All posts by Gary Nolan

Your humble contributor is an avid political enthusiast, science junkie, former small business owner, limited government, constitutionalist, and all around lover of liberty. I make every effort to use logic and reasoning, not hate, ad hominem attacks, nor logical fallacy arguments.

Average Joe SCOTUS: Guerrero-Lasprilla v. Barr

Colombian Pedro Pablo Guerrero-Lasprilla came to America legally back in 1986. But in 1998, his dumb ass got busted for a felony drug charge, and was told to get the fuck out.

In 2014, Matter of Abdelghany was decided by the Board of Immigration Appeals (BIA), and now Pedro was convinced this decision would offer him a chance for relief on the decision to remove him. So he filed a petition to get that relief in September of 2016.

A judge told Pedro to get fucked. “You had two fucking years, Pedro. TWO FUCKING YEARS!”

Pedro was like, “Listen you assholes, I had to wait for those dickheads in the fifth circuit to decide  Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016).

The legal term in play here is “equitable tolling.” We all know there are statutes of limitations, right? So equitable tolling basically says, that if you can make a reasonable argument as to why you were prevented from filing within that statute of limitations, then equitable tolling is an argument you can use to not get rejected for your relief you’re seeking because of the statute.

So Pedro is trying to colorfully argue that because he was waiting on the “Lugo” decision, he deserves relief under the premise of equitable tolling. But the 5th circuit argued that in Penalva v. Sessions, 884 F.3d 521, 525 (5th Cir. 2018), equitable tolling is a simple matter of fact, not a matter of law, and therefore, none of their fucking business. So they told Pedro, they didn’t have time for any of his bullshit.

So here we are at SCOTUS, for his last ditch effort to stay in America, and Pedro is doing his level best to argue he does deserve equitable tolling relief, because this is a matter of law for the courts to decide, and that the 5th circuit are a bunch of morons.

SCOTUS sided 7:2 for Pedro. That “questions of law” in the code, which would give him relief, includes the establishment of certain facts, such as the equitable tolling in question. Thomas and Alito dissented.

 

Average Joe SCOTUS: Allen v. Cooper

Eleventh Amendment to the U.S. Constitution

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

So this dude Frederick Allen owns this company called Nautilus Productions. He was hired to document Blackbeard’s treasure from the 1700’s, and that’s what he did. For twenty fucking years he took pics and video of that shit.

So then, in 2013, the state of North Carolina, presumably to attract tourists, started posting some of Allen’s photos and shit on their website, which were copyrighted.

So Allen was like, “What the fuck, North Carolina? Do we have a contract? Did I give you permission to use those photos asshole?” The state, realizing it fucked up, agreed to settle, to pay Allen, and stop using his shit.

So you want to hear some shady shit? After they complied with Allen, these motherfuckers in NC posted that shit again, and then had the balls to pass “Blackbeard’s Law” which then declared Allen’s work public domain by North Carolina decree, effectively telling Allen he didn’t own fucking shit, now.

So when Allen sued again, North Carolina cited the 11th amendment (above) as their reasoning for getting a dismissal.

Allen on the other hand, was like the Copyright Remedy Clarification Act (CRCA) says “any State, any instrumentality of a State, and any officer of a State or instrumentality of a State acting in his or her official capacity” can be infringers. So fuck you, North Carolina. Tell your people to meet my people in court.

So a district court was like, “Allen, good fuckin’ argument, bro.” But then the 4th circuit was like, “Allen, shit fuckin’ argument bro.”

So now SCOTUS is asked to determine if the Copyright Remedy Clarification Act (CRCA), which is federal law underpinning Allen’s argument, is allowed to trump North Carolina’s shady ass Blackbeard’s law. Basically, some state’s rights bullshit.

Sadly for Allen, he was ordered to take it in the ass. Unanimous decision for Cooper (North Carolina). The states have power over the federal government, and therefore CRCA is trumped by any applicable state law.

Average Joe SCOTUS: CITGO Asphalt Refining Co. v. Frescati Shipping Co.

The time is 2004. CITGO ordered some oil from Venezuela to be delivered to New Jersey, and Frescati owned the dingy that was supposed to bring that shit there.

As Frescati’s piece of shit boat made it’s way through a section of river near it’s destination, it hit an abandoned anchor on the floor of the river, and it opened up a huge hole in the boat, dumping a fucking shit ton of oil in the river.

