Politics, Religion, Science, Culture and Humanities / Politics & Religion / Jim Grant: Stocks Are Set for Big Fall, Thanks to the Fed
on: February 24, 2014, 06:24:53 PM
Jim Grant: Stocks Are Set for Big Fall, Thanks to the Fed
Posted: 2/24/2014 8:44:38 EST
The Federal Reserve's massive bond buying and near-zero-interest-rate monetary policy has set up the stock market for a big fall, said Jim Grant, founder and editor of Grant's Interest Rate Observer.
"My fear is because that interest rates are suppressed, therefore earnings are inflated," he told CNBC's "Squawk Box" on Monday. "So when rates go up … the 'hall of mirrors' is shattered and we look at each other and see what actually is real rather than what the Fed wants us to believe."
If it were up to him, Grant said, the Fed would not have intervened at the time of the 2008 financial crisis because the markets and wages should have been given a chance to hit rock bottom.
DBMA Martial Arts Forum / Martial Arts Topics / 3 strikes...
on: February 24, 2014, 06:19:08 PM
Heather Mac Donald
Proactive Policing, Lax Jailing
As William Bratton leaves the LAPD, a horrific murder case highlights the importance of his reforms.
7 August 2009
The recent arrest of a vicious murderer in Los Angeles vindicates—tragically, only after-the-fact—several policing and sentencing policies that anti-law-enforcement advocates have fought for years. One of those policies—broken-windows policing—is among LAPD Chief William Bratton’s greatest legacies to Los Angeles. In the wake of Chief Bratton’s recent resignation, it is all the more important to affirm the value of his policing reforms, which remain contested to this day.
On July 24 at around 3 pm., 17-year-old Lily Burk was walking down a midtown Los Angeles street on an errand for her mother. A 50-year-old homeless parolee with a three-decade-long rap sheet confronted the high school senior as she approached her Volvo. Moments later, Charles Samuel was driving the Volvo away with Burk in the passenger seat. Samuel took Burk to an ATM on Los Angeles’s Skid Row, where she volunteered at a needle-exchange program and where he was enrolled in a drug rehab program as punishment for a parole violation. Burk tried several times to withdraw cash on a credit card without success, according to the Los Angeles Times. Over the next 25 minutes, she would separately call her mother and her father seeking help in getting cash on the credit card, but her father told her that doing so was not possible. At 4.52 pm, Samuel pulled the Volvo into a Skid Row parking lot at Alameda and 5th Street and abandoned it. Burk had already been murdered, her head beaten and throat slashed open with a broken bottle; her body was left in her car.
Samuel then walked nearly a mile through Skid Row, drinking beer from a paper bag in violation of L.A.’s open container law. Two LAPD officers on horseback stopped him for the public-drinking offense and questioned him. He told them that he was on parole and agreed to be searched, according to the police. They found a crack pipe in his pocket and arrested him. The post-arrest search of Samuel turned up a Volvo key and a cell phone. The next morning, a worker from a Skid Row business discovered Burk’s car with her body in it. Samuel’s prints were in the car; his clothes had blood on them.
Samuel’s apprehension shows the enormous power of broken-windows policing, which the American Civil Liberties Union has fought against on L.A.’s Skid Row and throughout the country. Enforcing quality-of-life laws not only restores a sense of order and safety to an area, it also nabs serious offenders. There is a great chain of being, it turns out, in criminal behavior. Hardened criminals are not usually scrupulous about obeying a whole range of laws—whether littering, loitering, or traffic codes. The guy lying across the entrance to someone’s business, drinking whiskey from a bag and tossing his trash on the sidewalk, most likely is not breaking the law for the first or the last time. When officers question people in high-crime areas for misdemeanor offenses, they regularly find warrant absconders and parole violators. In 1996, a New York police officer nabbed a young man jumping a subway turnstile, a crime that a decade earlier had been regarded as simply an inevitable response to poverty and too trivial for the police to worry about. The turnstile-jumper, John Royster, turned out to be wanted for an ongoing campaign of terror against women in New York that included murder, rape, and a nearly lethal beating; had he not been picked up for the subway offense, he undoubtedly would have gone on to assault more women.
In 2003, LAPD Chief William Bratton launched a campaign to reclaim the 50-block area of downtown Los Angeles known as Skid Row from the squalor and violence that had engulfed it for two decades. He announced that he would use broken-windows policing to restore order and to help locate the thousands of violent parole violators and absconders who hid among the area’s filthy, lawless homeless encampments. The ACLU and L.A.’s large retinue of professional cop scourges promptly unleashed what became a rolling series of federal lawsuits to shut down Skid Row policing. Merely questioning the homeless for littering, selling illegal merchandise, and jaywalking, they said, constituted illegal harassment of the poor. UCLA law professor Gary Blasi charged the LAPD with trying to “ethnically cleanse” downtown to make way for gentrification. A hostile federal judiciary lapped up every preposterous charge the advocates leveled against the police, but the LAPD continued enforcing public-order laws on Skid Row, producing some of the largest crime drops in Los Angeles and bringing a modicum of sanity to streets that had resembled bedlam just five years earlier. The beneficiaries of this crime drop included elderly residents of the neighborhood SROs, vagrants seeking to get clean and turn their lives around, and low-income workers in the area’s intrepid small wholesalers and factories, who no longer found themselves victimized by psychotic drug users as a matter of course.
And now Charles Samuel will be taken off the streets and brought to justice, thanks to two Skid Row officers’ willingness to ignore ACLU propaganda and accost a vagrant drinking in public.
But while sound policing was able to get a homicidal criminal off the streets before he could strike again, sound incarceration policy was unfortunately not given the chance to prevent him from murdering Lily Burk in the first place. California’s “three strikes and you’re out” law is the most reviled sentencing policy in the country—reviled, that is, by the anti-incarceration lobby. It allows prosecutors to seek a sentence of 25 years to life against an offender who has already served time for two violent or serious felonies when he is convicted of a third felony. California legislators passed the three-strikes law in 1994 in reaction to rising crime from repeat offenders, who served short sentences before going on to victimize the public again and again. Anti-law-enforcement advocates fancifully charge that the law’s main effect is to send away hapless sad sacks whose only misstep was to succumb to the urge for a pizza when they didn’t have enough change in their pockets to buy a slice. These advocates regularly lobby Sacramento to loosen or repeal the law.
Samuel was a good candidate for a third-strike sentence, thanks to an earlier attack that foreshadowed Burk’s murder. In 1986, he walked up to an elderly man sitting on his porch in San Bernardino (in the so-called Inland Empire east of Los Angeles), grabbed the man’s cane and beat him with it, then forced him inside his home and demanded money. When the old man could only come up with ten dollars, Samuel commandeered the man’s car and drove the owner to an ATM. The terrified senior citizen was unable to withdraw any money, however, whereupon Samuel struck him with his cane again, punched him in the stomach, and threatened to kill him if he called the police, according to the Los Angeles Times. Samuel pled guilty in 1987 to robbery, residential burglary, and car theft and was sentenced to six years. He became eligible for a three-strikes sentence in 1997, following a conviction for another San Bernardino burglary (the 1986 robbery and burglary charges counted as his first two felonies). But his rap sheet failed to note that the 1986 burglary was a residential burglary, as opposed to a non-residential break-in. Only residential burglaries count as “serious” felonies for three-strikes purposes; breaking into a store, office building, or commercial space is regarded as “non-serious” and can be repeated indefinitely without triggering a three-strike step-up in sentencing. (So much for the idea that the three-strikes law is blindly draconian; in fact, it makes careful—perhaps overly careful—distinctions between felonies.)
In the 1990s, the San Bernardino County prosecutor’s office was aggressively using its three-strikes power. It would likely have sought a 25-year sentence for Samuel following his conviction for the 1997 burglary had his rap sheet correctly classified the two felonies from his 1986 assault. Whether a judge would have granted the sentence is less certain, for, contrary to advocate propaganda, judges retain sentencing discretion under the three-strikes law. Samuel could have qualified for a three-strike sentence again in 2006, following conviction for petty theft in Los Angeles. By then, however, the anti-three-strike campaign had begun affecting prosecutorial behavior. Los Angeles District Attorney Steve Cooley only seeks third-strike sentences for “serious” or violent third strikes and would not have deemed Samuel’s theft conviction “serious,” even if he had known about the prior residential burglary.
The Samuel case demonstrates just how artificial the distinctions that underlie the anti-three-strikes advocacy are, however. Someone who has already demonstrated a predilection for crime is not necessarily any less of a threat to public safety just because his latest known infraction falls below some “seriousness” threshold. The lack of impulse control manifested in a convict’s record may be just as dangerous, even if his last opportunistic crime was “mere” theft. That is not to say, of course, that every criminal with a history of violent and property crime is likely to commit murder. But it shows the value of discretionary sentencing tools, like three-strikes laws, that allow prosecutors to acknowledge the cumulative significance of a crime career in assessing a criminal’s risk.
The heart-wrenching Burk case could not have come at a worse time for anti-law-enforcement advocates. California’s budget crisis had given the anti-incarceration, anti-policing lobby new ammunition to push for cutbacks in incarceration budgets and weakened parole policies. As usual, the advocates argue that mere “technical violations” of parole should not be grounds for reincarceration, but the Samuel case reminds us that a technical violation of parole can be a sign of far worse things. Samuel’s drug-treatment facility had given him a four-hour day pass to go to a DMV office on the morning he murdered Burk. It is not known whether the facility had sought and obtained permission from Samuel’s parole agent. Rather than returning to the rehab center after arriving at the DMV office (which was closed), he continued hanging out in midtown Los Angeles. By the time he picked up Burk, he had well exceeded his four-hour time limit and may have been in violation of his parole. “Technical” parole conditions such as keeping appointments, following the clock, and staying away from drugs exist for a reason: to keep tabs on potentially explosive criminals and to foster in them self-control and conformity to positive social norms. A parolee who violates such “technical” conditions may be doing so for highly dangerous reasons.
Other budget-related prison proposals—including Governor Schwarzenegger’s plan to put an end to parole for nonviolent ex-convicts and to release 27,000 prison inmates, or a recent federal court order to release as many as 43,000 inmates—all take on dire new significance in the wake of the Lily Burk murder. To date, policing and incarceration are the only known social programs that can be shown to reduce crime; others may eventually be found, but until they are, it is folly to undermine them for fiscal or ideological reasons. California’s enormous prison costs should be reduced by radical pension reform, not by the wholesale release of prisoners. And even today, in the aftermath of the Samuel arrest, Los Angeles’s anti-cop forces continue to attack misdemeanor enforcement in high-crime areas such as Skid Row: “The LAPD doesn’t deserve any praise when it comes to the needs of the homeless,” anti-police attorney Carol Sobel told the Los Angeles Times following Bratton’s resignation announcement.
These activists are dangerously wrong. Attention to broken-windows disorder must remain a vital component of proactive policing.
Heather Mac Donald is a contributing editor of City Journal and the John M. Olin Fellow at the Manhattan Institute.
DBMA Martial Arts Forum / Martial Arts Topics / Public Safety and Democracy
on: February 24, 2014, 06:11:03 PM
William J. Bratton and Paul Romer
Public Safety and Democracy
A dialogue on the evolution and future of policing
DAMIAN DOVARGANES/AP PHOTO
Sophisticated crime mapping allows police to direct resources to where the bad guys are.
PAUL ROMER: Across the world, public safety is the most important task facing city governments. In many poor countries, crime holds back the kind of urbanization essential for economic development. Closer to home, Detroit shows us that if they can, people will flee a city that fails to provide basic public safety.
Cities with crime problems should be able to take advantage of what we have learned about the policing strategies that reduce crime. Unfortunately, they hear too often from academics and other opinion shapers who still seem to think that policing strategies can have no effect on crime rates. This perception is totally at odds with the new understanding that has emerged among people like you, who have been in the trenches, experimenting with new approaches, and bringing down crime.
WILLIAM BRATTON: Yes. In a democratic society, the Number One obligation of the government is public safety. And the criminal-justice system is the entity charged with that responsibility. The police, through their behavior, are entrusted to enforce the law. A key challenge is to do it constitutionally. You can’t break the law while enforcing it. And in the 1940s, 1950s, and 1960s, police were breaking the law quite a lot. So that’s why we ended up with a lot of constitutional guidelines for police activity.
ROMER: What was your experience with the changes that came after the 1960s, when we tried to bring policing in line with the protections of the Constitution? One of the reasons that so many people today seem not to understand the connection between policing and crime is that they do not remember, or perhaps never knew, how crime increased in the United States starting in the 1960s and then came back down in the 1990s.
BRATTON: I joined the Boston Police Department in 1970 and came to New York to take over the Transit Police in 1990. Those 20 years were a time of phenomenal change. We were in the midst of an extraordinarily unpopular war in Vietnam. We were in the midst of the civil rights movement. There was great social turbulence—the Democratic National Convention riots, the Kent State shootings. It was an incredible time in American history. That’s the world I came into, all 155 pounds of me. I had my six-shot revolver, my six spare rounds, a set of handcuffs, a pen, and a parking-ticket book. They didn’t even give me a radio. Just six weeks of training, and I was on the streets of Boston.
ROMER: Looking back, it is hard to believe that you received so little training. These days, we understand that policing is an extremely difficult, high-skill job. Now we expect that police will be well educated and well trained.
BRATTON: I was very fortunate because as part of a push toward professionalization, the federal government for the first time was paying for police officers to go to college. It was the best thing that ever happened to me because I didn’t get wrapped in the “blue cocoon” as I was beginning my career. The kids I ate with at the college cafeteria in the morning would be demonstrating against the war in front of the federal building in the afternoon. And I’d be there, too, on the other side of the lines in my blue suit.
ROMER: It seems to me that prior to the 1960s, police were powerful but were largely unaccountable to the public. They did keep crime in check but sometimes did so in ways that the public increasingly found unacceptable. One impetus for this change came from the civil rights movement, which highlighted the many ways in which local governments and local police mistreated people of color. In response, we brought in controls to limit the abuse of police powers and pushed for better training for members of any police force.
BRATTON: I’ve spent my life in the police profession, and I’m proud of that. But I am also very cognizant of the profession’s limitations, its potential for abuse, and its potential negative impact. Policing has to be done compassionately and consistently. You cannot police differently in Harlem from the way you’re policing downtown. The same laws must apply. The same procedures must be employed. Certain areas at certain times may have more significant crime and require more police presence, or more assertiveness, but it has to be balanced. If an African-American or a recent immigrant—or anyone else, for that matter—can’t feel secure walking into a police station or up to a police officer to report a crime because of a fear that they’re not going to be treated well, then everything else that we promise is on a shaky foundation.
ROMER: When we first tried to limit the potential for abuse and professionalize policing, which were clearly important things for us to do, we may have gone too far and made it impossible for police to do what had historically been their primary job: preventing crime. Or perhaps it would be more accurate to say that we sent the message that police could get into trouble if they tried to anticipate and prevent crime, and we gave them a justification for simply waiting for crime to happen and then reacting to it. We developed a new theory about what caused crime—the so-called root causes—and a new view about what the job was for police. Because they could not change the social and economic factors that were thought to be the root causes of crime, the police could not be expected to prevent crime. All they could do, and all we expected them to do, was to clean up after it took place.
BRATTON: After the 1960s, as social movements evolved and America was changing, society felt that the role of the police also needed to change, to become more professional and better educated, in terms of forensics and training.
What changed in the 1990s—and I’m one of the principal advocates of it—was that the role of police became first and foremost about preventing crime. I’ve always embraced decentralization, empowering a local precinct commander to work with his or her community. In a city the size of New York, you can’t expect the police commissioner to be aware of what’s going on down, say, on West 3rd Street all the time. But the precinct commander there, through involvement with the community, should be aware of deteriorating conditions in the area and be able to address them. This approach allowed us to identify the problems that were creating fear, disorder, and, ultimately, crime. Given that the police have limited resources, the question then becomes: What do we prioritize? What do we focus our time on?
That was the purpose of the Compstat process that we developed in 1994 to track crime. We needed active intelligence so that we could rapidly respond to what it was telling us. But we also needed an environment where all the police commanders came together to talk about what was working and what wasn’t. And in that process, part of the effort was to reduce falsification. Because if you’re in there with all your peers, they’re going to detect very quickly when something’s wrong or doesn’t add up. We would do auditing, so if any precinct reported a percentage change in crime that was outside the standard variation for the rest of the department, it would be audited to find out what was really going on.
ROMER: Describe the changes that followed from this return in New York to the traditional view that the job of the police is to protect public safety by preventing crime.
BRATTON: Many New Yorkers are too young to understand what the city looked like when I got here in 1990—the graffiti, the decay, the crime, the social disorder. The police were not expected to do anything about these quality-of-life issues—aggressive begging, encampments in every park. When I came in as police commissioner, almost 300 people were living in the park across the street from the UN. At the time, we didn’t focus on that, though. There was a perception that the police really couldn’t do anything about that kind of disorder. We thought that we were focused on serious crime. What we really didn’t understand until the late 1980s and early 1990s was that the victim of all the abhorrent behavior on the streets was the city itself.
To give you an idea of how things have changed: in 1990, I didn’t go anywhere without a gun because, as chief of the transit police, I did not feel secure anywhere, including in the subways. In Los Angeles, when I was chief of police there, I also had to carry a gun everywhere, because of the gang violence. I don’t carry a gun now. I haven’t for a while. It’s locked away. I just don’t feel the need for it. And I like it that I can do that.
ROMER: One of the misleading conclusions that outsiders seem to have reached is that police cannot deter a person from committing a crime, so the only thing they can do is find people more likely to commit crimes and incapacitate them, lock them up, and throw away the key. I know that you reject this kind of naive, “get tough” approach to crime. One of the dramatic but rarely noticed successes of the turnaround in policing that you started in New York is that the incarceration rate has fallen. A smaller fraction of the population is locked away, yet far fewer crimes are being committed. This points clearly to the possibility, even the likelihood, that with the right policies, we can prevent crime. We can deter people from committing crimes.
Those same people who look at policing from the outside sometimes describe community policing as the misguided alternative to the “get tough” policies that they support. You have always believed that to prevent or deter crime, police must have a good working relationship with the community—that this is as important in preventing acts of terrorism as it is in preventing street crime.
BRATTON: Seventy-five percent of the terrorist plots that have been disrupted since 9/11 were detected when a community member informed a police officer or when a police officer who had a relationship with the community was able to put the clues together to predict that something was going to happen and take steps to prevent it. So the collaboration that is so essential to successful policing really requires the community to be able to trust that what the police are doing is, in fact, not illegal and not based on racial profiling or targeting the Muslim community. Proactive, assertive policing is effective, but if you don’t have the legitimacy and the trust of the community, you’re not going to get the information that you need to predict and prevent crimes.
ROMER: This same strategy is as important in the fight against gang crime as it is in the fight against terrorism. When you took over as chief of police in Los Angeles, it was clear to everyone that the police did not have a good working relationship with the community, especially with the minority community. Developing a better working relationship with the community was crucial to the turnaround that you implemented there, one that may have been even more difficult than the turnaround in New York (see “The LAPD Remade,” Winter 2013).
One hallmark of New York’s turnaround was a greater reliance on data. In Los Angeles, did you have a way to get frequent updates on how public attitudes toward the police were changing, something that you could use as you used Compstat in New York—as a management tool to see if the officers out on patrol were bringing about the needed changes?
BRATTON: Well, we really had to rely on polling done by entities such as the Los Angeles Times and other institutions.
ROMER: This seems to be an area in which technology should be able to help. Ideally, a police chief should have as much detailed geographical data about the relationship between the police and the community as he has about crimes committed. Do you see other ways that technology and new data sources could change policing?
BRATTON: Through the algorithms being developed by a number of universities, we now have an increasing ability to predict where a crime will occur. It doesn’t mean that we can know exactly when it will happen and exactly what it will be, but we can say that, within a certain time frame, within a certain geographic area, if we don’t put resources in there—meaning, a police officer—there’s going to be a crime committed. So you’ll hear this term “predictive policing” a lot more often, going forward. It will require computing power and intelligence-analysis capabilities. This means real-time crime centers outfitted with the latest technology. That costs money, and, as you well know, money is tight these days.
