Bear Bussjaeger

I had a thought, seeing a couple of reports about the Maricopa County election audit.

It seems the AZ SOS has slipped in Dem operative ringers as “observers.” The allowed the SOS three representatives, but instead of sending reps from her office, she sent operatives from Dim non-profits.

Then there are the color coded shirts worn by the folks in the audit center.

Blue shirts appear to be checking ballots for folds.

Yellow shirts are checking absentee ballots.

Green shirts are checking ballots for alignment issues.

Orange shirts are observers.

I suggest the SOS’ reps can be redshirts.

Added: Well…

“Two observers caught my eye because they were in pink shirts, unlike the rest of us.”

I guess pink is sort of red.

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I’ve been having a cordial exhange with Bill Choslovsky about his column arguing that former officer Potter should not be charged with a crime. He asked a very good question.

At some point the question becomes do all mistakes – even innocent ones with good intent – subject you to criminal liability?

All mistakes should not incur criminal liability. But some do. I see it as a matter of intent, and the egregiousness of both the error and the outcome.

In Georgia law, involuntary manslaughter is a criminal offense, and it is based on those conditions.

A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.

In Bill’s surgeon example, the doctor had no intent to cut an artery, and the error was relatively minor: mistaking a scalpel for a probe; something that could happen, especially with a scalpel covered in blood and seen edge-on.

In the Potter case, the officer did intend to shoot the suspect, but committed the errors of drawing the wrong weapon from the wrong position on her belt and failing to recognize that the Glock was not a Taser. Since Taser’s are designed not to be confused with firearms, I consider that error to be egregious. The vast majority of officers do not “accidentally” shoot suspects with sidearms they mistook for Tasers; I think the design is proven to be effective… if the officer is doing her job.

Potter did not intend to kill the suspect. If she had, then a murder charge would be appropriate. But the suspect’s death (outcome) was egregious.

Thus, involuntary manslaughter.

Now let’s look at a hypothetical case: Suppose the officer had correctly drawn and used the Taser (no lethal intent, no egregious error). But imagine the electrical shock occurred at just the right point in the cardiac sinus rhythm and stopped the heart. Out hypothetical suspect dies (egregious outcome).

No intent, no error, but death due to something beyond the officer’s control. Not a criminal offense.

Another example: Taser, but imaginary officer decides to teach suspect a lesson and makes him “ride the lightning” several times. Suspect dies.

No lethal intent, but outrageous misuse of the Taser, and egregious outcome. In Georgia, that would probably be upgraded to voluntary manslaughter, because while death was not intended, unlawful torture was.

Summary: Criminal liability depends upon intent, egregiousness of the error, and outcome.

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As Bill Choslovsky does.

Don’t Confuse an Accident with a Crime
For those who think now-former Brooklyn Center police officer Kim Potter should be charged with a crime – let alone murder – I have a simple question: if a surgeon accidentally nicks an artery and kills a patient when she mistakes the scalpel in her hand for a prober, should she be charged with murder, or even manslaughter?

Answer: no.

That is a very poor analogy.

A better one would be that the surgeon needed a probe. But he asks for a scalpel (Potter draws wrong weapon). Then, failing to notice what tool he has in his hand (Potter fails to notice she has a heavy, black Glock with no manual safety, instead of a lighter, yellow, manual-safety Taser with a very different grip), and deliberately slices an artery (Bang.)

In neither case should the negligent, not accidental, actor be let off with a mere, “My bad. So sue me.”

“Error” does not equal “accident.” Try another analogy: Driver enters an Interstate through the OFF ramp, and proceeds to have a head-on collision at high speed, killing another driver. Should the “oops, ‘accidentally’ used the wrong ramp” driver be allowed to go with a “don’t do that again”?

In the shooting, one might cut a probationary rookie, with minimal training, a bit of adrenalized slack. But a 26 year veteran?

I’m a military veteran, former peace officer, former private security officer, and carry licensee. I can’t count how many times I mistook my firearm for a less-lethal tool and shot someone. I can’t count them because the number is zero. Zero in over 40 years.

For a period, for covert purposes, I carried an OC dispenser disguised as a pen. And never once did I mistake the spray for a pen and spray myself trying to sign a log.

One point of agreement with Mr. Choslovsky; Potter did not commit murder. I’m not familiar with the specifics of Minnesota law, but if this had happened in Georgia, I’d consider it involuntary manslaughter, a misdemeanor.

§ 16-5-3(b) A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. A person who commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner, upon conviction thereof, shall be punished as for a misdemeanor.

Added: For those curious, I did look up Minnesota Statute 609.205 MANSLAUGHTER IN THE SECOND DEGREE, which what Potter is charged with. The relevant part is:

609.205 MANSLAUGHTER IN THE SECOND DEGREE.

A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:

(1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another; or

“Culpable negligence” is the key. 1st degree manslaughter requires intent and covers crime of passion type killings.

