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Friday, June 8, 2018

The Getback Whip Issue Revisited.


California Motorcycle Accident Attorney Norman Gregory Fernandez discusses the Getback Whip

OFF THE WIRE
by
Mark found this article and a couple more. Please keep this stuff so you or your club will know how to handle future incidents:

I wrote an article on July 6, 2008, about the Getback Whip, which you can read by clicking here now.
In the article I discussed the fact that the Getback Whip is not specifically made illegal by California Code, but that under certain circumstances, the use of a Getback Whip could be construed as a crime.
Since I wrote the article, I have been contacted by people who have been busted with the whip or whips, and have heard that certain prosecutors and law enforcement agencies throughout the State are busting people with Getback Whips by labeling them a “Slungshot” which is a prohibited weapon in the State of California.
A slung shot has been defined as a weight, as a stone or a piece of metal, fastened to a short strap, chain, or the like, and used as a weapon and is prohibited by California Penal Code §12020.
I have not heard the outcome of any of the Getback whip cases, but in my update to the original article, I have opined that you should not have a Getback Whip on your motorcycle in California until this issue gets resolved one way or another, or you risk being charged with a felony. (State Prison for a year or more)
Going one step further; in California Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment. California Penal Code §245(a)(1).
Basically PC § 245(a)(1) can and is construed to make all types of instruments deadly weapons if they can and do produce great bodily injury. Under this statute, a hammer could be a deadly weapon, a wrench could be a deadly weapon, a screwdriver can be a deadly weapon, a flashlight can be a deadly weapon, and yes a Getback Whip can be a deadly weapon.
It is what you do with the instrument that counts.
Therefore in closing, I am again recommending that based upon the current climate in California, you should remove any Getback Whips from your motorcycle pending the outcome of the Courts decisions in these cases. In no circumstance other than Self Defense with reasonable force, should you use an instrument on someone else which is likely to produce great bodily harm.
Use common sense people.
By California Motorcycle Accident and Biker Lawyer, Norman Gregory Fernandez, Esq., © 2009


Thursday, May 17, 2018

BABE OF THE DAY


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The best way to see what you are eligible to clear is to take the free online eligibility test or Toll Free 844-947-3732.
California has various options for those seeking to move forward in life without the constraints of a criminal record. California’s law allows for the expungement of many types of criminal records, from misdemeanors to felonies. If you received probation in California, an expungement removes a “finding of guilty” from your record, turning the expunged offense into a dismissal. Certain felonies can be reduced to misdemeanors in order to be eligible for expungement. When filling out an application for employment or housing, an expungement allows you to legally state that you have not been convicted of the expunged offense.

If your conviction resulted in time being served in state prison, California offers a Certificate of Rehabilitation that affirms your readiness to move on in life to employers, lenders, and landlords. There are also options for arrest record sealing and early probation termination in California. The rules relating to these different options can be difficult to sort through, but the attorneys at WipeRecord have the knowledge to begin the process of clearing up your criminal record. In the process of clearing your record, WipeRecord can also examine whether you are eligible to have your firearm rights restored under California law. Contact our office to learn more about the various options to expunge your record and gain back your rights.

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What else do you want to know?

