gattsuru
1yr ago
Here's the one for Election Law 17-152, which includes the defense's request for instructions on it requiring "willful", and does not show up in the final jury instructions, so at least for the conspiracy leg it's missing completely, the objection is documented, and the error is sufficient enough that.
More broadly, while I agree that the defense should have and would have a stronger case if they'd publicly pushed harder for better instructions on FECA, and perhaps they'd have had more luck getting the EL 17-152 part if they'd only pressed to include "willful" only if the underlying predicate were the federal laws, I think you're reading preservation for appeal rules here more strictly than even the federal processes, nevermind the more permissive New York ones.
((See US v Curran for a federal example that was both considered plain error, not that much more severe in its prejudicial effect, and also where the court was "satisfied that the [oral] discussion between the trial judge and counsel following the charge was adequate to preserve the point".))
gattsuru
1yr ago
That looks like it's just the discussion on FECA, and it doesn't even include all of the stuff that was openly discussed during the trial transcript, where the judge quoted proposed draft from the defense with the words:
"Thus, a person acts with intent of conduct constituting a crime be performed, when the person acts willfully that a conscious objective or purpose that such conduct be performed."
And the defense highlighted :
And so, our position is that that needs to be imported up into the 17-152 mens rea. That is, the mental state required to join the conspiracy.
Our cite, this is in Footnote 25 of our request to charge, People versus Caban, C -A -B -A -N , New York Court of Appeals, 2005. This is an individual who is prosecuted for conspiracy and necessarily is an individual that must have the prescribed mens rea, the requisite intent to join others and commit a substantive crime.
gattsuru
1yr ago
Do you have a copy of the defense's proposed draft for jury instructions? Because I've not found them anywhere online, and I'm really not sure where you're so certain that they did not argue in favor it of anywhere. The defense didn't even get their request that the "willful" requirement be copied from FECA to the state election law conspiracy (from 4392, page 98 here).
gattsuru
1yr ago
I'll caveat at the start that I'm really not convinced on the underlying question. Not just in the obvious way that I (and a lot of other people) became furries at a time where you had to go pretty far out of your way to get exposed to the furry fandom, and where "cut out everyone around him and should only listen to his fellow [x]" was impossible and discouraged even inside the fandom.
That "in the [x]-fucking group, the axis of prestige aligns with fucking [x]" is pretty wrong. Furries know of people with a ton of art commissions, or who had the most 'fun' at a conventions (though even there, no one's going out of their way to claim partial responsibility for putting 'ranch' on a certain pizza, you don't want to know). But you can be a High Profile Furry by organizing, by creating media, hell just by having a decent voice when playing weird online games; many big-name furs aren't convention-room-party goers, some don't even do adult stuff in media format (or only began doing so long after their rise in popularity).
Status derives from status and its games, for better or worse.
Okay, on the more immediate question of a vibe shift:
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I think a lot of the poll variances in the recent short term (to the extent they actually exist), largely reflect changes in what people perceive as the question being asked. Just as poll questions in the 1980s weren't really about gay marriage, even if some people were starting to think about it, polls in 2010 were overwhelmingly perceived as about gay marriage even if other matters were starting to percolate. And while I think social conservatives overstate some of the matters -- kids just don't care about Drag Queen Story Hour, unless they're stuck listening to it -- there's both a ton of reversion to mean and a lot of more controversial topics at easy grasp, today.
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This is a place where there's obvious an Official Correct Answer, and there has been for the better part of a decade (eg, most teenagers' lifespans as political animals), and that impacts answers and views in a variety of complex ways. While social conservatives focus, not unreasonably, on how this encourages agreement with that Official Correct Answer, it also results in matters where respondents presume questions from authorities are either tests or presumed within the window of that Official Correct Answer, or where people will show what looks like resistance where 'resistance' is only incidentally touching on these matters.
