Patterico's Pontifications


Houston Homeowner Shoots Burglar

Filed under: Crime — Patterico @ 10:43 pm

Another Houston-area homeowner shoots a burglar. But this time the facts are clear: they were inside his house, and they were shooting back at him.

I guess they didn’t expect him to be armed. Good for him.

Ninth Circuit Issues Deceptively Important Opinion on “Don’t Ask, Don’t Tell”

Filed under: Constitutional Law,Court Decisions,General,Judiciary,Law — Patterico @ 10:36 pm

A panel of the Ninth Circuit today issued a decision regarding the “Don’t Ask, Don’t Tell” policy. The decision addressed an issue that sounds arcane to non-lawyers, but which is, in reality, critical: what is the level of “scrutiny” the courts will apply in examining the policy?

The reason this is important is because the level of “scrutiny” almost always determines the outcome. When courts look at governmental action under a “rational basis” type of scrutiny, it means they’re not making the government work hard to justify its actions. Any conceivable “rational basis” for the government’s action will be enough to justify it.

By contrast, when courts apply “strict scrutiny” to governmental action, they’re essentially walking up and holding a magnifying glass to the government’s decisionmaking process. If the court finds any flaw in the government’s reasoning, however slight, it will strike down the governmental policy.

This is why it’s so important to decide what level of “scrutiny” a court will give to a particular government action. When the court declares the government’s policy is subject only to “rational basis” scrutiny, the policy is likely to be upheld. When the policy is subjected to “strict scrutiny,” it is likely to be stricken down.

Rational basis = Government action/policy legal
Strict Scrutiny = Government action/policy illegal

Here, the Ninth Circuit looks at the Lawrence v. Texas case, which struck down a law against homosexual sodomy, and tries to decide what level of scrutiny the Supreme Court was applying in that case.

Usually, appellate courts simply state the test they are applying, in a clear way, so that lower courts are easily able to apply the test. This is especially true for the Supreme Court, which must provide guidance for all federal courts in the nation.

But when you’re drunk on judicial arrogance, as Justice Kennedy was in the Lawrence v. Texas decision, the virtue of clarity becomes nothing more than an annoying vexation. The need for clear guidance is petulantly waved aside, as the author of the opinion writes in grand prose. His audience is not the lower-court judges who have to implement his pronouncements. Rather, it is fawning journalists at the New York Times and other elite media outlets.

Thus do the courts find themselves in the predicament of trying to figure out what sort of “scrutiny” the Lawrence v. Texas decision was actually applying. Was it “rational basis” scrutiny? “Strict scrutiny?” Or something in between? Justice Kennedy didn’t bother to say, so the courts are on their own.

One court of appeal has directly ruled on the issue: the Eleventh Circuit, which stated that Lawrence applied “rational basis” scrutiny.

Today, the Ninth Circuit disagrees, saying that some form of heightened scrutiny — essentially a form a “intermediate scrutiny” — applies to the Don’t Ask, Don’t Tell policy.

You can read the decision here. It is the product of three Democrat-appointed judges: Ronald Gould, a Clinton appointee and the author of the opinion; Susan Graber, a Clinton appointee and the second judge in the majority; and William Canby, a Carter appointee who complained that the other two judges didn’t go far enough, and should have applied “strict scrutiny.”

(I can’t wait to read the L.A. Times article to see whether it reports that all three judges are Democrat appointees.)

Note that the plaintiff

argues that Lawrence effectively . . . establish[ed] a fundamental right to engage in adult consensual sexual acts.

Wow. That argument, if accepted, would grease the ol’ slippery slope up something fierce. To say that any consensual adult sexual act is a “fundamental right” under the Constitution has implications that go waaaaay beyond “Don’t Ask, Don’t Tell.”

The Ninth Circuit doesn’t go that far. Yet. Rather, it takes what sounds like a simple, small step: it decides that the Lawrence court wasn’t applying “rational basis” scrutiny. This is just another step down the slope — but don’t let its seeming modesty fool you. It’s a big step.

This is a big decision. It remains to be seen whether it will be recognized as such.