The Loophole That Lets Cops Stop, Question and Search You for No Good Reason

OFF THE WIRE
By Simon Davis-Cohen
Cops are using roadside traffic stops to throw the Fourth Amendment out the window.
Checkpoints occupy a unique position in the American justice system. At these roadside stations, where police question drivers in search of the inebriated or “illegal," anyone can be stopped and questioned, regardless of probable cause, violating the Fourth Amendment’s protection against “general warrants” that do not specify the who/what/where/why of a search or seizure. Though the Supreme Court agrees that checkpoints skirt the Fourth Amendment, the Court has been clear that the “special needs” checkpoints serve, like traffic safety and immigration enforcement, trump the “slight” intrusions on motorists’ rights.
We have checkpoints for bicycle safety, gathering witnesses, drug trafficking, “illegal” immigration and traffic safety. Many states, like California, require cops to abide by “neutral” mathematical formulas when choosing which drivers to pull over (like 1 in every 10 cars). In reality, these decisions are left to the discretion of individual police officers, which results in a type of vehicular stop and frisk.
That’s why people in Arizona have sued the Department of Homeland Security for its wanton deployment of immigration checkpoints in their state. Among their complaints are racial profiling, harassment, assault and unwarranted interrogation, and detention not related to the express “special need” of determining peoples’ immigration status.
A key legal detail about checkpoints is that they cannot be used for crime control, as that would require individualized probable cause. But legal scholars argue that non-criminally-minded checkpoints are also illegal. They point out that the Fourth Amendment protected the colonists from being searched for non-criminal “wrongdoing.” Doing nothing wrong at all, they argue, is not grounds to be searched or have your property seized. 
Regardless, unlike DUI checkpoints, these immigration checkpoints, expanded by the 2006 Secure Fence Act, are only allowed within 100 miles of the continental United States’ border. But that’s a big perimeter. Nine of the country’s 10 largest cities, entire states and some two thirds of the US population reside within this constitutionally exempt zone.
At these checkpoints—some of which have become permanent fixtures on the highway—people are forced to stop when flagged down, again regardless of probable cause. But the extent to which people are legally obliged to answer officers’ questions is unclear and seemingly arbitrary. Not surprisingly, the military's immigration checkpoints have garnered outspoken criticism from across the political spectrum. Legalized by the Supreme Court in 1976, these checkpoints seem to have taken on a new momentum in the post-9/11 era. (Private militias have even taken to setting up their own versions.)
DUI checkpoints, on the other hand,  deemed constitutional in 1990, monitor roadways in 38 states. But they have been outlawed by 12 others that have invoked states’ rights to increase federal civil liberty protections. In the Court’s 1990 opinion, Chief Justice William Rehnquist wrote that states’ interest in eradicating drunk driving is undisputable and that this “interest” outweighed “the measure of the intrusion on motorists stopped briefly at sobriety checkpoints,” which he described as “slight.”
In the dissent, William Brennan reminded the Court that, “some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action.” In pulling people over at random, checkpoints remove this individualized component.

Today, the practice seems to be experiencing a renaissance of sorts. With the help of local police, private government contractors have used the tactic to collect anonymous breath, saliva and blood ( DNA) samples of American motorists for the federally funded National Roadside Survey of Alcohol and Drugged Driving. Participation in the survey is voluntary, despite the confusion that may come with uniformed police asking for bodily fluids. Motorists are offered $10 for cheek swabs and $50 for blood samples. These practices have sparked considerable public outrage; law enforcement officials in St. Louis, Missouri and Fort Worth, Texas have stated their intent to limit their future participation in the study.

Wednesday, May 16, 2018

Supreme Court Says Never Speak to a Police Officer

OFF THE WIRE
Supreme Court Says Never Speak to a Police Officer
by WaTcHeR »
Read what rights you have when dealing with a police officer http://www.policecrimes.com/police.html
Washington — The Supreme Court retreated from strict enforcement of the famous Miranda decision on Tuesday, ruling that a crime suspect's words could be used against him if he failed to clearly invoke his rights clearly and, instead, answered a single question.

In the past, the court has said the "burden rests on the government" to show that a crime suspect has "knowingly and intelligently waived" his rights.

But in a 5-4 decision Tuesday, the court said that a citizen must invoke his rights. If he fails to do so, anything he says can be used to convict him, the justices said.

Justice Anthony M. Kennedy wrote that police were "not required to obtain a waiver" of the suspect's "right to remain silent before interrogating him."

In this case, Michigan police had informed the suspect, Van Thompkins, of his rights, including the right to remain silent. Thompkins said he understood, but he did not tell the officer he wanted to stop the questioning or speak to a lawyer.

But he sat in a chair and said nothing for about two hours and 45 minutes. At that point, the officer asked, "Do you pray to God to forgive you for shooting that boy down?"

"Yes," Thompson said and looked away. He refused to sign a confession or speak further, but he was convicted of first-degree murder, based largely on his one-word reply.

The U.S. 6th Circuit Court of Appeals overturned Thompkins' conviction on the grounds that the use of the incriminating answer violated his right against self-incrimination under the Miranda decision.

The Supreme Court reversed that ruling of a lower court ruling and reinstated the conviction. "A suspect who has received and understood the Miranda warnings and has not invoked his Miranda rights waives the right to remain silent by making an uncoerced statement to the police," Kennedy said. He was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The court ruled that an ambiguous situation would be treated in favor of the police.

