How freedom will die in the USA - Tilted Forum Project Discussion Community

dksuddeth · 12-23-2006, 05:20 PM

Despite the 'bias' that some logically blinded people will see with what I'm about to post, this is how America will die....by a slow and inexorable oppression of peoples rights and freedoms.

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On June 2, 2004, police in the the Washington, D.C. exurb of Manassas Park, Virginia brought in a multi-jurisdictional narcotics task force and officers from several surrounding cities and counties to conduct a massive, 70-90 officer SWAT raid on the Rack n' Roll Billiards Club.

The raid took place on Ladies' Night, a Wednesday. Though the intent of the raid was to collect evidence of drug use and drug distribution by David Ruttenberg, the club's manager, it was conducted under the auspices of an Alcohol Beverage Control inspection. Because ABC is primarily a regulatory agency, the guise of an ABC inspection enabled the raid to take place without a search warrant.

So using 'regulatory' agencies, our branches will bypass any needs for constitutionally guaranteed protections.

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After hours of scouring the club, searching every nook and cranny, and generally turning the place upside down, the only charges to follow against Ruttenberg were for two bottles of beer a distributor had left for sampling that weren't clearly marked "SAMPLE." The bar would later be charged with a few other minor offenses: one incident of serving alcohol to a minor, and with several incidents of flashing from customers during Mardi Gras.

Police arrested three people at the club on drug charges, the principal reason for the raid (though, again, the ABC facade enabled them to carry it out without a warrant). One was an undercover officer, who was of course immediately released. The other two were, by all indications, working for the police (the Ruttenberg's brief contains the specifics as to why it's safe to assume the arrestees were informants, one paid, and one cooperating in exchange for leniency on other charges). The paid informant was released. According to the Ruttenbergs all of the drug deals police say took place at the club were engineered by the police themselves, either through the informants or through an undercover officer (this too is laid out in the brief).

So the initially stated reason for the raid happened to be 'sanctioned' by authorities, yet any probable cause for the raid could not be established, but thats fine because this was a 'regulatory' inspection.

Since this is obviously a biased site and cannot be taken worth a grain of salt, read on if you're slightly interested, here.

To continue the horrid experiences of this american citizen, continue below.

Since the initial raid, there has not been a SINGLE case presented against this person, or his club, for ANY drug violation whatsoever, yet has had his customers continually harrased by the local police force.

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Since that raid, Ruttenberg has essentially lost his bar. The state has revoked his liquor license, despite the fact that the charges against him were either paltry, or, with respect to the more serious charges (mostly, allowing drug deals to go on in his business), were instigated by the police, either by undercover officers or the informants who were working for them. They have chased away his customers with threats and harassment, spread vicious rumors about Mr. Ruttenberg around the town, and even scared off would-be buyers of the business.

Now, if police were TRULY interested in stopping any drug trade from this business, but were unable to produce any evidence, they should be THRILLED to have the owner sell his business and get the hell out of Manassas Park, right? not exactly.

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Mr. Ruttenberg's Section 1983 suit (This is supposedly a section that the american citizen can use to petition for redress of grievance, that pesky 1st amendment to the constitution) was dismissed yesterday by a federal judge. Apparently the judge granted a blanket motion to dismiss by all defendants named in the suit, all of whom cited the qualified immunity granted to public employees.

So much for THAT part of the 1st amendment.

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Mr. Ruttenberg's next step would be to appeal to the 4th Circuit Court of Appeals. Problem is, such an appeal would be costly. The guy has already had to sell his house, and without a liquor license, his bar loses money every day it's open. And the 4th Circuit isn't exactly known for its sympathy to claims of civil rights violations by police and public officials.

Got to love that court system that so many people LOVE, yet still fail to protect any real civil liberties.

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Since all of this flared up, David Ruttenberg has been arrested once, on a bogus charge of filing a false police report -- which itself is a pretty good story. The prosecutor declined to pursue the case.

Now, some more interesting factoids that are trying to eek out to the public.

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In the early 1990s, the Virginia state legislature gave approval for a limited number OTB satellite offices to be licensed around the state. The legislature also licensed a company called Colonial Downs to run the main track, as well as the satellite sites, where customers bet on races shown on video monitors. Within a few years, facilities had been approved in a few spots in southern and western parts of the state -- mostly in towns with light budgets, the kinds of places so hungry for business and tax revenue, they could look over the bad rap a wagering site sometimes gets.

But the gold mine was in Northern Virginia. That's where the state's money is. According to estimates published in the Washington Post, an OTB site in Northern Virginia would bring in an estimated $90 million in revenue, and around $550,000 local tax revenue. To put that into perspective, the other satellite spots combined bring in about $130 million.

Unfortunately for Colonial Downs, because Northern Virginia does have money, it can also afford to turn its nose up at OTB. And it has. Throughout the 1990s, jurisdiction after jurisdiction in NoVa turned down opportunities to host an OTB facility, either by referendum, or by a vote of the city or county council. By 1996, Manassas Park was one of the last towns anywhere near D.C. that had yet to vote down an OTB site.

OTB hit the ballot in Manassas Park in 1996. It lost, but by just 74 votes. Colonial Downs and the OTB proponents would be back for another shot, in eight years. But let's stick with 1996 for just a moment. At the time, Rack n' Roll owner David Ruttenberg started to wrap his brain around just how lucrative an OTB facility might be. Knowing the layout of the city, he figured his bar was sitting on land that would make an ideal location for a betting parlor.

Ruttenberg was right. The small, hour-glass shaped town of Manassas Park had been completely zoned out to new development on one side, and was filled with upper-income plots on the other -- the type of homeowners who wouldn't tolerate a gambling operation in the neighborhood. That left little else but Ruttenberg's own shopping center. What's more, the main highway into town ran right by the center. It wasn't just an ideal location. It was really was the only location.

So Ruttenberg got together with the other major tenant of the shopping center and drew up an offer, which they sent to Colonial Downs. If the OTB resolution passed, the memo said, Ruttenberg and the other tenant would sell their businesses, their cooperation on their leases, and their consult to Colonial Downs for $5.25 million. I've seen a copy of the offer. This is important to keep in mind. Because it shows that Colonial Downs -- and presumably by extension, the city of Manassas Park -- knew that Mr. Ruttenberg was savvy, and that it was going to take a lot of money to get him to hand over his business and his lease. If they wanted that space in 2004, the 1996 offer proved they'd either have to pay him a lot of money, or find a way to throw him out.

Here's the kicker: After the 1996 referendum failed, Ruttenberg's landlord grew wise to the notion that if OTB came to Manassas Park, the facility would very likely go right in his shopping center. And he'd likely profit handsomely from it. So going forward, he put a clause in his tenants' leases notifying them that if OTB ever came to Manassas Park, they would have to vacate, no questions asked.

But David Ruttenberg was on good terms with the landlord's property manager. Before he signed his next lease, he asked if he could have that clause removed. The property manager obliged. I've seen a copy of Ruttenberg's lease. And I've seen a copy of the lease signed by the largest tenant in the shopping center right now. The latter has the clause. Ruttenberg's lease doesn't.

Fast forward to 2004. After eight years, OTB is set to go back on the ballot in Manassas Park. Keep in mind that an incredible amount of money goes into these campaigns. According to the Washington Post, Colonial Downs spent about $20 per voter to push the OTB referendum through in 1996, including promises to offer every resident of the town a free bus ride to the Chesapeake OTB facility, free lunch, and a free $2 wager. They won public support from the city's mayor, police chief, and school board. They lost by an eyelash. So it's a safe bet (pardon the pun) that they were going to cover all of their bases after having eight years to plan for the next go-around.

Their prospects seemed good in 2004. The OTB facilities in Chesapeake, Richmond, Hampton, and Brunswick County were bringing in lots of money, and little of the crime or problem gamblers critics predicted. Public opinion was turning. The Virginia assembly was so impressed it authorized an increase in the number of licensed OTB parlors in the state to 10.

