Law Enforcement/Police

How NOT to assert your rights

Posted on by Kenneth Ballard / 0 Comment

In a video made by the organization “Flex Your Rights” called “10 Rules for Dealing with Police“, rule #6 is “Don’t expose yourself”. Basically what this means is do not do anything that could cause the police to have a heightened level of suspicion with you. Once you are detained, the police can and will look for anything in plain sight, and anything found can be used against you.

With that in mind, let’s look at this:

For those with accessibility technologies, this is the list:

  1. My window is down far enough, I can hear you just fine. Do not try to open my door, they are always locked.
  2. Before you ask me for anything, you need to state the reason for pulling me over.
  3. You are being audio and video recorded for my protection and your accountability.
  4. I do not speak to nor do I answer ANY questions from cops. Any information you need to know will be on my Driver’s license, registration and proof of insurance.
  5. I do not consent to any searches and seizures. If you truly feel the need to search my vehicle, get a warrant. I will be happy to wait.
  6. What you put into this stop is what you will get out of it. Respect my rights and it will be quick and pleasant.

Talk about a way to ensure the police put extra scrutiny on you.

The first rule of police stops is to keep calm and cool. In other words, don’t be belligerent. And the above sign is belligerence. So don’t have a sign on your window like that.

For one, the sign blocks some of your view and is opaque. Depending on jurisdiction, this could get you cited, as any window coverings need to be translucent (“see through”) so as to not block your ability to see behind you looking through the rear window.

Having this list on your window will also virtually guarantee you get a citation every time, even for minor things like a broken headlight or taillight that would normally result in a warning unless you’ve been previously detained for it and failed to get it repaired. Yes, sometimes it is the small things that can make the difference between a warning and a citation. Between a momentary inconvenience of a traffic stop, and the time, expense, and points against your license that comes with a citation.

And any officers encountering that in a parking lot, parking garage, or parking spot on the road will also be more likely to scrutinize rather than just walk by. And the same would be true if you had a bumper sticker about guns or drugs. Again, don’t expose yourself.

One other thing. In anything addressed to the police, do not use the “cop(s)” since that is often used as a pejorative. Either use “officer(s)” or “police officer(s)”.

1. “My window is down far enough… Do not try to open my door…”

First, a police officer won’t try to open your door unless they are trying to extract you from the vehicle — e.g. you’re under arrest and not being cooperative.

Having your window open isn’t about you being able to hear the officer, but the officer being able to hear and see you. If the officer requests you to roll your window down further, do so. But you don’t need to lower it further than 4″, or about 1 hand width. No officer should request you to roll it down all the way as they should have no need to do so, except in one circumstance.

That being when you’re carrying concealed. I’ve said before that you must disclose this to the officer at the start of the stop regardless of the laws of your State. You will need your window rolled down for that as the officer will want to secure you and/or the firearm for his/her own safety.

Two other things to note. First, you will need to roll down your window to sign the citation. And, second, an officer can order you out of your vehicle for any reason, and you must comply. Failure to comply could result in arrest as it is typically a misdemeanor. In Kansas where I currently live, the statute is KSA 8-1503.

2. “…state the reason for pulling me over.”

So far I have only had one traffic stop where the officer said “Do you know why I pulled you over?” The only reason some officers do that is to get you to cop to something they don’t know about. If you’re asked this, answer simply and directly, “No, officer, I do not know why you pulled me over.”

In all other instances I’ve been detained, the officer stated the reason directly before requesting what he needed to see.

And if the officer requests your license, etc., before stating the reason for pulling you over, ask the officer why you were pulled over: “Officer, before I hand you what you’ve requested, please tell me why you pulled me over.”

3. “You are being audio and video recorded”

And officers also audio and video record (at least dashcam recording) all traffic stops. You typically don’t need to do this. However in light of the Philando Castile incident, this would be helpful if you’re carrying concealed. That way if you’re shot, we can all see what you did wrong.

If you live in a State with the “two-party rule”, meaning all parties must assent to the conversation being recorded, that statement on your window likely has no legal effect.

4. “I do not speak to nor do I answer ANY questions from cops.”

Again with the word “cops”.

Here’s the thing: you do have the right to remain silent. However, there are few traffic stops where you’ll be able to successfully avoid saying anything to the police officer. In general, though, if an officer asks you a question, answer it. A police stop is not the place to get self-righteous or belligerent about your rights.

5. “I do not consent to any searches or seizures.”

This is similar to a list I’ve seen for someone driving through a DUI checkpoint that also included “I want a lawyer”. There is no reason to state this up front.

And having this on a sign in your vehicle window isn’t conducive to a smooth traffic stop. Plus the officer may actually take this as a challenge and look for anything in plain sight to establish probable cause to search your vehicle further. The officer, the officer’s partner, or another officer who arrives on the scene (two of my last three traffic stops included such) will walk around the vehicle, looking in all windows carefully and at the external of the vehicle.

They will be checking the external of the vehicle anyway looking for anything additional they can cite, but the sign invites extra scrutiny due to it being very unusual.

In other words, you are inviting that extra scrutiny by having the sign. Do not expose yourself.

Further, the statement about waiting for a warrant has no legal effect. It is a long-standing rule in the Courts that police do not need a warrant to search a vehicle so long as they can demonstrate probable cause prior to the search. Reasonable suspicion can also be used to detain you to bring in a drug dog.

6. “Respect my rights and it will be quick and pleasant.”

Oh how cute acting like you’re the one who can make that call.

Here’s the thing: while you don’t need to be infinitely cooperative with an officer during a traffic stop, it also helps if you don’t get things off to a bad start by being directly or passively belligerent. Having the above sign in your window will not put things in your favor.

This comes back to a pervasive attitude I’ve seen time and again: a dehumanization of police officers. Respecting the officer and their authority is what allows a stop to go smoothly.

Instead just keep calm and cool. Keep your hands out where the officer can see them. Don’t talk back or cop an attitude of any kind. Don’t be directly or passively belligerent. Don’t be disrespectful.

And don’t have a sign like the above in your car window. It’ll only invite extra scrutiny, and will likely ensure you walk away with a full citation every time. Possibly multiple citations depending on what the officer also finds while looking around your vehicle that would’ve otherwise been ignored but pointed out to you or resulted in a warning.