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It's... difficult to get a real grip on ground level politics for students, especially if you're someone who does play by the 'keep it at home' rules. I deal with more students than most adults, and I'd still be really hesistent to extrapolate from the few times students have brought this topic up in public.
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There's some awareness that something's going wonky among the progressive parts of the world, but most of that's perceived as a 'Last Gasp Of <Insert Today's Demographic Boogey Man>', or perhaps young leftists not knowing 'What We're All Fighting'. Even the true versions of this stuff aren't really things the progressive movement is willing to actually handle rather than confront, and they're not that often true, so I'm not sure how much to take from it.
gattsuru
1yr ago
Nybbler has already gotten into the pragmatics of leaving half or more of the country a no-rights zone, but I'm going to murder this question closer to its root: I do see personal challenges to gun rights as a Red Stater.
The federal government passed -- post-summer-of-Floyd! -- a bill that banned hunter education and sports teams in public schools, and that was the unintentional bit they eventually reverted. The same law's restrictions on gunsmithing, in contrast, remain unquestioned. You have to sell a ton of guns to have the federal government break down your front door and shoot you in the head in a Red State, but the federal government also argues that it's illegal to sell one. Blue States will happily sue the companies selling firearms into the ground, fuck federal law or common sense saying otherwise.
I'd be a lot more persuaded by the 'laboratories of democracy' argument were it allowed to apply in any way that wasn't a ratchet down.
gattsuru
1yr ago
Some of the problems are downstream of hardware vendors. Boot from sleep and charge problems are well-documented for how hard-to-reproduce they get, but also probably specific to firmware sleep mode support on various hardware being dumb as a sack of hammers. While it'd be nice for Microsoft to enforce various OEM requirements more stringently (or even to take a harsh hand in enforcing BIOS behaviors other than the stupid TPM clusterfuck), I think at least part of this trades off against the increasing variety of capabilities and options that motherboard manufacturers have been able to give out, and while some of that latitude has given us Asus, I'd still take that over Apple charging an arm, leg, and a first-born child for a soldered-on NVME module.
((And knowing MS, we'd probably lose Framework and keep Asus as the new standard.))
But there is a general trend toward worse user interface, in places that are software-specific. In addition to the problems you've already mentioned, Windows Start Search uses the web before local files or even applications, settings menus repeatedly disappear or get moved for little cause, and a variety of first-party apps range from bad to hilariously error-prone.
The standard argument is that Microsoft is no longer selling products, but advertisements, and these decisions either reflect those pressures (adding more interstitial buttons to charge a setting provides more marketable data, somehow), or are downstream of the old pressures no longer existing (Microsoft no longer cares if you prefer an old UI, cause they're not selling to you).
These are probably part of it, but the same issues have shown up in other companies as well, including many who either don't have the same pressures or who have always been in the ad business. I think the structures of managing programmers itself has gone tango uniform, especially in FAANG environments, such that building a slick new view has become far more important to careers than any underlying functionality, either intentionally or as a side effect of increased review of code that could invoke regression testing. There's some fair arguments in favor of this behavior over the old one to some degree -- the Windows Format Disk dialog, rather famously, was the result of putting code over UI, with corresponding Fun edge cases -- but the pendulum has definitely swung too far one direction.
gattsuru
1yr ago
Trivially, because any opponents of future gun bills can credibly claim that the Democratic party wants to ban a wide variety of common semiautomatic firearm modifications, and point to this poorly written bill. Because even if you were grandstanding, it's more useful to grandstand in a way that doesn't give your opponents a ton of ammunition. And because leaving people without passing familiarity with a topic to write legal text with criminal penalties doesn't sound much better if you didn't intend for it to pass.
gattsuru
1yr ago
Yeah, it's been a long-standing issue, sometimes resulting in serious convictions where courts believed that the 'mule' should have been more suspicious.
gattsuru
1yr ago
I've been pretty explicit about my problems with the scienter requirements revolving around what the jury was instructed to find, not whether they found it:
Trivially, FECA requires "willful" violations: the jury instructions contain no definition for 'willful' at all, and discussions in the courtroom with the jury present were minimal. This has overturned convictions for far more egregious conduct on very similar textual lines before (or see this, where the 'ignorance' of the law itself bordered on the intentional if not schizophrenic).
