Tuesday, May 31, 2011

Recuse me?? RECUSE YOU!!

Very soon ObamaCare will be before the Supreme Court of the United States. With out even having to hear arguments, it is assumed that this will be a 5-4 decision against the individual mandate, thus the entire law will be declared unconstitutional. With this decision nearly assured, those on the left are targeting one justice to recuse himself from the case, citing conflict of interest. Who is that justice? Well, the left's perpetual whipping boy, Clarance Thomas.

The left says that Justice Thomas has a conflict of interest because his wife works for an organization that is against ObamaCare. She is compensated for her work. However, as the case that is being brought to the Supreme Court has as the Plaintiff various states in the union, and the Federal Government as the Defendant, and Mrs. Thomas has worked for neither party, it is difficult to point to exactly where the conflict of interest is.

In Supreme court cases in modern times Justices typically hold to two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The same section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"
So, normally the justices would recurse themselves in cases where they had a direct financial interest or if their children were lawyers for one of the parties. Examples would be when Justice Sandra Day O'Connor recursed herself from many cases involving telecommunications companies, because she owned stock in one or the other company.

In the case of Justice and Mrs. Thomas, we have an interesting setting. The two are married, but they file separate tax returns. So, in financial disclosure, Justice Thomas has no financial interest in any group that either supports or opposes ObamaCare. The left is then attempting to make the very ironic argument that a man and wife are the same person, regardless of how they file their taxes. They say that because Mrs. Thomas makes money from an unrelated organization that opposes ObamaCare, this means that Justice Thomas has a financial interest in the failure of ObamaCare.

When I look at this argument, it doesn't seem to hold water... Wouldn't Justice Thomas be FOR ObamaCare if his wife makes money in the opposition of the law? If the law is ruled unconstitutional, wouldn't that put his wife out of a job?

Anyway this is all well and good, the left has no legal foot to stand on here, and are reduced to simply putting pressure on Justice Thomas. As if that will work. The guy grew up wishing he could become simply dirt poor, in the Jim Crow south. Worked his way up, and was opposed at every single step of the way. First because of his race, then because of his race and his politics. The guy has a will of solid steel, and you think a a could of whining liberals are going to change his mind?? HA!!

The real question of recusal should be coming from the right. Justice Elena Kagan served as the chief legal advisor to the Administration. As such was intimately involved in the forming of ObamaCare. As such, Justice Kagan has recused herself from several cases in which she advised the Executive branch. There is a direct conflict of interest here in this case as well. However Justice Kagan has not said that she will step down for this particular case.

So, for a law that has very little to do with health care, and everything to do with power, games are being played. Surprise, surprise. In my opinion there is nothing constitutional about the ObamaCare law, and it is likely that the SCOUTS will agree with me. If Kagan and Thomas both recuse themselves, we still end up with a 4-3 majority against the individual mandate. However if Justice Thomas leaves, and Kagan stays, it is likely to be a 4-4 tie, thus the case reverts to the Appellate court 's decision. This is good for the left, because the US Appellate court is notoriously liberal.

Thursday, May 26, 2011

You Had To Use Your Gun In Self Defense... Now What?

Dude broke in to your house while you were in it. He had a gun, you got the drop on him and put 3 well placed .45 hollow points in to him, center mass. Your life and the lives of your family were in danger, and you acted to defend yourself. Now what?

You have a problem you are both victim and aggressor. Your aggression is most likely excusable, however you must be very careful not to say or do something that might get you convicted of a crime. In this respect you must act to defend yourself, and tell the police nothing.
HOWEVER, you are also the victim of a crime and as such you need to let the police know what happened, so that the crime can be investigated, and all subjects apprehended.
So... What do you do?

There is no easy answer. Some states have castle laws that may allow for the shooting of a home invader with very few questions asked, but let's take the same scenario and put it in the street outside your home. You are left with the same conundrum.

