More Garden State Gun Insanity

A couple of years ago, we talked about Brian Aitken, the man who was convicted of violating New Jersey gun laws because he had guns in his car while he was moving. He was released from prison by Christie and his convictions were eventually thrown out (in part because the judge gave poor instructions to the jury; proper instructions might have resulted in acquittal).

Then it was Shaneen Allen, who faced felony charges for having a registered gun in her car while driving through New Jersey. After enormous public pressure, the prosecutor relented and let her go into a diversion program for first-time offenders.

These things keep happening because New Jersey’s gun laws are insanely complicated and ignore any idea of mens rea:

Carrying a firearm in a locked container in checked luggage in an airport terminal to declare it to the airline constitutes unlawful possession and is not protected under the law.

This decision was a direct result of a 2005 incident where Gregg C. Revell, a Utah Resident with a valid Utah Concealed Firearm Permit was traveling through Newark Airport en route to Allentown, Pennsylvania.

Because of a missed flight, he was given his luggage, which included a properly checked firearm, and was forced to spend the night in a hotel in New Jersey. When he returned to the airport the following day to check his handgun for the last portion of the trip, he was arrested for illegal possession of a firearm.

Revell lost his lawsuit after The U.S. Court of Appeals for the Third Circuit held in Gregg C. Revell v. Port Authority of New York and New Jersey, [222] held that “Section 926A does not apply to Revell because his firearm and ammunition were readily accessible to him during his stay in New Jersey.”

This opinion will apply to NJ airports. If you miss a flight or for any other reason your flight is interrupted and the airline tries to return you luggage that includes a checked firearm, you cannot take possession of the firearm if you are taking a later flight.

Well, meet the latest victim:

Gordon Van Gilder is a retired New Jersey school teacher and collector of 18th century memorabilia. That innocuous hobby could land the 72-year-old behind bars for the rest of his life.

Van Gilder owns an unloaded antique 225-year-old flintlock pistol, the possession of which carries a potential 10-year prison sentence and mandatory minimum sentence of three to five-and-a-half years with no chance for parole.

When a Cumberland County sheriff’s deputy pulled over Van Gilder last November for a minor traffic violation, Van Gilder—after consenting to a search—volunteered the information that the unloaded pistol was in his glove box. The next morning, according to Van Gilder’s account in a video posted by the National Rifle Association (NRA), four officers showed up at his home with a warrant for his arrest.

New Jersey’s strict gun laws explicitly include antique firearms, despite the fact that federal laws exempt them from most gun control regulations.

The local cops are doing ballistics tests on the flintlock just in case Van Gilder used it to commit the world’s slowest robbery or something.

Most federal gun laws exempt weapons made before 1898. The reason is that antique firearms are usually the province of collectors and historians. When was the last time you heard of someone holding up a liquor store with a musket?

There’s no question that Van Gilder broke the law. But there’s little question in my mind that the law is an ass. A Republican state legislator has introduced a bill to exempt antique weapons from New Jersey’s gun laws, but that won’t stop this prosecution. Even if he pleads out, a conviction could jeopardize his pension. I don’t know the ins and outs of New Jersey law, but if Van Gilder is eligible for the diversion program, he should absolutely get it.

This is an inevitable consequence of overly broad gun control laws. They are passed in the wake of some awful act of violence and wind up snaring law-abiding people who pose no danger whatsoever. And any opposition is written off as the result of NRA mischief.

Ending Shared Theft

I can’t believe I’m going to say this but here goes. Ahem. Cough. Uh, is this thing on?

Hi. Um … here we go …

Eric Holder has done something right.

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges.

Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing.

The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. It allowed police departments and drug task forces to keep up to 80 percent of the proceeds of adopted seizures, with the rest going to federal agencies.

I’ve talked about civil asset forfeiture many times. This is the vile practice where law enforcement officials seize your money, your car or your bank accounts and … well, basically keep it. You never have to be charged with a crime. They never have to prove the assets came from crime. They just take it, like a highwayman. And they are perfectly free to use those assets for any purpose, including, in one case, a margarita machine.

Some states have trained to “reign this in”. Granted, they haven’t reigned it in by say, abolishing it. But they’ve at least tried to redirect the money from going directly to law enforcement to going to schools or something. The Feds responded with their Equitable Sharing Program, where the police turn the money to the Feds to bypass state laws. The Feds keep a cut and then turn it right back over to the police. That’s the program Holder is suspending.

