Listen as I discuss with Robert Mangino on KDKA-AM the Uvalde School Police's failure to enter the school building during the massacre of 19 students and two teachers.
To listen CLICK HERE
Listen as I discuss with Robert Mangino on KDKA-AM the Uvalde School Police's failure to enter the school building during the massacre of 19 students and two teachers.
To listen CLICK HERE
Katherine Schweit, Former FBI special agent writes in The New York Times:
After watching the tragedy at Robb Elementary School in Uvalde, Texas, unfold after so many other shootings in recent weeks, I’m wondering what I might have missed when I was asked to start the F.B.I.’s active shooter program 10 years ago. Did I have my team focus on the wrong problems? Did I spend my budget wisely to find ways to save lives?
Every shooting is evaluated in three parts: How could we have prevented the shooting? Did we respond effectively to save lives? How are we helping the community recover? Last Monday, the F.B.I. designated 61 shootings in 2021 as active shooter attacks, up from 40 in 2020 and 30 in 2019. We aren’t preventing the shootings, I realized. Perhaps, I thought, we were doing better in responding to the attacks as they unfolded.
But if the 78 minutes that the police in Uvalde waited before confronting the gunman at Robb Elementary are any indication, the answer is: We aren’t. Waiting so long, the director of the Texas Department of Public Safety said Friday, “was the wrong decision. Period.”
So why did the police leadership make that call?
In the first few years after the massacre at Sandy Hook Elementary School in December 2012, the F.B.I. spent more than $30 million to send agents to police departments around the country. The goal was to train local officers how to handle active shooters so they would know how to go after a shooter with confidence and neutralize the threat.
The day after the F.B.I. released its latest active shooter figures, Robb Elementary School was attacked. In the past two years, the Uvalde school district has hosted at least two active shooter trainings, according to reporting by The Times. One of them was two months ago. Current protocol and best practices say officers must persistently pursue efforts to neutralize a shooter when a shooting is underway. This is true even if only one officer is present. This is without question the right approach.
We need to understand why that protocol was not followed in Uvalde. I am still confident the F.B.I.’s focus on training to this standard was right, but I’m less confident in its execution. The officers who responded may have been unprepared for conflict, which can lead to fatal results. Law enforcement officers need to be mentally prepared before they arrive on the scene, so they can respond immediately.
Repetitive training builds practice and confidence. Big gatherings for training every few years are more expensive and less effective for muscle memory. Instead, departments should consider more virtual tabletop exercises they can run through in an afternoon. Have officers walk through schools and talk with one another about how they would respond. Require officers to check all their gear before they begin a shift.
Last year, active shooters killed 103 people and injured 140 others in 30 states. Five of those attacks were in Texas. Most of our more than 800,000 law enforcement officers in the United States are in small departments. This is not the first time a law enforcement agency has failed in the way it responded. At times, training can become routine and be taken less seriously in any environment, but agencies should be careful to avoid complacency. Are they undertaking the training to check a box? Police department leaders need to tell their officers today what is expected of them and to understand that Americans demand it.
We also need to re-evaluate how we advise students and teachers to react when an active shooter enters a school. After Sandy Hook the federal government adopted the run, hide, fight model, which instructs students and teachers to run first if they can, then hide if they must and, finally, fight to survive.
Today schools, at best, are giving lip service to the first part of that mantra, to run. Most schools that train for a shooting urge students, teachers and other staff members to lock out or hide from a shooter but almost never to run for their lives if they can. My friend Frank DeAngelis, a retired principal of Columbine High School in Colorado, told me he wished his students and faculty had been taught to flee. At Sandy Hook, nine first graders survived when they were able to flee their classroom, thanks to their brave teacher Victoria Leigh Soto, who was shot and killed when she stood in front of the killer.
I still have nightmares about details from school shootings in which survivors told me they huddled under their desks, hoping against logic that the shooter would not see them. It’s hard to shed the images of victims’ bodies found huddled under plastic tables, behind cloth partitions or together in a group against a wall.
I remember telling my children that if someone approached them in a car while they were walking, they should run as fast and as far as possible. Yet in many school settings we have mistakenly discouraged students from trying their best to simply stay alive.
Now my youngest child is a teacher whose middle school classroom is near the end of a hall with a side door to the outside. The classrooms are filled with desks. She knows that killers who strike schools will take advantage of opportunities to find more victims. I share my daughter’s experience not to invite criticism of the actions of educators responding to lethal situations but to underscore how vital proper training is to the survival of teachers and their students.
We’re told the best way to learn is from the mistakes we make. According to data from the F.B.I., in recent years the average number of casualties per active shooter attack has declined even as the number of attacks has increased. I think this reflects better policing and improved public awareness.
Still, police will not likely be there in the critical first minutes of an attack on a school. In the aftermath of the wrenching tragedy in Uvalde, it’s clear that, nearly 10 years after Sandy Hook, we must ask ourselves if the training designed to safeguard us against killers in our schools is the training that is working.
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The New York Times is reporting that the Justice Department will open an investigation into the law enforcement response to the mass shooting, at the request of Mayor Don McLaughlin of Uvalde. “The goal of the review is to provide an independent account of law enforcement actions and responses that day, and to identify lessons learned and best practices to help first responders prepare for and respond to active shooter events,” the department said in a statement.
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The police chief who officials said decided to wait to confront the gunman at Robb Elementary School in Uvalde, Texas, completed an active shooter training course in December, according NBC News.
Peter Arredondo, the chief of police for the Uvalde Consolidated Independent School District, completed an eight-hour "Active Shooter Training Mandate" course on Dec. 17, 2021, according to Texas Commission on Law Enforcement public records obtained by NBC News.
He completed the same course the previous year, on Aug. 25, 2020, according to the documents.