Let's go back to Mr. Ruttenberg and the Rack n' Roll pool hall. The raid on his bar came in June 2004, five months before the referendum was up for a vote. The harassment of Mr. Ruttenberg and the drug activity in his bar (much which he'd later have good evidence to suggest was instigated by undercover officers and paid police informants) had been going on for months. Rumors were flying all over town that Mr. Ruttenberg was a drug dealer, a child molester, a drug addict, a rapist, and that Rack n' Roll was an "open air drug market." Friends, customers, and others around town have told him -- and me -- that source of these rumors were often members of the Manassas Park Police Department.

That latter description-- an"open air drug market"-- is interesting. Virginia's Alcoholic Beverage Control can revoke a liquor license if it determines that a bar owner isn't doing enough to keep drugs out of his business. He needn't be engaged in any illegal activity himself to lose his license.

Here's the Washington Post in September 2004:

Colonial Downs, Virginia's only parimutuel horse-racing track, wants to bring an off-track betting parlor to Northern Virginia -- namely to the city of Manassas Park.

[...]

The site proposed by Colonial Downs for a betting parlor is in Manassas Park Shopping Center, at a busy intersection less than two miles from both Fairfax and Prince William counties.

That's the shopping center where Rack n' Roll is located.

And read this, also from the Washington Post in October 2004:

Colonial Downs, Virginia's only legal gambling company, is so confident it will win a proposal to allow off-tracking betting in Manassas Park that it has already leased space, gambling that Tuesday's vote will turn out better than the last one, in 1996, when voters rejected a betting parlor by 74 votes.
That space was in the Manassas Park Shopping Center.

The raid happened in June 2004. The ensuing harassment continued through the election. But things didn't work out as planned. The OTB referendum was again defeated, this time soundly, with 64 percent of the vote.

So why did the city continue its pursuit of David Ruttenberg's business? My guess is to save their asses. Ruttenberg and his father estimate that the raid and ensuing investigation cost taxpayers around $200,000. And the only thing they had to show for it was a couple of extremely lame alcohol violations.

The state ABC board has since revoked Rack n' Roll's alcohol license (the ruling by the ABC judge was a joke -- I'll get to that later, too). David Ruttenberg is running the bar at a loss, hoping he might find a buyer -- though the city seems to be blocking his efforts to sell, too. Seems to be a full-on, vindictive grudge at this point.

Last summer, the Virginia state police concluded an investigation into Ruttenberg's case. Ruttenberg called me one evening to tell me that the state police had found enough to bring the report to Prince William County commonwealth's attorney Paul Ebert, with the recommendation that he start an investigation. Ebert declined. Ruttenberg says the state police investigator expressed his regret at the Ebert's decision.

The state police investigator hasn't responded to several attempts I've made to contact him over the last few months. The state police also won't release the results of their investigation to the public, or to David Ruttenberg.

There's much more detail to all of this, which I'll fill in over the next several weeks. But here's the important part: None of this went into Ruttenberg's initial lawsuit against the city and several city officials, because they can't yet prove any of it. Because the judge in the case granted the city's motion to dismiss, Ruttenberg won't even get the benefit of discovery to delve into what role OTB may have played in the city's attempt to shut down his bar.

Attention to all of you, this is the system that YOU support, that YOU say is there to protect us all. This is nothing more than a front of local governments to establish their will upon ALL of us, to remove YOUR property rights and ability to do as YOU wish, with the supposed freedom that OUR forefathers fought to provide. GUN CONTROL is a huge part of that, because if you have no guns, you can't violently fight back. SOCIALISM is the act of the majority removing the minority rights to benefit ALL of society, as in taking away private property to add tax revenue to benefit the whole of society.....

It will eventually reach in to all of our lives....congratulations to all of the 'progressives' and those who feel that the individual can be forgotten about to benefit the good of society.

http://www.theagitator.com/archives/027338.php#027338

Willravel · 12-23-2006, 05:28 PM

The police department broke the law and any and all evidence collected is inadmissable. It's an open and shut case for the defence, who can bring a brilliantly easy lawsuit against these idiot police who have never read the Bill of Rights. If nothing happens, you have my permission to start an insurgency.

dksuddeth · 12-23-2006, 06:09 PM

Quote:

Originally Posted by willravel

The police department broke the law and any and all evidence collected is inadmissable. It's an open and shut case for the defence, who can bring a brilliantly easy lawsuit against these idiot police who have never read the Bill of Rights.

Maybe you missed this part.

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Mr. Ruttenberg's Section 1983 suit (This is supposedly a section that the american citizen can use to petition for redress of grievance, that pesky 1st amendment to the constitution) was dismissed yesterday by a federal judge. Apparently the judge granted a blanket motion to dismiss by all defendants named in the suit, all of whom cited the qualified immunity granted to public employees.

So what does one have left, if the courts, the supposed last bastion of the protectors of american rights and freedom, have????

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Originally Posted by willravel

If nothing happens, you have my permission to start an insurgency.

hmmm, this sounds pretty sarcastic, which could lead me to believe that you truly don't care that this guy was wronged, that you think it wholly appropriate that the force of a local governments law enforcement agency was brought to bear upon a person who broke no law. Will you JOIN in the insurgency?

Willravel · 12-23-2006, 06:35 PM

Quote:

Originally Posted by dksuddeth

hmmm, this sounds pretty sarcastic, which could lead me to believe that you truly don't care that this guy was wronged, that you think it wholly appropriate that the force of a local governments law enforcement agency was brought to bear upon a person who broke no law. Will you JOIN in the insurgency?

I'm not being sarcastic. I think that judge needs to be in prison next to those police officers for allowing them to sidestep the Fourth Amendment. If they needed a warrent, which they did, they should have gotten one from a real judge.

dksuddeth · 12-23-2006, 06:43 PM

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Originally Posted by willravel

I'm not being sarcastic. I think that judge needs to be in prison next to those police officers for allowing them to sidestep the Fourth Amendment. If they needed a warrent, which they did, they should have gotten one from a real judge.

still missing the point. state law provides that a regulatory agency does not need a warrant. several states have used this same 'loophole' to use investigatory practices on a private business/residence. California is one of them. Why aren't these challenged/changed? because the people cannot be bothered by one or two individuals who are having their rights violated. It's portrayed as a service to society, fighting crime, or benefitting the whole as a public service or use. Why aren't more people coming forward to challenge these government practices?

loquitur · 12-23-2006, 06:45 PM

Back in the 1930s a bunch of people tried to have regulatory agencies found unconstitutional, as delegations of power that aren't amenable to democratic control. They were viewed as libertarian cranks, and the "enlightened" ranks of liberals who were going to save the world using the government rammed their program through.

The rest is history.

dksuddeth · 12-23-2006, 06:51 PM

Quote:

Originally Posted by loquitur

Back in the 1930s a bunch of people tried to have regulatory agencies found unconstitutional, as delegations of power that aren't amenable to democratic control. They were viewed as libertarian cranks, and the "enlightened" ranks of liberals who were going to save the world using the government rammed their program through.

The rest is history.

hooray for new deal democracy.

dc_dux · 12-23-2006, 10:06 PM

Oh yeah...its all the fault of those devilish new deal democrats...or maybe the pesky liberal activist judges of today......or the worst villan of all.....the ACLU!!!!

In the spirit of the season and marginally related to the OP

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An Overdue Visit

'Twas the night before Christmas and all through the nation
Friends of Freedom knew it was a special occasion.
Lady Liberty stood taller just off the shore
Her torch shining brighter than a few weeks before

But it wasn't the flame turning her cheeks all rosy
It was thoughts of Snowe, Feingold and Nancy Pelosi
And leaders from every side of the aisle
Who would soon bring the Bill of Rights back into style.

The Amendments had all hurried out of their beds -
Which was no easy task, they were nearly in shreds -
And they rushed to the window on papery feet
As a jolly old man flew right over their street.

"Could it be!?" they inquired as the roof shook and trembled
And they crept toward the mantle, peaceably assembled,
Just as someone emerged from the chimney with flair
In a shiny red suit, with a shock of white hair

And a top hat, and pants all in red, white and blue -
"Wait a minute," the Amendments exclaimed, "Who are you?"
"Don't be frightened my children," he said, "it's no scam.
"You can't have forgotten your old Uncle Sam!"