Be smart with how you interact with the police, but not a smart ass, and everything should be smooth.

Abortion/Libertarianism

Is there a victim?

Posted on by Kenneth Ballard / 0 Comment

Julie Browoski says that libertarians can still be pro-life because it comes down to a singular question: is there a victim?

Let me posit a scenario.

It’s the dead of winter. You’re awoken by a noise and discover it’s coming from your garage. You decide to investigate. When you open the door leading to your garage, the outer door is closed, and standing next to it is someone who you presume is homeless. The person pleads with you to let them stay, saying they’ll move on in the morning and are only looking for sanctuary for the night.

What do you do?

A few things to bear in mind. First, you’re under no obligation to let them stay. After all, that person broke into your home. Under basic libertarian principles, you have every right to turn them away. And anything that happens to that person after you’ve turned them away is not your responsibility. You have the option to call the police to have that person removed from your property.

And you have the option to let the person stay the night, to provide sanctuary.

Sure most will likely do the latter. Probably even go a step or two further and get blankets, possibly tea or soup for additional comfort. And that is entirely your choice. You have no obligation to do so. But the pro-life argument implies such an obligation exists. And the activists want to force that obligation on everyone.

The trouble with saying that a person can be pro-life and libertarian, or that the anti-abortion position is libertarian, is it violates the fundamental right of a property owner. And if we don’t own our bodies, what do we really own?

A woman who is unexpectedly pregnant is the same as the above homeowner with the unexpected guest. If the homeowner cannot be legitimately obligated to provide sanctuary to anyone who comes calling, a woman cannot be legitimately obligated to continue a pregnancy she does not want.

 

Plex/Product and service reviews/Raspberry Pi

Plex set-top with the Pi Desktop

Posted on by Kenneth Ballard / 0 Comment

A NAS to readily serve up media content combined with the Plex Media Server or other DLNA platform provides a powerful entertainment setup for the home when combined with a media player. Some smart televisions have DLNA players built in, but alternatives exist if you don’t have one.

And the Raspberry Pi is a very cost-effective option, with plenty of software options available out there. I’ve used OpenELEC in the past. But it has limitations in my current media setup.

My home setup is a FreeNAS server (“Nasira“) combined with a VMware virtual machine running the Plex Media Server. The FreeNAS Plex plugin kept giving me problems, so I just set up a separate Plex VM and haven’t looked back. Everything is on a 10GbE network as well.

Some movies are in multiple parts I never joined together — e.g. Lord of the Rings Extended editions — and the DLNA service with Plex does not show them as one entry through a client such as Kodi. Plus I have playlists on my Plex server for movie series — e.g. Lord of the Rings, Resident Evil, Harry Potter, etc. — and playlists aren’t propagated through DLNA.

So for this setup, the Plex Media Player is pretty much needed. I tried the Plex app for the Playstation 3 but found it to be very sluggish. I don’t have a Playstation 4, yet. The interface and controls were much more responsive on a Raspberry Pi 2 with the slight 1GHz overclock (a little sluggish on the stock clock). So for this project, I opted for the Raspberry Pi 3 so I could use my Raspberry Pi 2 for a Kodi touchscreen project — more on that in another article.

Enclosure

Recently the Pi Desktop was introduced as a means of turning a Raspberry Pi into a small form-factor desktop. And it appeared to be the perfect setup for making a set-top box from the Pi as well. And at 50 USD, with everything it comes with, I decided to purchase one.

It is certainly a hell of a lot easier than trying to build something custom, which I initially considered.

Now there are some issues with the design as pointed out in the comments to that video, and I have some concerns with it as well. But given that this enclosure almost fits the bill of what I want while being only 50 USD, it was still less expensive than trying to build something custom while meeting all my requirements.

Plex Media Player

You will need to create the microSD card and get it working with your Plex setup before installing the Raspberry Pi into the Pi Desktop case, so you can get everything set up while you still have easy access to the card.

As part of installing it, you’ll want to set the timezone on your system. You’ll need to SSH into it remotely — default hostname is “plexmediaplayer”, default login is root/plex. Once at the command line, you’ll want to run this command:

echo "ln -sf /usr/share/zoneinfo/[timezone] /var/run/localtime" >> /storage/.config/autostart.sh

where [timezone] is your timezone – e.g., “America/Chicago” for United States Central Time. The timezone names follow the naming conventions in the tz timezone database.

Once you have it assembled, it’s just a matter of connecting it to your television or A/V receiver. You will also need a 2.5A power adapter as the enclosure doesn’t come with one. I guess element14 presumed you’d be buying one along with the Pi.

You have a few options to control the player as well. I use a wireless keyboard and mouse. Plex mentions the Flirc USB as an option if you have a Harmony Remote or the Harmony Hub. As I have a Harmony Hub, I may switch over to using that.

Mini review – Pi Desktop

I’m glad the Pi Desktop exists as an option, despite its flaws. The add-on board included with it provides an easy way to power on and off the system without having to go for the power cord each time, or buy a power adapter with a switch. Which is a good option to have even if you plan to leave the Pi powered on all the time — given it’s insignificant power consumption, I don’t see any reason to not. While that add-on board also includes an mSATA slot, I’m not currently using it since there largely isn’t much point for this project.

I mentioned above that I do have concerns with this.

First is the lack of airflow. I would’ve preferred seeing this with an included 40mm fan, or a place to mount one, with a 3-pin or 2-pin fan header on the add-in board. Noctua makes a 40mm 5V quiet case fan that could be used to add some airflow into this to cool the Pi and SSD, provided you use the latter. While a heatsink on the Pi’s ARM core may suffice for this use case (I noted the Pi’s core reaching 60C while playing a movie), the added airflow would be beneficial for those using this chassis and a Pi as a desktop computer.

I would have also preferred seeing the board use a barrel connector for power instead of the microUSB connector, as they tend to be a little bulkier compared to microUSB. But given the proliferation of USB power adapters for the Raspberry Pi, I understand why they kept with that. With the exposed GPIO pins on the top of the add-in board, creating such a connector and drilling the needed hole in the case wouldn’t be difficult.

Same with adding a means of powering a 40mm 5V case fan. Which I’ll probably look into later.

