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CA - Judge considers sex offenders' use of social media

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Original Article12/17/2012SAN FRANCISCO — A federal judge will hear arguments in San Francisco Monday morning on a motion to block a voter initiative's requirement that California's 73,000 registered sex offenders must give police a list of their online screen names and Internet service providers. The provision is part of Proposition 35 (PDF), a ballot initiative intended to crack down on sex trafficking. The measure was approved by 81 percent of state voters in November. U.S. District Judge Thelton Henderson will consider a bid by two anonymous offenders and a group called California Reform Sex Offender Laws for a preliminary injunction suspending the measure until a full trial is held on their civil rights lawsuit challenging the provision. Henderson last month issued a temporary restraining order blocking the requirement for the time being, saying that the lawsuit raised "serious questions" about whether the provision violated the constitutional First Amendment guarantees of free speech. The plaintiffs, represented by the American Civil Liberties Union and the Electronic Frontier Foundation, contend the requirement infringes on their right to discuss law reform and other topics online anonymously. They also argue the requirement violates their due process right because it is allegedly overly broad and unclear. The lawsuit does not challenge other provisions of Proposition 35 that increase sentences and fines for people convicted of sex trafficking. The initiative drive was led by Chris Kelly, a former Facebook chief privacy officer, and Daphne Phung, the founder of a group called Californians Against Slavery. They have said the disclosure requirement is intended to "help combat the rampant use of the Internet and social media for sexual exploitation of minors and women." At Monday's hearing, Henderson will also consider a bid by Kelly and Phung to join the state Attorney General's Office as official parties in the case to defend the initiative. The Attorney General's Office has told the judge that state officials will not be able to enforce the requirement until March. Henderson could either rule on the motions from the bench or issue a written decision at a later date.© 2006-2012 | Sex Offender Issues

LA4: Tugging at one's pants belies a gun and can justify a frisk

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The juvenile was with three others three minutes before curfew walking in the middle of the street. The officer told them to come over toward the police car so he could tell them to walk on the sidewalk, and he was also curious about where they lived since curfew was in minutes. The juvenile tugged at his pants like a gun was weighing them down, in the officer’s experience. That justified a patdown for the weapon that was found. State in the Interest of T.H., 2012 La. App. LEXIS 1645 (La.App. 4 Cir. December 12, 2012). “Here, the officers did no more than they were authorized to do by Terry. The approach of the defendant, on a public street, by officers who wore no uniforms and therefore identified themselves by displaying their badges, and who neither displayed any weapons nor engaged in hostile or aggressive actions towards the defendant, did not impinge upon any constitutionally protected interest of the defendant.” Commonwealth v. Damelio, 2012 Mass. App. LEXIS 291 (December 14, 2012).* Defendant was stopped for a traffic offense, and the officer asked for his DL and papers. Sitting on the seat next to the driver was a crumpled brown paper bag. The officer asked for the bag, and in it was cocaine. The turning over the bag was by consent, not a response to a command. State v. Milton, 2012 La. LEXIS 3412 (December 14, 2012).*

Domestic Violence in the NFL

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An interesting article appeared earlier this month concerning the issue of domestic violence among players in the National Football League. The article was prompted by the recent murder-suicide involving Kansas City Chiefs linebacker Jovan Belcher and his girlfriend. The author … Continue reading →

Public Service Announcement

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I know, my grand reopening is tomorrow, but one of my peeps, Bret Crow, is Public Information Officer for the Supreme Court, and he sent me an email this morning.  Seems that effective the 1st of the coming year, the new Supreme Court Rules of Practice goes into effect.  Although fans of Palantino Linotype will be [...]

ABAJ: "Kagan Sees Privacy as One of Most Important Future Issues for Court"

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ABAJ: Kagan Sees Privacy as One of Most Important Future Issues for Court by Debra Cassens Weiss: Justice Elena Kagan highlighted a future important issue for the U.S. Supreme Court and reflected on a past high-profile remark in a speech on Thursday evening. Kagan said privacy in a changing world is a big issue likely to come before the court, Politico reports. She spoke in a question and answer session at a Washington, D.C., synagogue. Kagan said former Justice Louis Brandeis was aware of the importance of the issue, according to the Politico account. He “understood how new technologies interfere with privacy, which I think will be one of the most important issues before the court in the decades to come,” Kagan said.

