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Comment Re:And another disappointment (Score 1) 276

Corporations, PACs, trusts, and unions are all abstract concepts; they're all made of individuals, and it is the individuals who actually do anything.

Put another way--the people have the right to free speech, and they have the right to assemble peaceably. You propose forcing them to choose one or the other: "either speak, or assemble, but you can't assemble and then speak together!"

Government

FBI May Get Easier Access To Internet Activity 276

olsmeister writes "It appears the White House would like to make it easier for the FBI to obtain records of a person's internet activities without a court order to do so, via the use of an NSL. While they have been able to do this for a long time, it may expand the type of information able to be gathered without a court order to include things like web browsing histories."

Comment Re:Right to remain silent (Score 1) 169

If I have the right to remain silent, do I also have the right to refuse giving my DNA away? IANAL but if I have the right to not speak so as to not incriminate myself, why wouldn't I also have the right to not have my blood drawn (or mucus swabbed) so as to not incriminate myself?

I don't live in New York but, I'm often there. If an officer there wanted to take a sample of my DNA for an offense such as speeding, I'd refuse. If he persisted, I'd try to invoke Miranda Rights. If he persisted after that, I'd fight back as he tried to take the sample, recover for a few months in the hospital after he beat me senseless and then sue for police brutality. Essentially, that's what it's going to take to get this law overturned if it gets passed.

How do ignorant comments like this get modded up to +5?

First of all, since you describe an offense involving driving, you should know that the implied consent laws passed by the states requires that you give consent to brethalyzer, etc. It'd be trivial for the legislatures to add a DNA sample to the list. You can still refuse, but you'll lose your license.

Second, the Supreme Court has held that the Fifth Amendment only applies to testimonial evidence. In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court held that extracting blood against the suspect's will was permissible: "On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. . . . Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds."

More recently, Doe v. United States, 487 U.S. 201 (1988) cites Schmerber and others:

An examination of the Court's application of these [487 U.S. 201, 210] principles in other cases indicates the Court's recognition that, in order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. 9 Only then is a person compelled to be a "witness" against himself.

This understanding is perhaps most clearly revealed in those cases in which the Court has held that certain acts, though incriminating, are not within the privilege. Thus, a suspect may be compelled to furnish a blood sample, Schmerber v. California, 384 U.S., at 765 ; to provide a handwriting exemplar, Gilbert v. California, 388 U.S., at 266 -267, or a voice exemplar, United States v. Dionisio, 410 U.S. 1, 7 (1973); to stand in a lineup, United States v. Wade, 388 U.S., at 221 -222; and to wear particular clothing, Holt v. United States, 218 U.S. 245, 252 -253 (1910). These decisions are grounded on the proposition that "the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." Schmerber, 384 U.S., at 761 . The Court accordingly held that the privilege [487 U.S. 201, 211] was not implicated in each of those cases, because the suspect was not required "to disclose any knowledge he might have," or "to speak his guilt," Wade, 388 U.S., at 222 -223. See Dionisio, 410 U.S., at 7 ; Gilbert, 388 U.S., at 266 -267. It is the "extortion of information from the accused," Couch v. United States, 409 U.S., at 328 , the attempt to force him "to disclose the contents of his own mind," Curcio v. United States, 354 U.S. 118, 128 (1957), that implicates the Self-Incrimination Clause. See also Kastigar v. United States, 406 U.S. 441, 445 (1972) (the privilege "protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used") (emphasis added). "Unless some attempt is made to secure a communication - written, oral or otherwise - upon which reliance is to be placed as involving [the accused's] consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one." 8 Wigmore 2265, p. 386. 10 [487 U.S. 201, 212]

So no, the Fifth Amendment doesn't mean they can't collect a DNA sample.

Finally, if you "fight back" as the officer tries to collect evidence, and if you live through the experience, you're not going to win a brutality suit--you don't have the right to resist an officer in the lawful performance of his duties.