Arredondo, who has been the chief since 2020, stopped at least 19 officers from rushing in as the 18-year-old shooter opened fire for at least an hour, killing 19 students and two teachers, officials said Friday.
"It was the wrong decision," Steven McCraw, the head of the Texas Department of Public Safety, said at a news conference Friday.
McCraw said Arredondo believed that the shooter had barricaded himself and that the children were not under an active threat.
The training course explicitly educates participants on how to "compare/contrast an active shooter event and a hostage or barricade crisis."
Instead of sending officers in, he spent time finding keys that would let him into the school, according to McCraw.
In the midst of the shooting, at least two children called 911, one of whom begged for help; one girl called 911 more than five times, McCraw said.
Federal agents were told by local police to wait and not enter the school — and then decided after about half an hour to ignore that initial guidance and find the shooter, two senior federal law enforcement officials told NBC News on Friday.
Arredondo was not present Friday when McCraw briefed reporters, and McCraw did not identify him by name.
Arredondo's cell phone voicemail was full when NBC News attempted to contact him Saturday. NBC News sent him a text and also left him a message at his work line. The school district did not immediately respond to an email requesting comment, and a phone number for after-hours questions appeared to be disconnected.
A police officer parked outside Arredondo's home on Saturday said his family was declining interviews with reporters.
The Texas Commission on Law Enforcement released the curriculum for the training course two years ago, according to information on the website for the Texas School Safety Center at Texas State University.
Three representatives for the Texas School Safety Center did not immediately reply to an email requesting comment Saturday, and a spokeswoman for the Texas Commission on Law Enforcement did not immediately respond to a voicemail message.
The 30-page training course curriculum is divided into six units.
The first unit aims to teach participants about how school shootings in recent decades — including the massacres at Columbine High School in Littleton, Colorado, in 1999, and Marjorie Stoneman Douglas High School in Parkland, Florida, in 2018 — influenced "law enforcement response tactics."
The second unit lays out "priorities" for responding officers, and states: "First responders to the active shooter scene will usually be required to place themselves in harm’s way and display uncommon acts of courage to save the innocent. First responders must understand and accept the role of 'Protector' and be prepared to meet violence with controlled aggression."
The third unit is titled "Stop the Killing." The fifth unit is titled "Stop the Dying."
"Time is the number one enemy during active shooter response," the curriculum states. "The short duration and high casualty rates produced by these events requires immediate response to reduce the loss of life."
The records also show that Arredondo completed more generalized "School-Based Law Enforcement" training courses on Nov. 12, 2020, and July 18, 2018.
Arredondo recently won a seat on the Uvalde City Council, and he is scheduled to be sworn onto the council on Tuesday — exactly one week after the Uvalde shooting.
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Mark Follman writes in MotherJones:
For many years now, every horrific gun massacre has ricocheted widely with a familiar theme of outrage and surrender. On Wednesday, the day after a heavily armed, suicidal 18-year-old slaughtered 19 children and two adults at a Texas elementary school, Washington Post columnist Brian Broome published one of the more powerful versions of that narrative I’ve ever read. “Nothing happened after innocent children were slaughtered the last time, or the time before that, and nothing is going to be done now,” he wrote, citing Columbine, Virginia Tech, Sandy Hook and Parkland.
Broome’s column articulated the enduring shame of our nation’s political stalemate and pathetic inaction on gun policy. It was piercing and poignant—and, in my view, wrong.
It’s not just that we shouldn’t resign ourselves in perpetuity to such outrage, rightful as it is. This narrative has become part of the problem itself—in some cases possibly even fueling the escalating cycle of mass shootings. That’s because it validates the recurring violence, framing it as an indefinite feature of our reality.
And mass shooters pay heed. After nearly a decade of studying these attacks and how to prevent them through the work of behavioral threat assessment, I documented extensive case evidence for my book, Trigger Points. The research shows that many perpetrators are keenly aware of media and political narratives about their actions.
They hope the public will focus on sensational coverage of their rage-filled “manifestos,” their sinister photos uploaded to social media, their ghastly livestreams. They want notoriety, and they seek justification and credibility for their acts of violence. And in the message that America will never stop these mass shootings, they find such affirmation.
“School shootings happen all the time,” remarked a troubled 17-year-old subject of one threat investigation I examined. He had become fixated on watching videos about the 2018 school massacre in Parkland, researched where he might buy a firearm, and later commented that committing such an attack could be an easy way for him to “get famous.”
The mass shooter driven by racist hatred in Buffalo, New York, cited livestreamed footage and writings posted online from a 2019 massacre as a source of inspiration, detailing his own plan to do the same, “to increase coverage and spread my beliefs.”
Mass shootings can be prevented. In fact, it happens with regularity at the hands of threat assessment teams. They work to intervene constructively with troubled people, often after someone in the orbit of those people becomes worried by their behavior and reaches out for help. The method relies to a great extent on community awareness—and its potential could grow if we do away with some big enduring myths about mass shootings.
One is that mental illness is fundamentally to blame for these massacres. After the horror at Robb Elementary School in Uvalde this week, Texas Gov. Greg Abbott pushed that argument in his public comments. Pro-gun politicians and leaders of the NRA have long used it as a tactic for distracting from the national debate over gun laws—essentially dismissing each new mass shooting as an inexplicable “evil,” as Abbott described it, and implying that responsibility for change lies squarely with the mental health field. (Never mind that Abbott just cut $211 million in April from state mental health services.)
No mass shooter, by definition, is mentally healthy. These are people with deep rage, despair and other problems, who need help in various ways. But the exploitation of mental illness in lay terms is highly misleading and counterproductive to preventing these attacks, as I wrote after the massacre in Buffalo:
The claim that mental illness produces such attacks implies that mass shooters are insane, as if they are disconnected from reality and act based on no rational thinking. This goes hand in hand with the common theme that these offenders “snap,” which suggests they commit impulsive acts of violence, bursting forth from nowhere. Both explanations are wrong.