Freedom of Information, Courtesy of the Chandler Brothers

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<font style="FONT-SIZE: 12px" face="Arial">In&nbsp;the recap of&nbsp;his acquittal for videotaping police,&nbsp;<a href= "http://www.photographyisnotacrime.com/2012/12/14/here-are-the-videos-of-my-trial-and-acquittal/" target="">Carlos Miller</a> includes this paragraph among the many offering his appreciation to those who aided him in the cause:</font> <blockquote><font style="FONT-SIZE: 12px" face="Arial">I also wouldn’t have been able to do it without the Chandler brothers, specifically Robert, who was able <a href= "http://www.photographyisnotacrime.com/2012/10/29/miami-dade-police-sued-over-failing-to-provide-public-records-for-my-case/" target="_blank">to pry public records</a> from the Miami-Dade Police Department when Major Nancy Perez was <a href="http://www.photographyisnotacrime.com/2012/09/19/my-trial-is-continued-after-nancy-perez-fails-to-follow-court-order-for-key-evidence/" target= "_blank">refusing to provide</a> ...</font></blockquote>

NPR: "Teenager's Faith At Odds With Locator Tags In School IDs"

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NPR: Teenager's Faith At Odds With Locator Tags In School IDs by Wade Goodwyn: A federal court in Texas on Monday will take up the case of a high-school student who refuses to wear her location-tracking school ID. The 15-year-old sophomore says the ID badge, which has an embedded radio frequency identification tag, is a violation of her rights. The student, Andrea Hernandez, believes the ID is "the mark of the beast" from the Book of Revelation.

MI - Child sex abuse education law passed

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Original Article12/14/2012LANSING - A law aimed at helping to prevent the sexual abuse of children is on its way to the governor's desk after being passed Friday by the Michigan Legislature. Sen. John Proos, R-St. Joseph, was one of the sponsors along with Sen. Judy Emmons, R-Sheridan, and Rebekah Warren, D-Ann Arbor. "Erin's Law" is named after Erin Merryn, a sexual abuse survivor from Illinois whose advocacy in her home state led to passage of a similar law there in 2011. After going public about abuse by a family member, Merryn made it her mission to try to ensure that children have the age-appropriate education so they can recognize and talk about sexual abuse. Senate Bills 1112 (PDF), 1113 (PDF) and 1114 (PDF) require school boards to adopt and implement policies addressing child sexual abuse and call for creation of a task force to make recommendations on how best to prevent the problem. Under the law schools can adopt age-appropriate curriculum, train school staff on child sexual abuse and adopt policies concerning informing parents on the warning signs of abuse. Parents are to be made aware of the curriculum and can "opt out" if they do not want their children involved. Similar laws have been enacted in Maine, Indiana and Missouri, and legislation has been introduced in several other states, including Minnesota, New York and Pennsylvania.© 2006-2012 | Sex Offender Issues

How can I get a continuance while I wait for my taxes?

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One of the most common things that I hear from people during the winter and early spring is that they’re waiting to get their tax refund back. Some folks are trying to get the money to hire an attorney, while others are trying to pay off old fines and costs. No matter the reason, a [...]