Comment Re:False Positives (Score 1) 169

The right to a trial by jury of your "peers" doesn't exist in the American system. "A jury of your peers" refers to those who have a peerage--that is, lords--not being tried by commoners. We don't have a noble class in America, so the point is moot. Everybody in the country is your peer by definition, thus there is no language about your "peers" anywhere in the Constitution.

Comment Re:Just as much right? (Score 4, Informative) 402

Oooh, can I play jailhouse lawyer too?

Let's start with links. You opened with Wikipedia; I'll see your Wikipedia and raise you Oklahoma's Legislative Service Bureau, http://www.lsb.state.ok.us/. Click the nifty underlined bit and it'll take you to the text of the entire body of Oklahoma statutes (I picked Oklahoma because it's a noted hotbed of tornado activity). "Reckless endangerment," by name or concept, didn't exist under Title 21, Crimes and Punishments, but Title 47, Motor Vehicles, contains "reckless driving:"

47 11 901. Reckless driving.
A. It shall be deemed reckless driving for any person to drive a motor vehicle in a careless or wanton manner without regard for the safety of persons or property or in violation of the conditions outlined in Section 11 801 of this title.
B. Every person convicted of reckless driving shall be punished upon a first conviction by imprisonment for a period of not less than five (5) days nor more than ninety (90) days, or by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or by both such fine and imprisonment; on a second or subsequent conviction, punishment shall be imprisonment for not less than ten (10) days nor more than six (6) months, or by a fine of not less than One Hundred Fifty Dollars ($150.00) nor more than One Thousand Dollars ($1,000.00), or by both such fine and imprisonment.

Now, that makes true reckless driving a misdemeanor. However, you're arguing that driving in a place where one has every legal right to be becomes reckless driving simply because of inclement weather. The courts disagree. To wit:

  • Athey v. Bingham, 823 P.2d 347 (Okla. 1991). "Snow and sleet were falling on the ice-covered road. . . . The fact that a motor vehicle collision occurred does not necessarily raise the presumption that the defendant was following too closely, driving too fast to bring the car to a stop, or driving too fast for highway conditions." The Court did not even consider the idea that the driver shouldn't have been out in the weather at all.
  • Wade v. Reimer, 359 P.2d 1071 (Okla. 1961). "Shortly after they left [the city of] Yale it started raining hard and puddles of water began to accumulate on the surface of the highway. Defendant, driving at a speed estimated variously from 50 to 65 miles per hour, steered the vehicle so as to avoid these puddles. As they approached a point approximately 10 miles west of Yale, the two right wheels of the pick-up suddenly came off the pavement to the right shoulder of the road. The vehicle slid ‘sideways' back across the entire concrete width of the highway and then through the adjoining bar ditch crashing into a tree. . . . Before a driver may be found guilty of [reckless driving], the triers must necessarily conclude first that his actions amounted to ordinary common law negligence." The court held that even a guilty plea to reckless driving does not establish negligence per se; the jury still has to decide whether the specific actions were negligent. The jury did not find the defendant negligent. Again, the idea that "you shouldn't have been out in this weather" was never even considered, let alone seriously entertained by the Court.
  • Green v. Thompson, 344 P.2d 272 (Okla. 1959). Holding that the fact that an accident occurred does not necessarily mean anybody was negligent; citations to Taylor v. Ray, 56 P.2d 376 (Okla 1936) and National Tank Co. v. Scott, 130 P.2d 316 (Okla. 1942) and Kraft Foods Co. v. Chadwell, 249 P.2d 1002 (Okla. 1952), all of which also held that the mere fact of an accident doesn't prove negligence or recklessness.

So, if you'll bother to read the provided cases, I think you'll find that chasing tornadoes does not ipso factor constitute "reckless endangerment" (or even the actual crime of reckless driving), nor the tort of negligence. The specific circumstances of the case may give rise to an action in either, but it's not "the literal definition."

Sorry to burst your bubble.