The 2nd degree definition is similar to Georgia’s, but is a felony. A quick look at the options available to prosecutors indicates this was the lowest charge they could use in a matter that ended in a death.

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A few days ago, The Zelman Partisans opined upon SCOTUS changing the Question of the plaintiffs, and noted that Associate Justice Gorsuch… Well:

Although it could go 6/3. Gorsuch is such an insufferable hair-splitter that he may go along with the majority, too. On the other hand, he might object to the reframed question itself. Hard to say.

On Thursday, SCOTUS ruled 6-3 in an opinion in favor of the plaintiff in Niz-Chavez v. Garland. This was a case in which an illegal immigrant was fighting deportation. He challenged the fact that he was sent two notices to appear, not one.

Gorsuch wrote the majority opinion. Here’s the key part.

Held: A notice to appear sufficient to trigger the IIRIRA’s stop-time rule is a single document containing all the information about an individ- ual’s removal hearing specified in §1229(a)(1). Pp. 4–12. (a) Section 1229b(d)(1) states that the stop-time rule is triggered by serving “a notice,” and §1229(a)(1) explains that “written notice” is “referred to as a ‘notice to appear.’ ” Congress’s decision to use the indefinite article “a” suggests it envisioned “a” single notice provided at a discrete time rather than a series of notices that collectively provide the required information. While the indefinite article “a” can sometimes be read to permit multiple installments (such as “a manuscript” delivered over months), that is not true for words like “notice” that can refer to either a countable object (“a notice”) or a noncountable abstraction (“sufficient notice”). The inclusion of an indefinite article suggests Congress used “notice” in its countable sense.

No, Gorsuch. As you note, it says “a notice”, not “a SINGLE notice.” What if they send a notice, and the illegal never appears, so they send a second notice? What if they have two addresses for the person and send a notice to both?

Added: I’d better clarify my reasoning for folks who don’t read the opinion.

The issue was whether two two notices, with different parts of the information constituted a legal notice. Gorsuch should have concentrated on the legal definition of “notice,” and concluded that Notice, Part 1 and Notice, Part 2 did not meet the definition. And he should have stopped there.

Instead, he mentioned that almost in passing, and focused on the definition and quantification of “a.”  That is what sets the precedent for the clusterfuck I described above.

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The Fumbling Bumbling Incompetents have trouble classifying terrorism as terrorism:

“It is fair to say that the shooter was motivated by a desire to commit an attack on members of Congress and then knowing by doing so that he would likely be killed in a process. Cases like this are challenging because there were a couple of clues left behind, but he died in the process, never allowing us to fully examine through say an interview his motivations,” Sanborn, the assistant director of the FBI’s Counterterrorism Division, told the hearing.

He was a leftist activist. He targeted a Republican gathering. He had a list of Republican targets. So of course it was “suicide by cop.”

Because what he did doesn’t fit the Fibbers’ preferred political narrative that all domestic terrorists are conservativess.

this conduct is something that today we would characterize as a domestic terrorism event.”

Bullshit. It’s even less likely now that you’d admit it… or you would have already reclassified the event.

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Over at Knuckledraggin‘:

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In case you’ve forgotten about this, here’s some background. The short version is that three white guys in two vehicles pursued Ahmaud Arbery, ayoung black man (on foot), trapped him, and shot him to death.

There version of events is that they suspected him of burglary (of a house under construction) and wanted to “talk” to him, and Arbery “violently attacked” Travis McMichael, who was armed with a shotgun and had left the vehicle to engage Arbery on foot.

Recently, I’ve been seeing reports that suggest the McMichaels and their companion are vindicated, that Arbery was the “Jogger” who commonly used jooging as a cover for burglary and shoplifting. The idea appears to be that this proved Arbery was up to no good on the fatal day, and the McMichaels were justified in making a “citizen’s arrest” (as allowed in certain circumstances in Georgia at the time).

The source for these recent claims appears to be a defense court filing, TRAVIS AND GREG MCMICHAEL’S NOTICE OF INTENT TO INTRODUCE EVIDENCE PURSUANT TO O.C.G.A. § 24-4-404(b) AND UNIFORM SUPERIOR COURT RULE 31.1. This document briefly describes 13 “incidents of alleged criminal behavior by Arbery in the past, supposedly showing that the McMichaels had probable cause to believe Arbery was committing a criminal act. It is a request to the court that they be allowed to present Arbery’s history.

The Notice breaks the 13 incidents down into two sections. The first ten list several incidents where Arbery was investigated but not arrested, once when he was trespassed, and a couple of arrests (with convictions). It would be a damning document, for the prosecution…

…if Arbery were on trial for something like attempted burglary. He isn’t. The McMichaels are going on trial for murder. These ten incidents do not help the McMichaels unless they can show that they even knew about them the day they killed Arbery. The Notice does not make that claim. Given that the incidents — mostly comparatively minor even if accurately portrayed — happened in various other counties, and as early as 2013. I think unlikely that the McMichaels knew of most when Arbery was shot.

