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Unconstitutional Federal Laws still on books

Rambulator

http://www.krusch.com/real/unconstitutional.html

check out #18

Switch Blayde

@Rambulator

I'm not sure that's unconstitutional. Obscenity isn't covered under the First Amendment.

Replies:   Dominions Son
Dominions Son

@Switch Blayde

I'm not sure that's unconstitutional. Obscenity isn't covered under the First Amendment.


At least the Supreme Court decided it wasn't covered. The problem with that is it's impossible to define objectively.

Ernest Bywater

Regarding the freedom of the press - there never has been such a thing, they always make you pay for the damn newspapers, and always have.

Replies:   Capt. Zapp
Capt. Zapp

@Ernest Bywater

they always make you pay for the damn newspapers


Our local paper is free. Of course, it's only about 30 half-pages compared to a 'normal' paper and it only comes out once a week. ;)

Replies:   REP
REP

@Capt. Zapp


Our local paper is free.


Tanstaafl :)

Rambulator

One that I found amusing was 18 section 709 about using FBI in anything written.

red61544

An interesting topic considering that most liberal newspapers were banned from Sean Spicer's weekly news briefing today. Trying to control the news is a sure sign of a politician who is running scared.

Replies:   Ernest Bywater
Ernest Bywater

@red61544

Trying to control the news is a sure sign of a politician who is running scared.


Probably scared of being misquoted again. Some of what is extremely loosely called media in the US is well known for twisting the hell out of what any one says.

If a person is asked if they prefer a blue outfit or a black outfit and the say they prefer the blue the media will have a headline saying the person hates black clothes. Not exactly a lie, but the way it's presented is a lie.

Replies:   Switch Blayde  red61544  REP
Switch Blayde

@Ernest Bywater

Probably scared of being misquoted again.


That came up today. Trump said something like, "The fake media is the enemy of the American people."

So how did the media quote him? "The media is the enemy of the people." Leaving out the word "fake" sort of changes the meaning, don't you think?

Replies:   Ernest Bywater  Oyster
Ernest Bywater

@Switch Blayde

So how did the media quote him? "The media is the enemy of the people." Leaving out the word "fake" sort of changes the meaning, don't you think?


Are but was it the real media or the fake media who wrote that quote?

I just checked some new reports on the immigration ban issue, and according to some media reports banning migrants from 7 specific countries known for sending out terrorists is likely to cause a 7 billion down turn in the US housing industry - not sure how they get the link, but I doubt it will happen unless all immigration to the US stops.

Another media report was going on about how Trumps pressure to have the illegal aliens in the USA located and deported was going to adversely affect the US work force and reduce migration. Not sure how kicking out illegals will stop legal migration, but I'm sure any jobs freed up will be open for filling by US unemployed or legal migrants.

Replies:   graybyrd
red61544

@Ernest Bywater

Probably scared of being misquoted again

I would question the word "again". I don't know of any misquotes, but I'm sure it's happened. Dictatorships know that they have to control the media before they can control public opinion. A free press allows people to form their own opinions. That's the basis of a democratic society.

Oyster

@Switch Blayde

In this context? No, it does not change the meaning.
Trump considers all media that reports on things that are negative for him as fake news/media.

graybyrd

Ah, yes... the infamous 'fake' media. Ranks right in there with Obama's 'fake' birth certificate, and Trump's 'fake' tax returns.

Who needs a free press, anyway? It just confuses people with 'fake' choices. Perhaps OZ has a licensing scheme for that? Reliably certified 'official' news outlets?

Dominions Son

@red61544

I don't know of any misquotes


Then you don't pay much attention. Every politician at every level gets misquoted by the media. It's actually unusual for them to get quotes right.

Replies:   PotomacBob
REP

@Ernest Bywater


Probably scared of being misquoted again


On the other hand, there have been numerous instances of the media quoting Trump accurately and him denying the quote as accurate. Then the media surfaces a filmed interview in which Trump says exactly what they said he said.

Thus it is highly possible that Trump's main fear is the media will quote him or his actions accurately and then tell the American public why what he said (or did) is a horrible thing to say (or do)

Replies:   Dominions Son
Dominions Son
Updated:

@REP


On the other hand, there have been numerous instances of the media quoting Trump accurately


I doubt it. They rarely get quotes right.

and him denying the quote as accurate.


On the other hand, his post hock denials / claims about what he said are probably even further from the truth than the original media misquotes.

ETA: A video clip of Trump saying something isn't really a quote.

Replies:   REP
graybyrd

@Ernest Bywater

I'm sure any jobs freed up will be open for filling by US unemployed or legal migrants.

Here on the West Coast the ag industries depend on work visa permitted migrant workers. That could be affected. Good luck convincing US residents that they attempt to make a living at migrant worker, piece-work wages, with no benefits. And those who live here know how 'easy' it is to resume unemployment insurance benefits after a temporary job ends.

It's a foolish administration that messes with agricultural food production. For instance, try buying a Washington apple if the flow of migrant workers stops. These are SEASONAL workers who come to work during the growing and harvest season, seek to live as cheaply as possible, and take their savings home to support their families for the remainder of the year.

The jobs don't pay enough to support college tuition, so forget about student workers; the jobs are not year-round, so forget about people on public assistance. Any brilliant suggestions to address those issues? Other than having America's underclass move to Mexico?

Ernest Bywater

@red61544

That's the basis of a democratic society.


Which is why certain groups supporting the ideas of socialist governments work so hard to take over and control the media of the democratic countries so they can print lies and claim they're free press. How long since anyone has seen an unbiased media report on any political issue - I've not seen one above the dog catcher level for over 40 years.

Replies:   REP  Switch Blayde
Ernest Bywater

@graybyrd

Here on the West Coast the ag industries depend on work visa permitted migrant workers.


GB, if they rely on legal migrants, as you say they have work visas, then kicking out illegals without work visas shouldn't affect them, unless they're not checking if the workers have valid visas -then kicking out the illegals should open up the jobs to those who have valid visas.

Dominions Son

@Ernest Bywater

GB, if they rely on legal migrants, as you say they have work visas, then kicking out illegals without work visas shouldn't affect them, unless they're not checking if the workers have valid visas -then kicking out the illegals should open up the jobs to those who have valid visas.


Heavy handed enforcement could make the legal migrants less willing to come. They are very poor, they don't have money to spend on lawyers if they get caught up by CBP or INS by mistake.

Replies:   Ernest Bywater
graybyrd

@Ernest Bywater

That's making a basic assumption that this administration will not restrict the work visa program; after all, every Mexican who comes north is a drug pusher, a gang member, or a criminal. Work visa applicants will likely be subject to EXTREME vetting.

Replies:   Ernest Bywater
Switch Blayde

@Ernest Bywater

then kicking out the illegals should open up the jobs to those who have valid visas.


But they'd probably have to pay them more.

Replies:   Ernest Bywater
Ernest Bywater

@graybyrd

That's making a basic assumption that this administration will not restrict the work visa program; after all, every Mexican who comes north is a drug pusher, a gang member, or a criminal. Work visa applicants will likely be subject to EXTREME vetting.


I doubt the number of legal visa issues will be seriously affected. But the current system has over three million illegal aliens in California alone, and none of them have been vetted or checked in any way, so there's a damn good chance a large percentage of them are criminals. However, if the ones caught committing crimes are removed, then the number of non-criminal illegals should rise, yet people in some states seem determined to protect the criminals from being kicked out - and you have to wonder why.

Replies:   Switch Blayde
Ernest Bywater

@Dominions Son


Heavy handed enforcement could make the legal migrants less willing to come.


If the people and the state authorities work with the federal authorities to identify and remove the illegals, there's no reason for the immigration people to be heavy handed. At the moment they have to be heavy handed in some areas because of the high number of illegals known to be there, but no one is handing them over when they're caught committing local crimes.

Ernest Bywater

@Switch Blayde

But they'd probably have to pay them more.


That's probably why the local authorities protect them, regardless of what crimes they commit.

Ernest Bywater

This website has some interesting info on illegals

http://www.migrationpolicy.org/programs/us-immigration-policy-program-data-hub/unauthorized-immigrant-population-profiles

Switch Blayde

@Ernest Bywater

and none of them have been vetted or checked in any way, so there's a damn good chance a large percentage of them are criminals.


Actually, most illegal immigrants are not criminals (other than the fact that coming here illegally constitutes a criminal act). Calling them all rapists and drug dealers is an injustice.

The problem isn't with accepting immigrants. America was built on immigration. The problem is the immigration laws were never enforced (do you know of any other country that has open boarders and allows just anyone to enter?) and that caused a situation without answers.

You can't deport everyone. So the priority must be to deport the criminals and stop new illegals from coming in.

Then the hard decisions need to be made. What do you do with the 11 million law abiding illegals who are already here? What if they were brought here as a child and grew up here? Send them to a foreign country where they may not even speak the language? What if the child was born here but the parents are illegal? Break up the family? What if they've been living here for decades? But we're not at that stage yet.

Replies:   Ernest Bywater
Switch Blayde

@Ernest Bywater

If the people and the state authorities work with the federal authorities to identify and remove the illegals


I live in Arizona which boarders Mexico. Do you know that when our local law enforcement did that, the Federal government under Obama told them they couldn't hold the illegals because it's a federal jurisdiction and not state so they had to let them go.

Replies:   Ernest Bywater
Dominions Son

@Ernest Bywater

If the people and the state authorities work with the federal authorities to identify and remove the illegals, there's no reason for the immigration people to be heavy handed.


Trump wants them to be heavy handed. And for that matter, the field agents want to be heavy handed, that's how they get their shits and giggles.

Reason and need have nothing to do with it.

Replies:   Ernest Bywater
Ernest Bywater

@Switch Blayde

You can't deport everyone. So the priority must be to deport the criminals and stop new illegals from coming in.


Switch, I'm well aware most of them don't commit any crimes after they arrive, however, the way some of the state and local authorities refuse to advise the feds when they find any illegals in their systems for any offenses means the the only way the feds can get and remove the dangero0us ones is to go after all of them.

If the idiots pushing the sanctuary city idea actually helped the feds to deal with the ones who commit violent crimes then the feds wouldn't be under so much pressure to deal with the others.

The best way to deal with the illegals already in the country is to secure them while you do the proper checks, and if they check out OK, then you process them like a normal migrant application. If they are identified as having a violent criminal record you ship them out.

Replies:   Grant
Capt. Zapp

@graybyrd

the jobs are not year-round, so forget about people on public assistance.


Why? Just because it isn't year round doesn't mean they can't do it. More likely they get more for sitting around on their rearends collecting assistance than they would by working. Why work for something they will give you more of for not working?

Grant
Updated:

@Ernest Bywater

The best way to deal with the illegals already in the country is to secure them while you do the proper checks, and if they check out OK, then you process them like a normal migrant application. If they are identified as having a violent criminal record you ship them out.

"Trust us, we're the government and we're here to help you. Let us lock you up for a while, just while we check things out & if you're OK you're free to go".
Yeah, that'll work well.

Replies:   Ernest Bywater
Ernest Bywater

@Switch Blayde

I live in Arizona which boarders Mexico. Do you know that when our local law enforcement did that, the Federal government under Obama told them they couldn't hold the illegals because it's a federal jurisdiction and not state so they had to let them go.