Earth

Tornado Scientists Butt Heads With Storm Chasers 402

An anonymous reader writes "Tornado researchers say amateurs — inspired by movies like Twister and shows like Storm Chasers — are getting in their way, hampering science and creating hazards. 'Hundreds of camera-toting amateurs in cars ended up chasing the same storms as a fleet of scientific vehicles during the high-profile research project, called Vortex2, which wrapped up data collection this week. At times the line of traffic caused the Midwestern roads to look like the freeways of Los Angeles, said Roger Wakimoto, director of the National Center for Atmospheric Research, during a briefing for reporters this week. "I worry about this as a safety hazard," Mr. Wakimoto said. "These people were blocking our escape routes because of the sheer number of cars."' Storm chasers say they have as much right to watch storms as Ph.D.s."

Comment Re:Simple gun control measures (Score 2, Informative) 271

But what's to stop a criminal from possessing guns?

You know, in the USA, one of the reasons it's so easy for criminals to get guns is that even if your locality passes a law restricting gun purchases very severely, somebody can always drive to the next state over with the lax gun laws, buy a gazillion guns, then come back and sell them to criminals for inflated prices in a black market.

There are some pretty simple measures that, if implemented at the federal level, would make it significantly harder or more expensive for criminals to get guns:

  1. Limits on how many guns a non-dealer may purchase in a given time period. E.g., one gun per month per adult household member.
  2. Waiting periods on gun purchases. If you buy a gun today, you can't pick it up until a week from now.
  3. Close the fucking gun show loophole already; make all gun sales require a background check of the buyer.

None of these would prevent law-abiding citizens from owning guns. But guess what? The NRA is rabidly opposed to all of them.

Most guns used in crimes aren't bought from a dealer, they're stolen. In fact, it's often cheaper to buy a gun "on the street" than it is to do so through a dealer...so much for markup or "inflated prices in a black market." Additionally, it's illegal to buy a handgun in any state other than your state of residence, so crossing state lines to buy handguns isn't a factor--dealers won't sell them without an in-state ID. Criminals--being the law-breaking sort, pretty much by definition--obtain them through (wait for it) illegal means. Long guns just don't turn up often in crimes (source: FBI Uniform Crime Reports).

Facts never were popular with your crowd, though.

Image

How Nintendo's Mario Got His Name Screenshot-sm 103

harrymcc writes "In 1981, tiny Nintendo of America was getting ready to release Donkey Kong. When the company's landlord, Mario Segale, demanded back rent, Nintendo staffers named the game's barrel-jumping protagonist after him. Almost thirty years later, neither Nintendo — which continues to crank out Mario games — nor Segale — now a wealthy, secretive Washington State real estate developer — like to talk about how one of video games' iconic characters got his name and Italian heritage. Technologizer's Benj Edwards has researched the story for years and provides the most detailed account to date."

Comment Re:Picture in the summary has it right (Score 1) 574

There's a little more to it than even that. (Caution: law student, and we were talking about nuisance in Property class just last night.)

In order to be a nuisance, the behavior has to create a substantial harm to a person of ordinary sensitivity. The classic case is Amphitheaters, Inc. v. Portland Meadows, 198 P.2d 847 (Ore. 1948), in which the defendant, a horse track, had bright lights which spilled over and illuminated plaintiff's drive-in movie screen. The Oregon Supreme Court held that the light spillover did not constitute a nuisance merely because it damaged one who was abnormally sensitive (emphasis mine). The analysis was somewhat more complicated, but that's the important bit: abnormal sensitivity creates a duty for the injured party to mitigate, not for the injuring party.

This, of course, assumes that Firstenberg is bringing his suit under nuisance; other standards apply to other claims.

Comment Re:Article summary (Score 1) 444

And good luck on that no severance pay thing. "I'd fire anyone in my organization who suggested we callously disregard labor laws like that." :)

Not everybody works in jurisdictions that require severance pay. In some places, employers are actually allowed to terminate an employer-employee relationship as freely as the workers themselves are.

Comment Re:Ramifications (Score 1) 289

If you are donating something to charity, why would you want (or be allowed) to pass that cost onto the rest of the taxpayers?

Because not all of us subscribe to the theory that all money (or productive output) belongs to the government and that anything we keep is taken from our masters?

A tax deduction is not "passing on" a cost any more than not buying a hamburger is taking money from McDonald's.

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