TN: State showed compelling interest for DL roadblock

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Defendant was stopped at a driver’s license check roadblock which found him DWI, and he was indicted as an habitual DWI offender. The state proved a compelling state interest in setting up this DL roadblock because nearly 14% of all fatal crashes in the state involved drivers with no valid DL. State v. Monk, 2012 Tenn. Crim. App. LEXIS 1022 (December 12, 2012): The Hicks Court held that the "presence of a sufficiently compelling interest is necessary under Article I, section 7 before an examination of the other aspects of a roadblock may proceed." Hicks, 55 S.W.3d at 527. As we earlier noted, the State may not merely rely on its general interest in maintaining highway safety. Id. at 530. It must produce "some proof of the need to curb a substantial and imminent threat to the safety of motorists on public roads distinctly resulting from the conduct of unlicensed drivers. The State provided statistics indicating that 13.9% of all fatal crashes statewide in 2008 involved drivers with revoked licenses, suspended licenses, or no license. Additional statistics revealed that 25.8% of the drivers involved in accidents between 2005 and 2009 in Sullivan County were charged with driver's license related charges. The Defendant complains that the State did not break down the charges to categories indicating if the driver was cited for driving on a revoked license, driving on a suspended license, or, as is the case here, driving after being declared a Habitual Motor Vehicle Offender. We do not think this distinction undermines the proof that approximately one fourth of the accidents in Sullivan County involved unlicensed drivers. The State has provided statistics in support of its contention that the roadblock is related to maintaining highway safety. These statistics provide individualized suspicion and support the conclusion that unlicensed drivers are an imminent threat to the safety of motorists on the public roads in Tennessee and, specifically, in Sullivan County. We conclude that the record does not preponderate against the trial court's finding that the State demonstrated a sufficiently grave public concern.

WA - Troubles persist on predator island

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Original Article12/15/2012By Christine WillmsenNumerous interviews and hundreds of pages of public records tell a story of chronic misconduct by some employees at the state's Special Commitment Center on McNeil Island, including suspected abuse of overtime and paid leave that may have involved as many as 85 workers. The state's $48 million Special Commitment Center, which detains and treats Washington's most dangerous sex offenders, has been plagued by costly absenteeism, employee fraud and flawed employment screening, The Seattle Times has found. Relying on hundreds of pages of recently obtained public records and numerous interviews, The Times learned of suspected abuse of overtime and paid leave that may have involved as many as 85 employees at the Special Commitment Center (SCC) on McNeil Island, near Tacoma. Two employees alone were paid $32,000 in overtime for work never performed, documents show. Referring to several specific cases, former SCC superintendent Kelly Cunningham said: "They got paid for work they didn't do — that's theft of state resources." So far, none has been punished for any payroll infractions because a state Auditor's Office investigation into the matter — after nearly two and a half years — is still not completed. The SCC, which has 371 employees, has had a troubled history with staff at the remote location. In comparison to employees in the state's prison system, workers at the McNeil Island facility have been disciplined for misconduct this year at a rate four times higher. Since January, the SCC has fired eight employees, suspended four and slapped 26 others with letters of reprimand or other discipline for misconduct unrelated to the auditor's probe. Among those fired: a high-ranking manager who turned in a made-up investigative report, staffers accused of viewing pornography on their work computers, and two employees who forged doctor's notes to cover up their absenteeism. Earlier this year, The Times' four-part series "Price of Protection" revealed the state had wasted millions of dollars because of lack of oversight, unchecked defense costs and delayed commitment trials. The state spends about $170,000 a year for each of the 297 sex offenders on McNeil Island. The SCC has also been marred by a long-running federal probe into illegal drugs and child pornography that resulted in employees and sex offenders being sent to prison. Federal agents continue to investigate contraband entering the facility.Evidence of abuses Chronic problems at the SCC came into sharper focus in 2009, when its new superintendent, Cunningham, was asked to cut staff and expenses as the state budget crisis peaked. As he looked for ways to save money, he was surprised to see the center paying about $150,000 a month in overtime.Read the entire article here© 2006-2012 | Sex Offender Issues

C.D.Cal.: Just because e-mail SW was overbroad doesn't mean whole search is suppressed