"Holy crap!" said Free Speech. "Stop right there!" yelled Bear Arms
And Privacy cried "Who shut off the alarms?!"
The Fifth remained silent, but Uncle Sam said
"We've been having some trouble, but Freedom's not dead."

The Amendments were cautious. "It's just been so long
"We've seen Liberty lost, we've seen so much go wrong.
"The President's trying to mangle and warp us,
"The Fourth is in tatters, so's Habeas Corpus!"

The old man sat down - he had had quite a ride -
But he told them "Don't worry, the Law's on our side,
"'Cause the nation's fed up and more people are crying
"For Justice and an end to illegal spying,

"And secret abductions by the CIA,
"And laws that would take women's choices away,
"And Gitmo tribunals and secret detention,
"And other intrusions too numerous to mention - "

"Not so fast," said a grinchity voice from above
And Don Rumsfeld pushed past the Fourteenth with a shove.
He was covered in soot and he looked kind of scary.
It seemed like his Christmas had not been so merry.

The Amendments said they weren't happy to see him:
"You tried to throw all of us in the museum!
"You've done so much the Constitution forbids!"
"And I would have gone on, but for you meddling kids!"

Uncle Sam told him "Rummy, your plans just won't do,
"So we've got a brand new timetable for you!"
And as Rumsfeld retired and crept into the night
The Amendments cried out "Have a good secret flight!"

From the distance they heard him reply with a snort.
"Bye-bye, Rummy!" they answered, "we'll see you in court!"
Uncle Sam rode the chimney up out of the room
And, like Frosty, he said "I'll be back again soon."

But they heard him exclaim "Oh, and just one more thing!
"This year, when the holiday bells start to ring,
"Try to honor religion. Honest faith can't be wrong.
"It's America, can't we all just get along?

"So, on Christian," he cried, "Muslim, Hindu, and Jew!
"On Quaker! On Shaker! And Atheist too!
"On Buddhist! On Taoist! And to show we're not chickens
"We'll file a few lawsuits defending the Wiccans!

"Your belief is your right, so get out there and savor it.
"Uncle Sam's not a preacher, and he doesn't play favorites!"
So this holiday season, whatever you do,
Warmest wishes for Freedom, from the ACLU.

http://action.aclu.org/site/PageServ...AnOverdueVisit

filtherton · 12-23-2006, 10:29 PM

Quote:

Originally Posted by loquitur

Back in the 1930s a bunch of people tried to have regulatory agencies found unconstitutional, as delegations of power that aren't amenable to democratic control. They were viewed as libertarian cranks, and the "enlightened" ranks of liberals who were going to save the world using the government rammed their program through.

The rest is history.

I don't know if i qualify as an enlightened liberal, but they still seem like libertarian cranks to me.

pan6467 · 12-23-2006, 10:32 PM

Quote:

Originally Posted by loquitur

Back in the 1930s a bunch of people tried to have regulatory agencies found unconstitutional, as delegations of power that aren't amenable to democratic control. They were viewed as libertarian cranks, and the "enlightened" ranks of liberals who were going to save the world using the government rammed their program through.

The rest is history.

See this is where some people just like to blame "liberals" but don't know the facts.

The fact is that a vast majority of regulatory agencies were started before FDR. Many in the later 1800's and most were given power by GOP presidents such as Teddy Roosevelt. So it's bullshit to claim it is just one side.

In the 30's they may have fought them, but we were in a Depression and folks were probably told much the same then as they are today, "Red Tape, government beaureucracy, etc." But, not many complained as water was protected, as food was inspected, as health departments made sure restaurants served good edible food and prevented massive outbreaks of disease, as the government made sure the drugs released were tested to do what they were prescribed to do, or that housing became fair and you paid the same rent as your neighbor in an apartment complex, or that if you have a slum lord you have a chance to file grievences and be heard, or that employment is fair and so on.

As for the OP, we do need to make our voices heard and make sure our rights are protected. But I don't think the government really has to worry about using agencies when they can scare people to vote for smoking bans, trans fat bans, and so on. The government and media raise fear enough on a certain subject they can get the majority to vote for anything, up to and including taking rights away.... oooo sorry, nothing is a "right" anymore they are all "priveleges" that the government can regulate and take away.

loquitur · 12-24-2006, 04:03 AM

Well, there are agencies and there are agencies.

But the idea that it's perfectly OK to have the same board of people decide whether to charge you, have their staff present the case and then decide whether you are liable, is a product of the New Deal. After all, they are "expert" with nothing but the "public interest" in their minds. The US Supreme Court cases that pretty much killed off the anti-delegation doctrine, which allowed Congress to abdicate its decision making power and leave it to agencies, are from the 1930s. The last case that held Congress over-did delegation was Schechter Poultry in 1935.

You can call me a libertarian crank, but Congress is who the people elected to make decisions about policy. Leaving it to agencies to make policy (as opposed to implementing it) is anti-democratic. And having those same agencies do both charging and enforcement is to my stupid eyes a due process violation -- but who the heck cares about constitutional rights when there is "enlightenment" to be brought to the benighted.

Please don't make me pull out my old case books from law school........

smooth · 12-24-2006, 06:15 AM

what do you propose be done differently?

We have thousands of regulatory agencies, perhaps tens of thousands but I don't know specifically. Whatever the number, the amount of decisions made each day by all of them is beyond the capabilities of 100 senators or even the members of the House. Besides being unable to make all of those decisions in a waking day, members of Congress don't necessarily have the expertise required to make knowledgable decisions on whatever matter the agencies are responsible for.

while I agree they are "anti-democratic" in the sense you lay out (that directly elected officials only are allowed to make legislation), it seems strange to me that anyone would argue for the viability or desirability of direct democracy in our modern society anyway.

In addition to all that, I don't believe that regulatory agencies violate the due process clause. I'd like to hear the argument for why I should think they do.

dksuddeth · 12-24-2006, 06:23 AM

Quote:

Originally Posted by smooth

what do you propose be done differently?

We have thousands of regulatory agencies, perhaps tens of thousands but I don't know specifically. Whatever the number, the amount of decisions made each day by all of them is beyond the capabilities of 100 senators or even the members of the House. Besides being unable to make all of those decisions in a waking day, members of Congress don't necessarily have the expertise required to make knowledgable decisions on whatever matter the agencies are responsible for.

while I agree they are "anti-democratic" in the sense you lay out (that directly elected officials only are allowed to make legislation), it seems strange to me that anyone would argue for the viability or desirability of direct democracy in our modern society anyway.

In addition to all that, I don't believe that regulatory agencies violate the due process clause. I'd like to hear the argument for why I should think they do.

Take the BATFE as an example. They have the 'authority' to arbitrarily declare any firearm to fall under extra special regulations or declare them illegal with zero input from our duly elected representatives. One day, thousands of people could be owners of a particular piece of equipment and the next, they could all be felons on the whim of a regulatory agency decision. How is that 'due process'?

smooth · 12-24-2006, 06:41 AM

Quote:

Originally Posted by dksuddeth

Take the BATFE as an example. They have the 'authority' to arbitrarily declare any firearm to fall under extra special regulations or declare them illegal with zero input from our duly elected representatives. One day, thousands of people could be owners of a particular piece of equipment and the next, they could all be felons on the whim of a regulatory agency decision. How is that 'due process'?

What you're describing sounds like a bizarre caricature of what actually occurs in situations that would even remotely resemble how the BATFE regulates weapons. Regardless, if that agency actually did what you described, any persons adversely affected by their decisions would realize their due process in a criminal court of law--assuming what you wrote occurred: that the agency actually made possession of the particular weapon a felony and that the new regulation actually applied to current owners.

If you find that, after exhausting one's court remedies in that scenario, that the regulation was legal, and you were forced to relinquish the weapon or face felony charges, then your problem isn't (or shouldn't, rather) be with whether regulatory agencies violate due process but that *certain* agencies bother you in what they do. this thread, as many others of yours along these lines, appears to have an undercurrent that broader implications for gun ownership exist.

so that's fine, but due process doesn't mean you will get your wishes to do what you want; oftentimes due process means like it's always meant, that as long as the government follows a set of written procedures the people representing the government can act in ways they've been authorized to do so.

but I'd rather see your argument for why something is or is not violating due process, not just posting an example of what you think such a case might look like. I'd like to see your premises laid out and your conclusions so I can weigh them for myself.

dksuddeth · 12-24-2006, 06:59 AM

Quote:

Originally Posted by smooth

What you're describing sounds like a bizarre caricature of what actually occurs in situations that would even remotely resemble how the BATFE regulates weapons. Regardless, if that agency actually did what you described, any persons adversely affected by their decisions would realize their due process in a criminal court of law--assuming what you wrote occurred: that the agency actually made possession of the particular weapon a felony and that the new regulation actually applied to current owners.