Another one who hangs out in Arizona, I wonder how close to Jim and Mon you are?

Anyway, I wonder how legal the attitude of the Obama administration was in that. However, every law enforcement officer of every level in the US has a responsibility to enforce all the laws applicable to the people in their areas jurisdiction. An argument can be made about the locals not enforcing certain federal laws, but the locals are obliged to enforce federal criminals laws.

The big problem, as I see it, is not the local laws checking immigration records on everyone they see in the street, but on them checking the immigration status of everyone they find committing other offenses and then holding them for the immigration people to collect. Thus a person caught for a robbery is found to be an illegal and handed over to immigration instead of being released on bail and not to be seen until their next arrest. Some states and local authorities are refusing to do that, yet it's a federal law to do it.

Replies:   Dominions Son
Ernest Bywater

@Grant

"Trust us, we're the government and we're here to help you. Let us lock you up for a while, just while we check things out & if you're OK you're free to go".
Yeah, that'll work well.


It's worked well for decades here in Australia - the only time it didn't work was when the do gooders got them all released from the centres and the ones who turned up to have violent backgrounds couldn't be found again later.

Replies:   Grant
Ernest Bywater

@Dominions Son

the field agents want to be heavy handed,


The problem is in the areas where the feds are hindered by the local authorities instead of being helped, so they have no option but to be heavy handed. Make it the only way the feds can catch the violent illegals is to go in and capture a whole community then sift it, and that becomes what they do. but if the local cops hand over the violent ones while they have them, then there's no need to go into the whole community.

Replies:   Switch Blayde
Grant

@Ernest Bywater

It's worked well for decades here in Australia

Please.

If you're going to compare things they need to be comparable.
Detention before arrival, and rounding up those that have already arrived are not comparable.

And as for working, I guess all the legal payouts for wrong full detention & wrong full return don't count?
Like the war on drugs, the cost of detention has far exceeded by many orders of magnitude the costs of dealing with removing those that should be removed.

Replies:   Ernest Bywater
Dominions Son

@Ernest Bywater

However, every law enforcement officer of every level in the US has a responsibility to enforce all the laws applicable to the people in their areas jurisdiction.


Nope, sorry, it doesn't work that way here. State and local LEOs only have jurisdiction to enforce state and local laws. Local police can not arrest people for things that are crimes only under federal law.

Replies:   Ernest Bywater
Ernest Bywater

@Grant

Detention before arrival, and rounding up those that have already arrived are not comparable.


We do both, except when some fools get in power and don't carry out the law as written. Nope, there was never a high rate of wrongful detentions or returns, and for most it was actually the fault of the person, but the courts don't always follow the law or logic. A person refuses to provide proper information on who they are, so why shouldn't they get detained until it's proven who they are?

The problem with removing those that should be removed is finding the suckers later. Way too many can't be found until after the investigation into a major crime they committed.

In one case in the 1990s a fellow claimed to be three different people from three different areas while in detention. When he was finally properly identified after a year in detention he was shipped back to where he came from due to his record for violence and murder. At another time the government wasn't detaining people and one fellow who was let loose to roam the street was able to commit a number of robberies and kill two people before he was caught after he was properly identified and as being wanted for murder in his home country.

I like how you say to compare like things then try to compare to totally different things like illegal immigration and drug usage.

The war on drugs doesn't work because of the way the governments try to fight it. To win there they need to work with the users to kill off the criminals illegally handling it. The government needs to deal with the wholesalers not the consumers.

Illegal immigration is dealing with the criminals direct.

Replies:   Grant
Switch Blayde

@Ernest Bywater

Ernest, I have another question. I may not be stating this correctly because it seems so weird to me.

Australia stopped people (refuges?) from illegally coming into Australia. They're being detained on an island or some place. Obama agreed to take them. Now Trump is saying he won't live up to that agreement which makes Trump the bad guy and pissed off the Australian PM.

Why is the Australian PM angry? If he believes they are refuges and should have a place to live, why not simply let them into Australia? And if he doesn't want to, why is Trump the bad guy for doing the same?

I'm truly baffled over this.

Replies:   Grant  Ernest Bywater
Ernest Bywater

@Dominions Son

State and local LEOs only have jurisdiction to enforce state and local laws. Local police can not arrest people for things that are crimes only under federal law.


From what I learned while talking with US law enforcement people as part of story research the local are obliged to enforce the federal crimes. They are NOT obliged to enforce the other federal violation. Most federal crimes are duplicated in the state and local laws, but not all. Nor are all breaches of federal law are a crime - e.g. tax evasion is a breach or federal law, but not a crime.

If what you said was true a cop couldn't arrest a person once they crossed a state border to be outside the state they committed the crime in. Thus, according to you, the locals can't arrest a person in Kentucky for kidnapping a person in Georgia and taking them to South Carolina.

Grant

@Ernest Bywater

In one case in the 1990s a fellow claimed to be three different people from three different areas while in detention. When he was finally properly identified after a year in detention he was shipped back to where he came from due to his record for violence and murder. At another time the government wasn't detaining people and one fellow who was let loose to roam the street was able to commit a number of robberies and kill two people before he was caught after he was properly identified and as being wanted for murder in his home country.

One case amongst 100,000s. Not a particularly strong argument.

The government needs to deal with the wholesalers not the consumers.

No demand, no need to supply.

Illegal immigration is dealing with the criminals direct.

Interesting.
You consider drug dealers criminals, but not the users (even though they are).

You consider illegal immigrants criminals, but not the people smugglers (even though they are).

To stop the illegal sale of drugs you either make it legal, or you need to deal with both the supplier and the user- not just one or the other.

The same with illegal immigration- you either make what is now illegal, legal, or you deal with both the smugglers & the illegal immigrants.

Replies:   Ernest Bywater
Grant

@Switch Blayde

Why is the Australian PM angry? If he believes they are refuges and should have a place to live, why not simply let them into Australia? And if he doesn't want to, why is Trump the bad guy for doing the same?

I'm truly baffled over this.

America is supposed to be an ally. They agreed to help us out with a particular issue. Now they are reneging on that agreement.
Basically it boils down to this- What good is an ally if you can't rely on them to do as they agreed?

With allies like that, who needs enemies? That's the way many people are looking at it, even those that didn't agree with it in the first place. You make an agreement, you stick by that. If you won't do it for an ally, then how can anyone else believe you will honour any other agreements you have made or will make in the future?

Ernest Bywater

@Switch Blayde

Why is the Australian PM angry? If he believes they are refuges and should have a place to live, why not simply let them into Australia? And if he doesn't want to, why is Trump the bad guy for doing the same?


It's because they are not refugees. We have a very strong immigration and refugee acceptance policy, in fact we accept more refugees per capita than any other country in the world. However, there is a major issue and difference between what the media and lobby groups call a refugee and what is a legal refugee as per the UN Convention on Refugees. None of the people on the islands are refugees, they're what the UN call displaced persons. The other thing to keep in mind is most, if not all, of those people paid professional smugglers many tens of thousands of dollars to try and smuggle them into Australia so they can jump or avoid the immigration queue.

The UN defines a refugee as a person who flees their home while in fear of their life and they are a refugee up to and including when they reach a safe harbor. Once they choose, of their own volition to leave the safe harbor to go elsewhere they are a displaced person.

As an example: During the fighting in Afghanistan many refugees fled across the border to Pakistan. Once there various organisation helped to set up and run UN Refugee Camps. At the camps they're issued with documentation and can apply for migration to many countries as a refugee. There is nothing forcing them to stay in the camps, but before they're accepted as migrants by the countries various health and background checks are done, these take time to do. Some people, especially those who had a lot of money and feel entitled to special services, leave the camps to travel elsewhere. Once they leave the camp they are no longer a legal refugee entitled to special services because they've chosen to walk away from all that. The ones on the islands traveled to Indonesia where they paid people to carry them to Australia by boat - the lowest price I've heard mentioned is nearly A$20,000 per person, and can go up to several times that. So you can see why some people will stick 30 or 40 of these people on a small boat and smuggle them into Australia.

There are different laws regarding how we process people off-shore to on-shore, which is why we try to keep them off-shore.

Now as to why the PM is upset about the change by Trump, that's easy - an agreement between countries or the leaders of countries are supposed to be upheld by the new leaders when there's a change of leadership, unless a new mutually agreed position is reached. Unilateral changes are not supposed to happen. That's an International standard and expectation.

The Australian government did things and incurred costs on the expectations the US government would keep it's word, now they US is going back on it's promise. The country is supposed to be more than the current leader. Mind you, this isn't the first time a US President or the US Congress as broken their promises.

If Trump can lawfully arbitrarily void the agreement reached with Obama, then we should have the legal right to simply say we no longer abide by the last trade Agreement the US government pressured the Rudd government to sign - - which would piss off a lot in the US administration and business world.

Ernest Bywater

@Grant



One case amongst 100,000s. Not a particularly strong argument.

The government needs to deal with the wholesalers not the consumers.

No demand, no need to supply.

Illegal immigration is dealing with the criminals direct.

Interesting.
You consider drug dealers criminals, but not the users (even though they are).

You consider illegal immigrants criminals, but not the people smugglers (even though they are).

To stop the illegal sale of drugs you either make it legal, or you need to deal with both the supplier and the user- not just one or the other.

The same with illegal immigration- you either make what is now illegal, legal, or you deal with both the smugglers & the illegal immigrants.


Grant, that was not an isolated case, just the one I remember the most about. The Australian department of immigration is very quick to release people from detention once they can properly identify them, prove they have a good background, and pass a health check. At one time they were over 90% of detained boat people with 12 weeks of entering detention. The problems come when the people can not be properly identified, especially when they lie about who they are or where they come from. There was the a case of a boat load of Pakistanis who claimed to be Afghani refugees - they were mega pissed when sent back to Pakistan. They weren't the only Pakistanis to try that one.

The people smugglers should be shot on sight, but the people being smuggled don't identify them, nor do the boat crews, so you can't catch up with them. In that way the big knobs behind it are like the big knobs behind drug shipments.

With the illegal migrants they make a conscious decision to break the law, then seek out others to help them do it, and the boat people usually pay others large amounts to do it. So yes, both are breaking the law. The problem is not all breaches of the law are crimes, as defined under the Crimes Act - so that affects the situation too.

.................

On Drugs
Some drug users didn't start out as drug users of their own accord, so I've got mixed feeling about the user side of things. I used to work with a guy who became an addict due to the morphine he was given when he was shot in Vietnam. he didn't elect to become an addict, but by the time he was where they didn't need to give him the drug for medical purposes he was addicted.

Personally, I think we need roadside tests to find people driving while on drugs - the laws already cover it, we just need better detection systems there. I also think we should legalise personal usage at home or on private property - in short, treat drug usage the same way we treat the use of alcohol and tobacco.

The drugs should have properly taxed clean quantities available through legal retail outlets. Sell pure drugs for a little below the current illegal retail rate and the government would reap a huge lot of taxes while cutting the market out from under the illegal suppliers. Here in Australia it would be very easy to do that for most of the hard drugs because we are one of the countries that grow and export opium. We could also grow cocaine if they wanted to do it commercially.

Switch Blayde

@Ernest Bywater

Thus, according to you, the locals can't arrest a person in Kentucky for kidnapping a person in Georgia and taking them to South Carolina.


