My source for my comment about the blanket was the government psychologist who appeared on one of the morning news shows yesterday. The plan was to take one from the home, to give Elian a familiar object to help calm him.
[test post…ARRRRGH! IT BURNS! IT BURNS! AAAARRGGGGGGGHHHHH!
note to self: listen to the mods.
Cecil said it. I believe it. That settles it.
Relax, I’m not as Dave as I look!- A Wallified sig!
SLYTHE: You, saying “Yes she had a warrant” does not cut it. Does anyone have any evidence she did? The SJ Mercury News, printed a day by day, hour by hour, minute by minute timline of the evnts that led up to the assault. No warrant is mentioned. I read EIGHT pages of meticulous blow-by-blow replaying in that same paper- no warrant is mentioned. I heard the Agent at the door, no “we’ve got a warrant”.
In certain cases, such when the INS is rouding up Illegals from a business, they do not need a warrant. Did Reno think these exceptions applied?
No warrant–NOT “reasonable”.
According to other sources, there was indeed a warrant.
CNN has a link to it http://cnn.com/images/0004/warrant.jpg
It is dated April 21, 2000 and the time appears to be 1:20 pm although the resolution of the document isn’t great.
BOB T says:
Uhhhh, sorta. What the warrant does is give the cops/INS/whoever the immediate legal authority to do what they propose to do. It is a judge saying, in effect, “I understand why you want to do this, and it appears to me to be a correct and legal thing to do, so I will authorize you to do it.” That does to a certain extent, address reasonableness, as the judge presumably would refuse to issue a warrant that was unreasonable “on its face,” meaning on paper. But the execution of the search might still be unreasonable – if for example, the cops have a warrant to come in a search for drugs and they take a pick-ax to your walls (example made up totally off the top of my head). So the search itself might be deemed unreasonable, independent of the warrant. The other possibility is that the warrant will be appealed and found to be wrong by the court that reviews it on the grounds that the proposed search was unreasonable. (In other words, the issue judge made a mistake to issue it.) In that case, the evidence collected by the search is generally considered “poisoned” and will be thrown out.
DANIEL says:
Sometimes it is. When crimes are defined in the penal code, and you can show that a particular action meets the definition of a particular crime, then the law is pretty black and white at that point.
As I said in my last post, keeping a child when you have no right to do so is legally considered a type of “taking.” The obvious reason for this is that interpreting a statute as strictly as you attempt to would leave a huge hole in the law – namely, that any child that is merely not given back is not considered kidnapped. That is obviously not the intent of the law.
She was surprised by it, I assume, because it took her agency to task for failing to interview Elian, who, at the age of six, would be normally be deemed as a matter of law to be too young to voice an opinion about his future. I think most people are surprised when they are reprimanded for failing to do something they didn’t know they were supposed to do in the first place.
The Federal what? The INS had jurisdiction to place Elian as it saw fit, and the Eleventh Circuit had jurisdiction to review the decision of the lower court regarding the issuance of the writ. I’m not sure what jurisdiction you’re talking about. I’m not at my office, so I don’t have the ability to look up the title you refer to, so you’ll have to be a little clearer as to what area of law that title addresses. And, Daniel, they had a warrant; trust me. The fact that something is not reported in the local newspaper doesn’t mean it didn’t occur.
PLDENNISON – Really?? I did not know that. Oh, the irony.
DRAINBEAD says:
Thanks, and thanks for all your kind comments. 
But I think in retrospect the “armchair” retort was flippant, and I apologize for it.
Jodi
Fiat Justitia
JodiH. I meant juristiction to make an arrest for kidnapping.
An example: Say you lend a friend your camcorder, and even gave her a note, giving her permission to use it, but with the codicil you could reclaim it at any time. Then you ask for the camcorder back. Your freind does not give it back, claiming you owe her money (and maybe you do, a small amount, but no IOU). So you call the police, and ask them to arrest her for “grand theft”. I can tell you what will happen next. The police will tell you “it’s a civil matter” and refuse to arrest her. They MIGHT, if they like you, ask your freind to return the Camcorder, but if she says NO, they won’t touch her. Now, if she broke in & took your Camcorder, even if she claimed she did it because she was owed money, they would arrest her.