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Search warrant for e-mail was overbroad because non-searchable information was subject to search, too. Nevertheless, it was done in good faith so there is no suppression. United States v. Roy, 2012 U.S. Dist. LEXIS 177674 (C.D. Cal. December 13, 2012): Defendant also moves to suppress the e-mail search warrant in this case, arguing that the search and seizure was unreasonable because the warrant was a general warrant and overbroad in scope. Few cases in the Ninth Circuit or elsewhere have addressed the standard of particularity that should be applied with respect to an e-mail search warrant. The cases that have addressed the issue, however, have held that the burden remains on the government to prove how the warrant application will segregate information regarding third parties from information relating to the defendant. In this case, the Court holds that the government has not met its burden of setting forth the items to be seized with particularity. The information sought by the warrant lacks protocol that would affirmatively segregate the target information from information outside the scope of the warrant. The warrant is therefore overbroad. The inquiry does not end there, however. Where the police did not act in bad faith, and as such, suppression of the evidence would not deter police misconduct, the district court, may, in its discretion, admit the evidence over the objection of the defendant. Illinois v. Gates, 462 U.S. 213 (1983). In fact, exclusion of the evidence is a last resort. Hudson v. Michigan, 547 U.S. 586 (2006). In this case, the court finds that exclusion of the evidence would not be warranted. The seizure was reasonably conducted, and the evidence of criminal activity was properly seized. In executing the warrant, the investigating agents aptly followed the contours of the warrant. Consequently, the underlying justification for the exclusionary rule would not be served by excluding the e-mails, and accordingly, the Court denies defendant's motion to suppress.

CA4: Police officers get qualified immunity in Duke lacrosse civil case

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In the Duke lacrosse case, on the Fourth Amendment malicious prosecution issue, police officers who told the prosecutor that the case was weak and presented him what exculpatory evidence they had were entitled to qualified immunity. Evans v. Chalmers, 2012 U.S. App. LEXIS 25660 (4th Cir. December 17, 2012): The Evans plaintiffs do not allege that Officers Gottlieb and Himan misled or misinformed Nifong. Indeed, the Evans plaintiffs expressly allege that, from the outset, the officers candidly briefed Nifong as to the startling weaknesses in the case by "detail[ing] the extraordinary evidence of innocence and the fatal defects in Mangum's claims" and "convey[ing] to Nifong that Mangum was not credible." The Evans plaintiffs nonetheless insist that the officers remain liable because they "misrepresented, withheld, or falsified evidence" that ultimately influenced the grand jury. This argument fails because acts of either the prosecutor or the grand jury may break the causal chain. Cf. Cuadra, 626 F.3d at 813; Barts, 865 F.2d at 1195. In other words, if the independent act of a prosecutor breaks the causal chain, the fact that the prosecutor misled the grand jury does not render police officers liable. Alternatively, the Evans plaintiffs maintain that Officers Gottlieb and Himan conspired with Nifong to fabricate and conceal evidence from the grand jury and thus somehow unduly pressured Nifong to seek the indictment. The allegations in their complaint significantly undercut this argument. For the Evans plaintiffs ground their entire case on allegations that Nifong desired to exploit the "high-profile, racially-charged rape allegation for his personal political gain." They further allege that from his very first meeting with the officers, Nifong noted the lack of exculpatory evidence: "we're f*cked." Tellingly, the Evans plaintiffs do not assert that Officers Gottlieb and Himan responded by pressuring Nifong to pursue the case. Rather, they allege that the officers continued the investigation at Nifong's instruction, and that, when Nifong sought to indict the Evans plaintiffs, Officer Himan frankly responded, "With what?" No matter how generously read, these allegations do not allege that Officers Gottlieb and Himan pressured Nifong to seek an indictment. Moreover, it seems contrary to the very purpose of qualified immunity to extend personal liability to police officers who have assertedly conspired with, but neither misled nor unduly pressured, an independent prosecutor. Police officers and prosecutors often work together to establish probable cause and seek indictments; such collaboration could always be characterized as a "conspiracy." Allowing § 1983 claims against police officers to proceed on allegations of such a "conspiracy" would in virtually every case render the officers' qualified immunity from suit "effectively lost," Mitchell, 472 U.S. at 526, and make discovery the rule, rather than the exception, see Anderson v. Creighton, 483 U.S. 635, 639-40 & n.2 (1987). Thus, we hold today that an alleged officer-prosecutor conspiracy does not alter the rule that a prosecutor's independent decision to seek an indictment breaks the causal chain unless the officer has misled or unduly pressured the prosecutor. Because the Evans plaintiffs do not allege that Officers Gottlieb and Himan either misled or pressured Nifong to seek their indictments, we reverse the district court's denial of the officers' motions to dismiss the Evans plaintiffs' § 1983 malicious prosecution claims against them. This is just the Fourth Amendment issue. This clearly is the correct result. The officers did all they could do, so why should they be held liable when the idiot prosecutor filed charges? It was clear to me that they didn't want him to file, and they were just presenting what they had after gathering evidence of innocence, too.

