Educational Exception to Copyright: from Volokh

Posted on July 29, 2014 by markinaustin
The Volokh Conspiracy

Fourth Circuit strikes down

Virginia ban on same-sex

marriage

By Dale Carpenter July 28 at 2:57 PM
In a 2-1 decision in Bostic v. Schaefer, a panel of the Fourth Circuit has invalidated Virginia’s ban on same-sex marriage. The majority opinion was written by Judge Henry Floyd (an Obama nominee, but previously a George W. Bush choice for the district court) and joined by Judge Roger Gregory (Clinton nominee). It’s the second post-Windsor appellate court, after the Tenth Circuit, to strike down an exclusion of gay couples from marriage. Judge Paul Niemeyer (George H.W. Bush) dissented, the second appellate court judge to do so since Windsor. The case was argued by Ted Olson, who recently co-authored a book with David Boies about their challenge to Proposition 8.

The Fourth Circuit majority held that the ban violated gay couples’ fundamental right to marry. Specifically, the majority placed heavy reliance on both Windsor and Lawrence v. Texas as establishing the equal validity of gay couples’ intimate and relational choices:

Lawrence and Windsor indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships. We therefore have no reason to suspect that the Supreme Court would accord the choice to marry someone of the same sex any less respect than the choice to marry an opposite-sex individual who is of different race, owes child support, or is imprisoned. Accordingly, we decline the Proponents’ invitation to characterize the right at issue in this case as the right to same-sex marriage rather than simply the right to marry.

In what has become fairly common, the panel closed its decision with broad thoughts on the underlying issue of same-sex marriage. But this time the court explicitly used the word “segregation” to describe the exclusion of same-sex couples from marriage:

We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.

The idea that laws limiting marriage to opposite-sex couples are a form of segregation is historically loaded, especially for a court sitting in the heart of the old Confederacy. Analogies to the black civil rights movement, and in this context specifically to anti-miscegenation laws and second-class status, have become a staple of gay-rights political and legal arguments. Rarely have they gained quite this explicit an endorsement from a prominent court.

The dissenting opinion is a foretaste of the response to the fundamental-rights argument that we will likely hear in the Supreme Court from (at least) four Justices. It proclaims neutrality on the policy question but leans on judicial restraint in the definition of fundamental rights:

This analysis is fundamentally flawed because it fails to take into account that the “marriage” that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a “same-sex marriage.” And this failure is even more pronounced by the majority’s acknowledgment that same-sex marriage is a new notion that has not been recognized “for most of our country’s history.” [citation omitted] Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation. Thus, the majority never asks the question necessary to finding a fundamental right — whether same-sex marriage is a right that is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.” [citations omitted]

We don’t know yet whether Virginia will seek review by the entire appeals court before seeking review in the Supreme Court, which would slow down the process. The 10th Circuit case seems to be on a fast track, with state officials eschewing en banc review. It’s likely that more circuit courts will speak to this issue in the coming months, including possible opinions from the 5th and 6th Circuits.

UPDATE: North Carolina’s attorney general, Democrat Roy Cooper, has announced his office will no longer defend the state’s prohibition on gay marriage: “Since the US Supreme Court ruled in the Windsor case, all the federal courts have rejected these arguments each and every time. So it’s time for the State of North Carolina to stop making them.” (HT: Chris Geidner)

Dale Carpenter is the Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights & Civil Liberties Law at the University of Minnesota Law School. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and sexual orientation and the law.

Filed under: gay marriage | Tagged: | 214 Comments »

From “The Economist” – an ethics test

Posted on July 24, 2014 by markinaustin

Economics and ethics

Lying commies

The more people are exposed

to socialism, the worse they

behave

My other car is a Porsche

“UNDER capitalism”, ran the old Soviet-era joke, “man exploits man. Under communism it is just the opposite.” In fact new research suggests that the Soviet system inspired not just sarcasm but cheating too: in East Germany, at least, communism appears to have inculcated moral laxity.

Lars Hornuf of the University of Munich and Dan Ariely, Ximena García-Rada and Heather Mann of Duke University ran an experiment last year to test Germans’ willingness to lie for personal gain. Some 250 Berliners were randomly selected to take part in a game where they could win up to €6 ($8).

The game was simple enough. Each participant was asked to throw a die 40 times and record each roll on a piece of paper. A higher overall tally earned a bigger payoff. Before each roll, players had to commit themselves to write down the number that was on either the top or the bottom side of the die. However, they did not have to tell anyone which side they had chosen, which made it easy to cheat by rolling the die first and then pretending that they had selected the side with the highest number. If they picked the top and then rolled a two, for example, they would have an incentive to claim—falsely—that they had chosen the bottom, which would be a five.

Honest participants would be expected to roll ones, twos and threes as often as fours, fives and sixes. But that did not happen: the sheets handed in had a suspiciously large share of high numbers, suggesting many players had cheated.

After finishing the game, the players had to fill in a form that asked their age and the part of Germany where they had lived in different decades. The authors found that, on average, those who had East German roots cheated twice as much as those who had grown up in West Germany under capitalism. They also looked at how much time people had spent in East Germany before the fall of the Berlin Wall. The longer the participants had been exposed to socialism, the greater the likelihood that they would claim improbable numbers of high rolls.