Extensive case history shows that mass shooters don’t just suddenly break—they decide. They develop violent ideas that stem from entrenched grievances, rage, and despair. In many cases they feel justified in their actions and regard killing as the sole solution to a problem. They arm themselves and prepare to attack, choosing where and when to strike. Often this is a highly organized and methodical process.
Blaming mental illness for mass shootings inflicts a damaging stigma on the millions of people who suffer from clinical afflictions, the vast majority of whom are not violent. Extensive research shows the link between mental illness and violent behavior is small and not useful for predicting violent acts; people with diagnosable conditions such as schizophrenia or bipolar disorder are in fact far more likely to be victims than perpetrators of violence.
Another major falsehood is continually reinforced through news reporting that quotes people who knew or came in contact with a shooter: “I never thought he could do something like this,” and, “No one could’ve seen this coming.” In many cases, nothing could be further from the truth. In the scores of threat investigations and mass shootings I studied, every case subject showed a mix of identifiable warning signs. These fall into eight areas:
Entrenched grievances: Shooters often stew over mistreatment or injustices, real or perceived.
Threatening communications: Signs of intent, or “leakage,” can be veiled or direct, noticeable in talk, writing or online posts.
Patterns of aggression: Acts such as domestic violence indicate a capacity to harm and correlate with risk.
Stalking behavior: Fixation and harassment are red flags that were first studied in political assassins and celebrity stalkers.
Emulation: This is the so-called copycat problem; mass shooters often signal that they identify with past attackers.
Personal deterioration: Breakdowns of routine and loss of resilience point to tendencies that can culminate in a murder-suicide.
Triggering events: A major failure in school, work or a relationship can set violence in motion.
Attack preparation: Acquiring a gun, practicing at a range and surveilling a venue are common in the days or weeks before an attack.
Many of these warning signs, we now know, were present and escalating long before Tuesday’s nightmare in Uvalde—as they were before the one in Buffalo, and before that, in the run-up to the massacre at Oxford High School in Michigan.
This is the true nature of these attacks. And the expanding knowledge of these patterns represents opportunity for threat assessment teams to intervene, before it’s too late.
Diminishing this American nightmare is going to take many different forms of action: continuing a relentless, long-term effort to strengthen our nation’s gun laws. Quashing a surge in violent political extremism. Investing in a lacking mental health care system. And building community-based violence prevention programs.
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Watch my presentation The Machinery of Death: An Examination of Capital Punishment by the Numbers at CrimeCon 2022 in Las Vegas, Nevada on May 1, 2022.
To watch CLICK HERE
Pennsylvania has long been known as a gun-friendly state. But that doesn’t mean voters here are opposed to all gun safety measures, such as strengthening background checks or requiring people to get a permit to buy firearms, reported the Philadelphia Inquirer.
“The vast majority of Pennsylvanians of all political persuasions support gun safety,” said Adam Garber, executive director of the nonprofit advocacy group CeaseFire PA.
Here’s where Pennsylvanians stand on proposals to regulate guns, according to recent polls:
The big picture
The most recent public opinion survey to measure Pennsylvanians’ views on gun safety was commissioned by the Giffords organization in April, Garber said.
In that poll of 664 Keystone State voters, 55% of respondents said they believe federal gun laws should be “stronger,” while 15% said they should be “less strong,” and 27% said they should stay the same.
Asked how important “doing more to prevent gun violence” was, 21% of respondents said it was the “most important issue,” while 45% said it was “a very important issue.” Only 14% said it was “not that important.”
The survey, conducted by Public Policy Polling, included respondents from both parties, with 48% saying they voted for President Joe Biden in the 2020 election, and 47% saying they voted for former President Donald Trump.
Support for gun-control measures is even higher when pollsters ask respondents about specific policy proposals.
In a February 2021 survey by the PA Safety Alliance, 73% of Pennsylvanians said they were supportive of requiring a permit to purchase a firearm, and 68% were supportive of requiring fingerprints to get permits.
In the Giffords poll, 83% of Pennsylvanians said they support background checks on all gun purchases, while 11% said they opposed them. Background checks are currently required for many firearms purchases, but there are significant loopholes in the screening system, such as purchases completed at out-of-state gun shows.
Despite the political impasse in Washington, addressing gun violence through firearms regulations may be becoming a more politically salient issue.
In 2019, the Republican Main Street Partnership surveyed 500 women in five of the nation’s most competitive congressional districts, including the Bucks County-based 1st District in Pennsylvania, and found growing support for gun control, WHYY reported.
In that poll, 30% of respondents said “working to prevent gun violence” was their No. 1 issue, the highest level of interest of any policy area included in the survey, and 72% said they think gun laws should be stronger.
Sixty-four percent of the women surveyed said they’d be more likely to vote for Republicans if they supported gun-control measures.
Similarly, the Giffords poll found that 64% of Pennsylvania voters said they would be more likely to support a U.S. Senate candidate who supported universal background checks if that person were running against a candidate who opposed them. Only 10% said they would be more likely to vote for a candidate who opposed checks, while 22% said it would not affect their vote.
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The US Court of Appeals for the Fourth Circuit ruled that post-Civil War amnesty laws do not protect members of Congress who voiced support for the January 6, 2021, attack on the US Capitol, reported Jurist.
Voters brought a case against Representative Madison Cawthorn, claiming that Cawthorn was ineligible to run for re-election because of his comments in support of the Capitol attack. Voters argued that Cawthorn’s comments violated a clause of the Fourteenth Amendment which disqualifies insurrectionists.
Under the clause, politicians who have engaged in “insurrection or rebellion” against the United States or “given aid or comfort” to insurrectionists are barred from running for Congress. Cawthorn argued that the Amnesty Act of 1872 repealed the clause and protects him. At the trial court level, a federal judge agreed and dismissed the challenge to Cawthorn.