ROMER: What about new ways for police and the community to communicate? How can you let members of the community know what the police are doing and why they are doing it?
BRATTON: The police have historically had to rely on the media. Sometimes you had to go through them to get to the public—and, not only to get to the public, but to get to the cops as well, because cops read papers. They watch television. Their families watch television. So you needed to use the media. The media hated it when we said that we “used” them, but you had to make yourself available to them. Sometimes it was painful to make yourself available, but you had to do it to get certain messages through.
But now we have Twitter. Now we have all these social media sites. Think about what happened with the Boston Marathon bombing. The news media are erroneously reporting information. Someone puts up pictures of people who weren’t involved and says, “Here are the bombers.” Someone else reports that the bombers have been arrested. It’s all wrong. So what do you do? Well, now the Boston P.D. can instantly put out a Tweet saying, “No arrest has been made. The two individuals identified in the newspaper story are not who we’re looking for.” And that’s that. It’s irrefutable and reaches thousands or tens of thousands of people and then gets amplified through the traditional media.
ROMER: Let me ask you one last question, which is, in a sense, a management question. How can you effectively manage an organization in which a very few bad apples can make headlines for abusing their power and do enormous harm to the legitimacy of the entire force?
BRATTON: A police official once said to me that the NYPD employs more than 38,000 “career assassins”—the idea being that any one of the police officers in New York can, at any time, through inappropriate or criminal behavior, effectively bring about a catastrophe for the whole department. All you have to do is think of the actions of Justin Volpe—the officer who brutalized Abner Louima—to appreciate how fragile public confidence in the police can be. This is particularly true in minority communities. The way you deal with that problem is to make it clearly known that the department does the best it can to recruit, train, and supervise its officers. You have to send a message that those officers who go astray will be disciplined. You have to be honest and transparent at all times.
William J. Bratton is once again New York City Police Commissioner. He has formerly served as Boston police commissioner and chief of police in Los Angeles. His conversation with Paul Romer was hosted by the NYU Stern Urbanization Project and NYU’s Marron Institute.
Paul Romer is a University Professor at New York University and founding director of the Urbanization Project at the Stern School of Business.
Politics, Religion, Science, Culture and Humanities / Politics & Religion / Why Drug Lords and Criminals Are So Risk-Averse
on: February 24, 2014, 06:05:21 PM
Why Drug Lords and Criminals Are So Risk-Averse
By Ben Steverman Feb 21, 2014 2:10 PM MT
Photographer: Raul Arboleda/AFP via Getty Images
A picture of late drug trafficker Pablo Escobar is hung from a wall inside the Napoles... Read More
Even international drug traffickers need investment advisers.
That was Robert Mazur’s job when he went undercover for the U.S. government in the 1980s and ‘90s. Posing as a Mob-connected businessman, he helped the Medellin drug cartel launder and invest its suitcases full of cash.
His clients were “the biggest crooks in the world,” says Mazur, author of "The Infiltrator: My Secret Life Inside the Dirty Banks Behind Pablo Escobar’s Medellin Cartel.” Yet they “always told me that they don’t gamble,” Mazur says. “They don’t take risk, which is why the stock market was of absolutely no interest to them.”
Wait, criminals don’t like risk? Murder, drug trafficking, fraud and bribery -- all okay. But propose buying them shares of Twitter or Tesla, and they freak?
Investing, by definition, means trusting others. You must believe chief financial officers aren’t cooking the books and rely on people like Mark Zuckerberg to make smart use of the billions at their disposal. For criminals who thrive on taking advantage of trust that’s not an easy sell.
Convicted felon Sam E. Antar says stock-picking -- trusting in people and numbers you can’t directly verify -- sets you up as a mark for the unscrupulous. Antar was the chief financial officer of Crazy Eddie, Inc., an electronics chain led by Sam’s cousin, Eddie Antar. The chain collapsed under the weight of its fraud in 1989. “Investors live on hope and it’s the criminal’s job to take advantage of that hope,” Antar says.
The fact that he got caught is no consolation, Antar says. Regulators and investigative reporters have been losing the resources to uncover fraud. He points out, correctly, that the number of FBI white-collar crime prosecutions has fallen by half since the 1990s. Antar now speaks on white-collar fraud, often to law enforcement groups, runs a website on the topic and consults for law firms suing on behalf of investors.
“If I wanted to be a scam artist today, I could be very, very successful,” he says. “I’d probably have less risk of being prosecuted and far less risk of going to prison.” But as he also points out, criminals are as short-sighted as the rest of us, maybe more so. “Nobody ever plans on failure,” he says. “The prisons are full of people who never planned on being there.”
Politics, Religion, Science, Culture and Humanities / Politics & Religion / Interview: Aaron Clarey Talks Bachelor Pad Economics
on: February 24, 2014, 06:01:36 PM
Interview: Aaron Clarey Talks Bachelor Pad Economics
February 23rd, 2014 - 6:46 pm
“Bachelor Pad Economics,” Aaron Clarey tells me about his new book in our latest podcast interview, is focused upon “maximizing your amount of time on this planet to spend on you and leisure and not be slaving away eighty hours at the office and just so you can afford that big mansion in the suburbs or the BMW SUV.” Clarey stresses the importance of minimalism in his financial planning. “Material wealth really doesn’t matter,” he tells me. “I’m the biggest capitalist there ever was. But truthfully, the only thing that really matters, the true source of happiness is other humans. And the great thing about humans is they’re free.”
Is it possible to enjoy America’s decline from your swank bachelor’s pad, knowing that you’re financially prepared to ride out the worst of the remaining years of the Obama era? Yes we can, shouts Clarey, the self described “Captain Capitalist” and “the only motorcycling, fossil-hunting, tornado-chasing, book-writing, ballroom-dancing, economist in the world,” in Bachelor Pad Economics. Clarey’s new book brings financial planning to the themes of his previous title, last year’s Blogosphere hit, Enjoy the Decline.
During our nearly 19-minute long interview, Aaron will explore:
● The only source of happiness in a period of national decline.
● What is the chief underlying cause of American decline?
● The importance of minimalism as a financial strategy.
● How did Aaron make the jump from financial analyst to new-media maven?
● How to survive the higher-education bubble.
● What role does real estate play in Bachelor Pad Economics?
● What is the infamous “Smith & Wesson Retirement Plan”?
And much more. Click here to listen:
(18 minutes and 51 seconds long; 16.5 MB file size. Want to download instead of streaming? Right click here to download this interview to your hard drive. Or right click here to download the 3.10 MB lo-fi edition.)
If the above Flash audio player is not be compatible with your browser, click on the video player below, or click here to be taken directly to YouTube, for an audio-only YouTube clip. Between one of those versions, you should find a format that plays on your system.
Transcript of our interview begins on the following page; for our many previous podcasts, start here and keep scrolling.
MR. DRISCOLL: This is Ed Driscoll for PJ Media.com, and we’re talking today with Aaron Clarey, the self-described Captain Capitalism, who blogs and podcasts at Captain Capitalism.blogspot.com, is the author of the 2013 Blogosphere hit Enjoy the Decline, and is the author of the new book, Bachelor Pad Economics. And Aaron, thanks for stopping by today.
MR. CLAREY: Thanks for having me, Ed.
MR. DRISCOLL: Aaron, most financial and self-help books have rather grandiose titles dating back to Napoleon Hill’s classic 1937 book Think and Grow Rich. In contrast, Bachelor Pad Economics, at least going by its title, sounds like a more modest approach to finances. So what constitutes the economics of the bachelor pad?
MR. CLAREY: Well, there’s several traits or qualities, I guess, or strategies. But probably the most important one, or the underlying one, is minimalism. And the reason I start focusing on minimalism is not just because I was brought up poor and it was by force, but as time goes on, especially in the Western civilization we rely on stock markets and capital gains and stock valuation for our retirement, you have a bubble with primarily baby boomer retirement dollars driving up the price of stocks. And so when they withdraw their money, I foresee at least a stagnation in stock prices in terms of real rates of return.
And that is going to put the onus or put the focus on personal budgeting and cost control and spending as little as possible. So there’s that financial aspect.
And then the other aspect or minimalism that kind of underlines the book is that material wealth really doesn’t matter. I’m the biggest capitalist there ever was. But truthfully, the only thing that really matters, the true source of happiness is other humans. And the great thing about humans is they’re free.
So, you know, your family, your friends, your loved ones, those people willingly hang out with you and are going to provide a higher rate of return, a higher quality of life than a Ferrari or anything like that.
So Bachelor Pad Economics is ‑‑ you know, there’s certain other aspects like the education and career and all this other stuff, but it is focusing on maximizing your amount of time on this planet to spend on you and leisure and not be slaving away eighty hours at the office and just so you can afford that big mansion in the suburbs or the BMW SUV.
MR. DRISCOLL: Your Twitter profile describes you as “the only motorcycling, fossil-hunting, tornado-chasing, book-writing, ballroom-dancing, economist in the world.” Could you talk about your background in economics and how you made the jump to writing and new media?
MR. CLAREY: It was all accidental, truthfully. I majored in finance at the University of Minnesota and ended up becoming credit analyst. And kind of to the buildup of the housing bubble, it wasn’t accounting or financial statements that was where the threat was coming from. The threat was coming through valuations, through loan-to-values, through economics. And I had minored in economics. I always loved economics and it was my original major, but it just wasn’t practical in terms of employment.
However, as the housing bubble grew larger and larger and larger, I was forced more and more into analyzing the economy and housing market than I was people’s financial statements or companies’ income statements. And that kind of sent me on another trajectory where the next bank I worked at had me more in a role of an economist. And then I also wrote a book about the housing bubble. And that along with just banking being just so horrendously corrupt and inept, I couldn’t tolerate it anymore.
And slowly but surely, my writing career ended up taking off, especially with the advent of the Internet and Amazon. And yeah, when it came down to the choice, [I thought], do I want to blog and write from my laptop on a beach or at Yellowstone National Park, or while I’m riding a motorcycle up to Alaska? Do I want to do that, or do I want to sit in this cubicle analyzing financial statements?
So I cut the string about, oh, two years ago, and have not looked back.
MR. DRISCOLL: The timing of Enjoy the Decline, your previous book, was excellent, coming as it did in early 2013, shortly after Americans voted for another four years of Mr. Decline himself, Barack Obama.
Let’s break the title down to its two halves, particularly since you expand upon these themes in the new book, Bachelor Pad Economics.
Could you start by explaining how America wound up in its current period of decline?
MR. CLAREY: Yeah. Basically, the quality and caliber of the people has declined. You look at people today ‑‑ you know, a perfect example to me, going around the Internet there’s a picture of a World War II vet who is 26, and then a picture of Pajama Boy, who is 26. And that basically sums it up right there.
The country is only going to be as good as its people. You’re going to get the government you deserve. And that’s where the decline comes in. So that’s the primary thing.
And then the symptoms that you see are government debt, government deficits, spending per pupil. [In] Glenn Reynolds’ new book, he’s got some great charts in there showing that spending per pupil adjusted for inflation has gone up four-fold, but the performance has stagnated. All these things show that it’s the Roman Empire version 2.0. And that’s where the decline aspect comes in.
MR. DRISCOLL: And if America is in a protracted, possibly irreparable, period of decline, what are some ways to enjoy it?
MR. CLAREY: Well, the first thing is to accept reality. And Enjoy the Decline doesn’t parallel perfectly the five or six stages of grief, but it’s the same process. Everyone grew up with the United States. We love it. And we were told what to believe, Ronald Reagan, rah, rah, rah, all that other stuff. But the key to enjoying it is to first accept reality. Because if you live in denial, every decision you make based on that denial is not going to be effective.
So we first have to realize that the United States is at least in a declining state or at minimum, stagnation. The prospects do not look good for the future. I don’t see us turning around. And you have to also admit that no matter what, the United States is not special. Every empire collapses. Every one throughout the history of the world does.
So you got to say, okay, I’m here and alive now. I don’t want to believe in flowers and puppies and unicorns. So given that the United States is in decline, what decisions can I make that will still make the best of a bad situation?
MR. DRISCOLL: Well, you mentioned Glenn Reynolds’ books on the higher education bubble. Do you recommend spending large amounts of cash for higher education and advanced degrees, majoring in arcane subjects to get ahead in the 21st century America?
MR. CLAREY: Not ‑‑ not arcane subjects. If you want to become a surgeon, maybe. And even with Obamacare, that’s doubtful. But it really does depend.
I had another book called Worthless that was basically the young person’s indispensible guide to choosing the right major. And it really does depend. It’s very simple. Ask people what they want to buy, what they want to purchase, what they’re going to purchase, and then go major in something that builds that. That’s how simple it is.
So if you want to major in English in an English-speaking country, that’s pretty stupid. If you want to major in feelings and emotion or you want to major in your skin color, or your ethnicity ‑‑ Chicano-American studies [for example], that’s stupid.
But if you want to major in chemical engineering, electrical engineering, stuff like that, [then] yes, it’s worth spending the money, but get your bang for your buck. I don’t know how people can think dropping six figures on a master’s or an advanced degree in the liberal arts is wise or sane.
MR. DRISCOLL: What role does real estate play in Bachelor Pad Economics?
MR. CLAREY: Ed, it’s kind of a love-hate relationship, and it really depends on the individual. If you’re a family man, yeah, you probably want to get a house if you’re going to raise a family. Some people can do the corporate thing. I can’t do the corporate thing. I just can’t. I’m too independent-minded and I’ve got two hemispheres of a brain.
But for those people who can reliably be employed for 20 years, 30 years, the life of a mortgage, sure, go ahead and get housing. But at the same time, realize that local governments are just as socialist or trending socialist as the federal and state governments. So you’re buying the right to pay property taxes. And in some towns, especially like Detroit and Minneapolis, Chicago, the property taxes get so high, that you’re paying more on property taxes than you are principal or amortization on your — on your mortgage.
But outside of the family man, living in pretty conservative suburbs and rural areas, I really don’t like real estate in terms of an investment, because especially as a bachelor, especially if you’re going to be doing the minimalist route, a house is just pointless, especially with telecommuting and everything nowadays. You’re anchored to that property. I think Peter Schiff and I share some of the same views of this. You’ve got to maintain the home. It just isn’t worth it.
It is so much easier and so much freeing of your life to rent and have a landlord deal with the maintenance issues and everything else, than becoming a homeowner. So it really does depend on the individual and what you want to achieve in life.
MR. DRISCOLL: Well, given the title of both books, what is the relationship of having kids and having financial freedom?
MR. CLAREY: A negative correlation.
MR. DRISCOLL: Okay.
MR. CLAREY: Not necessarily ‑‑ I mean, financial freedom is one thing, but happiness is a completely different ball of wax. Kids are humans, and they’re probably the single-most source of happiness and joy that loving, good parents will ever have. And they can also be the worst experience ever, if you’re not prepared to raise them.
But definitely in terms of money, absolutely, children are the number one cause of poverty. That’s just a fact. And if you have a kid, well, your income per capita has immediately dropped by half.
I’m not saying don’t have kids. I know people that have kids, and they’re wonderful kids and [when I see them], I kind of say, god, maybe I should [have kids].
And then I see the crying, screaming kids that are throwing rocks through windows, and they’re my windows. And I’m like, get that kid out of here before I call the child services. And so again, it does depend on the individual and what they want in life.
MR. DRISCOLL: Aaron, I believe that both of your recent books rather infamously reference “the Smith and Wesson Retirement Plan.” Most of us would rather not, to quote Pete Townshend, “fire the pistol at the wrong end of the race.” While recommending much about Bachelor Pad Economics, in a post at PJ Media earlier this month, Dr. Helen Smith, who helped champion your books, took strong offense at your suggestion. Could you elaborate on your reasoning?
MR. CLAREY: Well, the reasoning is economic. And it is secular. I won’t deny that. So people who are religious or even traditional, they obviously would be against that. And I take no umbrage and no offense to it.
But from a purely economic point of view, and even a humanitarian point of view, there are some times where you’re terminally ill — pick your poison: cancer, a brain tumor, whatever. And you’re not coming back, you are going to die, and the remaining two weeks, three months, whatever your life, are going to be absolutely in pain and misery.
I think it’s wise or humane or ‑‑ what’s the word I’m looking for ‑‑ compassionate to, you know, somehow kill yourself, not necessarily with a Smith & Wesson, but some kind of euthanasia. And it not only puts you out of your misery, but it also saves a ton of money. I mean, I forget what the statistics are, but a plurality of your health expenses are incurred in the last six months of life.
So you want to talk about, you know, saving your family the grief of watching you just decay and, whatever, mentally, physically, what have you, or be in pain; not to mention save the finances for a future generation. It’s not for everybody. I’m not saying you have to do it, I’m just saying it is an option.
MR. DRISCOLL: Well, barring that approach, how would you recommend planning for retirement in today’s economy?
MR. CLAREY: Oh, it really depends. I would get some money outside of the United States so it cannot be confiscated like Argentina or Cyprus. I would definitely contribute to a 401(k) and an IRA, even though I’m not a big fan of retirement plans.
And especially if, let’s say, in your 401(k) or 403 you have a match. Absolutely, because that’s free money. But then maybe have some exposure in property. Not necessarily something that you’d live in, but through a real estate investment trust, because real estate is a pretty good hedge against inflation, and it does grow with the population, as long as your population is growing. At least there’s some intrinsic value there. I also recommend having gold and silver, not necessarily for investment purposes, but more inflation insurance reasons.
But then, in terms of other asset groups, there really isn’t a lot of growth. I mean, it’s not just the United States baby boomers that are retiring, but boomers of all the western nations where most of the capital is. And these retirement dollars have driven up stock valuation everywhere. This is why your dividend yield is like a paltry two percent. This is why ‑‑ well for other reasons, the Central Bank and your government bond or your saving account pays less than one percent.
So I don’t see a lot of hope. I don’t see a lot of up and coming economies. I mean, maybe Singapore, Malaysia, Hong Kong, for a safety bet. But that would be more like investing in a blue chip stock. You’re really not going to have a ton of twenty percent annual gains over the course of ten years.
MR. DRISCOLL: And speaking of bachelor pad-related questions. I have to ask, how did the photos of various lovely young women reading your books appear on your Web site?
MR. CLAREY: The ‑‑ wait. Which ‑‑ the ladies? Which one ‑‑ are you talking ‑‑ oh, the models?
MR. DRISCOLL: There’s the photo that’s currently on the right-hand sidebar of your blog, of a very attractive young woman reading ‑‑
MR. CLAREY: Oh, yeah! Well, I have friends of the female persuasion. And let’s say ballroom dancing and knowing how to salsa helps. And watching Victor Borge, Walter Matthau movies and Cary Grant movies, and maybe plagiarizing some of their sayings and words, and building up some charm, might have a say in that. But yeah, most of them are friends. All of them are friends. And we’ll leave it at that. They are friends.
MR. DRISCOLL: Your blog makes several reference to the “Manosphere.” I what the Blogosphere is, but what is the Manosphere?
MR. CLAREY: Well, the Manosphere is kind of…I’m not trying to tout it, but it’s just the truth. It’s this up and coming backlash to feminism, I guess, is the best way to put it. You’ve had, essentially, two-and-a-half generations of men brought up without dads. Even if the dad was present, they’ve been emasculated. I’m trying to be succinct with my description.
Basically, boys like girls, men like women. It’s probably the most important thing in our lives, especially when we’re younger. And the amount of lies and baloney we were fed about how to approach women, the nature of the sexes, blah, blah, blah, is wrong. It was all couched in feminism or heavily influenced by ‘60s, ‘70s feminism.
The Manosphere is basically the older brother or the father you never had, who says, all right, look junior, here’s the deal. No, girls don’t like nice, sweet men. They don’t like it when you write them poems; and they don’t like it when you give them flowers. They like it when you hit the gym, lift weights, show up on your motorcycle, and then don’t call them back for a week. It may not be pretty. It may not be nice. It may be completely politically incorrect. But it’s truth. It’s reality.