If you find that, after exhausting one's court remedies in that scenario, that the regulation was legal, and you were forced to relinquish the weapon or face felony charges, then your problem isn't (or shouldn't, rather) be with whether regulatory agencies violate due process but that *certain* agencies bother you in what they do. this thread, as many others of yours along these lines, appears to have an undercurrent that broader implications for gun ownership exist.

When I post about guns and gun ownership, it is mainly because that is one of my primary interests and because of such, is one that i'm more knowledgeable of. Other rights and freedoms are as important, just that I have not researched them as much as I have gun issues.

Quote:

Originally Posted by smooth

so that's fine, but due process doesn't mean you will get your wishes to do what you want; oftentimes due process means like it's always meant, that as long as the government follows a set of written procedures the people representing the government can act in ways they've been authorized to do so.

but I'd rather see your argument for why something is or is not violating due process, not just posting an example of what you think such a case might look like. I'd like to see your premises laid out and your conclusions so I can weigh them for myself.

I hope that what I lay out now is something that you will consider a violation of due process.

With the passage of NFA, GCA, and FOPA, machine guns that were not registered with the BATFE before May 19, 1986 are prohibited from being owned by civilians. The BATFE, through its regulatory authority, gets to define what constitutes a machine gun. This goes as far as being able to define a 'conversion kit' as a machine gun. Now, a company called the 'Akins group' created a device that allows 'bump firing', a form of rapid fire for a semi automatic rifles. When this device was first introduced to the BATFE for approval, it was NOT considered a machine gun or a conversion kit. After a short time though, the BATFE reconsidered, arbitrarily, and reclassified this device as a machine gun or conversion kit....after several thousand had already been sold. There is no final disposition on those units already sold, but this decision forces the Akins group to cease production, sale, and transfer of all remaining units until such time. Since the BATFE has 'authority' to define what a machine gun is, they COULD also define any semi-automatic that has a faster rate of fire than average as a machine gun. This means that, if they so chose to, they could make millions of semi-automatic weapons illegal at the stroke of a pen with zero input from congress, thereby bypassing any due process or representation by the legislature.

This, I believe, is a very good example of regulatory agencies being able to bypass due process and implement prohibiting legislation, all on their own decisions. What do you think?

smooth · 12-24-2006, 07:17 AM

Quote:

Originally Posted by dksuddeth

When I post about guns and gun ownership, it is mainly because that is one of my primary interests and because of such, is one that i'm more knowledgeable of. Other rights and freedoms are as important, just that I have not researched them as much as I have gun issues.

I hope that what I lay out now is something that you will consider a violation of due process.

With the passage of NFA, GCA, and FOPA, machine guns that were not registered with the BATFE before May 19, 1986 are prohibited from being owned by civilians. The BATFE, through its regulatory authority, gets to define what constitutes a machine gun. This goes as far as being able to define a 'conversion kit' as a machine gun. Now, a company called the 'Akins group' created a device that allows 'bump firing', a form of rapid fire for a semi automatic rifles. When this device was first introduced to the BATFE for approval, it was NOT considered a machine gun or a conversion kit. After a short time though, the BATFE reconsidered, arbitrarily, and reclassified this device as a machine gun or conversion kit....after several thousand had already been sold. There is no final disposition on those units already sold, but this decision forces the Akins group to cease production, sale, and transfer of all remaining units until such time. Since the BATFE has 'authority' to define what a machine gun is, they COULD also define any semi-automatic that has a faster rate of fire than average as a machine gun. This means that, if they so chose to, they could make millions of semi-automatic weapons illegal at the stroke of a pen with zero input from congress, thereby bypassing any due process or representation by the legislature.

This, I believe, is a very good example of regulatory agencies being able to bypass due process and implement prohibiting legislation, all on their own decisions. What do you think?

I think you've given me another example of what you think due process is, despite me asking that you not do so. It's not as though I think you shouldn't be allowed to post whatever you want, but if I were having this discussion with any one of my friends or cohort members, then I'd have to defend my position not simply provide an example I thought illustrated my point.

If you feel you must provide an example, at least give me your reasoning of why you think it qualifies as violating the due process clause. If it were me making this argument, I'd probably start by establishing what I thought the due process clause meant, what it entailed, and then I'd follow it with specific points of how this example violated what I set up in the argument portion of my statement (or writing). A stronger argument would be one that was laced with case law that supported my position, but since that doesn't exist we'll have to suspend disbelief on that portion of the argument for the sake of discussion in the thread.

without any of those things, and especially a definition of what we are talking about as it is understood by the participants within the discussion, it seems more likely people will just start talking past each other.
I don't understand how I can make myself any more clear than that.

EDIT: but if you're really curious, I don't find the example you provided persuasive as a case that violates due process. which is I suppose the main reason I keep asking you to explain why you think it does. I suspect the courts agree with me, or the actions you described would have been ruled illegal. well, not exactly "would have been" since it appears that you've got from a few facts of a case to conjecture of what the agenct *might* do and then ask me whether those possible actions violate due process. and none of that, what might happen, really gets to the heart of the thread.

You don't believe that due process means that each decision made by a government agency must be run before a vote of congress do you?

dksuddeth · 12-24-2006, 07:42 AM

Quote:

Originally Posted by smooth

EDIT: but if you're really curious, I don't find the example you provided persuasive as a case that violates due process. which is I suppose the main reason I keep asking you to explain why you think it does. I suspect the courts agree with me, or the actions you described would have been ruled illegal. well, not exactly "would have been" since it appears that you've got from a few facts of a case to conjecture of what the agenct *might* do and then ask me whether those possible actions violate due process. and none of that, what might happen, really gets to the heart of the thread.

You don't believe that due process means that each decision made by a government agency must be run before a vote of congress do you?

Why this doesn't surprise me is truly a let down. Like most people, you accept that due process is ONLY something that the courts handle through judicial process of indictment, prosecution, and adjudication. Because of that line of thinking is exactly how regulatory agencies have the kind of power that they do. When ANY agency can change a rule that affects the entire populace, whether they are actually impaired or not, that violates our due process. We elect representatives from our districts to debate and legislate, not hired agency employees for which there is no accountability. The courts are not the sole arbitors of due process, for if they were, we would be little more than an oligarchy, ruled and governed by the decisions of judges alone.

Do I think that decisions made by agencies need to be run by congress? No, because agencies should not have the power or authority to make decisions that add to laws or create new ones. The constitution provides that power to congress alone, not an agency under the executive branch. Not to make a personal attack on you, but it's that line of thinking that I mentioned earlier that provides the avenue of losing rights and freedoms. Too many people blindly accept that this is now the way.

smooth · 12-24-2006, 07:59 AM

I've recommended that you take an intro course to legal reasoning before you embark on these kinds of threads. absent that, I'd wish you would at least research the terms you're using...and lay them out in the thread.

I've asked a couple times before so it's evident you can't or won't be doing so and our conversation is pretty much at a standstill.

AFAIK, due process of LAW comes from our English legal roots and, like all legal rights, are protected in a COURT. This isn't my simple-minded acceptance of such matters, but the way our legal and government system has operated for its entire existence and wouldn'tcha know it, the system that predates it from which it derives its authority.

