VanDerStok has dropped.
In 2022, the Biden administration released the "frames or receivers", often known as "ghost gun" rule, reinterpreting the Gun Control Act of 1968. This law controls much of what distinguishes a "firearm" under federal law for purposes such as sale, manufacture, transfer, gunsmithing, and licensing of the above. Notably, it had long had an exception for self-produced firearms, either for Commerce Clause reasons or to avoid crushing hobbyists. There was even a small industry, dating back decades, in producing 'kits', of incomplete firearms or tools for creating firearms that could be manufactured at home or in common workspaces: many got explicit ATF permission.
Though these things could make firearms, they were not themselves firearms... until 2022, where they retroactively were. The previous standard had a concept of "80% lowers", which, though not official, were so well-understood in the business that the ATF has a webpage (still active today, don't take legal advice from the government!) specifying exactly what level of remaining manufacturing would be required to turn a non-firearm into a firearm. While obstinately focused on specific manufacturers with especially easy-to-produce firearms kits, this rule was expansive, poorly defined, and often incompatible with the basic text of the statute: the ATF argued that it could apply to nearly any material, under nearly any conditions, based not solely on the actual product but even on its marketing material or separate tools.
Nor was this rule some minor paperwork technicality. The simple unlicensed manufacture for sale of a firearm can earn five years prison for each count, and the guidelines range with no previous criminal history goes from two to three years. And there's a whole set of downstream regulations and statutes that can add onto that.
What did the court decide?
There, remember, the GCA authorizes ATF to regulate “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” Inhering in this language are two requirements. First, a “weapon” must be present. Second, that “weapon” must meet one of three criteria: It must be able to expel a projectile by the action of an explosive, designed to do so, or susceptible of ready conversion to operate that way. As the Fifth Circuit saw it, §478.11’s provisions addressing weapon parts kits are facially invalid because no weapon parts kit can ever satisfy the statute’s two requirements. We disagree because, to our eyes, at least some kits will satisfy both.
There are some annoying procedural frustrations, here. Neither the questions presented, the cert petition, the response to cert petition, nor the district court opinion mention the challenge as "facial" at all. Only the last brief from respondents uses the word "facial", as the last allowed full filing, and does not do so under the defense that literally any reasonable application of the statute would prevent pre-enforcement challenges to any unreasonable ones. The SCOTUS opinion cites a BlackHawk complaint, but it and an appeals court opinion use the word only in the sense of the regulation being directly in conflict with the statute. SCOTUS does not provide a citation for the principle that APA challenges must show every possible enforcement of a law would be unreasonable; a dissent points out that the nearest similar matters are Salerno, Reno v. Flores, and INS v. NCIR, none of which were APA questions.
The federal government -- under Biden! -- specifically disavowed that "no set of circumstances" standard :
JUSTICE SOTOMAYOR: General, I want to know what our standard of review here is, because I can imagine a frame or receiver that is just a block of metal that -- not readily convertible. I can also imagine some part kits that require such tremendous amount of work that it doesn't qualify as readily convertible. So, if I can point to one item that wouldn't qualify, would -- could be swept up potentially by your -- by the new regulation, is that enough to defeat a facial challenge? Is it enough, or is that always an as-applied challenge?[...]
JUSTICE SOTOMAYOR: You -- you use the Reno -- you use the I -- our statement in INS versus NCIR, which basically tracks what you're just saying. But, in Reno versus Flores, we used a different standard and said that a respondent, to prevail, must establish that no set of circumstances exists under which the regulation would be valid. You didn't go that route.
GENERAL PRELOGAR: That would be an even more stringent standard [crosstalk] and I think a burden that Respondents can't surmount. But we think, even under the INS standard that we cite in our brief, it's very clear that there's nothing on the face of the Gun Control Act that [crosstalk] prohibits this approach to regulation.
What were the gun makers asked during oral arguments?
JUSTICE JACKSON: [...] Do you concede that under a facial challenge like the one that you've brought, your task is actually to demonstrate that your alternatives are the only permissible ones under the statute?
In theory, this isn't the last word on the matter. This was not a Second Amendment challenge to the regulation; you have to look elsewhere to see how absolutely doomed any such attempt would be. The majority opinion turning the plaintiff's question into a facial challenge does leave open as-applied challenges, should defendants be willing to risk their freedom at the court's pleasure, with the knowledge that even an imminent victory could be mooted and they be left with the bill.
It'd be funny to imagine the Trump admin taking some pro-gun funhouse mirror of the Obama-era suit-and-settle, or to willfully lose suits by arguing them as poorly as possible (Guilliani needs a job something to keep him busy, right?). We had a natural experiment on that, though, last time around. The punch line is that it didn't matter what the settlement said, because the contract was just a piece of paper.
Thankfully(?), there will be volunteers, whether they know it or not: the ATF's rules are so broad that they cover anything but a literal "unformed blocks of metal", and I'm not convinced that even the duration of the Trump admin will keep to the bounds of that rule. But I don't think they'll get anywhere with legal challenges; lower courts willing to defy Bruen are not going to read this opinion within its own four corners, and SCOTUS is punting on everything else anyway. Anyone that thinks the revival of the commerce clause would apply to them is gonna have a bad time no matter how square they are in Wickard v Fillburn territory. Instead, we're going to be stuck in a world where people don't even know the borders of the law that they're defying.
Takeaways:
- The court did not just decide the case for any enforcement of the regulation, but in dicta endorsed a bar that is low: a half-hour to hour of unskilled work with power tools available in normal stores. There's a fun takeaway in the majority opinion about a kit that someone was able to put together in 21 minutes, and perhaps that could be a reasonable bar, but it kinda falls apart when you find out that the guy was a trained mechanic who looked through several video guides beforehand and ended up doing it wrong enough the thing needed to be repaired later. The government didn't actually commit to nonenforcement for marginal cases (for whatever 'commitment' matters), but even had it, there are Actual Industrial Manufacturing Processes that do not require anything unavailable from Home Depot that could easily crank out a couple receivers from raw aluminum billet in that time. And, unsurprisingly, the usual crowd has taken this interpretation to every possible end; it might take a few months for lower courts to run rampant with it, but they'll make a Bungie AI look like a Jetsons character.
- This could be a new era in regulatory overreach, where Trump could write hilariously unlawful regulations and successfully defend them under the 1% of coverage that was actually within a statute, but odds are better this is just another One Case Only special, given the extent the opinion shies away declaring any test proper and leaves open space for the conventional words-mean-things review where Gorsuch hasn't decided that the statute's dead author had wanted to use artifact nouns. Again, months, not years.
- Did I mention Gorsuch wrote this opinion? I think that puts to rest the various claims that his extremism-in-defense-of-virtue rulings like McGirt or Bostock were just the inevitable conclusions of strict textualism: the textual analysis in this opinion is little more than mind-reading about what the writers must have wanted to cover and intended to do.
- There could be a statutory fix. Stranger things have happened, albeit not often. I'd not give it good odds, though, not just that the politics aren't in favor of it passing, but also that were it passed, there's no reason for the ATF to not just find the rule it wants again from the breadcrumbs. Once you endorse the dictionary-writers changing the meaning of words to fit whatever goal the Blue Tribe wants today, this sort of fair-weather textualism can be stretched to whatever one side wants.
- This guts the rule of leniency (at least for the purpose of gun stuff). If any interpretation of a rule can defend every interpretation, with a defense limited to post-jeopardy pleadings, people are stuck stumbling in the dark. There's some serious due process concerns, and they are unreviewable now.
- Maybe we'll get some massive revision in other cases on Second Amendment matters, but the tea leaves aren't looking great. Lower courts have been actively and aggressively defy the explicit text of well-settled law and good policy under nitpicking pretext, and there's been no serious attempts to slap them down. Duncan v. Bonta has dropped for a third time, it got the exact same answer as before the last GVR, it didn't even attempt any of the demanded Bruen analysis, and it's so unnewsworthy that if I had to write it up I'd be stuck focusing more on the VanDyke YouTuber stuff. Maybe one of Duncan, Ocean State Tactical, or Snope will get actual per curium rather than a GVR that lower courts resist, but even the actual cases the court hears get multilated by the lower courts, and SCOTUS clearly isn't willing to provide any protection from any of the multitude of abuses of Heller and Bruen we've seen, years in.
- That's two dissenting judges. This court got two. Yes, Kavanaugh separately wrote a concurrence that quibbles about the due process ramifications of only protected because the law requires "willful" violations, but given the ATF's record here and elsewhere, the court's unwillingness to take challenges to other expansive understandings of 'willful', and his inability to get literally anyone to sign onto that concurrence, that's weak medicine. Dedicated activists can take this, along with endless punting on 'easy' cases that would favor Second Amendment rights as a call to bring undeniable cases or to go VanDyke Or Bust for any future SCOTUS noms, but for everybody else, this makes The_Nybbler's position seem the reasonable one. You aren't going to reform the entire judicial system, state and federal, in any living person's lifetime, and nothing less will actually get your freedom back, while talking heads will pretend it's an unabashed success of the conservative movement that they didn't get everything they wanted the second they wanted it. Where planting fig trees makes for a great metaphor, it runs into problems when an entire political movement has been wildly successful bringing the copper nails around every four to eight years. The soap box, ballot box, and jury box might protect someone doing something, but they don't protect your rights.
Oregon Goes To The Purge
The court reaffirmed its provisional class certification of the Custody Class and expanded it statewide. The court then found that Petitioners were likely to succeed on the merits of their Sixth Amendment and due process claims and subsequently “order[ed] that counsel must be provided within seven days of the initial appearance, or within seven days of the withdrawal [of] previously appointed counsel,” and “[f]ailing this, defendants must be released from custody, subject to reasonable conditions imposed by [Oregon] Circuit Court judges.”
Some quick background: the Eight Amendment of the United States Constitution guarantees a right "to have the Assistance of Counsel for his defence" in some criminal trials at certain stages of the trial. There's a whole lot of complexity of where and how that applies, but for those who can't afford a lawyer of their own, for covered crimes, the state eventually evaluates whether the defendant is indigent, and if so appoints a public defender, eg @ymeshkout. But this is neither glamorous, fun, well-paying, or even particularly safe work, so there is seldom a glut of people jumping up and down to do that job.
In 2019, a group called the Sixth Amendment Center was commissioned by Oregon state to review the public defence office, and their final report was highly critical, highlighting heavy workloads and huge pressures to close cases with as few hours as possible. Public defenders in Oregon began (or more cynically, were, given the 6AC report) lobbying for changes to their maximum caseloads and reimbursements, and while it's not accidental that their solution would have involved getting more pay for less work, this eventually did get a cap on maximum cases and some additional funding, targeting an estimated 30ish full-time employees added to 400 then-present. During COVID, a combination of increased juggling of cases due to the slower pace of concluding trials, varying treatments of different classes of crime, (and interpersonal issues) only added to the matter; case backlogs became the norm, instead of a rare exception.
In this case, the jailed plaintiffs argued that they were facing the court without competent counsel, or being held indefinitely before trial, due to the lack of indigent defense available. In several cases, they were arraigned and/or had bail hearings without having seen a defense lawyer.
And as a result, the federal judiciary will be letting them loose on the streets, with a pinky promise to arrest them harder should they reoffend.
That title isn't entirely fair. While the original district court injunction required jails to free anyone who'd been jailed seven days without an attorney, the order was later revised to exclude those "charged with murder and aggravated murder", or who have their release revoked, or who fired their own attorney. And at least theoretically, non-jail custody is still on the table, such as GPS monitoring or probation check-ins, though the majority opinion's logic about their effectiveness ("The dissent does not explain why any of these standard measures would fail") is not the most compelling.
But with the class certification, this applies to all jailed defendants within the state of Oregon and the court not-so-subtly invites further such preliminary injunctions from other states in the 9th Circuit ("The State of Washington is facing similar problems and consequences"). While the initial class claims 'only' a little over a hundred defendants presently jailed, the injunction itself is prospective, binding all future criminal prosecutions, with the corresponding impact on any police or prosecutor interest in bringing such charges.
