Where There's A William

there's always aweigh

Archive for the month “July, 2012”

To Be A Fly On That Bulkhead

Via Glen Reynolds comes notice of this story about new USN air craft carriers being designed with “heads” (toilet/shower/washroom/pick you euphemism) that have no urinals. 

I can just see the faces of all (the males at least) involved in the first Captains Mast proceeding for “leaving the toilet seat up”.

I wonder if they’re still planning on leaving the stall doors off as was the standard?

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Wrong question, Prof Hanson

In a recent National Review article, Victor Davis Hanson asks:

Even more surreal, tiny oil-poor Israel, thanks to vast new offshore finds, has been reinvented as a potential energy giant in the Middle East. Such petrodollars will change Israel as they did the Persian Gulf countries, but with one major difference. Unlike Dubai or Kuwait, Israel is democratic, economically diverse, socially stable, and technologically sophisticated, suggesting the sudden windfall will not warp Israel in the manner it has traditional Arab autocracies, but will instead become a force multiplier of an already dynamic society. Will Europe still snub Israel when it has as much oil, gas, and money as an OPEC member in the Persian Gulf?

Given the known history of Europe towards Jews generally, would it not be more correct to enquire as to when Europe will invade and conquer Israel and take its new-found petro largess for itself?  That ought to add a good deal of padding to all those failing socialist fantasy economies currently dragging down the entire continent, if not quite the entire planet yet.

What’s a few jews more (and more to the point) less compared to all of that?

/sarcasm

h/t Instapundit

Choices Have Consequences

I’m supposed to be coming out of post-surgery general anesthesia recovery about now (for a deviated septum – annoying, but not a life threatening condition).  That’s not the case due to the Trinity Mother Francis hospitals management recently taking the unilateral decision that general anesthesia patients will not “be allowed” to use public transport to and from the hospital – specifically to include taxi cabs.  As a result of this deliberate choice by my medical services provider, I was refused treatment and denied surgery this morning – all because I had the temerity to take a cab to and from the surgery office so as to comply with the request not to drive myself home post-surgery.

As I said in the title, choices have consequences.  One result is that I won’t be having this (or quite likely any other) elective surgery procedure done at any Mother Francis facility from this point on.  Annoying that, as this most likely means I will have to identify and change over to a different source of medical treatment that my health insurance will continue to pay part of.  Probably to include having to end my relationship with my current (for the last 15+ years) GP and find another, since I doubt he will be allowed to refer me to some specialist that doesn’t work for his employer also.

Since this decision (to restrict the informed choices of its adult patients) was apparently taken more than a year ago now, I find the choice to not inform me of this policy decision – particularly in light of my known-to-the-hospital-staff experience to the contrary in the recent (last 5 years) past – prior to my having paid the $500+ portion of the surgical fee to be a deliberate act of abuse.  Especially since I’m confident I will never see that money again as the hospital “stands ready to re-schedule the surgery” just as soon as I dis-order the lives of a sufficiency of my fellow citizens to satisfy the prejudices of the hospital staff who get to impose such tyranny upon the unsuspecting.  The very idea that “we won’t allow a patient” to make an informed decision regarding their own health care follow up is outrageous in its own right.  That this is revealed to said patient only at the last minute (in the present example, literally as they were about to call me in to begin surgery prep) only adds to the insult.  The stupefying assumption that anyone’s family, friends and neighbors ought to be, indeed necessarily must be inconvenienced and have their lives disrupted in order for a grown human to purchase a service from another is a mind-boggling presumption on anyones part.

I understand that informed consent is critical to making an informed decision.  I accept that we are (and ought to be) bound by our choices.  I simply categorically reject anyones claim to arbitrarily deny me the most basic of human rights regarding my own person absent my being forced to comply at the (literal) point of a gun.  Frankly, I don’t care how many years the “facility director” has been swamping out bedpans, her decision to deny me treatment so as to assuage the gas passer’s lawyers qualms doesn’t cut it.