I'm sure it stings, but the BATFE didn't create a "new law" when the agency decided to classify a bump-firing mechanism as a conversion kit. I'm still at a loss though how the original post and points turn into a referendum on gun control. like I said before, this was a pretext to flame one particular agency, not discuss how agencies in general run afoul of our due process clause.

but if it makes you happy, I'll concede that this one agency violates my personal rights of due process in the regard of owning a mechanism that converts my shotgun into a worthless, albeit fun, apparatus that can't hit the broad side of a barn. I can live with that as long as I can live with having inspected meat, poultry, and dairy products--which affects me far more profoundly and directly on a day to day basis.

sorry that you don't see it that way, but to be honest, since y'all are waxing poetic on the joys of democracy, the majority is with me on this one so you'll just have to suck it up. and I suppose that's pretty much where I'll have to leave this discussion.

loquitur · 12-24-2006, 05:33 PM

See, my view is that the government is given way too many things to do. What we need to do differently is cut the number of things the govt does, so that when it does something, it's doing something it has been proven it can do well (or that it's pretty near impossible for anyone else to do, like defend the country), and the decisions about policy get made by Congress.

The agencies are a way for Congress to punt on the hard decisions by giving them to people who aren't accountable. They do the same thing with the courts, by the way. And if you have ever had to deal with an agency...... oy.

I'm not deluding myself that this is achievable, but I do think we need to give some of these structural issues some deep thought. Much of the regulatory apparatus is self-perpetuating and running on inertia plus the power of entrenched interests. (For example, ask yourself why we still have a Rural Electrification Administration. The answer is that the small publicly owned utilities out west like it and lobby for it, even though pretty much the whole country is wired for power now.) My view on these things is, if you wouldn't set it up this way today, you shouldn't maintain it simply because it's there.

filtherton · 12-24-2006, 06:56 PM

Well, i won't argue that there isn't fat that could be trimmed from american regulatory side of beef. I will argue that, in many instances, regulation is something that only the government can do. In general, private business certainly can't be counted on to act responsibly in terms of the environment and employee welfare. People can't be counted on to responsibly buy and sell and use firearms or alcohol or prescription drugs.

As for congress delegating the decision making process, well, what would you have them do? Do you want congress to weigh the merits of every new medication that comes out?

loquitur · 12-25-2006, 08:12 AM

"In general, private business certainly can't be counted on to act responsibly in terms of the environment and employee welfare."

Can't tell you about the environment, Filtherton, but you're wrong about employee welfare. Back when workers were fungible that might have been true, but I'm an employer (partner in a law firm) and one of the biggest problems we have is finding good people, at all levels of the firm. Once we get them, we would be pretty damn foolish not to treat them well, wouldn't we? And believe me, we're not the only ones.

I'll agree that there are certain things govt should be doing. We probably would disagree at the margins and agree on many things. But you shouldn't assume things about people that yo'ure assuming. Many people handle alcohol responsibly, for instance.

No, I don't want Congress evaluating drugs, number one because thye're not capable, and number two because they can be bought. All I want is that whoever they have evaluating them gets detailed guidance from Congress about what is and is not a valid reason to deny certification. Shouldn't there be easier certification coupled with full disclosure of side effects? If you don't like drug companies, well, one reason only the huge guys can get new drugs through is because the system costs $1 billion per drug now, or some ridiculous number like that.

Rekna · 12-25-2006, 09:20 AM

One sample point is not enough to make sweeping decisions. It only takes 1 business to neglect its employees and require regulations and oversight. Look at Walmart, they have found every loophole possible in order to pay as little as possible to their employees resulting in the employees being treated poorly. Imagine if they didn't have any regulations at all. People would be working 80 hour weeks at $1 an hour, be given no breaks, no time off, no sick leave, ect. Sure your buisness may not need oversight but i promise you that there are buisnesses out there that do and as the saying goes. It only takes on bad apple to spoil the whole bunch. If you still think buisness oversight is bad look at Enron.....

filtherton · 12-25-2006, 09:24 AM

Quote:

Originally Posted by loquitur

"In general, private business certainly can't be counted on to act responsibly in terms of the environment and employee welfare."

Can't tell you about the environment, Filtherton, but you're wrong about employee welfare. Back when workers were fungible that might have been true, but I'm an employer (partner in a law firm) and one of the biggest problems we have is finding good people, at all levels of the firm. Once we get them, we would be pretty damn foolish not to treat them well, wouldn't we? And believe me, we're not the only ones.

What you're saying is only true for skilled labor. It isn't true anywhere where labor is cheap and the supply is large. It makes good economic sense to put profits before employee welfare when it makes economic sense to put profit before employee welfare. When it doesn't it doesn't. Private business can be counted on to do whatever makes them the most money, and often what makes them the most money is directly at odds with providing a safe work environment. Just because it isn't profitable for many companies to put their workers in jeopardy doesn't mean that it isn't necessarily to force all companies to provide a safe work environment. Most people won't commit murder but murder laws are still necessary.

loquitur · 12-25-2006, 05:30 PM

as I said, where workers are fungible that might be true. Most workers aren't fungible.

And what I wrote about my firm is also true for the unskilled people, the ones in the mail room and file room.

Ever been an employer, Filtherton? If you haven't, then you really are just making assumptions. Taking care of your employees makes very good business sense. I commend to you an interview with Richard Branson, who claims to have built his Virgin empire on taking care of his employees.

One other thing: from saying that employers should provide safe work environments it doesn't follow that OSHA is necessary. I'm with you that there have to be sanctions for injuring your workers, but we have them already. It's called workers comp laws. Companies that don't take care of the safety of workers can get socked, and I mean socked. Is that the "forcing" you're talking about?

What's apparent to me is that you're making generalizations and advocating government action based on the generalization. That might be the only way policy gets made, but surely you see that that underscores what a blunt instrument government is: you make policy for everyone based on what a subset does. That's how regulatory burdens got started and why there are squadrons of my fellow lawyers getting rich by helping people and companies navigate regulatory minefields (which is not, by any stretch, an economically productive activity).

Rekna, you're presuming there aren't any other sanctions. There are. And last time I looked, WalMart wasn't going begging for workers. It's a big economy, about $15 trillion last I looked, or something like that. No one HAS to work at WalMart.

As for Enron, there is no amount of regulation that would have stopped that. I had a conv once with the then-head of the criminal division at the Justice Dept, and he admitted to me that even if Sarbanes-Oxley had been in place 10 years ago, it would not have stopped the Enron fraud and it would not have stopped the WorldCom fraud. There is no legislation or regulation that will stop bad people who are intent on doing bad things from doing them (that's why we still have murderers despite laws against it). We do have fraud laws, and those laws were applied, and the bad guys are now in jail. But I'll be damned if I'll ever advocated putting all sorts of obstacles in front of the GEs and Amgens of the world merely because Scott Sullivan and Andy Fastow are crooks. That's lunacy, and a recipe for killing the economy.

dc_dux · 12-26-2006, 07:11 AM

Quote:

Originally Posted by loquitur

What's apparent to me is that you're making generalizations and advocating government action based on the generalization. That might be the only way policy gets made, but surely you see that that underscores what a blunt instrument government is: you make policy for everyone based on what a subset does.

Rekna, you're presuming there aren't any other sanctions. There are. And last time I looked, WalMart wasn't going begging for workers. It's a big economy, about $15 trillion last I looked, or something like that. No one HAS to work at WalMart.

As for Enron, there is no amount of regulation that would have stopped that. I had a conv once with the then-head of the criminal division at the Justice Dept, and he admitted to me that even if Sarbanes-Oxley had been in place 10 years ago, it would not have stopped the Enron fraud and it would not have stopped the WorldCom fraud. There is no legislation or regulation that will stop bad people who are intent on doing bad things from doing them (that's why we still have murderers despite laws against it). We do have fraud laws, and those laws were applied, and the bad guys are now in jail. But I'll be damned if I'll ever advocated putting all sorts of obstacles in front of the GEs and Amgens of the world merely because Scott Sullivan and Andy Fastow are crooks. That's lunacy, and a recipe for killing the economy.

I would suggest you are also making generalizations. There are myriad labor regulations that have protected milllions of workers, from child labor abuses to equal employment opportunty, beyond those covered by workers comp.

Banking and securities regulations may not have stopped the Enron excesses, but have protected the small investor and ordinary worker trying to save.

Environmental regulations are hardly protecting only a subset of the people. Safe drinking water, clean air and waste management regs have made a cleaner environment for us all.