And so you have a lot of guys who are now turning to this older brother kind of Manosphere where you compare notes. Say, hey, did this work? No. Did that work? No. Did this work? Yeah, that worked.
So I got an entire chapter about girls, and it’s heavily influenced by the Manosphere, especially in terms of sexual market value. So we apply some economics there to describe the dynamic and the relationship between men and women, and specifically and practically how to use that to your advantage to woo the young ladies.
MR. DRISCOLL: And Aaron, last question: Your books are predicated on this nation being permanently hosed. Is that a reasonable assumption, or is there any hope for America yet?
MR. CLAREY: Oh, there’s always hope. I see some glimmers of hope. For example, and this gets, again, to the Manosphere. You could say I’m crass and direct and blunt and very politically incorrect. A disproportionate amount of my readership and viewership for my blog and my podcasts or my YouTube channel ‑‑ are minorities, especially black males and Hispanic males.
And the reason there’s hope is because these guys are sick and tired of being lied to their entire lives by primarily leftist politicians. And here’s a guy who’s like, hey, you know what? I don’t care about your feelings. I don’t care about your race. Here’s how it is. This is why you’re poor. Here’s a practical way to get out of it.
And I have a very loyal following from minorities. So when I see a lot of the Hispanic and black males becoming even more conservative, more libertarian than I am even, that kind of gives me hope.
But in general, that’s a niche of the Blogosphere that I’m in, where I see some hope. But my books are predicated on the U.S. collapsing, because if the U.S. didn’t collapse and it boomed, well, that’s not hard to adapt to. You just enjoy the incline. But what does take some doing is learning how to maximize your utility, enjoy your life to the limits, in a poor environment.
MR. DRISCOLL: This is Ed Driscoll and we’ve been talking today with Aaron Clarey of Captain Capitalism.blogspot.com and the author of the new book Bachelor Pad Economics. And Aaron, thanks for stopping by PJ Media.com today.
MR. CLAREY: Thank you very much, Ed.
DBMA Martial Arts Forum / Martial Arts Topics / Re: Life for 3 pot strikes
on: February 23, 2014, 08:11:13 PM
Life is tough, it's even tougher when you're stupid.
My father Jeff Mizanskey has been in prison for 20 years and has no possibility of parole. For non-violent, marijuana-only offenses, my father has been sentenced to die in prison because of a "three strikes" mandatory sentencing policy in the State of Missouri.
Dad's first offense was in 1984 when he sold an ounce to an undercover informant, and then was found to possess a half pound of marijuana when police raided his house the next day. His next offense occurred in 1991, when he was caught in possession of a couple of ounces. But for my father's final strike in 1993, he became an easy fall guy in a conspiracy to distribute marijuana. My dad was driving a friend to a deal that turned out to be a sting operation. All of the other convicted men involved were set free years ago, but my dad was given a virtual death sentence.
My dad is, and always has been, a good man. He taught my brother and I all about construction and a good work ethic. He has never been violent and he is a model prisoner. And over the 20 years he has been in that little cell, he has watched as violent criminals, rapists, and murderers have "paid their debts" and left - sometimes just to return a few months later.
My father is 61 years old, and has been in prison since he was 41. His parents - my grandparents - have since passed. While my dad has been trapped behind bars, generations of kids and grandkids have been born into our family who have never even met the man. The State of Missouri spends roughly $22,000/year to keep him locked up. Meanwhile all my dad wants to do is be a productive part of society, work and pay taxes, be with his family. And I want my dad back.
Governor Jay Nixon is the only person who has the power to bring my dad home by granting clemency to Jeff and calling 20 years punishment enough. Please help us reach a just and reasonable end to his prison sentence by signing and sharing this petition.https://www.change.org/petitions/my-dad-is-serving-life-without-parole-for-marijuana?utm_source=action_alert&utm_medium=email&utm_campaign=49464&alert_id=YrJplLiJIp_OXriqjMNjT
DBMA Martial Arts Forum / Martial Arts Topics / Re: Citizen-Police interactions
on: February 22, 2014, 07:49:21 AM
A free society is difficult to police, and given the alternatives, that's the way I'd prefer it to be.
In the system envisioned by our founders, there should be a constant tension between public safety and personal freedom, with neither being absolute. No rational person wants to live in a police state. Nor should you want to live in a place without the rule of law. Laws are meaningless unless there is a tangible enforcement of them and real incentives and disincentives associated with individual conduct.
Would anyone look at the failed states on the planet as opportune places to live? Why do I not see big L Libertarians moving to Somalia to avoid America's so called "militarized police"?
If one were to examine the limitations on police power in western/english speaking nations, you'd find that American law enforcement has less authority and operates under greater scrutiny than any other nation. We have the only elected law enforcement executives in any country I'm aware of and the vast majority of law enforcement agencies in this country are under local control. Good or bad, the local agencies reflect their communities giving proof to Thomas Jefferson's line that the people get the government they deserve.
I'm pretty certain that only the US has legal firms specializing in litigating against law enforcement agencies or has a large insurance industry focused on insuring individual law enforcement officers against the full spectrum of potential legal jeopardy faced by officers in the US. Due to the massive liabilities associated with law enforcement in this country, the biggest obstacle for police supervisors and administrators is to motivate officers to navigate the real dangers of the job and the legal minefields while cultivating a positive relationship with the public they serve.
It's not easy, as I said before, nor should it be, but I see a deep vein of irrationality in the discussion of American policing today that in no way reflects the reality I know.
DBMA Martial Arts Forum / Martial Arts Topics / Re: Citizen-Police interactions
on: February 20, 2014, 06:13:28 PM
As usual, you bring good intel to the conversation.
As I go out into a busy day, let me ask you a two part question:
Must anyone present ID to an officer at any time?
It depends. What does the state law require? Some states require you ID yourself, some don't. Is it a "Terry stop" or a consentual contact? Are you being cited for a violation?
Because ID'ing people who may be involved in criminal activity or have outstanding warrants in an effective tool for keeping the public safe.
DBMA Martial Arts Forum / Martial Arts Topics / In Praise of Routine Traffic Stops
on: February 19, 2014, 11:35:48 AM
In Praise of Routine Traffic Stops
by Daniel Pipes
May 4, 2005
updated Apr 30, 2013
Today's news includes this item:
Sami Ibrahim Isa Abdel Hadi, 39, was stopped for tailgating on Route 46 in Ridgefield Park, New Jersey. When a Bergen County police officer called in Abdel Hadi's North Carolina license plates, he learned that Abdel Hadi had been ordered deported to Brazil in December 2001 and is listed in the FBI's National Crime Information Center database. Even more interestingly, Abdel Hadi has a valid temporary I.D. from L & L Painting to paint the George Washington Bridge (a high-profile potential terrorist target).
Abdel Hadi is hardly the first actual or potential terrorist stopped due to a routine traffic infringement.
In July 2004, Michael Wagner's not wearing a seat belt got him stopped in a SUV near Council Bluffs, Iowa, that had in it "flight training manuals and a simulator, documents in Arabic, bulletproof vests and night-vision goggles, a night-vision scope for a rifle, a telescope, a 9mm semiautomatic pistol and hundreds of rounds of ammunition."
Timothy McVeigh was stopped in April 1995 as he sped away from Oklahoma City bombing that killed 168 people and injured more than 500 because his car lacked a license plate.
A New Jersey state trooper noticed Yu Kikumura's odd behavior at a New Jersey Turnpike rest stop in April 1988 and thoroughly searched his vehicle, finding three powerful homemade bombs. Kikumura, a member of the Japanese Red Army, was sentenced to thirty years in jail followed by deportation to Japan.
Three members of the Syrian Social Nationalist Party (Walid Nicolas Kabbani, Georges Fouad Nicolas Younan, and Walid Majib Mourad) were stopped by Richford, Vermont's only policeman in October 1987, because he was suspicious of their movements. Indeed, they were smuggling a bomb from Canada to the United States.
Comments: (1) It is remarkable how many criminals, terrorist and otherwise, make elementary traffic mistakes. (2) There is no substitute for law enforcement on the ground. (3) If good luck brings in so many terrorist-related individuals, one has to wonder how many of them don't tailgate and do wear seatbelts. (4) I shall record other examples here as I become aware of them. (May 4, 2005)
Semi Osman was driving to Bly, Oregon, on Sep. 30, 1999, when the Oregon State Police stopped him because his car lights were not working, then cited him three more times for other infractions. One of these stops caught the attention of the FBI, which had lost track of Osman. He was subsequently arrested in 2002, accused of "material support for terrorists," plea-bargained, pleaded guilty to a weapons violation, and served his jail sentence. (October 4, 2005)
"On a damp, gray day in March 2004, the Dutch traffic police stopped a Belgian driver for a broken headlight and accidentally stumbled onto a major investigation of Islamic radicals," write Elaine Sciolino and Hélène Fouquet in the New York Times, telling the story of Khalid Bouloudo, whose name "turned up on an Interpol watchlist, for an international arrest warrant from Morocco charging him with links to a Moroccan-based terrorist organization and involvement in suicide bombings in Casablanca in 2003. The random arrest set into motion a cascade of events that underscores the extent of the radicalization of young Muslims throughout Europe - and a rapidly expanding and home-grown terrorist threat." (October 9, 2005)
Nov. 12, 2005 update: Apparently, not everyone shares my appreciation for the benefits of routine traffic stops. The Staten Island Advance reports on a meeting between the borough's Muslim community and its police commander, Albert Girimonte, in which the former complained that in four incidents during the past 11 months,
cops investigating minor auto accidents or traffic infractions allegedly asked mosque members inappropriate questions about their citizenship status. "The typical question has been: 'Where are you from, where were you born?' … Two questions that are totally irrelevant at an accident scene."
In one of the incidents near the Staten Island Mall at Christmastime last year, a female Pakistani wearing a Muslim shawl repeatedly was asked where she came from, he said. "This is an educated woman," [the Muslim leader] said. "When a policeman first asked her where she was from, she told him Staten Island. Then he asked her where she was born. She told him Pakistan." There were other incidents in the spring, he said, including the case of a girl caught crossing against a traffic light in New Springville being questioned.
For his part, Girimonte agreed that the interrogation was improper: "Asking a person at an accident scene where they're from is not necessary. Once your proper ID is confirmed, all you want to find out is what happened." He acknowledged being "surprised" by the incidents and promised that traffic stops would not lead to questions about citizenship status. "This is basically a training issue. And we'll address it. The police should not be concerned with the citizenship status of motorists. That's not our bailiwick."
Naveed Haq under arrest.
Tragic proof that Albert Girimonte is wrong and I am right came yesterday, when Naveed Afzal Haq was driving to the Jewish Federation of Greater Seattle building, where he proceeded to murder one person and severely injure five others. According to Seattle Police Chief Gil Kerlikowske, as paraphrased by the Associated Press, Haq had been "stopped shortly before the shootings in Seattle for a minor traffic infraction, and was cited and released. … Haq had a valid driver's license and his actions did not raise any suspicion." That traffic violation was driving down a buses-only lane. Comment: How many more murders will it take for the police to wake up to the danger of Sudden Jihad Syndrome? (July 30, 2006) Apr. 16, 2008 update: Police Officer Glen Cook gave testimony in Haq's trial, providing more details: Haq drove his white Mazda pickup north on Third Avenue at 3:37 p.m., a bus lane at that time of day, Cook pulled him over, took down Haq's license and proof of insurance, ticketed him, and let him go.
July 1, 2007 update: The July/August issue of the magazine Crime & Justice International features an article on pp. 4-12 by Dean C. Alexander and Terry Mors, "Best Practices in Identifying Terrorists During Traffic Stops and On Calls for Service." It discusses "how patrol officers can assist in identifying and capturing domestic and international terrorists while undertaking traditional duties, with particular emphasis on traffic stops and calls for service." The author's advice is summed up in a few words: "Police should go on the offensive and aggressively look for signs of terrorist activity or involvement."
The newspaper account does not tell why New Castle County, Delaware, police Officer Thomas Bruhn stopped the car of Amir Al-Kaabah, 21, and a female passenger shortly before 3 p.m. on Court Street near Brandywine Avenue in Claymont, but he stumbled on a minor treasury of criminality: 10 grams of marijuana, a large buck knife, fictitious registration tags, no title to the car, and an identity theft ring. The last became clear when he found expensive jewelry, clothing and shoes, all in their original wrapping in the trunk, all purchased with credit cards belonging to recent customers at the Comfort Inn in Birmingham Township, where the female passenger happened to work. Further inquiry found that Al-Kaabah is a fugitive from Georgia for violating his probation for a conviction of armed robbery, kidnapping and weapons violations. Al-Kaabah was charged with carrying a concealed deadly weapon, possession of a deadly weapon by a person prohibited, possession of marijuana, and driving while suspended. The woman was turned over to Pennsylvania authorities to face criminal charges. (December 18, 2007)
Four men (Pratheepan Thambu, 22, Lojanand Srianandan, 27, both of Toronto, Sethukavalar Saravanabavan, 35, and Kirubakaran Selvanayagam Pillai, 38, both of London, U.K.) were riding in a rented van in Scarborough, Ont., on Jan. 28, when Constables Scott Aikman and Patrick Pelo watched them run a stop sign and pulled the van over. On looking inside, the officers noticed one of the four desperately hiding something. They also observed that the driver had been drinking, plus the presence of open liquor in the vehicle, giving them the right to search the vehicle, which they did. They found a number of plastic gift cards worth an estimated $250,000, with debit card information on the magnetic strip which police believe was stolen from UK bank customers.
Police later searched a hotel and a home and found another 88 cards, all with debit card data from British banks on their magnetic strips, as well as $25,000 in Canadian $20 bills, laptop computers and memory sticks, receipts for money transfers to the U.K., travel documents and passports and what detectives described as "Tamil Tiger paraphernalia."
The routine traffic stop quickly exposed an international debit card fraud ring, led to 373 criminal charges, and possibly broke up a Tamil Tiger terrorist fundraising and money laundering operation. Running a light is "not too smart a thing to do when you're driving a van full of stolen bank cards," Detective. Peter Trimble sagely observed. "And they had been drinking and had open liquor in the car, which also isn't very smart." (January 31, 2008)
Police in Matthews, N.C. stopped Sasan Ghazal, 21, of Bristol Ford Place in Charlotte, on suspicion of drunken driving on Feb. 9, and found an explosive device his vehicle. Under state law, Ghazal was charged with possession of a weapon of mass destruction, as well as possession of marijuana and drug paraphernalia. A U.S. Attorney will decide if federal charges are warranted. Ghazal is now in the Mecklenburg County Jail on a $101,500 bond. In 2006, he pleaded guilty of carrying a concealed gun and felony possession of drugs. (February 14, 2008)
According to CBS News, the sequence of events that ended in the arrest of Najibullah Zazi on terrorism charges began with his being stopped for an unspecified "routine traffic violation" on his way into New York: "While entering the city, he was stopped by police for a routine traffic violation on the George Washington Bridge, which connects New Jersey and New York. Suspicious police allowed him to go free but kept a close watch on his movements." The same account, however, goes on to state that "Zazi told authorities he disposed of the explosives once arriving in New York," raising the possibility that the traffic stop may have backfired by alerting Zazi to the fact that he was already being watched by the FBI before this trip to New York. The full story is not clear here. (February 22, 2010)
Swiss police report that a routine traffic-stop (for unspecified reasons) on April 15 at Langnau thwarted three eco-terrorists of Il Silvestre from blowing up the site of the £55 million nano-technology headquarters of IBM in Europe at Rueschlikon, near Zurich. The police stopped the two men and a woman a few miles from the target with an explosive device primed and ready to go off. (April 26, 2010)
Pre-Olympic U.K. terror arrests: Police stopped a car on June 30 on a highway in Yorkshire, impounded it, suspecting it was uninsured. They discovered two firearms, ammunition, and other materiel, leading to the arrest of the driver, the passenger and five other male suspects between 22 and 43. (July 6, 2012)
Jared Loughner killed six people and wounded 13 others, including Rep. Gabrielle Giffords, in Tucson, Arizona, on Jan. 8, 2011; it turns out, according to information buried in thousands of pages of just-released documents, that hours before his shooting rampage, he was stopped on a routine traffic matter. Arizona Game and Fish Officer Alen Forney saw Loughner driving in northern Tucson about 7:30 a.m. that day and stopped him for driving erratically and running a red light. Michael Mello recounts what happened for the Los Angeles Times:
When the officer approached the car, Loughner's hand was already thrust through the window, holding his license and registration. Forney said Loughner took off the black bandanna he was wearing. The officer saw that Loughner had a shaved head, something he thought was peculiar. He asked Loughner whether he knew why he had been stopped. He replied, yes, he did.
During the traffic stop, another Game and Fish officer drove by, asking whether Forney needed any help. "I gave her the thumbs up at that point," Forney told investigators. "I had no reason to believe anything suspicious was going on."
Forney said he didn't notice anything unusual inside the car, but had checked to make sure "the trunk was secure" on Loughner's '69 Chevrolet Nova. "I made the decision not to write a citation. Game and Fish doesn't write a lot of traffic citations … I was also in kind of a hurry" to join [a meeting with] other officers for their patrol at Florence Junction, east of the Phoenix metro area.
"I told him, 'I'm not going to write you a citation for this.' When I said that to him, his face got kind of screwed up and he started to cry.… That struck me as a little odd," Forney told investigators. "I asked him if he was OK. He said, 'Yeah, I'm OK. I've had a rough time and I really thought I was going to get a ticket and I'm really glad that you're not … going to give me a ticket."
Forney again asked Loughner whether he was OK, worried he would be driving with his emotions out of control, possibly leading to an accident. Loughner then immediately composed himself, he said. "He actually looked up at me and said, 'Can I thank you?' I said, 'Yeah, you can thank me.' He asked what my name was, and he stuck out his right hand."
(March 28, 2013)
• A routine traffic stop uncovered insurance problems which led to an arsenal of sawn-off shotguns, machetes, knives, samurai swords, elements for pipe bombs, and a nail bomb being found in a car. For details, click here. (April 30, 2013)
DBMA Martial Arts Forum / Martial Arts Topics / Re: Citizen-Police interactions
on: February 18, 2014, 11:08:11 PM
I'd think that you'd be a bit more sensitive to the trivialization of the horrors of the 3rd reich. Exactly what fate would one expect for someone who gave the slightest resistance or attitude to a nazi official? I'm pretty sure it would go far beyond a couple of citations.
Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / History Lesson: Racist Democrats and the Big Lie
on: February 18, 2014, 06:09:08 PM
History Lesson: Racist Democrats and the Big Lie
March 28th, 2013 - 5:07 pm
The way we were
In order to escape their truly wretched past (click on the link for my short book on the subject), modern Democrats have adopted as an article of faith the bedtime story that, thanks to Tricky Dick Nixon’s “southern strategy,” the racists who had been the backbone of their party for the better part of a century suddenly switched to the GOP en masse some time around 1968, with the happy result that now all the racists are on the right. Presto — instant virtuousness and a clean slate!
It’s a lie, of course. But don’t take it from me, take it from my National Review colleague Kevin Williamson, who addressed this issue brilliantly last year:
Worse than the myth and the cliché is the outright lie, the utter fabrication with malice aforethought, and my nominee for the worst of them is the popular but indefensible belief that the two major U.S. political parties somehow “switched places” vis-à-vis protecting the rights of black Americans, a development believed to be roughly concurrent with the passage of the 1964 Civil Rights Act and the rise of Richard Nixon. That Republicans have let Democrats get away with this mountebankery is a symptom of their political fecklessness, and in letting them get away with it the GOP has allowed itself to be cut off rhetorically from a pantheon of Republican political heroes, from Abraham Lincoln and Frederick Douglass to Susan B. Anthony, who represent an expression of conservative ideals as true and relevant today as it was in the 19th century. Perhaps even worse, the Democrats have been allowed to rhetorically bury their Bull Connors, their longstanding affiliation with the Ku Klux Klan, and their pitiless opposition to practically every major piece of civil-rights legislation for a century.