I’m 58 years old; I came to the abrupt conclusion some 40 years ago now that I was going to live until I died, and that I was going to die of something at some stage of the process no matter how much fiction became actual science along the way.  If it turns out that thing should prove to be a stuffy nose then so be it.  I also came to the conclusion that I most likely won’t be too concerned over the how so much as the what come the day, nor am I likely to care over much after the fact.

So, the $500 is gone, I still have a semi-permanently clogged snot locker and, because I don’t have the “cleared to return to work” piece of paper from Mommy Dearest nursey yet, I can’t go back to work today either.  I wonder if the boss will approve a paid vacation day post hoc as it were?  I hate to lose another $150 to this exercise in stupidity.

Just think how much better all this will be once Obama’s PPACA policies really kick into effect.

In Which He Commits Gunbloggery

Since it has been a recent topic of (sadly mostly mis-)informed discussion, commentary and supposed reporting in the various media available, I thought I would take the opportunity to post the actual facts about “Stand Your Ground” and the “Castle Doctrine” laws as those are presently legislated here in Texas.  The following is plagerized cut-n-pasted from the most recent newsletter published by Texas Law Shield:

What is the Texas Castle Doctrine?
The “Castle Doctrine” is a concept that comes from the philosophy that every person is the King or Queen of their home. Thus, there is never a need for the monarch of the kingdom to flee the castle before using force against an unlawful intruder. Texas Penal Code §9.31 (governing the justified use of non-deadly force) and §9.32 (governing the justified use of deadly force) are our state’s version of the Castle Doctrine. Just proving that everything is bigger in Texas, our law extends the “Castle Doctrine” beyond your residence to include your occupied vehicle and workplace.
Inside your “castle,” under certain circumstances, Texas law presumes you acted reasonably and justifiably if you use force or deadly force to defend yourself against an intruder who enters your occupied habitation, vehicle, or place of business or employment. What are the circumstances that will give you this important legal presumption? The first is where an individual unlawfully and with force, enters or attempts to enter your occupied habitation, vehicle or place of business or employment. The second situation is if an individual unlawfully and with force, removes or attempts to remove you from your occupied habitation, vehicle, or place of business or employment. If you are ever confronted with either of these situations, Texas law will presume that you acted reasonably and were justified in using force or deadly force. Therefore, in order for you to be convicted of any crime, a prosecutor would have to overcome this presumption in order to prove that you did not act reasonably. Overcoming this presumption is nearly an impossible task in a court of law.
With regard to using force or deadly force to defend your “castle,” the Texas Penal Code specifically uses the word “habitation,” not the words “building” or “property.” Texas has a very limited definition of what qualifies as a person’s habitation. The “Castle Doctrine” does not cover your entire piece of property. The legal term “habitation” is defined by Texas Penal Code §30.01 as “a structure or vehicle adapted for the overnight accommodation of persons; and includes each separately secured or occupied portion of the structure or vehicle; and each structure appurtenant to or connected with the structure or vehicle.” This means structures that are detached from where you sleep at night are not considered to be your habitation. For example, Texas law does not consider your detached garage, shed, and/or barn part of your habitation. However, if your garage, front or back porch is connected to the structure containing your sleeping quarters (as exists in many suburban communities), it is considered part of your habitation as defined by the Texas Penal Code. Yes, this slight distinction in architectural design can affect your legal rights.
Turning to the subject of vehicles, Texas Penal Code §30.01 defines a vehicle “as any device, in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation.” This is a very broad definition and appears to include anything that carries people or property from one place to another, including cars, trucks, boats, airplanes, golf carts, etc. The important point to remember is that you or someone else must be occupying the vehicle to be given the presumption of reasonableness under Texas Penal Code §9.31 and §9.32.