For creating a small set-top box for the Plex Media Player, Kodi variant (e.g. OpenELEC), or even RetroPie, this is a very good, compact option. It has about the same footprint as a Roku Premiere box but taller. I hope we’ll see similar enclosures hit the market that don’t have the mSATA slot, but still have an expansion board that provides a power button and a better power connector.

The mSATA slot, though, is easily the biggest source of complaint for this, and the most useless and costly feature in the kit.

Mainly because you won’t see the SSD’s performance since it’ll be limited to USB 2.0 (~480Mbps). And USB drives are much less expensive than mSATA SSDs at similar capacities. At my local Micro Center, for example, a 64GB USB 2.0 drive is around 15 USD as of when I write this. A 64GB mSATA SSD is available on Amazon for 40 USD. And since you’re limited to USB 2.0 speeds, there’s virtually no point buying the SSD.

With one minor exception. SSDs are designed to be used as primary storage. Most USB flash drives are not. But there’s still a more cost-effective, resilient option: an external HDD.

It’s also more cost effective at larger capacities, whether you buy one pre-made like the WD Book, or buy an enclosure and an HDD of your choice. A 500GB HDD can be had for as little as 25 USD, and a 1TB HDD can be had for a little north of 40 USD. Laptop HDDs are more compact allowing for a smaller enclosure but cost a little more.

And if you use a Raspberry Pi 3, you can set it up to boot from that HDD instead of the microSD.

So while the mSATA slot allows for larger capacity internal storage with minimal power requirement, the USB 2.0 speed limitation and availability of more cost-effective USB 2.0 options makes it a questionable feature.

Final setup

I have the box set so the HDMI goes into my A/V receiver, and my Harmony Hub is configured to use only the receiver and television for the “Plex Media Player” activity. The box is on all the time and isn’t controlled by the Hub.

For the network connection I’m not using the Pi3’s built-in wireless, instead opting to have it wired into a switch. The Pi3 supports 802.11n, which provides for up to triple the bandwidth of the Pi3’s Fast Ethernet, and I have a wireless router (connected to be an access point) literally 6 feet above the box. But it was easier to just wire it in.

Plus 100Mbps is more than enough for the 1080p files I have on the server, even at full Blu-ray size (~20+GB). And if my calculations are correct, it should still be enough for 4K video files.

Religion/Supreme Court

Misinterpreting the Supreme Court

Posted on by Kenneth Ballard / 0 Comment

Nowhere in the Constitution can it be construed that the government is disallowed completely from giving any kind of money to religious organizations or institutions. Indeed the availability of Federal student loans and other State and Federal funding for religious students should be telling on that mark. For example students at Brigham Young University are not ineligible for Federal grants and loans.

Yet that seems to be the point of view of most. And it’s led to a rather startling misinterpretation of the Supreme Court’s decision in Trinity Lutheran Church v. Comer. First the facts.

Trinity Lutheran Church of Columbia, Missouri, wanted to replace the surfacing under their playground equipment. Not only would this be safer, but it’d bring them into compliance with certain laws, including the Americans with Disabilities Act. So for funding this venture, they turned to the Missouri Department of Natural Resources and a public grant program. Despite ranking high enough to qualify for their grant, they were denied only because they are a religious organization.

And they turned around and sued in Federal Court. And it was appealed eventually to the Supreme Court of the United States, who ultimately ruled in their favor.

And according to some journalists, it’s as if government is now going to start funding religious organizations. This is likely to be the most misinterpreted Supreme Court decision since Citizens United.

USA Today used the headline “Supreme Court imposes church tax” and said, “Americans should have the right to support only the religious groups of their choosing.” Oh the irony of this statement. By that logic, Americans should have the right to support only the institutions they wish. So let’s abolish all taxation and make everything voluntary. Except that’s not going to happen.

Ahead of that statement, USA Today said this, “By asserting that houses of worship have a legal right to public funds in some cases, the high court has imposed a modern-day version of a church tax on all of us.” Except that is NOT what the Supreme Court said at all. Nowhere did they say that religious organizations are entitled to public funds.

The Week used the headline “How the Supreme Court just dangerously undermined the separation of church and state” and said:

At issue is the Supreme Court’s decision today that the state of Missouri was required to provide funding to a church-run preschool and daycare center under a program to improve playgrounds. Sotomayor wrote a powerful dissent which again makes clear that her nomination was one of the best decisions Barack Obama made as president. But only Justice Ruth Bader Ginsburg joined it. Astonishingly, both Obama’s other nominee, Elena Kagan, and the Clinton nominee Stephen Breyer joined Roberts to vote to require Missouri to provide the funding.

No requirement was ever stated. Indeed the Supreme Court stated the exact opposite:

The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.

The Court even hammered this point by citing Associated General Contractors of America v. Jacksonville, 508 US 656 at 666 (1993): “[T]he ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract.” So the Court is not saying the grants must be awarded. Only that religious institutions must be able to compete alongside secular organizations for public funds.

When the government offers a public grant program, it must treat all applicants equally. If religious institutions apply for the grant, the condition can rightly be placed on the grant that the funds in question are to be used only for some public benefit. The funds can’t be used, for example, to replace the Bibles or songbooks inside the church, or repair or replace the organ.

A playground or a parking lot, however, is a different story, so long as both are available to the public.

Indeed the Supreme Court left open the idea that a religious institution can be disqualified from a grant program if the funds will not be used for a benefit available to the public, referencing Locke v. Davey, 540 US 712 (emphasis theirs): “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.”

So what about the fungibility of money? Let me just say that if you set aside that argument with regard to Medicaid funds to Planned Parenthood, you must also set that aside here.

So again to summarize: the Supreme Court said only that churches and other religious institutions must be given the opportunity to compete on equal standing with secular organizations. They didn’t say the grants must be awarded to churches and religious institutions. Nor did they say churches must be allowed to use the funds for a religious purpose.

To be clear, a church applying for a public grant to replace anything related to the establishments of faith — e.g. Bibles, crosses, etc. — will likely be denied that grant. And can be denied that grant under the Supreme Court’s ruling. But when it comes to publicly-available benefits a church provides, they must be able to compete on equal standing with secular organizations for public grants.