Now, to be fair, this is a directive. The next AG could reverse it. Hell, Holder could. Let’s not mistake this for, say, Congress passing a law to abolish it. Radley Balko breaks down the decision further, pointing out that federal investigations — such as investigations by the DEA or IRS — will still be able to use this tool. And, in fact, local law enforcement will be able to use Equitable Sharing when they are part of a federal or joint investigation. In fact, Holder’s justice department recently successfully argued before the Supreme Court, in Kaley, that the government could seize your assets before trial to keep you from hiring a good lawyer.

So let’s not dance in the streets just yet. But this is a step in the right direction. The next thing that needs to happen is for Congress to abolish the practice completely. Asset forfeiture may have made sense when we were seizing the 18th century smuggling ships of overseas booze barons. It makes no sense in a modern context. If the Supreme Court won’t abolish it, Congress must and should.

But Did You Really Mean Yes?

A few weeks ago, I blogged on the affirmative consent law passed by California that requires any sexual contact on college campuses to have explicit and ongoing consent to not be qualified as assault. In criticizing it, I noted:

What this really is about is getting a foot in the door for something radical feminists have wanted for a long time: a standard of “enthusiastic consent” to determine the line between sex and rape. According to these theorists, the only time sex should happen is when the woman is eager for it. Anything else is a varying degree of rape.

Do you have any idea how tired I get of being right all the time?

Activists quoted in the Huffington Post now want to extend this “affirmative consent” ideology, and its pinched, misleading definition of “consent,” beyond college into K-12 schools, and beyond sexual activity to non-sexual touching and unwanted remarks, to teach people the sinister evil of things like “unsolicited hugs.” (My wife and daughter hug me without asking for permission, and sometimes it’s a surprise — a pleasant surprise, even if I never “agreed” to it.). Once busybodies start meddling in your personal life, it’s hard for them to stop.

The meddling won’t stop at the schoolhouse gate, and will eventually reach into your private life, too. As lawyer Scott Greenfield notes, progressive law professors have submitted a controversial proposal to the American Law Institute that the Model Penal Code be radically changed to require affirmative “consent” throughout society, for both “sexual intercourse” and a broader range of “sexual contact.” On page 69 of their draft, they explicitly admit that this affirmative “consent” requirement would classify as sexual assault even many “passionately wanted” instances of sex (presumably because of the technicality that such mutually-wanted sexual intercourse is welcomed after — not affirmatively consented to before — the sex is initiated.) Perversely, they justify this massive invasion of people’s sex lives as supposedly protecting people’s sexual “autonomy” from potentially unwanted sex, even though their proposal goes well beyond banning unwanted sex, to banning sex that was in fact “passionately wanted” although not agreed to in advance. See Model Penal Code: Sexual Assault and Related Offenses, Tentative Draft No. 1 at pg. 69 (April 30, 2014).

This is why, Ezra Klein, you don’t support what you admit is a terrible law because it serves some social justice function. Because once you infect the legal code with the sort of wooly thinking, it will spread and mutate until the entire law code is a feminist manifesto from Berkeley.

Yes Doesn’t Mean Yes

The blogosphere has been lighting up for the last few weeks over California’s passage of a “Yes Means Yes” law, which basically says that only affirmative consent qualifies as consent and that this consent has be obtained at every phase of any sexual encounter.

The new law seeks both to improve how universities handle rape and sexual assault accusations and to clarify the standards, requiring an “affirmative consent” and stating that consent can’t be given if someone is asleep or incapacitated by drugs or alcohol.

“Lack of protest or resistance does not mean consent,” the law states, “nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”

California’s Legislature approved the measure last month, with broad support. But while victims’ rights advocates have welcomed the new standard, the law also has its critics, who say its requirements place too much burden on the accused.

You can guess where most people have landed on this subject. Liberals are praising it as a step against a supposed epidemic of sexual violence on campus (sexual violence on campuses is depressingly real, but the much-touted “one woman in five” stat is an overestimate and in conflict with the government’s own numbers). Many conservatives and libertarians are critical because they see it as canting the field against the accused and an intrusion into people’s private behavior.

Probably the worst commentary on this belongs to Ezra Klein. In his first article, he admitted that “Yes Means Yes” is a bad law but said it was necessary to deal with the problem of campus rape. You can check Conor’s response here. Klein then doubled down with some musings about the legal system which was inaccurate, to say the least.

The thing is, I think much of the debate is missing the point. Whether “Yes Means Yes” is a good law or a bad law, it’s addressing the wrong problem. The problem is not that we have an unclear definition of consent; the problem is that these cases are being handled by universities at all.

