litter below them.

The article says they heard some shots which the couple assumed to be fireworks with the concert they could just hear below them. But the article deliberately uses phrases that just acknowledge they saw the curtains blowing out of the neighboring hotel room the following morning and litter the next morning after there had been bodies previously. It doesn’t actually say they saw “carnage.”

The Inquirer does want us to know that the couple resting in their super comfortable Four Seasons bed has no intention of letting the gunman get in the way of their high end bridal conference business and that they will, in fact, be strong enough to stay the entire 4 additional nights they were planning to stay! #LasVegasStrong

When this couple reached out to the largest newspaper in their home region to tell their harrowing story, they made sure to pose for a photo in their posh hotel dressed in their most stylish clothes looking appropriately concerned for the little people below. Without it, I’m not sure we could have believed that they had survived such a tragic crime that happened to a group of completely unrelated people 1,600 feet down the Vegas Strip.

Now This is the Kind of Article I Expect from the Media

Granted, I had to go to inverse.com, and who has ever heard of that? We’re probably the only people who will actually read this crap.

Although restrictions do exist on buying, selling, and owning fully automatic weapons — also commonly referred to as machine guns — these firearms are technically still legal. Some advocates of gun rights, however, have claimed the opposite in arguments.

What I love is that he refers to the federal assault weapons ban later in her article. Was that a ban? Did that make “assault weapons” illegal? Because it did the same kind of grandfathering, only under much less stringent regulation. Look, for all but the wealthy collector, machine guns are effectively illegal. I can’t afford one. Most of you can’t afford one, or maybe you could if you gave up a car or a first born. A lot of people can’t get CLEO sign-off. They are not common.

Gun owners — those both with handguns and bigger rifles and shotguns — do not need a license to buy and own their firearms, and don’t need to register their guns with the state, according to the National Rifle Association.

So Nevada has registration for smaller rifles and shotguns then? Where did you get that from?

Automatic weapons were also used in the attacks at Orlando’s Pulse nightclub in 2016, the Sandy Hook Elementary School in 2012, the movie theater in Aurora, Colorado, in 2012, and Columbine High School in 1999, according to a report from anti-gun group Everytown for Gun Safety.

No, they were not. Those murderers used semi-automatic weapons: one shot for each pull of the trigger. The link to Everytown doesn’t even say anything about weapons used.

 

Almost Getting it Right

This is a lot better than I would have expected from “fact checkers” only a few years ago. It’s mostly right.

Journalists often mistake the “AR-15” semi-automatic rifle, sometimes referred to as an assault weapon, for an automatic weapon. It is a much smaller caliber version of the military and fully-auto M-16. The AR-15 is also highly accurate at a long distance.

Same caliber bullet, same cartridge. The only difference is the AR-15 is not capable of fully automatic or burst fire. There’s a difference in the receiver and the internal bits to make this so. The accuracy of an AR-15 is the same as the M16 when it’s set to semi-auto.

Gun opponents have lobbied for decades to make “high capacity” magazines illegal. Generally, they are talking about magazines that load more than 8 rounds. An experienced shooter can easily reload with a fresh magazine in a few seconds.

Generally they are talking about magazines that load more than 10 rounds, because I suppose they feel like that is a nice, round number.

But I’ll give the author credit for mostly getting it right. Years ago this stuff was often wildly off the mark.

Now You Can Be Sure the Bloomberg Talking Point Are Out There

As I’ve said before, when you see a pattern, it means it’s a coordinated campaign, and folks, we’re seeing a pattern. Same talking points as Milbank, to a tee.

Is it Title II, which eliminates liability on any shooting range built or operated with federal funding in whole or in part — if for example a deranged person commits a mass shooting on that firing range? The shooting range is free of liability in all cases, even if it knew a dangerous person was using the firing range and did nothing to alert the authorities.

Are people really committing mass shootings at firing ranges? Is this really a problem? I also LOVE this juxtaposition.

Is it Title I, which prohibits the entire federal government from addressing lead poisoning caused by ammunition or fishing tackle? Even though waterfowl hunters switched to non-toxic ammunition decades ago, and even though lead poisons people and wildlife alike, and even though there are non-toxic alternatives, this legislation would forever preclude the government from taking action.

Yes, there are very expensive and less effective non-toxic alternatives. There could be cheaper non-toxic alternatives, but …

And then there are the provisions eliminating all restrictions on the purchase of silencers, eliminating restrictions on armor-piercing bullets, and eliminating restrictions on carrying firearms across state lines.

 

There we are with the armor piercing bullets again, and you guys don’t see the articles I choose not to link, so you can expect this is a key Bloomberg talking point right now. You can’t, on one hand, tell us that we have to adopt alternatives to lead ammunition, and then, on the other hand, outlaw those alternatives. That’s what the “armor piercing” ammunition law currently does.

Let me just re-establish for those of you who might be new to this: the armor piercing ammunition issue is bullshit. Let me go over a brief history of this issue.