However, Judge Toby Heytens wrote for the Fourth Circuit that “the 1872 Amnesty Act removed the Fourteenth Amendment’s eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment… the 1872 Amnesty Act does not categorically exempt all future rebels and insurrectionists.”
Cawthorn lost his GOP primary last week, but the ruling may apply to other elected officials.
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The United States Supreme Court released an opinion that will cause profound suffering and perhaps even death as people are denied their constitutional rights, reported Slate. No, the court did not release the final version of the opinion in Dobbs v. Jackson Women’s Health Organization, the case in which a leaked draft revealed that the court is poised to overrule Roe v. Wade and Planned Parenthood v. Casey, which recognize the right to end a pregnancy through an abortion. Instead, the decision today is a little-known habeas decision, Shinn v. Martinez Ramirez, involving two men in Arizona who have been condemned to death row. The consequences of Martinez Ramirez will also be disastrous for anyone relying on their constitutional right to effective counsel. And, like the Dobbs leak, today’s decision also makes clear that the court’s conservative supermajority is hellbent on smashing and grabbing precedent and constitutional rights no matter the consequences.
Shinn v. Martinez Ramirez involves a pair of consolidated cases in which two people who were convicted in Arizona state courts argued that they had received ineffective assistance at their trials. The two defendants in Martinez Ramirez argued that the process of obtaining their convictions or sentences violated the Sixth Amendment to the Constitution, which guarantees the effective assistance of counsel. One of the defendants, Barry Jones, maintained that his lawyers were so ineffective they failed to uncover evidence that he was innocent of the crimes. Jones was convicted at trial and sentenced to death. The other defendant argued that his lawyers failed to uncover mitigating evidence that would have persuaded the jury to sentence him to a term of years in prison rather than the death penalty.
That two Arizona defendants would have received constitutionally ineffective assistance at their trials is no accident. Indigent defense—defense for people who lack the resources to hire their own lawyer—is in crisis in this country. Indigent defense is woefully underfunded, and public defenders handle hundreds of cases per year, many more than they have the time or resources to manage effectively. States also heavily restrict the procedures and resources that would allow public defenders to develop their cases in greater depth.
Unfortunately, the problem does not end there. Instead, it continues throughout state criminal proceedings into post-conviction proceedings, where defendants are supposed to be able to enforce their Sixth Amendment right to effective assistance of counsel. That is because when a defendant receives ineffective assistance of counsel at trial, the trial lawyer can’t simultaneously argue that they are providing ineffective assistance. Neither can the defendant’s lawyer on appeal, when the case is restricted to the record at trial. Ineffective assistance claims often depend on evidence outside the record, like what a lawyer failed to uncover. And so ineffective-assistance-of-trial-counsel claims are raised during post-conviction proceedings that happen after an appeal. During post-conviction proceedings, a defendant is supposed to be able to expand the initial trial record and point to all of the things that his trial lawyer failed to uncover.
That’s how it’s supposed to work. But just as there is an indigent defense crisis in this country, there is also a post-conviction crisis. Post-conviction proceedings are woefully underfunded, and lawyers are limited in the time and resources they have to pursue post-conviction relief. So defendants who are represented by ineffective lawyers at trial may then be represented by an ineffective lawyer during their post-conviction proceedings, when they are supposed to be arguing that their trial lawyer was ineffective. And—surprise—the ineffective post-conviction lawyer may fail to argue that the trial lawyer was ineffective, or may fail to develop any evidence in support of that claim.
A decade ago, the Supreme Court responded to this problem with a simple and elegant solution. In a pair of decisions, the court said that if a defendant is represented by an ineffective lawyer during their post-conviction proceedings, and that lawyer fails to argue that the defendant was represented by an ineffective lawyer during the defendant’s trial, a federal court can still hear the defendant’s claim that they received ineffective assistance at trial in violation of the Sixth Amendment. That’s because the defendant isn’t at fault for failing to present their ineffective-assistance-of-trial counsel claim when, through no wrongdoing on their part, the state appoints an ineffective lawyer to represent them during post-conviction proceedings, and that ineffective lawyer fails to argue the defendant received shoddy legal help during trial.
That’s where the law stood before today, when the court took a wrecking ball to those decisions. Martinez Ramirez held that there is nothing a federal court can do when a defendant received ineffective assistance at their trial in violation of the Sixth Amendment and was then appointed an ineffective attorney during post-conviction proceedings who did not present evidence to support the claim that the defendant received ineffective assistance at trial. Specifically, the court held that the federal statute governing post-conviction review, the Antiterrorism and Effective Death Penalty Act, prohibits the federal court from considering evidence that the ineffective post-conviction lawyer failed to uncover. As it did in the case of Jones, this evidence may indicate that the defendant is innocent of the crime for which he was sentenced to death.
The court recognized that Martinez Ramirez nullified the prior decisions that offered defendants a shot at relief, writing that “any such hearing” permitted under those decisions “would serve no purpose,” since a federal court could not consider the evidence in deciding whether the defendant’s rights under the Sixth Amendment were violated. As Justice Sonia Sotomayor wrote in a dissent for the three Democratic appointees, the court’s decision “makes illusory the protections of the 6th Amendment.”
Sotomayor’s dissent accurately described the court’s decision as “perverse” and “illogical,” arguing that “it makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in post-conviction proceedings” but to “fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim.” Rather, Sotomayor continues, by definition the defendants “are not at fault for their state postconviction counsel’s failure to develop evidence. [They] acted diligently, but their attorneys’ errors, paired with the State’s choice of how to structure their review proceedings, constituted external impediments.” Simply put, the defendants haven’t failed to develop the factual basis of their claims. And the Antiterrorism and Effective Death Penalty Act, she continues, accordingly doesn’t prevent them from introducing new evidence in federal court when properly interpreted.