The study reveals nothing about the nature of the link between socialism and dishonesty. It might be a function of the relative poverty of East Germans, for example. All the same, when it comes to ethics, a capitalist upbringing appears to trump a socialist one.

Filed under: Open Thread | Tagged: | 5 Comments »

Feel Good Poll of the Day 7/15/14

Posted on July 15, 2014 by markinaustin

pew1

Filed under: Foreign Policy, Open Thread, Polling | 3 Comments »

A Surprising Map

Posted on June 5, 2014 by markinaustin

religious map

Filed under: religion | 8 Comments »

Gay Conservatives Denied ‘Official’ Spot at Texas GOP Convention

Posted on May 31, 2014 by markinaustin

From KUT in Austin I heard the following.

The Texas Republican Party has denied the Log Cabin Republicans a space at next week’s state convention. Log Cabin Republicans represent gay conservatives and supporters of marriage equality in the party.

Log Cabin Republican Executive Director Gregory Angelo says the state party denied the group’s application for a booth at the convention because, as homosexuals, they disagree with a plank in the party platform. The plank reads, in part, that “homosexuality tears at the fabric of society.”

“It was our obligation to let the voters of Texas know and to let members of the Republican Party in Texas know that that language is in the party platform and it is being used to intentionally exclude gay Republicans from formal participation in the state GOP convention,” Angelo says.

—

A state party is not purely a private club.  We learned that early in the civil rights struggles for black Texans.  In Smith v. Allwright (1944), the Supreme Court ruled on a challenge to a 1923 Texas state law that had delegated authority to state conventions of political parties to make rules for their primaries. It ruled that the law violated the protections of the Constitution because the state allowed a discriminatory rule (no “negroes”) to be established by the Democratic Party.  However, homosexuals are not being excluded here per se – in fact, the Log Cabin Rs who were elected delegates will be in attendance and will be voting.  They will not be allowed a “booth”.

My own view of this bolded language in the Texas Republican platform is that it is wrong as a matter of fact and deeply prejudiced as a matter of practice. It is prejudiced as a matter of practice because no individual homosexual could be judged upon her own gifts and graces if her self-identification as a homosexual tears at the fabric of society.

The plank will not scare off any Rs in TX.  Those who disagree with it will think it is a low priority and those who agree with it will strongly approve.  There is a difference of enthusiasm here.

QB noted those of us who don’t think consenting private sexual conduct is a moral issue do so by reason of a libertarian slant.  He made the case that while he did not believe there should be legal consequences for CPA sex, same sex marriage was not itself private conduct.  This plank morally condemns private conduct and, I think, even status.  While codifying this moral condemnation into law is not a requisite, I think it would be a natural result, because it happened historically.

Imagine yourself on the platform committee of the Texas Republican Party.  Do you vote for or against this plank?  Do you argue for or against it, and if you do, do you argue on moral or political grounds?  Do you think it is an important plank or a throwaway?

 

 

 

 

Filed under: homosexuality, Open Thread, Republican Party, TEXAS | 243 Comments »

War and Peace

Posted on March 23, 2014 by markinaustin

Reprinted for educational purposes only.

Shootings involving combat veterans raise questions of police training

By Ciara O’Rourke and Jeremy Schwartz – American-Statesman Staff

Gene Vela was supposed to graduate in May with a master’s degree in global policy studies. It would have been a milestone for Vela, who was among the first U.S. Marines involved in the initial invasion of Iraq.

Vela, 30, battled post-traumatic stress disorder in the Marines and after leaving the military, and his struggles have included run-ins with Austin police — for driving while intoxicated, among other interactions.

More recently, though, he seemed to be forging a new life. Last year, he was a summer intern in Washington for U.S. Rep. Joaquin Castro and he was named Senate Representative of the Year for his work on the Senate of College Councils at the University of Texas, in part for helping create a veteran liaison program there. In September, he spoke at a law enforcement summit on the challenges veterans face when they return from war.

But on Nov. 10, 2013, the night before Veterans Day, Austin police and paramedics were dispatched to Vela’s apartment in Central Austin after a friend concerned about his well-being called police. Within half an hour, police had fired at Vela after they say he aimed a gun at them. Then the graduate student was bound for jail on a charge of aggravated assault against a public servant, with a wound on his shoulder where a bullet grazed him above a tattoo bearing the words “U.S. Marine Corps.”

The incident wasn’t the only time in recent months that a standoff between police and combat veterans in Central Texas has ended in bloodshed.

Between December 2012 and December 2013, there were at least four such shootings in the region, including three in the last six months of 2013. A fifth shooting incident involved a young Army veteran who apparently didn’t deploy to war, according to personnel records.

An American-Statesman analysis of data obtained from nearly two dozen local law enforcement agencies shows that, since 2003, nearly 10 percent of subjects in Central Texas shooting incidents involving police were military veterans or active-duty service members. While actual numbers are low, the outcome is often tragic.

Of the four most recent shootings involving combat veterans who had served in Iraq or Afghanistan, two recently returned Fort Hood soldiers were shot and killed by police in separate incidents; a third – Vela – was wounded; and a fourth was unhurt in a shootout with Fredericksburg police. In at least three of the cases, the shootings were preceded by attempts at police negotiations.

The incidents also turned deadly for police: a Killeen police officer was fatally shot in one of them.