First, above all else, protect yourself. Only tell the police the very very very minimum of what happened. What is that?

I was afraid for my life.

No more than this. They can see that you were involved and the other guy was involved. Only tell them that you were afraid for your life.
Next you must let the police know that the dead guy was the one who you were afraid for your life from. You tell them that. How?

I am willing to sign a complaint against that person.

This tells the police that the dead guy is the one you were afraid of, without telling them any specifics of what went down. This is the only thing you say about the other guy. You are done talking about everything now. No more will you tell the police without a lawyer around.
The next two statements get you away from the police, and ensure that the police can not question you without an attorney present.

I require medical assistance from a doctor.

This tells the police that you are not OK with just meeting paramedics. You want to see a doctor, and doctors are at the hospital, well away from the shooting. Think about it for a second... Do you think that you are in any shape to make rational decisions? You just killed a man in self defense. You are going to have all sorts of powerful emotions and hormones running through you. You need to calm down. And doctors have the things to do that. It will also get you away from the people who's job it is to put you in jail.
Finally, with your last statement you "lawyer up."

I wish to have my attorney present at any questioning.

By law, the police are obligated to grant this request. The cannot deny your right to counsel.
You are done talking. If the police ask you any question other than if you want a Coke, you answer with the statements above. You do not say anything else. You must not waive your 5th and 4th amendment rights. They are there to protect you from the government, and if you open your mouth to say anything other than the above statements, you are voluntarily waiving those rights.
Any evidence that the police want to collect from you, even for "exclusionary" reasons, you only give up with a court order (warrant). Repeat like a mantra the statements.
I was afraid for my life.
I wish to sign a complaint against that person.
I require medical assistance from a doctor.
I wish to have my attorney present at any questioning.

You may end up spending a night or two in jail, but that is infinitely better than spending the rest of your life there, or having to explain a manslaughter or murder conviction at your next job interview.

Despite what the police will say, doing this does NOT make you look guilty. It does NOT make you look like you have something to hide. You are exercising your rights. They have a job to do, and they should do it. They don't come over to your office and help you with your job, why should you help them with their job? Especially if their job is to find something so that they can arrest you! Protect yourself, plan ahead. If you carry a gun, you MUST be willing to pull the trigger if need be. You train at the range to put rounds on target. It is silly not to prepare for what happens afterward.
If you have time, interview attorneys. This costs you nothing but time. Most lawyers will meet with you for free the first time to asses your needs as a client. You may never need them, but you may never need to use your gun either. Having an attorney you can call is very helpful if you get in to other trouble, or if you have legal issues, or questions. They are only a call away. Keep their card in your wallet with you CCW permit, because if you use one, you are going to need the other.

Tuesday, May 24, 2011

Kentucky v. King

One day, our friendly neighborhood drug dealer, King, was doing what he does best, selling drugs. A patron came to him and said:

"Hello, kind sir. I wish to purchase some of your finest crack."
"Certainly," said King "Coming right up, sir."

King and the patron completed their business, and both went away happy. Only the patron wasn't quite who he said he was. In fact the patron was a member of the local law enforcement brigade, and the purchase was being watched by others in the brigade.

"Apprehend that dastardly villain!" Called the head of the brigade, after the purchase was made. Uniformed officers then came roaring up to King in their cars, sirens and lights on.

"Zounds!!" Exclaimed King. "I have more drugs in my dearest love's apartment, above! I must quickly dispose of it!"

Up to the apartment ran King, followed closely by the officers.
"You'll not get away from us this time!" The officers called. But King was very fast, and he arrived at the apartment just before the officers did. King slammed the door behind him.
"You loose, Coppers!" thought King.