Your made earlier comments that regulations aren't amenable to democratic control and leaving it to agencies to make policy (as opposed to implementing it) is anti-democratic. The agencies are a way for Congress to punt on the hard decisions by giving them to people who aren't accountable. They do the same thing with the courts

As an attorney, you should know that many laws require explanatory or clarifty regulations in otder to be implemented. Unless you would prefer that Congress vote on every possible scenario when enacting a piece of legislation . The more appropriate way, if Congress does not like the way some regs are impemented they have two ways to rectify thse purported regulatory abuses - funding and oversight.

There are undoubtedly many excessive, redundant and generally unnecessary regulations. Sunset provisions would help alot, but on the whole, I would suggest, the accomplishments and benefits of our regulatory system far outweigh the burdens.

BTW...in 1999, Clinton signed a bi-partisan bill called the Regulatory Right to Know Act. It requires OMB to annually submit a report to Congress that provides a cost-benefit analysis of federal regulations, analyze the impact of federal rules on small businesses, the private sector, government, wages and economic growth (I agree it doesnt address "individual" rights), and offer recommendations for regulatory reform.

The annual reports have consistently reported that the benefits of regulations exceed the costs. The 2006 report (pdf) noted that "the benefits of major regulations from 1992 to 2005 exceeded the costs by over threefold."

filtherton · 12-26-2006, 03:17 PM

Quote:

Originally Posted by loquitur

as I said, where workers are fungible that might be true. Most workers aren't fungible.

And what I wrote about my firm is also true for the unskilled people, the ones in the mail room and file room.

Most american workers aren't fungible, perhaps. But i imagine that many of the people who harvest our fields and price check our merchandise and sell us crap over the phone are pretty fungible.

Law firms have pretty good margins, i would presume. I would be interested to see how your firm would treat its least skilled employees if staying competetive depended on paying them and treating them like cogs.

Quote:

Ever been an employer, Filtherton? If you haven't, then you really are just making assumptions. Taking care of your employees makes very good business sense. I commend to you an interview with Richard Branson, who claims to have built his Virgin empire on taking care of his employees.

I command you to the history of the labor movement, the mining industry, maquiladoras, sweatshops abd offshoring.

[quote]One other thing: from saying that employers should provide safe work environments it doesn't follow that OSHA is necessary. I'm with you that there have to be sanctions for injuring your workers, but we have them already. It's called workers comp laws. Companies that don't take care of the safety of workers can get socked, and I mean socked. Is that the "forcing" you're talking about?[quote]

Worker's comp laws are a completely decentralized means of making employees safer. Have you ever thought that osha might actually save businesses money by providing standards as opposed to letting each individual business go it alone? How much do you think a safety consultant would charge to disseminate all the information that osha provides for free?

Quote:

What's apparent to me is that you're making generalizations and advocating government action based on the generalization. That might be the only way policy gets made, but surely you see that that underscores what a blunt instrument government is: you make policy for everyone based on what a subset does. That's how regulatory burdens got started and why there are squadrons of my fellow lawyers getting rich by helping people and companies navigate regulatory minefields (which is not, by any stretch, an economically productive activity).

Well, if you're saying that business is more responsive to change than goverment, i agree with you. Unfortunately, businesses tends to only respond to makes them the most money.

I'm not saying that regulatory agencies are fun to deal with, just that the quality of life of the people in our coutry is better because of regulatory agencies.

Quote:

I'll be damned if I'll ever advocated putting all sorts of obstacles in front of the GEs and Amgens of the world merely because Scott Sullivan and Andy Fastow are crooks. That's lunacy, and a recipe for killing the economy.

Apparently the recipe is wrong, because the economy seems to be doing all right.

loquitur · 12-26-2006, 04:20 PM

Well, Filtherton, we've managed to go way off topic. To return to the topic: if you like big government and a regulatory state, you're bargaining away freedoms. I'll certainly agree with you that some tradeoffs are necessary - after all, the social contract is the price we pay for living in civilization. But please recognize that every regulation you put in place is an intrusion on your freedom, and every time you empower a regulator, that person is going to be impinging on someone's freedom. The question should always be whether giving up your own freedom is worth the policy objective you are advocating, and whether there is a way to achieve it without using government and without intruding on people's autonomy.

"Quality of life is better because of reg agencies?" For whom? Do you know that in a bunch of industries, the agencies are captives of the industry and use their power to set up barriers to entry so that others can't compete? In NY, for instance, there are bans on setting up private car companies that parallel bus routes; there are limits on the number of cabs; there are licensing requirements for hairdressers; there are all sorts of "regulations" that were put in place to "protect the public" but in reality are used to keep out competition. The regulatory state is just one more tool for people to do what economists call "rent-seeking." There is an entire industry here of "expediters" - people who can get, say, your building permit application to float to the top of the pile, fercrissakes.

BTW, the union movement grew at a time when workers were fungible. There's a reason why it's shriveling in the private sector now: they're largely protecting against an evil that doesn't exist so much anymore.

filtherton · 12-26-2006, 05:31 PM

Quote:

Originally Posted by loquitur

if you like big government and a regulatory state, you're bargaining away freedoms. I'll certainly agree with you that some tradeoffs are necessary - after all, the social contract is the price we pay for living in civilization. But please recognize that every regulation you put in place is an intrusion on your freedom, and every time you empower a regulator, that person is going to be impinging on someone's freedom. The question should always be whether giving up your own freedom is worth the policy objective you are advocating, and whether there is a way to achieve it without using government and without intruding on people's autonomy.

And? This is nothing i didn't know already.

Did you know that the market can't function without government regulation. That is a fact. If you need any kind of real world examples to look at, look at the markets where there is no effective government. What's the GDP of somalia?

Quote:

"Quality of life is better because of reg agencies?" For whom? Do you know that in a bunch of industries, the agencies are captives of the industry and use their power to set up barriers to entry so that others can't compete? In NY, for instance, there are bans on setting up private car companies that parallel bus routes; there are limits on the number of cabs; there are licensing requirements for hairdressers; there are all sorts of "regulations" that were put in place to "protect the public" but in reality are used to keep out competition. The regulatory state is just one more tool for people to do what economists call "rent-seeking." There is an entire industry here of "expediters" - people who can get, say, your building permit application to float to the top of the pile, fercrissakes.

When i said quality of life i was referring to things that are alive. I wasn't talking about industry or business; those things aren't alive. I've already acknowledged that all regulation isn't good regulation. But if you'll remember the 1990's, the unprecedented economic growth, etc... how much more regulated are we now than we were then? Reality disagrees with your implication that the amount of regulation in america is insurmountable burden on our economy.

Quote:

BTW, the union movement grew at a time when workers were fungible. There's a reason why it's shriveling in the private sector now: they're largely protecting against an evil that doesn't exist so much anymore.

The obvious thing to say is that the evil is gone because the unions and regulators have been successful. The quality of the american workplace wouldn't be what it is today if employers weren't forced to make improvements. Despite their shrinking numbers, they're still pretty strong in some places.

dc_dux · 12-26-2006, 06:26 PM

Quote:

please recognize that every regulation you put in place is an intrusion on your freedom, and every time you empower a regulator, that person is going to be impinging on someone's freedom

Sorry loquitur, but that is just another extreme generalization with no basis in fact. Unless you define impinging on someone's freedom as taking away the "right" to exploit other workers, pollute the environment, put unsafe food and goods on the market, say whatever you want on the public airwaves......

Everything government does has positive and negative impacts. To make a blanket condemnation of the regulatory role of government simply demonstrates an unwillingness to accept that the positive social and economic impacts have, according to most studies, outweighed the negative, and have, for the most part, not impinged on anyone's Constitutionally-guaranteed rights (as opposed to personal freedom).

Where rights (again distinguished from freedom) have been impinged upon, the blame should be on Congress for not using its oversight and funding powers to correct the injustice.

dksuddeth · 12-28-2006, 10:33 AM

Quote:

Originally Posted by smooth

but if it makes you happy, I'll concede that this one agency violates my personal rights of due process in the regard of owning a mechanism that converts my shotgun into a worthless, albeit fun, apparatus that can't hit the broad side of a barn. I can live with that as long as I can live with having inspected meat, poultry, and dairy products--which affects me far more profoundly and directly on a day to day basis.