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There's some obvious system failure/'sleepwalking into disaster' problems, here: the opinion jabs at the dissent near its end with "Consistent with the Sixth Amendment, Oregon could solve this problem overnight simply by paying appointed counsel a better wage. It is Oregon, and not the district court, that created this crisis." The dissent points out in turn that yes, Oregon could pay appointed counsel more, and if that would solve things overnight, why not order that instead?
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((Because the current plan involves increasing pay and additional hiring of almost five hundred new public defenders over the next 6 years, which would double the public defender full-time staff, while absolutely no one retires, moves away, or leaves public defense. Hilariously optimistic and too late!))
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But this genuinely is the sorta thing that can be solved, but probably not in any magic wand sorta way. Six years is a pretty unrealistically optimistic pace for the hiring of five hundred public defenders, but if they'd started in 2019 and then put a stricter limit on caseloads, we'd at least be a lot closer to an actual fix, and even recognizing the benefit of hindsight looking back and seeing 'public defense bill with strong bipartisan support derailed over climate change bill that did nothing' is kinda morbid. It's hard to get good numbers on how many public defenders work different classes of cases, or even what classes of cases fall under each category, but it's also hard to believe that there's been a great focus on optimal allocation of present public defense resources.
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I guess this is someone's idea of solving it? Which points, perhaps, to a more critical problem than even the "sleepwalking into disaster" bit: even if someone else does respond, you might not like their response.
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There's a little bit to quibble about on the logic of the decision itself, most notably as to whether the delays so far were unreasonable enough to require, or that the court hearings so far 'matter' in a way that the Eight Amendment counts -- it's very far from clear that bail hearings would have looked that different with counsel present, given the defendants. There's a lot to be said about motivations: no small number of the actors here are pretty hard on the 'eliminate cash bail' train, and a few want that as part of "limiting the reliance on the formal criminal justice system for low-level, non-violent offense". I can't find direct calls to Defund the Police by the less reputable orgs involved, but I also haven't exactly gone searching.
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On the other hand, just because they're bad in other ways, doesn't mean that they're wrong here. There's little to recommend the phrase "The court required Mr. Owens to waive counsel at that hearing in order for the court to consider releasing him". While many of the plaintiffs face potential sentences exceeding their likely time in jail before trial, the mere possibility of pre-trial time served exceeding a sentence -- of 'sentence first, verdict afterwards' -- makes an absolute mockery of the justice system.
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Even if we were to presume the majority of these jailed plaintiffs guilty (which we're not supposed to do, and there's a slim chance may even be incorrect), there's a bigger problem where thousands of indigent defendants who were released on various bails or supervisory custody already, for court cases that will happen whenever the state gets around to actually having two sides, which means a sizable fraction of those cases probably won't happen. Witnesses will age out or become unavailable or their memories unreliable, doubt increases, chain of custody for physical evidence becomes increasingly tangled, so on. There is actually a federal statutory public interest in a speedy trial, and it's there for a reason.
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There are even some dumb culture war matters. People following the Trump trial in New York were trying to game theory out timelines approaches for federal appeals and kept getting stuck on Younger abstention. Here, definitionally, all jailed plaintiffs were in the first stages of a state prosecution and thus unable to get relief in a federal court, but the Ninth Circuit has given a delightfully fast answer to that: Younger is already screwed when it's Important, "even assuming all four factors set forth... are met".
... some relevant context here:
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Massachusetts isn't a statutory 'sanctuary state', but mostly because the courts decided to do that for the legislature. Most major cities are, or have effective rules equivalent to such, for what little it ever comes up.
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Martha's Vineyard is a 45-minute ferry ride from Falmouth, and from there 2-3 hours bus ride from Boston.
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It's also ridiculously rich and notorious for large and sudden parties: the perspective that it couldn't scale to shelter for 50 really doesn't pass the sniff test.
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There has been over a decade-long and massive surge of undocumented immigrants into border states, almost none of which has particularly been focused on parts of the border which have had shelter capability. Federal ICE policies have, at the very least, minimized the ability, and drastically demoralized any interest in enforcement where it remains possible (cfe 'reins').
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There's been big mess about releasing undocumented immigrants minors in a handful of cities to relatives, 'relatives', or sponsors, which is required in by law and existed under the Trump admin but has scaled up dramatically, with a lot of !!fun!! questions about consent that would normally scare people given ICE Airlines, and abuse of the policy has probably been tied to a recent high-profile homicide.
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A lot of the scale-up of that problem is downstream of aggressively coached asylum claimants, who -- while generally not actually falling under the statutory examples for asylum -- began to be released on recognizance in far more cases in recent years. Which looks a lot like... this, just with different political goals, since in no few cases the admin just bussed the applicants to random cities (edit: which sometimes then bus them again to random suburbs), gave them provisional status, and then shrugged about things like shelter capacity, often to defang criticism about custody numbers. Which, as with other times in the past, people didn't seem to care about.
I'm not a fan of this show-boating from DeSantis, but I don't think "$12 million ‘immigrant relocation program’ Own The Libs/Desantis for President" is a very strong steelman.
gattsuru
9mo ago
Presidential Ballot Access: Ohio Edition
As of today, a state is currently set to only have one of the two major parties candidates for President on the ballot, but it's not the one you might expect.
Ohio law requires that presidential candidates be certified – that is, the state must be notified that presidential candidates have been officially nominated – 90 days before the general election in order to get on the ballot. That is the earliest deadline of any state.
But the Democratic National Convention that will formally nominate Biden won’t open until nearly two weeks after Ohio’s Aug. 7 deadline. The Republican National Convention will wrap up nearly three weeks before the deadline, so Donald Trump won’t have a problem getting on the ballot...
Ohio laws generally take effect 90 days after passage. So a change to the deadline had to pass by May 9, but the Legislature wound up doing nothing.
To be fair, this law has existed since 2010, albeit with a couple past temporary exceptions (probably a compromise number downstream of a 2006 court case over a third-party candidate 120-day deadline; see references to Blackwell and progeny here). and the Ohio legislature (majority Republican) has done nothing less out of explicit desire to screw over democracy and more because the Ohio GOP's House and Senate are fighting each other, and a GOP interest in getting some sort of Red Tribe value out of it (the closest bill, HB114, also bans some foreign contributions to ballot initiatives, for about the reasons you'd expect). DeWine, the (Republican) governor, is pressing pretty hard to find some sort of solution, whether that ends up an emergency legislative fix, hoping the courts can and will step in, or a more dubious executive branch intervention. And it's not like there's any plausible situation where Ohio would be the turning point for the 2024 election.
((There's some theories that Ohio Dems are trying to bolster Sherrod Brown's chances, though I don't think that's very likely or even particularly coherent.))
To be less charitable, nice motive, still excluding a major political party from the ballot. It's not going to be doing any wonders for society, and as we get closer to the election, the available options, whether taken or merely proposed, will only make the mess clearer. The current planned resolution looks to be a 'virtual Democratic National Convention call', officially nominating Biden before the actual Chicago disaster convention. Hopefully, that's enough of an excuse for the Ohio legislative special session to also clean things up, but more likely the virtual call gets counted as close enough for Ohio law (less optimistically, it leaves no one able to challenge it). But the whole thing has just been a parade of one group after another absolutely certain that someone else will fix the problem that they're rolling directly into, and 'it wasn't my fault' is an awful epitaph.
Fauci et All Foiling FOIA
One email refers to a “private gmail” supposedly used by Fauci. Morens also referred others to a “secret back channel” for communicating about certain issues. He also frequently directed others to message him on his personal Gmail account to avoid FOIA requests. Morens also noted he had “learned from our foia lady here how to make emails disappear after I am foia’d.” That individual, who he identified as Marg Moore, “also hates FOIAs.”
The emails also reveal Morens made a series of crude comments about women, female coworkers and his drinking habits which indicate he “is not qualified to hold a position of public trust,” the committee wrote. Morens testified to the subcommittee Wednesday that he didn't remember if he used a personal email to conduct government business, but conceded it was "wrong" if he did so.
None of this is particularly surprising, from a cynic's perspective -- government employees fucking with FOIA requirements is a day ending in Y. There's a steelman where certain scientists involved in climate change research were getting spammed with so many duplicative FOIA requests that it edged on harassment, though given neither Morens nor Fauci every worked in environmental stuff that that's leafspring-grade steel.
There's no serious chance of serious punishment, here: Morens was already investigated and found not guilty of anything that the NIH cared about, and if anyone has problems with him lying to Congress, well, there's some fun legal realism questions about whether the law is the statute or the enforcement, but the enforcement still comes from one place.
On the other hand, it does seem enough to have pissed off no small number of partisans aligned to that One Place, if, cynically, more in the sense that Morens et all got caught. HHS is at least moving against EcoHealth Alliance. If you were to ask what one would consider a good sign, well, there's certainly end results that could point to people taking this seriously.
Title VII Religious Freedom in California
Another day, another VanDyke dissent:
In its stubborn insistence on ruling against Chief Hittle, the panel has twisted the record into knots and badly misstated Title VII law. Its decision (1) abdicates its responsibility to read the record in the light most favorable to Hittle at the summary judgment stage; (2) allows employers to escape liability for repeating discriminatory remarks simply by hiding behind those who say them first; and (3) mangles Title VII’s “motivating factor” analysis.
Perhaps most glaringly, its original opinion also incorrectly heightened the showing a plaintiff is required to make to demonstrate disparate treatment. In the panel’s view, Hittle bore the burden of showing that the City’s discriminatory conduct was “motivated by religious hostility,” notwithstanding the Supreme Court’s admonition that such a plaintiff need only show he was “intentionally treat[ed] … worse because of” a protected characteristic, Bostock v. Clayton County.
Recognizing at least this last mistake, the panel’s amended opinion retires its former use of the word “hostility,” replacing it with the more accurate (but less specific) “discriminatory animus.” Not only do those changes not fully fix the original opinion’s legal errors, but they also put the panel, which apparently remains as determined as ever to rule against Hittle, in a pickle.
Notwithstanding its many other errors, the original opinion correctly acknowledged that the “gravamen” of the “notice terminating Hittle was the religious nature of the leadership event.” But if attendance at a religious event was the “gravamen” of the firing and Hittle need only show that he was “intentionally treat[ed] … worse because of” religion, Bostock, 590 U.S. at 658, it would seem the panel would have no choice but to reverse its previous decision in favor of the City.
But it won’t.
We've had discussions here about a more expansive framework for discrimination, but this seems the punchline. Title VII has prohibited religious discrimination in hiring and firing of employees for sixty years, and while the exact borders of the doctrine have ebbed and flowed from one jurisdiction to the next, or as courts have pushed at the very edges, trying to bring them to these style of cases has been an expensive shitshow, where even the lucky winners spend decades for minimal defenses. Even defining this class of cases is a mess: I want to say discrimination against the 'majority' (but anti-woman discrimination is clearly covered!), or 'non-subaltern' (but trite agnosticism is protected, he says as a trite agnostic), rather than just Groups Progressives Want To Discriminate Against, and that's kinda the problem.
However, that punchline's also a bit of a repeat: not just that VanDyke is writing his dissent at an en banc appeal that had no chance of victory, or that the original opinion had to be edited to not be hilariously wrong, but that Kennedy went to and was decided by SCOTUS almost a year before the original appeal decision came from the 9th Circuit. The facts in Hittle are different, sure -- Stockton alleges, not very credibly, that they 'really' fired Hittle for endorsing a consulting business and for not disclosing closeness to a union president -- but the courts were (supposedly) not yet deciding facts, but merely the motion for summary judgement.
Instead of motions for summary judgement focusing on questions of law, various balancing tests and excuses can fall into play where judges don't like the plaintiff's perspective. Instead of protecting Hittle against employers that were outraged by his place in a complaint-named 'Christian coalition', the law in California now holds that there is a "legitimate concern that the City could violate constitutional prohibitions and face liability if it is seen to engage in favoritism with certain employees because they happen to be members of a particular religion." Sure, that anti-endorsement test had been explicitly rejected contemporaneously to and previously by SCOTUS, but SCOTUS "can't catch 'em all", and increasingly doesn't seem interested in trying.
That failure mode isn't and wasn't inevitable: despite my expectations, Fulton hasn't come back to the courts (yet). But it's a problem that haunts any attempt at legislative or executive branch 'fixes'.