They can't. That would be outside their jurisdiction. The FBI (which is federal) would be called in.

Switch Blayde

@Ernest Bywater

the local are obliged to enforce the federal crimes


Then why can states make marijuana legal when it's against the federal law. It's all screwed up.

And as I said, when Arizona law enforcement caught illegals and held them, the feds said they can't do that because no state law was broken and immigration is federal.

Replies:   Ernest Bywater
Dominions Son

@Ernest Bywater

From what I learned while talking with US law enforcement people as part of story research the local are obliged to enforce the federal crimes.


Someone handed you a line of shit. The US constitution actually prohibits the federal government from conscripting local officials to enforce federal law.

Replies:   Ernest Bywater
Ernest Bywater

@Switch Blayde

And as I said, when Arizona law enforcement caught illegals and held them, the feds said they can't do that because no state law was broken and immigration is federal.


That comes back to what I said earlier about the difference between what is a breach of legislation and what is a crime. Put as harshly as possible stealing a car and murder are crimes, while not paying taxes and not illegal immigration are breaches of the law, not crimes.

Because in the late 1800s a raft of laws were passed to give the states prime authority in regards to most crimes. Thus, for some crimes the state laws override.

The issue I mentioned earlier about the local law enforcement is where someone is arrested for a local crime, a check is made and if they're an illegal the immigration is informed. The legal right to hold the person is the arrest for the initial crime that brought them to the attention of the police. However, if the people aren't arrested for some local crime, then the locals have no right to hold them for the immigration breach unless immigration have a warrant out they can authorise the local to enforce for them to hold him until they get there.

While researching for Survivor I exchanged emails with a local deputy sheriff in Texas, and he often arrests illegals he holds for immigration. He doesn't arrest them for the lack of a green card, but he arrests them for trespassing because he gets called in by the property owner and arrests them on private property. If they make it to the public road before he gets there he can't touch them, because they aren't committing a local crime. Illegal entry isn't a crime, but a breach of the law.

Replies:   Dominions Son
Dominions Son

@Ernest Bywater

If what you said was true a cop couldn't arrest a person once they crossed a state border to be outside the state they committed the crime in.


They can't, not directly. The way it works is that the state the crime was committed in would have to make a formal request for extradition.

A judge in the state that the suspect is in would then issue an arrest warrant based on the request for extradition. The suspect has the opportunity to contest extradition. A hearing would then be held in the state where the arrest was made.

Thus, according to you, the locals can't arrest a person in Kentucky for kidnapping a person in Georgia and taking them to South Carolina.


Okay, this is quite a bit more complicated.

Kidnapping is considered an ongoing crime. The kidnapping isn't over until the victim is either released or killed.

In this case, the kidnapper would actually be guilty of kidnapping in both Kentucky and South Carolina as well as either Tennessee or North Caroline (he would have to travel through one of those states with the victim to get to either.

Additionally, by crossing state lines with the victim, the kidnapper is subject to direct federal jurisdiction and is guilty of kidnapping under federal law.

In this case, he could be arrested by South Carolina police without a request for extradition, or the FBI could arrest him.

Now if the kidnapper releases the victim in South Carolina then flees to Florida, then either the feds have to arrest him, or any one of three states would have to request extradition from Florida.

Generally speaking in these cases, it would be left to the FBI.

Ernest Bywater

@Dominions Son

Someone handed you a line of shit. The US constitution actually prohibits the federal government from conscripting local officials to enforce federal law.


I suspect you're thinking of the Posse Comitatus Act which is actually the reverse of that.

https://en.wikipedia.org/wiki/Posse_Comitatus_Act

Dominions Son

@Ernest Bywater

Because in the late 1800s a raft of laws were passed to give the states prime authority in regards to most crimes. Thus, for some crimes the state laws override.


If you are talking about the US, The Constitution (ratified in the 1790s) gives states primacy in most criminal matters. With a few exceptions, federal criminal law only applies if the crime is committed on federal land or if the commission of the crime crosses state lines.

The major exception is bank robbery (the feds always have jurisdiction in bank robbery cases).

The last decade or so, the feds have been pushing the envelope of what constitutes an interstate crime.

The DOJ/FBIs current position is that if any tool used in the commission of the crime ever traveled in interstate commerce (almost nothing you can buy in a store hasn't) then they have jurisdiction.

This theory has not really been tested by the courts yet, so it's hard to say how it will play out if someone with money to pay for a decent lawyer ever tries to fight it.

Dominions Son

@Ernest Bywater

I suspect you're thinking of the Posse Comitatus Act which is actually the reverse of that.


No, that is not what I am thinking of.

https://www.law.cornell.edu/supct/html/95-1478.ZO.html

JAY PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA, PETITIONER 95-1478 v. UNITED STATES RICHARD MACK, PETITIONER 95-1503

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.

Ernest Bywater

@Dominions Son

Unless the US has a very different set or rules on what the difference is, a regulatory program is not a crime. As I said in another post, the immigration laws, as such, are regulatory programs, so are those related to federal taxes. If that is all they have, the locals can't arrest them or hold them. However, once the person commits a local crime the local cops can arrest them for that and hold them until the feds arrive to enact their arrest on a regulatory program

However, some of the federal stuff is a crime and the locals can arrest you for that, but the list of those crimes is small. Not every breach of the law is a crime.

Replies:   Dominions Son
Ernest Bywater

Regardless of the fine points of what is or isn't a federal crime people can be arrested for by the locals, there is no doubt the locals can arrest illegals for committing crimes under local and state laws then check their immigration status and then hold them for the crime they were arrested for until the immigration authorities arrive to take them into custody for being illegal migrants. Some local law enforcement are doing this, while some local and state authorities are instructing their law enforcement to not check the immigration status of those they've arrested under local laws. Thus they protect the illegal migrants from the department of immigration. In doing so they leave the federal authorities no choice but to use heavier handed procedures to locate and remove the illegal immigrants.

Replies:   Dominions Son
Capt. Zapp

@Ernest Bywater

Posse Comitatus Act


Who are you calling a pussy communist?

Dominions Son

@Ernest Bywater

Unless the US has a very different set or rules on what the difference is, a regulatory program is not a crime.


Anything that can result in jail time is considered criminal.

However, some of the federal stuff is a crime and the locals can arrest you for that, but the list of those crimes is small. Not every breach of the law is a crime.

Again, no they can't. You are confused, because there is a lot of overlap in state and federal criminal law.

The majority of federal criminal law was passed to mirror state criminal law, but cover crimes on federal land where state and local law enforcement has no jurisdiction and cases where crimes occur across state lines.

99% of what is criminal under federal law is also criminal under state law in the majority of states.

Just stop. You don't know more about US law, particularly the junctions and interplay between state and federal law than the US citizens on this site.

Replies:   Ernest Bywater
Dominions Son

@Ernest Bywater

there is no doubt the locals can arrest illegals for committing crimes under local and state laws then check their immigration status and then hold them for the crime they were arrested for until the immigration authorities arrive to take them into custody for being illegal migrants.


They can, but the feds can not compel them to do so.

Even when they do check immigration status and notify the feds that they've detained an illegal immigrant, they can't hold them indefinitely just so the feds can come get them, they can only hold them as long as they would be able to hold anyone else on what ever state/local charges the person was arrested on.

This is why certain states tried to pass their own immigration crimes which were voided by the US Supreme Court. They were picking up illegals and notifying INS (Immigration and Naturalization Services), but INS under the Obama administration was refusing to come pick them up or just being slow about it, so the locals were forced to release them.

Replies:   Switch Blayde
Ernest Bywater

@Dominions Son

Anything that can result in jail time is considered criminal.


So you see non-payment of a debt or the non-payment of child support as a criminal act? There are many things you can be put in prison for that aren't crimes.

Get enough parking tickets or speeding tickets and you can go to prison, neither of them are crimes.

As to US law, I've probably research a lot more on it than a lot of non lawyers in the US, because a lot of the stories involve knowledge of various parts of the US legal systems and laws, and I've had to delve into them to make sure I get them right. While other areas like copyright have been for personal knowledge of what I can lawfully do or not do.

Ernest Bywater

The issue with the Sanctuary City local instructions is they're telling the local law to not check if the people they have arrested are legal citizens or legal residents - thus they deny the immigration people the knowledge to know they have them in custody, despite there being laws in place for decades about checking and notifying the INS.

The legal issue with the states and immigration were about where the states were passing laws to hold people solely on the lack of legal residence status, which they couldn't do. And the fact the feds could over rule them on them shows they weren't crimes.

Dominions Son
Updated:

@Ernest Bywater


So you see non-payment of a debt or the non-payment of child support as a criminal act? There are many things you can be put in prison for that aren't crimes.


No, actually in the US you generally can not be jailed for the failure to pay debts. We outlawed debtors prisons a long time ago.

In the US, if you can be jailed for a violation, you are entitled to trial by jury under criminal law procedures, no exceptions.

ETA: Even with contempt of court, they can't hold you for more that a few weeks on civil contempt. Beyond that they have to bind you over for trial on charges of criminal contempt, for which you are entitled to a trial by jury.

Replies:   docholladay
Switch Blayde

@Dominions Son

This is why certain states tried to pass their own immigration crimes which were voided by the US Supreme Court. They were picking up illegals and notifying INS (Immigration and Naturalization Services), but INS under the Obama administration was refusing to come pick them up or just being slow about it, so the locals were forced to release them.


That's what happened in Arizona.

StarFleet Carl
Updated:

@Ernest Bywater

Get enough parking tickets or speeding tickets and you can go to prison, neither of them are crimes.


Actually Ernest, you're sort of incorrect, they both are crimes - in most states. One of the joys of having 50 states is that each state can and does have it's own law. (They're also civil infractions, usually payable by a fine, which is where people get confused.)

Illegal parking is a traffic violation (either a minor or petty offense, up to a misdemeanor). Speeding can range from a traffic violation (again, a minor or petty offense) all the way up to reckless driving and endangerment.

FWIW, my college degree is in criminology, so my field of study included law enforcement, corrections, the judiciary, as well as psychology. I get such interesting looks when I tell people that I've been on death row at the Terre Haute Federal Prison ... (That's where I did my corrections internship - that's the place they put Timothy McVeigh to death for the OKC bombings.)

StarFleet Carl

@Rambulator

Please note that just because these laws are 'on the books' doesn't mean that they're valid anymore, due to assorted rulings by the Supreme Court. It just means that these sections of United States Code don't disappear when they're ruled against.

For example, a lot of people like to quote 18 USC 700. That's great - Texas v Johnson and United States v Eichman said no, it's free speech. Doesn't mean that you might not get your face punched if you do it in front of me, but it's free speech.

Replies:   REP
REP

@Dominions Son

A video clip of Trump saying something isn't really a quote.


I would say it is a quote when the media repeats what he says in print.

I avoid listening to Trump to the maximum extent possible for I believe Trump is a liar ... I don't like liars ... I don't trust anything a liar says. They have no credibility in my book. Thus, I cannot personally state that the media's printed comments about what he said are precisely the words that the videos reflect coming out of his mouth.

REP

@Ernest Bywater

How long since anyone has seen an unbiased media report on any political issue


A very long time, EB.