THIS is exactly how freedom dies in America, because people can 'live with' others rights being infringed because that particular right doesn't affect them much, but they are more concerned about OTHER issues, so those that don't matter can just 'go away'. Because of this attitude, we have a divided people, divided country, and a useless constitution. Thanks for playing.

dksuddeth · 12-29-2006, 07:53 PM

Quote:

Originally Posted by willravel

The police department broke the law and any and all evidence collected is inadmissable. It's an open and shut case for the defence, who can bring a brilliantly easy lawsuit against these idiot police who have never read the Bill of Rights. If nothing happens, you have my permission to start an insurgency.

Thought this might be interesting to some. Seems the district judge that heard the case finally finished his decision and opinion.

the slippery slope to the police state is still going strong folks. welcome to free amerika.

smooth · 12-29-2006, 11:45 PM

I really didn't feel like I had anything more to add to this thread until I read through the opinion, specifically page 10, where I find that not only does Virginia law specifically proscribe a process whereby affected individuals can appeal the denial of their license, but I also find that the plaintiffs are actually currently involved in such procedures!

In short, they're still "in process" not being "denied process"
now, the problem appears to be the "due" (fair) and since neither you nor the claimants agree with what's going on, this is assessed by you as unfair.

that's what I'm getting from this thread, but even though I've now read the judge's opinion for why these actions don't violate their due process, I still haven't seen your logical argument for how this specific scenario does so I'm filling in the blanks the best I can.

dksuddeth · 12-30-2006, 02:02 AM

Several undercover drug ops that yielded zero arrests, a regulatory ABC inspection assisted by 50 police and SWAT team members who then assumed their own search of the establishment and patrons, and on the face of it all a concerted effort to shut down the establishment for an as yet unkown (but highly suspect) reason but because there are several laws and codes that say this type of activity is legal, you see no reason that this guy should bitch about being screwed by the government? you see no denial of any due process here? is your logic ruled completely by the letter of the law instead of whats right and wrong?

smooth · 12-30-2006, 02:35 AM

I suppose one coud say my logic in this domain is ruled by the letter of the law. More to the point, however, is that I'm waiting for you to make a logical argument supporting your contention that what occurred was a violation of the claimants' civil rights to due process.

I'm not saying it can't be done.

You have myself, and a practicing attorney (loquitur) in this thread. I can't vouch for anyone else's credentials.

Since you have voiced your desire to go to law school, this seems like a great opportunity to practice the skills you'll be asked to draw on there. If you use the judge's opinion as a template, you can see how to lay out a logical argument based on past cases.

Ourcrazymodern? · 01-03-2007, 07:40 PM

While not sure if "brilliantly easy" is an oxymoron, I'm pretty sure that no matter how easy we get here in the USA (apologies to the other Americans and even the other Estados Unidos) WE won't be willing to have our FREEDOMS freely taken away. So we'll continue to consult mouthpieces and others and be unwilling to talk to other people as if they were ourselves?
The contradiction may lie near there.
Past cases while still honored might be redefined in the face of things
changing so rapidly?
Case law hasn't really DECIDED anything, it's definitely just a theory.
Just ask my wife.

12-24-2006, 04:03 AM	#11 (permalink)
loquitur Junkie Location: NYC	Well, there are agencies and there are agencies. But the idea that it's perfectly OK to have the same board of people decide whether to charge you, have their staff present the case and then decide whether you are liable, is a product of the New Deal. After all, they are "expert" with nothing but the "public interest" in their minds. The US Supreme Court cases that pretty much killed off the anti-delegation doctrine, which allowed Congress to abdicate its decision making power and leave it to agencies, are from the 1930s. The last case that held Congress over-did delegation was Schechter Poultry in 1935. You can call me a libertarian crank, but Congress is who the people elected to make decisions about policy. Leaving it to agencies to make policy (as opposed to implementing it) is anti-democratic. And having those same agencies do both charging and enforcement is to my stupid eyes a due process violation -- but who the heck cares about constitutional rights when there is "enlightenment" to be brought to the benighted. Please don't make me pull out my old case books from law school........ Last edited by loquitur; 12-24-2006 at 04:04 AM.. Reason: Automerged Doublepost

12-24-2006, 06:15 AM	#12 (permalink)
smooth Junkie Location: Right here	what do you propose be done differently? We have thousands of regulatory agencies, perhaps tens of thousands but I don't know specifically. Whatever the number, the amount of decisions made each day by all of them is beyond the capabilities of 100 senators or even the members of the House. Besides being unable to make all of those decisions in a waking day, members of Congress don't necessarily have the expertise required to make knowledgable decisions on whatever matter the agencies are responsible for. while I agree they are "anti-democratic" in the sense you lay out (that directly elected officials only are allowed to make legislation), it seems strange to me that anyone would argue for the viability or desirability of direct democracy in our modern society anyway. In addition to all that, I don't believe that regulatory agencies violate the due process clause. I'd like to hear the argument for why I should think they do. __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

12-24-2006, 07:59 AM	#18 (permalink)
smooth Junkie Location: Right here	I've recommended that you take an intro course to legal reasoning before you embark on these kinds of threads. absent that, I'd wish you would at least research the terms you're using...and lay them out in the thread. I've asked a couple times before so it's evident you can't or won't be doing so and our conversation is pretty much at a standstill. AFAIK, due process of LAW comes from our English legal roots and, like all legal rights, are protected in a COURT. This isn't my simple-minded acceptance of such matters, but the way our legal and government system has operated for its entire existence and wouldn'tcha know it, the system that predates it from which it derives its authority. I'm sure it stings, but the BATFE didn't create a "new law" when the agency decided to classify a bump-firing mechanism as a conversion kit. I'm still at a loss though how the original post and points turn into a referendum on gun control. like I said before, this was a pretext to flame one particular agency, not discuss how agencies in general run afoul of our due process clause. but if it makes you happy, I'll concede that this one agency violates my personal rights of due process in the regard of owning a mechanism that converts my shotgun into a worthless, albeit fun, apparatus that can't hit the broad side of a barn. I can live with that as long as I can live with having inspected meat, poultry, and dairy products--which affects me far more profoundly and directly on a day to day basis. sorry that you don't see it that way, but to be honest, since y'all are waxing poetic on the joys of democracy, the majority is with me on this one so you'll just have to suck it up. and I suppose that's pretty much where I'll have to leave this discussion. __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

12-25-2006, 05:30 PM	#24 (permalink)
loquitur Junkie Location: NYC	as I said, where workers are fungible that might be true. Most workers aren't fungible. And what I wrote about my firm is also true for the unskilled people, the ones in the mail room and file room. Ever been an employer, Filtherton? If you haven't, then you really are just making assumptions. Taking care of your employees makes very good business sense. I commend to you an interview with Richard Branson, who claims to have built his Virgin empire on taking care of his employees. One other thing: from saying that employers should provide safe work environments it doesn't follow that OSHA is necessary. I'm with you that there have to be sanctions for injuring your workers, but we have them already. It's called workers comp laws. Companies that don't take care of the safety of workers can get socked, and I mean socked. Is that the "forcing" you're talking about? What's apparent to me is that you're making generalizations and advocating government action based on the generalization. That might be the only way policy gets made, but surely you see that that underscores what a blunt instrument government is: you make policy for everyone based on what a subset does. That's how regulatory burdens got started and why there are squadrons of my fellow lawyers getting rich by helping people and companies navigate regulatory minefields (which is not, by any stretch, an economically productive activity). Rekna, you're presuming there aren't any other sanctions. There are. And last time I looked, WalMart wasn't going begging for workers. It's a big economy, about $15 trillion last I looked, or something like that. No one HAS to work at WalMart. As for Enron, there is no amount of regulation that would have stopped that. I had a conv once with the then-head of the criminal division at the Justice Dept, and he admitted to me that even if Sarbanes-Oxley had been in place 10 years ago, it would not have stopped the Enron fraud and it would not have stopped the WorldCom fraud. There is no legislation or regulation that will stop bad people who are intent on doing bad things from doing them (that's why we still have murderers despite laws against it). We do have fraud laws, and those laws were applied, and the bad guys are now in jail. But I'll be damned if I'll ever advocated putting all sorts of obstacles in front of the GEs and Amgens of the world merely because Scott Sullivan and Andy Fastow are crooks. That's lunacy, and a recipe for killing the economy. Last edited by loquitur; 12-25-2006 at 05:39 PM.. Reason: Automerged Doublepost