((At a more concrete level, Hittle was fired in October 2011, at a time where he was nearing age 50. The unusual length of the court case here reflects Stockton's bankruptcy rather than overt malfeasance specific to him, but it still means he's in his mid-60s today. Even should, SCOTUS hear this case, overturn it, remand with direct instructions, no further interlocutory appeals or weirdness occur, and the trial occur speedily, he might see a court room on the facts before he self-moots by old age, but probably not before he sees his 70th birthday.))
An Appeal to Heaven
Compare February and to May. Diff, context. Also see here, and here.
The Cloud is Someone Else's (Broken) Computer
Unisuper is an Australian superannuation fund, which is close enough to a psuedo-mandatory version of American retirement funds. AshLael might know the more specific differences. It has 600k members, about one in fifty Australians, with over 125 billion AUD (~88 billion USD) funds under management. It also fell off the internet on May 5th, only restoring full functionality May 20th, allegedly as a result of a 'one-in-a-million' bug in Google Cloud services dropping both the main Unisuper database and all Google Cloud backups.
UniSuper had duplication in two geographies as a protection against outages and loss. However, when the deletion of UniSuper’s Private Cloud subscription occurred, it caused deletion across both of these geographies.
Restoring UniSuper’s Private Cloud instance has called for an incredible amount of focus, effort, and partnership between our teams to enable an extensive recovery of all the core systems. The dedication and collaboration between UniSuper and Google Cloud has led to an extensive recovery of our Private Cloud which includes hundreds of virtual machines, databases and applications.
UniSuper had backups in place with an additional service provider. These backups have minimised data loss, and significantly improved the ability of UniSuper and Google Cloud to complete the restoration.
This is a little weird, and not just for having an actual benefit from multicloud. Google Cloud Platform doesn't have the best reputation, but 'keeping multiple copies of long-standing data' is one of those things cloud providers are supposed to excel at, and having first disclosure come through the client rather than the cloud provider is a decision that Google Cloud didn't have to make. There are even arguments, a la Patio11-style, that part of what a client Unisuper's size is buying from a cloud provider is to have a name to fall on a sword. This has lead to no small number of people reading tea leaves to conclude that the fault 'really' reflected an error by Unisuper (or a separate smaller contractor) making a configuration mistake. Unisuper was migrating from VMWare, which has its own mess, and is exactly the sort of situation you would see greater vulnerability to client developer error. That still wouldn't be great for Google, since most cloud providers at that scale claim a lot of safety checks and emergency backups, but I could understand if they just failed to idiot-proof every service.
Nope :
During the initial deployment of a Google Cloud VMware Engine (GCVE) Private Cloud for the customer using an internal tool, there was an inadvertent misconfiguration of the GCVE service by Google operators due to leaving a parameter blank. This had the unintended and then unknown consequence of defaulting the customer’s GCVE Private Cloud to a fixed term, with automatic deletion at the end of that period. The incident trigger and the downstream system behavior have both been corrected to ensure that this cannot happen again.
We probably won't get a full breakdown until the Aussie regulatory agency finishes an investigation (if then), so there may always be more to the story, and a lot of fun questions about what, if any, data was out-of-date or lost from the backup. But this is pretty damning for Google, as things stand.
On one hand, this probably is a one-in-a-million bug, and readily closed. On the other hand, as anyone with network engineering or statistics or X-Com background can tell you, one-in-a-million means a lot less than the naive expectation, and Google Cloud Platform has an estimated just under a half-million business customers, and this is an embarrassing bug.
Does that mean that they're got it out of their system for another million customers? Or that this is just the first time it happened and was big enough a deal to make the news?
((Okay, the real answer is I'm being pedantic and reading too much out of a turn of phrase.))
The bigger problem is that Cloud has long been sold as The Professionals Doing It Right. That was always a little more true at the margins than the center. As bad as rando small businesses trying to maintain a Gitlab instance can get (and it can get bad: even by web software standards, it's a masochist's tool), no small number of seemingly-legit smaller cloud providers have gone belly up, wildly revised their offerings, or just plain disappeared. It's quite possible that Unisuper moved to Google Cloud in part because the Broadcom buyout of VMWare (only finalized in December 2023, but after 18 months of regulatory review) raised concerns that they'd start lopping down product offerings.
(But to move to Google?)
It's increasingly tenuous, here, though. Unisuper are not fresh college grads confused by the difference between a RAID and a backup, but a massive company that maintains many sites as a matter of course. Google is one of the Big Three when it comes to cloud provisioning. One can imagine counterfactuals where a self-run or classically-hosted Unisuper herped the derp, but the factual here makes them look like the competent ones. And that's not alone.
Which would be one thing if Unisuper were the only people pressed into cloud services.
How's everyone feel about OneDrive integration in Windows, or Google and Apple cloud in their phones?
For largely dull reasons... the conference became more important over time and was eventually attended by many European and later world leaders, often for many of the same reasons noted above... Nobody has ever attended his conference to hear what Klaus Schwab has to say.
Another, unmentioned and even more dull reason's that Schwab charges quite a lot for corporate access to WEF (along with a ton of donations etc), while giving free access for politicians, NGOs, and media, along with offering a lot of very favorable amnesties. That's not an unusual form of scratch-your-back just-pols-being-pals, but it's a lot about how a lot of this runs.
The quote actually came from the relatively kooky Danish socialist politician Ida Auken, who used it in predicting a kind of utopian-dystopian society, in which people in wealthy communities were prosperous and able to rent whatever they needed (houses, cars, vacation homes) cheaply, with goods delivered by drone, while a great population of poor people would live 'outside the city', struggling to survive. This prediction, a dull mainstay of science fiction from the 1950s onwards, was misinterpreted by some social media manager for the WEF as a purely optimistic forecast, and then inserted into the Facebook video.
There's a certain risk involved whenever writing dystopian fiction, as any serious reader of Huxley knows, but I don't think this an accurate summary in the slightest. In particular:
My biggest concern is all the people who do not live in our city. Those we lost on the way. Those who decided that it became too much, all this technology. Those who felt obsolete and useless when robots and AI took over big parts of our jobs. Those who got upset with the political system and turned against it. They live different kind of lives outside of the city. Some have formed little self-supplying communities. Others just stayed in the empty and abandoned houses in small 19th century villages.
To steelman, there's a Huxleyian "I’m really awfully glad I’m a Beta, because I don’t work so hard", where this is supposed to be the measures imbued into the speaker's preferences changing their opinion and perspective, rather than outside measures of value or those measures from the view of the described group. But it's a really reaching one and very hard to make compatible with the buzzword-laden groping that the writer gives otherwise: the City is nearly free, closer to 'nature' (or at least the City's version), long-lasting goods with a variety of environmental and practical benefits, yada yada. The intuitive read is not people who were poor, and it's notable that the lost are separated not by those who were obsolete by robots and AI (the viewpoint character themselves seems in this category, given "When AI and robots took over so much of our work, we suddenly had time to eat well, sleep well and spend time with other people."), but those who felt obsolete.
The former stems from a 2017 twitter post by the leftist magazine 'Mother Jones' (which, by the way, made fun of the idea of eating bugs) and some human interest stories by food blogs about eating bugs, which is common in some countries and so hardly particularly modern or degenerate or whatever, that noted their farming emitted less methane than cattle farming.
That's... a bit of a weakman. "Some human interest" stories are coming at a near-monthly pace not just from food blogs but a half-dozen times in the NYTimes, TIME magazine lauded a Clinton initiative, so on. "I will not eat the bug" became a meme because it keeps fucking coming up.
Now, I don't like lobster (or crab, or most other shellfish), to the point where I prefer 'imitation crab sticks' even in sushi, but I also like cinnamon in chili and pineapple on pizza: my tastes are... unusual. And as a furry, in general I kinda need to support the rule de gustibus non est disputandum. If someone wants to chew down on a nice tasty roach, I'm not gonna join 'em, but that's their opportunity.
Except one can't help but notice that this comes at the same time and from many of the same outfits also curiously interested in making beef more expensive and less available -- and you can't help notice it because the same sources will happily make the link for you. Sometimes it's for health reasons, sometimes it's cow farts, sometimes it's land usage, and sometimes it's whatever new purpose of the day pops up.
And yet it's there.
The latter phrase stems from a 2019 WEF report on housing options in densely overcrowded cities that notes possibilities in 'tiny homes' or shipping container apartments to create more 'affordable housing'. That these housing options might be much better than what the average proletarian in Chennai or Chengdu currently has was the point, rather than to force affluent American picket fence suburbanities into modern banlieues.
Again, this is a bit of a weakman. This one's a little harder to show since so many of the search times are bloated with shipping container houses, but even ignoring them as noncentral there's still an absolute ton of emphasis among an amazingly wide number of sources promoting tiny living spaces while (more importantly!) attacking and arguing for state restrictions or discouragement of more conventional living conditions. More broadly, it's also the subtext for almost every complaint about suburbia and a lot of the complaints about 'auto culture'.
And I think this focus on weakman kinda undermines your point. Contrast:
In the mid-2010s, a bizarre conspiracy theory emerged in which Klaus was a central figure in a cabal of illuminati-esque global elites who got together to plan their annual strategy at the World Economic Forum, as the conference came to be known, each year.
from your op, with the later
The argument isn't that the WEF isn't a generic neoliberal organization, it's that it's (a) powerless and (b) doesn't really stand for anything outside the status quo. The UN is also a broadly progressive organization, but that doesn't make it not powerless.
The "bizarre conspiracy theory" you originally brought up wasn't that the WEF has secret police powers and its own army, or that it's proposing some nightmare vision scifi dystopia only one man would want otherwise. I mean, I'm pretty sure someone has proposed that, if only because there's a lot of nutters out there, but it's still not the actual softball you t'd up.
It's that Schwab was a leader of a group planning their dire acts. Which, to be fair, is still wrong: he's 'just' bringing a whole bunch of people together, pointing the ideological to the powerful, and selecting which match his viewpoint. As you say, he doesn't have the breadth of vision or charisma to really drive people. But that still does have a ton of powerful people and corporations meeting and listening to his carefully-selected goals that happen to overlap with theirs, which they often go out afterward to use their power to implement.
That tells us that if Schwab made the wrong stock picks and went backrupt and the WEF disappeared, these positions wouldn't go away. The commonness of this sort of giant coordination conference, if seldom so high-profile or large-scale, tells us that it isn't and never was the only coordination mechanism. But it doesn't tell us whether the WEF acts as a significant coordination mechanism.
I'm actually struggling to think of anti-racist slurs? "Colonizer?" Maybe someone says that and right-wingers feel unwanted, or doxxing threats make them feel unsafe. It's also possible that the community enters a purity spiral and implodes. But this is rare, because we're talking about boring hobby groups, not activists.
I'm... not sure this is a good model. This is from a little over a year ago, and it's not exactly slowed down.
Since, the RPGNet forum has a new header, proudly informing everyone that "With abortion and birth control rights threatened both around the world and particularly in the United States, RPGnet believes that reproductive rights are human rights. We're committed to that, and will sanction posts supporting anti-human-rights positions." A quick look through the rules forum shows examples like this. The person who ran a Minecraft server I contributed personalized code for wrote, casually, about how proud they were to have personally punched a Prop 8 funder. I've got a lot of sympathy for the Quilt side of that culture war, but it's not like it's hard to find loads of conversations in the Quilt Discord hunting for even a sniff of 'right-wing' alignment and shutting down conversations or people they see as doing so. There's been a 'fun' battle in a STEM outreach organization I volunteer for, less about the LGBT and pronouns pins (fine), and more about any team where the mentors show too much discomfort with them (understandable if not great), and what needs to be done to move students (little paranoid) and resources (problem!) around that.
Now, people have a right to not be perfectly accepting and making everyone feel safe, competing access needs, yada yada. But it walks like a duck, quacks like a duck, and self-identifies as a duck.
But at a deeper level, I think the inability to even think of anti-racist slurs is... kinda showing a big blind spot. Even for that specific example! Karens (and their distaff Kevins), MAGAtards, so on, are all 'about' racism. Do you think "Nazi" is a real specific term describing an ideology, or a boo-light? How about "reactionary", whether on twitter or coming from the President of the United States? And that's ignoring the complex ones, like 'alt-right' or 'white supremacist/nationalist' (which sometimes actually means that, rarely even by self-identification, but just as often means 'somewhere to the right of President Obama in 2014).