The shootings, experts and advocates say, highlight the need for more specialized law enforcement training in navigating encounters with veterans in crisis.

Few law enforcement agencies in Central Texas provide their officers with such specialized training, which experts say can save lives – both of officers and veterans – and funnel troubled veterans into getting mental health help instead of into jail or prison, where studies show their symptoms often grow worse.

State and local officials are hoping to remedy that with a new training program in the final stages of development and which officials hope will eventually help law enforcement agencies statewide.

The Veterans Tactical Response Program, which is being developed by the Texas Health and Human Services Commission, the Department of Veterans Affairs and the Austin Police Department, is built around the idea that law enforcement officers can take specific approaches to defuse life-threatening situations involving combat veterans.

Experts say that combat veterans can respond differently to police interactions than civilians, both because of their military experience and their risk of traumatic brain injury and post-traumatic stress disorder, which affects an estimated 20 percent of combat veterans. And, if armed, experts say veterans are often far better trained than civilians in how to use their weapons.

Experts say law enforcement officers might be in a unique position to gain the trust of veterans in crisis.

“By relating to them as equals and as servants of the greater good who might not always be understood and appreciated, police officers and negotiators have a better chance than almost anyone to earn a veteran’s trust and to de-escalate situations that potentially may become dangerous,” FBI researchers said in a recent bulletin.

An increasing number of police officers are military veterans; about 37 percent of Austin police have served in the military.

The Texas program was a response to what officials called a “marked increase” in incidents involving combat veterans, ranging from domestic disturbances to suicides. But hard data on veteran-involved police standoffs is hard to come by, as is even basic information about veteran contacts with law enforcement and the justice system.

In 2011, however, the FBI revealed that between 1995 and 2009, 6 percent of all incidents in its internal database of hostage and barricade incidents involved a veteran or active-duty military member. The agency wouldn’t release more recent information.

Of 106 subjects involved in police-related shootings in Central Texas since 2003 — according to data provided by nearly two dozen local agencies in Travis, Hays, Williamson and Bell counties — nearly 10 percent were identified as veterans or active-duty members by the personnel offices of the Army, Marine Corps, Air Force and Navy. The area, sitting between Killeen’s massive Fort Hood and the half-dozen military installations in San Antonio, has one of the highest concentrations of veterans in the state.

The numbers are relatively low, especially before 2013: just six incidents between 2007 and 2012. And initial research suggests that nationwide, Iraq and Afghanistan vets are ending up in jail or prison at lower rates than veterans of previous conflicts.

A 2012 study in the Journal of Consulting and Clinical Psychology found that 9 percent of Iraq and Afghanistan era veterans reported having been arrested since returning home, though that rate reached 23 percent among veterans with PTSD and frequent anger symptoms.

Frustrated by the inability to get a clear picture of how many veterans have entered the justice system, the Legislature last year passed a law requiring the Texas Department of Criminal Justice to track the number of inmates who are veterans using state and federal databases. The current system of self-reporting is notoriously unreliable because many veterans fail to identify as such, experts say.

“Without the ability to confirm veteran status, TDCJ is unable to effectively offer PTSD-tailored mental health services to the individuals who would benefit from it,” said Jorge Renaud, policy analyst with the Texas Criminal Justice Coalition, a policy research group advocating for criminal justice reform.

Many who train law enforcement on interacting with veterans in crisis say they walk a fine line between advocating for the training and feeding into stereotypes of combat veterans as ticking time bombs.

Officer Troy Schouest, who heads the Veterans Tactical Response Program for the Austin Police Department, said he opposes tracking violent incidents involving veterans. “I don’t want to create a false stigma, or single any one group out,” he said. “I don’t want people to think veteran is a dirty word.”

Star Lara, who trains California law enforcement agencies for the nonprofit group Swords to Plowshares, said she likewise tries to disabuse officers of that notion. “We never want someone to leave the training thinking that all veterans are (messed) up,” she said. “But oftentimes if it’s a law enforcement interaction … They are going to meet the veteran on a very bad day.”

Gene Vela’s encounters with Austin police began soon after he moved to the city, about three years after he left the military, where he worked as an armored vehicle crewman. In 2005, he received an other than honorable discharge, after nearly four years of service, for underage drinking, breaking curfew and using disrespectful language toward a sergeant, according to his attorney, Skip Davis. The discharge, which Davis said stemmed from untreated PTSD, complicated efforts to get VA treatment and benefits, some close to him say.

In one of his encounters with police, Vela told officers he was “getting his shotgun ready” after they asked him to open his door, according to a prosecutor’s motion to raise bond in a 2009 burglary case.

The next month, officers were dispatched to Vela’s apartment after he called 911 and said he wanted to go to a psychiatric emergency service clinic, according to the motion. When Vela opened the door to speak to police, it says, he threatened to shoot one of the officers. He was convicted of making a terroristic threat against a public servant.

The court document also details multiple instances in which prosecutors suggest Vela should have received an evaluation from a mental health officer or seen someone from the Austin Police Department’s crisis intervention team but didn’t.

In recent years, though, Vela appears to have thrived at the University of Texas, where he was well-known and well-liked at the LBJ School of Public Affairs. Davis said that Vela supports his daughter and sends money home to his mother. He was on track to start treatment for PTSD when police went to his apartment in November.