P.S. For what it’s worth, I think “Don’t Ask, Don’t Tell” is a ridiculous policy that should be overturned yesterday. But, like gay marriage, I don’t want to see that done through judicial sleight of hand. I want society to accept both policies. I think we’re on the way. In my view, the courts are only interfering with what is otherwise the natural evolution of people’s opinions, as they are increasingly exposed to gays — and learn, to their surprise, that they’re just people like the rest of us.

Radley Balko: Does He Follow His Own Links?

Filed under: General — Patterico @ 8:27 pm

Radley Balko:

D.C. Police Chief Kathy Lanier rehires 17 police officers previously fired for misconduct.

Then she decides the city will arm them with semiautomatic weapons.

Sounds like a fantastic couple of ideas. What could possibly go wrong?

Boy, D.C. Police chief Kathy Lanier sure sounds like an idiot.

That is, until you actually follow Balko’s links. (Note: always follow Balko’s links.)

Following the first link, we quickly find that Police Chief Lanier’s “idea” to rehire previously fired officers is hardly an “idea,” but rather a legal necessity — one forced on her by the incompetence of the previous chief:

D.C. Police Chief Cathy L. Lanier has rehired 17 officers who were fired for misconduct, saying she was forced to bring most of them back because the department missed critical deadlines for taking action.

. . . .

[I]n the most recent cases, police officials once again violated timetables in internal affairs cases. As a result, the firings were overruled by judges in D.C. Superior Court or by arbitrators ruling for the D.C. Public Employee Relations Board.

Lanier, who took over the department in December 2006, said that the slip-ups predated her administration and that she had no choice but to bring the officers back — almost always with full back pay, benefits and seniority.

As for the idea of “arm[ing] them with semiautomatic weapons” — well, this is hardly a new idea, or an unprecedented one. The second link explains that D.C. officers have been armed with “semiautomatic weapons” since the late 1980s. To those who know nothing about guns, the phrase “semiautomatic weapons” may sound very frightening, but in truth, police officers typically carry semiautomatic pistols, having mostly abandoned revolvers years ago. Semiautomatic generally means you pull the trigger once each time you want to fire a bullet.

What’s news is not that D.C. officers are getting “semiautomatic weapons” but that they are getting semiautomatic rifles. The Assistant Chief says they typically won’t be carried on patrol: “I wouldn’t expect to see foot beat officers with them unless there’s a specific need, like a barricade situation or a bank robbery.” But police already often carry rifles in mounts in their police cars. Having those rifles be semiautomatic hardly strikes me as an innovation that ought to send shivers down libertarians’ spines. In fact, these rifles are fairly common throughout the country:

Other police departments nationwide equip officers with semiautomatic rifles, including in Dallas, Los Angeles and Miami. In some of the District’s neighboring counties, such as Montgomery and Prince George’s, some patrol officers carry the weapons.

Is there a need for the rifles? The story says: “A team of commando-style robbers carried out a string of bank heists in the District and Maryland in 2004, armed with assault rifles and handguns.” Meanwhile, virtually every L.A. resident remembers the North Hollywood bank robbers who went around in body armor, armed with fully automatic weaponry. The police were helpless to do anything because they were so badly outgunned. No police department wants to be in that situation.

Once the links are followed, we see a police chief a) taking appropriate steps to see that her officers are adequately armed; and b) being forced to hire back some dishonest officers due to the incompetence of a predecessor. The latter issue is a problem, I agree — but it’s patently unfair to blame the new police chief, or to suggest that this is all some “idea” she had.

Balko owes Chief Lanier an apology or two. I’m sure she’s turning blue, holding her breath as she waits.

Newly Elected California Congresswoman Walks Away from $535,000 mortgage shortly after being elected.

Filed under: General — WLS @ 1:16 pm

Posted by WLS:

Funny how you only find this information in an LAT Blog and not on the news pages. 

Capitol Weekly reports newly elected California Congresswoman Laura Richardson walked away from the mortgage on her $535,000 Sacramento home, letting the house slip into foreclosure and disrepair less than two years after she bought it with no money down.

“While being elevated to Congress in a 2007 special election, Richardson apparently stopped making payments on her new Sacramento home, and eventually walked away from it, leaving nearly $600,000 in unpaid loans and fees,” the publication reports.