And while a church should turn to their congregation for funds for renovations or upgrades, such as the aforementioned playground resurfacing, there is nothing that says they must only turn to their congregation. They are free to seek funds elsewhere, including public grant programs, provided the public grant is used for a public benefit.

Abortion

MO SB5 does NOT mean women can be fired or evicted for taking birth control or procuring an abortion

Posted on by Kenneth Ballard / 2 Comments

One thing that really grinds my gears is when people completely misstate what a bill or law allows and doesn’t allow. I see it with gun laws, and now it’s with Missouri SB5.

Missouri SB5, also called the “Missouri Omnibus Abortion Bill”, is basically another attempt by an anti-abortion State to see what they can enact that will survive lawsuits in Federal Court. Similar attempts were overturned by the Supreme Court in Whole Women’s Health v. Hellerstedt, 579 US ___ (2016). So now going on Supreme Court guidance, or likely in complete abeyance of it, Missouri is trying to see what they can do to regulate the few abortion facilities within Missouri out of existence.

But if you google Missouri SB5, you’ll find headlines like these:

  • “Women on Birth Control Could Be Barred from Working If Missouri Lawmakers Get Their Way”
  • “Women who use birth control could be fired in Missouri”
  • “Missouri Votes to Let Employers Fire People Who Use Birth Control”
  • “Missouri Bill Legalizes Discrimination for Birth Control Use”
  • “Missouri Could Soon Allow Employers to Fire Workers for Using Birth Control”

The big problem with these headlines and other articles like them? They all cite each other as sources, and none of them cite the specific provisions of the bill in question granting what they claim! So I went looking to find the bill in question.

The claim is that the bill is intended to preempt a St Louis ordinance along with enacting sweeping new restrictions on abortion clinics and providers in Missouri. But they’re drastically overstating the bill’s provisions. Because it appears people who have no idea how to read a bill are trying to interpret it.

There are two provisions in SB5 relevant to the claims above. First is 188.125(5):

A political subdivision of this state is preempted from enacting, adopting, maintaining, or enforcing any order, ordinance, rule, regulation, policy, or other similar measure requiring a real estate broker, real estate salesperson, real estate broker-salesperson, appraisal firm, appraiser, as such terms are defined in chapter 339, a property owner, or any other person to buy, sell, exchange, purchase, rent, lease, advertise for, or otherwise conduct real estate transactions for, to, or with an abortion facility or for, to, or with a person for the purpose of performing or inducing an abortion not necessary to save the life of the mother, if such requirement is contrary to the religious beliefs or moral convictions of such real estate broker, real estate salesperson, real estate broker-salesperson, appraisal firm, appraiser, property owner, or other person.

So what does this mean? That no city in Missouri can enforce an ordinance requiring a realtor to work with someone who wants to set up a facility for performing elective abortions. There isn’t anything in here about a landlord being able to evict tenants who use birth control or procure an abortion.

Next is 188.125(6):

A political subdivision of this state is preempted from enacting, adopting, maintaining, or enforcing any order, ordinance, rule, regulation, policy, or other similar measure requiring an employer, employee, health plan provider, health plan sponsor, health care provider, or any other person to provide coverage for or to participate in a health plan that includes benefits that are not otherwise required by state law.

This provision basically means that cities cannot enact minimum requirements for health insurance that exceeds the minimum requirements provided by State law.

The bill does not do what is claimed. I searched through SB5 and could not find the provisions claimed by the above headlines. And no one claiming the same as the above headlines actually cites the bill itself.

But unfortunately this is just par for the course from the mainstream media, it seems.

Update: On June 29, 2017, Newsweek acknowledged the earlier reporting on Missouri SB5 was erroneous:

Contrary to news reports, a controversial new bill in Missouri does not attempt to allow employers to discriminate against women who used birth control, the governor’s spokesman told Newsweek Thursday.

…

What [Missouri SB5] would not do is bar women on birth control from working. The impact of the bill was erroneously reported last week by Newsweek, Bustle, the Associated Press and Feministing. The bill was widely misinterpreted to include measures that made reproductive health care decisions a criteria for employers, but focused primarily on abortion providers and alternative agencies.

Newsweek has retracted its June 23 report.

Concealed carry/Driving/Law Enforcement/Police

Philando Castile screwed up

Posted on by Kenneth Ballard / 0 Comment

I’ll say it up front: Philando Castile screwed up. Big time.

In most reports on the trial, this is the breakdown: Castile, a black man, volunteered to Officer Yanez that he had a permit and a pistol, and he was shot. Seems a little…. simplistic. There’s more involved here.

According to testimony, Yanez ordered Castile to obtain his driver’s license after Castile had already furnished his proof of insurance. That’s when Castile disclosed he had the pistol, and Yanez shot Castile. What’s missing from that anecdote? Castile was moving his hands at the same time he was informing the officer he had a firearm.

That is the part no one seems to want to mention. Because the rest of the story is all too convenient for the narrative.

Go to any article on how to act during a traffic stop and every one will mention your hands. Typically they’ll say to have your hands on the wheel. It doesn’t matter where they are as long as they’re visible. Cops are going to be very obsessed with your hands.

Quoting an article I wrote in 2013 following an incident in Florida:

So when you are pulled over by an officer, turn on all the lights, get and keep your hands completely visible and let the officer do the initial talking. When he or she is done, inform the officer that you have a concealed carry permit and that you have a weapon in that order. Again this is about removing surprises from the picture. If you inform the officer up front about the weapon and give the officer the opportunity to secure it, things will go much smoother than if you fail to disclose you have a weapon and the officer discovers it.

After you inform the officer that you have a permit and a weapon, again in that order, the officer will give you a series of instructions to follow. The officer’s intent at that point is to secure the weapon for their own safety. Every instruction should be followed to the letter. If you cannot follow a particular instruction, say so. Remember, you’ve just now informed a law enforcement officer that you are armed. Cooperation is your only option at that point.

Note: if you live in a constitutional carry State, e.g. Kansas, and have not obtained the State’s concealed carry permit, obviously omit that you have a permit. You can volunteer that you do not have the permit. And DO NOT say you have a “gun”. Use only the word “weapon”.