On Nov. 10, police say, Vela didn’t answer the door when officers knocked, but he pointed a laser-equipped handgun at officers through a window. When officer Adrien Chopin shot at Vela from the street, the window broke, and Vela retreated farther back into his apartment, according to police. Officers then heard “the distinct sound of a rifle or pistol being loaded,” according to an arrest affidavit, and then a gunshot. Police have said Vela returned to the window and again pointed a gun at officers, something Davis disputes. Chopin and officer Leo Cardenas fired, hitting Vela.

Davis said Vela was sound asleep when he was “brusquely awakened” by a dispatcher calling and someone banging at his front door. “He was groggy and disoriented,” Davis said. “He had no idea who was at his door.”

During the standoff, according to records, an officer said he heard Vela say, “Come kill me” and “Help me.”

The incident happened just a couple of weeks after some officers on the department’s negotiation and critical incident teams had participated in a trial run of the Veteran Tactical Response program training.

But hostage negotiators didn’t arrive at Vela’s apartment until after he was shot, according to police. A few days after the shooting, the department’s training liaison for the program said he still hadn’t heard about the incident and it’s unclear if any of the officers responding that night had received the training. An Austin police spokeswoman said officials couldn’t answer questions about the incident because of the ongoing investigation.

While Vela’s military and criminal history was known by some officers within the department, the arrest affidavit in connection with the case indicates responding officers didn’t know Vela’s name until after the first shot was fired.

Officer Troy Schouest, Austin’s police liaison for the Veterans Tactical Response program, said the goal is to train everyone in the department so that officers can try to defuse crisis situations until a negotiator arrives. More officers from the department’s critical incident team, as well as officers from Lakeway Police Department, are scheduled to take the class in April, he said. Once the VA finishes vetting the program and officially signs off, “we can finally offer it to everyone on a continuous basis,” Schouest said. “We are going to schedule it as a stand-alone class and as part of a new communication series we have under development.”

Vela’s court case now pits prosecutors, who have said Vela is a threat to the public, against Davis, who says Vela should be receiving in-patient PTSD therapy instead of sitting in jail on $700,000 bail.

Had Vela been given a lower bail, Davis said, “Gene would have finally gotten his ‘war demons’ under control and returned to UT to finish up the one semester he had remaining to graduate.”

While most agencies give their officers crisis intervention training, which includes lessons on how to deal with subjects in the midst of a mental health crisis, experts say veteran-specific training consists of a unique set of approaches that are different than those used with civilians.

“(Combat veterans) must not be put into situations where they will be forced to act in a way that proves their personal courage,” researchers concluded in a 2011 FBI Law Enforcement Bulletin. “They want to be treated with respect, and they have little tolerance for half-truths and disingenuous talk.”

Training typically includes helping officers identify a subject as a veteran, both by looking for clues such as military-style tattoos or armed forces bumper stickers, and by having dispatchers routinely ask 911 callers about veteran status.

Barking orders, sudden movements or loud noises can all worsen the situation.

“The normal tactical response is flashbangs (grenades), hit the house,” Schouest said. “But if you’re dealing with a veteran in crisis and you start with flashbangs before negotiating, we could escalate the crisis, push them further in.”

The Texas program includes training on military culture and education around issues related to traumatic brain injury, which military leaders have called the signature wound of the Iraq and Afghanistan wars.

Since 2003, nearly 260,000 service members have been diagnosed with traumatic brain injury, which is caused by concussive blasts, according to the Defense and Veterans Brain Injury Center. Injuries to the frontal lobe, especially, can reduce impulse control and cause outbursts of anger, experts say.

Bettie Beckworth, who is spearheading the Veterans Tactical Response Program for the state Health and Human Services agency, said that a veteran suffering from traumatic brain injury might also have trouble responding quickly to an officer’s questions. “(Police) may think they are resisting, but they need to slow down with their questions,” she said. “They can’t see the injury so people don’t understand why they are acting like that.”

Several police agencies surveyed by the American-Statesman said they would welcome such training, though it’s not clear when it will be widely available. Once the state’s training materials are finalized, officials hope to persuade the Texas Commission on Law Enforcement to adopt it as part of its statewide training.

“We want to make sure it’s available to departments all across the state,” Beckworth said. “The goal at this point is to ensure that not only do we train the special tactical teams, but offer training for patrol officers.”

Training experts in Texas and throughout the country are also eager to introduce the training to law enforcement academies, in hopes that it will become more institutionalized.

Bureau of Alcohol, Tobacco and Firearms negotiators have begun to use the strategies after contacting officials with the Texas training program. Peter Bukiri, a violent crime reduction strategist with the bureau, said the Veterans Tactical Response Program has helped negotiators and members of federal SWAT teams execute high-risk warrants.

Bukiri, whose law enforcement career spans 40 years, said he saw similar incidents after the Vietnam War, before such training existed. “We’ve always dealt with it, but it was really shoot-from-the-hip stuff,” he said. “(The Veterans Tactical Response Program) explains it in detail, what you’re dealing with. … I’d like to see the trainings almost become mandatory. This is the future.”