Conspiracy (as in election law 17-152) itself is likewise complex: some jurisdictions do recognize ignorance of the law as a defense in some cases. See Massachusetts (requiring that for an offense that is "malum prohibitum only", "both must have had knowledge of the existence of the law and knowledge of its actual or intended violation") or federal law (where "we have such substantial difficulty in understanding how Alston can be convicted of a conspiracy to defraud by structuring when he cannot be guilty of a conspiracy to structure or of structuring itself" by reason of ignorance of the law for a 'willful' violation statute, or see a case where supplemental jury instructions repeating that everyone should be treated as knowing the law were error). New York state's caselaw on the matter is (somewhat surprisingly) underdeveloped, at least from a quick search, but it's not showing anything on the level of California (which has a bunch of bookies regulation cases, generally favoring conspiracy prosecutions with ignorance of the regulation), either.
The prosecution does not need to prove the underlying offenses, or even that they occurred, yes. But neither can courts duck the question of whether the underlying offenses could actually be criminal, as a matter of law, simply by informing that the immediate offense requires merely that someone intended to do something illegal.
gattsuru
1yr ago
Diaz's claim during trial was that she'd gone south of the border to meet a new boyfriend, and he'd let her borrow his car. If you believed this defense, the theory is less 'just hope' and more 'meet at predesignated point'. These sort of scams do exist, sometimes even at higher values, and indeed it's actually a bit of a struggle for courts to handle the border cases where the mule may have been willfully blind or where the arguments are more borderline.
((That said, for this specific case, Diaz seemed to have made up almost all of this, most of it not terribly credibly, including the boyfriend that supposedly loaded the car up to start with.))
So the need for an expert witness makes more sense than at first glance -- there's a lot about general drug trafficking approaches that aren't common knowledge or would be counterintuitive to common knowledge. And the question of what tactics drug traffickers use is the sort of thing that would be better considered under expert witness testimony, and could have been more appropriately discussed without a lot of nudge-and-winking about the defendant.
I'm still not a huge fan, but that's more because the scope of domain expertise is ugly. The fed here was testifying as an expert on gang trafficking of drugs, and reading through a search affidavit from an unrelated case gives a pretty lengthy and impressive personal record as part of investigatory task forces. It's... less compelling as a matter of his expertise on the full breadth of drug trafficking tactics, especially for the sort of broad statistical analysis he's giving here.
((Though the rule applies both ways, at least in this specific case, as Jackson points out; Diaz's defense brought in a car mechanic who was allow to testify about how most people wouldn't notice the modifications to the car here. But I'm skeptical that the average decision is fully evenhanded, and Jackson's asides about other defenses leave me a little unsated given how weak the protections against dueling experts are.))
((But in turn, that wasn't the question raised before the court, here.))
Rahami dropped today.
It's about what I and @The_Nybbler expected, and worse a Roberts opinion at that. Roberts did "not meant to suggest a law trapped in amber", and lower courts will quite happily take his already-extensive 'analogies' to permit nearly anything. Barrett continues to parade "Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms” and promise that this isn't a blanket permission slip for lower courts to turn into an interest-balancing approach that never recognizes gun owner interests, and no one with two brain cells to rub together should believe it. The progressives continue to argue in favor of overturning Bruen (and, implicitly, Heller), and beyond that just making that blanket permission no-gunnie-interest interest-balancing test the rule instead.
There's a separate Gorsuch concurrence, but, unsurprisingly, it is not going into the fine details of esoteric interpretations in some way that might help Second Amendment causes, and instead just to announce how much the court is punting.