As Kevin goes on to point out:
If the parties had in some meaningful way flipped on civil rights, one would expect that to show up in the electoral results in the years following the Democrats’ 1964 about-face on the issue. Nothing of the sort happened: Of the 21 Democratic senators who opposed the 1964 act, only one would ever change parties. Nor did the segregationist constituencies that elected these Democrats throw them out in favor of Republicans: The remaining 20 continued to be elected as Democrats or were replaced by Democrats. It was, on average, nearly a quarter of a century before those seats went Republican. If southern rednecks ditched the Democrats because of a civil-rights law passed in 1964, it is strange that they waited until the late 1980s and early 1990s to do so.
And yet this myth persists — in fact, it’s just about the only response today’s Democrats have to their own sordid history: pinning it on the other guy. It makes them profoundly uncomfortable that among the 21 who voted against the Civil Rights Act of 1964 can be found Albert Arnold Gore, Sr., the founder of the Hillbilly Dynasty; Robert “KKK” Byrd, the Conscience of the Senate; and Sleepin’ Sam Ervin of Watergate fame.
Just for laughs, let’s take a look at the electoral maps for 1968 (Nixon-Humphrey), 1972 (Nixon-McGovern), 1976 (Carter-Ford), and 1992 (Clinton-Bush) to see how the South voted.
First, 1968, as the Vietnam War approached its high-water mark and the antiwar movement was starting to roll:
1968: still semi-solid
Nixon picked up some of the states of the Old Confederacy, largely because of their pro-military tradition and support for the war. “Wallace,” for those of you born yesterday, was Democrat George Wallace, a rabid segregationist who founded the American Independent Party and ran for president on its ticket. He won 13 percent of the popular vote, and carried five states in the Deep South for a total of 46 electoral votes.
Four years later, Nixon faced the first modern Democratic Party presidential candidate, George McGovern, who ran on a “Come Home, America” platform, and on whose campaign many of today’s radicals cut their teeth. Two items of note in the linked video clip: Missouri Senator Tom Eagleton was McGovern’s first running mate, who got dumped by the Compassion Party after it came out that he had been hospitalized for clinical depression and had undergone shock therapy. The other is McGovern’s extensive quote from “This Land is Your Land,” a hit for Peter, Paul and Mary written by the communist fellow-traveler, Woody Guthrie.
1972: the Cod stands alone
Yes, the South voted for the Republican — but so did every other state except for Massachusetts, which was the first indication of just how far gone the Bay State already was.
Four years later, Nixon was in San Clemente in the aftermath of Watergate, and a Southern governor named Jimmy Carter, whose only claim to the White House was that he was not RMN, was running against the Accidental President, Jerry Ford:
1976: you can go home again
Yes, twelve years after the Solid South supposedly flipped to the GOP, here it was, back again, helping to elevate a native son past the Michigander. The two Reagan wipeouts of 1980 and 1984 began the alignment of the South with the GOP — but it was partly reversed by Bill Clinton in 1992:
1992: Back to Bubba
The Republican ascendancy in Dixie is associated with the rise of the southern middle class, the increasingly trenchant conservative critique of Communism and the welfare state, the Vietnam controversy and the rise of the counterculture, law-and-order concerns rooted in the urban chaos that ran rampant from the late 1960s to the late 1980s, and the incorporation of the radical Left into the Democratic party. Individual events, especially the freak show that was the 1968 Democratic convention, helped solidify conservatives’ affiliation with the Republican party. Democrats might argue that some of these concerns — especially welfare and crime — are “dog whistles” or “code” for race and racism, but this criticism is shallow in light of the evidence and the real saliency of those issues among U.S. voters of all backgrounds and both parties for decades. Indeed, Democrats who argue that the best policies for black Americans are those that are soft on crime and generous with welfare are engaged in much the same sort of cynical racial calculation President Johnson was practicing when he informed skeptical southern governors that his plan for the Great Society was “to have them niggers voting Democratic for the next two hundred years.” Johnson’s crude racism is, happily, largely a relic of the past, but his strategy endures.
So the next time a Regressive tries to repeat the Thurmond myth, show him the maps — and make the Democrats own their history. They don’t like it very much, and who can blame them?
DBMA Martial Arts Forum / Martial Arts Topics / Suspects Who Refuse to Identify Themselves
on: February 18, 2014, 05:38:27 PM
Suspects Who Refuse to Identify Themselves
By Jeff Bray, Senior Legal Advisor, Plano, Texas, Police Department
A police officer does not need probable cause to stop a car or a pedestrian and investigate potential crime. According to the U.S. Supreme Court, a police officer may initiate a temporary stop, a level of intrusion short of an arrest, if the officer can articulate a reasonable suspicion that the suspect has committed a crime or is about to commit a crime.1 This is commonly known as a Terry stop. Further, if the officer can articulate a reasonable basis for suspecting that the subject might be armed, he can pat down the outer clothing of the suspect in a limited search for weapons. This is commonly referred to as a Terry frisk.
The Terry rule has developed quite a bit since 1968, but some aspects remain murky. In particular, if the suspect refuses to give his name or any identifiers, may an officer arrest the suspect? According to the Supreme Court, the police may arrest for failure to identify if state law criminalizes such behavior.
Officers conducting a lawful Terry stop may take steps reasonably necessary to protect their personal safety, check for identification, and maintain the status quo.2 Occasionally a suspect will refuse to identify himself. Pursuant to the Supreme Court’s opinion in Hiibel v. Sixth Judicial District Ct. of Nev., a state law requiring a subject to disclose his name during a Terry stop is consistent with the Fourth Amendment’s ban on unreasonable search and seizure:
Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere.3
Such a statute does not implicate the subject’s Fifth Amendment right to avoid self-incrimination, as simple disclosure of one’s name presents no reasonable danger of incrimination. But the Court clearly limited the application of this new rule by also noting that an officer may not arrest a suspect for failing to identify himself if the identification request is not reasonably related to the circumstances justifying the stop. The question is, is the request for identity a commonsense inquiry or an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence?
Furthermore, a state may not make it a crime to refuse to provide identification on demand in the absence of reasonable suspicion.4 The Court has also held that a requirement that a detainee give “credible and reliable” identification information to the police upon request is too vague to be a criminal offense.5
In short, if the state has a law requiring suspects to identify themselves when asked to do so during a valid stop or detention, the U.S. Constitution will not bar arrest and prosecution for failure to do so. It is not clear what officers may do if their jurisdiction does not have a law against failing to identify oneself.
Failure to Identify and Traffic Stops
The U.S. Court of Appeals for the Tenth Circuit has held that, in the context of traffic stops based on reasonable suspicion alone, a “motorist may be detained for a short period while the officer runs a background check to see if there are any outstanding warrants or criminal history pertaining to the motorist even though the purpose of the stop had nothing to do with such prior criminal history.”6 Several other circuits have come to the same conclusion.7
The Tenth Circuit addressed the issue later in United States v. Villagrana-Flores: “We explained in Holt that ‘the justification for detaining a motorist to obtain a criminal history check is, in part, officer safety’ because ‘by determining whether a detained motorist has a criminal record or outstanding warrants, an officer will be better apprized of whether the detained motorist might engage in violent activity during the stop.’” As long as the detention is for a short period, “the government’s strong interest in officer safety outweighs the motorist’s interests.”8
Failure to Identify and Pedestrians
Officer safety is just as strongly implicated where the individual being detained for a short period of time is on foot rather than in an automobile. An officer detaining a pedestrian has an equally strong interest in knowing whether that individual has a violent past or is currently wanted on outstanding warrants. The citizen’s interest, on the other hand, is no more robust merely because a short detention occurs while traversing on foot.
Moreover, permitting a warrants check during a Terry stop on the street also “promotes the strong government interest in solving crimes and bringing offenders to justice.”9 Indeed, an identity’s utility in “inform[ing] an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder,”10 would be nonexistent without the ability to use the identity to run a criminal background check.
What Does It Mean to Criminalize the Conduct?
It is up to each state or municipality to criminalize a suspect’s failure to reveal his or her identity. Such laws may not make it a crime to fail to reveal one’s name during a consensual encounter; to avoid violating the Fourth Amendment there must, at a minimum, be reasonable suspicion of crime afoot by the subject.11
Further, the stop-and-identify law must not be “vague,” according to the Supreme Court. In Kolender it found a California statute unconstitutionally vague because it required the subject to produce “credible and reliable” identification that carried a “reasonable assurance” of reliability, and left it up to the officer to determine what “credible and reliable” and “reasonable assurance” are.12 Acceptable statutes simply require disclosure and leave it to the subject to decide how to comply.13
If the name given by the subject turns out to be false, the subject has likely violated another law, giving the officer probable cause to arrest. The Nevada statute in question in the Hiibel opinion treats failure to disclose as a form of obstructing the discharge of an officer’s official duties. It is quite likely that the charge of obstructing official duty would be untenable for failure to identify in a Terry stop without a law similar to Nevada’s requiring a subject to identify themselves. In Texas a person is not guilty of failure to identify unless the person is already under arrest and refuses to give his name and other information. Further, an act criminally interfering with public duties may not consist of speech only. 14
What If a State Does Not Criminalize Refusal to Identify?
An interesting question arises when state law does not make it a crime to refuse to identify oneself but does clearly allow the police to temporarily detain the suspect and determine his identity. The decision in Hiibel suggests that Terry allows officers to ask for identification as long as the request for identification is reasonably related in scope to the circumstances that justified the initial stop.15 Also, Terry may permit an officer to establish or negate a suspect’s connection to a crime by compelling the suspect to submit to fingerprinting.16
In Hayes the police were investigating a string of burglary-rapes and had recovered latent prints from one of the crime scenes and herringbone-patterned shoe prints.17 Hayes was one of 40 suspects interviewed and came to be a principal suspect. Hayes refused to accompany police officers to the station for fingerprinting until threatened with arrest for refusing to comply. The police also seized from Hayes’s house a pair of sneakers with a herringbone tread pattern. Hayes’s prints matched the latent prints found at the scene.
The U.S. Supreme Court ruled that Hayes’s fingerprints were illegally obtained and inadmissible. The Court endorsed the practice of fingerprinting a subject when there is reasonable suspicion that the prints will establish or negate the person’s involvement in the crime being investigated. Further, the Court made it very clear that, under certain circumstances, the judiciary may authorize the seizure of a person on less than probable cause, and removal to the police station, for the purpose of fingerprinting. This is not to suggest that drivers, passengers, or pedestrians who refuse to identify themselves can be taken to the station for fingerprinting in all cases, only that it is possible in some cases.
Police Not Penalized for Stop Made Longer by Uncooperative Suspect
If an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.18 But when the delay in ending a Terry stop is attributable to the evasive actions of a suspect, the police do not exceed the permissible duration of an investigatory stop.19
There is some support for detaining a suspect during a Terry stop to determine his identity and conduct a warrants check, for which the suspects’ identity is required.20 The officer may detain the driver as long as reasonably necessary to conduct these activities and to issue a warning or citation. 21
Court Allows Fingerprinting at Scene
The Supreme Court has specifically left open the option of detaining suspects, fingerprinting them at the scene, and attempting to identify them with their fingerprints or even getting a warrant on less than probable cause to take them to the police station and try to identify them.22 Clearly, this option is burdensome for officers and intrusive for suspects.
Nevertheless, it might be justified when identification of a suspect is reasonably related to the scope of the stop. For instance, if the suspect is stopped because he somewhat matches the description of a wanted person, but not to the extent that he can be arrested for the crime, and the police have fingerprints of the wanted person, it might be both worthwhile and permissible to either get a court order authorizing seizure on less than probable cause and take the suspect to the station and fingerprint him or keep him at the scene, fingerprint him, and compare the prints. Any delay in ending the Terry stop would be attributable to the suspect’s refusal to identify himself.
These options apply to a narrow set of facts, but there is support in the case law for dealing in this manner with suspects who refuse to identify themselves, who have not presented the officer with probable cause to arrest, and whose identity is reasonably related to the circumstances justifying the valid Terry stop.
Evidence Uncovered During a Stop
If during a Terry stop police discover that there exists a valid arrest warrant for the subject, the arrest would be unassailable. A person cannot claim that his person is the fruit of an illegal arrest and that he is therefore immune from prosecution.23
But evidence obtained during an illegal detention or frisk will be inadmissible.24 For instance, a Terry frisk is a search for contraband. If an officer goes into a suspect’s pocket and pulls out a wallet without probable cause to believe that there is contraband in the wallet or pocket, and contraband is found, the contraband is inadmissible.
If the officer uses the identification in the illegally obtained wallet to determine the subjects’ identity for purposes of a warrant check, and it is determined that there is a valid warrant, the arrest under warrant is good, but any evidence out of the wallet is inadmissible. The courts have not clarified the ramifications of an illegal search that results in the discovery of a warrant that leads to a valid arrest.
Verbal Identification or Requirement of Documentation?
In Hiibel the Court notes that the Nevada statute “apparently does not require him to produce a driver’s license or any other document.” In Kolender we learn that a law requiring “documentary identification” may be unconstitutionally vague. One imagines, though, that a statute that specifies what documents are satisfactory would survive a vagueness challenge.
Still, the Supreme Court has never dealt squarely with the constitutionality of a state statute that requires production of documentary identification in an investigative detention or the legality of an arrest of a pedestrian for refusal to produce documentary identification. Obviously, if someone is operating a motor vehicle in a public area they can be required to produce the associated privilege license, which of course has the effect of identifying that person.
But what of suspects who are stopped but are not operating vehicles? Current law generally does not require that ordinary pedestrians even carry documentary identification and it remains to be seen what courts will do with the issues surrounding a requirement of documentary identification. Naturally, if someone is arrested, any documentary identification on that person can be located in the search incident to arrest. ■
1Terry v. Ohio, 392 U.S. 1, 16-17 (1968).
2United States v. Hensley, 469 U.S. 221, 229, 235 (1985).
3Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 186 (2004).
4Brown v. Texas, 443 U.S. 47 (1979).
5Kolender v. Lawson, 461 U.S. 352, 362 (1983).
6United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc).
7See United States v. Brigham, 382 F.3d 500, 507-08, 507-08 n.5 (5th Cir. 2004).
8United States v. Villagrana-Flores, 467 F.3d 1269 (10th Cir. November 7, 2006).
9See United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985).
10Hiibel, 542 U.S. 186.
11Brown, 443 U.S. 52 (1979).
12Kolender, 461 U.S. 360.
13See Hiibel, 542 U.S. 187.
14Texas Penal Code 38.02 and 38.15 (West 2006).
15Citing Terry, 392 U.S. 16.
16Citing Hayes v. Florida, 470 U.S. 811 (1985).
17Hayes, 470 U.S. 812.
18United States v. Sharpe, 470 U.S. 675, 685 (1985).
19United States v. Sharpe, 470 U.S. 687-88.
20See United States v. Thompson, 282 F.3d 673, 678 (9th Cir. 2002); United States v. Beck, 140 F.3d 1129, 1134 (8th Cir. 1998); United States v. White, 81 F.3d 775, 778 (8th Cir.1996), cert. denied, 519 U.S. 1011 (1996).
21See United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997); United States v. Trimble, 986 F.2d 394, 397-98 (10th Cir. 1993) cert. denied, 508 U.S. 965 (1993).
22See, for instance, Kaupp v. Texas, 538 U.S. 626, 630 n.2 (2003), and Hayes v. Florida, 470 U.S. 811, 817 (1985).
23New York v. Harris, 495 U.S. 14, 21; United States v. Crews, 445 U.S. 463, 474 (1980).
24See United States v. Hudson, 405 F3d 425, 439 (6th Cir. 2005), citing United States v. Green, 111 F.3d 515 (7th Cir.) cert. denied, 522 U.S. 973 (1997).
From The Police Chief, vol. 74, no. 4, April 2007. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.
DBMA Martial Arts Forum / Martial Arts Topics / FAILURE TO IDENTIFY
on: February 18, 2014, 05:34:47 PM
TEX PE. CODE ANN. § 38.02 : Texas Statutes - Section 38.02: FAILURE TO IDENTIFY
(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
(1) lawfully arrested the person;(2) lawfully detained the person
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
(c) Except as provided by Subsections (d) and (e), an offense under this section is:
(1) a Class C misdemeanor if the offense is committed under Subsection (a); or
(2) a Class B misdemeanor if the offense is committed under Subsection (b).
(d) If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is:
(1) a Class B misdemeanor if the offense is committed under Subsection (a); or
(2) a Class A misdemeanor if the offense is committed under Subsection (b).
(e) If conduct that constitutes an offense under this section also constitutes an offense under Section 106.07, Alcoholic Beverage Code, the actor may be prosecuted only under Section 106.07.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 869, Sec. 1, eff. Sept. 1, 1987. Acts 1991, 72nd Leg., ch. 821, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1009, Sec. 1, eff. Sept. 1, 2003.
- See more at: http://codes.lp.findlaw.com/txstatutes/PE/8/38/38.02#sthash.pyVhh8t7.dpuf
DBMA Martial Arts Forum / Martial Arts Topics / Police Can Open Car Doors When They Fear For Safety
on: February 18, 2014, 05:28:42 PM
Police Can Open Car Doors When They Fear For Safety
Published July 23, 2013
In McHam v. State, the supreme court addressed whether a police officer’s decision to open a passenger door because the officer feared for his safety was an impermissible search under the Fourth Amendment. The case arose in the context of a PCR appeal.
Police conducted a checkpoint on Powell Mill Road in Spartanburg County. Three police officers in marked cars were present. McHam was stopped at the checkpoint at 10:50 p.m. McHam had a passenger in his vehicle, and neither of them were wearing their seatbelts. An officer asked McHam for his license, registration, and proof of insurance. McHam provided his driver’s license, and McHam and the passenger searched for their rest of the information. The officer stated that “they were making a lot of movements in the car that he didn’t feel was consistent with looking for a registration card or a proof of insurance.” The officer walked to the passenger side of the vehicle to make sure they were not accessing a weapon; once there, the officer could not see their hands and so “for his own safety he opened up the door to watch what they were doing while they were going through the car.”
Upon opening the door, the officer saw a bag of crack; the officer pretended not to see the bag and called for backup from the other officers at the checkpoint. When the other officer arrived, he immediately grabbed the crack and arrested the occupants. The officers searched the vehicle for weapons and found a bag of cocaine, digital scales, and a large amount of money. The officers did not find any weapons.
McHam’s counsel made a motion prior to trial to suppress the drug evidence, arguing the officer’s opening of the door constituted an impermissible search under the Fourth Amendment. The trial court denied the motion. At trial, McHam’s counsel did not raise an objection, thus failing to preserve the issue for appeal. McHam was convicted.
McHam filed a direct appeal pursuant to Anders v. California, 386 U.S. 738 (1967). The court of appeals dismissed his appeal.
McHam filed a PCR application, arguing trial counsel was ineffective for failing to preserve the suppression issue at trial. Trial counsel testified at the PCR hearing and admitted that he did not preserve the issue at trial. Nonetheless, the PCR court dismissed McHam’s application because trial counsel was not deficient. The PCR court assumed the court of appeals addressed the merits of his direct appeal, even though the issue was unpreserved.
McHam appealed and the supreme court granted certiorari. McHam argued that the PCR court erred in making the assumption that the court of appeals addressed the merits of an unpreserved issue. McHam also argued that trial counsel was deficient and he suffered prejudice as a result. The State argued that McHam cannot prejudice from trial counsel’s failure to preserve the issue.
The supreme court applied the Strickland test, which requires a PCR applicant to show (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984).
On the first prong, the supreme court held that trial counsel’s failure to renew the Fourth Amendment objection was deficient performance.
On the second prong, the supreme court first stated that the court of appeals did not address the merits on direct appeal because the issue was unpreserved. The court then stated that to determine whether McHam suffered prejudice, the court needs to determine whether McHam would have prevailed on the merits if the issue was preserved.