Hays County will save money eschewing 'free' DPS crime lab services, paying Austin

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Grits has suggested for some time that shifting to a fee for service model would help alleviate backlogs and adequately fund state crime labs, mainly because trends are moving in that direction whether folks like it or not. KXAN-TV in Austin reported last Thursday that:Despite a backlog of cases, the Austin Police Department forensic lab will begin testing cases from Hays County.Hays County agencies will pay fees to the APD lab to have forensic evidence examined. The testing will include DNA, firearms, drug, and latent prints.“This is the first time we have offered this to an external entity,” said Bill Gibbons, the forensic services manager for APD.Gibbons said the extra workload will not slow down APD cases because overtime hours will be used for Hays County testing.This is precisely why Grits supports fee for service payment structure statewide: If the state won't provide quick testing, counties must pay to have it done elsewhere, shifting to a fee for service model by default. It just happens in a piecemeal, disorderly fashion. Other counties including Dallas already operate fee for service labs, while the public lab in Bexar County provides forensic services outside its jurisdiction (and in, as I understand it) on a fee for service basis.Grits has argued that "DPS' 'free for everybody' model creates false incentives and is IMO unsustainable as demand for crime lab services is growing much faster than the actual crime rate. Switching to a fee for service model would rationalize the process from a budget perspective and stop taxpayers in jurisdictions with their own crime labs from subsidizing the rest of the state." Taxpayers in jurisdictions with their own crime labs, i.e., urban taxpayers, like in Austin and Houston, are being double-taxed to pay not only for lab costs in their own towns but to pay for lab work in counties that rely on DPS. So at least, I suppose, the Austin crime lab will now get paid to do Hays County's work instead of subsidize it with taxes, but the fundamental financial disconnect remains.Incidentally, the TV station reported that paying for forensic services in Austin is cheaper than getting them for "free" from DPS because the wait entails extra local costs, particularly at the jail. They've calculated that:using the APD lab would save money in the long run. Hays County has been using the Department of Public Safety lab which services more than 200 counties in Texas. That leads to big backlogs and the longer a case waits to be tested, the more it costs.The DA’s office estimated that cases taking nearly three months to process in the DPS lab would be finished in almost two weeks using the APD lab.If DPS shifted to a fee for service model and its backlogs declined - both from reduced submissions and expanded capacity available when counties pay for testing - local governments in small counties across the state would see similar savings. A lot of people are stuck on the idea that crime lab services at DPS are "supposed to be" free. But those "free" services are becoming more and more expensive each day.

Eighth Circuit holds testimony that adults rarely seek actual minors online can be impeached, affirms conviction

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In United States v. Grauer, No. 11-3852 (8th Cir. 2012), the Eighth Circuit affirmed the conviction of a man for enticement of a minor and possession of child pornography over multiple arguments from the defendant. As part of an ICAC investigation, an Iowa deputy sheriff, pretending to be a 14-year-old girl, engaged in multiple instant messaging conversations with the defendant. The conversations were often of a sexual nature and involved the defendant sending pornography to the "girl," and the two ultimately decided to meet. The defendant was arrested, his home searched, and child pornography found. Charges for the child pornography possession and attempted enticement of a minor followed, and he was convicted. At trial, the defense presented a witness who argued that adults often used chat rooms to engage in "age-play" online, where one of the participants pretends to be a "schoolgirl," but both are actually adults. As such, it was likely that the defendant actually believed the 14-year-old girl was an adult (he actually lied about his age - saying he was 49 rather than his actual age of 58). The doctor-witness testified that "it's either rare or nonexistent" for adults to actually seek minors online. The prosecutor then asked the witness if he was aware of multiple cases involving that activity, and he acknowledged hearing of them. The first wasn't objected to, the defense objected to the second and it was overruled, and an objection to a third and fourth case were sustained. On appeal, the defendant argued the questioning was improper and intended to inflame the jury, but the court disagreed as it was necessary to disprove the assertion. The defendant also argued that the evidence presented on the child pornography charges was insufficient because "the government presented no evidence as to how the images came to be on his computer or when they were accessed." However, at trial, the defendant's wife testified that the laptop was used in his home office and "that no one else used his laptop regularly." Evidence was also shown that the multiple images were stored on folders created manually on the computer, and several of them had been sent over instant messaging to the "girl." As such, the Eighth Circuit found the evidence to be sufficient. A sentencing enhancement was applied for "misrepresentation[s] ... made with the intent to persuade, induce ... the travel of, a minor to engage in prohibited sexual conduct." The defendant argued that despite his misrepresentations of his name and age, it was not made with the requisite intent. However, the Eighth affirmed the application of the enhancement, finding that the district court "was in the best position" to decide the issue, and it "was [not] clearly erroneous."