And it's not like those are special. Outside of race, "gun nut" was reclaimed, but want to know a place where you can call people groomers on Twitter? These aren't slurs in the sense that a lot of the progressive movement cares, and I've had long debates with TraceWoodgrains about the bounds of it... but that's kinda the point.
gattsuru
11mo ago
Perhaps my conception of "real person" exists far out on the tails of reality, and people acting like ActBlue or MAGA surrogate shills online is a totally normal behavior for an average person to engage in.
I think it's even worse than that. It'd be one thing is this was just social media getting to a mechanic that thinks a 'clever' Dem-politician pencil-holder is funny, or a moron with a podcast that can't read.
This is the official GovTrack mastodon account, a site that people here use, myself included. Axios just revised a three-year-old story today to remove 'border czar' from Harris' list of accomplishments. Elon Musk put tens of billions of dollars into twitter to shitpost, and does it badly. I've worked on open-source code with someone who was really proud of having physically attacked Brandon Eich, and that's far from the worst I've seen there; my boss and a coworker have a conspiracy theory about the FBI and the Trump assassination that would be fascinating if they weren't doing it in a business meeting; a forum that once was a mainstay for me blocked discussion of the Trump assassination attempt as a thread the day of (literally as the second post) and never discovered one made the day after. KelseyTUoC spent the better part of a decade as part of the EA community, earned Scott Alexander's respect, and then got to work at Vox... except it was a problem before then, too.
These aren't astroturf, or rando nutjobs who have nothing to their name but politics, or AI, or rats following the Pied Piper, or nineteen-year-olds fresh-faced to the internet, or whatever. This is what they are under the mask.
Beneath that, Trace and Its_Not_Real have been having a twitter debate over The Machine and its output, and I think it's bad enough that Trace's defense is literally pointing to "Hanania/Karlin", but the more critical problem is that even were it true (which I'm far from sold on), The Machine has lost any capability to credibly present the truth, and very few people care.
I wrote, three and a half years ago, about how I didn't see a path back to trust in academia. But why would they care? In many ways, things have gotten worse for the academics, but academi_a_ has been doing fine. Even individual schools and journals with massive scandals have quite happily shaken them off and gone right back to it. Sometimes bad actors manage to get fired, but sometimes they get a TV show. In some cases, and I'll point to Wansink again, the policy proposals and even individual papers don't suffer much even after everyone discovers they were always made up from whole cloth.
Why would anyone expect that to stay to one poorly-demarcated field?
Colgan Air 3407 was a 2009 aviation disaster, where regional commercial airliner on final descent to Buffalo New York stalled and crashed, killing all on-board and one person on the ground. For those interested in more precise details, the NTSB report is here, while MentourPilot has a video breakdown of the timeline and personnel here.
The majority of US airline disasters leave an impact on airline regulation and aviation in general, if sometimes not quite enough, or only after a delay. While far from the most deadly western air disaster of the the time, or even the worst western stall-related crash of that year, CA3407 had an unusual impact. Where older historical reports are filled with tragicomedic disasters and near-misses, the majority of recent accidents tend to rest on extremes, where either mechanical problems coincided with areas well outside of training focuses encountered pilots who made heroic efforts, or where pilots operated with long periods of outright disregard for safe operations, with perhaps a scatter of situations where bad practices mixed with mechanical error.
Instead, CA3407 fell due to a few seconds of phenomenally bad judgement by its captain encountering a spurious stall warning. Stalls are caused by insufficient lifting force on the wings, usually due to insufficient airspeed or high pitch (more rarely, extreme icing). Stalls and especially low-altitude stalls reflect fundamental aspects of flight, and pilots will do simulator (and sometimes real-world) drills both directly focusing on them, and on weather conditions that can induce them, such as microbursts. They're probably just up there with single-engine-out procedures for matters that a pilot should know by heart.
The normal behavior for a low-altitude stall is to give as much engine power as possible, with wings level to the horizon, until airspeed recovers. Instead the captain instead increased speed to a lower threshold and then pitched up well above the horizon -- a behavior that would have doomed a stalled aircraft had that warning been correct, and in normal landing profiles initiated an extreme stall. Worse yet, the time between the initial spurious warning and impact with the ground was less than half a minute; the aircraft was probably only recoverable in the first five to ten seconds, making takeover of effective command by the first officer impossible. While the first officer may not have been physically able to override the pilot's erroneous control behavior, if she had been willing to defy protocol and procedures, her response of lifting flaps was likely not harmful but neither procedurally correct nor helpful.
Like most incidents, there was no one single cause. The NTSB mentions pilot fatigue (and first officer illness), weather, flight manual inconsistency, and the combination of a first officer new to commercial flying with a pilot-in-command who had just moved to a new aircraft, among others. Training at the time would emphasize maintaining altitude during recovery, which made historic sense when terrain and obstruction information around airports was not always great and aircraft power profiles looked different, but was increasingly outdated around modern airports and unrealistic in modern aircraft.
But pilot capability was the big one. CA3407's pilot-flying and pilot-in-command had many hours experience, but also had a spotty training and especially checkride record. Checkrides can be considered the 'tests' for aviation certification, where the pilot flies along with an FAA-registered designated pilot examiner to undergo certain practical tests. The pilot in command here had four checkride disapprovals (effectively failures) across his career. While individual disapprovals at checkrides are not uncommon and do not necessarily indicate serious problems if corrected, these tests are neither convenient nor inexpensive to set up, and a pattern of first-attempt failures can, to quote the NTSB report:
"However, the captain’s established pattern of first-attempt failures might have indicated that he was slow to absorb information, develop skills, and gain mastery or that the training he received was not adequate. This pattern might also have indicated that the captain had difficulty performing required skills while under the stress conditions associated with a checkride."
((Though the FAA does not necessarily agree here; it holds that there is almost no correlation between checkride failure and later citations... which is a bit streetlamp-examination. But where CA3407's pilot would be in the bottom 5% of commercial pilots by simple count of checkride disapprovals, I absolutely agree that this isn't proof he was in the bottom 5% of commercial pilots by ability.))
This issue gained additional poignancy in public awareness due to the voice recorder conversations shortly before the crash, where the first officer discussed her unfamiliarity with icing conditions before being hired to Colgan, and the pilot mentioned his own employment history with the company.
Flight certification is heavily controlled by a new pilot's logged flight hours, with different licenses and certifications requiring certain thresholds or conditions of hours in a pilot's logbook. These hours aren't all literally flying, with some complex rules about what simulator hours can be logged in different grades of gear. Since an hour of flight can cost 100-300 USD/hour (and even BATD/AATD simulator time isn't free), including fuel and aircraft maintenance, optimizing hours someone else is paying for matters a lot.
Before 2009, one common route for new pilots involved self-funding their way through the private pilot's license and commercial license with instrument cert, which usually meant 150-300 hours, then zooming off to whatever regional airline needed first officers. While those first officers would not (and could not, legally) be pilots in command for the next 1200-1350 hours of flight, they would still get experience as pilots-flying and have time with various airline training and currency checks. Only then could they apply for an Airline Transport Pilot license, necessary to operate as a pilot in command. In theory, this would give a lot of experience in a variety of environments, most closer to 'real' pilot operations and some of which (like icing or flying near New York City) general aviation avoids like the plague, while still having the eyes and hands of an experienced pilot nearby to watch, and to catch any obvious faults.
After 2009, that was illegal. In response to CA3407, Congress passed the Airline Safety and Federal Aviation Administration Extension Act of 2010, which along with mandating a system for employers to more readily learn about applying pilot's past records (not finalized until 2021!), mandated that both the pilot and copilot of a commercial scheduled operating have an ATP. While a few exceptions were carved out (a new license, the ATP-r, was made available for pilots with a four-year pilot's degree, or two-year pilot's degree, or military flight training, at 1250 hours, 1000 hours, 750 hours, respectively), this rule remains today, and it has had no small effect on both the availability of airline pilots and their possible career paths. That's not as vast a change as it appears at first glance -- almost every airline had stricter hour minimums for hiring -- but it still significantly increased the number of hours a pilot would have to get on smaller aircraft first.
The argument is that many first officer roles would look to have a lot of varied flight experience, while not actually flying a plane most of those conditions. Pilots had to get a certain number of hands-on-stick landings to maintain currency, but a pilot-in-command would and often should take over landings and takeoff from a first officer in bad weather or awkward conditions. Especially in recent years, a lot of time would be flying the computer to set autopilot controls and monitor instruments mid-flight. To the extent small problems might show up, it would be very hard for documentation of those problems to show up if a pattern of. By contrast, flying a contract plane or as the flight instructor leaves you responsible for the safety of flight, and even recovery of a serious incident can and often is recorded.
And that argument is controversial. For CA3407 specifically, both pilots had significantly more than 1500 hours at the time of the crash, and while the pilot had earned most of his pre-Colgan hours at a flight school emphasizing bigger birds, the first officer had earned a lot of her hours as an instructor in a flight school. It's not clear that the theoretical argument applies, and there are some arguments against it. While not all arguments against are all well-founded (the rule is a little more complicated than allowing you to just log a thousand hours of tethered hot-air balloon time, even before considering that even overseas airlines would laugh you out of the office: pilots everywhere hate ballooners), some are more reasonable (flight instructors and flight schools will avoid many of the critical conditions and some aren't great about required incident reports, general aviation equipment in even newer aircraft is vastly different than even old airlines). While some groups like airline pilot unions have been strong advocates for the rule, there's reason MentourPilot and AOPA argues against it -- and there's more general-aviation pilots wanting in than airline pilots pissing out. Funding 1500 hours or a 4-year-degree in aviation is ludicrously expensive, and while some commercial operations remain legal for commercial-equipped pilots, the whole ecosystem is a mess, with a glut of flight instructors and contract pilots mixed with shaky demand for training and contract work. On the other side, when airline pilot demand is high, this has lead to flight 'clubs' or 'schools' that exist solely to burn hours and gas at the bare minimum of familiarity, or even airlines 'hiring' near-threshold pilots to build their last fifty or hundred hours in a rush. These markers are (and even pre-2010, were) disfavoured in airline hiring practices, but their increased prevalence makes them harder to filter out. The limited availability of pilots has even lead to consideration of tradeoffs against other forms of fitness, such as boosting the mandatory retirement age or decreasing flight medical rules. I'm generally against it, albeit not very strongly.
Ultimately, if this rule is a test of merit, it's a weak indicator, and selected more for convenience and politics than as the best option.
But enough about such culture war questions like pilot training requirements or FAA reporting guidelines. You know what nobody hates each other about yet? Race and (dis)ability!
Wait.
The FAA promotes diversity, and has for some time. Insert the joke about autistic people and transportation obsession here. The matter, however, got some increased traction after A Certain Someone on X Twitter highlighted a few sections of a Boeing DEI statement, and this quickly turned into discussion about what exactly that might mean, especially as diversity might include air crew entirely of one race for a flight (Canada, not US). And to be fair, there are no small number of nuts to pick who blame DEI for every fault, or popular idiots who think everything the FAA does involves their eyeballs, or who are using the matter as a poorly-camoflauged way to hate black people.
I am and long have been skeptical of the racial explanations for entire continents, and especially given the selection effects present for pilots, I am skeptical of any claim that African-American (or female, or gay, or whatever) pilots are categorically different in skill. Especially in the modern day, the Damoreish arguments don't apply: no one falls into commercial aviation, and everyone who tries to work in the field is fascinated by it to a large extent. What does it matter, here?
Because I have seen people say things like "The worst case for DEI is ending up with the lower end of the top 1% of candidates - where the difference between the best performer and the lower performer is measured in tenths". And there's some fair discussion whether the pilot of CA3407 was merely the lower performer, or so low he should not have been considered.
But that's not the option on the table. All the children in Lake Wobegon can be above-average compared to the country; not all of the country can be above-average compared to itself. Individual businesses or (possibly) entire fields could, perhaps, attract the 1% of subpopulations, and still remain at 1%-level capabilities: there are enough African-Americans in the United States that the top 0.1% could fulfill all pilot demand, even though I expect the majority have better things to do with their time and abilities. Piloting and the FAA are not the only places looking to fulfill DEI objectives. They are not the only one of ten commercial-pilot-sized places looking to fulfill DEI objections.