Victor Valdez

Military service: A former Fredericksburg High School student, Valdez entered the Marine Corps in March 2009 and a year later deployed to Afghanistan with the 3rd Battalion, 5th Marine Regiment, which suffered the most casualties of any Marine unit in the Afghan war. Over nine months, 25 Marines in the unit were killed and nearly 20 percent of the unit’s troops — 184 Marines — were wounded.

Incident: Valdez left the Marines in March 2013. Nine months later, on Dec. 18, Valdez went to a Valero gas station and ordered the two clerks to leave before he emptied the cash register, according to court records and a city official. Fredericksburg police reached Valdez by phone and tried to negotiate with him, according to an affidavit.

After an hour and a half, the affidavit says, Valdez approached the front of the store and began shooting through the windows at police. The officers shot at, but didn’t hit Valdez, who was cut by broken glass.

Outcome: He was indicted on two counts of aggravated robbery and 12 counts of aggravated assault with a deadly weapon on a public servant and is in the Gillespie County Jail with bail set at $490,000.

Training: Brian Haley, a patrol lieutenant with the Fredericksburg department, said officers receive crisis intervention training that’s required by the state but not training specific to veterans.

Getting help

Active-duty service members and volunteers in crisis can call the Military crisis line: 1-800-273-8255, press 1, or go to veteranscrisisline.net to chat with Department of Veterans Affairs responders.

Gene Vela

Military service: Joined the Marine Corps in December 2001, operating and maintaining assault vehicles and weapons systems. Deployed to Iraq in 2002 as part of the initial invasion force.

Diagnosed with PTSD, Vela struggled after returning home and had several run-ins with police. But he was also supporting his daughter, earned a bachelor’s degree and was pursuing a postgraduate degree at the University of Texas’ LBJ School of Public Affairs.

Incident: On Nov. 10, Austin police received a distress call from a friend of Vela, and officers arrived at his second-floor apartment near UT. After officers said Vela pointed a gun with a laser sight them, Vela was shot in the shoulder by an officer.

Outcome: He’s in the Travis County Jail on charges including aggravated assault against a public servant.

Training: The Austin Police Department is the first in the state to be trained as part the Department of Health and Human Services Commission’s Veterans Tactical Response Program. While some officers have participated in an early training class, it’s unclear if any of those officers were summoned to Vela’s apartment.

Dustin Cole

Military service: Pfc. Dustin Billy Cole, of Talihina, Okla., joined the Army in October 2008 and had two deployments to Afghanistan, where he was a combat engineer.

Incident: In July 2013, five months after he returned from his second deployment, Cole’s neighbors at his Killeen apartment complex called police saying a man with a gun was threatening residents at the pool. A SWAT team arrived shortly before midnight and attempted to negotiate with Cole, who had gone into his apartment.

At one point, it appeared police were able to talk Cole into surrendering; he came to his front door with his hands up, according to police. But when officers tried to arrest him, Cole went back into his apartment, picked up an assault rifle and fired on officers, killing Robert Hornsby and wounding Juan Obregon. Officers returned fire, killing Cole.

Outcome: Cole was buried in Pushmataha County, Okla. Officer Hornsby, a father of two, was mourned by hundreds at a public service in Killeen.

Training: Killeen police say they have used two professional services to provide specific training to officers on dealing with military subjects with PTSD. It’s unclear if the responding officers had taken part in that training.

Kelly Bangle

Military service: Staff Sgt. Kelly Bangle, of Arizona, joined the Army in 2003, serving as a signals intelligence officer. He deployed to Afghanistan in 2006 and to Iraq in 2011. He was among the last U.S. soldiers to leave Iraq.

Incident: On Dec. 14, 2012, Fort Hood police were called to a suspicious vehicle near the post’s Kouma Lake at around 3 a.m. While approaching the vehicle, officers received gunfire, according to Fort Hood officials. They returned fire, killing Bangle.

Outcome: Bangle, a father of three, was buried in Cochise County, Ariz.

Training: The two Department of the Army police officers on the scene had received broader crisis intervention training, but not combat veteran-specific training.

Local training

Specialized training remains rare in communities surrounding Fort Hood, which for much of the last decade has sent more soldiers to war than any other U.S. military installation.

Between December 2012 and July 2013, two active-duty soldiers recently returned from the war zone were shot and killed in shootouts with police. Staff Sgt. Kelly David Bangle was killed by civilian Fort Hood police after he fired on them from his car in the pre-dawn hours of Dec. 14, 2012; seven months later, Pfc. Dustin Cole was shot and killed in a shootout with Killeen Police Department SWAT team members, who were called out to his off-post apartment complex by concerned neighbors.

Killeen Assistant Police Chief Michael Click said that while he couldn’t comment on the Cole shooting because of ongoing legal proceedings, SWAT team members and negotiators have undergone some special instruction in working with combat veterans.

Police departments in Temple, Belton and Harker Heights conduct broader trainings, though officials say their officers are well educated on the issue.

“The majority of our members are prior military and consequently we have a cultural awareness of the issues,” said Harker Heights Chief Mike Gentry. “But this has not resulted in a specific training curriculum.”

At Fort Hood, where most Department of the Army police officers are also combat veterans, officials report similar dynamics.

“We do not tailor the training for handling combat veterans in crisis, just training on people in crisis,” Fort Hood officials said in a statement.