What About People Who are Only Trespassers?
Make sure that you do not fall victim to the common misconception that the Castle Doctrine gives you carte blanche to use deadly force merely because someone is on your property. It does not. Many people think that the law allows you to use deadly force against a mere trespasser. In fact, Texas law says the exact opposite. Texas Penal Code §9.41 allows you to use force, not deadly force, that is reasonably necessary to prevent or terminate another’s trespass on your land.
You still have a legal right to exclude or remove trespassers from your land; however you are limited to only using non-deadly force to do so. The use of force can have many different manifestations, from physical confrontation to displaying a weapon. Texas Penal Code §9.04 states that for defensive purposes the display of a weapon in order to create apprehension in another person is considered a use of force, not deadly force. That means if someone trespasses on your property, you may display your firearm to create apprehension that you will use deadly force if necessary. You will not be legally justified in discharging the firearm, but you will be legally justified in displaying it to “create apprehension” under the law. Only if the trespasser is committing other acts where the law states that you are justified in using deadly force would you be allowed to discharge your firearm legally.
For example, if you are sitting in your living room and see an individual peering in your window, you will probably not be justified under Texas law in using deadly force against the suspicious person. However, if the same fellow breaks a window and climbs through, you will be legally justified in using deadly force under Texas Penal Code §9.32. If you see the same individual scoping out your detached barn, you will not fall under Texas Penal Code §9.32, because it is not considered an occupied habitation. Note under our examples you may very well be justified under another section of the law in the use of deadly force, but not under Texas Penal Code §9.32, or what the media calls the “Castle Doctrine.”
What if a Trespasser Starts Committing Other Property Crimes?
What about defense of property? The use of deadly force to protect property is contained in Texas Penal Code §9.42. This section of the law lays out a couple of scenarios where you are justified in reasonably using deadly force to protect your property. The first is if someone is committing trespass or interference with your property and you must reasonably use deadly force to prevent arson, burglary, robbery, aggravated robbery, theft during the nighttime or criminal mischief during the nighttime. If someone is unlawfully on your property and attempting to commit any of these crimes, you will gain the legal justification for using deadly force.
The second scenario is the law of recovering your property by using deadly force. Texas has a 3-prong test that, if met, gives a justification in using deadly force to recover stolen property. This test is as follows: (1) force is necessary to prevent or terminate another’s trespass on land or unlawful interference with the property, (2) deadly force is reasonably necessary to prevent another who is immediately fleeing after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property, and (3) the person reasonably believes that the property cannot be recovered by any other method or that the use of non-deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury. We as lawyers cannot stress enough that under this scenario, while the law may allow you to use deadly force – It Is Most Likely A Very Bad Idea!
As you see, criminal trespass alone is not one of the crimes listed in Texas Penal Code §9.42 or even as part of the “Castle Doctrine” under §9.31 or §9.32. A mere criminal trespass may, however, evolve into one of the above crimes where you may be justified in using deadly force to protect your property. Let’s take another example, if someone decides to sit on your lawn, you holler at them from your bedroom window to “get off my property.” If the trespasser refuses to leave, you are almost certainly not justified in using deadly force to remove him. But if that person sitting on your lawn gets up and charges towards your bedroom window with a firearm and a crow bar, you will very likely be legally justified in using deadly force to protect yourself and your home. His actions of charging you with a weapon make him more than just a trespasser under Texas law.