One other thing to note: as the officer will not come to your window right away, take that as an opportunity to get your license, registration (if required), and proof of insurance out in the open and on the center console. Better yet, put it on the dashboard. This is so you don’t have to search for them. This way you can inform the officer that you have a permit and a weapon, but also inform them that you’ve already retrieved your license, insurance, permit, and registration, and that it is sitting on the center console or otherwise in plain sight.

But if you do not do that ahead of time, remember that you are armed in the presence of a law enforcement officer who has lawfully detained you. DO NOT move your hands after you’ve informed the officer that you are carrying except in response to a direct order and only as ordered.

And DO NOT move your hands WHILE informing the officer that you are carrying. That is the mistake that Castile made. And that is why Yanez was acquitted.

The one thing too many people refuse to acknowledge is the police officer. It’s as if they lose all humanity when they put on their badge. Quoting again my article from 2013:

I think a lot of people forget that the person who pulled them over is someone who treats every encounter as if it could be their last. It isn’t asking much that you do everything in your power to make their encounter with you as smooth and nonchalant as possible.

A police officer is human. With family and friends. Hopes and fears. Yet it seems as if few actually acknowledge this. Yes they have limitations on their power via the Constitution of the United States, and they are trusted with quite a bit of power. But that doesn’t make them any less human than the rest of us.

Too many are overlooking the mistake that Castile made. A glaring mistake that led to his death. A glaring mistake that he very easily could’ve avoided.

Firearms and Ammunition

CNN Money gets it horribly wrong

Posted on by Kenneth Ballard / 0 Comment

Recently CNN Money published an an article by Aaron Smith called “The long history of the gun used in the GOP baseball attack“. Turns out the attempted assassin in the baseball practice attack used an SKS. But the article published one very glaring error that I pointed out to them via their contact page:

In that article, the author state: “The AR-15 has a stock made of plastic instead of wood and uses .223-caliber ammo and detachable magazines with a capacity of 100 rounds or more.”

AR-15s are not distributed with 100 round magazines. I don’t know where the author got that information. The typical magazine capacity for an AR-15 is 30 rounds, with smaller capacities available — 20 and 10 rounds. 100-round “drum” magazines are available, but they aren’t commonplace.

My AR-15, specifically a Smith and Wesson M&P15, came with a single 30-round magazine. And 30-round magazines are the typical capacity for 5.56NATO firearms, and they’re the capacity you’ll find it you buy mil-surp magazines as well. So I have no idea where the author got that information, but it’s not the first time the mainstream media has gotten it horribly wrong with reporting on firearms.

Debt/Supreme Court

Supreme Court declares debt buyers immune to FDCPA

Posted on by Kenneth Ballard / 0 Comment

In all the years I’ve been writing on debt and debt collections in the United States, I and everyone else who has written on the topic has had the same presumption: anyone other than the debt originator is subject to the full provisions of the Fair Debt Collection Practices Act.

And the Supreme Court of the United States just ended that presumption in one decision. The case is Henson v. Santander Consumer USA, Inc., and it is the first written decision from the new Associate Justice Neil Gorsuch.

First, the facts of the case. The loans were auto loans provided by CitiFinancial — full disclosure: I previously had a personal loan through them before they were spun off into OneMain Financial. The petitioner defaulted on the loan, and it’s safe to presume there was a repossession going along with that, with the petitioners also not paying on what was left over after the repossession was sold off. The leftover balance was then sold – key word there – to the respondent in this case, Santander Consumer USA.

Allegedly the debt buyer didn’t adhere to the full provisions of the Fair Debt Collection Practices Act, and the petitioner filed suit. Here’s where things get shaky.

The key concern here is that Santander Consumer USA is a debt buyer. As such, when they were assigned the debt accounts, CitiFinancial washed their hands of the debts entirely and transferred all rights to the debt to the respondent. This is quite different from a collection agency who merely collects a debt on behalf of the creditor. Quoting the opening paragraph of Gorsuch’s opinion:

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices. So perhaps it comes as little surprise that we now face a question about who exactly qualifies as a “debt collector” subject to the Act’s rigors. Everyone agrees that the term embraces the repo man—someone hired by a creditor to collect an outstanding debt. But what if you purchase a debt and then try to collect it for yourself— does that make you a “debt collector” too? That’s the nub of the dispute now before us.

And the Justice borrowed heavily on the exact wording of the statute in deciding that, ultimately, no, Santander is not a “debt collector” in the eyes of the Fair Debt Collection Practices Act. Specifically “debt collector” is defined at 15 USC § 1692a(6):

The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

That last word is key. And the statute makes a very important distinction as well. Continuing the paragraph:

Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.

Again, this is very key. A “debt collector” is clearly someone collecting debts for someone else. But a debt buyer isn’t doing that. A debt buyer purchases all rights and interest to a receivables account — the outstanding debt — and takes ownership of the debt, with the seller writing off all interest in the debt and retaining no rights to it. For all intents and purposes, the debt buyer becomes the creditor. And there is a ready assumption with this that Gorsuch points out:

Both sides accept that third party debt collection agents generally qualify as “debt collectors” under the relevant statutory language, while those who seek only to collect for themselves loans they originated generally do not.

Going on the plain language of the statute, Gorsuch then follows the logic:

All that remains in dispute is how to classify individuals and entities who regularly purchase debts originated by someone else and then seek to collect those debts for their own account. Does the Act treat the debt purchaser in that scenario more like the repo man or the loan originator?

And the answer is laid bare:

[We] begin, as we must, with a careful examination of the statutory text. And there we find it hard to disagree with the Fourth Circuit’s interpretive handiwork. After all, the Act defines debt collectors to include those who regularly seek to collect debts “owed…another.” And by its plain terms this language seems to focus our attention on third party collection agents working for a debt owner—not on a debt owner seeking to collect debts for itself. Neither does this language appear to suggest that we should care how a debt owner came to be a debt owner— whether the owner originated the debt or came by it only through a later purchase. All that matters is whether the target of the lawsuit regularly seeks to collect debts for its own account or does so for “another.” And given that, it would seem a debt purchaser like Santander may indeed collect debts for its own account without triggering the statutory definition in dispute, just as the Fourth Circuit explained.

And the rest of the decision basically responds to any other attempts to grammatically interpret the statute in a fashion that pretty much all of us presumed is how the statute would be interpreted.