McHam did not challenge the checkpoint; instead, he challenged only the officer’s opening of the passenger door. The court held that an officer’s opening of a door to an occupied vehicle constitutes a search under the Fourth Amendment because “it enables the officer to observe portions of the interior of the vehicle that would not otherwise be readily visible to those who are outside the vehicle.” The court then examined whether the search was justified by an exception to the warrant requirement. The court held “as a general principle that officer safety can justify the opening of a door to an occupied vehicle under reasonable circumstances.” The court stated the reasonable circumstances were “officer safety was a legitimate concern, given the dimly-lit conditions at the scene of the stop, the presence of more than one occupant in the vehicle, the fact that the officer was the only one approaching the vehicle at that moment, and the actions of the occupants.”
Since the court held McHam could not prevail on the merits of the appeal, he did not suffer prejudice, and as a result, the court affirmed the dismissal of his application.
DBMA Martial Arts Forum / Martial Arts Topics / UNITED STATES v. STANFIELD
on: February 18, 2014, 03:34:30 PM
UNITED STATES v. STANFIELD
United States Court of Appeals,Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee, v. Billy Howard STANFIELD, Defendant-Appellant.
Argued Dec. 2, 1996. -- March 31, 1997
Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges. ARGUED: Stanley Howard Needleman, Baltimore, MD, for Defendant-Appellant. Philip S. Jackson, Assistant United States Attorney, Baltimore, MD, for Plaintiff-Appellee. ON BRIEF: Steven J. Potter, Baltimore, MD, for Defendant-Appellant. Lynne A. Battaglia, United States Attorney, Baltimore, MD, for Plaintiff-Appellee. OPINION
Law enforcement officials literally risk their lives each time they approach occupied vehicles during the course of investigative traffic stops. As the Supreme Court has repeatedly observed, “a significant percentage of murders of police officers occurs when officers are making traffic stops.” United States v. Robinson, 414 U.S. 218, 234 n. 5, 94 S.Ct. 467, 476 n. 5, 38 L.Ed.2d 427 (1973). In recognition of the extraordinary dangers to which officers are exposed during such encounters, the Court has consistently accorded officers wide latitude to protect their safety, authorizing them, inter alia, to routinely order both drivers and passengers to exit their vehicles during such stops and to conduct the equivalent of “frisks” of automobile interiors whenever they reasonably believe their safety might be in jeopardy.
The advent of tinted automobile windows, however, has threatened to bring to naught these essential law enforcement protections. Confronted with the grave risk that tinted windows pose to the safety of law enforcement personnel, we address herein whether the government's substantial interest in officer safety during a lawful traffic stop outweighs the intrusion on the privacy interests of the vehicle's occupants which results when, because of heavily tinted windows that prevent the interior compartment from being viewed, an officer opens a door of the vehicle in order to ensure that the vehicle's driver is unarmed and that there are no other occupants who might threaten his safety during the investigatory stop. We conclude that, perhaps generally, but at least under the circumstances of this case, the substantial government interest in officer safety which exists when law enforcement officers must approach vehicles with heavily tinted windows far outweighs any minimal privacy interest the suspect retains in the otherwise visible interior compartment of his vehicle.
At approximately 9:00 a.m. on the morning of April 29, 1996, three officers from the Baltimore City Police Department-Officers Mackel, Buie and Hamel-were patrolling a high crime area in West Baltimore known for its open narcotics trafficking when they saw a late model, black Nissan Pathfinder with heavily tinted windows illegally parked in the middle of the street, effectively blocking traffic. See Md. Transportation Code Ann. §§ 21-1003(r), 27-101(a) & (b) (Michie 1996). The officers, who were armed and wearing bullet-proof vests over their uniforms because of the dangerousness of their assignment, see United States v. Stanfield, 906 F.Supp. 300, 301 (D.Md.1995), circled the block and, when the driver of the Pathfinder made no effort to move his vehicle to allow a free flow of traffic, parked their unmarked vehicle in front of the Pathfinder. Upon exiting their cruiser, the officers noticed that the Pathfinder's driver, appellant Billy Howard Stanfield, was talking to a man leaning from a second story window, whom the officers recognized as William Staten, a known drug dealer. See id.; J.A. at 151-52 (testimony of Officer Mackel); see also J.A. at 19 (Government's Memorandum of Law in Response to Defendant's Motion to Suppress Evidence).
The officers approached Stanfield's Pathfinder from both the driver and passenger sides, and, as they did so, they noticed that the front driver's side window was down, but that the front passenger side window was raised. See Stanfield, 906 F.Supp. at 301, 303. The tinting on the Pathfinder's windows was so dark that Officer Mackel, who was approaching on the passenger's side, could not see into the vehicle. See id. at 302, 303. Nor could Officers Buie and Hamel see much of the vehicle's interior during their approach from the driver's side. As a consequence of the officers' inability to see inside the vehicle as they approached, Officer Mackel opened the front passenger side door of Stanfield's vehicle in order to determine whether Stanfield was armed or had access to weapons and whether he was alone in the Pathfinder. When Officer Mackel opened the passenger door, he saw in plain view, from his vantage point entirely outside the vehicle, see id., a clear plastic bag of cocaine protruding from the mouth of a brown paper bag which was overturned on the back seat of the Pathfinder. See id. & n. 6.1 The officers arrested Stanfield, searched the Pathfinder, and discovered a nine-millimeter semi-automatic handgun, numerous empty vials, two contact pagers, and over 200 grams of cocaine. See id. at 302. Stanfield was subsequently charged with possession with intent to distribute cocaine and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1).
Prior to trial, Stanfield moved to suppress the cocaine seized from the back seat of his Pathfinder, contending that the search affected by Officer Mackel's opening of the front passenger door was unconstitutional under the Fourth Amendment and, therefore, that the cocaine discovered as a consequence of that search must be suppressed. Following an evidentiary hearing, the district court denied the motion, upholding the search on two independent grounds. First, citing Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983), the district court held that Officer Mackel's opening of the passenger side door was permissible because Stanfield did not have a legitimate expectation of privacy in the interior of his car. See Stanfield, 906 F.Supp. at 304 n. 9. Second, the district court held that, under Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), “Officer Mackel was Constitutionally permitted to open the door to determine whether there were other[ ] [occupants in the vehicle] and if any weapons were within Stanfield's immediate reach,” determinations which the district court found were otherwise virtually impossible because of the heavy window tinting. Stanfield, 906 F.Supp. at 304; see also id. at 303-04 & n. 11 (“ecause Officer Mackel was unable to see through the heavily tinted windows of the Pathfinder, he had an objectively reasonable belief that Stanfield (or a hidden passenger) was potentially dangerous.”).
Following the district court's denial of Stanfield's suppression motion, Stanfield pled guilty to one count of possession, reserving the right to appeal the district court's suppression ruling that is now before us. For the reasons that follow, we affirm.
“[T]he ‘touchstone of the Fourth Amendment is reasonableness.’ ” Ohio v. Robinette, 519 U.S. 33, ----, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991)). And, as the Court explained in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), reasonableness “depends ‘on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.’ ” Id. at 109, 98 S.Ct. at 332 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975)). Under this balancing test, the Supreme Court has consistently approved of protective searches of persons, vehicles, and even homes, during routine and other lawful investigatory detentions, in recognition of the paramount interest in officer safety and the extraordinary risks to which law enforcement officials are exposed during such detentions.
Thus, for example, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court sanctioned the now-familiar “pat-down” search, or “frisk,” because of the “immediacy” of the government's interest in officer safety, notwithstanding its conclusion that “[e]ven a limited search of the outer clothing for weapons constitutes a severe ․ intrusion upon cherished personal security,” id. at 24-25, 88 S.Ct. at 1881-82. If an officer possesses a reasonable belief based on “specific and articulable facts” that the suspect is potentially dangerous, id. at 21, 88 S.Ct. at 1880, reasoned the Court, then the officer is justified in undertaking the “limited steps” necessary to “protect himself and others from possible danger.” Id. at 28, 88 S.Ct. at 1883.
Fifteen years later, in Long, the Court authorized what are essentially “frisks” of automobile interiors during traffic stops, see Maryland v. Buie, 494 U.S. 325, 332, 110 S.Ct. 1093, 1097, 108 L.Ed.2d 276 (1990), holding that such protective searches are “justified by the principles ․ established in Terry.” Long, 463 U.S. at 1046, 103 S.Ct. at 3479. Recognizing that all “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers,” id. at 1047, 103 S.Ct. at 3480, and accepting without discussion that an area search of a vehicle is less intrusive than the frisk of the person, the Court concluded that “the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess [a] reasonable belief that the suspect is potentially dangerous.” Id. at 1051, 103 S.Ct. at 3482.2
In Mimms and Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the Court even adopted bright-line rules that officers may, as a matter of course, order both drivers and passengers from vehicles during routine traffic stops in order to ensure that such stops are completed without incident.
The Court in Mimms held that the “inordinate risk” that exists every time “an officer ․ approaches a person seated in an automobile,” 434 U.S. at 110, 98 S.Ct. at 333, justifies a per se rule that drivers may be ordered out of their vehicles during lawful traffic stops, whether or not there exists any particular reason under the circumstances to believe that officer safety might be in jeopardy. In contrast to the substantial state interest in safety at stake when officers must approach a stopped vehicle, the Court characterized the additional intrusion on personal liberty occasioned by requiring drivers to exit their vehicles and to move off onto the shoulder of the road as “de minimis,” “at most a mere inconvenience,” id. at 111, 98 S.Ct. at 333, and “hardly ris[ing] to the level of a ‘petty indignity,’ ” id. (quoting Terry, 392 U.S. at 17, 88 S.Ct. at 1877), reasoning that “[t]he driver is being asked to expose to view very little more ․ than is already exposed” when the driver is seated in his automobile. Id.
Finally, repeating its oft-repeated observation that the government has a “legitimate” and “weighty” interest in officer safety, the Court in Wilson recently expanded the Mimms per se rule to allow officers to order not only drivers, but all occupants, to exit vehicles and move off onto the shoulder of the road during routine traffic stops. See 519 U.S. at ----, 117 S.Ct. at 885. While acknowledging that the passengers' liberty interests implicated by orders to exit vehicles might be stronger than those of the drivers, the Court nonetheless readily concluded that these interests likewise are “minimal” and necessarily must yield to the state's interest in officer safety, finding persuasive Maryland's common-sense argument that every occupant in a vehicle “increases the possible sources of harm to the officer.” Id.
Notwithstanding that the Court “generally eschew
bright-line rules in the Fourth Amendment context,” id. at ---- n. 1, 117 S.Ct. at 885 n. 1; see also Robinette, 519 U.S. at ----, 117 S.Ct. at 421, we believe that the Court's decisions in Mimms and Wilson in particular would support a holding that whenever, during a lawful traffic stop, officers are required to approach a vehicle with windows so heavily tinted that they are unable to view the interior of the stopped vehicle, they may, when it appears in their experienced judgment prudent to do so, open at least one of the vehicle's doors and, without crossing the plane of the vehicle, visually inspect its interior in order to ascertain whether the driver is armed, whether he has access to weapons, or whether there are other occupants of the vehicle who might pose a danger to the officers. Indeed, it seems to us that a contrary holding would not only be irreconcilable with, but arguably undermine altogether, the caselaw from the Supreme Court that was developed specifically for the purpose of protecting officer safety during what are, in today's society, frighteningly perilous encounters.
Even where the interiors of vehicles are fully visible, “roadside encounters between police and suspects are especially hazardous,” Long, 463 U.S. at 1049, 103 S.Ct. at 3481, with as many as “30% of police shootings occur [ing] when a police officer approache
a suspect seated in an automobile,” Mimms, 434 U.S. at 110, 98 S.Ct. at 333; see also Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612 (1972). In fact, as the Court noted recently in Wilson, in 1994 alone, 5,762 assaults on police officers occurred during the course of traffic pursuits or stops. See Wilson, 519 U.S. at ----, 117 S.Ct. at 885 (citation omitted). Thus, “it [is]'too plain for argument' ” that the governmental interest in officer safety during traffic stops is substantial. Id. at ----, 117 S.Ct. at 885 (quoting Mimms, 434 U.S at 110, 98 S.Ct. at 333).
When, during already dangerous traffic stops, officers must approach vehicles whose occupants and interiors are blocked from view by tinted windows, the potential harm to which the officers are exposed increases exponentially, to the point, we believe, of unconscionability. Indeed, we can conceive of almost nothing more dangerous to a law enforcement officer in the context of a traffic stop than approaching an automobile whose passenger compartment is entirely hidden from the officer's view by darkly tinted windows. As the officer exits his cruiser and proceeds toward the tinted-windowed vehicle, he has no way of knowing whether the vehicle's driver is fumbling for his driver's license or reaching for a gun; he does not know whether he is about to encounter a single law-abiding citizen or to be ambushed by a car-full of armed assailants. He literally does not even know whether a weapon has been trained on him from the moment the stop was initiated. As one officer put the obvious: “If the suspect has a weapon, I might not see it until he rolls down the window. He may just shoot me through the window.” 3 If, as the Court has noted, officers face an “inordinate risk” every time they approach even a vehicle whose interior and passengers are fully visible to the officers, Mimms, 434 U.S. at 110, 98 S.Ct. at 333, the risk these officers face when they approach a vehicle with heavily tinted windows is, quite simply, intolerable. In fact, it is out of recognition of just such danger that at least twenty-eight states, including Maryland, have now enacted laws either regulating or altogether prohibiting the use of tinted windows on vehicles in their states.4
In contrast to the indisputably substantial government interest in protecting its law enforcement officials from the danger that inheres in the lawful stop of a vehicle with heavily tinted windows, the privacy and liberty interests implicated by the opening of such a vehicle's door for the limited purpose of determining whether the vehicle is occupied by one or several persons and whether the vehicle's occupants are armed or have access to weapons, are, although not unimportant, comparatively minor, and will always be so.
It is axiomatic, of course, that “
- ne has a lesser expectation of privacy in a motor vehicle,” in part because “its function is transportation and it seldom serves as one's residence or as the repository of personal effects.” United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977) (quoting Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion)). Because of this, and the fact that vehicular travel is, of necessity, highly regulated, individuals traveling in vehicles “must expect that the State, in enforcing its regulations, will intrude to some extent” on their privacy. New York v. Class, 475 U.S. 106, 113, 106 S.Ct. 960, 965, 89 L.Ed.2d 81 (1986).
But, apart from the fact that there is a considerably reduced privacy interest in a vehicle's interior passenger compartment as a matter of law, the driver and other occupants of a lawfully stopped vehicle have already had their liberty curtailed. Moreover, because the driver must comply with routine requests for identification and registration, he will be required at some point during the brief detention to expose the interior compartment of his vehicle to view through at least one window, if for no other reason than to interact with the officer. Of course, when the driver lowers the window, then much if not all of the car's interior will be visible to the officer. The additional interference with the occupants' privacy interests affected by the opening of one of the vehicle's doors would seem minimal when measured against the enormous danger law enforcement officers face when they approach a vehicle with heavily tinted windows. Such an intrusion would seem considerably less than the intrusions affected by ordering the driver and passengers to exit the vehicle and to proceed to the shoulder of the road, which were held in Mimms and Wilson, respectively, to be “de minimis ” in comparison to the states' interests in protecting their law enforcement personnel under circumstances far less inherently dangerous than those existing when the stopped vehicle has heavily tinted windows. Not only does the person subjected to the limited search entailed in the opening of the vehicle door not have his entire body exposed to the view of the officers and public, he also retains his liberty interest in remaining seated in his automobile during the duration of the detention. Indeed, the actual invasion of privacy entailed in an officer's opening of the vehicle door is indistinguishable from, if not precisely the same as, that which occurs when an occupant is required to open a door to exit a vehicle pursuant to an order given under the authority of Mimms or Wilson.
Even if there were reasonable alternatives to allowing officers to open the door of a vehicle with heavily tinted windows in order to ascertain whether the driver is armed and whether there are other occupants in the vehicle, we would hesitate to impose them on the law enforcement community as a matter of constitutional law. As the Supreme Court has been at pains to observe, during Terry-type stops, officers “must make ․ ‘quick decision
as to how to protect [themselves] and others from possible danger’ ” at times when they are “particularly vulnerable,” and thus it has “not required that officers adopt alternate means to ensure their safety in order to avoid the intrusion involved in [such an] encounter.” Long, 463 U.S. at 1052, 103 S.Ct. at 3482 (quoting Terry, 392 U.S. at 28, 88 S.Ct. at 1883); see also id. at 1052 n. 16, 103 S.Ct. at 3482 n. 16. That is, the Court has scrupulously avoided substituting its judgment for that of law enforcement as to how best to ensure officer safety.
With that said, however, we are at a loss to identify an acceptable alternative to a rule such as that we suggest would be justified. Upon a moment's reflection, it becomes apparent that neither requiring officers (while in their cruisers or as they proceed toward the stopped vehicle) instead to order occupants to exit the vehicle nor requiring that they order that all of the vehicle's doors be opened, represents an acceptable, or even a reasonable, alternative. To require officers to order the vehicle's occupants to exit as the officers approach the stopped vehicle exposes the officers to the very danger to which we believe it is unconscionable to subject them, namely, that they might be fired upon as they approach the vehicle. As the Court observed in Terry, it is by definition “unreasonable to require that police officers take unnecessary risks in the performance of their duties.” 392 U.S. at 23, 88 S.Ct. at 1881. On the other hand, to insist that officers remain in their vehicles and order the occupants out ignores the fact that, with heavily tinted windows, the officers could never know whether all of the vehicle's occupants had exited; and, eventually, the officers would still be required under this alternative to approach a vehicle which, insofar as the officers could know, still held passengers who might be armed and dangerous. Ordering that the vehicle's doors be opened, of course, allows the vehicle's occupants legitimately to move about the vehicle in ways that would enable them to access available weapons, which represents a separate danger unto itself.
Therefore, in the end, we believe, it will be impractical, if not impossible, for law enforcement officers to neutralize the dangers to which they are exposed by virtue of heavily tinted windows. There simply do not appear to be any alternatives to the bright-line rule we suggest, which would infringe less on the residual privacy interests that drivers and passengers retain in the interior compartment of a lawfully stopped vehicle, yet still allow law enforcement officers to take that control of the situation that enables them to minimize the risk of harm to themselves and to the vehicle's occupants. Cf. Wilson, 519 U.S. at ----, 117 S.Ct. at 886 (“The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”) (quoting Michigan v. Summers, 452 U.S. 692, 703, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981)). A bright-line rule that officers could always pursue the course of opening the door of a tinted-windowed vehicle when, in their informed judgment, such an act appears necessary to protect their safety, would not render the stops of such vehicles risk-free, but it would at least reduce to an extent the enormous danger to which law enforcement authorities are exposed as a consequence of the advent of tinted windows.
Even absent a Mimms /Wilson-type per se rule that officers may, in the circumstances we have described, open a vehicle's door to deter mine the number of occupants within and whether any of those occupants are armed or have access to weapons, however, Officer Mackel's opening of Stanfield's passenger door was fully authorized under the principles, if not by the direct holdings, of Terry, Long and Buie. Officer Mackel's belief that he was potentially in danger as he approached Stanfield's Pathfinder was imminently reasonable; it would be folly to suggest otherwise. Under Terry, Long and Buie, therefore, it is clear that Officer Mackel could have conducted a protective search of the entire interior compartment of Stanfield's vehicle to ensure his safety and that of his partners. It follows a fortiori that Officer Mackel's much more limited search of merely opening the Pathfinder's door was reasonable under the Fourth Amendment.
As our previous discussion suggests, we are convinced that the presence of windows so tinted that the vehicle's interior compartment is not visible is, in itself, a circumstance that would cause an officer reasonably to believe that his safety might be in danger-as the district court held. When the fact of the tinted windows on Stanfield's Pathfinder is considered together with the other circumstances informing Officer Mackel's judgment as he approached Stanfield's vehicle on the morning of April 29, 1996, we are satisfied that no reasonable officer would have failed to appreciate the potential danger confronting Officer Mackel and his partners.