Criminal Prosecution Even If You Were Justified.

Just because Texas law affords you a legal justification for using deadly force when someone attacks you or enters or removes you from your occupied habitation, vehicle, or workplace, does not mean you are immune from being arrested or criminally prosecuted – even if you are completely in the “right” as far as the law is concerned. Your right to assert legal justifications is just that: a legal justification. It is not a get out of jail free card, or an “I get to skip the entire legal process” card. In fact, always remember, there is a high possibility that you will go to jail and have to post bond to get out long before the issue of justification is considered by the government. We see cases like this commonly under the firearms program, not to mention seeing cases of this nature unfold in other states everyday. You may ultimately have to go to court and assert your justification defense before a judge or jury. This process may take months or even years to get resolved. You just dont know.
Does Texas Have a Stand Your Ground Law?

The term “stand your ground” law, again, is not a legal phrase but a phrase the media frequently uses in its reporting. Texas law tells us that there is no duty to retreat if faced with a situation where you have to use force or deadly force to protect yourself or another. Even if by retreating you could avoid the entire confrontation, you do not legally have to. Texas Penal Code §9.32(c) states that in defending yourself or another person, you have no duty to retreat if: (1) you have a legal right to be at the location where deadly force is used, (2) you did not provoke the person against whom deadly force was used, (3) and you were not engaged in criminal activity at the time deadly force was used. The statute is better classified as a “no duty to retreat” law. Under these very limited circumstances, a prosecutor or law enforcement can no longer argue that you had a reasonable “escape route” or that you should have had to “fall back” before justifiably using deadly force. If you are facing a criminal charge, qualifying under this statute could mean the difference between a conviction or not!

In order to receive the “no duty to retreat” protection from the law, first, you must have been justified under the Texas Penal Code in using force or deadly force. As we discussed above, Texas Penal Code §9.32 states that you will be presumed to be legally justified in using deadly force if someone is entering, attempting to enter, removing you or attempting to remove you from your occupied habitation, vehicle, or workplace. Texas Penal Code §9.32 also states that you will be presumed to be justified in using deadly force if someone commits or attempts to commit: aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Deadly force can be used to stop any of these crimes, as well as when it may be immediately necessary to protect yourself or another person from the attacker’s use of deadly force. If you are anywhere you have a right to be, only then does the use of deadly force with no duty to retreat apply under the statute. To paraphrase a very effective jury argument, the statute is designed to protect you when “trouble finds you, but not when you go looking for trouble.”

Disqualifications for No Retreat Protection

There are multiple situations where your conduct may potentially disqualify you from the Texas “no duty to retreat” provision. In order to receive Texas Penal Code §9.32(c)’s “no duty to retreat” protection, you must be justified in using force under Texas Penal Code §9.31. Second, the no retreat statute itself has three more qualifications that must be met before you gain the statute’s protection.

Disqualifying Under Texas Penal Code §9.31

If you want to protect yourself or another person, there are multiple situations under Texas Penal Code §9.31 where you will not be justified in using force or deadly force. If you fall under one of the following situations, you will not be given the “no duty to retreat” protection in the legal system:

1. The use of force is not justified in response to verbal provocation alone. (If someone is only yelling at you, you are not justified in using force against them).

2. You will not be justified in using force to resist arrest or search being made by a police officer. Even if the arrest or search is ultimately proven to be unlawful.

3. The use of force against another is not justified if you consent to the force. (No dueling or consenting to gun fights).

4. If you seek a discussion with another person regarding your differences while unlawfully carrying a weapon, you will not be given the “no duty to retreat” protection. Unlawful carry of a weapon includes:

a. a non-CHL holder carrying in places other than their premises, vehicle or watercraft;
b. having a handgun in plain view;
c. engaging in criminal activity while carrying a weapon; or,
d. carrying a weapon by a person who is a member of a criminal street gang.

Qualifying Under the No Duty to Retreat Statute
As we discussed earlier, the first thing that must be satisfied to receive the no duty to retreat protection is that the person had a legal right to be in the location where deadly force was used. What does the law mean that you “have to be in a location where you have a legal right to be?” The best way to address this topic is to discuss places where you do not have a legal right to be. Any location where you would be considered a trespasser is by definition, a place where you do not have a legal right to be. Under Texas Penal Code §30.05, a person becomes a criminal trespasser if a person enters or remains on property without effective consent, or the person had notice that entry was forbidden or received notice to depart but failed to do so. Notice of trespassing includes: oral or written communication, fencing, signs posted on the property indicating that entry is forbidden, purple paint marks on trees or posts on the property, or crops for human consumption growing on the property. As long as you are in a place where you are not considered a trespasser by the law, you most likely have a legal right to be there under the no duty to retreat statute.
If you satisfied the location test, you cannot have provoked the other’s use or attempted use of force. You can’t start the fight and claim justification, however, there are several exceptions to this rule. (Yes, an exception to the exception.) If you abandon the encounter or clearly communicate your intent to abandon and you cannot do so safely, and the other continues to use unlawful force against you, you do not have a duty to retreat.
A very similar scenario recently played out in a district court in Harris County. The accused was convicted of murdering his neighbor in a conflict that started with a noise complaint. The accused videotaped the entire confrontation. If you watch the last couple of minutes of the video, it appears that the accused was justified in discharging his firearm after three men charged him. However, the previous approximately twenty minutes of the video showed the accused leaving his property with his handgun, trespassing on his neighbor’s property, and taunting the neighbors by flashing his pistol. Thus, the accused did not qualify for the “no duty to retreat” statute. In fact, the prosecutor in that case told the jury that “self-defense was never meant to protect the one that started the fight.” The jury only deliberated for 90 minutes before returning a verdict of guilty on a murder charge and ultimately sentenced him to 40 years in prison.
Finally, you cannot be engaged in any criminal activity, other than a Class C misdemeanor traffic offense, at the time deadly force was used and claim self-defense. I would advise refraining from any criminal activity.