Digging deeper

Jeremy Schwartz has covered military and veterans issues for the American-Statesman since 2009. After a spate of police shootings involving veterans, Schwartz sought to quantify such incidents and examine the causes, effects and solutions.

Getting help

Active-duty service members and volunteers in crisis can call the Military crisis line: 1-800-273-8255, press 1, or go to veteranscrisisline.net to chat with Department of Veterans Affairs responders.

Gene Vela

Military service: Joined the Marine Corps in December 2001, operating and maintaining assault vehicles and weapons systems. Deployed to Iraq in 2002 as part of the initial invasion force.

Diagnosed with PTSD, Vela struggled after returning home and had several run-ins with police. But he was also supporting his daughter, earned a bachelor’s degree and was pursuing a postgraduate degree at the University of Texas’ LBJ School of Public Affairs.

Incident: On Nov. 10, Austin police received a distress call from a friend of Vela, and officers arrived at his second-floor apartment near UT. After officers said Vela pointed a gun with a laser sight them, Vela was shot in the shoulder by an officer.

Outcome: He’s in the Travis County Jail on charges including aggravated assault against a public servant.

Training: The Austin Police Department is the first in the state to be trained as part the Department of Health and Human Services Commission’s Veterans Tactical Response Program. While some officers have participated in an early training class, it’s unclear if any of those officers were summoned to Vela’s apartment.

Dustin Cole

Military service: Pfc. Dustin Billy Cole, of Talihina, Okla., joined the Army in October 2008 and had two deployments to Afghanistan, where he was a combat engineer.

Incident: In July 2013, five months after he returned from his second deployment, Cole’s neighbors at his Killeen apartment complex called police saying a man with a gun was threatening residents at the pool. A SWAT team arrived shortly before midnight and attempted to negotiate with Cole, who had gone into his apartment.

At one point, it appeared police were able to talk Cole into surrendering; he came to his front door with his hands up, according to police. But when officers tried to arrest him, Cole went back into his apartment, picked up an assault rifle and fired on officers, killing Robert Hornsby and wounding Juan Obregon. Officers returned fire, killing Cole.

Outcome: Cole was buried in Pushmataha County, Okla. Officer Hornsby, a father of two, was mourned by hundreds at a public service in Killeen.

Training: Killeen police say they have used two professional services to provide specific training to officers on dealing with military subjects with PTSD. It’s unclear if the responding officers had taken part in that training.

Kelly Bangle

Military service: Staff Sgt. Kelly Bangle, of Arizona, joined the Army in 2003, serving as a signals intelligence officer. He deployed to Afghanistan in 2006 and to Iraq in 2011. He was among the last U.S. soldiers to leave Iraq.

Incident: On Dec. 14, 2012, Fort Hood police were called to a suspicious vehicle near the post’s Kouma Lake at around 3 a.m. While approaching the vehicle, officers received gunfire, according to Fort Hood officials. They returned fire, killing Bangle.

Outcome: Bangle, a father of three, was buried in Cochise County, Ariz.

Training: The two Department of the Army police officers on the scene had received broader crisis intervention training, but not combat veteran-specific training.

Local training

Specialized training remains rare in communities surrounding Fort Hood, which for much of the last decade has sent more soldiers to war than any other U.S. military installation.

Between December 2012 and July 2013, two active-duty soldiers recently returned from the war zone were shot and killed in shootouts with police. Staff Sgt. Kelly David Bangle was killed by civilian Fort Hood police after he fired on them from his car in the pre-dawn hours of Dec. 14, 2012; seven months later, Pfc. Dustin Cole was shot and killed in a shootout with Killeen Police Department SWAT team members, who were called out to his off-post apartment complex by concerned neighbors.

Killeen Assistant Police Chief Michael Click said that while he couldn’t comment on the Cole shooting because of ongoing legal proceedings, SWAT team members and negotiators have undergone some special instruction in working with combat veterans.

Police departments in Temple, Belton and Harker Heights conduct broader trainings, though officials say their officers are well educated on the issue.

“The majority of our members are prior military and consequently we have a cultural awareness of the issues,” said Harker Heights Chief Mike Gentry. “But this has not resulted in a specific training curriculum.”

At Fort Hood, where most Department of the Army police officers are also combat veterans, officials report similar dynamics.

“We do not tailor the training for handling combat veterans in crisis, just training on people in crisis,” Fort Hood officials said in a statement.

Digging deeper

Jeremy Schwartz has covered military and veterans issues for the American-Statesman since 2009. After a spate of police shootings involving veterans, Schwartz sought to quantify such incidents and examine the causes, effects and solutions.

Filed under: Uncategorized | Tagged: | 3 Comments »

Rudely Copied from the NYT; USDC distinguishes a clear precedent

Posted on December 17, 2013 by markinaustin
December 16, 2013

Judge Questions Legality of N.S.A.

Phone Records

By

WASHINGTON — A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.

The judge, Richard J. Leon of Federal District Court for the District of Columbia, ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history. But Judge Leon, appointed to the bench in 2002 by President George W. Bush, stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, which he said could take at least six months.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote in a 68-page ruling. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures.

Andrew Ames, a Justice Department spokesman, said government lawyers were studying the decision, but he added: “We believe the program is constitutional as previous judges have found.”