Bensalem New Hot Spot for Pedestrian Accidents?

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Bensalem is home to Parx Casino, the Franklin Mills mall, and a growing number of pedestrian accidents. Over 60 thousand people live in Bensalem, and a number of major roadways run right through the area. Some of these roads include I-95, the PA Turnpike, and Street Road. As a result of this constant traffic, pedestrians [...]

Prisoner population declines nationally; Texas tops in private prison inmates

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According to a new report (pdf) from the Bureau of Justice Statistics:In 2011, 26 states had decreases in their prison population totaling 28,582 prisoners. California’s decline of 15,493 prisoners accounted for more than half of the total decrease (see text box on page 4). New Jersey, New York, Michigan, Florida, and Texas had decreases of more than 1,000 prisoners, and Connecticut and North Carolina had declines of more than 900.California’s prison population declined by 9.4% in 2011, which was the largest percent change among the 51 jurisdictions. New Hampshire (5.3%), Connecticut (5.2%), and New Jersey (4.7%) experienced declines of about 5%.Here's the official press release. This is the second consecutive year BJS reported a national, overall, decline in the total US prison population, though with California's rapid de-incarceration, that aspect of the report is perhaps unsurprising. Texas now has the largest prison population in the United States, said the BJS, with 172,224 prisoners at the end of 2011 compared to 149,569 in California, a state whose population is half again the size of Texas. (Next comes Florida, with 103,055 prisoners, then Georgia and New York, with just under 56,000 each.Digging into the numbers a bit, though, what's happening is more complex, and more fundamental, than just the court-ordered decline in Golden State prisoners. Even with California's forced de-incarceration, the total number of releases from prison declined overall at state and federal prisons last year, according to BJS. But the number of admissions, particularly into state prisons, declined even more. "The 668,800 admissions into state or federal prison in 2011 was the lowest number of admissions since 2002."Notably, said BJS, "Texas (18,603 inmates) and Florida (11,827 inmates) had the highest number of inmates in private prisons."Here's a tidbit I didn't know: "More than 50% of all prisoners housed in local jails in 2011 were serving time in Louisiana, Texas, or Tennessee," though that's in part because "Louisiana incarcerated more than half (20,866) of its prison population in local jails," a process that was described in detail in an excellent New Orleans Times Picayune series. Still, that puts Texas among the states with the highest local jail incarceration rates.RELATED: See from the Philadelphia Tribune, "$337 million in savings: States closing prisons as inmates decline."

Tueday Morning Open Thread

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On Daily Kos Radio, Greg Dworkin, a Newtown, CT resident, and I discussed the Newtown tragedy. Listen here: Open thread. [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

Local Regulation of Guns

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Can Durham ban the possession or sale of assault rifles? In the wake of the massacre at Sandy Hook Elementary School, I have been asked several times whether gun regulations may be implemented at the local level. Generally. Generally, the answer is no. Under G.S. 14-409.40, “the regulation of firearms is properly an issue of [...]

2 Foreclosure Rescue Companies Face Lawsuit

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Blue Chip Group, Inc., a Nevada company, and Certified Legal Processing and Legal Preparation Services, a California company, each operating as foreclosure consultants, face Indiana state lawsuits after taking more than $2,600 from local homeowners and not providing services or refunds.
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