To be fair, there are other groups discrimination in hiring DEI hopes to help. We might just be downscoring half of qualified applicants in a crowded field, on matters completely and totally unrelated to their merit, rather than six out of seven.
There are ways to credibly challenge whether this is a problem. Perhaps training or experience matters more than innate ability; perhaps structure . Perhaps eventually everyone becomes a minority in some way; perhaps the position of modern equality has minorities as most equal.
But to suggest that the difference can't matter is to overlook literal piles of charred corpses. To complain that one extant metric is not optimally tied to merit while glossing over a new one that is disconnected from it does not strike as serious engagement.
gattsuru
1mo ago
... it's funny seeing the well-funded national org use worse surveys than I, a rando, threw at amadan offhandedly; it's funnier that they can't spend five minutes on tumblr to actually get a good summary of what Luigi fandom looks like.
(tbf, we are talking tumblr or instagram or tiktok or discord or a punk meatspace group)
The cynical answer is that the NCRI, specifically, is not some neutral true-seeking organization anymore than the Princeton Gerrymandering Project was. They were founded in 2018 as part of an effort to fight the alt-right, and came to national attention after a series of reports in that started with Boogaloo panicking ("this, like turning off the transponders on 9/11, enables the extremists to hide in plain sight, disappearing into the clutter of innocent messages, other data points"). The org pulls in increasing amounts per year (1.45m in 2023) and lists its address as an office park that (at ~5k/year rent) is probably little more than a PO box -- I can't say for sure that they're a cutout for another org to whitewash funding the group, because they fall under the threshold that breaks down how their income works, but there's not-subtle hints pointing that direction.
Yes, they're also probably just left-leaners given that they're pulled from the left side (Princeton, Rutgers) of academia to start with, but they're were built from the ground up to find specific enemies. It's certainly possible that they're trying to pander to Trump, or suddenly reveling in their newfound freedom to see the nose in front of their face, but there's a bit of a blander option: they think these specific groups are in their list of enemies to be targeted, too, and they want to shape how that discussion goes so the people they don't consider enemies are well outside of it. Beware outgroup homogenity bias.
That's why they're not doing a retrospective and suddenly finding any of the literally years of punch nazi discourse, that's why there's no comment on a Certain Topic That's Supported In Princeton, that's why their list of incidents is so short and circumscribed, that's why they can only model left-wing violence as authoritarianism, that's why their 'left-wing' authoritarianism is so obviously post-hoc and cumbersome (antihierarchical aggression, anticonventionalism, top-down censorship aren't just awkward mirrors to their 'right-wing' counterparts, they're not even accurate names to their own descriptions).
Compare ProPublica writing a big story on H1-B abuse without using the word 'fraud' a single time.
gattsuru
5mo ago
Actually, now that I think about it, I think if Trump supported the LGBT population, was pro-sex education, or something else very much so not socially conservative, I believe it’d do it.
Those are some interestingly selected examples. Let me go grab a big drink of water and -
... are you intentionally trying to channel Darwin levels of being wrong for the engagement, or does this mean anything?
By "almost zero", there has literally never been confirmed case of squirrel-to-human rabies transmission. It's not the same level of literally impossible as doing the same to a possum, who just can't get the disease, but it's extremely hard to read as anything but a pretext such that any challenge to the 'investigation' would be moot.
As... evidenced by the bit where they euthanized the raccoon, too. Though from what I can find, it looks like that the DEC started with the raccoon and the squirrel was a side benefit.
The whole thing is fractally stupid. There's a layer on top of things where I'd love to debate the merits of laws against keeping wildlife as pets -- tbf, they don't make good pets! But given that the laws are near-always originally meant for more like Florida Man Tiger King bullshittery and inevitably turn into a vehicle for various 'born free' morons to euthanize squirrels and ferrets on their way to eliminating cats. But New York, at least on the books, doesn't ban this: there's a mess of licensing for 'exhibition' of 'dangerous animals' like the raccoon. The potential for handling these matters exists, the government just didn't want to handle it like mature adults.
I expect some of that's the squirrel's owner being a bit of a putz, but 'we just abuse power when the target is kinda annoying'.
But like the recent revelations in the Penny case, that's kinda the point. There's no putting the toothpaste back into the tube, here; there is no meaningful way to challenge it.
The Ninth Circus vs. VanDyke: Collegiality Edition
Duncan v. Bonta ('large' magazine ban) has had another order issued en banc. Like Duncan v. Bonta in 2021, the 9th Circuit has, to the surprise of no one with a pulse, issued a stay against gun rights.
About the only silver lining to that cloud from my perspective is a cheeky VanDyke dissent. And as you can guess when Hurwitz leads by trying to play cleanup and to bash the "rhetoric" of his colleagues (just like in the 2021 Duncan), this one's a doozy.
Where VanDyke's McDougall opinion included predictions of and draft copy for an en banc reversal that would find the Second Amendment covered nothing (which I almost thought would turn out pessimistic given Bruen, until the case was shoved to the lower court decided again that the Second Amendment covered nothing), this is 'just' an administrative stay during appeals, and normally such deep discussion of philosophy of law would be unnecessary and unexpected. Instead, VanDyke looks to the past in today's piece:
Apparently, even summary reversal by the Supreme Court has not tempered the majority’s zeal to grab this case as a comeback, stay the district court’s decision, and make sure they—not the original three-judge panel—get to decide the emergency motion (and ultimately, the eventual merits questions) in favor of the government. I think it is clear enough to everyone that a majority of this en banc panel will relinquish control of this case only when it is pried from its cold, dead fingers. And I think it is clear enough to everyone why...
"Comeback" cases reflect Ninth Circuit Rule 3.6 here. Butamay previously pointed out that he knew of literally no cases before where the 9th Circuit has taken a "comeback" case and made decisions at the en banc for an emergency stay rather than returning it to a normal appeal, and despite the majority's claims this is by-the-book it's also hard to miss that the ink on these books are so fresh. The "comeback" rules date back only to 2016. But that's just normal calvinball. Worse:
But the current irregularities highlighted by Judge Bumatay’s dissent are not the only way this case continues to demonstrate our court’s enduring bellicosity toward the Second Amendment. The irregularities in this case run much deeper— indeed, all the way back to when this case was first called en banc. This en banc panel was born in illegitimacy, and this case should never have been taken en banc in the first place.
After the three-judge panel first issued its opinion in August 2020, one judge on our court requested Rule 5.4(b) notice in three cases (including this one) but then inadvertently missed the deadlines to timely call the cases en banc under our clear rules. That could happen to any judge. But rather than simply accepting the result dictated by our rules, or even deciding as an entire court to waive our rules, we went in a different direction. First, the decision was made by someone— not by the rules, or even the entire court—to allow the respective panels to waive the deadlines on behalf of the entire court. Then, the campaign started: earnest conversations were had, hearts were poured out, tears were shed, and pressure was applied to the panels with mace-like collegiality. And in the end, a discrete collection of judges—again, not the entire court—struck a “compromise,” circumvented our own rules, and allowed the en banc call to move forward. But only in this one case. The agreement was made to call this case but drop the en banc calls in two other cases—_including a death penalty case_. Priorities.
I'd be a little interested to have names, here, but it's not clear even this description gives enough detail to go digging: GO5.4(b) notices aren't covered by courtlistener or the 9th Circuit's website.
We have a process for suspending the rules, upon a vote of the entire court. See 9th Cir. General Order 12.11. But no judge tendered a Rule 12.11 request. Instead, this was handled off the books by a handful of judges. Which makes it even worse. This off-books approach allowed the would-be en banc advocates to pressure the panels to be “collegial,” and simultaneously concealed these conversations from the rest of the court. It also delimited the scope of the question to whether we would “bend the rules” and allow some exceptions in three specific cases, which prevented the entire court from considering the weightier question of whether, as an institution, we should be suspending our settled rules for “particularly important cases.” Such agreement—however procured—does not somehow confer legitimacy.
In sum, not only is our court treating this case “special” now, but the process that brought this case en banc in the first place was illegitimate from the start. This demonstrates and perpetuates this court’s anti-Second Amendment posture, rewards the weaponization of (one-sided) collegiality, and damages the internal and external integrity of the court. How are we to uphold the rule of law, and reassure the public we are doing so, when we disregard our own rules and make questionable decisions like this behind closed doors?
To tl;dr: the 9th Circuit has broken its own rules on a case, of the exact sort of behavior normally considered a right-wing conspiracy theory, in order to more expediently fuck over the rights of American citizens, and this was not revealed for nearly three years.
Hurwitz's concurrence does not even contest this claim. Nor does any other part of the court.
I'm not going to make predictions, here. We are talking the same judges as the 2021 appeal and its effervescent logic -- judges willing to play so heavy-handed with the balancing test then will just as easily find historical relevance in their tea leaves -- but in turn there are some fun tactical considerations that might slow them. But on the gripping hand, the nature of this matter as an interlocutory review, leaves a lot of ways to diddle the schedule. There is no meaningful procedural appeal for a federal circuit court of appeals breaking its own rules, especially since the case has already gone back up and down from SCOTUS since. And there's no tort for being a rules-violating judge, even were judges not completely immune to lawsuit for their actions related to their jobs.
But one could understand why I'm very skeptical that Hurwitz's pretense this is 'just' an emergency stay will age well. And more broadly, to find that not only have the people in change of arbitrating the rules not only put a thumb on the scales -- long common knowledge -- but have broken and hidden the breaks from their own claimed process leaves serious doubt whether any one procedure in the 9th Circuit is available equally to all comers.
Well, that's just one court, albeit one covering more than a fifth of the country's populace.
New York v. FFLs
There's an interesting case going up to SCOTUS named Gazolla v Hochul, which was previously so far off everyone's radar that gun lawyers didn't spot it until Hochul wrote a vague and panicked tweet. It's not going to go anywhere -- it's a complicated mess asking for extraordinary relief of the sort SCOTUS never provides, while also being a bit nutty even by the standards of pro-gun legal buffs still trying to operate in New York after what happened to the NRA.
And while it's kinda funny in hindsight to see a nutty complaint allege a morass of problems amounting to infringement of the right to keep arms that ended up already coming true before the Court even reviewed the case, to which the state's response rests heavily on the claim that "The plain text of the Second Amendment does not cover the right to sell arms", that too is a little too common to be interesting and mostly a repeat of the Californian version back in Rhode v. Becerra.
To add insult to injury, Nigrelli did not even bother to issue state law required certification of the operational status of the ammunition background check system. NY PEN §400.02(2). The NYSP never did has not issued any ammunition background check form this entire past year, nor produce regulations for any administrative appeals process for denials of a firearm or ammunition background check. NY PEN §§400.03(2) and (6) and NY EXE §228(4)(a). The defendants repeatedly and persistently fail to comply with their own laws since the bills passed in June/July 2022 – an argument we repeatedly spell out. It defies logic that no judge, to date, has held the defendants to the limits and requirements of their own 2022 laws. [...]
The suit also alleges that the strict text of the law only allows Hochul and Nigrelli to put non-federal-firearms items through the state NICS system, leaving federal-firearms to direct FFL-to-NICS discussion, while Nigrelli and the FBI have cut all direct FFL access through the state to NICS. There's just a litany of this stuff: the laws required concealed carry permit holders to get training from certified courses where the course did not exist, for those wanting to buy a semiautomatic rifle to apply for a permit that did not exist, so on. In several cases, state police provided e-mails to individual FFLs or to the NSSF claiming they would not enforce the laws until relevant guidance was available, even as statutory deadlines were long-past, and while not provided that information consistently to all those covered, sometimes in contradictory ways.
Fine, he who makes the rules decides who has to obey them, anyone paying attention to this game knows that. Most states that have established mandatory time limits for background checks, as a similar matter, have often simply flat-out ignored them. What's new?
The state makes an error of federal law in this provision. There is no federal ammunition background check requirement or system. 18 U.S.C. §922(t) specifically and only relates to the transfer of “a firearm,” as that term is defined at federal law. It is illegal for a state to use or attempt to use the NICS federal background check system for an ammunition background check. 28 CFR §25.11. This point is briefed throughout our record.