In theory, the concurrences draw out a large array of other challenges to the same statute that would be more suspect, but we're several years -- and several far more sympathetic cases -- into SCOTUS punting on them, there's no way to bring a challenge without risking your freedom, and no guarantee that you'd not find yourself Abramski'd even if you did. The most optimistic gloss I can read is a bit of text for Range, but Range doesn't even have cert yet, and I would not be surprised to see him GVR'd for another three-year-delay.
gattsuru
1yr ago
I mean, I've quoted -- in this very thread, just a couple comments up! -- those same jury instructions. It's not like the FECA part is better, and both the jury instructions and trial transcript point out the fine details of the terms for that, either.
I think I've made it very clear that I'm arguing about the law, not the jury's determinations on facts. I get that you're trying to juggle a lot of conversations, here, but just repeatedly asserting that the question of intent papers over any questions of what the law does or can prohibit this way isn't very compelling or engaging well with my claims.
gattsuru
1yr ago
Yeah, that matches my understanding. And in this case, he didn't even have access to all or even most of the data normally: Haim ended his time with pediatric medicine in early 2021, Rufo's summary of the investigation pointed to 2022-2023, and the indictment says he went fishing for (what he perceived as) bad behavior with the actual access starting in April 2023.
For whistleblowers of uncontroversially bad acts, prosecutors are supposed to consider the public policy ramifications of bringing charges, but we're not there, here, even if everything Haim claims is true.
gattsuru
1yr ago
The Senate Democratic side tried to push a bill that would have banned both bump stocks and anything that could "materially increases the rate of fire of the firearm". On one hand, they tried to push it through using unanimous consent that they definitely weren't going to get, so perhaps it is just for the sensationalism. On the other hand, they did include that portion, which might as well ban gunsmithing entirely: either they have so little familiarity with the topic as to believe that a resistance to such a ban would be just as sensational, or they actually want it, and a lot of them also say at length that they actually want it.
gattsuru
1yr ago
I think a district court opinion that actually tries to separate individual official acts from those of a private actor or political candidate, and recognizes the extent various immunities are intended to protect the papers and deliberations of official acts, would made it much harder from Trump to get cert. A lot of courtwatchers who like Trump even less than I do take that tack.
There's no guarantees, but without that blanket permission slip for charging every other living President, there's just nowhere near the urgency. Whether criminal or not, the majority of acts in the indictment here fall outside of the outer bounds of the President's roles, some even by Trump's own defense's own admissions. There's none of the time pressures that were present for the ballot rules, so on. I don't think it would have been good to punt, but this court absolutely is willing to punt whenever possible.
gattsuru
1yr ago
If you expect a glorified GVR or per curium (or even a per curium-with-dissentals), perhaps, but I'll put money that SCOTUS will be doing a good deal more than that. Punting the case back to a lower court without seriously delineating the bounds of any immunity risks the matter popping right back up in a way that they still can't ignore, possibly before the election even if the trial itself wouldn't have gotten out before then anyway. Trump (or Smith) will appeal regardless, but the part where we're here because multiple different federal judges couldn't forsee any problems with papering over limits on prosecution of a former President with "prosecutors themselves are constitutionally bound to not abuse their office" (and somehow managed to avoid laughing).
For contentious issues and conventionally-argued questions, there may not even be an clear boundary of the decision for months after oral arguments. And I fully expect Roberts will be trying til the last second to try to fumble together a 'bipartisan' consensus.
I do agree other causes are part of the generally slower pace -- court-watchers regularly point to increased security procedures post-Dobbs-leak as part of a trend of slower, later opinions. I just can't come up with an explanation for why people expect a complex issue that was argued near the end of the last session to be more heavily prioritized other than the political ramifications, and they're not even good political ramifications.
gattsuru
1yr ago
As best I can tell the court of appeals is correct that there is no precedent for criminal immunity for the president
And where once the closest thing to a serious criminal prosecution of a president was a speeding ticket, now there's precedent saying there is zero criminal immunity for anything.