Richardson, a Democrat from Long Beach, declined to comment for the Capitol Weekly story, and her office did not immediately respond to a request for comment from LA Land.

Capitol Weekly, citing tax records at the Sacramento County assessor’s office, reports “… in January 2007, Richardson took out a mortgage for the entire sale price of the house — $535,000. The mortgage amount was equal to the sale price of the home, meaning she was able to buy the house without a down payment, even though the housing market was beginning to turn. A March 19, 2008 notice of trustee’s sale indicates that the unpaid balance of Richardson’s loan, which is held by Washington Mutual, is more than $578,000 –$40,000 more than the original mortgage.”

In addition to 100% financing on the home itself, the report quotes the woman who sold the house to Richardson as saying she also gave Richardson $15,000 toward closing costs.

The weekly also reports Richardson’s residence quickly became an eyesore, angering neighbors. The report says she recused herself on two key house votes on government efforts to address the foreclosure crisis.

There are a couple of interesting facts here that an enterprising reporter might run down. 

First, prior to being elected to Congress, Richardson was a newly elected member of the California Assembly, having won her seat in Nov. 2006 representing Long Beach.  This meant she had to spend a signficant amount of time in Sacramento tending to the business of the legislature.  Most state legislators in California maintain their residences in their home districts, and rent/share apartments or homes in Sacramento which they pay for with a per diem housing allowance provided to them in their office budgets.  They can spend this allowance on hotel rooms or apartments.  

Did I mention that the housing allowance is tax free for members who live more than 50 miles from Sacramento? 

So why did Richardson, two months after being elected, buy a $500,000+ house in Sacramento instead?   

In April 2007, the Congresswoman from Richardson’s district, Rep. Juanita Millender-McDonald succumbed to cancer, creating a vacancy in Richardson’s district.  She was elected to Congress in a special election to fill that seat in June 2007.

Why did she stop paying her mortgage on the Sacramento house?  According to Capitol Weekly:

Richardson declared her candidacy for the seat, and soon found herself locked in a hotly contested, and very expensive race for Congress against state Sen. Jenny Oropeza, D-Long Beach.

While her campaign heated up, Richardson’s house slipped into default. Richardson fell behind on her mortgage payments as she loaned her Congressional campaign $60,000 – money that has begun to be paid back to Richardson personally from her campaign account, according to records from the Center for Responsive Politics.

Rather than continue paying on the loan as the house lost value in the declining housing market of Sacramento, she loaned personal funds to her campaign, and simply walked away from the mortgage.  She still has a four bedroom house in Long Beach. 

When the house was placed in foreclosure, documents show that the unpaid amount owned to the bank that gave her the loan is $587,000.

Considering this LAT story about State Sen. Tom McClintock using a loophole in the per diem housing allowance law to own  houses in both Sacramento and the LA suburb of Thousand Oaks — and receiving $36,000 tax free in per diem in 2007 as a result — wouldn’t it be nice to know of Congresswoman Richardson was receiving tax-free per diem from the State of California to pay for the mortgage on her new home in Sacramento, which she elected not to pay in order to pump money into her campaign for Congress?

You might think a reporter from the LAT or elsewhere might think that was a story.

Appeals Court: Paper Money Discriminates Against the Blind

Filed under: General — Patterico @ 6:55 am

The 2-1 decision may be read here. If it is not reversed, the government will have to change paper money to accommodate the blind.

Hans Bader notes:

The appeals court wrongly gave short shrift to the burden imposed on third parties, suggesting that it did not even need to be considered, even though other federal court rulings recognize that an institution is not required to accommodate a disability or religious practice if doing so would unduly burden third parties. . . . As Judge Randolph noted in dissent, “There are approximately 7,000,000 food and beverage vending machines in the United States; by one estimate, it would cost $3.5 billion to retool or replace these machines.”

Bader also notes that the blind can use credit and debit cards as an alternative to paper money.

Where do the blind stand on this? The National Federation of the Blind issued a press release critical of the district court decision that was upheld yesterday. Overlawyered quoted the president of the organization saying: “Essentially, the United States Treasury has been ordered by the courts to come up with a solution for a nonexistent problem.”

Your law in action!

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