So here’s the deal. The section it passed through is monitored by the Army Corps of Engineers (ACOE), and occasionally dredged, so as to catch any stray fucking anchors and other shit that might be lying around, and fuck up a boat, just like this one. But the ACOE aren’t required to do that shit preemptively to look for anchors and shit, they just do it every so often.

So Frescati and Uncle Sam basically split the cost of the spill, and CITGO wasn’t deemed liable by a lower court, since they hadn’t been in control of the oil at that point, and no one could fairly argue it was their fault. But then, an appellate court found that CITGO had provided a “safe berth warranty” which basically means CITGO told Frescati that shit was safe AF to cruise through that shithole river, and therefore Frescati had no reason to think they’d fucking stumble into a loose-ass anchor lying around. So they determined CITGO may be liable. But, and here’s the fun part. They argued the government had basically told CITGO, “Nah man, the shit’s all good. Sail on through. That river’s clean.” So CITGO’s warranty was issued based on the government’s clearly bullshit claims. So they made CITGO only liable for half.

So now SCOTUS is left determining if CITGO is liable because of their warranty or not.

CITGO cleverly made the argument that the ship insured itself and its cargo. So clearly, they knew they were liable for the safety of their ship. If they thought CITGO was liable, why would they insure it separately?

SCOTUS sided 7:2 in favor of Frescati, holding CITGO liable, since they gave their safe-berth warranty. Thomas and Alito however, dissented, saying that the safe-berth clause has no language guaranteeing safety.

Average Joe SCOTUS: Kahler v. Kansas

Oof, this one is hard to swallow. This piece of shit Kahler was married with two children. His wife eventually had an affair, and Kahler reacted to this information by going down a hole of depression and anger, which is to be expected.

Kahler went to see several mental health professionals who diagnosed him, and prescribed medications to help him deal with the rage he was feeling, but Kahler didn’t take them.

Eventually, Kahler went to his wife’s mom’s house, where they were visiting, and murdered everyone. The wife, two kids, and the grandmother.

He was found guilty and sentenced to death. I’ll save my opinions on the death penalty for a separate post sometime, but if anyone ever deserved it, he made a strong argument that a needle in his arm wouldn’t be a bad societal outcome.

Kahler’s lawyer, doing her level best to help his client, opted to use an insanity defense. But Kansas doesn’t allow an insanity defense in the traditional sense you have to know right from wrong. In Kansas, you’d have to show you didn’t even know you were killing someone.

So since Kahler and his lawyer are trying to get him out of being executed, here we are at SCOTUS to determine if Kansas has a right to abolish the insanity defense in regards to the 8th and tenth amendments.

His lawyer, in her brief, tried to show how he was insane. In one oddly humorous exchange:

John G. Roberts, Jr.

The things that I think are underlying a lot of the debate is the expansive notion of what counts as evidence.

In your brief, you say the defendant in this case was—this is evidence to support his insanity claim, was described by some as a tightwad who would, for example, borrow rather than purchase tools. And in the same page, again, this is evidence that you selected in the — to put in your brief of his mental disorder, that he thrived on self-importance, community prestige, and being perceived as having an ideal or perfect marriage. Now, maybe that’s not the best way to order your life, but if that’s what you mean by insanity, you can understand why that might cause some reservations.

Sarah Schrup

Your Honor, Mr. Chief Justice, let me just tell you why those facts are in there and why they’re not — why they’re there and that will shed light on it. What we know is that Mr. Kahler had a major depressive disorder.

He had a qualifying mental illness.

Those facts are in there to show that there was an entire other category of evidence that, in combination with that major depressive disorder, could have been been developed.

John G. Roberts, Jr.

But that he —

Sarah Schrup

But it doesn’t —

John G. Roberts, Jr.

— borrows tools instead of purchasing them? That sounds like the reasonable option. (Laughter.)

During arguments for the respondant (Kansas), Justice Breyer asked:

Stephen G. Breyer

I know these are words, you see, I want it looking for something in terms of criminal law or legal purpose or human purpose or whatever that would treat the two — why treat them differently? One answer you’ve given, you said it’s so hard to figure out.

I agree it’s hard to get a definition.

That’s going to be true in both cases. You say criminal, corporate criminal liability, and regulatory offenses.

I agree with you, you’d have to carve out exceptions and that is not easy to do.

Okay? I’ve got those points. But I’m looking for something different between the two defendants.

The dog, there he is, the dog, he told me to do it.