It’s true, of course, that a rational governor or parole or commutations board might pardon or commute the sentences of persons who were convicted of crimes they did not commit, or persons who received sentences they shouldn’t have. But that doesn’t excuse the court’s decision that gives them the choice not to do so—and to potentially go ahead and execute innocent people whose constitutional rights were violated.
It is no secret that there are innocent people in prison for crimes they did not commit. Nor is it a secret that some of those innocent people were sentenced to death. Some of them are probably still on death row today. In this case, for example, four federal judges on two different courts concluded there was a reasonable probability that Barry Jones did not commit the crime for which he was sentenced to death after a trial where the state denied him his Sixth Amendment right to the effective assistance of counsel. Today, the Supreme Court essentially told the state that it can go ahead and execute him anyway.
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The Supreme Court of Wisconsin unanimously ruled on the issue of individuals allowed to possess a license to carry a concealed weapon (CCW license) in the state, in effect broadening the eligibility, reported Jurist.
The case traces back to 1993 when petitioner-appellant Daniel Doubek received a misdemeanor conviction for domestic violence after he broke into his estranged wife’s home and proclaimed threats. In 2016, Doubek applied for and was issued a CCW license. However, a 2019 audit conducted by the US Department of Justice (DOJ) determined that Doubek’s misdemeanor conviction prohibited his possession of a CCW license. The DOJ found that his “conviction constituted a disqualifying ‘misdemeanor crime of domestic violence’ under federal law.” Doubek then initiated a lawsuit to reinstate the possession of his CCW license.
While the revocation of Doubek’s CCW license was upheld by the Circuit Court for Brown County, the Wisconsin Supreme Court reversed this decision and held that “disorderly conduct is not a misdemeanor crime of domestic violence under federal law, and therefore does not disqualify a person from holding a CCW license.”
In Justice Jill Karofsky’s concurrence, she wrote that “[t]hough legally correct, this result is as nonsensical as it is dangerous. In the realm of domestic violence, threats to kill, like the one Doubek made to his wife, more than double the risk of femicide.”
The case has been remanded to the circuit court.
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House Speaker Nancy Pelosi told CNN on Sunday that last weekend’s massacre at a Buffalo supermarket, allegedly perpetrated by an overt white supremacist, was “domestic terrorism.”
Payton Gendron’s suspected manifesto appears to show that he did hope to inflict terror on the Black community. His goals were political, making “terrorism” seem to be an appropriate label for his actions.
But if the two decades since 9/11 should have taught us anything, it’s that the government can and will use fears of “terrorism” to surveil, prosecute, and harass any number of people and communities—especially racial and religious minorities—no matter how specious their ties to terrorism actually are, wrote Lucy Steigerwald for The Daily Beast.
Nevertheless, Pelosi and other Democrats continue to push the Domestic Terrorism Prevention Act (HR 350). This bill would add new offices and funding to the Department of Homeland Security, FBI, and Department of Justice. Most concerning is the enhancement in “information sharing” between the offices and state and local law enforcement.
Vast surveillance dragnets already catch up the data of millions of Americans. Federal agencies—from the FBI to the NSA to ICE—have nearly unfettered access to data revealing the movements and faces of practically everyone in this country.
Supposedly tailored restrictions, such as the No-Fly List, are still too vast to catch dangerous people, not to mention the fact that they frequently place completely innocent people under government suspicion. And it’s still nearly impossible to challenge the list of scores of thousands of names of people whose right to travel in US airspace is gone without trial or even being informed.
The Patriot Act made it easier to spy on and harass countless innocent Muslims, particularly in New York City.
And though racial and religious minorities will suffer the most under the weight of any new “domestic terror” law, political radicals and “extremists” (i.e., people with unpopular politics) should not be forgotten. Plenty of groups that you may not like or entirely condone are not necessarily terrorists, but they are called potentially violent and dangerous by the federal government.
In 2005, the FBI dubbed environmentalists the most dangerous domestic threat. You don’t have to agree with—or want to decriminalize all of their activities (usually trespassing, theft, and property damage)—to realize this is absurd. The FBI considers Juggalos, those enthusiastic fans of the band Insane Clown Posse, to be a gang threat. An 18-year-old rapper was nearly charged with terrorism in the wake of the 2013 Boston Marathon bombing. Another rapper was charged with terrorism for anti-police lyrics.
The FBI even labeled Black Lives Matter a “Black Identity Extremism movement” to justify its secret surveillance program targeting the movement.
The overbroad labeling of “suspected terrorists” or people suspected of “ties to terrorism” went into hyperdrive after 9/11, but its roots stretch back a few years earlier.
After a white supremacist bombed the federal building in Oklahoma City in 1995, killing 168 people, then-President Bill Clinton pushed through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). This was the proto-Patriot Act, increasing the government’s investigation and surveillance scope. It also damaged the constitutional habeas corpus rights of prisoners, meaning that innocent people (or those who had a lousy defense at trial) had fewer opportunities to challenge their status.
John Oliver cited the AEDPA in a March 2022 episode of Last Week Tonight on wrongful imprisonment and the impending execution (currently stayed) of Melissa Lucio, who many advocates believe to be innocent of killing her daughter. She’s not exactly Timothy McVeigh, but she is exactly the kind of person who is swept up in the dragnet of “good” legislation passed by politicians desperate to show they are “doing something” in the wake of a tragedy.
The American Civil Liberties Union (ACLU) has repeatedly stressed that the AEDPA was fatally flawed legislation. And there are so many more where that came from. “We can’t prosecute our way out of racism,” as ACLU National Security Project director Hina Shamsi said on a post-Jan. 6 ACLU podcast.
The Jan. 6 attack on the Capitol fueled calls for new anti-terror legislation.