To call campus judiciary systems a kangaroo court would be an insult to marsupials. You can read here about the details of a woman who says her boyfriend, during consensual sex, beat her, choked her and anally raped her. When she tried to use the campus judicial system, they allowed him to reference a supposedly exculpatory video, but she was never allowed rebut his testimony by showing the video. They made a big deal over her months-long delay in bringing charges, but didn’t allow her to explain why she delayed (she wasn’t going to bring charges until she found out he had assaulted other women). They were not allowed to consider that he’d been previously found responsible for similar sexual misconduct because the cases had been mysteriously re-opened.

This is not surprising to anyone who has been in academia for long. Campus judiciary systems are frequently a joke. They use rules of evidence made up on the fly, they are usually run by students, staff and/or faculty who have maybe watched an episode of Matlock. The problem is not that they don’t have a clear definition of consent; the problem is that they don’t know what the hell they are doing.

The system is little better than a random number generator. Often, women are subjected to a ridiculous process that leads inevitably to exoneration. But, on occasion, it works the other way and men are railroaded and slimed. There’s no logic or reason to it. The cases that result in men being unfairly kicked off campus are frequently far weaker than the ones that have a campus jury acquitting.

Campus justice systems should stick to what they’re good at: exonerating students who have cheated on exams.

Let’s take a step back for a moment. I have read the details of many cases in which innocent people were convicted of crimes they didn’t commit, often spending decades in prison or on death row. The one thing that jumps out at you, over and over, is the tunnel vision that can grip law enforcement and prosecutors. Once they have the idea that X committed the crime, they begin to see everything in that light. Exonerative evidence is explained away or ignored; confirming evidence is believed and touted. And while academics like to think of themselves as floating loftily above confirmation bias and rushes to judgement, they are just as susceptible to it as anyone else. People tend to decide questions before they have all the evidence. That’s human nature.

The difference is that our legal system has safeguards to try to stop the runaway train of presumed guilt: an adversarial lawyer system, the right to confront witnesses, proof beyond a reasonable doubt, etc. It doesn’t work perfectly, but it works well. Most campus systems have none of that. To the extent that they do, they are trying to get rid of it. In fact, the Justice Department has been pressuring campus legal systems to move toward “preponderance of evidence” and other shortcuts.

The result is that there are few safeguards against a campus judiciary board deciding in favor of whatever their initial conclusion was. If they thought the guy was innocent, they’ll find him innocent. If they think he’s guilty, they’ll decide he’s guilty. How does “Yes means Yes” address that?

It doesn’t. What this really is about is getting a foot in the door for something radical feminists have wanted for a long time: a standard of “enthusiastic consent” to determine the line between sex and rape. According to these theorists, the only time sex should happen is when the woman is eager for it. Anything else is a varying degree of rape.

But under this standard — and to some extent under the standard of “yes means yes” — the vast majority of sex would qualify as rape. When discussing this on Twitter, one of my followers tweeting back that she spent years in a relationship with lousy sex. She was not at all enthusiastic about it, but she consented. Another one pointed out that this would classify all sex work — from street walkers to sugar babies — as rape victims. Still another said she has never been one to initiate sex; but she’s up for it when her partner wants it. In fact, a lot of women’s sexuality is responsive. For a lot of women, what turns them on is being wanted. Dan Savage likes to say that men get aroused and start having sex; women start having sex and get aroused. Lesbians sometimes have difficulty with their sex lives because — whether by genetics or socialization — they have difficult initiating sex out of the blue. And millions of couples have engaged in drunk sex, perfunctory sex or “we’re trying to get pregnant and you’re ovulating so whatever” sex.

Some women (and some men) find the idea of asking for permission sexy. Many women don’t. The simple fact is that human sexuality — and especially female human sexuality — is way too complex for such simple rules. If you put a thousand women in a room and asked them what kind of sex they want, you would probably get two thousand answers. That’s fine. That’s human nature. But California has now taken a step toward codifying one of those answers into law.

I understand the basis for these changes. As Megan McArdle points out, the problem of campus sexual violence is confined to a small percentage of men who do this repeatedly and knowingly. Most women can tell the difference between a guy who misreads her signals and a guy who doesn’t give a shit about her signals (although the people who compile the “one in five” stat count both as assault). What “yes means yes” does is give the colleges more leverage in ejecting the real scumbags from campuses. They’ll no longer be able to waffle and warp when a committee can just say, “Did you ask if she wanted to have anal sex?”