Justice Sonia Sotomayor, in a dissent longer than the majority opinion, argued that the majority misread precedent and reached beyond the facts of the case to impose a tough new rule against defendants.

"Today's decision turns Miranda upside down," Justice Sotomayor wrote. "Criminal suspects must now unambiguously invoke their right to remain silent—which, counter intuitively, requires them to speak."

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer joined her dissent.

The majority ruling is in line with the position taken by the Obama administration and Supreme Court nominee U.S. Solicitor General Elena Kagan. In December, she filed a brief on the side of Michigan prosecutors and argued that "the government need not prove that a suspect expressly waived his rights."

She said that "if a suspect knows and understands his Miranda rights," anything he says can be used against him in court."Cops that lie, need to die!" A police officer that lies to get an arrest or send someone to prison should be shot.

"In the U.S., a cop with a gun can commit the most heinous crime and be given the benefit of the doubt."

"The U.S. Government does not have rights, it has privileges delegated to it by the people."
WaTcHeR
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Re: Supreme Court Says Never Speak to a Police Officer

Supreme Court trims Miranda warning rights: `Death by a thousand cuts' says defense attorney

You have the right to remain silent, but only if you tell the police that you're remaining silent.

You have a right to a lawyer — before, during and after questioning, even though the police don't have to tell you exactly when the lawyer can be with you. If you can't afford a lawyer, one will be provided to you. Do you understand these rights as they have been read to you, which, by the way, are only good for the next two weeks?

The Supreme Court made major revisions to the now familiar Miranda warnings this year. The rulings will change the ways police, lawyers and criminal suspects interact amid what experts call an attempt to pull back some of the rights that Americans have become used to over recent decades.

The high court has made clear it's not going to eliminate the requirement that police officers give suspects a Miranda warning, so it is tinkering around the edges, said Jeffrey L. Fisher, co-chair of the amicus committee of the National Association of Criminal Defense Lawyers.

"It's death by a thousand cuts," Fisher said. "For the past 20-25 years, as the court has turned more conservative on law and order issues, it has been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects."

The court placed limits on the so-called Miranda rights three times during the just-ended session. Experts viewed the large number of rulings as a statistical aberration, rather than a full-fledged attempt to get rid of the famous 1966 decision. The original ruling emerged from police questioning of Ernesto Miranda in a rape and kidnapping case in Phoenix. It required officers to tell suspects taken into custody that they have the right to remain silent and to have a lawyer represent them, even if they can't afford one.

The court's three decisions "indicate a desire to prune back the rules somewhat," Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims' rights group. "But I don't think any overruling of Miranda is in the near future. I think that controversy is pretty much dead."

The Supreme Court in 2000 upheld the requirement that the Miranda warning be read to criminal suspects.

This year's Supreme Court decisions did not mandate changes in the wording of Miranda warnings read by arresting police officers. The most common version is now familiar to most Americans, thanks to television police shows: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?"

However, the court did approve one state version of the Miranda warnings that did not specifically inform suspects that they had a right to have a lawyer present during their police questioning.

The Miranda warning used in parts of Florida told suspects: "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

Lawyers — and the Florida Supreme Court — said that didn't make clear that lawyers can be present as the police are doing their questioning. But Justice Ruth Bader Ginsburg, writing the 7-2 majority decision, said all the required information was there.

"Nothing in the words used indicated that counsel's presence would be restricted after the questioning commenced," Ginsburg said. "Instead, the warning communicated that the right to counsel carried forward to and through the interrogation."

The next day, the court unanimously limited how long Miranda rights are valid.

The high court said for the first time that a suspect's request for a lawyer is good for only 14 days after the person is released from police custody. The 9-0 ruling pulled back from an earlier decision that said that police must halt all questioning for all time if a suspect asks for a lawyer.

Police can now attempt to question a suspect who asked for a lawyer — once the person has been released from custody for at least two weeks — without violating the person's constitutional rights and without having to repeat the Miranda warning.

"In our judgment, 14 days will provide plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel and to shake off any residual coercive effects of his prior custody," said Justice Antonin Scalia, who wrote the majority opinion.

And finally, the court's conservatives used their 5-4 advantage to rule that suspects must break their silence and tell police they are going to remain quiet if they want to invoke their "right to remain silent" and stop an interrogation, just as they must tell police that they want a lawyer.