Federal law specifically prohibits "state or local agencies', FFLs', or individuals' purposefully using the system to perform a check for unauthorized purposes" and gives punishment of "a fine not to exceed $10,000 and subject to cancellation of NICS inquiry privileges." Even to the extent state-run queries can be more expansive, as soon as they contact the FBI's NICS they must be limited to only firearms-as-defined-by-federal law (or explosives-as-defined-by-federal-law, in a way not relevant here). This was a hard-fought limit to the system, because gunnie groups (rightly!) feared that the early NICS would be misused; with marginal FFLs putting people they'd never sell a gun to through the system to trawl for embarrassing information, or to require people face daily NICS checks.
Now, Hochul claims that "the State Police are authorized to use state databases to conduct background checks for ammunition purchases, Penal Law § 400.02(2), and there is no reason to believe they will do otherwise." And she's right: even were the New York background check system's operators violating federal law, it's very far from clear how anyone could find evidence of it before summary judgement on the matter of ammunition. Except there's a few classes of guns that are not firearms by FFL/NICS rules but must receive a background check under New York law, and the web interface, the only working interface for the New York background check system, does not have a way to distinguish them. That's not proof, still -- given how poorly the system's worked so far, it's certainly possible that the New York background check system has forgotten to pass a lot of its requests to NICS! -- but while it might not be enough to it's certainly matched the low standards needed to push federal investigations in the past.
Except that it doesn't particularly matter. Even in an ideal case, this is the sort of thing that gets brushed over, simply because the rules aren't written for it. And it's very far from an ideal case, for one very blatant reason: federal law is the domain of attorneys general and the federal Department of Justice, whose lead is a man who previously reinterpreted the laws mandating destruction of certain NICS records to instead allow retention. He doesn't care.
Texas v. Ruger v. WellsFargo
Okay, well, no one would mess with Texas, would they? There's an interesting letter from Ruger today:
As you know, §2274.002 requires that any company who wishes to enter into a contract with a Texas governmental entity submit a written verification that it “(1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity.” On September 29, 2021, Wells Fargo provided such a written verification to the Office of the Attorney General of Texas. When this came to our attention, I wrote to Texas Attorney General Ken Paxton questioning the verification.”
As detailed in my letter, Ruger began working with Wells Fargo in September 2018. Our business relationship included a credit facility and banking operations (operating accounts, share repurchases, credit cards, etc.). However, in July 2021, less than three years after our relationship with Wells Fargo began—and just two months before Wells Fargo provided the AG's office with its verification — our local contact at Wells Fargo informed our Chief Financial Officer that ‘Wells Fargo would not extend any new credit to us and therefore would not renew our credit line. (due to expire in September) due to “reputational and headline risk” related to our industry. ‘When pressed about these “concerns,” our Wells Fargo contact cited our manufacture of modern sporting rifles as a “red flag.” ...
Well, perhaps there was some other, more serious cause?
As a result of my letter, the Attorney General's office asked Wells Fargo to provide further explanation in support of its verification, which Wells Fargo did not share with us. Ruger ultimately filed a Texas Public Information Act request to learn of Wells Fargo’s ‘explanation, which prompted the Texas AG to notify Wells Fargo of the request and invite a response. Wells Fargo, through counsel, objected to production of its explanatory letter, claiming that is rationale for refusing to renew Ruger’s credit facility constituted “trade Secrets” and “confidential commercial or financial information .. the release of which would cause Wells Fargo substantial competitive harm.”
Perhaps Wells Fargo was only discriminating two months before issuing a letter to the Texas AG:
The problems with this assertion are many, beginning first with Wells Fargo’s own publication confirming its policy of discrimination. In its Environmental and Social Risk Management Framework published in 2022, Wells Fargo outlines its then-new ESRM policy, which specifically targets “{t]hose making, selling, or distributing arms or armaments that require licensing”. Wells Fargo’s ESRM Framework further explains: We conduct additional environmental and social due diligence on clients who manufacture, distribute, or sell arms and armaments. Through this due diligence, we assess various factors which may include relevant licensing and regulatory compliance, types of product offerings, operating procedures, reputation risk incidents, human rights issues, relevant international compliance, and implementation of risk mitigation practices
Who would expect WellsFargo, of all people, to just straight-up lie to regulators and customers, in order to receive material benefits?... Uh, other than anyone who was paying attention in 2016.
Is the problem here that Ken Paxton is insufficiently prone to using state power for political ends? That Texas does not have conservative legal actors or groups? That some review at some level would prevent the state from enforcing this law, after decades of heavily-enforced policy by other states? I would perhaps believe that such regulations only operate with a large supply of inside-industry whistleblowers, except this example is visible to the naked eye, and many left-leaning equivalents have hit fields facing as or more extreme political filtering against them.
The cynical answer’s that quantity can be a quality all of its own, and one made easier when it's other people's money. As a result, a government hoping to use this pressure must be willing to risk serious harm to its own citizens.
(But, again, Ken Paxton.)
The more cynical option is that it’s a paper tiger; the threat has no value in this context but to make a group Harvel Their Greengrocer, and that only to the extent writing the paperwork is cheaper and easier than defying the law outright. But whether those reasons are specific to progressive goals or universal, that’s a lesson one would hope people were in less a hurry to teach.
gattsuru
1yr ago
Charitably, people who don't care about guns or are anti-gun to start with sometimes might have seen a recent few high-profile incidents that Hit Close To Home and suddenly justified everything. This model's kinda the dark mirror to the "conservative is a liberal who's been mugged" deal: there's a lot of people who were once willing to live-and-let-live (or at least had better places to spend their political capital) who become true believers over some incident that made things too salient for them. The resulting policy proposals aren't always this hairbrained, but you're picking from a group that's by definition not considered the space at length in the past nor been heavily exposed to other people who have. Some people are people do really believe what they're doing.
But Grisham has been in this game for a while. The more cynical analysis is that she's term-limited (New Mexico governors can only serve two terms; her second ends in 2027) in a pretty Blue and increasingly blueing state (between Californian exodus, and the aftermath of the last decade worth of redistricting), and she's been working in (otherwise unemployable parts of) the .gov since 1992. There's three major career paths available where this sorta trial balloon is a major resume-burnisher even and maybe especially if it flops: either moving to federal politics, managing state-level politics, or going into the bureaucratic activism or non-technically-state-just-state-funded activist groups.
It's possible she's gunning for Lujan's seat -- he had a stroke last year, and while he's recovered might take it as a sign to retire -- or perhaps the VP slot for 2028. But more likely I'm thinking the last option. This is the sorta thing that absolutely blocks any chance of a cabinet-level position or other place requiring a senate confirmation, short of a wildly stacked Dem Senate, but it's an excellent advertisement for Acting whatevers or bigger names at think tanks or commentary positions, where this hugely visible commitment is useful to know who's likely to stay bought.
So, none of the readings complained about are required, and teachers are free, as required by Florida's "Stop WOKE Act" to assign readings on all sides of the issues in question.
This seems a little bit of a change in approach from the normal strict literalism you've been bringing recently. Stop WOKE does not require teachers to "assign readings on all sides of the issues", under the increasingly-reasonably-looking theory that progressives would consider their own racially-discriminatory texts as a legitimate side and conservative-leaning views (or classically anti-discriminatory ones!) as not. The relevant prong of the law is:
"It shall constitute discrimination on the basis of race, color, national origin, or sex under this section to subject any student or employee to training or instruction that espouses, promotes, advances, inculcates, or compels such student or employee to believe any of the following concepts:
- Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex
- A person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- A person's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.
- Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.
- A person, by virtue of his or her race, color, national origin, or sex bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.243
- A person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
- A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.
- Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex."
((From a philosophical position I think this raises some serious free speech questions given that it is neither content- nor viewpoint-neutral, but from a legal one it'd just get smothered in the crib as government speech were it a progressive political program.))
Now, this statute does have one exception, but rather than a "all sides" one, it's :
Paragraph (a) may not be construed to prohibit discussion of the concepts listed therein as part of a larger course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.
Emphasis added. That is, it is neither sufficient nor necessary to cover "all sides", but instead a teacher must specifically avoid endorsement. There could be a fair argument that this syllabi could be customized in a way that matches this exception. Except, of course, you specifically admit:
"I have not looked closely at the course description for the AP class..."
Now, I'm not particularly interested in the question of whether this is political propaganda lacking rigor and requiring students to parrot a political viewpoint, because it's a school project on a politically valiant topic what do you expect the sort of question that immediately demands argument-by-definition whether this is happening and then, having admitted it, whether it's good. And there's a fair argument that this is not sufficiently precise enough to be a law, in that fun void-for-vagueness way (although, again, compare how government speech regs fair when used to further progressive political goals).
But it's a little hard to see that for this specific situation. A recommended text for "The Reparations Movement" is Coates' "The Case For Reparations". Even assuming that teachers could add a Sowellian counterargument, this remains an endorsement of racially discriminatory practices for the purpose of repairing the harms from actions committed in the past by other members of the same race or national origin (literally: "It is as though we have run up a credit-card bill and, having pledged to charge no more, remain befuddled that the balance does not disappear" and "Until we reckon with our compounding moral debts, America will never be whole", in case you thought fiscal conservatives had a monopoly on bad debt metaphors), and one that's very likely to be on the not-adjustable test.
((And in practice, there's a complex auditing system that goes on, here; I think you're vastly overstating the degrees of freedom a state has to modify the syllabi.))
It's physically possible to discuss the material without endorsing it (although whether such discussion would prepare students for an AP exam...), but do you really expect the average classroom to manage it? We can barely manage to teach Brave New World without people missing the blatant racism and classism for the feelies and drugs and free love. And it's not exactly alone, here.
President Biden has announced new executive action (... on twitter):
First: I’m pardoning all prior federal offenses of simple marijuana possession. There are thousands of people who were previously convicted of simple possession who may be denied employment, housing, or educational opportunities as a result. My pardon will remove this burden.
Second: I’m calling on governors to pardon simple state marijuana possession offenses. Just as no one should be in a federal prison solely for possessing marijuana, no one should be in a local jail or state prison for that reason, either.
Third: We classify marijuana at the same level as heroin – and more serious than fentanyl. It makes no sense. I’m asking @SecBecerra and the Attorney General to initiate the process of reviewing how marijuana is scheduled under federal law.
There are some big, and not always obvious, caveats here. There are very few federal prisoners for simple possession, and most of those are border-related cases where the person will (or would normally) end up deported afterward. Leaving sale, manufacturing, and distribution charges and convictions alone is more tenable at the federal level, where most thresholds are high in practice, but it still leaves a lot of sympathetic cases in prison or with serious criminal records for what is often a bullshit crime. Even if state jurisdictions follow along, lower state and local thresholds for distribution or intent-to-distribute will have far less impact than the eye-popping numbers pot legalization advocates bring. Many of the jurisdictions not already seriously considering decriminalizing pot offenses at the state level are unlikely to find this Call On Governors very persuasive; while there is a crossover component, some Red Tribe-leaning states may consider the political nature of this call legitimate cause to adopt wait-and-see approaches at best. The overlap between pot and general soft-on-crime aren't perfect, but it's not non-existent, either.
And it's hard not to see the timing as political: this was a campaign promise, held off for over a year and a half. While a lot of friendly reporting points to requests from other politicians, that doesn't actually make it less political, even were it not their midterm election season.
On the other hand, there's limits to how much I can complain about someone doing a good thing for selfish reasons. I am not a fan of marijuana, and marijuana legalization advocates tend to get incredibly unrealistic promises for the benefits and ignorance of the costs of legalization or decriminalization. It's hard to see the drug as safer than vaping, for another matter the FDA has crusaded against recently, even for optimistic reads on the risks of schizophrenia or lung disease. But it's also very hard to consider most federal or state extant rules good on their own merits, or even legitimate uses of government power. And, notably, this route has been available to other Presidents, who had similar political benefits (and risks), and who did not take it.