Back in the 1980s and early 1990s, when this fake issue was turned into a full on scare by the media and Hollywood, people were demanding that “something must be done.” So politicians started drafting bills which were “something,” and therefore “must be done.” Early attempts by Ted Kennedy to draft a bill based on the ability to penetrate soft body armor would have banned most rifle ammunition. Nearly all centerfire rifle ammunition will penetrate body armor typically worn by police. Not just scary “assault weapons.” Not big bad .50 BMGs. The .30-30 Grandpa shot deer with for years will slice through soft body armor like a hot knife through butter, no matter what the bullet is made of. Why? Rifle bullets travel at two to three times the speed of handgun bullets, and speed is what gets you through kevlar.

Banning all rifle ammunition not being politically feasible, politicians looking for that “something” that “must be done” started focusing on handguns that could shoot bullets that were capable of penetrating soft body armor. That’s a much smaller class of ammunition, because nearly all handgun rounds except very powerful ones are stopped by soft body armor (I know, I know, it depends on the level of the vest, but for simplicity’s sake here). Still, a performance based criteria would ban large swathes of popular handgun ammunition. That was just fine by people who were in favor of banning handguns, so there was a real chance this could happen.

As a compromise, instead of focusing on performance, legislation could focus on the materials the bullet was made from, and based on whether or not it was designed to be fired from a handgun (basically it had to be a lead bullet). This would only ban a very small subset of ammunition that didn’t see much civilian (or law enforcement, for that matter) use. It was “something” that the politicians could take to their hysterical constituents demanding that an armor piercing ammunition bill “must be done.” And so it was done.

But lawmaking by Congress is only ever part of the equation. Federal bureaucrats have enormous leeway to make rules to implement a particular law. Under both the Clinton Administration and the Obama Administration that’s exactly what happened. Suddenly, it wasn’t “designed to be fired from a handgun” it was “can be fired from a handgun.” The new rule became if there was a pistol that could fire the ammunition, that ammunition became subject to the armor piercing law and could be banned. This was used to great effect to ban cheap 5.56x45mm and 5.45x39mm ammunition during the Obama Administration. What SHARE would do is to set the rule back to what it was intended to be, and eliminate the mechanism by which two hostile administrations have used to warp the law into something it was never meant to be. It was meant to be a meaningless feel good measure that didn’t really ban much of anything. It was NEVER intended to be a mechanism to ban large categories of rifle ammunition. But that’s what it was turned into.

But hey, why write an article on that? Why take the concerns of shooters seriously? Why try to learn something before just writing up an op-ed from Bloomberg’s talking points?

Gun Control Folks Definitely Expecting HPA to Move

There’s just too much chatter about it for that not to be the case. A common argument against: “What’s wrong with ear plugs?” But note this editorial concedes many of our points:

To be sure, the noise-reduction devices at issue do not eliminate gun noise; they reduce it by 30 decibels or so, making “suppressor” a more accurate term, and mitigating whatever additional risk the general public might face if the law results in more use of silencers, including unlawful use, as opponents fear.

Sure, it could happen. But the sky could fall too! Death, destruction everywhere! And if that’s going to happen, and WaPo’s editorial staff would prefer it be deafening, and not just kinda loud.

In fact, the harms to shooters are modest — somewhat elevated risk of non-total hearing loss, essentially — and effective alternatives to silencers are readily available.

Basically, they don’t give a crap about your hearing unless you’re driven to the point of utter deafness. Then they care. Maybe.

The problem is that firearms users generally don’t take these simple precautions. Suppressors might help, NHCA acknowledged, but not “without the wearing of hearing protection.” In other words, “manufacturers cannot guarantee that use of noise suppressors alone will prevent hearing loss.”

Again, making our point for us. You still need hearing protection, just not as much. I doubt anyone at the WaPo involved in this editorial actually shoots, or has any idea that not all earplugs or muffs are created equal. That’s also not to mention that it’s better for hunters to  be able to hear what’s going on around them. Or for instructors teaching a new shooter to be able to communicate effectively without having to shout.

I use these electronic muffs, and they are the best compromise between protection and usability I’ve found. But I still can’t get a good check weld on a rifle with them. Also note they are rated for a 22db reduction, which means they reduce to about 138 decibels, which is just below action level. Note, WaPo journalists, that muffs that take gunfire well into the safe range are a lot thicker.

Ear plugs are very effective, offering up to 30 decibel reduction for quality plugs, but my main issue with earplugs is that I can’t hear shit when I’m wearing plugs unless someone is absolutely shouting at me, and to be completely honest, I hate having shit stuffed in my ears. You want to be able to communicate with other shooters and the people around you when you are shooting potentially dangerous weapons.

I’m not saying suppressors are a panacea that will make all hearing issues and noise complaints go away at ranges everywhere. But they are another tool in the toolbox. Even the WaPo editorial staff has to concede that the only reason to restrict them are hysterical predictions about criminal use if we unrestricted them. That’s never happened when this kind of thing has been predicted by journalists before, and I don’t see why it would happen now.

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