They are both crazy. And why does Kansas say one is guilty, the other is not guilty?

There was an exchange, but eventually Kansas’ argument was as follows.

Toby Crouse

So — and I apologize for not getting to the answer of your question.

I think that the problem is that states have grappled with this and they’ve made different moral judgments as to who is morally responsible or not.

And this Court’s cases allow the state legislatures or federal Congress to determine whether that person should be or should not be held responsible. What Kansas does is it identifies those who intend to commit a crime, punishes those.

I think it’s a spectrum as to what the states believe is appropriate. In Delaware, for example, my understanding is that individual would not be convicted, whereas in Illinois that person could be convicted because they know that shooting a human being is legally wrong.

After Toby Cruise completed his arguments for Kansas, co-counsel said the following in response to Breyer’s question.

Elizabeth B. Prelogar

So these are obviously difficult questions, Justice Breyer.

They’re ones that societies have wrestled with for centuries in trying to balance the medical and moral and legal judgments that go into crafting an insanity rule. This Court has long recognized that states have principal responsibility to do that. And I think that there are various ways states could decide that they want to distinguish between those two defendants. For one thing that cognitive incapacity test which focuses on whether the individual thinks that the person he shot was a dog, might be an easier inquiry for juries to undertake.

It might be a more readily-observable sign of mental illness and less likely to lead to confusion about what was actually in the defendant’s mind and whether he was considering right versus wrong. A jurisdiction might also think that looking at considerations of individual culpability, they don’t want an on/off switch for criminal responsibility but, rather, want to shift those considerations to the sentencing stage where a judge can take evidence and make a more nuanced determination of individual culpability.

When Kahler got their chance to rebut, they were clear they believed these “dog” arguments by Kansas were completely arbitrary, and therefore bullshit.

There’s a phenomenal video from The Federalist Society you can watch that explains this principle here.

Anyway, back to SCOTUS. 6:3 in favor of Kansas. It may, within the framework of the constitution, apply it’s own unique test on an insanity defense. Breyer, Sotomayor, and Ginsburg however felt that Kansas’ law effectively eliminated the core of the insanity defense, and therefore shouldn’t be allowed. But no one cares, because they’re in the minority.

Average Joe SCOTUS: Comcast Corp. v. National Association of African American-Owned Media

Black comedian Byron Allen owns a company called Entertainment Studios Network (ESN), in partnership with National Association of African American-Owned Media.

Since it’s his own business, clearly he thinks it’s the shit. However, Comcast, didn’t think it was THE shit, they just thought it was shit. As such, they declined to carry the network on their platform. Let’s assume that Byron and his peeps didn’t offer it up for free, the bigger issue for Comcast was probably that they thought he was asking for too much money.

It’s worth noting that Charter Communications, Time Warner Cable, DirecTV, and AT&T also declined to carry ESN. Clearly, several providers are not seeing the value in it.

But Byron Allen, having invested all this effort and money into this venture wasn’t going to take his rejection lying down. Instead, he decided to play the race card, and accuse Comcast of not wanting to carry ESN because there were no white people on staff, which is mildly ironic is it not? In case you don’t follow, he’s accusing Comcast of being racist, while owning a company that only hires black people.

But anyway, the United States has laws against commercial racism, 42 U.S. Code § 1981 being what was cited here, and if he can prove that Comcast decided not to carry his network for racist reasons, he may be able to sue Comcast for damages.

The question SCOTUS is being asked to resolve, is whether racism has to be the main reason for the choice not to carry ESN, or if merely a bit of racism played into it, that’s sufficient cause for suing them.

Also, another mildly ironic fact—the respondent’s lawyer was whiter than white.

SCOTUS handed down a unanimous decision for Comcast. You can’t just sue because you think race was a factor. It has to be the sole and deciding factor. Byron Allen and his lame-ass network can go pound sand. The world owes him nothing, including Comcast. If they don’t want your fucking network, you don’t have a right to demand it. I personally find his “civil rights” argument perverse and disgusting. If his network were amazing, Comcast would have killed to have it. Clearly, it’s shit.

Average Joe SCOTUS: Kansas v. Garcia

So we all know America has a bit of an illegal immigration problem, right? Well this case is about three specific illegal immigrants who decided to roll up into America, go to work and use someone else’s identification to get a job. They do this, because you need an SSID for an employer to hire you, and if you’re here illegally, well, you don’t have an SSID of your own. So while Garcia is named, there were other cases, too.