That is because we have a "free" press that can print what they believe is the truth about political issues. Our problem is that the owners of the various media outlets differ in their beliefs. Thus people who hold a different view than what one outlet prints say that the media outlet is lying.

Replies:   imsly1
sejintenej

@Ernest Bywater

Heavy handed enforcement could make the legal migrants less willing to come.

If the people and the state authorities work with the federal authorities to identify and remove the illegals, there's no reason for the immigration people to be heavy handed.

Just like them getting heavy with Mohammed Ali's son who tried to return to the USA!!! It looks as if they singled him out because he doesn't have a Caucasian name.

sejintenej

Today's USA news
1 BBC and CNN refused admittance to Trump press conference, apparently because he doesn't approve of their broadcasts.
2 Boeing (yes - the Seattle manufacturer!) announced today that it is taking over the parts manufacturing previously carried out by outside contractors and will manufacture in the UK, not the USA.

Replies:   Not_a_ID
REP

@Ernest Bywater

then kicking out illegals without work visas shouldn't affect them,

The problem with enforcement of Trump's immigration policy is that Trump doesn't care if they have work visas and are in the country legally. His Executive Order banned everyone from entering the country if they come from certain countries and were not US citizens. Many of the people he banned had a legal right to enter the country.

His immigration sweep to roundup illegals is nothing more than an extension of his apparent policy of If you aren't a citizen of the US, then you are to be deported regardless of your visa status. The really bad part of that is What is his next step? Will he start revoking the citizenship of people who immigrated to the US and followed the process necessary to become citizens?

If you compare his actions during his campaign and since he became President, you will find a very strong correlation to Hitler's activities during the 1920's and early 30's. To me that is the scariest part about Trump.

Replies:   imsly1
REP

@Ernest Bywater

neither of them are crimes.


Bullshit EB. Violation of a law is a crime. There are Big crimes and Little crimes. The bottom line is they are all crimes.

When the posted speed limit is 55mph and I drive at 60mph, I am committing a crime. The police may not cite me for committing that crime, but it is still a crime. It is the act of violating a law that makes an action criminal, not the enforcement of the law.

Replies:   Ernest Bywater  Grant
Switch Blayde

@Ernest Bywater

How long since anyone has seen an unbiased media report on any political issue


Since Walter Cronkite?

I saw the beginning of a CNN news show on why the U.S. is so polarized. They showed how the Congress voted on issues back in the past. It was not the Party vote you see today.

The show said it all started with the media — Fox News to be exact. Fox was biased towards the Right. And a second Conservative one followed (don't remember which). To counter that, MSNBC and another one did the same towards the Left. So the news that was reported was biased which led people who watch the news to become polarized which made their elected officials polarized.

I don't know if it's true, but it makes sense.

Replies:   Not_a_ID  Not_a_ID
REP

@StarFleet Carl

It just means that these sections of United States Code don't disappear when they're ruled against.


True of both Federal and State laws. In most states there are many laws that are no longer deemed valid and not enforced, but they are still on the books. The Blue Laws addressing what you can and cannot do on Sundays are perfect examples of these laws.

Not_a_ID

@sejintenej

1 BBC and CNN refused admittance to Trump press conference, apparently because he doesn't approve of their broadcasts.


If by conference you mean briefing, and by "refused admittance" you mean they invited three additional networks to attend a briefing that is traditionally only attended by one (broadcast TV) network at a time.

Replies:   Switch Blayde
Not_a_ID
Updated:

@Switch Blayde


The show said it all started with the media — Fox News to be exact. Fox was biased towards the Right. And a second Conservative one followed (don't remember which). To counter that, MSNBC and another one did the same towards the Left. So the news that was reported was biased which led people who watch the news to become polarized which made their elected officials polarized.

I don't know if it's true, but it makes sense.


It's a convenient scapegoat. The media was already slanted strongly to the left by the 1990's, and getting progressively more so as the pre-babyboomers started to retire. Fox News was a response to that.

So if you want to blame anything, blame LBJ, the Vietnam War, and the subsequent generations of left-wing activists that it helped create within the borders of the U.S.

Ones that were more about the emotional aspect rather than the rational ones, and never looked back.

Ernest Bywater

@REP

Bullshit EB. Violation of a law is a crime.


If that were so every civil court case is about a crime. Slander would be a crime, so would breach of contract. Both of those break laws.

Taking that approach the claim every illegal migrant is a dedicated criminal committing crimes each day they break the immigration laws.

Replies:   Dominions Son  REP
Switch Blayde

@Not_a_ID

If by conference you mean briefing, and by "refused admittance" you mean they invited three additional networks to attend


What I heard on CNN (and they were one of those not invited and are very biased against Trump), the WH Press Secretary, instead of his daily press conference where seats are assigned to specific reporters, he held it in his office or some more secluded place and didn't invite everyone.

Dominions Son

@Ernest Bywater

If that were so every civil court case is about a crime. Slander would be a crime, so would breach of contract. Both of those break laws.


It's complicated in the US. Some things can be both civil and criminal.

There is statutory laws and common law. Common law is created by the courts where there are not statutes.

There is no common law at the federal level. However most of the US states adopted British common law when they first became states, the one exception is Louisiana which stuck with Napoleonic law.

Common law is strictly civil. The US does not allow common law crimes. Most tort actions, such as slander are common law.

A few states have tried to create criminal slander laws, however, they have generally been shot down by the courts on 1st amendment grounds.

Only the government can prosecute a criminal case.

There are however, statutory laws that carry both civil and criminal penalties.

If the law caries only financial penalties, it can be civil or criminal depending on how the law is written. However, if jail/prison time is involved it is always criminal. Some laws allow the government the choice of bringing a civil action limiting the penalties to fines or bringing a criminal action with potential for imprisonment.

Some laws allow a private right of action on the civil penalties.

As an example that doesn't allow a private right of action but can be either civil or criminal take tax evasion. The government can bring a civil action to size assets and recover the taxes owed, or they can bring a criminal action and put you in prison.

Criminal actions on tax evasion are rare and generally only brought when the amount of back taxes owed is very large.

Replies:   Ernest Bywater
Ernest Bywater

@Dominions Son


It's complicated in the US. Some things can be both civil and criminal.


DS,

I'm well aware of the legal differences between the various laws etc. and some are crimes and some aren't. However, my post you're quoting was in response to the post by REP where he claimed breaking any law was a crime. He is the one who needs to read this post of yours.

Replies:   Dominions Son  REP
Dominions Son

@Ernest Bywater

I'm well aware of the legal differences between the various laws etc. and some are crimes and some aren't.


You need to re-read my post. Some laws civil and some are criminal, but some are both.

REP

@Ernest Bywater

If that were so every civil court case is about a crime. Slander would be a crime, so would breach of contract. Both of those break laws.


The Merriam-Webster on-line dictionary defines crime as:

1. an illegal act for which someone can be punished by the government; especially a gross violation of law

2. a grave offense especially against morality

Civil courts are government institutions that punish people for violating laws. Many offenses against morality are considered civil offenses. So, civil court cases are about punishing people for violation of the laws and are thus crimes.

Replies:   Dominions Son
REP

@Ernest Bywater

He is the one who needs to read this post of yours.


I did read DS's post Ernest after I responded to your post.

There is nothing in DS's post that states violating a civil law is not a crime. DS's post was about the differences between civil laws and criminal laws, who can try the violations of the law, and penalties if found guilty of breaking the laws.

The definition of a crime does not differentiate between the law, civil or criminal, that is being broken. You are the one who is making that distinction.

Dominions Son

@REP

The Merriam-Webster on-line dictionary defines crime as:


Neither of those definitions are used by courts of law.

Criminal and civil cases use different procedures and different standards of proof.

"Civil courts are government institutions that punish people for violating laws."

No, mostly that's not what they do. While punitive damages are available in some cases, the primary purpose of a civil case is to make the plaintiff (usually not the government) whole, to compensate the plaintiff for some injury caused by the defendant.

Most civil cases (there are exceptions) do not involve laws passed by a legislative body, but causes of action recognized by the courts at common law.

Replies:   REP
REP

@Dominions Son

There is an accepted definition of crime as used by the general public and then there is its legal definition. I was discussing things here in the Forum, not a court of law.

The procedures and standards of proof have no bearing on whether breaking a law is a crime.

Setting aside your use of plaintiff twice, I am quite certain that if you were the defendant in a case and lost, you would feel that the monetary compensation you had to pay to the plaintiff was punishment for your violating a civil law. The terms for violating a civil law seem to be compensation or punitive damages. Punishment seems to be a word used to imply a prison term for violating a criminal law.

Common law is a term for laws that were passed (or made) by a legislative body (or person) in the past, and are recognized by the courts as being currently valid laws.

Dominions Son

@REP

Common law is a term for laws that were passed (or made) by a legislative body (or person) in the past, and are recognized by the courts as being currently valid laws.


No, it it not. Common law is a term for laws that were made by the courts themselves.

1.
the system of law originating in England, as distinct from the civil or Roman law and the canon or ecclesiastical law.
2.
the unwritten law, especially of England, based on custom or court decision, as distinct from statute law.
3.
the law administered through the system of courts established for the purpose, as distinct from equity or admiralty.

http://www.dictionary.com/browse/common-law

Laws made by legislative bodies are statutory law, no matter how far in the past.

Replies:   REP
REP

@Dominions Son

You made a good start on it DS. I agree that common law was codified by the early English court system.

However, as indicated by the following link, a large portion of those customs and court decisions on which common law is based were the direct result of the decisions and directions of the kings, church officials, and other nobles who ruled England. These individuals decided the customs to be followed and the laws to enforce within their realms. The courts codified the direction of those individuals and that is how common law came into being.

http://avalon.law.yale.edu/medieval/saxlaw.asp

Replies:   Dominions Son
Grant

@REP

Bullshit EB. Violation of a law is a crime. There are Big crimes and Little crimes. The bottom line is they are all crimes.

Violation of criminal law is a crime. Violations of civil law are torts.

Replies:   REP
Dominions Son

@REP

You made a good start on it DS. I agree that common law was codified by the early English court system.


You don't get it.

1. The common law isn't fixed. US state courts continue to develop their common law today. There are common law causes of action available in US state courts that were never recognized by by the early English courts.

2. No, courts don', in fact they can't, codify common law. To codify common law means that a legislative body transforms common law into statutory law.

Replies:   REP  sejintenej
REP

@Grant

Violations of civil law are torts


As I said to DS, I used the general term, not the legal definitions. Tort is the legal term for a violation of civil law.

Not_a_ID

@Dominions Son

No, that is not what I am thinking of.

https://www.law.cornell.edu/supct/html/95-1478.ZO.html

JAY PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA, PETITIONER 95-1478 v. UNITED STATES RICHARD MACK, PETITIONER 95-1503


That would only prevent "the Feds" from forcing local LEO's to enforce federal laws. That says nothing about local law enforcement voluntarily enforcing Federal Laws.

For that you have the Arizona case, in which case, it appears that the State does have to right to enforce federal law.... So long as the Federal Government doesn't say otherwise(because oh hey, supremacy clause). Which in that specific case, it did as the Obama Admin objected.

The Arizona ruling is really weird in many ways.

