The Murder of Breonna Taylor

Someone, a non-lawyer, put it succinctly. How do police break into a person’s home and kill a sleeping woman and it’s not murder? As lawyers and judges, we know the answer to the legally ill-framed question. We can explain how warrants work, knock or no-knock, when needlessly executed late at night when people are asleep and processing the sounds to understand what’s happening is extremely problematic.

We can explain the Castle Doctrine that makes it lawful for a resident to defend his home when someone breaks in at night. We can explain that the police are given special latitude in order to do their job, including the authority to return fire after they’ve done a substantively inadequate job of alerting the residents of their identity, if they did at all, to avoid the resident from believing they’re burglars (or ex-boyfriends) and pulling out a lawful gun to protect lives. Continue reading

Short Take: It Was Never 1619

The question wasn’t whether slavery in the “New World” existed and was a horrible thing. The question wasn’t whether we failed to teach its horrors adequately, or to place our rosier perspective of American virtues over the nightmare of a nation that made human beings chattel. The question was whether the United States of America was formed and existed primarily for the purpose of maintaining slavery, such that slavery, not freedom, was its core reason for being.

The New York Times and Nikole Hannah-Jones answered the question in the 1619 Project, which won Hannah-Jones a Pulitzer Prize in Commentary. The only issue was that her history project was false, albeit a very popular sort of false for a time when any story that put race ahead of facts was embraced. And quietly, oh so  quietly, the New York Times and Hannah-Jones changed their story*. Continue reading

An 18-Year SCOTUS Term; Can It Happen?

Orin Kerr twitted his proposed 28th Amendment to the United States Constitution.

The key provisions for the long term are sections 1 and 2, with section 3 needing some work, as well as leaving a bunch of other issues out, such as how we would transition from our current life-tenured appointment to the new 18-year term. My reaction to Orin’s idea was short and a wee bit snarky. Continue reading

Tuesday Talk*: Victims and Venues

The four former police officer defendants in the George Floyd murder case have done exactly what one would expect them to do. They moved for a change of venue outside Hennepin County. To the great unwashed, this might seem a big deal. To anyone practicing criminal law, this was as obvious a motion to make as a motion to dismiss.

It won’t be granted, because these motions are almost never granted, and in this case the motion is particularly weak since the publicity, the video of the cops atop George Floyd, have gone viral nationwide. There’s no place where the jury pool will be unfamiliar with the news. There’s no venire free from taint. Continue reading

What Did Flag Guy Do To You?

While the eyes of a nation have shifted to the Supreme Court squirrel, a small group of people elsewhere continue to go out at night to demand a show of allegiance to their cause. It’s not exactly news anymore, as it happens night after night, unless it comes to your neighborhood.

Terrance Moses was watching protesters against police brutality march down his quiet residential street one recent evening when some in the group of a few hundred suddenly stopped and started yelling.

Why, you might wonder, are they marching down a “quiet residential street”? What did the people who lived on that street do to them, to anyone? If the protest is against police brutality, whether in general or exclusively toward black people and, well, they’re good with police brutality otherwise, was this quiet residential street a hotbed of cops doing bad things? Or were these just ordinary people who had no particular association with police, no less brutal police? Continue reading

Prickett: Mental Health and The Use of Force

Ed. Note: Greg Prickett is a former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

On April 21, 2020, Houston Police Sergeant Benjamin LeBlanc, along with Officers Luis Alvarado, Patrick Rubio, and Omar Tapia, responded to several 911 calls about a possibly suicidal person, later identified as Nicolas Chavez. Within minutes, Chavez yelled that he was had mental problems (“MHMR”)[1] and he wanted the officers to kill him.

By the end of the 15-minute encounter, they had done just that. Continue reading

Worth A Thousand Words

When writing about her coverage of the Portland riots, Nancy Rommelmann made a point that journalists who weren’t on the “trusted” list were told they weren’t allowed to film.

“YOU’RE NOT ALLOWED TO FILM” and its occasional variation, “PHOTOGRAPHY EQUALS DEATH!”

Obviously, this was not the law, which was ironically established largely around filming cops doing their job. But what the law permitted, or didn’t permit, wasn’t really a major concern for rioters. They were more concerned that images or videos of their faces would enable the police to identify them and arrest them for the crimes they committed. Continue reading

Toobin’s “Retribution”

With some notable exceptions, Joe Biden’s foremost argument for his election is the return to normality. And if he can produce, that would be a huge boon to most Americans who want the pandemic behind them, get back to the business of business and return to their ordinary lives. At this point, even quiet desperation seems better than what the Year 2020 has had to offer.

And then RBG had to gum up the works, loading yet another layer of troubles upon what remains of our fragile and beaten social fabric. Will Cocaine Mitch push through a new justice before the election? In the lame duck session after Biden wins? Is that the catastrophe that will finally bring the sky crashing down upon us? Jeffrey Toobin tells us not to fear because he’s got  a scheme. Continue reading

The Return of Broken Windows

As a policing strategy, its efficacy was dubious. Did law enforcement focus on petty, quality of life offenses really eradicate the more serious social erosion that gave rise to crime, or did it put cops in poor and minority neighborhoods looking to make their stats on the back of the most trivial offense? Or worse, just invent offenses to make the number? So Broken Windows, the theory and the strategy, came under under fire and fell into disfavor.

And, ironically, because of the strategy of another group.

Last night, while our comrades battled the police in the street, some anarchists targeted multiple Whole Food stores as well as Starbucks in a synchronized attack, just as the clock struck midnight. The cops have made public statements addressing how they are not responding to 911 calls due to their focus on brutally attacking and arresting protesters. Using this to our advantage, we spread out around the city with the intention of sending two messages:

Continue reading

Seaton: My Encounter With RBG

I just learned of Justice Ginsburg’s passing. It is unquestionably a loss for the legal profession as a whole.

At this time, I am reminded of the day I met she who would later be known as “The Notorious RBG.” It was the day I gained admission to the Supreme Court bar by virtue of the fraternity I joined in law school. The lawyers sponsoring us told us in advance we would meet at least one Justice following our admission, and Justice Ginsburg might come as well. Continue reading