Even if they had decided to make up some line I'm skeptical the line they made up would be one that satisfied 6/9 of the justices on the Supreme Court.
I'm skeptical that Roberts, Barrett, and Gorsuch would have jumped at an interlocutory appeal had the lower court precedent not writ destiny that they'd be seeing two or three Presidents facing criminal charges within their remaining terms.
gattsuru
1yr ago
Is there any decision the District of Columbia Court of Appeals could have issued that SCOTUS would not have granted cert on?
Yes, probably. The Roberts faction on the court absolutely doesn't want to have to wade into Presidential immunity questions unless they're forced to, but the lower opinion here is incredibly broad, completely dismissing virtually any Presidential immunity from (federal) criminal prosecution, and that was condoned by the appeals court. I'd find it funny, in a number of ways, were it to actually become the standing law, but it's as close to forcing SCOTUS to handle matters as possible.
gattsuru
1yr ago
The only thing approaching that that I could see, as you said in your initial comment, was that he admitted to having plead guilty to certain Federal crimes.
And that he hadn't lied about it, and that he was guilty of it, and so on. That's not saying 'x was a violation of Y statute", but it's obviously saying that 'x is a crime'.
They filed a motion in limine to prohibit the prosecution from using those pleas as evidence that the underlying crimes were committed, and they won that motion. The evidence of the pleas was admitted so that the jury could evaluate Cohen's credibility, and the judge gave a limiting instruction as soon as they came up.
I can't find any text of the actual request, but the 'limiting instruction' as delivered was just to say that the pleas do not "constitutes evidence of the defendant's guilt and you may not consider them in determining whether the Defendant is guilty or not guilty of the charged crimes". As a matter of law, it may not be sufficient problem to be reversible error -- SCOTUS caselaw on sufficiency of limiting instructions is thin and messy -- but the pretense that the prosecutors were bringing it up to evaluate Cohen's credibility, rather than to show that there was a FECA violation for Trump to have hidden, doesn't pass the sniff test, and it's not a small part of the trial.
I argue in another post somewhere that intent (most of the time) doesn't require knowledge that the action is illegal.
"(most of the time)" is doing a lot of work, here. The law generally does not require that you know the specific text of the law you're violating, but even that has its exceptions. When the law prohibits 'doing illegal things' the exceptions grow: Liparota is the standard example, here, where a statute about "knowingly uses... in any manner not authorized by [the statute] or the regulations" required the defendant to be shown to know it was actually not authorized, even though that was strictly a question of law. And that has applied in business records cases, such as Ratzlaf most famously Arthur Andersen LLP v. United States.
Now, the statute in Liparota made clear that it required a high level of mens rea, where (unsurprisingly, given the different ages of the statutes and models for state law) the New York statutes are more vague. But, under both federal law and New York law, where no specific level of mens rea is in the statute does not automatically produce a strict liability crime, either! And in this case, the stapling-together of various statutes only elevates the normal concerns.
For all people seem to think of Paxton as a scalp-taking culture warrior, I'll point to the Ruger-WellsFargo fiasco here, and add that there's been absolutely bupkis since (or cfe the Media Matters investigation, still stayed forever). He's a lot better at waving red shirts than anything concrete.
[caveat: I'm more pro-trans than most here, and at least some of the covered operations and procedures seem... not especially noteworthy, whether or not I'm convinced of their effectiveness as medical procedures.]
In Haim's case, the indictment is here; while it's padded with insinuations that Haim passed identifying information to third parties, the actual statutes only require that he access the data without authorization (a2 versus a3), here). Whether the things that the indictments says 'count' as PII is complex -- technically, giving specific enough dates, procedures, and other information can still be 'identifying', hence why Scott is always neurotic about disclaiming that his patient summaries are really composites -- I'm not able to find any cases where it's actually applied in that sense.