((If it actually happens; announcing a policy on Twitter does not implement it. It's quite possible that the actual real-world version runs into stumbling blocks -- a Biden pardon series is unlikely to face the sort of legal friction a Trump one would, but there's no shortage of unsympathetic prisoners and very unpleasant border cases. Bulk pardons aren't unprecedented, but they may be rough in practice here. And this would easily dwarf those past examples; this isn't quite nullifying a federal statute, but it's a lot closer than anything done in the past.))
The other interesting side is this taking so long to happen. There's a lot of good reasons to be skeptical of policy polls on the matter, but support for decriminalization is one matter that's replicated fairly well in actual referendums and ballots. This is a place where federal legislative action is plausible, and also largely unexplored entirely. The actual FDA rulemaking is a charlie foxtrot waiting to happen -- emphasis on the wait, as I'm skeptical it goes anywhere in a year -- but the power of the pardon is broad. It's understandable that major politicians are less likely to have inhaled than the average American, but it's not like President Obama or Clinton were strong pot advocates, and in turn Biden's historically been almost as skeptical as Trump was.
gattsuru
8mo ago
Lott's website has a better breakdown of how the revision applied, and it's worth noting that there were both decreases in the (non-rape?) 2021 numbers and increases in the 2022 ones.
More subtly, it shows that only through such third-party groups can such revisions be visible at all.
There's a deeper problem where everyone apparently knew this metric was bullshit, so there's no reason to think the newer numbers are 'real', but it's a little aggravating to see these things getting used as both political and policy sledgehammers on one hand and dismissed wholesale in the other.
Apropos of nothing, still no response from the ProPublica author from a few weeks back. Her coworker was so certain "Reporters love talking to people about journalism", too.
gattsuru
9mo ago
I will say this: if someone goes and makes those claims, they shouldn't run again.
That's great as a normative statement, but as a descriptive one, Raskin hasn't gotten an all-expenses one-way ticket on Amtrak out of DC. There was no purge of political spaces that claimed Russians hacked the 2016 vote totals -- between a third and two thirds of Dem voters still believe it! -- and no one who complains about the 2000 election or 2004 Diebold conspiracies got booted.
gattsuru
1yr ago
Hawaii v Heller
The Hawaii Firearms Coalition claims:
A recent change in Hawaii law that goes into effect in January requires instructors to be certified or verified by the county police department is being used to ignore the constitutional rights of Hawaii citizens. Despite having more than 5 months to set up a process, Honolulu and the other counties took no action until now. Due to inaction or incompetence, this lack of a process means that Hawaiian citizens could be left with no legal method to obtain firearms for weeks or months after the law goes into effect.
The recent decision by Police Chief Logan to require people to be certified by nonexistent instructors means that NO ONE can purchase a handgun or rifle until after he holds a public meeting to change his previous rules to reflect the new state law. The chief has a meeting scheduled for January 9th and then must wait for the mayor to sign his rules before they go into effect. This means that until then, he has no legal process to verify or certify instructors.
- UPDATE - Honolulu police contacted me and said that they are interpreting the new law to give them 40 days to process applications. They say that this is enough time to certify instructors and to get those instructors to teach people that have previously applied trained.
The specific statute is here, with the most relevant components being :
no permit shall be issued to an applicant earlier than fourteen calendar days after the date of the application; provided that a permit shall be issued or the application denied before the fortieth day from the date of application.
Note that this is a permit to acquire; the permit to carry involves different timelines and different requirements. There's some lack of clarity here -- where HFC claims that the police stopped accepting applications on the 18th of December, the police claim that they're accepting applications and will only require the training certification when people pick up a permit. It's possible, if not especially unlikely, that the permit training process will be resolved in a reasonable timeframe, to plausibly fair ends, but if the Honolulu Police genuinely were still accepting permit applications on the 18th, their best-case timeline to meet statutory requirements has less than a week between .
There are various other issues with this statute -- like other jursdictions, Hawaii's law defies 'complies with' Heller and Bruen by changing "good cause" requirements to a "good character" one (requiring denial of a permit "if the issuing authority determines that issuance would not be in the interest of public health, safety, or welfare because the person lacks the essential character or temperament necessary"); it demands permitee applicants provide the police open access to their mental health records; it removed external validation of training courses (before this law, the NRA could certify instructors). And there's the general dissolution of trust, when gun nuts have long cited concerns that training requirements would be used to throttle or delay lawful gun ownership, and it just so happens to not be a priority for five months after the law itself was an emergency.
But the timeline provides a clearer problem of justiciability. As Illinois and New Mexico recently demonstrated, the courts are not particularly willing to step in early, but here it's not particularly clear how the courts would do so. By leaving the "certified or verified firearms instructor" up to local police, nearly-any challenge can be instantly mooted or otherwise have its factual underpinning pulled away with no more than a minute's effort, only to be upset again later (not even necessarily by bad action by the police, if only a few trainers sign up to start with!). And a court not willing to could leave this catch-22 in place for months, if not years.
Well, at least that's a one-off, and Hawaii's long been a basket case so-
California vs. Carry Permittees
In response to Bruen, California pass SB2 on September 26th, to take force on January 1st of the new year. Among many other restrictions, the law overhauled concealed carry within the state, including where a permittee could lawfully carry. Politicians supporting the law stated, both in press conferences and during the resulting lawsuits, that about the only place permittees could lawfully carry after the law passed would be a public streets and sidewalks, and that's actually a little more broad than the actual text of the law allows. There's been a few California-side gunnies who've videoed long and non-exclusive lists of behaviors that the law bans, though unfortunately I haven't seen any set to the Animaniacs country song (yet).
On December 20th a district court judge enjoined the law's enforcement, in a biting order that focused mostly on the restrictions on the right to bear arms, but didn't stop from noticing where the law was also often just built to make compliance difficult if not impossible, for example, that:
Notably, this provision poses a practical problem since a person may not approach the business with their firearm to get close enough to see the four-by-six-inch sign Section 26230(a)(26) requires without violating the statute.
This decision was, unsurprisingly, appealed along with a request for a stay, allowing the law to go into effect. On December 30th, an administrative stay was granted, and the "stay pending appeal, and the supplements, responses and replies thereto, are otherwise referred to the panel assigned to decide the merits of these appeals".
It's not clear if a merits panel has even been assigned, as of January 4th.
What happens next will depend very heavily on that merits panel. Traditionally, the calculations for a stay pending appeal would strongly favor blocking a law that hasn't yet come into play. But a number of justices at the 9th Circuit have a long history of both antipathy toward the Second Amendment and willingness to buck SCOTUS dicta; while I'm not going to say that a sizable number would never block enforcement of a gun control law, I've already winked suggestively. There are also non-trivial reasons to suspect the odds of a favorable merits panel to not be quite as simple as a dice-roll.
And the longer the statute has been allowed to apply -- four days already! -- the easier is it to imagine this becoming the new status quo.
Well, at least it's easier to get a permit, even if you can't do anything with it-
California vs. Carry Permit
Over the holidays, California DoJ also issued a intering emergency rule-making package. Among a wide variety of other regulatory changes, the process submits a new BOF 1034 CCW Program DOJ Certifed Instructor Application, which among other requirements demands application attach a copy of a certification from :
- Bureau of Security and Investigative Services, Department of Consumer Affairs, State of California - Firearm Training Instructor
- Commission on Peace Officer Standards and Training, State of California - Firearm Instructor or Rangemaster
- Authorization from a State of California accredited school to teach a firearms training course
And a shooting course qualification from one of :
- Bureau of Security and Investigative Services, Department of Consumer Affairs, State of California - Firearm Training Instructor
- Federal Government, Certified Rangemaster or Firearm Instructor
- Federal Law Enforcement Training Center, Firearm Instructor Training Program or Rangemaster
- United States Military, Occupational Specialty (MOS) as marksmanship or firearms instructor
- Commission on Peace Officer Standards and Training, State of California - Firearm Instructor or Rangemaster
- Authorization from a State of California accredited school to teach a firearms training course
At least from a casual read, this looks to be in explicit conflict with relevant California statutes, which also include the Civilian Marksmanship Program and NRA. It's also... not especially clear if any of these programs exist and are available to normal people: of the few that aren't explicitly tied to law enforcement or military training, like the State of California accredited school firearms training course, are still mostly law-enforcement-focused. ((I also wonder how well California's administrative notice law is being served by a notice for rule-making that was only open between December 22nd and December 27th.))
At a deeper level, though, it's a near fulfillment of long-standing gunnie fears that training requirements could be leveraged into otherwise-controversial restrictions. It's hard to take the requirements as seriously focused on preventing harm. Perhaps there's some argument about applied evenly-
New Mexico
An organization known for its gun buyback events is under investigation. It comes after the group dismantled guns over the weekend. San Juan County Sheriff Shane Ferrari says he’s trying to find out whether or not the gun buyback events New Mexicans to Prevent Gun Violence does are legal. He said the investigation comes after community members reached out to him with that question.
“I’m still not understanding how these transactions are taking place without a background check,” San Juan County Sheriff Shane Ferrari said.
It’s all centered around a New Mexico law that says the sale of a firearm without a background check is unlawful. There are a few exceptions to the law, but Ferrari says he doesn’t know how the nonprofit falls into the mix.... New Mexicans to Prevent Gun Violence actually helped pass that law. The group’s co-President Miranda Viscoli explained the difference between what the group did last weekend versus what she says would be unlawful.
Further posts from the group make very clear this is almost certainly in violation of both New Mexico's new laws, but also long-present federal ones, sometimes in hilarious ways, and that the NMPGV knew those rules.
These laws often stupid, especially in this context! Officially, a local sheriff has opened an investigation, but realistically, nothing's going to happen here but some egg on some faces. Yes, it's the sort of illegal that gets federal agents to shoot your dog and son and wife if they need to pump up their rookie numbers, but not the sort of illegal that those agents treat seriously. After all, going after political allies "would not promote public safety".
(Revealing the name behind an anonymous account of public note is not “doxxing,” which is an often-gendered form of online harassment that reveals private information — like an address or phone number — about a person without consent and with malicious intent.)
gattsuru
2yr ago
Robbers Cave was the second run at the same experiment, run specifically because the first attempt had too much cooperation between the two 'teams', and this wasn't disclosed in Sherif's paper. Worse and perhaps more critically, the paper heavily concealed the extent Sherif (in the first experiment) and OJ Harvey (in Robbers Cave proper) actively manipulated the participants to make them more aggressive or be more affected by the aggression of other participants. It's not as severely a fake as, say, Stanford Prison, but Harvey was on-record as it being a script with an intended conclusion.
Milgram had a lot of information available suggesting that a significant number of his experiment subjects knew or claimed to know that the actor was acting, enough to overturn the conclusions, along with not actually holding to his claimed experimental protocol very consistently. Which is less severe and more borderline as 'faked', but (hopefully!) worse than all social science experiments.
The Supreme Court has responded to a stay request in Yeshiva University v. YU Pride Alliance. The cases revolves around New York's Yeshiva University, a long-standing and very Orthodox Jewish university, which is facing civil suit under New York City's Human Rights Act, for refusing to recognize an internal LGBT alliance. After a summary judgement stage, the judge found in favor of Yu Pride Alliance, and ordered an injunction against Yeshiva to immediately recognize the Alliance and provide all support given to other clubs. Yeshiva appealed to the case to New York's confusingly-named Appellate Division, and requested a stay during appeal. This was denied, without explanation on August 23rd. Yeshiva then requested leave to appeal that denial of stay from both the Appellate Division and the even-more-confusing separate Court of Appeals; this was denied, again without explanation, on August 26th. Yeshiva filed an emergency appeal to SCOTUS on August 29th, arguing that with its time for club applications running from August 26th to September 12th, the likely timeline for state appeals -- October or November before trial, likely past the end of the school year for a decision -- make for irreparable harm.
While Justice Sotomayor issued a short administrative stay from the 9th to the 13th, SCOTUS ultimately punted, holding that Yeshiva could request an expedited appeal from the state, or try again after completion of all state-level appeals, if rejected. Of course, by that point, Yeshiva's then-established-and-recognized Pride Alliance will have a lot of extra weight on arguments regarding future stays. As YU Pride Alliance explicitly declares it purpose is to change hearts and minds, it is difficult to see that period not reflecting any compelled speech.
There are a number of more subtle issues.