But it was Democratic “Squad” members—including Reps. Rashida Tlaib, Ilhan Omar, and Alexandria Ocasio-Cortez, as well as the lone dissenting vote in 2001 against authorizing the war in Afghanistan, Barbara Lee—who penned a letter to Nancy Pelosi and other House leaders on Jan. 9 warning against the impulse to fight “domestic terror” with sweeping new law enforcement powers.
In their letter, the members cited the House Committee on UnAmerican Activities (HUAC), the FBI’s Counter Intelligence Program (COINTELPRO), the Patriot Act, and recent actions against Black Lives Matter activists as concrete examples of “patriotic” law enforcement run amok. “[W]e have been here before, and we know where that road leads,” the letter read, noting that government actions taken against truly violent threats are just a fraction of those taken against a whole bunch of regular people.
The questions after Buffalo are myriad. How do you stop a massacre before it happens? How do you reach disaffected young men before they’re radicalized into racism, extremism, and violence? Can the media even report on these tragedies without helping to fuel the next one?
But there are other questions that need to be answered by those begging for new domestic terror laws: Why would these new powers be the ones that succeed in tamping out extremism, even after all the others have failed? How many innocents need to be ensnared before the cost of stopping one potential terrorist is too high? And why should we trust the government, which has abused its own power so many times in recent history, to not abuse new powers?
The atrocity in Buffalo was meant to terrorize. We need to remember not to be so frightened that we bet the civil liberties of the marginalized on the vain hope that the only way to stop the next bad guy is more intrusive tactics, and less accountable law enforcement agencies.
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The white man charged with the racist slaughter of 10 Americans in Buffalo, New York, is not a domestic terrorist, reported NBC News.
And that's likely because domestic terrorism isn't actually a separate crime.
There's no federal statute that makes acts of terrorism inspired by domestic ideologies illegal. While federal law includes a definition of domestic terrorism, and prosecutors can seek sentencing enhancements in cases of domestic terrorism after a defendant is convicted, domestic terrorism isn't a stand-alone federal crime.
If the Justice Department follows the pattern it did after a white man killed nine Black churchgoers in Charleston, South Carolina, in 2015, or when a man killed 11 at a Pittsburgh synagogue in 2018, or when a white man targeting Latinos killed 23 people at a Walmart in El Paso, Texas, in 2019, the suspect in the Buffalo shooting will most likely face federal hate crime charges.
The contrast between "domestic" and "foreign" terrorism is stark, and it has nothing to do with the location of the attack, but rather the underlying motivation of the attack.
If the Buffalo shooter were an Islamic extremist who supported a designated foreign terrorism organization, like al Qaeda or the Islamic State terrorist group, he could be charged with "material support" of a terrorist organization. For example, the widow of the Islamic extremist — who was an American citizen — who killed 49 people in the Pulse nightclub attack in Orlando, Florida, in 2016 faced a federal terrorism charge. She was found not guilty by a jury in 2018.
The charge of providing "material support" to a foreign terrorism organization can't be applied to extremists backing domestic causes because the law requires that the act be done to aid one of the groups named on a list kept by the State Department.
When officials won't call an act "terrorism," it can shape the public narrative. Many news organizations require that when calling an individual a terrorist or an attack an act of terrorism, the terms must be attributed to a law enforcement or government official. That's because, in criminal cases, caution is warranted when using a loaded term like "terrorist."
The fear among federal officials like Wray and Garland is that labeling an attack like the one in Pittsburgh an act of terrorism may unnecessarily complicate what should be a fairly straightforward prosecution, agency veterans have long argued. A defense attorney may latch onto such proclamations, and there's a general tradition at the Justice Department of speaking only through what's known as the "four corners" of a criminal complaint or indictment, meaning not saying anything that isn't already written down in court documents. If you can't charge someone with terrorism, the argument goes, you can't call them a terrorist.
"The only world I live in is when you bring charges against someone and charge them with something under a particular provision that is a terrorism statute," former FBI Director James Comey said after the Charleston massacre. "That’s the framework through which I look at it, and I think that makes sense for someone in the government who is doing an investigation to look at it through that framework."
Thomas Brzozowski, the Justice Department’s counsel for domestic terrorism matters, explained in 2018 why federal officials were so cautious about labeling acts of domestic terrorism as domestic terrorism, even when they clearly were.
“In many instances, the government is going to be constrained, to a certain degree, from stepping in front of a podium and saying, ‘Ladies and gentleman, we’re revealing domestic terrorism here,'" Brzozowski said. “The department is very judicious about deploying the term in the first instance, and typically will only do so in the backend of litigation when the facts and circumstances are going to be clear."
Brzozowski pointed to the case of a white supremacist who attempted to bomb a 2011 Martin Luther King Jr. Day march in Spokane, Washington. At sentencing, prosecutors secured a terrorism enhancement, and he received 32 years in federal prison. But that was long after the public narrative had been shaped. He was initially charged with a hate crime.
"That is how the public took it up, that is how pundits referred to it, that is how folks outside of government viewed it. It was viewed through the prism of hate,” Brzozowski said. “Folks seize on that and view this almost exclusively in terms of hate. What they miss is the fact that his underlying criminal activity clearly meets the statutory definition of domestic terrorism ... without a doubt.”
Since the Buffalo suspect hasn't been charged federally, it remains to be seen whether federal officials could try to explain to the American public that the attack was terrorism, even if he isn't charged that way.
There is some recent precedent for that. Former Attorney General Jeff Sessions noted after a man rammed his Dodge Challenger into a crowd of counter-protesters at the "Unite the Right Rally" in Charlottesville, Virginia, in 2017, killing one person, that the attack was "the definition of domestic terrorism." (The assailant was ultimately sentenced to life in prison on federal hate crimes charges.) And after the El Paso shooting, the top federal prosecutor in southern Texas described the attack as an act of terrorism as well.