And the use of 'malicious harm' in the indictment has serious ramifications, and I'm not able to find anywhere near this sort of situation, unless Haim was paid for his 'whistleblowing'. This paper highlights as two examples:
By statute, you can get up to 10 years in prison for criminal HIPAA violations. Generally jail-worthy HIPAA charges have had to do with egregious unmask- ing of PHI for money or out of malice. Joshua Hippler, a Texas hospital employee who got 18 months in prison in 2015 for obtaining “protected health information with the intent to use it for personal gain,” is an example of the former; Dustin James Ortiz, an Iowa man who conspired to obtain his ex-partner’s mental health records for “personal gain and malicious harm” and got 17 months in June 2022, is an example of the latter.
And it contrasts this with a compounding pharmacy that was using illegally-obtained PII to assist with bulk fraud, and was not given such an augmentation, or a UCLA lookey-loo who hadn't (yet) shared data at all:
Health care workers have been on notice that HIPAA violations can mean jail since 2010, when a former employee at the University of California at Los Angeles Health System (UCLA) who looked up celebrities’ PHI was sentenced to four months and a $2,000 fine; the sentence was challenged but upheld by the U.S. Court of Appeals for the Ninth Circuit in 2012.
The claim that Haim violated 42USC1320d-6(a)2 seems... fairly strong -- he had to work to get access to these files. And HIPAA's whistleblower protections are Not Great. While the law does not consider everything within its safe harbor protections as PII, whistleblowing about files or practices that you don't have direct legitimate access to is (almost) always looked at more skeptically than where someone did.
Whether that's correct as a policy is trickier. I can't find any previous examples anywhere near these charges, and Haim is pretty far from the first person to go digging for data. Nor was his release anywhere near to the UCLA scandals or Ortiz's case. Rather than embarrassing the supposedly-identifiable individuals: the harm the indictment alleges is overwhelmingly to the hospital and doctors. And the data Haim didn't remove, dates of procedures, is a pretty significant part of his claim. But in turn it's not clear that what he leaked was actually illegal: Paxton's trans-stuff-as-child-abuse were legally dubious (and nonbinding, and not really covering hospitals, and injoined even as to parents), leading state officials to work on a statutory ban, and Haim's documents were part of what drove that.
Whistleblower laws do actually protect people who wrongly-but-reasonably suspect illegal activity, if they do it right. Do it wrong, and things get murkier. Do it wrong for something you believe should be illegal... alea iacta est.
Sivadge, there's a lot less available. I don't, bluntly, trust Rufo's account as far as I could throw the man. Sivadge's own words do not strike me as a disinterested passerby who found particular practices wrong after exposure to them, but who has a general moral objection to the entire concept well before she ever encountered it; while he tries to paint a tale of "regret", it doesn't look like it's what's happened here. (Sivadge's encounter with the FBI was probably late June or early July 2023, a year after this article.)
In particular, I absolutely think that "It would be extremely unlikely, according to this expert, for the hospital to forgo this practice and, for example, cover the cost of its “gender-affirming care” program from its own budget" depended on finding an expert willing to give Rufo whatever answer he wanted. It's certainly possible that STAR flipped the law the bird, but hospitals absolutely can and do split off the exact minimum (or less) off to fuck with regulatory compliance, and the law is much less motonic that his summary. The 'expert' may not have called it impossible, but come on.
But the summary for that is, at best, the feds went fishing for anyone remotely anti-trans near the teen gender clinic to put pressure on finding Haim, which just floats back up to whether you think Haim's behavior was bad, nevermind bad enough to justify pretty aggressive chilling of speech against pro-trans policies. (Though the courts largely overlook chilling effects of investigation, unless they like the investigation's victims.) And given the extent Haim was likely to be identified by computer records, it's... difficult to see much investigative benefit to putting the screws on Sivadge. You always hope for someone to break down in tears and confess to a random crime, sure, but there's no small risk that 'investigations' can coincidentally discourage other Bad Activity that may or may not be strictly-speaking illegal or might even be first-amendment protected. That's not, unfortunately, against the law for the feds to do, though.