Some of these are just obnoxious. There's a rather impressive silence from those who worried about the Texas Bounty Hunters bringing lawsuits with statutes putting every thumb possible on the scales, obviously. SlightlyLessHairyApe has suggested in the past (in supposedly less favorable circumstances!) that "Martinez is the decision in most danger of backsliding"; this refusal isn't any stronger evidence CLS v. Martinez is here to stay than the Texas Bounty Hunters legal cases evidence that Roe wasn't... but faint damns. The state judge ordering the stay is or was a member of the Lesbian and Gay Law Association for Greater New York, which is not the sort of thing that requires or even counsels recusal, anymore than a judge being an observant Jew might, but at least the sort of thing that would raise elevated interest in making the impartial read of the law as clear as possible.
((There's also some boring debates about the definition of 'irony'.))
One more usefully interesting matter reflects the text of the court's decision. The state law actually does contain an exemption for some religious educational organizations, specifically those "religious corporations incorporated under the education law"; Yeshiva is, however, incorporated as an "educational" corporation under the education law, likely in no small part so it can issue secular degrees:
The court finds that Yeshiva's educational function, evidenced by its ability to now confer many secular multi-disciplinary degrees, thus becamse Yeshiva's primary purpose. Even if Yeshiva still "prompted the study of Talmud", that does not necessarily make Yeshiva a religious corporation as that term was intended by the City Council when it enacted Section 8-102.
Those of you following other conversations here this week might have noticed that a city -- conveniently the same city! -- is in the middle of investigating whether Hasidic grade schools are providing sufficient education. Which wouldn't necessarily be covered by the current text of Administrative Code 8-102, which only mandates that organizations with over 400 members and taking in money be considered not-private unless proven otherwise. But the remaining exceptions are not just statutory but affected by a morass of regulatory and administrative decisions. And the statute has changed rapidly in the past: while Yeshiva changed its incorporation to the education law in 1967, an exception present at the time for "colleges and universities" was stripped by a 1991 City Council decision
A month ago I'd have called Hasidic fears of the corruptive nature of secular education paranoid. I still don't think NYC would, any time soon. I'm a good deal more limited in what foundation I can argue that. Hope that won't have negative ramifications!
Another is a continuing willingness by the courts to ignore what are, charitably, misleading filings. In this case, the YU Pride Alliance Opposition filing says, among other claims, that :
YU has also acknowledged it must comply with the Human Rights Law without raising First Amendment concerns on numerous occasions. For example, YU “concede[d] that it is subject to the City Human Rights Law” to the New York Court of Appeals in 2001. Levin v. Yeshiva Univ., 96 N.Y.2d 484, 491 (2001). It raised no First Amendment challenge to the application of the Human Rights Law in that case.
The paragraph that is pulled from reads :
Section 8-107(5)(a)(1) of the Administrative Code of the City of New York makes it an unlawful discriminatory practice to refuse housing accommodations to any person because of that person's "actual or perceived race, creed, color, national origin, gender, age, disability,sexual orientation, marital status, or alienage or citizenship status * * * " (emphasis supplied). At the outset, we note that this provision applies to those who provide public or private housing accommodations, and so Yeshiva's status as a private institution does not exempt it from the enactment. While denying its violation, Yeshiva concedes that it is subject to the City Human Rights Law. Plaintiffs, as members of a protected class, allege a violation of the New York City Human Rights Law, section 8-107(17), which creates a cause of action for "an unlawful discriminatory practice based upon disparate impact."
That is, Yeshiva conceded that it was subject to a specific different prong of the Human Rights Law, which Yeshiva did not claim to have religious objections to despite a (admittedly-limited) religious exemption where:
"Nothing contained in this section shall be construed to bar any religious or denominational institution or organization or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting employment or sales or rentals of housing accommodations or admission to or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained."
This isn't quite as bad as a certain state (New York again!) excising important words from referenced statutes, and then doing it again, or the CDC's famous "absent an unexpected change". But where lawyers are obligated to make the best arguments for their clients, they are also obligated to be fully honest in court filings, not merely in not-lying, but in representing the whole truth. I doubt this section had serious impact (or, frankly, that all of the justices even read it), but an inability to respond to or recognize these sort of tendentious filings do not encourage faith in even-handed access to the courts.
There is a phrase -- sometimes attributed, coincidentally, to Rabbis, elsewhere to Gladstone or Francis Bacon -- that 'justice delayed is justice denied'. It's possible that this decision is overturned at the state level, for the sort of reasons I and Alito both were too pessimistic in the aftermath of Fulton. Of course, if not resolved at the state level, SCOTUS review of the stay is unlikely before the end of the school semester; of the case, likely into 2026 or 2027. It's not hard to come up with examples of the costs of punting at such length. This case can, in many ways, be seen as the aftermath of Fulton's punt.
It's not quite up there with Young v. Hawaii's decade-long wait. I doubt it will be. I expect a long-standing yeshiva will be stubborn at the end of a case, where other religious orgs struggle to revert changes. And probably a coincidence that this falls at the same time the federal gay marriage bill is struggling in the Senate, over conflicts related to
gattsuru
19d ago
Cuomo's also just about the single worst political candidate available. People talk about 'scandals' like it was 'just' him being a gropey bastard, but the COVID nursing home policies killed thousands, possibly ten+ thousand.
New York City isn't the same Literal Worst in the way Cuomo is, but that's mostly because California and Newsom exist and can't rebuild a home after a fire. The punchline to all the Abundance Liberalism is either congestion pricing, or Eric Adams treating the invention of 'trash cans' like a major success.
And that's kinda the critical bit. There's a temptation among progressives to think of this as some failure of advertising or sufficiently innovative policy recommendation, but that's like trying to out-crude Trump. You're not going to beat socialists at making up policies with great advertising and 'novel' policy, and even trying to compete with them on those metrics will drive you to start making awful policies yourself.
The alpha centrists try to advertise themselves on is about actually improving the actual situation on the ground. But Cuomo and NYC (and Newsom and California) can't do that, either.
gattsuru
11mo ago
The comms situation sounds more and more like an absolute shitshow. Podunk or small-time operators underestimating how much impact even a small surge crowd can have on cell reliability is a pretty common sort of mistake to make -- even local femtocells/microcells often struggle badly, and you aren't going to get them in place for a one-off -- but the flip side is that it's so common that the USSS should not only consider it in planning but also have some (if jank) solution, here.
That doesn't necessarily mean indoctrinating every police officer near a USSS operation into Slack (b/c there's a few CJIS-compat other tools), but ... 900 feet is the sort of distance you can close with 150 USD in 2.4ghz links for data, and almost any radio for voice. Frequency deconflict (and since Butler County does seem to have used encryption, getting signed into the right trunk) is not trivial, but it's a minutes thing, not an hours one. There are arguments against introducing new technology in mission-critical situations, but 'train a handful of people to use new comms' is literally someone in that room's job.
All of that said, that this a) supposedly including transcripts and b) almost all of the local police leaves me more than a little skeptical its origin came from a pure-hearted interest in solving problems. There's been a lot of effort on the feds side to not-so-subtly point at the local cops, and this sorta release, especially with the pointed gaps for any comms to the USSS depot, would fit in that category very readily. Some of this is genuinely bad comm discipline -- the report's trying to highlight the Sheetz misdirection, but "we got him" is the sort of thing that should never be going over a voice channel in this sort of circumstance -- but they're the sort of problems that pop up when your swiss cheese model is down to the last bit of wax paper.
I don't know how much to trust Grassley (politician, mouth moving), but he's been claiming that the local police had a meeting that morning at 9AM, including specifically passing radios to sniper teams, which is what I'd expect, and that the feds didn't attend.
While I expect the answer for Hanania specifically is that he's reaching for whatever weapons are available, there are some very serious problems, here:
Full-time workers are spending about a third of their waking lives at their workplaces, a sizable portion of their Dunbar-sphere will be made of coworkers, and under current law employers can be liable even for after-hours and off-campus behavior by employees. In many career fields, it's common to spend months with little chance for a social life outside of the office at all. Maybe the 20% of couples just meet up right outside of work, but I'd expect that we're not so lucky, and at least some aren't getting BATNAs.
Worse, the modern rule isn't just 'don't fuck your employees/coworkers', but against wide breadths of discussion and behavior adjacent to sex or gender stuff. Enforcement is hilariously inconsistent even in places where employers care (and the number of bullshit lawsuits are Known enough that normal people are often hesitant to bring genuine ones), so people can act as though a lot of this stuff is still allowed, but once you get above a certain size of company you start getting insurers/lawyers/politicians peering in and insisting that your workplace complies so that enforcement Won't Be Necessary. As a result, a lot of spaces for vertical transmission of knowledge about matters of sex and romance no longer exist, or have been thoroughly commandeered into a state-favored presentation.
Avoiding the appearance -- or possibility -- of impropriety has serious and significant costs. I'm not sure how much I trust the specific numbers for 'MeToo made men afraid to mentor women', but the end result of that policy ends up meaning I've got a Fun Ethics Question when my workplace has me share a hotel room with a (afaik straight, not my type) guy. This isn't taking all the fun out of workplace socialization, but it's a big and vast set of constraints, often ones heavily dependent on local social norms.
The end result of a sexless public space for men... well, we have examples from other spheres that had to move sex to fully private spaces, and the alternatives that they've developed kinda work, but they come at tremendous cost. Online dating started out rough, and it's since vanished up its own backside in a mix of borderline fraud and unrealistic standards. Bars and mixers have come coincidentally along with a hefty incidence of alcoholism and other abuses.
For Scott:
Again, Hanania might not have an answer because he doesn't care enough to think one necessary, but there's a pretty easy and obvious one.
The Civil Rights Act was intended as written under a hilariously narrow scope for all of its wide claims. That lead to hard cases, and even as late at the 1980s the courts were struggling with matters like whether it was discriminatory if an employer (allegedly) raped an employee, and into the late-90s if it would be discriminatory even if the victim was male. There weren't just hard cases in that they involved sympathetic victims and extremely bad behavior, or even whether they could be arguably within the intent or text of the Civil Rights Act, but because they were also near-universally around things that were separately violations of common state laws that had existed for quite some time, at a time where and when the public was unwilling to allow businesses to wash hands of bad acts by their employees. Government advocates and private lawyers had a pick of both clear violations of the text of this law, or arguable cases for this law that shocked the conscience.
((Scalia delivered Oncale, for example.))
But to do so, the CRA1964 had to establish an industry around fighting racism. The EEOC isn't not five commissioners at a table; it had around 350 employees in the 1960s, which grew into the thousands by the late 1990s. Nor was it alone; other offices downstream of or expanded by the CRA include the Commission on Civil Rights, the (various) Office for Civil Rights, the Office for Fair Housing and Equal Opportunity, DOE Civil Rights Division, so on. And then around that, built up an industry around selecting and prosecuting private lawsuits, and training people to do this, and training people to train. Now, when the law and interpretation was constrained, and overt discrimination (or bad-for-other-reasons-argued-as-discrimination) cases had the pick of both plaintiff and employer, most cases kept close to the core.
That changed. Some legislation made it easier (eg, the 1991 revision allowed some vaguely-defined set of suits with a theory of discrimination that could not identify specifically discriminatory policies or actions, or to get attorney's fees and thus cases on contingency without proving damages), but the grander problem is that you now had thousands of people who's job was to find discriminatory actors, who were trained to notice the most subtle hints of it, and in no small part who believed in the mission. An increasing number, by the close of the 1990s, had literally never known a world without an EEOC and the norms it wanted to apply across the country; many had been trained by those who worked up through the EEOC's wishcasting of policies it wanted.
That's how you get a lawsuit with an appeal's court opinion released in 2010, about a complaint first pushed in 2006, revolving around the sort of "general civility code" that Oncale specifically disavowed. It's how you get related cases that similarly emphasis a general theory of Bad Person. And it matches the timeline far closer than the standard motions around college campuses or SomethingAwful refuges.
That doesn't make Hanania right -- there's a lot of other stuff in the history, if you poke at it, and that's not to mention that just for this there's a pile of executive orders and regulatory notices and all the social junk around the 2008/2006 elections -- but there's a lot more to this stuff than just looking at the dates laws were implemented.
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