Replies:   Dominions Son
Not_a_ID

@Switch Blayde

I saw the beginning of a CNN news show on why the U.S. is so polarized. They showed how the Congress voted on issues back in the past. It was not the Party vote you see today.


Ont thing I forgot about, and this probably more accurately reflects the Modern Reality in the United States. This was a change pioneered by Newt Gingrich in 1994. The RNC, as well as the assorted House/Senate "Campaign Committees" played a much more central and controlling role in the distribution of funding in that election cycle for the Republicans.

Which created a rather fundamental shift in how the financial side of the politics worked. The Congressional delegates used to go back to their home state to get financial backing from their district(plus whatever "outside interests" were inclined to kick money their way). As such, the people in Congress were more attentive to their districts, as that's where their campaign funds came from.

After 1994, their primary source of funding often filters through Washington DC. Want that money? Better toe the party line, or else.

Rambulator

Gosh, I just started this about some of the laws. Especially about 709 where it said that the FBI couldn't be written in anything without written permission.

Dominions Son

@Not_a_ID

For that you have the Arizona case, in which case, it appears that the State does have to right to enforce federal law.... So long as the Federal Government doesn't say otherwise(because oh hey, supremacy clause).


The Arizona ruling is really weird in many ways.


You think it's weird because clearly you don't understand what the case was about.

It was never about Arizona official enforcing federal law.

Arizona created a state law that said it was a state crime for people who entered the US in violation of federal law to be in Arizona.

Arizona's police only acted pursuant to that state law, at no time were they enforcing or even claiming to enforce federal law.

REP

@Dominions Son


You don't get it.


You are right, I don't get it.

1. As far as the courts creating new common laws, you will have to provide a few specific examples.

I am aware that courts interpret laws that were made by legislative action. Those interpretations are essentially how a judge applied a law created by a legislative body to a specific set of circumstances. Lawyers frequently argue the validity of judges' application of the law to the same or similar cases; the judge of a new legal action then decides if the prior judges' rulings are appropriate to the current case. The manner in which the prior and current judges rule is not the creation of a new law. So far, I am not aware of the court creating a new law that has no relationship to a law passed by legislative action.

2. In my response to your post regarding early English law, my use of the term codify may not be the best term; so I will reword it for you. During the Medieval period the kings, church officials, and other noble stated these are the rules in my realm, and the courts documented and enforced their decrees as laws. The laws the courts documented have been handed down and are commonly referred to as early English common law. The customs of the day sometimes made their way into early English law in a similar fashion.

Replies:   Dominions Son
Dominions Son
Updated:

@REP


As far as the courts creating new common laws, you will have to provide a few specific examples.


Wrongful life, first recognized by the California state courts in 1982

http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1962&context=nlr

Specific examples are difficult to find, because there are no legal sources that list causes of action by the dates they were first recognized by the courts.

Replies:   REP
REP

@Dominions Son

Wrongful life


In general, wrongful life lawsuits are based on torts brought due to violations of the medical malpractice laws.

The case of Turpin v Sortini that you cited makes it clear that the legal action filed by the parents of Joy Turpin was related to existing civil laws.

This is not a case of a new law. This case is about a doctor failing to properly diagnose a child as being deaf from birth due to a hereditary disease. Because the parents were not informed that subsequent children were likely to also be deaf, they decided to have a second child. Their legal action is based on them indicating if they had been informed of the facts, they would not have chosen to have additional children.

imsly1

@Dominions Son

Oh the 9th Circus.... the worst joke on Liberty and the Constitution

Replies:   StarFleet Carl
imsly1

@REP

I have no problem if It's the Truth, but Dan Rather and Brian Williams reporting is way more common than Rare .. CNN and MSNBC are notorious for inventing and misleading news than telling the Truth.. The National Enquirer is a Better NEWS source and more Reliable than either one of those two..
I quit watching or believing any story they report A Decade is so ago....they have ZERO Integrity as Media

imsly1

@REP

Scarier than Obama being a Jihadist??
Wow...He did everything in his power to trash the Constitution and destroy America...

Replies:   Grant
Switch Blayde
Updated:

This comment on the media is not directed to anyone in particular, and doesn't have anything to do with the Right or Left or even politics so it might make the point of what the media turned into.

I used to enjoy watching "60 Minutes." I always thought it was investigative reporting and insightful. I believed without question what they told me.

Then they did an episode on how the city of Scottsdale, AZ was cheating U.S. taxpayers. It was 100% false. I knew because I lived in Scottsdale.

It doesn't rain a lot here, but when it does it pours. The result is flooding. I once came home from a business trip and the taxi driver almost couldn't find a way to get me home from the airport due to the flooded streets. Another time I hit water with my Camaro that broke the battery cables off the battery (okay, I was driving too fast, but I was new to the area and didn't understand the dips in the roads for water flow).

So how did Scottsdale fix the problem? They built water collection areas to keep the streets unflooded. But it would have been stupid to leave that land unused most of the year so they built parks and golf courses to collect the water. "60 Minutes" reported they used your tax money to build parks and golf courses. No mention of all the tax money that had been and would have been collected for flood damage.

So the media didn't report the news. They made up a story for sensationalism because that improved their ratings. It's no different with the current media. Even Ted Turner said CNN is entertainment now, not the news.

Replies:   Grant  StarFleet Carl
Grant

@imsly1

Scarier than Obama being a Jihadist??

Wow...He did everything in his power to trash the Constitution and destroy America...

If you keep saying it, people will believe it, but it still doesn't make it true.

Replies:   Capt. Zapp
Grant

@Switch Blayde

It's no different with the current media. Even Ted Turner said CNN is entertainment now, not the news.

And that is the problem.

People say they want the truth, but then when they receive it, they choose to ignore it if it doesn't fit their perceptions of the World.
So the media has changed to meet the demands of the consumer- no longer do many of them provide factual news, they provide what their reader/viewer expects to read/see as if they don't, they lose their income.

Profits are more important than the facts or truth.

Ernest Bywater

@REP

There is an accepted definition of crime as used by the general public and then there is its legal definition. I was discussing things here in the Forum, not a court of law.


While I, and others, were discussing them from the point of view of how the courts and the laws see them.

I suspect this subject has just about run its course and should be left to wither on the vine.

Capt. Zapp

@Grant

If you keep saying it, people will believe it, but it still doesn't make it true.


Likewise, if you keep denying it, it doesn't make it any less true.

StarFleet Carl

@imsly1

Oh the 9th Circus.... the worst joke on Liberty and the Constitution


Isn't that the truth?

One thing we discussed in classes - and mind you, this was more than 30 years ago - was how many court decisions seem to involve California or New York. What was interesting for a comparison / contrast was how those courts interpreted things versus how the courts in Indiana ruled in similar cases.

What was interesting was that when most cases actually went to the the SCOTUS (at least at that time), more rulings were upheld that used the Indiana decisions in support than the California decisions. This was due to Indiana courts using the Constitution in their rulings, while California courts tended to use other sources (including laws from other countries).

StarFleet Carl

@Switch Blayde

I used to enjoy watching "60 Minutes." I always thought it was investigative reporting and insightful. I believed without question what they told me.


Not quite the same thing for me, but I was in B&N for our Friday evening book reading time (yeah, that was my wife's and I idea of a fun evening, go to B&N for three hours, drink a coffee, and relax reading a book) and I saw this book by Bernarnd Goldberg about bias in the media. So I read it.

Then I decided to actually check things out. Flip through all the channels and see how they were reporting on a story, see how the facts of something were actually reported, and see what words were used in the reporting, if there were 'slant' words in the reporting. And then I'd also see what print (doing internet searches) said about the event, especially if it was, say, something that had happened in Des Moines, see was the Des Moines Register said versus what was reported as well.

After about three months of that, I had compiled a long list of events where the bias and slant was completely obvious. A simple example was a rainstorm that ended up causing a river to flood. Fox News (as opposed to Fox Opinion - the two are different) and ABC News tended to just report the facts - hey, there were torrential downpours that caused a river to overflow the levees. The levees in one portion collapsed, allowing a few thousand acres of farmland to flood. That's pretty much the facts.

CBS/NBC/CNN/MSNBC would report, for the same event, global warming caused torrential downpours that caused a river to flood. Negligence in maintaining the levees allowed them to fail, spreading destruction as farmlands covered in dangerous chemicals flooded and those chemicals ended up in the water going downstream.

Meanwhile, the Des Moines Register said the same as Fox and ABC, with the additional explanation that a water levels this high hadn't been seen in more than a hundred years, and the levee that failed had never been intended to hold back this much water.

docholladay

@Dominions Son


@Ernest Bywater

So you see non-payment of a debt or the non-payment of child support as a criminal act? There are many things you can be put in prison for that aren't crimes.

No, actually in the US you generally can not be jailed for the failure to pay debts. We outlawed debtors prisons a long time ago.

In the US, if you can be jailed for a violation, you are entitled to trial by jury under criminal law procedures, no exceptions.

ETA: Even with contempt of court, they can't hold you for more that a few weeks on civil contempt. Beyond that they have to bind you over for trial on charges of criminal contempt, for which you are entitled to a trial by jury.




The crime is failure to follow a court order not the non payment of the child support or parking fines. Disobeying a court order is considered to be a crime. In fact failure to obey an order from a police officer (regardless of local or federal) is considered a criminal act. Its funny how its legal for them to make an illegal U-turn when they are not under an emergency situation, yet the same turn for the average citizen is a crime and can be ticketed for a court ordered fine. The cop can not be ticketed however even by an average citizen.

Replies:   Dominions Son
Dominions Son

@docholladay

The crime is failure to follow a court order not the non payment of the child support or parking fines. Disobeying a court order is considered to be a crime.


It's called contempt of court (which I mentioned in the comment you are replying to) and it can be civil or criminal. You can't be held in custody for civil contempt for more than a few weeks.

If the judge wants to charge you with criminal contempt, then he has to turn it over to a prosecutor and you get a full criminal trial.

Criminal contempt of court charges are very rare.

yet the same turn for the average citizen is a crime and can be ticketed for a court ordered fine.


A ticket is civil not criminal. If it were criminal you would be entitled to a trial by jury before the fine could be levied.

Replies:   docholladay
docholladay

@Dominions Son

A ticket is civil not criminal. If it were criminal you would be entitled to a trial by jury before the fine could be levied.


The point of that portion was the cop could not be ticketed so s/he does not have to obey the same laws as the average citizen. This puts them above Law since the citizen has no legal way to ticket that cop for the same violation which they would be ticketed for.

Replies:   Dominions Son
Dominions Son

@docholladay

The point of that portion was the cop could not be ticketed


As a legal matter, technically, they could be ticketed by another cop. However, other cops will generally look the other way for a fellow cop. This is corruption, not legality.

Replies:   docholladay  Not_a_ID
docholladay
Updated:

@Dominions Son

A citizen can not legally ticket a cop for any action. That places the cop above the law as far as the citizen is concerned. The same way that Atlanta Police Detective "I. A. Thompson" was not charged with child rape and abuse even after being caught in the F**king act. He was only forced to retire early and all of his records were sealed. Meaning his victims could not even file civil charges against the asshole. Definitely placed him above the damned law. I wonder why I have zero respect for the police.

edited to add: He was allowed to draw his pension for being such a great cop. His name, address and phone was hidden from any inquiry by the public however.