So basically the Supreme Court has ruled that debt buyers are not debt collectors. Going on the plain text of the statute. In the end, bringing the presumption of the statutory language into the language of the statute is an act for Congress, not the Courts.

Since again, I and many others presumed that debt buyers were treated as debt collectors under the law. This was, arguably, the first time I’ve ever looked specifically at the statutory definition of a debt collector. The difference is very key, since debt collectors are subject to the main provisions of the Fair Debt Collection Practices Act. Items such as debt validation, and the specific provisions surrounding matters such as time and place of contact.

Now does this mean that debt buyers are free to use whatever tactics they want to collect on debts? NO!

The only thing this decision means is debt buyers cannot be sued in Federal Court under the Fair Debt Collection Practices Act. Other Federal and State laws still apply. This means they cannot harass you to collect a debt, and even if relief under the FDCPA cannot be obtained, the provisions laid out can still apply to the definition of harassment.

This means a debt buyer cannot go outside the bounds of what is reasonable to collect a debt. No Court would side with a loan originator calling you at 3am to discuss your debts, let alone a debt collector. That easily falls outside the bounds of what is reasonable and could likely qualify as harassment. It just means you have to sue for harassment instead of violating the FDCPA.

And if you tell a debt buyer in writing to stop trying to contact you, they must still comply.

So while this decision out of the Supreme Court is certainly quite eye-opening, don’t think it means that debt buyers can now do whatever they want. They can’t. They must still act reasonable in collecting a debt. And you can still hold them to that. It also means that debt validation with debt buyers, however, may become a little more complicated.

Hopefully Congress and the President will act on this decision soon to amend the definition of “debt collector” at 15 USC § 1692a(6) to also include debt buyers.

Politics

Nuance, meritocracy, and the upper 20%

Posted on by Kenneth Ballard / 0 Comment

If there’s one adage in life that has proven itself true numerous times it’s this: you might get rich through luck, but you won’t stay rich through stupidity. There are numerous nuances about wealth that many don’t understand, or don’t want to understand. Instead they just want to stare that the aggregate figures and complain.

In the case of Richard Reeves of the New York Times, it’s basically to tell the upper-middle class that we are “rich”. And I say “we” because I am fortunate enough to have gotten to that income level. But Reeves completely misses the nuance that goes with the income level.

Such as where you live. My current salary in San Francisco wouldn’t garner anywhere near the standard of living that I have in Kansas City. In 2013, Learnvest published an article highlighting how $166,000 per year in New York isn’t exactly middle-class. Note: it’s not upper-class either. And in Silicon Valley, software engineers earning what I make or more are “scraping by“.

Now Reeves does point out that class segregation does exist in the United States. It’s quite easy to tell where the more affluent members of society are likely to live. For example, in Kansas City, Missouri, drive along US-169 near Briarcliff Road and you’ll see an area that is obviously occupied by the more well-off in Kansas City. Same with driving down Ward Parkway. Other areas of the Kansas side of the metro are similar.

At the same time, though, you can also see that between completely different metro areas by looking at cost of living. The comparison between Silicon Valley and Kansas City I’ve already highlighted. And there’s also a comparison to be made between even Des Moines and Kansas City.

But where Reeves goes a little out of bounds is in trying to describe why that class segregation exists, and whether it’s actually a problem.

The big difference is that most of the people on the highest rung in America are in denial about their privilege. The American myth of meritocracy allows them to attribute their position to their brilliance and diligence, rather than to luck or a rigged system. At least posh people in England have the decency to feel guilty.

Meritocracy is far from a myth. I did not earn my place on the ladder in the US economy through “luck or a rigged system”. Instead I earned it through my choice of career, along with my expertise and experience allowing me the job I currently hold where I earn my salary. As such I’m not in denial about my “privilege”. I know I earned it.

And many others above me on the income rungs also earned theirs. It wasn’t given to them in any way.

In the United States, the most liberal politician can pay for a lavish education in the private sector. Some of my most progressive friends send their children to $30,000-a-year high schools. The surprise is not that they do it. It is that they do it without so much as a murmur of moral disquiet.

Why should they have any sense of moral disquiet? Because they are well-off enough to be able to send their children to prestigious private schools and enjoy their wealth in other ways? I’m sure the Obamas had no feeling of moral disquiet sending Malia and Sasha to private schools, both in Illinois and Washington.

While that alone isn’t a guarantee of future success, it does give them one hell of a head start. But, again, where is the concern?

There seems to be a rather common point of view wherein the rich should feel ashamed for being rich. “Rich guilt”, which is loosely related to “white guilt”, it seems. And President Obama’s statement that “you didn’t build that!” in reference to people who did build successful business ventures.

But another nuance often lost in discussions of wealth in the United States is socio-economic mobility. This is the approximate measure of how easy it is for someone in the United States to not only move up income brackets, but also move down. Interestingly, a lot of people decry low socio-economic mobility as being bad, but don’t understand how their policy ideas only make that situation worse by, in essence, punishing success.

But while socio-economic mobility in the United States appears to be low compared to our European counterparts — for numerous reasons I won’t venture into here — it hasn’t changed much compared to the 1970s.

As such, the statement “Most of the children born into households in the top 20 percent will stay there or drop only as far as the next quintile” misses a lot of nuance. Not to mention it’s also not correct (more on that in a second). Again, you might get rich by getting lucky, such as luck of birth, but you won’t stay rich by being stupid. A lot of those born into the upper 20% will also attend some rather affluent schools, allowing them to learn what they need to keep from dropping out of the upper 20%.

This is why I get rather taken aback by those who call individuals such as President Donald Trump “stupid”. Openly and brazenly calling him that. Because Trump is far from stupid. The fact he’s a billionaire shows that. He took what his father gave him and built upon that.

Bill Gates got very, very lucky in starting Microsoft. The economic tides very easily could’ve turned against him and his startup. At any time that also could’ve happened. Instead he’s still the richest person in the world, though don’t think for a moment he’s sitting on $80+ Billion in cash.

And depending on the variety of his securities, one bad market swing could wipe away a significant chunk of it. And that is the case for most of the rich. Because the rich aren’t sitting on cash. Don’t think the images of Scrooge McDuck having so much cash he needs a giant building to store it are in any way realistic.