Former Justice Department national security chief Mary McCord, who had advocated for a narrowly written domestic terrorism law that could give prosecutors the option of bringing a terrorism-related charge against domestic terrorists, believes there's value in society being able to clearly label acts of domestic terrorism as such.
“To my mind, with domestic terrorists, there should at least be the option of prosecuting them for domestic terrorism, and putting it on that sort of moral equivalence to international terrorism,” McCord said. “Because that’s what it is ― it’s an act of violence that is done with the intent to intimidate or coerce the population, influence government policy or the conduct of government ― and that’s what international terrorists are also trying to do.”
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Less than two years after Ohio amended Criminal Rule 46 in a bipartisan process to reduce the use of cash bail so those without means don’t unfairly stew in jail awaiting trial, the GOP bench in favor of bail reform seems to have cleared, reported the Cleveland Plain-Dealer.
Instead, we’re seeing a lot of grandstanding and misinformation in a misguided effort to get an Ohio constitutional amendment on the Nov. 8 ballot to widen use of cash bail. Never mind that such an amendment is being oversold. It cannot undo either Crim. R. 46 requirements or the U.S. constitutional bar against excessive bail.
Simply put, House Joint Resolution 2, sponsored by state Reps. Jeff LaRe of Fairfield County near Columbus and D.J. Swearingen of Huron, and Senate Joint Resolution 5, sponsored by state Sen. Theresa Gavarone, also of Huron, are little more than a confused mass of hot air sitting atop a mound of inaccurate assertions that public safety can’t be considered in setting bail.
Safety can be considered -- if the decision is that someone is too dangerous to be let out and must be held in jail prior to trial. That decision in turn triggers a pretrial detention hearing so the suspect and his or her attorney can make their case for bail, before being held without it.
As legal expert after legal expert has patiently explained to House and Senate committees during hearings on HJR 2 and SJR 5, unaffordable bail imposed without such a hearing is by definition excessive and, as such, contrary not just to Ohio law but also the U.S. Constitution’s Eighth Amendment, which explicitly bars “excessive bail.”
At the same time, Ohio law already provides for pretrial detention hearings to protect the public’s safety when required -- without need of a constitutional amendment.
Yet, when the time came Thursday to vote on HJR 2 -- and a related bill, House Bill 607, also sponsored by LaRe and Swearingen -- the result was predictable. Party-line 7-2 votes in the House Criminal Justice Committee to send the resolution and bill to the House floor.
Voters should be surprised, however, that lawmakers seem to be moving like lightning on this legislation while proceeding snaillike on critical 2022 redistricting decisions.
The reason: Urging folks to the polls Nov. 8 to amend the Ohio Constitution supposedly to make safety a requirement of bail decisions may, to some at the Statehouse, seem like a surefire way to turn out law-and-order voters for critical mid-term elections.
Too bad that what the constitutional amendment (and related legislation) really seeks to do is to distort bail reform and challenge Ohio Supreme Court precedent by making excessive cash bail easier to achieve. And, in the process, with three Supreme Court positions, including chief justice, on the Nov. 8 ballot, maybe change the composition of the court.
A key focus of this parade of misinformation is the Ohio Supreme Court’s 4-3 January ruling in Dubose v. McGuffey, in which the majority upheld an appellate court ruling that a trial court’s decision to impose $1.5 million bail against an accused Hamilton County murderer, Justin Dubose, without a pretrial detention hearing, amounted to excessive bail. The appellate court reduced Dubose’s bail to $500,000, which the Supreme Court majority also upheld, noting that, under Crim. R. 46, once a determination is made to set bail and not hold a suspect prior to trial for public safety reasons, it becomes a mostly financial exercise to set bail sufficient so that the suspect will appear for trial -- while other non-bail means can be used, such as GPS monitoring and home detention, to restrict the defendant’s movements, if needed.
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In February 2021, cognitive psychologist Itiel Dror set off a firestorm in the forensics community. In a paper, he suggested forensic pathologists were more likely to pronounce a child’s death a murder versus an accident if the victim was Black and brought to the hospital by the mother’s boyfriend than if they were white and brought in by the grandmother. It was the latest of Dror’s many experiments suggesting forensic scientists are subconsciously influenced by cognitive biases—biases that can put innocent people in jail, reported Science.
Dror’s work has shown that most problems with forensics do not originate with “bad apple” technicians who have infiltrated crime labs. Rather they come from the same kind of subconscious bias that affects everyone’s daily decisions—the shortcuts and generalizations our brains rely on to process reality. “We don’t actually see the environment,” Dror says. “We perceive stimuli from the environment that our brain represents to us,” shaped by feelings and past experience.
“In the span of a decade, cognitive bias went from being almost totally unheard of in forensics to common knowledge in the lab,” Brandon Garrett, a professor at the Duke University School of Law, wrote in his book Autopsy of a Crime Lab: Exposing the Flaws in Forensics. “We can especially thank Itiel Dror for helping bring about the sea change.”
Over the years Dror and other researchers have found bias just about everywhere they’ve looked—in toxicologists, forensic anthropologists, arson investigators, and others who must make judgments about often ambiguous crime scene evidence. Yet juries find forensic evidence compelling, Dror and others have found.
Many examiners feel “impervious to bias,” says Saul Kassin, a psychologist at John Jay College of Criminal Justice, “as if they’re not human like the rest of us.” In 2017, Kassin and Dror asked more than 400 forensic scientists from 21 countries about their perceptions of bias. They found that whereas nearly three-quarters of the examiners saw bias as a general problem, just over 52% saw it as a concern in their own specialty, and only 26% felt that bias might affect them personally.
A GLOSSARY OF BIAS
Itiel Dror and his collaborators have coined various terms to describe how bias sneaks into forensic analysis—and how experts perceive and react to their biases.