The problem is that 1) this is unlikely to work. Rapists and assaulters will continue to lie and claim that consent was given when it wasn’t. It will just boil down to a more precise version of “he said — she said”; 2) authorities love vagueness in the law. They love it. If you give universities this kind of authority and discretion, it will be abused. It will simply reinforce what the college judicial boards want to do in these cases. If they’ve decided a man is guilty before hearing the evidence, this will just persuade them all the further. And if they’ve decided he’s innocent, this won’t dissuade them. Only a system set up like our current legal system — with witness confrontation, representation and a presumption of innocence — can get close to the truth.

That’s, of course, assuming that the colleges even get the implementation of this law right. We’re now seeing that college regulations are showing up as poorly thought out and badly written, even beyond the bad ideas of legislatures and federal agencies. Michigan’s sexual assault policy is so badly written it makes refusing sex or criticizing someone sexually an incident of sexual violence. Ohio State’s policy regards sex with the elderly or disabled to be assault. I mean, it shouldn’t surprise us that the Buckeyes and Wolverines would fumble the ball like this. But come on. These laws read like they were written by people who’ve never had sex.

Here’s the sexual assault policy I would put in place on college campuses:

1) If someone claims to have been raped or sexually assaulted, this will be handled by the police. As bad as the police are, they’re not a college judiciary committee. A lot of people think this isn’t enough. They want accused rapists kicked off campus so that the victim doesn’t have to live in the same dorms or go to class in the same buildings as him. OK:

2) If a student is the target of a criminal investigation or proceeding, he will be suspended from campus until the case is resolved. He will be allowed to take online courses toward his degree until if/when he is convicted. Even if the charges are dropped, the University will prevent the accuser and accused from living in the same dorm or taking the same classes (as much as practicable). For both their sakes.

Harsh? Yes. But it puts these cases back into the realm of reality where charges, claims, counter-claims and evidence is being handled by people who do this for a living not some psychology professor with an axe to grind.

Sexual violence in our society is down. From the heights of the 1970’s and 1980’s, it has fallen 60-80%, depending on which stats you believe. But it is still too high. A couple of hundred thousand women are sexually assaulted or raped every year. We should do something about that. And to some extent, we have (see 60-80% drop in violence rates). But I agree we should do more. And college campus are a good place to start since most sexual violence victims are under 30.

But this isn’t what we should do.

I agree with what Elizabeth Nolan Brown has been saying: if we really want to do something about sexual violence, let’s start with testing the hundreds of thousands of untested rape kits that are lying around the country. Let’s get states to stop forcing women to pay for their own rape exams, as Louisiana just did. Let’s punish everyone who engages in sexual violence, whether they’re an obscure college student or a member of our political elite.

But let’s not take legal shortcuts based on the rantings of radical feminists. That way lies more misery and no progress.

Sneaking and Peaking

Holy crap:

One of the more controversial provisions of the Patriot Act was to broaden the “sneak-and-peek” power for federal law enforcement officials. The provision allows investigators to conduct searches without informing the target of the search. We were assured at the time that this was an essential law enforcement tool that would be used only to protect the country from terrorism. Supporters argued that it was critical that investigators be allowed to look into the lives and finances of suspected terrorists without tipping off those terrorists to the fact that they were under investigation.

More than a decade later, the Electronic Frontier Foundation has published an analysis on use of the sneak-and-peek power. Just as critics predicted, it’s now a ubiquitous part of federal law enforcement.

According to the EFF, there were over eleven thousand sneak and peek requests in 2013. Of those, only half a percent were terrorism cases. The vast majority were for drug investigations with the remainder for other non-terrorism criminality.

This is the reason why, however much I have criticized Bush for his War on Terror excesses, Barack Obama has been far far worse. It’s not just that sneak-and-peak requests have tripled under his watch. It’s not just the massive expansion of the drone war. It’s not just the explosion of surveillance. It’s that he has now given the bipartisan kiss of approval to all of this. Bush may have started the War on Terror, but Barack Obama has cemented it in place to an excess that would make John Ashcroft blush (Ashcroft, whom you may remember as a favored whipping boy of Democratic pseudo-civil libertarians, refused to extend the domestic surveillance program).

Radley has a few lessons we should learn from this. You should really read the whole thing. Here’s the most important:

Law-and-order politicians and many (but not all) law enforcement and national security officials see the Bill of Rights not as the foundation of a free society but as an obstacle that prevents them from doing their jobs. Keep this in mind when they use a national emergency to argue for exceptions to those rights.

We can not rely on politicians to defend our civil liberties. We must actively use them and defend them. And any intrusion into our liberty must be opposed, no matter what crisis is at hand. If we don’t defend or liberty, who will?