All the criminal suspect needs to say is he or she is remaining silent, wrote Justice Anthony Kennedy. "Had he made either of these simple, unambiguous statements, he would have invoked his 'right to cut off questioning.' Here he did neither, so he did not invoke his right to remain silent."

But Justice Sonia Sotomayor said the majority's decision "turns Miranda upside down."

"American citizens must now unambiguously invoke their right to remain silent — which counter intuitively requires them to speak." "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so."

Police officers will look at these decisions and incorporate them into their training, said James Pasco of the National Fraternal Order of Police. "Officers are expected to adapt to changes required by the Supreme Court," Pasco said. "This will be no different."

But Fisher thinks the court's Miranda decisions will make it easier for police to get confessions out of people who don't want to confess. "Those decisions open up ways for cops to work around Miranda," Fisher said.


http://rawstory.com/rs/2010/0802/expert ... k-miranda/"Cops that lie, need to die!" A police officer that lies to get an arrest or send someone to prison should be shot.

"In the U.S., a cop with a gun can commit the most heinous crime and be given the benefit of the doubt."

"The U.S. Government does not have rights, it has privileges delegated to it by the people."
WaTcHeR
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Posts: 8268
Joined: 04 Mar 2007, Sun 1:25 pm
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Re: Supreme Court Says Never Speak to a Police Officer
by WaTcHeR »
When U.S. law enforcement officials captured suspected Times Square bomber Faisal Shahzad, they did the unthinkable: They read him his Miranda rights. Despite the fact that Shahzad continued to cooperate after the reading of his rights, defense hawks criticized the move as soft on terrorism. Now, one member of Congress has introduced a startling solution:

The bill filed Thursday by Rep. Adam Schiff (D-Calif.) would change federal law by creating a procedure to question a suspected terrorist for up to four days before taking him or her to court without jeopardizing prosecutors’ ability to use statements made by a suspect during that time.

It would also express Congress’s view that authorities can delay reading Miranda warnings “for as long as is necessary” to elicit intelligence from a terror suspect.

The White House has yet to take a position on Schiff's bill, but you can bet Attorney General Eric Holder will like what he sees.

Under the bill, the attorney general or the director of national intelligence or their top deputies could certify to a court that an individual is a terrorism suspect and “may be able to provide intelligence to protect the public safety.” In such cases, authorities could question the individual for up to 48 hours without facing an automatic presumption that the statements couldn’t be used in court. A judge or magistrate could extend the period for another 48 hours “for good cause shown.”

While "for good cause shown" sounds like the legal equivalent of "just for fun," Ben Wittes, an analyst at the Brookings Institution, said he liked the bill, except for the only-four-days-of-detention part.

Wittes also said 48 to 96 hours really doesn’t give interrogators much time to talk to a suspect. “If you’re going to do this, you might as well give the government more time than that,” the Brookings expert said.

That's right, federal authorities "might as well" gain the power to hold and question suspected criminals for extended periods of time. While one would expect less hawkishness from a bill written by a California Democrat, the fact that Schiff is up for re-election against this guy puts things in context. When your opponent lists his first two credentials as "former military, former law enforcement," it's time to move to the right, no matter how misguided curtailing prisoners' rights may be.

The bill filed Thursday by Rep. Adam Schiff (D-Calif.) would change federal law by creating a procedure to question a suspected terrorist for up to four days before taking him or her to court without jeopardizing prosecutors’ ability to use statements made by a suspect during that time.

It would also express Congress’s view that authorities can delay reading Miranda warnings “for as long as is necessary” to elicit intelligence from a terror suspect.

The White House has yet to take a position on Schiff's bill, but you can bet Attorney General Eric Holder will like what he sees.

Under the bill, the attorney general or the director of national intelligence or their top deputies could certify to a court that an individual is a terrorism suspect and “may be able to provide intelligence to protect the public safety.” In such cases, authorities could question the individual for up to 48 hours without facing an automatic presumption that the statements couldn’t be used in court. A judge or magistrate could extend the period for another 48 hours “for good cause shown.”

While "for good cause shown" sounds like the legal equivalent of "just for fun," Ben Wittes, an analyst at the Brookings Institution, said he liked the bill, except for the only-four-days-of-detention part.

Wittes also said 48 to 96 hours really doesn’t give interrogators much time to talk to a suspect. “If you’re going to do this, you might as well give the government more time than that,” the Brookings expert said.

