Reasonable In Cleveland

According to District Attorney Tim McGinty, a reasonable cop in Cleveland jumps out of his car and murders a 12-year-old boy based upon misinformation from a dispatcher that he has a gun.  Not that the cop actually saw a gun, but a reasonable cop wouldn’t take the chance. That’s the baseline for a reasonable cop in Cleveland.

The Sixth Circuit, however, has a different, a higher, expectation of reasonableness for Cleveland cops.

On a summer day in 2010, two armed-robbery suspects were on the loose in Cleveland, Ohio. Officers Brian Kazimer and Dan Crisan were on the case. The officers learned from the dispatcher that the suspects had stolen a wallet at gunpoint and had run toward a nearby apartment complex—the same complex, the dispatcher said, where two men had just given a nearly empty wallet to the apartment’s manager. Coincidence? The officers thought not. After hearing that one of these men was wearing a red shirt and jeans, the officers drove to the apartments to investigate. As they pulled up, they saw someone who matched that description take off running. That gave them reasonable suspicion to detain the fleeing person, the district court held.

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Last Stop, Wall Street

Like most New York lawyers, I know many people who work in the financial sector. Most of the guys are generally fine people, but turn into puerile misfits when around their work friends. When asked why they went from relatively normal human beings into animal house rejects, I was told that it was just the atmosphere of Wall Street, where everyone behaved poorly, childishly, boorishly. And they were, well, okay with it.

One of my closest “Wall Street” friends wasn’t a guy, but the mother of one of my son’s best friends from elementary school.  She didn’t enjoy the boorish behavior, but then, Wall Street had made her quite wealthy. She earned far more than her husband, who wasn’t doing badly himself, and they lived very well.

“Why do you put up with the shenanigans?” I asked her when we were sitting on the second floor porch of her house overlooking Long Island sound.

“For the money.” Continue reading

Does That GPS Match Your Socks?

I occasionally, by which I mean hourly or less, marvel at comments by people who approve or disapprove of something because of their normative views.  Usually, it involves someone with exceptionally limited experience who inductively reasons that if it’s good with them, it ought to be fine with everyone else.  After all, they are the center of the universe, and the world should adopt their tastes because, well, they’re the center of the universe.

But rarely is such a flagrantly narcissistic and unprincipled rationale openly used as the foundation for Circuit opinion. Except by Judge Richard Posner, for whom the rule of law is secondary to his sensibilities.  In one of the more bizarre Seventh Circuit opinions, Judge Posner lays it on the line.

The district judge held the Wisconsin monitoring statute unconstitutional on both grounds, precipitating this appeal by the defendants (in effect by the state). Although the judge wrote a long opinion, it omits what seem to us the crucial considerations in favor of the constitutionality of Wisconsin’s requiring the plaintiff to wear the ankle bracelet for the rest of his life.

Given how slight is the incremental loss of privacy from having to wear the anklet monitor, and how valuable to society (including sex offenders who have gone straight) the information collected by the monitor is, we can’t agree with the district judge that the Wisconsin law violates the Fourth Amendment. The plaintiff argues that monitoring a person’s movements requires a search warrant. That’s absurd. The test is reasonableness, not satisfying a magistrate.

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The Language Formerly Known As English (Calvin & Hobbes Update)

What do you get when you put “334 linguists, lexicographers, grammarians and etymologists” in a room?

That’s what happened here earlier this month anyway, at a downtown Marriott, where members of the 127-year-old American Dialect Society anointed “they,” the singular, gender-neutral pronoun, the 2015 Word of the Year. As in: “They and I went to the store,” where they is used for a person who does not identify as male or female, or they is a filler pronoun in a situation where a person’s gender identity is unknown.

What is it they’re trying to accomplish? They, used to represent the plural, are trying to create a new standard for pronouns that accommodate the flavor of the month, gender fluidity.

“We need to accept ‘they,’ and we need to do it now,” shouted another linguist, hidden behind the crowds.

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Ugly, But Unfair

It was a cringe-fest.  But of all the cringe-worthy parts of the 60 Minutes story, the worst was when New York lawyer Marc Koplick said this to the undercover investigator for Global Witness:

They don’t send the lawyers to jail, because we run the country.

That Koplik’s spewing is absurd and wrong doesn’t matter. He said it and it was broadcast to a whole lot of people, confirming every fear, every conspiracy theory, every hate, that people have about lawyers. Continue reading

Passports Of The Damned (Update)

It already passed the House. And the Senate.  It’s now in conference committee, working out the kinks between the two, before it goes to President Obama for his signature. And had it not been for the careful eyes of David Post at Volokh Conspiracy, it might have slipped through unnoticed until havoc was wreaked.

The name of the law gives away the problem.  It’s called the International Megan’s Law, drawing upon the rape and murder of Megan Kanka to create all manner of restrictions for sex offenders, to protect the children.  This iteration is marketed to the public as the solution to human sex trafficking and sexual tourism, both horrible and offensive crimes with the proviso that they mean what they say, as opposed to the use of sex trafficking as a euphemism for all manner of prostitution, including the voluntary decision of women to be sex workers.