And the witness intimidation stuff is just bluster. The timeline's all wrong: Rufo's own version of events has Sivadge only noticing the alleged medi* fraud after her FBI interview, and only more recently has she made the claim. Yes, the feds could be trying to intimidate a witness that doesn't realize they're a witness yet, but arguing they're doing so while investigating an entirely different person's violations of an entirely different law are just too damn hard to separate from a generic 'don't make trouble'. For state laws about medical interventions to children, the FBI interview (again, probably June/July 2023 if we take Rufo's words at face value) would be before the state law was effective in 9/1/2023, and might have even been before or contemporaneous to the law being signed. So that's even more of a mess. What's left? The injoined Paxton legal opinion that wouldn't have gone anywhere?
Maybe I'm missing it, but I don't think anyone in this thread said "they went to execute him": the closest I can find is The_Nybbler's "(I certainly don't; I suspect they executed the warrant by leading with a flash-bang, or something similar)".
If the deceased fired at the ATF agents first, it's (probably) not murder to shoot back. The exact legal standard for a normal person is complicated, and there's not really a difference in the law relevant for ATF agents, but the argument that state agents did nothing illegal to invite legal self-defense is at least plausible enough given how broad a search warrant's powers go. ((Although from a real legal realist perspective, even clear murder by federal agents isn't prosecutable, because it and the feds will smother the career of state prosecutors who try it.))
And I think it's a bigger problem that, after decades of this (Ken Ballew was 1971!) and after four years where it has supposedly been agency practice to wear body cameras, we're still finding out that the closest we can get to ground truth on that "if" is the word of an elected prosecuting attorney.
That said, I agree with FCFromSSC that, even if everything occurred as the government claims, it still reflects extremely poorly on the judgement of the people executing the warrant.
As a matter of both federal law and Fourth Amendment jurisprudence, agents of the state executing a warrant still have procedures that they must obey (excluding the 'legal realist' view). There is a duty to give a reasonable time to comply with conventional warrants, breaking in only where refused or to liberate someone assisting him with a warrant. While SCOTUS has condoned knock-and-announce delays as short as 15 seconds, they did so recognize them as "a close call", and one dependent on the facts of the situation. The time and alleged contraband, as well as the size of the house, make the 30 seconds here implausible as reasonable times to comply.
As a matter of policy, people seeking or issuing warrants are supposed to consider not just whatever is most convenient to them or what optimizes the chance of finding contraband, but also to consider the safety of the community and even the alleged criminal. That's not a rock-hard constraint, and society has largely tolerated (imo, wrongly) police abuses of 'perp walks' and high-pressure searches in ways that would have endangered the community even were the alleged criminal guilty as hell. But it's especially galling in a case like this: agents were looking for a wide array of documents, laptops, and guns, almost none of which were not especially plausible to flush down toilets or sinks (there's multiple full rifles on the warrant, and even the subcompact pistols won't fit in normal plumbing), nor particularly important to the state's case even Malinowski opened his mouth and chewed them down. This is standard police shit.
Nor may or should warrants be executed without caution for the safety of everyone involved; while police are not required to find the least dangerous means of serving a warrant, they can not (even under legal realism, though tbf that was a much worse case) go into a search throwing any caution to the winds, without good justification for the dangerous actions. 30 seconds is seldom sufficient time for someone to dress and comply with even a lawful search, and there are known groups who have impersonated police to engage in kidnapping or burglary. There is nothing in the prosecuting attorney's claim alleging exigency, such as evidence of flight or destruction of evidence. And here it's especially galling because the available alternatives abound: the man regularly went to a fixed place of business at regular hours (where he could be cornered without access to 'an arsenal' and probably not even to guns), he was accused of -- despite their high profile -- paperwork crimes, the affidavit gives no clear or even cloudy evidence of threat to officers. Even the defense for covering up the door camera -- to obscure that the police's number and locations -- runs hard into this matter: it provides very little protection against someone inside the house spray-and-praying the police, while making it hard for anyone law-abiding to confirm that they are actually being served a warrant by police.