As such, contrary to the assertion of Gary Solon, who Reeves quotes in his op-ed, there isn’t a “wealth trap”. Again, you don’t stay rich being stupid. And there are plenty of examples of people born into affluent families squandering the wealth they inherited. Time published an article in 2015 with the rather eye-opening title: “70% of Families Lose their Wealth by the Second Generation“. And Time reveals another eye-opening statistic: 90% of rich families lose their wealth by the third generation. This is where this statement comes from: “riches to rags in three generations”.

There’s a kind of class double-think going on here. On the one hand, upper-middle-class Americans believe they are operating in a meritocracy (a belief that allows them to feel entitled to their winnings); on the other hand, they constantly engage in antimeritocratic behavior in order to give their own children a leg up.

How is giving your kids the best starting chance “anti-meritocratic”? Indeed isn’t that what virtually all parents want: to give their kids a better chance in life than they had? It’s actually why we have the luxuries we enjoy in the United States: people building on the ideas and achievements of those who came before.

But leads can be squandered through complacency. Just talk to anyone who was cheering on the Atlanta Falcons in last-year’s Super Bowl. Being able to send your kid to a prestigious private school is no guarantee they’ll succeed in life. And plenty of people who went through public schools are successful.

Things turn ugly, however, when the upper middle class starts to rig markets in its own favor, to the detriment of others.

Okay this ought to be good…

Take housing, perhaps the most significant example. Exclusionary zoning practices allow the upper middle class to live in enclaves. Gated communities, in effect, even if the gates are not visible.

This is the class segregation to which I referred earlier. But this didn’t occur through exclusionary zoning practices, and I invite Reeves to back up that assertion with reports if he has them. Instead home values create these “enclaves”. I mentioned earlier the Briarcliff area of Kansas City, Missouri.

Quoting Realtor.com:

When it comes to real estate clichés, “Location, location, location” has all other contenders (including “Not a drive-by!”; “Cash is king!”; “Is that your checkbook or are you just glad to see me?”; and “Worst house, best street”) beat by a mile. Not only has it been in use since at least 1926 (according to the New York Times), but it’s utterly and inarguably true.

In the quoted article, they also have an image showing what can bring down home values quite a bit. And when you look at this image, these are often things you don’t think of when thinking of affluent areas:

I should note that I don’t live far from a large cemetery and a funeral home. And it’s perfectly understandable that a cemetery being nearby would lower a home’s value and likely make it somewhat difficult to sell. Cemeteries give a lot of people the willies.

But a bad school having almost double the effect of a cemetery is worth noting. High renter concentration and homeless shelters tend to also point to a lower-earning population. Especially since a high renter population also means higher likelihood of Section 8 housing.

The effect tends to compound: bad schools may occur from less property taxes being collected on lower-value homes.

And these tend to be areas that more affluent people either avoid or escape. Also compounding the problem is attempts for the rich to bring their money into those areas may be met with animosity by the population living there.

Atlantic Bay points out other things that negatively affect home values in an area:

  • Crime (which tends to exist with poverty in a feedback loop)
  • Poorly maintained exteriors
  • Foreclosures nearby the home
  • Unpleasant odors
  • Dangerous trees and limbs
  • Unkempt yards
  • Annoying pets

Along with crime is also the sex offender registry. A home in an area with a higher concentration of registered sex offenders could see a significant drop in home value, according to Business Insider, and will likely be avoided entirely by home buyers with children.

But again, these are things you won’t see in affluent neighborhoods.

The federal tax system gives us a handout, through the mortgage-interest deduction, to help us purchase these pricey homes.

Not to the degree you might think. And the ability to take certain itemized deductions is reduced at greater incomes. Buying a pricey home in an affluent neighborhood means you have a greater level of income, but it also means your eligibility to deduct all of the mortgage interest could be reduced.

For the upper middle classes, regardless of their professed political preferences, zoning, wealth, tax deductions and educational opportunity reinforce one another in a virtuous cycle.

That “cycle” doesn’t exist.

Instead the cycle is a little more like what we’ve seen with Donald Trump: born into a rich family, gets a good education, and so learns how to take risks that will pay off.

And again anything can derail this. A bad investment here, a bad business venture there. And a person starting off born into a family with 8 figures to their net worth may find themselves with… less. Much less. Same if they don’t do anything to maintain the wealth and just squander it.

You might get rich by getting lucky, but you won’t stay rich being stupid.

It takes a brave politician to question the privileges enjoyed by the upper middle class. Recently, there have been failed attempts to make zoning laws more inclusive in supposedly liberal cities like Seattle and states like California and Massachusetts.

There’s not really much that laws can do with regard to the enclaves that form. Investment in the lesser-off areas is what is needed. But since these lesser-off areas tend to have higher rates of crime, that tends to scare away potential investors. While the damage from the New Deal policy known as “redlining” is still being felt today, there really isn’t much laws can do to undo that damage.

But the people who make up the American upper middle class don’t just want to keep their advantages; armed with their faith in a classless, meritocratic society, they think they deserve them. The strong whiff of entitlement coming from the top 20 percent has not been lost on everyone else.

And have you talked to upper-middle class earners? I can tell you from my own perspective that it isn’t any sense of entitlement. And the luxuries I enjoy I don’t feel I deserve. Rather it’s what I have earned. Since they are advantages and luxuries I pay for from my salary.

It’s the lesser fortunate that seem to believe they have a claim to my salary and so demand the government take more of it.

Fourth Amendment/Supreme Court/Technology

Revisiting the Fourth Amendment and passwords

Posted on by Kenneth Ballard / 0 Comment

After posting the previous article, I decided to dig around a little more to see where the idea originated that passwords are protected by the Fifth Amendment as opposed to the Fourth. And in that, I discovered a rather key case out of the United States Circuit Court for the 11th Circuit called US v. Doe.

And at a cursory glance, it would appear that the Court is saying that a person has a Fifth Amendment protection from being compelled to produce a password. But that isn’t what the Court is saying.

First, let’s establish the facts of the matter. In 2010 the person represented by the alias John Doe was determined by investigators to be a key figure regarding the trafficking of child pornography. As part of their investigation, they seized computers and storage media in excess of 5TB (impressive for 2010). Everything was forensically imaged.

Unfortunately, much of the media was encrypted with TrueCrypt, and the examiners weren’t able to recover anything as a result.