It’s a custody battle. Both sides think they have legal custody. Sr Gonzales has the better claim, but IT’S STILL A CIVIL MATTER. GUNS were not needed.
Again, Reno could have avoided violence by getting a Court order. Also, her “negotiation” if your only negotiating point is unconditional surrender, you are NOT negotiating, your’e making demands.
But, JODIH, your’e an attorney. How many time have you heard the press or public slam some verdict and say “that’s outrageous” when all they know is a few bits & pieces of slanted info fed them by the media. You know that in a courtroom, when ALL the evidence is considered, it sounds VERY different. So, that is all I’m asking. Have a court make a decision based on ALL the evidence, instead of Reno making a decision based on politics & pissing contests.
Danielinthewolvesden, there WAS a warrant!
It has been shown on television, analyzed in the newspaper, discussed on the radio.
The only people disputing the fact are you and Trent Lott.
Eagles may soar free and proud, but weasels never get sucked into jet engines.
SLYTHE: I never said there wasn’t a warrant, I said I saw no evidence of one IN MY SOURCES and would like someone to come up with a better source that shows a warrant was issued. True, I had some “small” doubt, but i was asking a question, not denying it.
Sure looks like a warrant to me, bad as the resolution is.
DANIEL says:
As I’ve already explained, the Federal government would have no jurisdiction to make an arrest for kidnapping because the circumstances of this case do not meet the Federal definition for kidnapping, which almost always requires trasportation of the victim across state lines. The kidnapping statute posted, however, was not the Federal one but a state one – the State of Florida’s – and arguably the facts of this case do meet the statutory definition of kidnapping under State law.
An example: Say you lend a friend your camcorder, and even gave her a note, giving her permission to use it, but with the codicil you could reclaim it at any time.
[/quote]
Okay, I’ll go with this, with the caveat that it is obviously not an analogous situation. A camcorder is not a child. Moreover, there is no indication that Juan Miguel “gave” or “loaned” Elian to his relatives, or to anyone.
This is where the analogy breaks down. There is no indication that Juan Miguel owed anything that would justify keeping his son – as if anything could – so the “you owe her some money part” is window dressing. It would be more accurate to leave it at “you lend it to her; she knows she has to give it back; you ask for it back; she keeps it.”
This is incorrect. They will refuse to arrest her for “grand theft” as a camcorder is not expensive enough to meet that definition – unless it’s one damn fine camcorder. They will not, however, tell you it’s a civil matter, because it’s not – it’s a criminal one. She has taken and kept your property without your permission, which is a particular crime (a type of theft) called “conversion.” If the facts indicate the conversion occurred, the person converting your camcorder is indeed subject to arrest. It’s true she may not be arrested, but that’s because taking a camcorder is, in the annals of crime, peanuts. Taking a child is not. Take someone’s child – even your own if you spirit him or her away and you don’t have custody – and you are almost guaranteed to be arrested.
This is incorrect for the reasons given above.
You are drawing a distinction between people who “keep” items (or children) and people who “take” items (or children) and implying that while the latter is bad, the former is okay. This is simply not correct. The law usually does not much care how you obtained something; it cares about whether you have the right to possess and keep it. If someone steals something from you and you steal it back (assuming you do no damage in doing so), the law will not fault you, because it was yours in the first place and you have the right to it. How the individual possessing it came to have it is just not that important. Similarly, the fact that the Gonzaleses obtained temporary custody of Elian through legal means in no way excuses their refusal to return him when that temporary custody was revoked.
It is not merely a custody “battle” or a custody matter at all, except to the extent that the Gonzaleses attempted to transform revoked temporary custody into permanent custody by the expedient of refusing to return the boy to his father. If someone kidnaps your child and then claims to have “custody” of him, but really has no legal right to your child whatsoever, it is not a matter of custody – because custody is clear; it belongs to you. You are his father.