First, Stanfield was, at the time of the stop, in violation of the state's traffic laws, having parked his Pathfinder in the middle of a two-way street, which was not passable by two cars simultaneously. See Stanfield, 906 F.Supp. at 301. Second, Stanfield's vehicle was stopped in the early morning in a relatively deserted area of town. See id.; J.A. at 128. Third, Stanfield's vehicle was stopped in an area of Baltimore known for its open narcotics trafficking and high crime rate. See Stanfield, 906 F.Supp. at 301; J.A. at 53. As we have often noted, where there are drugs, there are almost always guns. And, as the Supreme Court has recognized, in a high crime area, “the possibility that any given individual is armed is significant.” Buie, 494 U.S. at 334 n. 2, 110 S.Ct. at 1098 n. 2. Fourth, Stanfield was driving a vehicle which, according to the officers' testimony and the district court's factual finding, “is of the class of four wheel drive vehicles favored by drug dealers,” and is also “the preferred target of car thieves.” Stanfield, 906 F.Supp. at 301 & n. 3; J.A. at 163-64. Fifth, as the district court found, the officers did not know and could not determine, because of the tinting on the windows, “whether Stanfield was alone or whether any weapon was within arms reach of the defendant.” See Stanfield, 906 F.Supp. at 303. And, sixth, as the district court found, Stanfield had been seen by the officers conversing with William Staten, a known drug dealer, immediately prior to his encounter with Officers Mackel, Buie and Hamel. Id. at 301, 304 n. 10; J.A. at 151-52, 237 (testimony of Officer Mackel); J.A. at 19 (Government's Memorandum of Law in Response to Defendant's Motion to Suppress Evidence).5 Only the most foolhardy would not have believed that his safety was “potentially” in danger, see Long, 463 U.S. at 1051, 103 S.Ct. at 3481-82, as he approached Stanfield's Pathfinder.
There was more reason for Officer Mackel to believe that his safety might be in danger than there was in Long for Deputies Howell and Lewis to believe that their safety might be in danger. The Supreme Court there held that Howell and Lewis were “clearly justified” in their conclusion that Long might pose a danger to them were he allowed to reenter his vehicle because (1) “[t]he hour was late and the area rural,” (2) Long had been speeding and had swerved into a ditch, (3) Long had appeared to be under the influence of an intoxicant, and (4) the officers had seen a hunting knife on the floorboard of Long's car.6 463 U.S. at 1050, 103 S.Ct. at 3481. The Court readily reached this conclusion notwithstanding that the officers had already completed their detention of the suspect without incident; they knew that there were no other occupants in Long's vehicle; they also knew that there was no one else in the vicinity who could pose an immediate threat to their safety; they knew that Long did not have a weapon on his person; they had determined that, although Long was not impaired sufficiently that he could not drive, he was unlikely to initiate an assault on the officers; and they had reason to believe that Long wished to leave the scene without further involvement with the authorities.
In contrast, here, Officers Mackel, Buie and Hamel had just initiated their encounter with Stanfield, who was driving a vehicle not uncommonly associated with drug activity; they were in a high crime area known for its open drug trafficking; they had, only moments earlier, seen Stanfield talking with a known drug dealer; they did not know whether Stanfield was alone or accompanied by others; they were unable, because of the tinting of the windows, to determine whether Stanfield, or any other occupants of the vehicle, were presently armed or had ready access to weapons; and they had no reason to think Stanfield might be incapacitated in such a way as actually to reduce any threat he might pose to them.
If there was less reason for Officer Mackel to believe that he might be in danger than there was in Terry for Officer McFadden to believe he might be in danger, we are satisfied that the difference is not significant enough to warrant a different conclusion as to the reasonableness of Officer Mackel's perception of possible danger, especially given the greater vulnerability of the officers here because of the heavy tinting of the Pathfinder's windows. Officer McFadden had observed conduct by Matthew Terry and his companions that was entirely innocent in itself, although suspicious to McFadden, a trained officer, who recognized the conduct as “consistent with [an] hypothesis that the[ ] men were contemplating a daylight robbery.” Terry, 392 U.S at 28, 88 S.Ct. at 1883. Under these circumstances, observed the Court, it was reasonable for Officer McFadden to assume that one or more of the men might be armed. Here, of course, Stanfield was not engaged in entirely innocent behavior; he was actually committing an offense, albeit a relatively minor traffic offense, when he was stopped. And, it bears repeating, he was stopped in an area of the city known for its open drug trafficking, in a vehicle frequently associated with drug activity, and he was talking with a known drug dealer. A trained officer certainly would be as warranted in believing that his safety might be in danger in these circumstances as in those present in Terry. Of course, in neither instance need the officer have been “absolutely certain that the individual [was] armed; the[only question] is whether a reasonably prudent man in the circumstances would[have been] warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. As to this question, in this case, we have no doubt whatsoever.
Although the Court in Buie did not itself resolve the ultimate issue of whether the protective sweep undertaken by the officers was justified under the Terry and Long standard, which the Court there held was applicable to the officers' sweep of Buie's home, the Court specifically analogized law enforcement's interest “in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack,” to the “immediate interest of the police officers [in Terry and Long ] in taking steps to assure themselves that the persons with whom they were dealing were not armed with, or able to gain immediate control of, a weapon that could unexpectedly and fatally be used against them.” Buie, 494 U.S. at 333, 110 S.Ct. at 1097. The Court noted that an in-home arrest, unlike the typical encounter on the street, “puts the officer at the disadvantage of being on his adversary's ‘turf[,]’ [and that] [a]n ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” Id. Even so, however, the Court was hesitant to characterize either the risk of danger during an in-home arrest or the risk of danger in an “on-the-street or roadside investigatory encounter” as the greater. Id. Based upon these overarching observations concerning the relative risks associated with in-home arrests and traffic stops, and with due regard to the relevant specifics, we are even unprepared to say that the risk of danger to Officers Mackel, Buie, and Hamel was less pronounced than was the risk to the officers in Buie.
First, and most significantly, any difference between the inherent risk existing during an in-home arrest and a lawful investigatory traffic stop due to the officers' lack of familiarity with the surroundings, was minimized, if not entirely eliminated, in this case, because the interior of Stanfield's vehicle was not visible to the officers. Through the use of heavy tinting, the driver and occupants of a vehicle effectively secure for themselves, as Stanfield did in this case, a “confined setting of unknown configuration,” forcing law enforcement authorities to confront them on their own “turf”-not unlike if they were hiding in their home. Second, some six or seven officers were present at Buie's residence to affect the arrest, whereas only three officers, were investigating Stanfield. Third, the officers in Buie had proceeded to Buie's house for the specific purpose of arresting Buie and were fully prepared for anything that might develop in connection with that assignment; unlike Officers Mackel, Buie, and Hamel, they had not simply come upon Buie unexpectedly in circumstances requiring a quick, on-the-street judgment. Fourth, the officers had already arrested Buie and had only to depart the residence and premises; at the time of their search of Buie's basement, the officers were not merely beginning their investigatory detention, as in the case sub judice, when a confrontation is more likely. Fifth, two days had lapsed since the robbery in Buie, and, although it was certainly not unreasonable to think someone (in particular, Buie's accomplice) might be hiding in the house with Buie, the officers had nothing specific to support such an inference. As the dissenting judge on the Maryland Court of Appeals said in his opinion on the remand from the Supreme Court:
From the information elicited at the suppression hearing, we do not know whether Allen [Buie's accomplice] had been arrested or was still at large. The testimony at the hearing does not give any indication that Allen was seen entering or leaving Buie's home during the three day surveillance period. In fact, there was no testimony that placed Allen at Buie's home at any time prior to Buie's arrest. Neither is there information as to what type of relationship Buie and Allen had; that is, we do not know whether they were longtime friends who spent a great deal of time together or whether the only time they were ever together was the night of the alleged robbery.
The inconclusive surveillance ․ does not help the State. It surely does not permit the inference that the police thought Allen was at Buie's house, for if they had believed that they would have brought along his arrest warrant as well as Buie's.
Buie v. Maryland, 320 Md. 696, 580 A.2d 167, 173-74 (1990) (Adkins, J., dissenting). Here, of course, while Officers Mackel, Buie, and Hamel likewise had no specific reason to believe that there were other passengers in the Pathfinder, they did know that there was someone in the vehicle (Stanfield) who, for the reasons earlier recited, potentially might be dangerous.
In contrast to the substantial state interest in having the investigatory detention necessitated by Stanfield's traffic infraction conclude without harm to its law enforcement officials, the liberty and privacy interests which Stanfield attempts to protect are, for the reasons previously discussed, notably insubstantial. Additionally, because, even according to Stanfield, the driver's side window was down when the officers approached the Pathfinder, the interior of Stanfield's car, as well as contents lying exposed on the back seat, were fully open to the view of the officers and passersby.7 Even had all of the Pathfinder's windows been raised, the undisputed evidence in the record before us is that Stanfield's tinted windows would not have prevented passersby from viewing the Pathfinder's interior under all lighting conditions. See J.A. at 88. Hence, it was only because of the mere happenstance of cloud cover that the back seat of Stanfield's car was not visible, just as in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the interior of the open glove compartment was not visible to the officer only because of the happenstance that the stop occurred at night. Therefore, as the district court alternatively held, it is questionable whether Stanfield had any privacy right at all in those portions of his interior passenger compartment relevant in this case, for there is no legitimate expectation of privacy “shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.” Id. at 740, 103 S.Ct. at 1542.
Assuming that Stanfield did have some residual privacy interest in the interior compartment of his car, the additional intrusion on that interest that resulted from the mere opening of the passenger door was inconsequential. There is, of course, no comparison between the “severe,” “surely ․ annoying, frightening, and perhaps humiliating” pat-down of the person authorized by the Court in Terry, 392 U.S. at 24-25, 88 S.Ct. at 1881-82, and the incremental additional intrusion on Stanfield's privacy interests affected by the mere opening of his passenger door. Similarly, the protective sweep of the home authorized by the Court in Buie, pursuant to which the police were authorized to search closets, showers, attics, studies, basements, and underneath beds, was much more offensive to privacy interests than was the search here. And, obviously, the opening of the car door and perusal of the car's interior from the outside interfered less with Stanfield's privacy interest than would have a complete search of the vehicle's interior permitted under Long, which could have included visual inspection of any area in which a weapon might have been secreted.
We even believe, as explained supra, that the intrusion affected by Officer Mackel's mere opening of the passenger door of Stanfield's Pathfinder was considerably less than those intrusions authorized as a matter of course by the Court in Mimms and Wilson. The opening of the door of the Pathfinder exposed to view little more of Stanfield's body than was already exposed to view through the open driver side window and little more of the interior compartment than was visible through that same window. And, in contrast to the action that may be ordered under Mimms and Wilson, the mere opening of the door did not require Stanfield (nor would it have required any other occupants of the vehicle) to move at all.
In sum, when the state's substantial interest in ensuring that its investigatory detention of Stanfield occurred without incident to its law enforcement agents is weighed in the balance with Stanfield's privacy interests implicated by Officer Mackel's search, there can be no doubt but that the search was reasonable under the circumstances and appropriately limited in scope. What was said of Officer McFadden's actions in Terry is no less true of Officer Mackel's actions here:
We cannot say his decision [to open the passenger door to Stanfield's Pathfinder in order to determine whether there were other passengers in the vehicle or whether the driver or other had access to weapons] was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.
392 U.S. at 28, 88 S.Ct. at 1883. To hold otherwise than we do today would be “to require that police officers take unnecessary risks in the performance of their duties,” Terry, 392 U.S. at 23, 88 S.Ct. at 1881, something which, as the Supreme Court has
consistently held, the Constitution does not require.8
Because Officer Mackel was engaged in a reasonable protective search when he opened Stanfield's passenger door for the limited purpose of determining whether Stanfield was armed and whether there were any other occupants within the vehicle who might pose a danger to him or his partners, and because the cocaine that Stanfield seeks to suppress was seen by Officer Mackel in plain view during the conduct of this reasonable search, the district court's denial of Stanfield's motion to suppress is affirmed.
1. The recited facts are those as found by the district court. A number of the material facts were vigorously disputed at the suppression hearing and, ultimately, the district court did not fully credit the testimony of either the officers or Stanfield, a fact which brings the case to us in a somewhat awkward posture. For example, the officers testified that both the front driver and passenger side windows were open, and that the cocaine was seen through the open passenger window. See Stanfield, 906 F.Supp. at 301. The district court, for reasons we find difficult to understand, rejected this testimony seemingly for the reason alone that it was fifty-nine degrees on the day in question, and therefore “it seem[ed] more likely than not that [Stanfield] would have left the passenger's side window up.” See id. at 303 n. 5. Stanfield, for his part, testified that the passenger side window was raised and that Officer Mackel opened the passenger side door, climbed inside the vehicle, and searched under the back seat to find the cocaine. See id. at 302. The district court specifically found, however, that the cocaine was in plain view once Officer Mackel opened the passenger side door and that Officer Mackel, contrary to Stanfield's contention, neither entered the vehicle nor searched under the vehicle's seat. See id. at 303 n. 6.
2. The Court expressly extendedTerry and Long in Buie, authorizing, “in conjunction with ․ in-home arrest
,” 494 U.S. at 337, 110 S.Ct. at 1099, protective sweeps even of personal residences, where a reasonably prudent officer, based upon articulable facts, would believe “that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334, 110 S.Ct. at 1098 (stating that the adopted standard “is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one.”). Although the Court remanded for application of this standard, it concluded that, even though the suspect sought by police had been arrested and handcuffed, and all discernible threat to the police had been neutralized, a “cursory search” of Buie's house still might be permissible on the ground that the house could “harbor[ ] other persons who are dangerous and who could unexpectedly launch an attack” on the officers. Buie, 494 U.S. at 333, 110 S.Ct. at 1098. Not surprisingly, the Maryland Court of Appeals on remand did in fact hold that the cursory search of Buie's basement was reasonable. See Buie v. Maryland, 320 Md. 696, 580 A.2d 167, 172 (1990).
3. Leef Smith, “They're Dark No More,” The Washington Post, Dec. 4, 1996, at VO4 (explaining that suspected gang members often drive around “in cars whose windows are all but blacked out,” using the cover created by the tinting to “hide illegal activities”) (statement of Officer Linda Hudson); see also, e.g., Norman Peckham, “Phoenix Now Enforcing Window Tint Law,” The Tucson Citizen, March 17, 1995, at 9E (“Heavy tint may conceal the fact that the occupant may have a weapon.”) (statement of Officer Eugene Mejia); Caroline Lemke, “In the Dark: Tinted Windows Give Cars A Cool Look, But Some Are Illegal,” The Los Angeles Times, February 13, 1992, at 2 (When a car has tinted windows “t is hard for an officer to see into [that] car. A gun could be pointed at you. It puts you in a vulnerable position.”) (statement of Officer John Marinez).
4. See Alabama Code § 32-5-215(e) (Michie 1996); Arkansas Code of 1987 Ann. § 27-37-306 (1987-95); Connecticut Gen.Stat. Ann. § 14-99g(b) (West 1996); Delaware Code. Ann. Title 21 § 4313 (1975-95); Code of Georgia § 40-8-73.1 (1982-96); Idaho Code § 49-944(1) (Michie 1948-96); West's Smith-Hurd Illinois Comp. Stat. Ann. § 5/12-503 (West 1996); West's Ann. Indiana Code § 9-19-19-4(c) (West 1996); Baldwin's Kentucky Rev. Stat. Ann. § 189.110(3) (Banks-Baldwin 1996); West's Louisiana Stat. Ann. R.S. 32:361.1 (West 1996); Maine Revised Stat. Ann. Title 29 § 1916(3) (1996); Maryland Transportation Code § 22-406 (Michie 1957-96); Michigan Comp. Laws Ann. § 257.709 (1996); Mississippi Code 1972 Ann. § 63-7-59 (1995); Montana Code Ann. § 61-9-405 (1978-95); Nebraska Rev. Stat. of 1943 § 60-6,257 (1995); Nevada Rev. Stat. § 484.6195 (1995); New Hampshire Stat. Ann. § 265:95 (1995); Gen Stat. of North Carolina § 20-127(b) (Michie 1944-96); North Dakota Century Code § 39-21-39 (Michie 1995); Baldwin's Ohio Rev.Code Ann. § 4513.241 (Baldwin-Banks 1996); 1995 Oregon Rev. Stat. § 815.221 (1995); Code of Laws of South Carolina 1976 Ann. § 56-5-5015 (1995); Tennessee Code Ann. § 55-9-107 (1955-96); Utah Code, 1953 § 41-6-149 (Michie 1987-96); Code of Virginia § 46.2-1052(C)(1) (Michie 1982-96); Wyoming Stat.1977 § 31-5-962(b) (1977-96); West's Revised Code of Washington Ann. § 46.37.430(5) (1996). The District of Columbia and Puerto Rico have done so as well. See District of Columbia Code 1981 § 40-718.1 (1981-96); Laws of Puerto Rico Ann. Title 9 § 1134 (1994).
5. Although the government opposed Stanfield's suppression motion, see Government's Memorandum of Law in Response to Defendant's Motion to Suppress Evidence, J.A. at 18-40, on appeal it inexplicably conceded error and then went to quite unusual lengths to have the case decided on the briefs and without oral argument. Unwilling to reverse the district court's judgment summarily, we ordered the reluctant Assistant United States Attorney, Philip S. Jackson, to appear and argue the case. When confronted by the court with the Supreme Court authorities described above, and questioned why he was unable even to advance good-faith arguments before this court in support of the district court's judgment, Mr. Jackson represented to the court that he had confessed error solely because, in his view, there was no basis for the district court's finding that Staten was a known drug dealer, a view that was nowhere mentioned in the government's three and one-half page brief. Mr. Jackson thereafter, however, conceded that neither he nor the United States had any basis at all for challenging the district court's finding as clearly erroneous, ultimately acknowledging that if that finding were sustained, the United States had improperly confessed constitutional error.We find the district court's finding to be amply supported by the record, especially the testimony of Officer Mackel, in response to questions from Stanfield's counsel:Q: What really happened here was that you were on routine patrol, in your bullet proof vests, and you saw Mr. Stanfield talking to someone who you knew, isn't that correct?A: Once I pulled into the block, that is correct. I recognized who it was.․Q: ․ Now, when you saw Mr. Stanfield talking to someone, isn't it true that that is why you really stopped your vehicle and got out of the car and started investigating Mr. Stanfield?A: No.Q: Isn't it true that that person [Staten] you had known through previous, I guess through some previous dealings, that he might be or was a law breaker?A: Yes, I had dealings with Mr. Staten before.Q: And the real reason you got out of the car, all three of you, had nothing to do with being double parked, but you wanted to see what was up, isn't that correct?A: No, that is not true.Q: And you really, all you really had was a hunch and you just wanted to go in and see what was up?J.A. at 152.It is plain from this exchange between defendant's own counsel and Officer Mackel that defense counsel himself understood that Officer Mackel had previously had “dealings” with Staten in connection with drug transactions. Stanfield even contended to the district court that, as the officers exited their cruiser, “one of the officers then shouted up to William [Staten] and asked [Staten] whether he had stopped dealing drugs.” See J.A. at 238.It is plain that defense counsel's strategy was to develop a case that the officers had relied upon the pretext of Stanfield's traffic offense to investigate their “hunch” that, because Stanfield was talking to a known drug dealer, he might be engaged in a drug transaction, and, in fact, this was the very argument defendant advanced before the district court, see J.A. at 238 (opinion of district court) (“Stanfield argues that the officers were not attracted to him because of any traffic violation but because they were investigating drug trafficking.”). Indeed, although Stanfield (for obvious reasons) does not mention the officers' previous dealings with Staten in his submissions to this court, one of Stanfield's two assignments of error from the district court's denial of his suppression motion was that the officers acted only on this hunch. See Appellant's Br. at 2-9.It is evident, therefore, that the district court's finding that Stanfield was talking with a man known by the officers to be a drug dealer is unassailable. The Assistant United States Attorney himself, albeit in direct contradiction of his own representations before us, even represented to the district court that “[a]n officer recognized th[e] individual [to whom Stanfield was talking] as William Staten, an individual about whom [the officer] had received information indicating Staten's involvement in the distribution of controlled substances.” See Government's Memorandum of Law in Response to Defendant's Motion to Suppress Evidence, J.A. at 18, 19.