Dominions Son

@docholladay

True, but it's the result of corruption not any sort of legal immunity.

Replies:   docholladay
docholladay

@Dominions Son

Three guesses as to why I always cheer whenever I hear of a cop being killed. I don't feel any pity for the cop.

Not_a_ID

@Dominions Son

As a legal matter, technically, they could be ticketed by another cop. However, other cops will generally look the other way for a fellow cop. This is corruption, not legality.


Although it has been known to happen across agency lines, albeit rarely. I remember one a few years back that made national news out of Florida because of the stink the other agency(the one the ticketed cop belonged to) raised over the whole thing.

I forget if it was a city cop ticketing a county or state trooper for a traffic violation--in a marked cruiser no less, or if it was a county cop ticketing a state trooper. But yeah, "Local Cop tickets police officer driving cruiser belonging to law enforcement agency with wider jurisdiction" and the "higher agency" not being pleased about it.

They had some rather poor cooperation with each other for a while because of that, and I think they ticketed each other a few more times before all was said and done.

docholladay

I did take revenge in a manner of speaking. About 30 years ago, I heard of a search warrant being applied for a particular location by legal agencies. I did my good deed and contacted the property owner (the one they were after), told him of the pending warrant. He relocated all the items that were of an illegal nature to another location.
When the warrant was served nothing illegal was found at all. I knew what they were looking for as well and it had been stored in that property for a few days.

sejintenej

@Dominions Son

You don't get it.

1. The common law isn't fixed. US state courts continue to develop their common law today. There are common law causes of action available in US state courts that were never recognized by by the early English courts.

2. No, courts don', in fact they can't, codify common law. To codify common law means that a legislative body transforms common law into statutory law.


You are mixing the definitions in two countries.

R E P's definition is pretty close to what I learned when I was studying UK law. I do agree with your 2nd statement.
It can be argued in a UK court that "it has always been understood that ........ and this understanding has been accepted by the courts in the cases X v Y, Y v Z etc.
Yes, this is coming very close to jurisprudence but the difference is that in jurisprudence the court has very specifically and without reference to any thought of common law (if it so referred) itself decided on what is right in the particular circumstances (call it common sense). What we call jurisprudence seems close to your statement 1. It is relevant that the word "jurisprudencia" is applied to this same concept in at least Latin American country
It is MY view that UK common law can extend to what we call "practice of the trade" where certain rules are imposed by a trade or profession on those involved in it (an idea originally imposed by the Guilds in London)

Replies:   Dominions Son
sejintenej

@Not_a_ID

I forget if it was a city cop ticketing a county or state trooper for a traffic violation--in a marked cruiser no less, or if it was a county cop ticketing a state trooper. But yeah, "Local Cop tickets police officer driving cruiser belonging to law enforcement agency with wider jurisdiction" .

We have had some almost similar cases in the UK involving "parking offences". One was ticketing a police car when the two officers were helping an injured person yards from their car. The other was a string of ambulances at a collision or similar.
Parking tickets are issued by employees of the local council who are not police officers or equivalent, but the tickets are themselves effectively fines. Upon appeal the local council can decide to rebate the tickets, repaying the fines paid

docholladay

As an example all Law enforcement officers are trained to announce themselves first and pause before entering any residence(I know why). They are also trained to announce themselves as Cops of whatever flavor when stopping a person from behind. Basically the same reason although there is a difference. In both cases its possible for them to be killed or otherwise harmed with no criminal charges possible to the party doing the harm. A little loophole in the laws which can be used against them in court. (LOL)

Dominions Son

@Not_a_ID

Although it has been known to happen across agency lines, albeit rarely.


Usually in cases where there is some animosity between two agencies with overlapping jurisdictions.

Dominions Son

@sejintenej

You are mixing the definitions in two countries.


No, but REP might be. I was speaking strictly to the concept of Common Law as it is used in US courts.

Replies:   REP
REP

@Dominions Son


No, but REP might be.


What I actually was responding to was your reference to early English law in item #1 where you stated, "the system of law originating in England, as distinct from the civil or Roman law and the canon or ecclesiastical law."

Replies:   Dominions Son
Dominions Son

@REP


What I actually was responding to was your reference to early English law in item #1 where you stated


No, that was not me stating anything. That was a direct quote of the definition of "common law" from dictionary.com.

My only statement in regards to English common law is that most US state adopted it directly or indirectly by adopting common law from an older state in order to jump start their state courts.

However, that body of US common law has not since remained some static reflection of ancient English common law.

Replies:   REP
REP

@Dominions Son


No, that was not me stating anything.


Since you wish to split hairs, that is true.

What you did was cite three definitions applicable to common law in support of your contention that the courts make laws. The first two items listed addressed English laws, not US laws, which is probably the reason for Sejintenej's reference to your mixing the laws of two countries. The third item addressed courts not common laws so it is only loosely related.

The first two definitions appear to be a references to early English law; thus, I replied to your citation of early English law.

As to the issue of the courts making laws, I have still seen no proof of that contention. What I suspect is that people have written articles about the courts making laws and based their assertions on a misunderstanding of the courts' application of existing laws to circumstances that had not been previously raised in a court (e.g., Wrongful Life suits).

Dominions Son

@REP

As to the issue of the courts making laws, I have still seen no proof of that contention.


Perhaps you will accept these:

The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.

http://legal-dictionary.thefreedictionary.com/common+law

Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge. As a result, judges have an enormous role in shaping American and British law. Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides on the facts of the case. The judge then determines the appropriate sentence based on the jury's verdict.

https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html

Do note that the second quote is from the web site of the University of California at Berkeley Law School.

The bold is mine in both quotes.

Replies:   REP
Ernest Bywater
Updated:

@REP


As to the issue of the courts making laws, I have still seen no proof of that contention.


Depends on how you define things. Every time a court at any level makes a decision on a case before it that decision becomes part of the body of law and establishes what they call a precedence which is looked at and often used as the direction the next time that law is used in a case before the court. Also, when a case is appealed to a higher court the decision by the higher court then becomes the precedence for all the court below it within that court's hierarchy, and may be referred to by other courts as well.

Although courts usually look at and use a precedence of other courts at their level they aren't obliged to use them unless the precedence is from a higher court within their hierarchy. This applies to civil cases, regulatory cases, and criminal cases.

edit to add: When someone takes a person to court, at any level, and the court makes a decision on something that is not covered by a statute law that decision becomes part of the common law for that court and those at the same level in the same jurisdiction.

Replies:   Dominions Son  REP
Capt. Zapp

@Not_a_ID

Although it has been known to happen across agency lines, albeit rarely. I remember one a few years back that made national news out of Florida because of the stink the other agency(the one the ticketed cop belonged to) raised over the whole thing.


We had an incident like that last year. One of the local town cops pulled over an out-of-state cop that was driving IN EXCESS OF 25 MPH over the posted limit. The offender's department raised a big stink about 'police brotherhood' or some such crap as to why he should not have been ticketed. Most of the community had nothing but praise for the local officer.

Dominions Son

@Ernest Bywater

Every time a court at any level makes a decision on a case before it that decision becomes part of the body of law and establishes what they call a precedence which is looked at and often used as the direction the next time that law is used in a case before the court.


When someone takes a person to court, at any level, and the court makes a decision on something that is not covered by a statute law that decision becomes part of the common law for that court and those at the same level in the same jurisdiction.


Again, things are not that simple in the US, trial court decisions are only binding as to the case and parties before them when the decision was made.

Only an appellate court decision can create precedent that is binding on other cases or other courts, and even then it's not binding on other appellate courts at the same level.

For example, at the federal level the trial courts are called District courts.

The Federal appellate courts are the Circuit courts. There are 13 circuit courts. Circuits 1 through 11 have geographically defined jurisdiction (each circuit covers a set of states), the DC circuit which has geographic jurisdiction limited to the District of Columbia, and the Federal Circuit which has sole appellate jurisdiction nationally over specific areas of law, the primary area being patent law.

http://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf

The 7th circuit covers Wisconsin, Illinois and Indiana. A decision by the 7th circuit court is binding only on Federal district courts and state courts located in the three states listed above.

The 11th circuit covers Alabama, Georgia and Florida. A decision by the 7th circuit is not binding on the 11 Circuit court nor on any lower courts in it's jurisdiction.

sejintenej

@REP

As to the issue of the courts making laws, I have still seen no proof of that contention. What I suspect is that people have written articles about the courts making laws and based their assertions on a misunderstanding of the courts' application of existing laws to circumstances that had not been previously raised in a court (e.g., Wrongful Life suits).

It seems that there may be some misunderstanding over the extent of the word "Law"

Over here it is split:
Legislative law: that passed by Parliament together with orders, directives etc issued by appointed ministers in accordance with clauses in the legislative laws
Jurisprudence or case law: decisions made by courts but not passed into legislative law
Common Law as discussed
"Practice of the Trade" which I have mentioned before.

Local councils can pass regulations as allowed in the relative legislative law

No body other than Parliament can pass full legislative laws. As an example in the case of IATA v British Eagle the courts decided that a company is not allowed to charge or pledge its bank credit balances. This was based on a highly technical interpretation of the relative Acts of Parliament. For a decade or more courts followed this ruling (which caused me headaches!!!) Come the problem of BCCI (Bank of Crooks and Conmen International) the courts decided that the IATA ruling was technically correct but practically illogical and turned the decision around in "re: BCCI N°6". That was an application of case law

Replies:   REP
StarFleetCarl

@docholladay

A citizen can not legally ticket a cop for any action. That places the cop above the law as far as the citizen is concerned.


No, but you COULD place the police officer under citizen's arrest IF you are completely and 100% in the right. The problem is that police officers driving fast or seeming to disobey the speed / traffic laws could be that they are responding to a call and IN THEIR JUDGEMENT do not need flashers or lights. Perhaps they've even been told on the radio, no flashers. YOU don't know that.

And yeah, I lost all respect for you completely with your other comment.

I always cheer whenever I hear of a cop being killed


Are there bad cops? Sure. I'm not saying there aren't. I'm just saying that anarchy, or cheering for like what happened in Dallas recently, is the way to go.

Replies:   docholladay
REP
Updated:

@Dominions Son


Perhaps you will accept these:


As you said earlier, we are discussing US Common Law, not the common law of England or any other country, and specifically how US Common Law is formed and evolves via court action.

The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.


case law

n. reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents. These interpretations are distinguished from "statutory law" which is the statutes and codes (laws) enacted by legislative bodies, "regulatory law" which is regulations required by agencies based on statutes, and in some states, the Common Law, which is the generally accepted law carried down from England. The rulings in trials and hearings which are not appealed and not reported are not case law and, therefore, not precedent or new interpretations. Law students principally study case law to understand the application of law to facts and learn the courts' subsequent interpretations of statutes.


http://legal-dictionary.thefreedictionary.com/Case+Law

I'm happy with your above citation DS. However as defined by the definition of Case Law, (I added the italics and bold) the difference between Case Law and Legislative Enactments is that Legislative Enactments are the statutes and codes enacted by legislative bodies. Case law is how the courts (i.e., judges) applied those statutes and codes to a specific set of circumstances, and Case Law requires an appeal to a higher court. The published ruling of that higher court becomes precedent or a new interpretation of the Legislative Enactment. Ergo, Case Law is nothing more than the interpretation of Legislative Law. It is not new laws that have no relation to Legislative Law, which is my interpretation of your comment about making new laws.