The officers heard the door close and ran to the source of the sound, but there were TWO doors.
"What ever are we to do?" The officers wondered.
The smartest officer there, Good Officer Cobb said in his bravest voice
"Fellows, as you know I have the keenest sense of smell in all of law enforcement."
The other officers nodded in agreement, for Good Officer Cobb was well known for his super sniffer.
"I smell the unmistakable aroma of marijuana smoke coming from the door to the left!" Said Good Officer Cobb. "Surely, this is where that villain, King went."
The other officers agreed with Good Officer Cobb, because he was the smartest and best officer in all of the brigade. He must be right!

Good Officer Cobb banged loudly on the left door. "This is the Police!! Let us in!!"

"The Police!!" Said the occupants of the apartment on the left. "We can't let them get our drugs! What shall we do?"

In the apartment was King's dearest love, King, and King's dearest love's marijuana smoking friend. King had told them just what to do if Good Officer Cobb came knocking on the door.
"We must destroy our drugs!" Said King "Quickly, for we know that the great 4th Amendment keeps our persons, property, and papers secure from government searches and seizures without a warrant!"
"Just so!" Exclaimed King's dearest love's marijuana smoking friend. "I am glad King is here to teach us to be so wise in the ways of the law."
And with that they began to destroy the drugs.

"Great Scott!!!" Shouted Good Officer Cobb, "Fellows, as you know I have the keenest sense of hearing in all of the land." The officers nodded in agreement, for Good Officer Cobb was well known for this super ears. "I hear those inside destroying the evidence we need to convict them of their crimes!"
"Zounds!" Cried the other officers. "Whatever shall we do? If they destroy all of the evidence, how will we convict them of their miss-deeds??"
"Fear not!" Said Good Officer Cobb, "We shall break down the door and catch them before they destroy all of the evidence."

"But Good Officer Cobb," said one of the officers "Is that legal? We all know that the hated 4th Amendment keeps scum like that within secure in their person, property, and papers from searches without a warrant from government officials, such as us."

"Precisely right." Said Good Officer Cobb, "But those within did not tell us that we may not come in. Therefore we can make entry in to the apartment."
This made perfect sense to the other officers, and why would they question Good Officer Cobb? He is so smart and so good that he would never abuse the powers that he had been granted by the government.
So with a CRASH, Good Officer Cobb and the others broke down the door and arrested those inside before they could destroy the evidence.

"We have you now, King!" Exclaimed Good Officer Cobb
"So you say now, Good Officer Cobb, but I believe YOU have violated the 4th Amendment! Take me to the magistrate!"
And off they went.

What do you think the Magistrate said? The blessed 4th Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What did happen? The Kentucky Supreme Court stated that Cobb, thought not acting in bad faith, was incorrect in breaking down the door and that the search was illegal. On appeal to the Supreme Court of the United States, in an 8-1 vote, the court found that in certain circumstances, the entry was legal, thus overturning the Kentucky Supreme Court decision.

The only dissenting justice was... Ruth Bater-Ginsburg... In this decision I would expect the lone dissenter to be Clarence Thomas or Sam Alito, or some other Constitutionalist, certainly not Ginsburg, who would rather look at European law than the Constitution. However, in this instance, I find myself agreeing almost 100% with Justice Ginsburg. In her dissenting remarks Justice Ginsburg says:
The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time
to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.
The Fourth Amendment guarantees to the people “[t]he right . . . to be secure in their . . . houses . . . against unreasonable searches and seizures.” Warrants to search, the Amendment further instructs, shall issue only upon a showing of “probable cause” to believe criminal activity is afoot. These complementary provisions are designed to ensure that police will seek the authorization of a neutral magistrate before undertaking a search or seizure. Exceptions to the warrant requirement, this Court has explained, must be “few in number and carefully delineated,” if the main rule is to remain hardy.