The fact that this was a civil matter (and immigration matters are not technically “civil” matters, but rather a type of administrative proceeding) is not dispositive of whether guns were needed. When the government decided that the boy should be returned to his father and the Gonzaleses refused to cooperate, it became fairly clear, I think, that the only way to remove Elian was by force, in an extremely hostile environment. Anytime the authorities are going into a hostile environment, they will most likely be armed, because being armed (and prominently displaying your arms) is the best way to keep the situation from escalating and to keep people from being injured or killed. The fact that it is a “civil” (meaning, not criminal) matter is irrelevant.
A Court order for what? The raid? She had one. To transfer custody of the boy back to his father? She didn’t need one. The INS has original jurisdiction over such matters; they do not need the authority of the court to do the job they are already authorized to do by law – transfer custody of Elian back to his father. The Gonzaleses were not in a position to demand that the government do something it is not legally required to do – get an extraneous court order – as a precondition for them doing what they were legally required to do.
That’s correct; however, there is no indication that the government’s “only negotiating point” was unconditional surrender. Rather, the justice department worked with the family for weeks to try to reach a compromise solution, but none of the proposed compromises were acceptable to the family, who kept introducing new demands. It was only after Reno had felt that negotiation were no longer fruitful that she ordered the raid. And I would remind you that the government had no obligation to negotiate with the family at all; since the Gonzaleses had no legal right to keep the child, the government would have been perfectly justified in only making demands.
Lots of times. I wonder if you realize at this point that you are describing yourself? I mean no disrespect, but your opinion seems to be based solely on what you have read in the newspaper.
What you are not understanding is that the court has no reason to make a decision regarding custody. The only issue currently under consideration by any court is whether Elian is entitled to an asylum hearing – which has nothing to do with who should have custody of him. A person with no right to claim custody of a child cannot petition a cour
Jodi,
I have a question on the asylum thing…
Let’s say the courts grant the kid asylum…that doesn’t mean his father looses custody - right? And since the father has custody, it is the father’s right to raise the boy where he sees fit - Cuba, Miami, the South of France, correct? At least according to US law, perhaps he doesn’t have that right in Cuba, but our courts run under our laws. So what are we accomplishing here? The US Government does not keep people in this country against their will (unless they are incarcerated). And since Elian is six, his father’s will is his will.
Jodi,
A few questions regarding the matter of Elian’s custody. As I understood it, when Elian first arrived in the US, either the AG or the INS had custody (I believe it was the AG.) Then she granted temporary custody to Lazaro Gonzales, which has since been revoked. Am I ok on the facts so far?
I assume that when Lazaro’s custody was revoked, custody reverted back to the AG. My question is, has legal custody of Elian been give back to Juan Miguel, and if so, at what point did this occur? When Juan Miguel arrived in the US? sometime before? or when the two were physically reunited at the Air Force base?
Looking foward to your educated opinion.
Jeff
JODI that sect of Federal law I cited (TITL 18) seems to give the FEDS the authority in this case, if the was an act of “kidnapping” (which there wasn’t). The 11th Circuit, has decided there will be some sort of hearing re asylum. They believe Elian had the right to PERHAPS ask for it himself. IF they decide on May 11th to have an Asylum hearing, the asylum hearing will bring up who is empowered to speak for Elian. If the hearing rules Elian gets Asylum (doubtful, but who knows) then, they have DE FACTO decieded custody, as no asylum= Elian goes back to Cuba w/ father, ASYLUM= Elian stays in US, thus not w/ father, thus w/ Maimi relatives. TRUE, the Courts dec will only say asylum/no asylum, that is USA/Cuba, but the real end is that custody is decided. (I am not considering the slight poss of Sr. Gonzalez asking for asylum himself).
jackbooted thuggery. I’ve heard and read this term about a million times in the past week. Let’s try and remember, the protestors had threatened to physically interfere with the kid being taken.