No help.

The final three incidents I consider to be damning to their defense. They describe three cases of Arbery being observed on surveillance video: entering the house under construction, canvassing the interior property and valuables contained Within.”

This opens up a nasty can of worms for them. It does not establish the pattern of criminal activity they apparently hope. Remember, they claim they thought Arbery was burglarizing the house.

The three video clips (I’ve seen two, and can confirm those) show Arbery entering the open structure, looking around, and departing, taking nothing. Prosecution will no doubt observe that this only establishes a pattern of noncriminal activity on Arbery’s part; the McMichaels were aware that Arbery never took anything. The prosecution will probably raise two more points: 1) that surveillance video shows many different people entering and leaving without taking anything (So why did you not pursue those white people, Mr. McMichaels ? Didn’t they do the same thing as Ahmaud?(this is what the feds are basing their hate crime charges on; singling out the black guy)), and 2) that house owner has told the press that nothing was ever stolen.

Possibly the McMichaels truly suspected that Arbery intended to commit a crime. Maybe Arbery was planning something despite months of not doing it. But that does not allow for a “citizen’s arrest” as the law, § 17-4-60, was written then.

A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge.

“In his presence.” “Immediate knowledge.” Knowledge, not suspicion. While police have more leeway with “reasonable suspicion,” civilians do not.

Hypothetically, if the McMichaels had observed Arbery enter the structure empty-handed, and then exit with a circular saw, I’d lean towards saying both “in their presence” and “immediate knowledge.” But they did not see that.

Elsewhere, people have tried making the claim that the “crime” the McMichaels observed was “trespassing.” That generally comes from people who never read § 16-7-21. Entering land or open structures, without damaging anything, is only trespass if:

(1) Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person for an unlawful purpose;

(2) Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden; or

(3) Remains upon the land or premises of another person or within the vehicle, railroad car, aircraft, or watercraft of another person after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.

Until someone with the proper authority told Arbery to stay off the property, sightseeing as he appeared to be doing isn’t trespass. You don’t get to assume (1) “unlawful purpose” unless you see proof. A hypothetical example would be observing someone pulling a circular saw out of a job box, and stash it somewhere where he could do a quick grab&go later under cover of darkness. The McMichaels have not claimed to have seen such a thing.

So they could not perform a “citizen’s arrest for trespass.

The whole “citizen’s arrest” argument is somewhat bizzare anyway. When police responded to the McMichael’s 911 call and found Arbery dead, the McMichaels never mentioned trying to make a “citizen’s arrest.” They merely claimed self-defense when Arbery allegedly attacked Travis. They said they were just trying to “talk” to Arbery. The “citizen’s arrest” argument came later… froma prosecutor as he recused himself from the case. For conflict of interest. Because he knew and had worked with the elder McMichael.

The Notice of Intent indicates that Arbery was no angel (which I’ve never claimed), but it does not support the defense, and in fact undercuts it.

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Of course humans are merely “infrastructure,” to be maintained so we can work for them.

Joe Biden to Introduce $1.8 Trillion ‘Human Infrastructure’ Proposal to Congress to Expand Social Welfare Programs
The human infrastructure plan includes $109 billion for free college tuition for Dreamers, free two-year community college for all, free universal pre-K, free aid for minority-serving institutions, a free family leave program, and an expansion of the Child Tax Credit, according to a report.

infrastructure noun
in·​fra·​struc·​ture | \ ˈin-frə-ˌstrək-chər
Definition of infrastructure
1 : the system of public works of a country, state, or region also : the resources (such as personnel, buildings, or equipment) required for an activity

Commies see people as their property. That’s the “from each” part of the mantra.

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Thus sayeth a local nurse, referring to Southeast Georgia Health System.

It seems a Brunswick High School student got stabbed. Original reporting said he was airlifted to Jacksonville, Florida; but that’s been corrected to say he was transported to Savannah, Georgia. Either way, I thought that was wise.

You see, some might think it odd that the stabbee was airlifted to another city, because Brunswick is home to the main campus of the Southeast Georgia Health System. Yes, a big hospital. But…

A woman was bitten by a rattlesnake and taken to the the Brunswick SGHS hospital. Rather than give her antivenom, they decided she was allergic and let her die. They claimed that they were following guidance from Georgia Poison Control. Except their guidance is actually the snake venom will kill her, the antivenom might. Administer antivenom and deal with any allergic reaction once she isn’t going to die.

The SGHS Camden hospital lost an ER patient. I don’t mean he died; I mean they misplaced him. This was especially fun since he was a jail inmate on whom a special eye should have been kept. (I think he was crawling around in the ceiling, but no one was interested in that theory despite the bumps and thumps up there.)

The reason I was at the ER that day could be another story, but suffice to say that my father died. After being transported to the Brunswick hospital.

So, yes, SGHS has this little reputation around here. That’s why they airlifted him out of the city; and why SGHS should be a little embarrassed.

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