The case is the first in which a federal judge who is not on the Foreign Intelligence Surveillance Court, which authorized the once-secret program, has examined the bulk data collection on behalf of someone who is not a criminal defendant. The Justice Department has said that 15 separate judges on the surveillance court have held on 35 occasions that the calling data program is legal.

It also marks the first successful legal challenge brought against the program since it was revealed in June after leaks by the former N.S.A. contractor Edward J. Snowden.

In a statement from Moscow, where he has obtained temporary asylum, Mr. Snowden praised the ruling.

“I acted on my belief that the N.S.A.’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” Mr. Snowden said in his statement. It was distributed by Glenn Greenwald, a journalist who received leaked documents from Mr. Snowden and wrote the first article about the bulk data collection. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights,” the statement said. “It is the first of many.”

The case was brought by several plaintiffs led by Larry Klayman, a conservative legal activist. Mr. Klayman, who represented himself and the other plaintiffs, said in an interview on Monday that he was seeking to turn the case into a class action on behalf of all Americans. “I’m extremely gratified that Judge Leon had the courage to make this ruling,” he said. “He is an American hero.”

Mr. Klayman argued that he had legal standing to challenge the program in part because, he contended, the government had sent inexplicable text messages to his clients on his behalf; at a hearing, he told the judge, “I think they are messing with me.”

The judge portrayed that claim as “unusual” but looked past it, saying Mr. Klayman and his co-plaintiff instead had standing because it was highly likely, based on the government’s own description of the program as a “comprehensive metadata database,” that the N.S.A. collected data about their phone calls along with everyone else’s.

Similar legal challenges to the N.S.A. program, including by the American Civil Liberties Union and the advocacy group Electronic Frontier Foundation, are at earlier stages in the courts. Last month, the Supreme Court declined to hear an unusual challenge to the program by the Electronic Privacy Information Center, which had sought to bypass lower courts.

The ruling on Monday comes as several government panels are developing recommendations on whether to keep, restructure or scrap the bulk data collection program, and as Congress debates competing bills over the program’s future.

Though long and detailed, Judge Leon’s ruling is not a final judgment on the program, but rather a preliminary injunction to stop the collection of data about the plaintiffs while they pursued their case.

He also wrote that he had “serious doubts about the efficacy” of the program, saying that the government had failed to cite “a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive.”

Judge Leon rejected the Obama administration’s argument that a 1979 case, Smith v. Maryland, had established there are no Fourth Amendment protections for call metadata — information like the numbers dialed and the date, time and duration of calls, but not their content. The 1979 case, which involved collecting information about a criminal defendant’s calls, helped establish the principle that people do not have a reasonable expectation of privacy for information they have exposed to a third party, like the phone company, which knows about their calls.

The surveillance court, which issues secret rulings after hearing arguments from only the Justice Department and without opposing lawyers, has maintained that the 1979 decision is a controlling precedent that shields the N.S.A. call data program from Fourth Amendment review. But Judge Leon, citing the scope of the program and the evolving role of phones and technology, distinguished the bulk collection from the 34-year-old case.

Last month, a federal judge declined to grant a new trial to several San Diego men convicted of sending money to a terrorist group in Somalia. Government officials have since acknowledged that investigators became interested in them because of the call records program. Citing Smith v. Maryland, the judge said the defendants had “no legitimate expectation of privacy” over their call data.

David Rivkin, a White House lawyer in the administration of the elder President George Bush, criticized Judge Leon’s reasoning.

“Smith v. Maryland is the law of the land,” Mr. Rivkin said. “It is not for a District Court judge to question the continuing validity of a Supreme Court precedent that is exactly on point.”

Judge Leon also pointed to a landmark privacy case decided by the Supreme Court in 2012 that held it was unconstitutional for the police to use a GPS tracking device to monitor a suspect’s public movements without a warrant.

Although the court decided the case on narrow grounds, five of the nine justices separately questioned whether the 1979 precedent was still valid in an era of modern technology, which enables long-term, automated collection of information.

***

Leon, a lifelong R for those who want to know, has shown sensitivity to the civil liberties issues that drive JNC and me to distraction.  He is operating within the confines of a Supreme Court that is very deferential in this area to national security concerns.

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Championship Saturday

Posted on December 7, 2013 by markinaustin

This is all about getting to the Mythical National Championship, or the other four BCS Bowls for consolation.  First, we say goodbye to Louisville, NIU, and Fresno.  Byebye.

 
Then we look at what ought to be the premier matchup: MSU [10] against tOSU osu (they don’t deserve capitals, Mark!)[2], tonight around 7:15 CST.
Kelley and my sis are Spartans for life.  They are underdogs here.  While I will back MSU and Narduzzi’s creative defense in this game, it is not without fear that ESPN will engineer an SEC team into the MNC Game if tOSU osu loses.  ESPN controls college sports now and it is hopelessly in bed with the SEC.

 
First game is at 11CST.   Okie Lite[6] hosts the Land Thieves[17] in Stillwater in unseemly cold weather for the southwest.

 

At 2:30 CST, my ‘Horns [25] are in Waco ready to be drubbed by Baylor [9].  Should be Mack Brown’s last regular season game.  Because of the unseemly weather and the popular nickname for our noodle armed QB, we shall call the game “Derp on ice”.