6. When listing the circumstances supporting the reasonableness of the officers' belief that they might be in danger if Long were allowed to reenter his vehicle, the Court did, as noted, mention that the officers had earlier seen the hunting knife on the floorboard of Long's automobile. It is relatively clear, however, that the knife was mentioned more in support of the court's alternative holding that the search of Long's person was also reasonable, and that the presence of the knife played little, if any, role in the Court's determination that Officers Howell and Lewis were reasonable in their belief that their safety might be at risk if Long were allowed to reenter his car, see 463 U.S. at 1050 & n. 15, 103 S.Ct. at 3481 & n. 15. When it mentioned the knife, the Court even noted that “ Long was not frisked until the officers observed that there was a large knife in the interior of the car into which Long was about to reenter,” id. at 1050, 103 S.Ct. at 3481 (emphasis added), and, as the Court had noted earlier, after observing the knife on the floorboard, “[t]he officers [had] stopped Long's progress and subjected him to a Terry protective pat-down.” Id. at 1036, 103 S.Ct. at 3474. As the Court explained, the question with respect to the search of the vehicle's passenger compartment was whether the officers acted “unreasonably in taking preventive measures to ensure that there were no other weapons [other than the knife] within Long's immediate grasp before permitting him to reenter his automobile.” Id. at 1051, 103 S.Ct. at 3482 (emphasis added).
7. This fact, of course, suggests that the district court's denial of Stanfield's suppression motion might well be sustainable on the alternative ground that the cocaine would inevitably have been discovered by Officer Buie or Officer Hamel, even had it not been discovered by Officer Mackel. Where the preponderance of evidence establishes that the information would “ultimately or inevitably” have “been discovered by means wholly independent of any constitutional violation,” the inevitable discovery exception to the exclusionary rule allows the prosecution to admit the evidence obtained through an illegal search. Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2508-09, 81 L.Ed.2d 377 (1984).
8. Stanfield also argues that the initial seizure of his vehicle was illegal because the officers stopped his vehicle in order to investigate possible drug trafficking, not, as the officers contended, because he was in violation of the state's traffic laws. See supra note 5. Because, as the Supreme Court has recently held, an officer's subjective state of mind in stopping a vehicle is irrelevant to the constitutionality of the stop, see Robinette, 519 U.S. at ----, 117 S.Ct. at 420 (“ ‘Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.’ ”) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723-24, 56 L.Ed.2d 168 (1978)); Whren v. U.S., 517U.S. 806, ----, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (“[Our] cases foreclose any argument that the constitutional reasonableness of a traffic stop depends on the actual motivations of the individual officers involved.”), the district court was unquestionably correct in rejecting this argument.
LUTTIG, Circuit Judge:
Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judges HAMILTON and WILLIAMS joined.
DBMA Martial Arts Forum / Martial Arts Topics / US v. Palmer
on: February 18, 2014, 03:15:29 PM
US v. Palmer
United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff Appellee,
STUART PALMER, Defendant Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. NO. 02CR172C)
Submitted on the briefs: Fred Randolph Lynn, Tulsa, Oklahoma, for Defendant Appellant. David E. O’Meilia, United States Attorney, and Leena M. Alam, Assistant
United States Attorney, Tulsa, Oklahoma, for Plaintiff Appellee.
Before HENRY , BALDOCK , and HARTZ , Circuit Judges.
HARTZ , Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
On September 30, 2002, Defendant Stuart Joseph Palmer was stopped by an officer of the Tulsa Police Department for speeding in a school zone. The officer subsequently found a loaded semiautomatic handgun when conducting a protective search for weapons in the locked glove box of Defendant’s vehicle. Defendant was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C § 922(g)(1). Contending that the search of the locked glove box violated the Fourth Amendment, Defendant moved the district court to suppress the gun. After the district court denied his motion, Defendant reached a plea agreement with the government. He entered a conditional plea of guilty to the indictment, reserving his right to appeal the denial of his motion to suppress. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
“In reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous.” United States v. BoteroOspina, 71 F.3d 783, 785 (10th Cir. 1995) (en banc). The final determination whether a warrantless search was reasonable under the Fourth Amendment is a question of law to be reviewed de novo. Id. “We view the evidence on appeal in the light most favorable to the government.” Id.
Officer Paul Downe observed a 1991 Buick driven by Defendant traveling 46 miles per hour in a 25 mile per hour school zone at approximately 9 a.m. on September 30, 2002. Downe activated his police car’s emergency lights and siren to get Defendant’s attention. Driving behind Defendant, Downe signaled Defendant to pull over. Defendant looked back at the police car and pointed to himself, as if to ask “me?” Downe nodded and motioned for Defendant to pull over into a nearby Arby’s parking lot. Rather than turn immediately, Defendant remained in his lane of traffic, made a left turn at the next light, and accelerated. When Downe reactivated his siren, Defendant promptly crossed a lane of traffic and pulled into a NAPA parking lot.
Defendant drove through the parking lot, bypassing approximately 25 empty parking spaces. He eventually stopped on the far side of the lot. From the time Downe first signaled Defendant to pull over until the time Defendant stopped in the parking lot, Downe observed Defendant reaching behind the seat and then back toward the glove box, and leaning forward as if reaching for something under the seat.
As Downe got out of his patrol car and approached Defendant’s vehicle, he saw Defendant continue to make movements toward his feet or under the seat, and toward the passenger side and glove box. Downe observed Defendant’s hand near the glove box, which was open, and saw Defendant close the glove box.
Downe obtained Defendant’s driver’s license and returned to his patrol car to conduct a license check and prepare a citation. As he was doing this, a black pickup truck pulled up next to the patrol car. The driver told Downe that he had witnessed Defendant trying to hide something after Downe had signaled him to stop.
Downe radioed the police dispatcher to obtain backup. While waiting for backup to arrive, Downe conducted a record check on his laptop computer. It indicated that Defendant was an exconvict and warned that Defendant had been armed and dangerous. Downe continued to observe Defendant moving back and forth in his seat and leaning toward the glove box and under his seat.
Shortly thereafter, Officer Goad arrived on the scene. Downe explained to him what had happened and asked him to check the inside of Defendant’s vehicle. Downe removed Defendant from the vehicle, patted him down, and sat him in the patrol car while Goad searched the vehicle. Goad’s search revealed no weapons. Downe asked Goad to watch Defendant while he searched the vehicle himself. During his search Downe tried to open the glove box, which was locked. He removed the keys from the ignition and used them to unlock the glove box, where he found a loaded semiautomatic handgun.
“[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation . . . .” BoteroOspina, 71 F.3d at 787. In addition, when police officers have a reasonable suspicion based on specific and articulable facts that a properly detained driver may be dangerous and “‘may gain immediate control’” of weapons, they may conduct a weapons search of the driver’s person and the passenger compartment of the vehicle. United States v LeyvaSerrano, 127 F.3d 1280, 1283 (10th Cir. 1997) (quoting Michigan v. Long, 463 U.S. 1032, 1049 (1983)). Thus, the question in this case is whether Downe had a reasonable and articulable suspicion sufficient to justify the weapons search of the passenger compartment of the vehicle, including the glove box.
We agree with the district court that the specific facts and circumstances here gave rise to a reasonable suspicion that Defendant was dangerous and could gain control of a weapon. The observations of Officer Downe, supported by those of the passing motorist, clearly indicated that Defendant was trying to delay his encounter with the officer until he could hide something in his glove box. When the license check revealed that Defendant was an exconvict who had been considered armed and dangerous, Officer Downe had more than sufficient evidence to support a reasonable suspicion that Defendant was dangerous and was hiding a weapon in the glove box.
More problematic is whether there is reason to believe that a suspect “may
gain immediate control” of a weapon in a locked glove box, particularly when the
suspect is in the patrol car, detained by a police officer, while another officer
looks in the glove box of the suspect’s car. We turn to the relevant case law for
clarification of the quoted phrase in the present context.
The Supreme Court’s opinion in Michigan v. Long explains that (1) the fact
that the detainee is “under the control” of officers does not eliminate the risk that
he will gain access to a weapon, and (2) the time period during which the detainee
“may gain immediate control” is the entire period from the initial stop to the
detainee’s departure. The Court wrote:
The Michigan Supreme Court appeared to believe that it was not reasonable for the officers to fear that Long could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile. This reasoning is mistaken in several respects. During any investigative detention, the suspect is in the control of the officers in the sense that he may be briefly detained against his will. Just as a Terry v. Ohio, 392 U.S. 1 (1968), suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect in Long’s position break away from police and retrieve a weapon from his automobile. In addition, if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside. Or, as here, the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons. In any event, we stress that a Terry investigation, such as the one that occurred here, involves a police investigation at close range, when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a quick decision as to how to protect himself and others from possible danger. In such circumstances, we have not required that officers adopt alternate means to ensure their safety in order to avoid the intrusion involved in a Terry encounter.
Long, 463 U.S. at 105152 (internal citations, quotation marks, ellipses, and
If Defendant had broken away from the officers, obtaining a gun from inside the glove box would have taken only a moment more than obtaining a gun from anywhere else within the passenger compartment. To be sure, the tasks of getting a key and unlocking the glove box would delay Defendant somewhat; but a suspect who is able to break free of officers detaining him could also seize the keys, and the suspect may have another means of entry to the glove box, such as a key that would not be detected during a proper frisk or a weapons search of the vehicle. Furthermore, Defendant would have access to the gun at the conclusion of the encounter, assuming that he was only issued a citation and not arrested.
Recognizing these dangers, the federal courts of appeals to address the matter have upheld weapons searches of locked vehicles and glove boxes. In United States v. Holifield, 956 F.2d 665, 66667 (7th Cir. 1992), officers who had stopped a car for speeding removed the occupants from the car, frisked them, examined the interior for weapons, and then removed the keys from the ignition and unlocked the glove box, where they found a pistol. Because the driver’s aggressive behavior justified the officers’ fear for their safety, the Seventh Circuit upheld the search of the locked glove box. The court relied on the above quoted passage from Long, observing that the passengers would eventually return to their car and that even before then, one or more could have broken free from the officers. Id. at 66869. Similarly, the Eighth Circuit followed Long in upholding a weapons search of a locked glove box. United States v. Brown, 913 F.2d 570, 57172 (8th Cir. 1990) (key lying on car’s front seat). Cf. United States v. Mancillas, 183 F.3d 682, 699701 (7th Cir. 1999) (locked car; follows Holifield); United States v. Woody, 55 F.3d 1257, 126970 (7th Cir. 1995) (search of locked glove box incident to arrest; cites Holifield with approval); United States v. Cheatwood, 575 F.2d 821, 825 (10th Cir. 1978) (seizure of firearms from front seat of car while defendant was standing at rear of car “was proper in relation to protection of the persons of the two police officers which necessarily involves the possibility that [the defendant] may have attempted reentry of the vehicle to obtain the weapons for use against the officers”).
Also instructive is United States v. Christian, 187 F.3d 663 (D.C. Cir. 1999), although the case did not involve a locked glove box. When two officers approached the defendant to question him as he stood by the side of a car, one saw a dagger on the front seat. Id. at 665. He asked the defendant for the car keys, unlocked the car, and retrieved the weapon. Id. The defendant challenged the search of the locked car because “the car’s interior was not within his immediate control” once the officer had taken the keys from him. Id. at 670 (internal quotation marks omitted). The court responded that the pertinent moment to assess the risk of the suspect’s gaining immediate control of a weapon was just before the officers took protective measures—that is, before the officers obtained the keys. “Otherwise, we might create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer.” Id. (internal quotation marks omitted); cf. United States v. Ross, 456 U.S. 798, 807 n.9 (1982) (in explaining why warrant need not be obtained to search impounded vehicle that had been stopped on highway with probable cause, Court wrote: “f an immediate search on the scene could be conducted, but not one at the station if the vehicle is impounded, police often simply would search the vehicle on the street—at no advantage to the occupants, yet possibly at certain cost to the police.”). The officers’ actions were therefore justified under Long because “t was not unreasonable to fear [the defendant] might lunge for the door, open it with the keys, and grab the knife.” Christian, 187 F.3d at 670. The court also noted that the defendant might have been able to enter the car even without the keys, id. at 67071, and that the defendant, if not arrested, eventually would have been permitted to reenter the car, id. at 671.
We agree with the analysis in the above cases, which also applies to this appeal. Before the two officers first arrived at Defendant’s car and asked him to step out, Officer Downe had learned of Defendant’s criminal record and dangerousness and had observed Defendant’s furtive movements while being pursued. Thus, they had sufficient justification at that point to take the car keys and open the glove box. The delay in searching the glove box—while Defendant was removed to Officer Downe’s patrol car and Officer Goad first searched the interior of Defendant’s car—did not extinguish that justification. Moreover, as noted in Long, Defendant would certainly have had access to the gun after the citation was issued and he was released to go.
We recognize that “a protective search for weapons is limited in scope, but the fact that it is a limited search does not mean that it may not encompass the glove compartment. Protective searches are only limited in the sense that the officer conducting the protective search must first have a reasonable suspicion that the suspect is dangerous and the protective search must be directed only to locations which may contain a weapon and to which the suspect may have access.” Holified, 956 F.2d at 669. Based on the information before the officers, Officer Downe was justified in searching the locked glove box as part of the protective search.
We AFFIRM the judgment below.
DBMA Martial Arts Forum / Martial Arts Topics / Re: Citizen-Police interactions
on: February 17, 2014, 09:01:16 PM
Ummm , , , no. I find it somehow intriguing.
Q: You find the officer's illegal search of the vehicle OK?
Q: What do you make of the variance between the letter of the law and reality?
Q: What do you make of matter about his wanting to view the video by himself first? I for one have had experience with police lying about me in court that was revealed only by the judge requiring each to testify without the other present.
How do you know the search was illegal? Facts not in evidence. Technically, looking inside the vehicle is a plain view search, though it's not colloquially called a search. also, the courts have upheld opening car doors for officer safety purposes.
DBMA Martial Arts Forum / Martial Arts Topics / Re: Michael Dunn found guilty on several charges
on: February 16, 2014, 07:04:13 PM
If one is ever in a self defense shooting, you should be calling 911 asap.
From what I can tell, this man, despite CCW for 20 years, acted quite wrongly here.
Mistrial on First-Degree Murder Charge as Jury Reaches Partial Verdict in Florida Killing
After four days of deliberation, the jury in the trial of Michael Dunn, a Florida man who shot a teenager to death in a parking lot during a dispute over loud music, said it could not agree on whether Mr. Dunn had acted in self-defense or was guilty of murder.
The jurors did find Mr. Dunn guilty of three counts of attempted murder for getting out of his car, and firing several times at the Durango sport utility vehicle in which Jordan Davis, 17, was killed but three other teenagers survived. Mr. Dunn continued to fire at the car even as it pulled away. For that crime, Mr. Dunn he could be sentenced to 20 to 60 years in prison.
The judge declared a mistrial on the count of first-degree murder. The jury also failed to reach agreement on lesser charges that are automatically included in jury instructions.Those were second- and third-degree murder and manslaughter. Prosecutors are free to move ahead with a new trial on the murder charge, if they wish.
READ MORE »http://www.nytimes.com/2014/02/16/us/florida-killing-over-loud-music.html?emc=edit_na_20140215
Politics, Religion, Science, Culture and Humanities / Politics & Religion / Professional Journalists not at work...
on: February 12, 2014, 06:16:07 PM
February 11, 2014 12:00 AM
Poof: A Scandal Disappears
The press has decided that the IRS’s targeting of conservatives is not newsworthy.
By Mona Charen
Remember the IRS scandal? It’s gone. Poof. So flaccid has press interest in the story become that President Obama made bold in an interview with Fox News to say that there was not a “smidgen of corruption” in the IRS’s conduct, and that the matter concerned only some “bone-headed decisions out of a local office.”
It requires terrific confidence in the passivity of the press to float the discredited “Cincinnati did it all” dodge since we know that IRS employees in that office were taking direction from Washington. We further know that IRS offices in California, Oklahoma, Washington, D.C., and other places have been identified as singling out groups with “tea party” or “patriot” in their names.
Obama’s confidence in the press is not misplaced. Despite juicy opportunities to delve into the story of government abusing its power, reporters have let the matter drop.
There was no “smoking gun” showing that Obama personally ordered the harassment of conservatives, some explain. Is that the standard? Because it seems that the press applied a different yardstick to Chris Christie. Well, there’s a “scandal attention cycle,” says the Columbia Journalism Review. To some extent that’s true. But there are different rules for Democrats, and particularly for Obama.
To review: When the behavior of the IRS was first revealed in May of 2013, the press furor was considerable. For a week or so, it was almost as if the press remembered how to cover the administration aggressively. The president was alarmed enough about the damaging story to hold a press conference. “If, in fact, IRS personnel engaged in the kind of practices that have been reported on and were intentionally targeting conservative groups,” he said, “then that is outrageous, and there is no place for it, and they have to be held fully accountable. . . . You should feel that way regardless of party.” He continued, “I have got no patience with it, I will not tolerate it, and we will make sure that we find out exactly what happened on this.”
Or not. Now it’s just “bone-headed decisions out of a local office.” This is tamely accepted. If it concerned just a local office, why did Obama fire the director of the IRS? Why did Lois Lerner plead the Fifth and resign? (Republicans on the House oversight committee erred by not granting her use immunity and questioning her intensely on what really happened. They could still do it.)
It was also a non-scandal when the Justice Department appointed an Obama donor to investigate the IRS. Nor did the press follow up on uncontested accounts of IRS employees leaking confidential taxpayer information — which is a felony. The donor list of the National Organization for Marriage was leaked by someone at the IRS to the Human Rights Campaign, a group that supports same-sex marriage.
Last week, Catherine Englebrecht, a small businesswoman from Texas who founded True the Vote and King Street Patriots, testified about her ordeal at the hands of the federal government. Though she had never been audited in her life before exercising her First Amendment rights, after she became politically active she was subject to personal and business audits by the IRS going back several years. Then the FBI came knocking to ask about someone who attended one of the meetings of the King Street Patriots. The IRS returned with an armamentarium of questions about True the Vote. Then OSHA showed up to examine her business with a fine-tooth comb. (They fined her $17,500.) Finally, the Englebrechts were graced with a visit from the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Englebrecht’s experience should chill anyone concerned about government intimidation, overreach, arrogance, and abuse of power. But most of all it should alarm the press — supposedly the fierce guardians of the First Amendment. The press made Sandra Fluke a household name when she testified before a House subcommittee about the terrible injustice she would suffer if taxpayers did not purchase her contraceptives for her. Yet Catherine Englebrecht, an ordinary person merely attempting to join with other Americans in petitioning the government for redress of grievances, was hammered by a succession of powerful government agencies. Not even a bleat from the press about this flagrant assault on free speech.
It is an article of faith that agencies will operate in a strictly neutral and nonpartisan fashion when enforcing the law. If they become politicized, we’ve entered banana-republic territory. The press, by failing to beat the drums on this, is complicit in corruption that goes far beyond a “smidgen.”
— Mona Charen is a nationally syndicated columnist.
Politics, Religion, Science, Culture and Humanities / Politics & Religion / Death Spiral-care
on: February 12, 2014, 06:04:47 PM
How many ObamaCare enrollees have paid for coverage?
posted at 3:21 pm on February 12, 2014 by Ed Morrissey
The White House and its supporters have begun bragging that the ObamaCare system has started to function as planned, with sign-ups increasing as the deadlines approach for the individual mandate deadline. But how many of those sign-ups turned into actual enrollments through the payment of the premium? As it turns out, not nearly as many as the top-line numbers suggest:
While the number of states reporting this information is small, they actually make up a good chunk of Obamacare’s currently accepted 3 million nationwide enrollment total. According to the Obama administration’s most recent detailed report on enrollment data, these five states — New York, California, Washington state, Nevada and Rhode Island — account for a third.