And that lack of exigency is reflected in the warrant, which ordered that the search should be executed in the daytime (unfortunately, in Arkansas, defined to include 6AM-10PM, regardless of daylight), because there was neither an inherent nor unusual concerns for officer or community safety.
The ATF and local police -- even if everything is as they alleged -- may not have ever chosen to execute Malinowski, but at every step of the process they prioritized a flashy arrest over the necessity actions to optimize the search for a valid prosecution, and over defendant and officer and community safety. That may not be against the law, especially realizing how little any prosecutor wants to take on federal officers. But that doesn't make it legitimate.
gattsuru
1yr ago
Bragg: "I’m the candidate in the race who has the experience with Donald Trump. I was the chief deputy in the attorney general’s office. We sued the Trump administration over 100 times, for the Muslim travel ban, for family separation at the border, for shenanigans with the census. So, I know how to litigate with him. I also led the team that did the Trump Foundation case. So, I’m ready to go wherever the facts take me, and to inherit that case. And I think it’d be hard to argue with the fact that that’d be the most important, most high-profile case, and I’ve seen him up front and seen the lawlessness that he could do."
Rosenberg: "And you believe it should happen?"
Bragg: "I believe we have to hold him accountable. I haven’t seen all the facts beyond the public, but I’ve litigated with him and so I’m prepared to go where the facts take me once I see them, and hold him accountable.
There's a fig leaf, but it's an embarrassingly narrow one.
A lot of web vendors resell personal information to third parties, who in turn sell to third parties, which often sell to spammers at best and scammers more often. This includes places you'd expect to know better: QuinnyPig has gotten contact points he's only given to Amazon resold to spammers. Mostly e-mail in his case, but I've personally gotten phone calls from vendors trying to use one of my online identities.
((Which is funny, but in a morbid way.))
If all they have is an e-mail or phone, without even a real name, there are upper limits to how credible their spam or scams can be. You might, maybe, get generic stuff like "your car's extended warranty has expired". The more personal details you have available connected to the same account, the more those people can start more aggressive tactics. Just standard purchase info is enough to make a pretty compelling-looking fake invoice, for one of the more common scammer tricks. And this can scale up pretty dramatically as more information leaks.
((And it's just annoying to get ten thousand spam phone calls or e-mails, even with tools to block them. Yes, in theory CAN SPAM and the national Do Not Call list should help, but they're limited in effectiveness.))
Opsec's not the only way to have problems, here, but it's a non-trivial way for many attacks to come in.
gattsuru
1yr ago
On the upside, this stuff hits people who aren't that focused on anonymity. The SO is an absolute normie for anonymity purposes, and is driven absolutely up the walls by a lot of the constant push for 'human verification' that doesn't work, and running normies at work through gov 2FA setups have made me and them want to strangle people.
It's a rather shitty silver lining to The Cloud, but I think there's a bigger alliance of People Pissed Off By Bullshit than one of Libertarians and Scammers.
((I've also been getting questions that are weirdly philosophical. Nothing quite at the level of 'what is good', but 'what counts as a sign' sorta way.))
You're right to say Powell has been largely rejected, including in New York, but its doctrine is a different question: whether conspiracies to acts that are malum prohibitum need prove evil motive even if the underlying laws or regulations have no special scienter requirements. The MPC notes merely say that conspiracy does not inherently require knowledge of the law or corrupt motive; it leaves open or encourages importing elements from underlying offenses (albeit 'as a matter for courts'), pretty explicitly as part of its disavowal of Powell.
In this case, two (FECA, federal tax) of the four possible underlying laws for the conspiracy had specific "willful" requirements.
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