About the decision, Justice Samuel Alito wrote the following:
Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

Typically Sam and I are on the same page, but this is just false. All he need do is look at the abuses of the warrantless searches based on "probable cause" to see that this additional warrentless search will surely be abused to an even greater extent. What kind of training does one need to determine the difference between the sound of evidence being destroyed and the sound of furniture moving?
"Why did you break open the door to Grandma's house Good Officer Cobb?"
"We heard sounds of evidence being destroyed inside."
"Was evidence being destroyed?"
"No, Grandma was moving a table, but we did find that she had some beer that she bought out of state in her refrigerator, so we took her in for bootlegging."

It is laughable that people would even know to immediately invoke their 4th amendment rights when confronted by the Police in any situation, let alone when they are banging on the door looking for someone. Let us use a very common example to illustrate the point.
A police officer stops you walking down the street and asks to see your ID. What do you do? Do you inform the officer that you invoke your 4th amendment rights, simply state your name then ask why you were stopped? Your name is all you are required to give to the police during an encounter, and the Police are required to give you a reason as to why you are being detained.
OR do you simply hand over you ID and answer any questions that the officer may have?

If the Police are banging at your door demanding entry, do you inform them that you invoke your 4th amendment rights, or do you just let them in?

The vast majority of the public don't know what the Constitution is, let alone their rights under the 4th Amendment. It may be very plain to Justice Alito as to what to do in this situation, however for the rest of the population, in the real world, this decision will only lead to greater and greater abuses, and the further eroding of our rights.

Bad call SCOTUS, bad call indeed.

My hero??The villian???
Kentucky v King Official Decision
Clarification at Legal & Liability Risk Management Institute
Write up, and Justice Alito's Comments at Reason Magazine

Thursday, May 19, 2011

The Two Best Recent Movies You Haven't Seen

Maybe you have seen them, but I doubt it...

Yamada: The Samurai of Ayothaya

At first, I thought that there was some mistake. Ayothaya is not a Japanese word. The tag on this movie said that it was based on true people. So I looked it up. Turns out that the Japanese had a trading colony in what was Siam. One of the greatest heroes of this colony was Yamada Nagamasa. Yamada took to the Siamese way of life, learning their language, customs, and martial arts. He rose to great prominence in the Siamese Court, earning the very high rank of Governor of Ayothaya, and even leading 300 Samurai in to battle under the King of Siam's direction. Yamada is honored both in today's Thailand, and in his hometown of Hamamatsu. Ironically, years ago, while I was in Hamamatsu, drunk off my ass, my friends and I rested for a while next to Yamada's statue in a downtown park. I have pictures of his statue and me being... not very respectful.

Anyway this movie is as if Ong Bak, and The Last Samurai got together, killed Tom Cruse, then made sweet love. This movie was born, learned old school Muay Thai, and old school Kendo, to become something wholly kick ass.
The plot follows the predictable "stranger in a strange land" device so familiar to may films. Dude gets super hurt, dude is aided by a strange and kick ass group of other dudes, dude learns strange and kick ass ways, dude goes back with strange and kick ass ways and kills the dudes that put the super hurt on him, dude goes back to strange kick ass place and marries some chick that helped him recover from the super hurt. Only this movie has Buakaw with a crazy mustache in it!!!

The story is simple and a good one. The action scenes are great, in fact the opening sequence has two dudes beating the crap out of each other, when one is victorious, they do a quick Bruce Lee close up, and you see that the dude who won has a handlebar mustache. At that moment, I thought to myself, this will be the greatest movie you have ever seen. On top of the Muay Thai and handlebar mustache awesomeness, you get to see some very cool sword fights... And a couple of very cheesy ones too. Just when you thought that the movie could not get any more kick ass, Ninjas show up. That's right fucking ninjas!! So the Muay Thai guys go all Muay Thai on the ninjas. Epic!!
All in all great movie, good fight scenes and mothereffing Buakaw with a handlebar mustache!!!

13 Assassins

Again, this movie is based on true people. There was an evil lord named Naritsugu, ironically played by one of my wife's favorite Japanese performers Goroo Inagaki, who was to be named to a very high position in the Shogun's court. He mysteriously died on the way to Edo. This movie is about what "might" have happened on the way to Edo if a few Samurai decided that Naritsugu was just too evil to be in the Shogun's court.