12-29-2006, 11:45 PM	#32 (permalink)
smooth Junkie Location: Right here	I really didn't feel like I had anything more to add to this thread until I read through the opinion, specifically page 10, where I find that not only does Virginia law specifically proscribe a process whereby affected individuals can appeal the denial of their license, but I also find that the plaintiffs are actually currently involved in such procedures! In short, they're still "in process" not being "denied process" now, the problem appears to be the "due" (fair) and since neither you nor the claimants agree with what's going on, this is assessed by you as unfair. that's what I'm getting from this thread, but even though I've now read the judge's opinion for why these actions don't violate their due process, I still haven't seen your logical argument for how this specific scenario does so I'm filling in the blanks the best I can. __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

12-23-2006, 05:28 PM	#2 (permalink)
Willravel ... a sort of licensed troubleshooter.	The police department broke the law and any and all evidence collected is inadmissable. It's an open and shut case for the defence, who can bring a brilliantly easy lawsuit against these idiot police who have never read the Bill of Rights. If nothing happens, you have my permission to start an insurgency.

12-23-2006, 06:45 PM	#6 (permalink)
loquitur Junkie Location: NYC	Back in the 1930s a bunch of people tried to have regulatory agencies found unconstitutional, as delegations of power that aren't amenable to democratic control. They were viewed as libertarian cranks, and the "enlightened" ranks of liberals who were going to save the world using the government rammed their program through. The rest is history.

12-24-2006, 05:33 PM	#19 (permalink)
loquitur Junkie Location: NYC	See, my view is that the government is given way too many things to do. What we need to do differently is cut the number of things the govt does, so that when it does something, it's doing something it has been proven it can do well (or that it's pretty near impossible for anyone else to do, like defend the country), and the decisions about policy get made by Congress. The agencies are a way for Congress to punt on the hard decisions by giving them to people who aren't accountable. They do the same thing with the courts, by the way. And if you have ever had to deal with an agency...... oy. I'm not deluding myself that this is achievable, but I do think we need to give some of these structural issues some deep thought. Much of the regulatory apparatus is self-perpetuating and running on inertia plus the power of entrenched interests. (For example, ask yourself why we still have a Rural Electrification Administration. The answer is that the small publicly owned utilities out west like it and lobby for it, even though pretty much the whole country is wired for power now.) My view on these things is, if you wouldn't set it up this way today, you shouldn't maintain it simply because it's there.

12-24-2006, 06:56 PM	#20 (permalink)
filtherton Junkie Location: In the land of ice and snow.	Well, i won't argue that there isn't fat that could be trimmed from american regulatory side of beef. I will argue that, in many instances, regulation is something that only the government can do. In general, private business certainly can't be counted on to act responsibly in terms of the environment and employee welfare. People can't be counted on to responsibly buy and sell and use firearms or alcohol or prescription drugs. As for congress delegating the decision making process, well, what would you have them do? Do you want congress to weigh the merits of every new medication that comes out?

12-25-2006, 08:12 AM	#21 (permalink)
loquitur Junkie Location: NYC	"In general, private business certainly can't be counted on to act responsibly in terms of the environment and employee welfare." Can't tell you about the environment, Filtherton, but you're wrong about employee welfare. Back when workers were fungible that might have been true, but I'm an employer (partner in a law firm) and one of the biggest problems we have is finding good people, at all levels of the firm. Once we get them, we would be pretty damn foolish not to treat them well, wouldn't we? And believe me, we're not the only ones. I'll agree that there are certain things govt should be doing. We probably would disagree at the margins and agree on many things. But you shouldn't assume things about people that yo'ure assuming. Many people handle alcohol responsibly, for instance. No, I don't want Congress evaluating drugs, number one because thye're not capable, and number two because they can be bought. All I want is that whoever they have evaluating them gets detailed guidance from Congress about what is and is not a valid reason to deny certification. Shouldn't there be easier certification coupled with full disclosure of side effects? If you don't like drug companies, well, one reason only the huge guys can get new drugs through is because the system costs $1 billion per drug now, or some ridiculous number like that.

12-25-2006, 09:20 AM	#22 (permalink)
Rekna Junkie	One sample point is not enough to make sweeping decisions. It only takes 1 business to neglect its employees and require regulations and oversight. Look at Walmart, they have found every loophole possible in order to pay as little as possible to their employees resulting in the employees being treated poorly. Imagine if they didn't have any regulations at all. People would be working 80 hour weeks at $1 an hour, be given no breaks, no time off, no sick leave, ect. Sure your buisness may not need oversight but i promise you that there are buisnesses out there that do and as the saying goes. It only takes on bad apple to spoil the whole bunch. If you still think buisness oversight is bad look at Enron.....

12-26-2006, 04:20 PM	#27 (permalink)
loquitur Junkie Location: NYC	Well, Filtherton, we've managed to go way off topic. To return to the topic: if you like big government and a regulatory state, you're bargaining away freedoms. I'll certainly agree with you that some tradeoffs are necessary - after all, the social contract is the price we pay for living in civilization. But please recognize that every regulation you put in place is an intrusion on your freedom, and every time you empower a regulator, that person is going to be impinging on someone's freedom. The question should always be whether giving up your own freedom is worth the policy objective you are advocating, and whether there is a way to achieve it without using government and without intruding on people's autonomy. "Quality of life is better because of reg agencies?" For whom? Do you know that in a bunch of industries, the agencies are captives of the industry and use their power to set up barriers to entry so that others can't compete? In NY, for instance, there are bans on setting up private car companies that parallel bus routes; there are limits on the number of cabs; there are licensing requirements for hairdressers; there are all sorts of "regulations" that were put in place to "protect the public" but in reality are used to keep out competition. The regulatory state is just one more tool for people to do what economists call "rent-seeking." There is an entire industry here of "expediters" - people who can get, say, your building permit application to float to the top of the pile, fercrissakes. BTW, the union movement grew at a time when workers were fungible. There's a reason why it's shriveling in the private sector now: they're largely protecting against an evil that doesn't exist so much anymore.

12-30-2006, 02:02 AM	#33 (permalink)
dksuddeth Junkie Location: bedford, tx	Several undercover drug ops that yielded zero arrests, a regulatory ABC inspection assisted by 50 police and SWAT team members who then assumed their own search of the establishment and patrons, and on the face of it all a concerted effort to shut down the establishment for an as yet unkown (but highly suspect) reason but because there are several laws and codes that say this type of activity is legal, you see no reason that this guy should bitch about being screwed by the government? you see no denial of any due process here? is your logic ruled completely by the letter of the law instead of whats right and wrong? __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

12-30-2006, 02:35 AM	#34 (permalink)
smooth Junkie Location: Right here	I suppose one coud say my logic in this domain is ruled by the letter of the law. More to the point, however, is that I'm waiting for you to make a logical argument supporting your contention that what occurred was a violation of the claimants' civil rights to due process. I'm not saying it can't be done. You have myself, and a practicing attorney (loquitur) in this thread. I can't vouch for anyone else's credentials. Since you have voiced your desire to go to law school, this seems like a great opportunity to practice the skills you'll be asked to draw on there. If you use the judge's opinion as a template, you can see how to lay out a logical argument based on past cases. __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

01-03-2007, 07:40 PM	#35 (permalink)
Ourcrazymodern? still, wondering. Location: South Minneapolis, somewhere near the gorgeous gorge	While not sure if "brilliantly easy" is an oxymoron, I'm pretty sure that no matter how easy we get here in the USA (apologies to the other Americans and even the other Estados Unidos) WE won't be willing to have our FREEDOMS freely taken away. So we'll continue to consult mouthpieces and others and be unwilling to talk to other people as if they were ourselves? The contradiction may lie near there. Past cases while still honored might be redefined in the face of things changing so rapidly? Case law hasn't really DECIDED anything, it's definitely just a theory. Just ask my wife. __________________ BE JUST AND FEAR NOT