So they tried to get the United States District Court to compel Doe to either turn over the password(s) or produce the unencrypted contents of the drive. This is where the Fifth Amendment claim was initially raised.

In response to the initial claim, the Court granted limited immunity to the production of the media contents, but did not extend that immunity to any derivative uses by investigators. And since any derivative uses could lead to charges, Doe again raised the Fifth Amendment. And he was held in contempt of Court.

But before you think that the Fifth Amendment absolutely controls here, a few key details come into play, specifically from the testimony of one of the forensic investigators, Timothy McCrohan:

Doe: So if a forensic examiner were to look at an external hard drive and just see encryption, does the possibility exist that there actually is nothing on there other than encryption? In other words, if the volume was mounted, all you would see is blank. Does that possibility exist?

McCrohan: Well, you would see random characters, but you wouldn’t know necessarily whether it was blank

Doe pressed the investigator to explain why they believed something specific was hidden on the drive.

McCrohan: The scope of my examination didn’t go that far.

Doe: What makes you think that there are still portions that have data[?]

McCrohan: We couldn’t get into them, so we can’t make that call.

What exactly was John Doe (likely his attorney, actually) doing with these questions? Trying to establish probable cause. And there’s a major reason he’s trying to do that which I’ll explain later.

But is producing evidence “testimony”? Well that depends.

The 11th Circuit references two cases at the Supreme Court to answer this question: Fisher v. United States, 425 US 391 (1976), and United States v. Hubbell, 530 US 27 (2000). Both cases refer to the production of evidence on the part of the accused in tax liability cases. Borrowing the 11th Circuit’s interpretation of Fisher:

[The Supreme Court of the United States] then held that the taxpayers’ act of production itself could qualify as testimonial if conceding the existence, possession and control, and authenticity of the documents tended to incriminate them.

Obviously this means that accused persons cannot be compelled to turn over evidence to investigators, right? Not so fast. There’s a limiting doctrine to this idea called the “foregone conclusion” doctrine. Again, borrowing the 11th Circuit’s summary:

The Court reasoned that, in essence, the taxpayer’s production of the subpoenaed documents would not be testimonial because the Government knew of the existence of the documents, knew that the taxpayer possessed the documents, and could show their authenticity not through the use of the taxpayer’s mind, but rather through testimony from others. Where the location, existence, and authenticity of the purported evidence is known with reasonable particularity, the contents of the individual’s mind are not used against him, and therefore no Fifth Amendment protection is available.

For the production of evidence to be privileged under the Fifth Amendment, the investigators could not have yet established probable cause. The Constitution states with the Fourth and Fifth Amendments that you cannot be compelled to help the government build a case against you.

But it should be obvious why Doe’s attorney, in questioning McCrohan, was attempting to determine what specifically the investigators were attempting to find. That specificity is necessary to establish probable cause. Quoting the Fourth Amendment, emphasis mine:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable cause means, in short, that investigators need to have some evidence giving them cause to believe you’re up to something illegal. For a search, they need to know in advance of the search what they hope to find. If you revisit McCrohan’s testimony above, you’ll see that they can’t even establish that there is anything on the drive at all. Again, the 11th Circuit, this time referencing Hubbell:

Asserting that the Government could not convict him without the immunized documents, Hubbell moved the district court to dismiss the indictment. The court held a hearing, found that the Government could not show that it had knowledge of the contents of the documents from a source independent of the documents themselves, and dismissed the indictment.

And quoting the Supreme Court of the United States directly, at 530 US 44-45:

While in Fisher the Government already knew that the documents were in the attorneys’ possession and could independently confirm their existence and authenticity through the accountants who created them, here the Government has not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced by respondent. The Government cannot cure this deficiency through the overbroad argument that a businessman such as respondent will always possess general business and tax records that fall within the broad categories described in this subpoena.

Again, the investigators must be able to establish through some other evidence specifically what they expect to find where they intend to search. Again, in the above testimony by the forensic investigator, they could not establish that any files exist on the media in question.

Absent probable cause and a warrant and affidavit testifying to that probable cause, the production of evidence is a violation of the Fifth Amendment protection against self-incrimination, as well as the Fourth Amendment protection against searches and seizures. Absent probable cause, police cannot search your car, home, or digital devices, nor can they compel you to hand over whatever they want. If they had probable cause, they’d be able to get a warrant.

Again, the 11th Circuit:

[U]nder 24 the “foregone conclusion” doctrine, an act of production is not testimonial—even if the act conveys a fact regarding the existence or location, possession, or authenticity of the subpoenaed materials—if the Government can show with “reasonable particularity” that, at the time it sought to compel the act of production, it already knew of the materials, thereby making any testimonial aspect a “foregone conclusion.”

And later:

The Government has not shown, however, that the drives actually contain any files, nor has it shown which of the estimated twenty million files the drives are capable of holding may prove useful.

And later statements by the 11th Circuit show what is already known to apply with the Fourth Amendment: before the government can obtain a warrant to search a home, car, or digital device, they must be able to specify to a reasonable level of clarity what they expect to find.

Case law from the Supreme Court does not demand that the Government identify exactly the documents it seeks, but it does require some specificity in its requests—categorical requests for documents the Government anticipates are likely to exist simply will not suffice.

And that is probable cause.

But probable cause is in the Fourth Amendment, but protection from compelled self-incrimination is in the Fifth. So how can the Court apply both? Because your rights are intertwined.

So what does this mean for a password or PIN lock on your phone? A few key things.

First, the government cannot search your phone without your explicit permission. To repeat what I said in my previous article, never give this voluntarily. Absent that permission, police must establish probable cause to search your phone. They must specify to a reasonable degree of particularity what they expect to find by searching your phone. They can’t just go on a fishing expedition.

Unless you let them. So don’t.

Note that I haven’t mentioned the password or PIN lock. Because in the end it’s largely immaterial. It’s merely a hindrance.

In the case of a man recently sentenced to 180 days for contempt for refusing to give up his iPhone password, the police were specific in what they expect to find: pictures documenting the injuries to a child the person was accused of abusing. So long as police can show some independent evidence supporting their assertion the pictures exist, such as testimony from another person, then they have probable cause and the Court can rightly compel the production of those pictures.