So, got all that?

Next time you hear/read how easy it is to shoot someone and get away with it here in the wild, wild west (or East if you live in my part of the state) of Texas, do feel free to pass along any or all of the above.

And should you ever have the urge to spend a bit on “prepping”, you too can retain legal representation in advance of catastrophe by joining (or possibly creating) your states Firearms Legal Defense Retainer Program too.  Last I knew, it’s a whopping $120 a year or thereabouts, with an initial ~$20 sign-up fee.  I spend more than that on an average Saturday’s ammo shopping extravaganza at the local sporting goods outlet personally.  If you’re one of those people who doesn’t have a gun law-savvy lawyer retained in advance of need (and have the emergency contact phone number pre-set on your phone), you’re doing the whole gun owner thing wrong.

ETA an observation.  In the first segment copied above (What Is The Texas Castle Doctrine?), the second to last paragraph ends with,

 For example, Texas law does not consider your detached garage, shed, and/or barn part of your habitation. However, if your garage, front or back porch is connected to the structure containing your sleeping quarters (as exists in many suburban communities), it is considered part of your habitation as defined by the Texas Penal Code. Yes, this slight distinction in architectural design can affect your legal rights.

 My daughter and son-in-law own a fairly upscale tract home in one of the suburban communities in the N. Dallas metro area.  Their back yard covered patio isn’t physically attached to their house, as making it so would raise their property taxes.  The result is, while they pay lower property taxes, she and the SiL have to treat the area immediately outside their back door as if it were the yard fence.  Its part of their property and the laws governing trespassing apply, but not the laws governing forced intrusion of their “habitation”.  They can forcibly remove a trespasser from outside their back door, but not with deadly force (until s/he actually attempts forced entry of self-same door).

That’s a real-world example of the distinctions at play in determining whether or not you get no-billed by the grand jury or a closely supervised stay as a guest of the Governor because you stood your ground.

The burden of owning a gun may well be lighter than regret, but don’t short change the complexity of the burden either.

Arrest That Man!

Over at Joe Huffman’s place, a really intriguing question gets a look:

David Hardy says there are options to be considered now that Holder has been found in contempt of Congress:

The House sends out its Sergeant-at-Arms to arrest the defendant, he is tried on the spot, and the House decides whether to convict.

It is a little bit of a surprise to me but the Capital has a dungeon just for such purposes. And I find it interesting and very pleasing that:

…presidential pardons appear not to apply to civil contempt procedures such as inherent contempt because it is not an “offense against the United States” or an offense against “the dignity of public authority.”

A commenter at the David Hardy link above suggests that leaving AG Holder out of durance vile would be a better strategy, but I think I disagree.  The advantage of asking Holder himself, “what did the president know and when did he know it”, isn’t measurably more effective than is responding to efforts to obtain his release with the same query I think.

One added attraction of sending out the Sergent-at-Arms of the House (with as many Capitol Police as needed for back-up) to arrest the AG is the really strong potential for all the various DOJ gun toters to actively oppose their boss being given the good news.  I can see the headlines now; “House Swatties No-Knock AG’s Office”, “OK Corral, D. C.”, “Blood In The (Capitol) Streets”.

So, how do you say “snark” in spanish Mr. Calderon?

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