TARGET-DRIVEN BIAS Subconsciously working backward from a suspect to crime scene evidence, and thus fitting the evidence to the suspect—akin to shooting an arrow at a target and drawing a bull’s-eye around where it hits
CONFIRMATION BIAS Focusing on one suspect and highlighting the evidence that supports their guilt, while ignoring or dismissing evidence to the contrary
BIAS CASCADE When bias spills from one part of the investigation to another, such as when the same person who collects evidence from a crime scene later does the laboratory analysis and is influenced by the emotional impact of the crime scene
BIAS SNOWBALL A kind of echo chamber effect in which bias gets amplified because those who become biased then bias others, and so on
BIAS BLIND SPOT The belief that although other experts are subject to bias, you certainly are not
EXPERT IMMUNITY The belief that being an expert makes a person objective and unaffected by bias
ILLUSION OF CONTROL The belief that when an expert is aware of bias, they can overcome it by a sheer act of will
BAD APPLES The belief that bias is a matter of incompetence or bad character
TECHNOLOGICAL PROTECTION The belief that the use of technology, such as computerized fingerprint matching or artificial intelligence, guards against bias.
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The threat is not from beyond our boarders, but from within
Over the past decade, the Anti-Defamation League has counted about 450 U.S. murders committed by political extremists, reported The New York Times.
Of these 450 killings, right-wing extremists committed about 75 percent. Islamic extremists were responsible for about 20 percent, and left-wing extremists were responsible for 4 percent. Nearly half of the murders were specifically tied to white supremacists.
As this data shows, the American political right has a violence problem that has no equivalent on the left. And the 10 victims in Buffalo this past weekend are now part of this toll. “Right-wing extremist violence is our biggest threat,” Jonathan Greenblatt, the head of the ADL, has written. “The numbers don’t lie.”
The pattern extends to violence less severe than murder, like the Jan. 6 attack on Congress. It also extends to the language from some Republican politicians — including Donald Trump — and conservative media figures that treats violence as a legitimate form of political expression. A much larger number of Republican officials do not use this language but also do not denounce it or punish politicians who do use it; Kevin McCarthy, the top House Republican, is a leading example.
It’s important to emphasize that not all extremist violence comes from the right — and that the precise explanation for any one attack can be murky, involving a mixture of ideology, mental illness, gun access and more. In the immediate aftermath of an attack, people are sometimes too quick to claim a direct cause and effect. But it is also incorrect to pretend that right-wing violence and left-wing violence are equivalent problems.
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The Buffalo supermarket shooter is an adherent of the so-called Great Replacement theory. According to authorities, the killer of 10 felt compelled to drive more than three hours to shoot innocent Black people indiscriminately with a high-powered rifle because white Americans are being “replaced” by people of color, according to an opinion piece in the Los Angeles Times.
In many ways, this truly ugly conspiracy theory has some roots right here in the Golden State of the 1990s.
That’s when Republicans, desperate to hold on to political power, were spreading fear and paranoia about millions of Mexican immigrants wanting — how dare them! — resources and rights, and the inevitable decline of the state’s white population.
These were the formative years of Stephen Miller, the Santa Monica native who grew up to become President Trump’s repugnant, immigrant-hating senior advisor.
Of course, the real origin of the “Great Replacement” theory is much older and inextricably linked to antisemitism, in that white supremacists blame Jews for nonwhite immigration. Hence, the chants of “Jews will not replace us” and “You will not replace us” by racists with tiki torches the night before the Unite the Right rally in Virginia in 2017.
The version of the theory making the rounds now posits not just that America is becoming more diverse, which is absolutely true, but that some secret cabal of elite Democrats is conspiring to bring in immigrants in any and every way possible to “replace” white Christian people and reshape American politics into some sort of secular, multicultural liberal image. Like California.
Never mind that Latino voters often sway conservative, as we saw in the 2020 presidential election, when Trump got a bigger share of that demographic’s electorate than he did in 2016.
It never stops.
“Diversity is not a strength,” Gendron wrote, according to snippets of the manifesto that authorities say he uploaded and are now floating around online. “Unity, purpose, trust, traditions, nationalism and racial nationalism is what provides strength.”
We now know from that manifesto that Gendron traveled some 200 miles from his rural hometown to reach that supermarket in Buffalo because it was in a neighborhood with lots of Black people, authorities said.
Alongside racist, anti-immigrant rantings, the manifesto laid out how he planned to kill as many Black people as possible, authorities said. That he would shoot the security guard near the entrance before firing upon Black shoppers. That he had studied the floor plan and knew each aisle. What he would eat for lunch.
The FBI is investigating what happened as a “hate crime and racially motivated violent extremism.” Erie County Sheriff John Garcia called the motive for the mass shooting “pure evil.”
It’s also a widespread, white supremacist ideology that has gone mainstream.
Late last year, a poll from the Associated Press-NORC Center for Public Affairs Research found that about a third of American adults believe an effort is afoot to “replace” U.S.-born Americans with immigrants.
In addition, roughly 3 in 10 think additional immigration will cause native, presumably white, Americans to lose their economic, political and cultural influence.
Unsurprisingly, Republicans are more likely than Democrats to share these views, according to the poll. One reason is that irresponsible conservative pundits keep touting the “Great Replacement” theory as an explanation for everything from the loss of manufacturing jobs in the Midwest to a spike in deaths from overdoses among white people addicted to painkillers.
As Tucker Carlson said on Fox News last April: “I know that the left and all the little gatekeepers on Twitter become literally hysterical if you use the term ‘replacement,’ if you suggest that the Democratic Party is trying to replace the current electorate, the voters now casting ballots, with new people, more obedient voters from the Third World. But they become hysterical because that’s what’s happening, actually.”
It’s a lie, and it’s ridiculous and it’s dangerous, especially in the era of social media. And yet, it never stops — even here.
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