I have no problem with the second definition you cited for it supports what I have said. To save space, I have only repeated the bolded portion of your second definition.

it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports.



Per my statements regarding your first citation, the above sentences that you bolded are defining Common Law as based on precedents. Precedents, as defined in the Case Law definition, are the decisions made by judges (i.e., appeals court judges) regarding legal cases appealed to a high court. The rulings define whether the decision made by a judge in applying Legislative Laws to a set of circumstances were appropriate in terms of the specific statutes and codes cited in the case being appealed.

edited to add omitted word

Replies:   Dominions Son
REP

@Ernest Bywater

Depends on how you define things.


See my response to DS.

the court makes a decision on something that is not covered by a statute law


As I said earlier to DS, you will have to cite specific cases of court decisions not covered by statute law.

REP

@sejintenej


Over here it is split


No problem with your comment sejintenej, but the discussion between DS and I is in regard to US law. The definitions you provided appear to conflict with the definitions of the same or similar terms used in the US.

Dominions Son

@REP

The rulings define whether the decision made by a judge in applying Legislative Laws to a set of circumstances were appropriate in terms of the specific statutes and codes cited in the case being appealed.


Not always. There isn't any statutory law underlying the majority of tort actions such as slander and personal injury cases.

Replies:   REP
REP

@Dominions Son

There isn't any statutory law underlying the majority of tort actions


Considering the number or tort actions filed each year it should be easy for you to cite a couple that have no relationship to statutory law.

Replies:   Dominions Son
Dominions Son
Updated:

@REP

No it isn't, First I don't have access to a law library.

Second there is a big difference between an individual case having no relation to statutory law and whether or not the underlying cause of action is defined by statutory law.

The reason for this is that there is statutory law defining court procedure, rules of evidence, statutes of limitations, and in some states limits on damages without regard to the cause of action.

ETA: I mentioned slander in my previous comment. There is no statutory law defining slander, libel or defamation as causes of action in US law. They are based entirely on common law.

https://en.wikipedia.org/wiki/United_States_defamation_law

Again the majority of tort actions are like this. There is statutory law that controls peripheral issues in the case, but the cause of action itself is not defined by statute.

Replies:   REP
REP

@Dominions Son

ETA: I mentioned slander in my previous comment. There is no statutory law defining slander, libel or defamation as causes of action in US law. They are based entirely on common law.

https://en.wikipedia.org/wiki/United_States_defamation_law

Again the majority of tort actions are like this. There is statutory law that controls peripheral issues in the case, but the cause of action itself is not defined by statute.


Extracted from your citation:

In the United States, a comprehensive discussion of what is and is not libel or slander is difficult, because the definition differs between different states, and under federal law. Some states codify what constitutes slander and libel together into the same set of laws. Criminal libel is rarely prosecuted but exists on the books in many states, and is constitutionally permitted in circumstances essentially identical to those where civil libels liability is constitutional.


According to your citation, "Some states codify what constitutes slander and libel together into the same set of laws." That and other remarks in your citation mean slander and libel cases are related to statutory law in at least some states. The citation also states those types of cases are supported by Constitutional Law.

Replies:   Dominions Son
Dominions Son
Updated:

@REP


That and other remarks in your citation mean slander and libel cases are related to statutory law in at least some states.


True, but even in those cases the statues didn't create slander as a cause of action, but rather codified existing common law.

I also did not state that tort causes of action are never based in statutory law, just that most of them aren't.

Replies:   REP
REP

@Dominions Son

DS,
In regard to this post:

1. It sounds as it you are saying that violation of a statute prohibiting slander is not a valid reason for bring a legal action.

2. You again contend "most" but fail to substantiate that claim with a specific case.

Regarding your prior posts:

I suspect that access to a Law Library would not be very helpful. Law Libraries contain cases that address the application of the law in legal actions.

I don't know how you came to form your opinion of US Common Law not being related to Legislative Law. I tried to find articles on the Internet that support your contention. What I found are numerous websites that:

1. Define courts and how they function.

2. A few legal oriented sites that specifically state that courts interpret laws, they do not make laws.

3. The only site I found that supports your contention is wiseGeek.

http://www.wisegeek.com/who-is-wisegeek.htm

I checked the site's "about link" and found the following:

Who is behind wiseGEEK? It's one of the most common questions we receive. We are a team of researchers, writers and editors dedicated to providing short, clear and concise answers to common questions.


The article uses many legal terms to support its contention that judges make laws. The problem is the article is reasonably factual and accurate up to the point that they make the claim that a precedent is a judge-made law. They got it right when they said a precedent is an interpretation of a law, but interpretations of the law are not new laws. At that point, they labeled an interpretation of a law as a new law that is made by a judge.

You will also note that nowhere in their article do they cite anything to substantiate their contention. This article is nothing more than a personal opinion.

Unless you have a specific instance of a judge making a new law that has no link to an existing law, which I would be happy to pursue with you here or by email, I think we should just drop the whole subject.

Replies:   Grant
Grant

@REP

Unless you have a specific instance of a judge making a new law that has no link to an existing law,

How would that be possible?
Autonomous cars, fully autonomous robots and the like have no prior precedent, however any legal judgments would be based on existing laws as they relate to people & property & responsibility for cars and in the case of robots, industrial robots and those responsible for their control & those that own them..
So far I've been unable to think of anything that has or could come along that has no links to something that existed previously, and for all new developments the laws that affect them are based on the existing laws for the devices/situations that preceded them.

Replies:   REP  richardshagrin
REP

@Grant

So far I've been unable to think of anything that has or could come along that has no links to something that existed previously


Hi Grant. Your post has a slightly different slant to it than what I have been discussing with DS, but it is also applicable to our discussion.

We have many laws on the books that will apply to these new situations. If new laws are required by the situations, then it will be the responsibility of the appropriate legislative authority to make the new laws. DS's contention appears to be that when a judge is hearing a case regarding a new situation, his ruling is him making a new law. My contention is that judges cannot make laws, they can only interpret existing laws. What you highlighted was me asking DS to cite a judicial ruling that created a new law.

Replies:   Grant
Grant
Updated:

@REP

My contention is that judges cannot make laws, they can only interpret existing laws.

Here in Australia they can, it's called precedent.
Of course, like any other new law (even those created by an act of parliament) it will be based on that which has gone before.
Precedents can be overturned, and they can be used in legislation to make a parliamentary legislated law. Of course if the precedent stands up to scrutiny, then passing legislation that says the same thing really is redundant.
I guess the advantage of legislation is that it's easier for the average person to find out about it, than to have to go through case law to find out about precedent laws.

Just like in Shakespeare's day and the Merchant of Venice, it's a juggling act between the letter of the law and the intent (or spirit) of the law. Ideally, it's the spirit of the law that is followed.

EDIT- in a case where a Precedent law and a Legislative law exists and both are equally relevant to the facts of the case, the legislative law takes precedence over the Judge made (precedent) law.

Replies:   REP  sejintenej
REP
Updated:

@Grant


Here in Australia they can, it's called precedent.


In the US, a precedent is a ruling by a higher judicial court in which the higher court judge is ruling on how a lower court's judge applied the existing law to a specific set of circumstances.

It is not a new law, just the higher court judge's evaluation of whether the lower court judge applied the law correctly or incorrectly.

Replies:   sejintenej
sejintenej

@Grant

Precedents can be overturned, and they can be used in legislation to make a parliamentary legislated law. Of course if the precedent stands up to scrutiny, then passing legislation that says the same thing really is redundant.

Surely you are arguing against yourself. A precedent CAN be overturned by an equal or higher court.
A law cannot be overturned except by the legislative body which makes the overturning massively more difficult.

However senior judges CAN make an apparent mockery of legislative law. I have forgotten the detail of it but the case had gone through all the appeals processes until the top appeals court heard for the Plaintiff. Lord Justice Scrutton gave his comments effectively saying the case should never have gone to court, he fined the defendant one penny (the minimum allowed amount) which the Lord Justice paid from his own pocket and condemned the Plaintiff to pay its own and all the defendant's costs! (interesting dinner table talk when you are just a kid!)

Replies:   Grant  REP
sejintenej

@REP

In the US, a precedent is a ruling by a higher judicial court in which the higher court judge is ruling on how a lower court's judge applied the existing law to a specific set of circumstances.

Mention has already been made about the differences between laws in different states of the USA.
I was involved in a New York State court case when our counsel pointed out that a precedent had just been set in Indiana State law which he considered would be accepted in our New York law case.

In the end we won when the defendants gave up so the argument wasn't actually tested.

Replies:   REP
REP

@sejintenej

which he considered would be accepted in our New York law case.


One interesting aspect of precedents is a lawyer can cite any precedent that seems applicable to their case. It is up to the judge to decide if he will accept the precedent and how much weight he will give it in making a ruling.

Replies:   Grant  StarFleet Carl
Grant

@sejintenej

Surely you are arguing against yourself. A precedent CAN be overturned by an equal or higher court.
A law cannot be overturned except by the legislative body which makes the overturning massively more difficult.

Yes, so what?
A precedent is where a decision is made that differs from previous precedents or interpretations of existing laws.
If it isn't overturned, then it stands as a Judge made law.

BTW- Legislative laws can be overturned (ruled illegal, unconstitutional, invalid etc) by the High Court.
Usually the challenge and judgment will be made before the legislation is passed, but that's not always what happens.

Grant

@REP

It is up to the judge to decide if he will accept the precedent and how much weight he will give it in making a ruling.

My understanding is that here in Australia Judges must take in to account all relevant legislation and precedents. Where things get murky is how they determine what is and isn't relevant, and the weighting they give to what they do consider to be relevant, especially when it is contradictory.
Hence in some cases it can be months before a decision is passed down.

Replies:   Ernest Bywater
REP

@sejintenej

A precedent CAN be overturned


I am curious. Is the precedent "overturned" as in no longer valid, or does a different ruling just create a new precedent?

Grant

@REP

I am curious. Is the precedent "overturned" as in no longer valid, or does a different ruling just create a new precedent?

I don't know.

I would say that a decision that is overturned (for whatever reason) and no longer stands, it would therefore not be a precedent.
A decision that differs from previous decisions that is upheld (if challenged) and stands would then be a precedent.
But I don't actually know for sure.

Replies:   sejintenej
Ernest Bywater

@Grant

My understanding is that here in Australia Judges must take in to account all relevant legislation and precedents.


It's not quite that simple Grant. They must take into account any relevant precedence from a higher court within their hierarchy, and are supposed to show they did consider any precedence from any other court just to reduce the risk of an appeal for not doing so.

A state local court has to align with the state district court and state high court precedences on the matter, or show a darn good reason why those precedences don't apply to the case before them. However, they don't have to abide with a precedence from another state local court or any court from another state, but it's wise to mention the other precedence and why they are or aren't following it. It may well be the wording of their state law may be slightly different to the one from another state.

Ernest Bywater

@REP


I am curious. Is the precedent "overturned" as in no longer valid, or does a different ruling just create a new precedent?


Depends on the circumstances.