There’s no question that the kid belongs with his father. But, I do think the midnite raid was a stupid idea.
Which brings me to my question. Did the INS bring a camera crew with them? Or was the crew waiting for them there? I mean, that photo is too well lit and well framed to be a spur of the moment shot. They weren’t paying any attention to the photographer. WHO TOOK THIS PHOTO AND WHY!
Call me paranoid, but I sense a republican plot.
jodih - I’m in awe.
milroyj - would it be unreasonable entry for the Feds to break into my house if I had kidnapped you, was torturing you in most painful ways but still allowing you to make daily telephone calls to anyone and everyone to let them know how much of a monster I am? of course not! I would wholeheartedly expect a SWAT team to come and blow my brains out in the middle of the night (or 5am hehe).
Instead of trying to prove that it WAS reasonable, perhaps you would like to tell me where the line is crossed from ‘unreasonable entry’ to ‘reasonable entry’, as even jodih’s eloquence doesn’t seem to be able to get past your playground “is”-“isn’t”-“is”-“isn’t” attitude.
“incognuity” should be a word!
That photo (and others) was taken by Alan Diaz, an AP photographer who jumped the fence and followed the agents into the house. Diaz had been covering the house for months, and apparently was on friendly terms with the owners. However, nobody has claimed that he was biased in any way - he was just taking news photos.
According to a Philadelphia Inquirer article Reno made a decision beforehand not to interfere with photographers during the raid, reasoning (correctly, I think) that it was better to have damning pictures than to be damned for preventing them.
This week’s issue of Newsweek has a pictorial description of the events, complete with other photos taken by Diaz, on page 26. The other photos looked like they were taken both immediately before and immediately after the now-famous one. They aren’t nearly as incendiary as the famous one, but I guess that’s why you haven’t seen them before.
Jodi: as much as it pains me to compliment a lawyer :), that was a good post. Well explained.
However, I fear no amount of rational discourse is sufficient to get through to someone who is intent on not listening.
–
peas on earth
Did anyone watch Nightline last night? The guy in charge of the operation was reasonable and intelligent and it seems to me from the videotape we’ve all seen by now that the people camped out around the house were not.
He said it took thirty seconds from the time the vans drove up to the time they went through the door. The videotape bears that out. He said they knocked on the door and said who they were. The tape bears that out, as well.
And you know that photograph that has so many people so hot and bothered? The one with the guy holding the rifle and the “fisherman”* holding Elian? Others on this thread have pointed out that the man’s finger was not on the trigger. You want to know what else that photo (and others^) shows?
The Safety was ON. (Can’t emphasize that enough.) If that man had truly threatened to shoot the “fisherman”* as the “fisherman”* claims, he’d have a hard time doing so with the safety on, wouldn’t he?
*I’ve referred to whatshisname as the “fisherman” because it turns out he’s not a fisherman at all, but a custodian, a janitor. There’s no shame in being a janitor, so why did he never correct anyone who said he was a fisherman? Isn’t that lying?
^Another thing pointed out on Nightline was that the photographer in the bedroom took MANY photos, not just the one with the gun pointed at the “fisherman”. But, as usual, the press chose the most inflammatory of the dozen (I think) photos taken. One should look at ALL the photos before determining if the INS Agents’ conduct was appropriate or not.
><DARWIN>
_L___L
He’s back!
If you want to read a transcript of last night’s Nightline, go here.
If you want to download and view a video of last night’s Nightline, go here.
><DARWIN>
_L___L
He’s back!
Folks : The “safety” on that gun, is on the LEFT ( away from camera side), although some versions have ambisafeties. Next, it takes a tiny fraction of a second to slip the safety off. those NYC cops who riddled that poor guy with bullets had their “safties” on too, prior to firing. If someone is pointing a Submachine gun at you, you are not htinking about the saftey. However, if they DID have to break in, (which I deny), then they did need to carry guns.
Danny boy, Danny boy. Give the WAGs a rest, will you?