You see Garcia was driving to work, and got pulled over for speeding in Kansas. He told the cop he was headed to work. The cop decided to check out his story after seeing that he was already the subject of an investigation. They called his employer, and were sent documents showing his employment, including his I-9. The I-9 had an SSID on it; problem was, it wasn’t Garcia’s. Then they found out he used that shit on other forms too. So Garcia found his ass busted for identity fraud. Similar situation for the other two.

So now SCOTUS is being asked if the Immigration Reform and Control Act (IRCA) prevent the government from using information in an I-9 form for purposes of prosecution, if the same info is in other non-IRCA forms?

SCOTUS, in a political split, sided 5:4 with Kansas. That Kansas was well within their rights to use that info to prosecute Garcia, and there’s nothing in the IRCA preventing them from doing so.

Read about the case, and hear oral arguments here.

https://www.oyez.org/cases/2019/17-834

Average Joe SCOTUS: Shular v. United States

There’s a federal statute known as The Armed Career Criminal Act (ACCA). It’s basically a law that is designed to take career criminals, with high rates of recidivism, who use weapons to commit their crimes, and keep them behind bars for a longer period of time, since they keep doing this dumb shit over and over again, and clearly normal sentencing isn’t working.

The types of crimes this law covers are defined as a “violent felony” or a “serious drug offense.”

The courts have taken the approach that “violent felony” should include anything that can be categorized as a violent felony, and that they don’t necessarily have to look to the particulars of a case to determine if they believe it’s a violent felony.

Basically, they’re trying to make it objective and not subjective, because federal laws and state laws will have different wordings and such, so it’s not always an apples to apples comparison. So somehow, the courts need to be able to determine what a “violent felony” is for purposes of enforcing the ACCA, and it shouldn’t be open to interpretation, in their minds.

Well, the issue here is whether they should take that same categorical approach to the “serious drug offense” verbiage in the ACCA. Basically they’re asking WTF does “serious” even men. Like if he was only joking about selling cocaine, he’s cool. But if he really was serious, that’s a hit?

Shular, the scumbag in question, had been busted six times for drug-related crimes. Five times trying to sell cocaine, and once for possession with intent to distribute. At one point, he was asked, and agreed to babysit his mother’s firearm while she was rebuilding her home, according to his story. But he’s a career scumbag, and isn’t allowed to possess a firearm. So when he was caught with one, prosecutors wanted his ass sent up the river for a long time. A felon in possession normally has a 0-10 year sentencing guideline, but the ACCA says if he has three or more convictions under their rules, dipshit gets 15 to life.

However, his crime under state law seemed to allow for the notion that he not know what he was in possession of, presumably saying he could have simply been a mule carrying a substance he had no real knowledge about what he was carrying.

You’ll hear a term “mens rea” in a lot of legal arguments, including this one, which translates to “guilty mind” in Latin. It basically describes whether the defendant knew what they were doing was wrong or not, or gets at the heart of their state of mind during the commission of the crime.

The ACCA requires mens rea, which means it requires the person knew WTF they were doing. But the Florida crimes he was convicted on do not require mens rea, which could mean he’s fucking clueless he’s committing a crime.

So let’s lay this out, because this is beautifully stupid.

This mother fucker committed a crime that the ACCA was clearly written to prevent. The ACCA requires mens rea during the crime, and Shular definitely had mens rea (he knew WTF he was doing). So it should be open and shut, based on the fed’s argument.

However, his lawyers, quick to look for a technicality to get their client off, are saying that the ACCA requires categorical linking of state crime to federal crime. Then they want to use that rule to exclude Florida’s crime from the ACCA. And if they break that link, then the fact he had mens rea, goes away because they want the court to ignore that fact because they broke the link between the state and federal crime, effectively trying to nullify the fact he had mens rea.

This is bullshit lawyering 101, right here. But I’ll give them an A for creativity.

Anyway, SCOTUS, clearly unimpressed, seemed to be particularly interested in wrapping this one up, as they decided it in pretty short order, unanimously siding with the United States who argue that a categorical approach is not required, but instead merely “whether the state offense’s elements necessarily entail one of the types of conduct.”

So in a big fuck you to Shular’s scumbag lawyers, they told them to fuck off and die. Nuff said.

Read about this case below.

Argument preview: Category is: the categorical approach

 

https://www.oyez.org/cases/2019/18-6662