What is very very cool about this movie is that the director, Takashi Miike, decided that he wanted to make the move just like Kurosawa Akira would have made it. So, they actually built many of the sets on location, used fake blood, had the guys train Kendo, and all sorts of other stuff, rather than using a bunch of CGI. It gives the movie an old school feel, and makes it very very gritty.

The story is very similar to The Seven Samurai, in that a small group of Samurai need to fight off a larger force and have a specific place to do the fighting. The Mifune Toshihiro character, Shinzaemon Shimada, played by Yakusho Koji first recruits his team, then they go to kick ass. And ass kick they do. The sword play is better than any other Samurai movie I have ever seen. It shows the differences in the two sides, the one guarding Naritsugu as largely ceremonial and soft with a few good fighters, and the one attacking, full of hard practical fighters. A simple, excellent story, spiced up with the complete evil of Naritsugu and the loyalty to death, even to a douchebag, the defending samurai show.

Wednesday, May 18, 2011

Learning With the Right People

At my first martial arts school, I used to be a part of the testing of students for their belt advancements. Students from satellite schools in different cities would come to test in front of Grand Master Shin. It was always interesting to see the difference in those students and those taught in the mother school. There was always something "off" with the satellite school students. Their technique was just not as sharp as the students from the mother school. It wasn't that they didn't train as hard or were less dedicated, it was because they were learning the techniques second hand, or even third hand, from teachers who barely understood the technique themselves. I always thought that I was fortunate to have learned directly from the source, and got all of the little details that these satellite students missed.

After three months at American Top Team OKC, I have realized that I was the satellite student when learning BJJ and Muay Thai. Again, my instructors and training partners were not incorrect in their instruction. They had passion, but many of the techniques we were left to puzzle out on our own knowing the base technique, but without the details that made the technique most effective.

The time I have to work out is in the mornings, and ATT OKC has a 7am BJJ class, and a 9am Muay Thai class. The good thing here is that, not very many people come to these classes. I will typically get at least one private lesson per week with the head instructor. This has helped out in all kinds of ways. During these private classes, I just ask about details for techniques. Most of the time they are about mistakes or places I get stuck when sparing these instructors... But these small details have lead to great improvement.

In BJJ the improvements that have stuck out the most are when I am in the top position in half guard. I continually got swept, or my opponent re-acquired guard. I thought I was doing everything correct in my technique, but I could never seem to nail it down. The small detail that helped me out the most was where I was putting my base. I was up on both of my knees. This left space for my opponent to sneak a knee in, or to slip under my leg for the sweep, or left me close enough so that my opponent could get an underhook, and escape. One small change was made. Instead of being on both knees, I now go down on to my hip closest to the opponent's head. This puts me on my side, makes prevents my opponent from getting under the leg for the sweep, and puts me far enough away from his arm to prevent the underhook. At the same time, I can still put pressure on his chest, and, since I don't have to worry about the underhook, use my hand to push his knee away, freeing up my joint for the pass.
Such a simple thing, such a big impact on my game.

In Muay Thai, the small detail is to slightly retreat after throwing a combination. I had just been standing in front of my opponent, wide open to counters. With a slight retreat, it makes space for you to begin to circle your opponent, and forces your opponent to move forward for their attack, the extra space gives you time to block or counter. If you don't retreat, you have no time to block or counter, so you get hit.
This small detail has helped tremendously with the flow of my sparring, and with improving my defense. Teep push kicks become much more useful as a distance tool, because now you have the space in which they can be effective to stop opponent's attack.

Good stuff so far at the gym. My worry now is that because I am so frequently the only one at these morning classes, the they will cut them from the schedule. That would put me back in a situation where I would have to find a new gym... And I really don't want to get away from the source.