California’s exchange last reported that three-fourths of its reported enrollees had paid their first premiums, according to California Healthline; Washington’s totals released Tuesday indicate that only 51 percent have purchased their plans.
New York’s numbers are fuzzier, since the exchange itself doesn’t separate applications for Medicaid and private plans. It counts 412,221 enrollments for public and private coverage (just 251,000 are private plans), but notes that another 697,000 customers have completed applications on the exchange website. If the entire 421,221 have paid (or accepted the low- to no-cost Medicaid coverage), New York’s payment rate is only 59 percent.
Nevada’s payment rate is just 66 percent — 14,999 out of 22,597 so far — and Rhode Island has by far the best total, with 14,086 paid customers out of 16,512, for a payment rate of 85 percent.
Those numbers aren’t much improved from a month ago, when industry expert Bob Laszewski estimated the payment figure at 50%. The federal system’s back end for dealing with those issues is still missing in action, too, which means it’s going to be even more problematic. We’re about a month out from the big deadline for the April 1 cutoff for enforcement, and at the very best, we can say that the signup-to-paid ratio isn’t improving by much, if at all.
That may be a surprise to Laszewski, who predicted an 80% clearance rate by this time, which only Rhode Island appears to be achieving. He also noted a multitude of issues in the federal system still awaiting resolution:
Last fall I said that I thought it would be late January or early February before Healthcare.gov would generally be fixed.
Boy, was I wrong.
The to-do list still includes:
Problems with the government sending enrollment transactions to the carriers––the 834s––that are still having error rates much too high for high volume processing.
The inability of the government to do an automated enrollment reconciliation with the carriers––to be able to sort out who really is covered and who is not––because that system still hasn’t been built.
The inability of the government to pay carriers because that system hasn’t been built––carriers are sending estimated bills to the feds.
The inability of the government to add and delete people from the system for things like a newborn or a divorce because that system hasn’t been built yet.
The inability of the government to handle appeals when people think their eligibility or subsidy calculation is wrong because that system hasn’t been built yet.
The inability of the government to cancel people off of Healthcare.gov because they never built that functionality. As a result, I expect they will be reporting bloated enrollment numbers for some time.
At least two carriers have told me that because the government can’t cancel people off the system, it the person shows up next month they can’t reenroll on Healthcare.gov because the government can’t get the old enrollment off the system.
What kind of progress is being made in Minnesota, where the MNSure administrator ended up getting fired over its launch failures? Investors Business Daily offers a look, and it’s not pretty:
Minnesota’s exchange enrollment goal of 67,000 seemed within reach on Jan. 4, when signups stood at 25,860.
But after surging by more than 4,000 per week in the prior five weeks, signups collapsed back to November’s pace of less than 700 per week. …
Only 21% of signups were in the key 18-34 demographic vs. 35% ages 55 to 64. Minnesota officials have been taken by surprise at the share of people signing up for ObamaCare’s richest “platinum” coverage, which reimburses 90% of the covered group’s qualifying expenses.
Fully 29% have signed up for low-deductible platinum policies — compared to a projection of 5%. Such policies would tend to be favored by people who want to guard against high medical expenses, while someone expecting minimal costs might go for a high-deductible bronze plan.
In fact, the shortfall of sign-ups — let alone actual enrollments — threatens to create a budget crisis:
Enrollment is currently at 92,000, which is still way short of their goals by for enrollment prior to March 31. The worry is if they don’t have enough people paying into MNsure, it won’t be sustainable and they’ll have to ask the legislature for more money.
Minnesota lawmakers have warned leaders of MNsure that they must figure out budget needs soon as insurance enrollment trends point to a 2015 deficit. MNsure must give lawmakers a proposed 2015 budget by March 15.
The 92,000 figure includes the Medicaid enrollments through the system, too. The problem is in the lack of private-insurance enrollments, and it’s going to be a huge problem for the state legislature, which is already strapped for funds as it is.
Guy Benson hits the numbers:
This portends two separate risk pool problems. First, not enough young and healthy people are signing up — a trend that has been well established for some time. Minnesota’s 21 percent figure is nearly identical to what health insurer Humana is reporting in its nationwide risk pool so far — and roughly half of the administration’s initial goal within this demographic. Second, a surprisingly high number of enrollees are selecting “platinum” plans, indicating that they anticipate incurring high levels of annual medical expenses and are looking to minimize out-of-pocket costs. Add these two together, and you’re staring at an adverse selection problem, which may result in larger taxpayer bailouts of on-the-hook insurers.
Also take note of the paltry payment rate of “enrollees” in Washington State so far … Washington has a payment rate of just 50 percent, with Nevada sitting at 66 percent. Both states are far off pace to hit their 2014 targets, even counting unpaid “enrollments.”
Be sure to read it all.
Politics, Religion, Science, Culture and Humanities / Politics & Religion / Obama Frees America From the Tyranny of Law
on: February 12, 2014, 05:23:39 PM
NATIONAL REVIEW ONLINE www.nationalreview.com
February 11, 2014 5:00 PM
Obama Frees America From the Tyranny of Law
Executive orders aim to prevent ‘Constitution-lock.’
By Charles C. W. Cooke
‘That’s the good thing as president,” President Obama half-joked yesterday at Thomas Jefferson’s home in Monticello, Virginia. “I can do what I want.” And, as if signaling that he had finally transcended all of those antediluvian “I’m not a king/emperor/dictator” reassurances, a few hours later the news broke that he had, once again, done what he wanted — this time delaying part of Obamacare’s employer mandate until 2016.
“Now,” ventured the Volokh Conspiracy’s Eugene Kontorovich, “Obama really is bypassing Congress”:
Manipulating large-scale legislative policies, duly enacted, around election schedules goes beyond the parameters of executive discretion. Nor can this be justified by the dubious claim of “transition relief” from tax obligations. The employers are not being relieved just from taxes, but from direct primary legal obligations to provide insurance. Every year the administration delays large portions of ObamaCare, it says it is no big deal, because it is “temporary.” But a few temporary fixes in a row becomes a new permanent form of executive lawmaking.
“Executive lawmaking” sounds so harsh, don’t you think? Perhaps conceive of it instead as the executive branch’s “liberating“ itself from that pesky “Constitution-lock” we’ve heard so much about. After all, the alternative is just too depressing: “Whatever the stated reason for the new delay,” Kontorovich’s colleague at Volokh, Jonathan H. Adler, adjudged candidly, “it is illegal,” and “the increasing brazenness with which the Administration is disregarding inconvenient or ill-conceived portions of its signature legislative achievement lowers the bar to a disturbing degree.” Fair enough. But how rich and how various have been those reasons! “Why do you care: you like the outcome?” the president’s critics have been asked, just one among a host of unconvincing defenses that have included, “well, I don’t like Congress,” “think of it more as that the White House is improving the law,” “this is too important for the rules,” “look, Obama won,” and, perhaps my all-time favorite, “what are you going to do about it anyway?”
In court? Not too much, in all likelihood. As so often, nobody seems to have standing. Legally, though, this isn’t even a close one. Obamcare’s text clearly instructs that the employer mandate is to come into effect on January 1 of this year, and, as Adler adroitly demonstrates, the established rule is that if Congress explicitly enacts a deadline without including the means by which that deadline may be changed, the president is required to enforce the law as written. “The Executive Branch is supposed to faithfully execute the laws Congress enacts, not rewrite them,” Adler concludes — a sentiment that should surprise nobody who has even a rudimentary grasp of American civics. Obamacare contains no exception to that rule.
Still, with his signature legislation on the line and the ghastly prospect of a fully Republican Congress presiding over his final two years, this is all proving a touch restrictive for our intrepid, transforming hero. Thus have we been treated to an intriguing paradox: When Congress wishes to delay or amend Obamacare, it risks upsetting the entire American settlement — nullifying a law that was apparently set in aspic, never to be touched; but when Obama wishes to delay or amend Obamacare, he is merely ensuring that it works properly. Indeed, if Congress so much as hints that it would be willing to pass an alteration to the law, the administration takes it as read that it has been granted the moral permission to act on its own; but if Congress wouldn’t be willing to pass a change, then the president is forced to act in order to counter what we are reliably informed is unprecedented obstruction. It’s awfully clever.
This approach seems to have convinced the press corps, even in such cases as it is patently obvious that the government’s changes have nothing to do with the government and everything to do with politics. Almost every media outlet openly acknowledged yesterday that the newest delay was the product of electoral expedience — “in a midterm election year, the WH simply did not need any more healthcare headaches,” CBS’s Major Garrett averred, his eyebrows remaining level — and yet in not a single case did anybody ask the next question, “how is this remotely acceptable?” Certainly, I comprehend the temptation toward cynicism that the abject hypocrisy of politics can yield. I empathize, too, with those who have come to the resigned conclusion that all legal opinions are driven by partisan preference and that each and every challenge to the process by which things are achieved is ultimately a cloaked objection to the outcome at hand. As conservatives had a poor record of calling out executive overreach when George W. Bush was president, the progressive response to Obama’s accelerating domestic imperialism has thus far been to cheer and ask for more. But are we to conclude that this make it acceptable? Of course not.
“They seem to not understand that it’s not the delay we oppose,” Red Alert’s Allen Ginzburg sighed yesterday, “but the President circumventing the legislature to do it.” Quite so. And they seem not to understand, either, that the system, which is supposed to sit above the politics of the day, is the product not of the last election cycle but of a centuries-old struggle between lawmakers and executives — one that runs through the Magna Carta, the English Civil War, the Glorious Revolution, the American Revolution, the drafting of the Constitution and the consequent fight between the federalists and anti-federalists, a fight that set the stage for the political cleavages with which we still contend today.
In the heat of battle, it might appear to its apologists as if Obamacare is worth the destruction of the established order. But it won’t look that way in a few years time, when, as the pendulum always guarantees that it is, the shoe is on the other foot. George Washington walked away after two terms not because he did not trust himself to rule indefinitely, but because he did not trust the guy twenty or thirty years down the line to do so. Obama would do well to follow Washington’s example. He doesn’t even need the permission of Congress . . .
— Charles C. W. Cooke is a staff writer at National Review.
Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: The First Amendment: Freedom of Speech, Religion, & Assembly
on: February 11, 2014, 04:37:38 PM
LDS are a popular target. I guess the outrageous claims found in the Koran are up next on the docket, right?
Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: US suspect possibly targeted for drone attack
on: February 10, 2014, 07:14:56 PM
Too bad it's not a Tea party activist, as the Obama administration can target them without any concerns about due process, constitutional protections or the rule of law.
From the article:
An American citizen who is a member of al-Qaida is actively planning attacks against Americans overseas, U.S. officials say, and the Obama administration is wrestling with whether to kill him with a drone strike and how to do so legally under its new stricter targeting policy issued last year.
The CIA drones watching him cannot strike because he's a U.S. citizen and the Justice Department must build a case against him, a task it hasn't completed.
DBMA Martial Arts Forum / Martial Arts Topics / 24 things cops know, but most people don’t
on: February 10, 2014, 04:43:38 PM
24 things cops know, but most people don’t
Not all of these are strictly what the police know that private citizens don’t, but they’re close.
Many are things I wish I could have said, but would have been in big trouble for doing so.
1.) Even though you say differently, you probably don’t know your rights.
2.) If you leave your teenager in charge of the house while you go away for the weekend, he or she will probably do something you forbade them to do. If they decide to host a beer party, your house will be wrecked.
3.) You can’t talk your way out of a ticket. Lots of people talk themselves into one.
4.) Of course it went off. What did you expect would happen when you pulled the trigger?
5.) The electronics in your radar or laser detector work no faster than those in my radar or LIDAR gun. By the time the little red light goes on, I already have your speed.
6.) We know you had more than two beers.
7.) If you grew up with guns in the house, you probably knew how to get to them, even though your parents thought they had them hidden or locked away. Don’t think your kids are any less ingenious.
8.) Arguing with me here will not go well for you. Arguments are for courtrooms, where you can make any statements and ask me any questions you want. Out here, I win all the arguments.
9.) We really don’t care how many FOP, State Sheriffs Association or 11-99 Foundation stickers you buy for your car. If you deserve the ticket, you’re getting it.
10.) Yes, you do pay my salary. Today’s obligation can be calculated by the following formula:
((Amount you pay annually in state, county, or city taxes/365) x (Fraction of budget allocated for law enforcement))/(Number of employees in my organization)
11.) I’d be happy to give you a refund. Do you have change for a penny?
12.) Most able-bodied people really can do those tests while sober.
13.) You are not the first person to see a cop and say "Take him, he did it," "I didn’t do it," or to tell your kid, "If you don’t behave, that cop will put you in jail." You probably aren’t even the first one to say that today. You have, however, caused me to mentally label you as a moron.
14.) The gun isn’t to protect you. It is to protect me.
15.) Your substance abuse problem is your business until it spills over into someone else’s life. Now, you are the problem.
16.) I don’t especially care what your race, religion, sexual preference, ethnicity, political affiliation or economic status is. I do have a bias against assholes.
17.) Can anyone here point out this person’s parents? He just asked me if I knew who his father was, and I don’t.
18.) Believe it or not, you really don’t drive better with a few drinks in you.
19.) Do unto others, but do it first.
20.) We are not armed, uniformed scribes. If someone has threatened, insulted, or otherwise vexed you in some non-criminal way and you want it put on record, write it down, take it to a notary public, and sign it in their presence. Poof, you have a record. If we could make one change to improve society, better parenting would be toward the top of the list.
21.) There probably are teenagers who can handle alcohol responsibly outside the direct supervision of an adult. We never run into them, though.
22.) Please press firmly, you are making four copies.
23.) You are in ______________. We don’t care how they do it in ___________.
24.) Yes, you very well may see me in court. I get paid overtime to be there, win or lose.
Politics, Religion, Science, Culture and Humanities / Politics & Religion / Stephen Halbrook
on: February 10, 2014, 04:07:53 PM
HALBROOK: What made the Nazi Holocaust possible? Gun control
By Stephen P. Halbrook
Thursday, November 7, 2013
This week marks the 75th anniversary of Kristallnacht, or the Night of the Broken Glass, the Nazi pogrom against Germany’s Jews on Nov. 9-10, 1938. Historians have documented most everything about it except what made it so easy to attack the defenseless Jews without fear of resistance. Their guns were registered and thus easily confiscated.
To illustrate, turn the clock back further and focus on just one victim, a renowned German athlete. Alfred Flatow won first place in gymnastics at the 1896 Olympics. In 1932, he dutifully registered three handguns, as required by a decree of the liberal Weimar Republic. The decree also provided that in times of unrest, the guns could be confiscated. The government gullibly neglected to consider that only law-abiding citizens would register, while political extremists and criminals would not. However, it did warn that the gun-registration records must be carefully stored so they would not fall into the hands of extremists.
The ultimate extremist group, led by Adolf Hitler, seized power just a year later, in 1933. The Nazis immediately used the firearms-registration records to identify, disarm and attack “enemies of the state,” a euphemism for Social Democrats and other political opponents of all types. Police conducted search-and-seizure operations for guns and “subversive” literature in Jewish communities and working-class neighborhoods.
Jews were increasingly deprived of more and more rights of citizenship in the coming years. The Gestapo cautioned the police that it would endanger public safety to issue gun permits to Jews. Hitler faked a show of tolerance for the 1936 Olympics in Berlin, but Flatow refused to attend the reunion there of former champions. He was Jewish and would not endorse the farce.
By fall of 1938, the Nazis were ratcheting up measures to expropriate the assets of Jews. To ensure that they had no means of resistance, the Jews were ordered to surrender their firearms.
Flatow walked into a Berlin police station to comply with the command and was arrested on the spot, as were other Jews standing in line. The arrest report confirmed that his pistols were duly registered, which was obviously how the police knew he had them. While no law prohibited a Jew from owning guns, the report recited the Nazi mantra: “Jews in possession of weapons are a danger to the German people.” Despite his compliance, Flatow was turned over to the Gestapo.
This scenario took place all over Germany — firearms were confiscated from all Jews registered as gun owners. As this was occurring, a wholly irrelevant event provided just the excuse needed to launch a violent attack on the Jewish community: A Polish teenager who was Jewish shot a German diplomat in Paris. The stage was set to instigate Kristallnacht, a carefully orchestrated Nazi onslaught against the entire Jewish community in Germany that horrified the world and even the German public.
Under the pretense of searching for weapons, Jewish homes were vandalized, businesses ransacked and synagogues burned. Jews were terrorized, beaten and killed. Orders were sent to shoot anyone who resisted.
SS head Heinrich Himmler decreed that possession of a gun by a Jew was punishable by 20 years in a concentration camp. An estimated 20,000 Jewish men were thrown into such camps for this reason or just for being Jewish. The Jewish community was then held at ransom to pay for the damage done by the Nazis.
These horrific events were widely reported in the American media, such as The New York Times. After Hitler launched World War II, the United States made preparations in case it was dragged into the conflict. Just before the sneak attack on Pearl Harbor, Congress passed a law noting the Gestapo methods and declaring that the Second Amendment right to keep and bear arms may not be infringed by such measures as registration of firearms.
Kristallnacht has been called “the day the Holocaust began.” Flatow’s footsteps can be followed to see why. He would be required to wear the Star of David. In 1942, he was deported to the Theresienstadt concentration camp, where he starved to death.
One wonders what thoughts may have occurred to Flatow in his last days. Perhaps memories of the Olympics and of a better Germany flashed before his eyes. Did he have second thoughts about whether he should have registered his guns in 1932? Or whether he should have obediently surrendered his firearms at a Berlin police station in 1938 as ordered by Nazi decree, only to be taken into Gestapo custody? Did he fantasize about shooting Nazis? We will never know, but it is difficult to imagine that he had no regrets over his act of compliance.
Today, gun control, registration and prohibition are depicted as benign and progressive. Government should register gun owners and ban any guns it wishes, Americans are told, because government is inherently good and trustworthy. The experiences of Hitler’s Germany and, for that matter, Stalin’s Russia and Pol Pot’s Cambodia, are beneath the realm of possibility in exceptional America. Let’s hope so.
Still, be careful what you wish for.
Stephen Halbrook is research fellow with the Independent Institute and author “Gun Control in the Third Reich: Disarming the Jews and ‘Enemies of the State’” (Independent Institute, 2013).
Read more: http://www.washingtontimes.com/news/2013/nov/7/halbrook-the-key-to-this-german-pogrom-is-confisca/
Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Poet executed
on: February 10, 2014, 04:04:23 PM
|Global muslim outrage in 3.....2......never
Feb. 9, 2014 5:53 p.m. ET
From a statement by the independent watchdog group Freedom House, Feb. 5:
Freedom House condemns Iran's execution on January 27 of renowned Iranian poet Hashem Shaabani. In July 2013, an Islamic Revolutionary Tribunal had sentenced the poet to death, along with 14 others, on charges of "waging war on God," "spreading corruption on earth," and "questioning the principle of velayat-e faqih" (the rule of the jurisprudent, Iran's system of vesting supreme power in an unelected cleric), according to press reports. . . .
Shaabani and one other person were hanged at an undisclosed prison after the sentences were approved by President Hassan Rouhani.
During Shaabani's three-year incarceration, he was subjected to severe torture and interrogation. Shaabani, aged 32, was an Iranian of Arab origin and a founder of the Dialogue Institute, which tried to promote understanding of Arabic culture and literature in Iran.
Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: The Politics of Health Care
on: February 10, 2014, 08:14:40 AM
Humana is extraordinarily brutal health insurer. It is always about the bottom line for them. They are moving into Jersey I am told in a big way by offering the best deals. Sounds good now but once they gain market share they will start turning the screws not only on providers but patients too.
If you think Humana is brutal, wait until the feds really run healthcare.