The magistrate of the local court of Herenow in the East District may be hearing a case and a precedence set in the Local of of Overthere in the West District is mentioned - both are in the same state. There is nothing requiring the magistrate in Herenow to follow the in the direction of the magistrate of Overthere, and he can choose to make the same or similar decision or make something totally different. In the case the second magistrate makes a very different decision then two precedences are now set.

However, if either one of the cases is appealed at the District Court level and overturned at that level, then the first precedence is no longer valid and is replaced by the one made by the District Court. Mind you both District Courts have the same powers, so they could end up setting differing precedences which stand until such time a a higher state court sets a precedence.

Mind you, even when a precedence has been overturned, some lawyers will still bring up the magistrate's reasoning behind the overturned precedence in a case if they feel it applies.

Dominions Son
Updated:

@REP


I am curious. Is the precedent "overturned" as in no longer valid, or does a different ruling just create a new precedent?


That's very dependent on what the court said in the opinion for the new case.

It can for example say that this new rule should apply in some specific condition, but the old rule still applies in other cases.

This is what the US Supreme Court did in New York v Sullivan, where they decided that to win on a claim of defamation, a public figure must prove these additional elements.

In this case, both precedents exist in parallel.

On the other hand the court can say that the old precedent was wrong and going forward here is the new rule for all of these kinds of cases. For example, Brown v Board of Education. Here the old cases are no longer valid precedent and are supplanted by the new case.

Generally speaking, at least in the US, Appellate court judges, both circuit judges and Supreme Court justices are reluctant to completely overturn existing precedent and will do so only in extraordinary circumstances.

Replies:   REP
REP

@Dominions Son

That seems right DS. It seems to fit all the circumstances that I could think of and addressed a few issues I hadn't considered.

My intent was here in the US, but thanks EB for replying. From all the comments made here in the Forum, I have to wonder how the laws between Australia, England, and the US differ.

docholladay

@StarFleetCarl

And yeah, I lost all respect for you completely with your other comment.


When did they earn my respect. All I have ever experienced from them is the so-called bad ones. Hell even the one time they were called in when a man pulled a large knife on me. I was the one about to go to jail even while I was both unarmed and untrained in any form of physical defense. The so-called good cops even sent the man home to put the knife away. Told me if anything happened to him. I would be going to jail. Where and when was any respect earned. I am not going to respect any one just because of a job title. So of course since all my personal experience has been negative with them, I cheer when they lose. I always said I hold grudges forever. I never claimed to forgive anyone. I would be dishonest if I claimed otherwise.

sejintenej

@Grant

I would say that a decision that is overturned (for whatever reason) and no longer stands, it would therefore not be a precedent.

A decision that differs from previous decisions that is upheld (if challenged) and stands would then be a precedent.


In respect of the UK a judge would normally look at all the precedent decisions (as well as statutory law etc) and make a judgement.
In the case of IATA v British Eagle overturned in BCCI6 (see above) the IATA judge had to consider the definition of certain words in statutory law and make their decisions. The judge in BCCI6 actually said that they considered the previous judgement not in accordance with the intentions of the statutory law and therefore illogical. Lawyers I discussed the case with considered that in future no judge would follow the earlier precedent.

Grant; BTW- Legislative laws can be overturned (ruled illegal, unconstitutional, invalid etc) by the High Court

.

Correct; mea culpa

In respect of Australia there have been some very strange cases condemned by the press there for the sentences being too light. I don't know all the details of the cases (the press often gives only one side) but I do know the judge involved; he does care for people so I won't comment

Replies:   Ernest Bywater
Ernest Bywater

@sejintenej


In respect of Australia there have been some very strange cases condemned by the press there for the sentences being too light. I don't know all the details of the cases (the press often gives only one side) but I do know the judge involved; he does care for people so I won't comment


two aspects here:

1. The law is what's used to decide if guilty or innocent as per the law.

2. Punishment - up to the judge because the law usually has a range or scale that can be applied. I say usually because some states are have introduced mandatory sentences.

Jim S

This topic intrigues me. Because I have (probably) an inordinate interest in anything judicial.

So I'll pose one point here that I haven't seen so far in reading all the posts. What about judicial intent? What is that you might ask. Put simply, its how the individual judge interprets the law.

How does that matter, one might ask? A fair question. It really comes down to how the judge feels at the time he/she has to make a ruling. It comes down to the individual judge's political philosophy, right? So it really comes down to how the judge feels on that particular day.

But lets wrap that around that particular judge's judicial philosophy. Expansive? Restrictive?

All of this is a fancy way of saying it comes down to what the judge wants to do. If he/she relies on what the intent of the legislatures writing the laws intended, he/she will rule one way. If he/she doesn't agree with the legislatures intended, they'll change the intent and legislate from the bench.

In the US, there is nothing to prevent such travesties. Nothing short on impeachment/removal. You see that once in a blue moon.

FWIW

Replies:   Grant  Dominions Son
Grant

@Jim S

In the US, there is nothing to prevent such travesties

That's why there are higher courts, and the highest courts have more than one Judge on the bench.

Dominions Son

@Jim S

In the US, there is nothing to prevent such travesties. Nothing short on impeachment/removal.


Not true. That's in part what the appellate courts are for and why appeals are never heard by just one judge. Appeals are heard at the circuit level by a three judge panel and the loser can either appeal to the Supreme Court or request an en-banc rehearing by (except for the 9th circuit) all of the circuit's judges. And of course appeals to the Supreme Court are always heard by the full court.

So, no matter what their mood or ideology, no one judge can set or change precedent.

PotomacBob

@Dominions Son

Could you point us to the scientific study that shows "it's actually unusual for them to get the quotes right"? Or is that your personal conclusion after having read all the media and determined for yourself which ones were accurate and which ones were inaccurate?

Replies:   Dominions Son
richardshagrin

@Grant

So far I've been unable to think of anything that has or could come along that has no links to something that existed previously, and for all new developments the laws that affect them are based on the existing laws for the devices/situations that preceded them.


Aircraft were new and unique, maybe airplanes were preceded by balloons or maybe artillery (ballista?) that flew through the air, but saying there is nothing new under sun is a considerable assumption.

Replies:   sejintenej
Dominions Son

@PotomacBob

Almost every case where I have personal knowledge either from being present or watching video of the original speech, print quotes in the media are off, sometimes the error is significant, sometimes not, but there is almost always some level of error.

I refuse to give them the benefit of the doubt in cases where I don't have knowledge.

sejintenej
Updated:

@richardshagrin


Grant

So far I've been unable to think of anything that has or could come along that has no links to something that existed previously, and for all new developments the laws that affect them are based on the existing laws for the devices/situations that preceded them.

Aircraft were new and unique, maybe airplanes were preceded by balloons or maybe artillery (ballista?) that flew through the air, but saying there is nothing new under sun is a considerable assumption.


Montgolfier balloons, the first aeroplanes, subsequent developments, ocean liners, 3M tape (I think you call it 500mph tape?) ...... There were already laws intended to try to ensure the safety of the populace. Hackney cabs (pulled by horses) were subject to laws. The first train actually killed an MP or equivalent so more detailed laws were passed even if Stevenson was not liable under existing laws. In the UK we had the Red Flag Act to warn passers by of the horseless carriage about to arrive. and so forth.

There is a whle raft of laws and regulations to cover future developments - copyright, trademarks etc., objects which move must not have corners with a radius less than a specified amount, workers must be protected with dayglo clothing, a pocket knife cannot have a blade longer than 4 inches (OK, AJ, it might be a centimetre longer and there are exceptions) it goes on and on and covers future developments and inventions. Way back in the 1950s or so it was made illegal to attempt to go into space unless you got a licence from a magistrate - that is still valid!

British and Australian laws actually do create the problem under consideration; you can do anything which is not specifically controlled or prohibited. Imagine living (as I had to) under a legal system where it is illegal to do anything which is not specifically permitted! AFAIR it is clause 3 of the old Codigo Civil which allowed humans to live, to breathe, to eat .... otherwise that would have been illegal.

edited to correct a name

Replies:   Dominions Son
Dominions Son

@sejintenej

3M tape


3M is a company/brand, not a type of tape. Minnesota Mining and Manufacturing.

Replies:   Grant
StarFleet Carl

@REP

One interesting aspect of precedents is a lawyer can cite any precedent that seems applicable to their case. It is up to the judge to decide if he will accept the precedent and how much weight he will give it in making a ruling.


Also keep in mind that if it's a jury trial, there is that little thing called Jury Nullification. And that's VERY controversial.

Grant

@Dominions Son

3M is a company/brand, not a type of tape. Minnesota Mining and Manufacturing.

And there are quite a few products that are known by the name of the company that developed them (or imported them), not the product's actual name.
Not so long ago mention plaster board here in Australia and a lot of people would have looked at you blankly. Say Gyprock and they will know what you're talking about. Many years ago if you asked for sticky tape most people wouldn't have known what you were after, or you'd end up with a particularly crappy product. If you asked for Durex, they'd have known.

Replies:   Dominions Son
Dominions Son
Updated:

@Grant


And there are quite a few products that are known by the name of the company that developed them (or imported them), not the product's actual name.


True, but unlikely with 3M. 3M manufactures thousands of products across dozens of categories.

Abrasives

Aerospace & Aircraft Maintenance

Animal & Pet Care

Architecture & Construction

Automotive

Casting & Splinting

Chemicals & Advanced Materials

Dental

Electronics Materials

Facility Cleaning & Maintenance

Films

Filtration

Food Safety & Microbiology

Food Service & Hospitality

Hand Hygiene

Health Information Systems

Marine Maintenance and Repair

Medical Device & Optical Components

Orthodontic

Painting Equipment & Supplies

Patient Monitoring

Personal Protective Equipment

Power Storage and Conversion

Securement & Immobilization-Dressing Securement

Security Hardware & Software

Signs & Displays

Skin & Wound Care

Sterilization Monitoring

Surgical Solutions

Tapes & Adhesives

Traffic & Vehicle Safety

Vascular Access

Wire & Cable


http://www.3m.com/3M/en_US/company-us/all-3m-products/~/All-3M-Products/?N=5002385+8711017+3294857497&rt=r3

Replies:   sejintenej  sejintenej
sejintenej

@Dominions Son

And there are quite a few products that are known by the name of the company that developed them (or imported them), not the product's actual name.

True, but unlikely with 3M. 3M manufactures thousands of products across dozens of categories.


Very likely; 3M tape is also known here as Sellotape and in Brasil and Australia as Durex (see below). We also have 3M Notes, again named after the inventor's employer (and yes, I do know the official story about those).

However, Durex, a brand name, is a protective, condom or rubber here and preservatif elsewhere. I wouldn't like to risk using 3M tape for that!

Ah, but a rubber is what you use to remove pencil marks, usually on paper.

Hoover, a manufacturer's name, is also a name given to any brand of vacuum cleaner and the verb is to hoover.

Coke is also applied to the Pepsi version in common parlance. Cola (more correctly Kola) is a Russian peninsula

At work we had a list of English words which were not allowed because our New York office either didn't understand or, in at least one very expensive case, they had a different definition.

Confused? There's a whole world out there.

sejintenej

@Dominions Son


True, but unlikely with 3M. 3M manufactures thousands of products across dozens of categories.

Abrasives
Aerospace & Aircraft Maintenance
Animal & Pet Care
Architecture & Construction

List edited but you forgot football pitches in Russia!

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