 
At 3 CST, MO [5] plays Auburn [3].  It doesn’t occur to ESPN that MO and aTm have done far better in the SEC than they did in the entire history of the Big 12.  I pick MO.  I think Malzahn may be UT’s next coach despite the extension he just signed at Auburn.

 

At 6:45 CST Stanford [7] plays ASU [11].  Top to bottom, the PAC has been really strong this year, but this game is only for the Rose Bowl, thanks to the possibility of two unbeaten teams and the certainty that ESPN will force us to watch SEC football if either unbeaten goes down.

 

At 7 CST FSU [1] plays a BASKETBALL SCHOOL [20] for the ACC title.  Since Jameis has been cleared of rape charges and not indicted, there is no hope whatsoever for the BASKETBALL SCHOOL.

 

With Fresno and NIU gone from the unbeatens, the five BCS bowls will have ten BCS teams from six BCS conferences.  The four extras should go to the PAC, the 12, the BiG, and the SEC, but not to the ACC or the little east or whatever that abomination is.

 
Finally, ‘Goose may have some interest in Utah State v. Fresno [23] at 9 CST.

 
‘Goose, edits are welcome!

Filed under: Football, Open Thread, Saturday | 16 Comments »

In England, Poor White Kids are far Behind Poor Black Kids

Posted on December 3, 2013 by markinaustin

Filed under: education, Open Thread, Poverty | 8 Comments »

FYI – a chance to comment on a proposed regulation

Posted on November 27, 2013 by markinaustin

The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today will issue initial guidance regarding qualification requirements for tax-exemption as a social welfare organization under section 501(c)(4) of the Internal Revenue Code.  This proposed guidance defines the term “candidate-related political activity,” and would amend current regulations by indicating that the promotion of social welfare does not include this type of activity.  The proposed guidance also seeks initial comments on other aspects of the qualification requirements, including what proportion of a 501(c)(4) organization’s activities must promote social welfare.

The initial guidance is expected to be posted on the Federal Register later today.

There are a number of steps in the regulatory process that must be taken before any final guidance can be issued.  Given the significant public interest in these and related issues, Treasury and the IRS expect to receive a large number of comments.  Treasury and the IRS are committed to carefully and comprehensively considering all of the comments received before issuing additional proposed guidance or final rules.

“This proposed guidance is a first critical step toward creating clear-cut definitions of political activity by tax-exempt social welfare organizations,” said Treasury Assistant Secretary for Tax Policy Mark J. Mazur.  “We are committed to getting this right before issuing final guidance that may affect a broad group of organizations.  It will take time to work through the regulatory process and carefully consider all public feedback as we strive to ensure that the standards for tax-exemption are clear and can be applied consistently.”

“This is part of ongoing efforts within the IRS that are improving our work in the tax-exempt area,” said IRS Acting Commissioner Danny Werfel.  “Once final, this proposed guidance will continue moving us forward and provide clarity for this important segment of exempt organizations.”

Organizations may apply for tax-exempt status under section 501(c)(4) of the tax code if they operate to promote social welfare.  The IRS currently applies a “facts and circumstances” test to determine whether an organization is engaged in political campaign activities that do not promote social welfare.  Today’s proposed guidance would reduce the need to conduct fact-intensive inquiries by replacing this test with more definitive rules.

In defining the new term, “candidate-related political activity,” Treasury and the IRS drew upon existing definitions of political activity under federal and state campaign finance laws, other IRS provisions, as well as suggestions made in unsolicited public comments.

Under the proposed guidelines, candidate-related political activity includes:

1.      Communications

  • Communications that expressly advocate for a clearly identified political candidate or candidates of a political party.
  • Communications that are made within 60 days of a general election (or within 30 days of a primary election) and clearly identify a candidate or political party.
  • Communications expenditures that must be reported to the Federal Election Commission.

2.      Grants and Contributions

  • Any contribution that is recognized under campaign finance law as a reportable contribution.
  • Grants to section 527 political organizations and other tax-exempt organizations that conduct candidate-related political activities (note that a grantor can rely on a written certification from a grantee stating that it does not engage in, and will not use grant funds for, candidate-related political activity).

3.      Activities Closely Related to Elections or Candidates

  • Voter registration drives and “get-out-the-vote” drives.
  • Distribution of any material prepared by or on behalf of a candidate or by a section 527 political organization.
  • Preparation or distribution of voter guides that refer to candidates (or, in a general election, to political parties).
  • Holding an event within 60 days of a general election (or within 30 days of a primary election) at which a candidate appears as part of the program.

These proposed rules reduce the need to conduct fact-intensive inquiries, including inquiries into whether activities or communications are neutral and unbiased.

Treasury and the IRS are planning to issue additional guidance that will address other issues relating to the standards for tax exemption under section 501(c)(4).  In particular, there has been considerable public focus regarding the proportion of a section 501(c)(4) organization’s activities that must promote social welfare.  Due to the importance of this aspect of the regulation, the proposed guidance requests initial comments on this issue.  The proposed guidance also seeks comments regarding whether standards similar to those proposed today should be adopted to define the political activities that do not further the tax-exempt purposes of other tax-exempt organizations and to promote consistent definitions across the tax-exempt sector.

Filed under: First Amendment, Open Thread, regulations, taxes | 21 Comments »

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