That's right, federal authorities "might as well" gain the power to hold and question suspected criminals for extended periods of time. While one would expect less hawkishness from a bill written by a California Democrat, the fact that Schiff is up for re-election against this guy puts things in context. When your opponent lists his first two credentials as "former military, former law enforcement," it's time to move to the right, no matter how misguided curtailing prisoners' rights may be.


http://reason.com/blog/2010/08/02/those ... y-coming-t"Cops that lie, need to die!" A police officer that lies to get an arrest or send someone to prison should be shot.

"In the U.S., a cop with a gun can commit the most heinous crime and be given the benefit of the doubt."

"The U.S. Government does not have rights, it has privileges delegated to it by the people."
WaTcHeR
Moderator
 
Posts: 8268
Joined: 04 Mar 2007, Sun 1:25 pm
Location: Quis custodiet ipsos custodes?
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Re: Supreme Court Says Never Speak to a Police Officer
by WaTcHeR »
New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

The Supreme Court's 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

Matthew Miller, a Justice Department spokesman, said the memo ensures that "law enforcement has the ability to question suspected terrorists without immediately providing Miranda warnings when the interrogation is reasonably prompted by immediate concern for the safety of the public or the agents." He said "the threat posed by terrorist organizations and the nature of their attacks—which can include multiple accomplices and interconnected plots—creates fundamentally different public safety concerns than traditional criminal cases."

The new guidelines could blunt criticism from Republicans, many of whom have pushed for terror suspects to be sent to military detention, where they argue that rigid Miranda restrictions don't apply. But many liberals will likely oppose the move, as might some conservatives who believe the administration doesn't have legal authority to rein in such rights.

The Justice Department believes it has the authority to tinker with Miranda procedures. Making the change administratively rather than through legislation in Congress, however, presents legal risks.

New York Republican Peter King, chairman of the House homeland-security committee, is among the lawmakers who welcomed Mr. Holder's call to change Miranda. At a hearing last year, Mr. King said, "It's important that we ensure that the reforms do go forward and that at the very least the attorney general consults with everyone in the intelligence community before any Miranda warning is given."

The Miranda protocols have been controversial since the high court formalized a practice that was already in use by the FBI, albeit not uniformly. Conservatives have long argued that the warning impedes law enforcement's ability to protect the public.

President Barack Obama has grappled with a web of terrorism policies cobbled together since the Sept. 11, 2001, attacks.

Before becoming president, Mr. Obama had criticized the Bush administration for going outside traditional criminal procedures to deal with terror suspects, and for bypassing Congress in making rules to handle detainees after 9/11. He has since embraced many of the same policies while devising additional ones—to the disappointment of civil-liberties groups that championed his election. In recent weeks, the administration formalized procedures for indefinitely detaining some suspects at Guantanamo Bay, Cuba, allowing for periodic reviews of those deemed too dangerous to set free.

The Bush administration, in the aftermath of 9/11, chose to bypass the Miranda issue altogether as it crafted a military-detention system that fell outside the rules that govern civilians. Under Mr. Bush, the government used Miranda in multiple terror cases. But Mr. Bush also ordered the detention of two people in a military brig as "enemy combatants." The government eventually moved both suspects—Jose Padilla, a U.S. citizen, and Ali al-Marri, a Qatari man—into the federal criminal-justice system after facing legal challenges. In other cases, it processed suspects through the civilian system.

An increase in the number of domestic-terror cases in recent years has made the issue more pressing.

The Miranda change leaves other key procedures in place, notably federal rules for speedy presentation of suspects before a magistrate, normally within 24 hours. Legal experts say those restrictions are bigger obstacles than Miranda to intelligence gathering. The FBI memo doesn't make clear whether investigators seeking exemptions would have to provide a Miranda warning at the time of such a hearing.

Also unchanged is the fact that any statements suspects give during such pre-Miranda questioning wouldn't be admissible in court, the memo says.

http://online.wsj.com/article/SB1000142 ... 19898.html"
Cops that lie, need to die!" A police officer that lies to get an arrest or send someone to prison should be shot.

"In the U.S., a cop with a gun can commit the most heinous crime and be given the benefit of the doubt."

"The U.S. Government does not have rights, it has privileges delegated to it by the people."