Elizabeth Nolan Brown explains what this law does:

Dubbed “International Megan’s Law,” the measure—sponsored by Rep. Chris Smith (R-N.J.)—says the secretary of state must impart a “visual designation” in “a conspicuous location” on the passports of all “covered sex offenders.” Covered sex offenders include anyone whose victim was a minor.

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The Sophisticated Client Wants A Legal Curmudgeon

Sy Syms used a brilliant marketing tag to sell his shmatas:

An educated consumer is our best customer.

The message made a point, while flattering those customers sophisticated enough to buy from Sy.  Sophisticated consumers would no longer pay higher than necessary mark-ups on clothing, and that it wasn’t a sign that you were cheap if you shopped at Syms, but that you were savvy. Brilliant.

Peter Macmillan, a cognitive psychologist specializing in legal expertise, turns his attention toward one of my favorite words, curmudgeon.  Most people use it as a pejorative, as in the old man screaming at the kidz to “get off my lawn.” Macmillan gets the joke. Continue reading

Empty Gestures And Powerful Messages

When President Obama announced that he was “banning” solitary confinement for juveniles, advocates and supporters cheered. Those familiar with the federal system chuckled and made jokes. Mine was along the order of, “and both juveniles thank him.” Why so unappreciative? Don’t we feel passionately that solitary confinement is horribly destructive, dangerous, and particularly egregious when used against kids?

The reason is that there are, as of the December 26th update to the federal prison population, a grand total of 26 inmates under the age of 18 out of a total census of 195,893 (as of January 28, 2016, as the totals are updated once a week).  Of the 26 juveniles, most are there because they’re Native American, and the feds have jurisdiction over crime on reservations.

In fact, the Federal Government has unique jurisdiction over crimes in Indian Country and the most serious crimes committed on reservations tend to be prosecuted in federal court. As a result, most federal juveniles are Native American. Typically, federal juvenile offenders have committed violent offenses and have a history of responding to interventions and preventive measures in the community unfavorably.

And even so, the grand total is 26. Maybe less of a joke than “both,” but still a joke. It’s not that there aren’t kids in the system, but in state systems, not federal, and President Obama has no say over their treatment. Continue reading

If You Have Nothing To Hide

Trigger Warning: Schadenfreude ahead.

Anonymous hacked the Fraternal Order of Police.  Tell me there isn’t a smirk on your face.  The dump is being offered online by CTHULHU, who says he’s in the UK and, well, isn’t particularly concerned about the fury of irate cops.

Today I released some files from the Fraternal Order of Police, allegedly the largest union-type body in the US representing sworn-in police officers. Since then, many groups have shared it over social media and other means, for which I thank all who have donated their bandwidth to seed the files over the torrent.

I haven’t downloaded the dump, nor read it, nor really given a damn about what it offers.  Others will sift through it, and if there is anything in there that comes as a surprise, it will no doubt be subject to huge scrutiny and criticism. Given the reaction by some cops, it’s likely that there will be stuff in there to bring a twinkle to someone’s eye.

Note to irritated members of law enforcement
Don’t bother with legal threats or trying to get UK law enforcement to seek revenge. This is me playing nice.
If you want to go nuclear with me, feel free to do so, but trust me when I say you might want to think long and hard before you do. Continue reading

The Rest Of Your Unnatural Life

Philosophical arguments about the virtue of sentences tend to be fruitless efforts, as everyone gets bogged down in their own bias. We keep insisting our bias is right, and never make much headway against the other guy’s bias, who is simultaneously trying desperately to get us to see why his bias is right.  It’s a waste of time.

But Jennifer Lackey, a Northwestern philosophy prof, does a remarkably good job at giving some hard reasons why a sentence of imprisonment “for the rest of your natural life” is a really bad idea.  Life without parole, as Jeff Gamso calls it, is the slow death sentence. And, unlike the fast death penalty (which isn’t really fast), a sentence of life without possibility of parole is meted out without the fanfare of a good execution, so it often escapes notice and scrutiny.

Many types of arguments have been leveled against natural life sentences. Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase. Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles. Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation. Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.

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The Parsimonious Judge Jack Weinstein

The opinion is 98 pages. I didn’t download it. I didn’t read it. It will be reversed, as it was last time.  But EDNY Senior Judge Jack Weinstein isn’t going to let that stop him from applying the parsimony clause of 18 U.S.C. § 3553(a), which provides:

The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.

The emphasis is mine. And Judge Weinstein’s.  The Second Circuit can try its best to smack Judge Weinstein for his refusal to impose a sentence that meets their demands of harshness, but they can’t touch him.  He’s got life tenure, and he’ll never be tapped for the Supreme Court.

If you think a 98-page decision is long, it’s way shorter than the 400-page decision he issued last time, plus a 9-page rejoinder to the circuit’s reversal.  After the last reversal, the question was raised whether this was a demonstration of judicial courage or abdication of responsibility. Continue reading

The Meaning Of Job

My father tells the story of his return from Europe at the end of World War II.  My grandfather gave him a hearty handshake and told him he was welcome to stay with him for at least a week, after which it was time to find a home of his own.  The week was to give my father the chance to find a job.

He returned from Germany a grown man, having done as his country asked of him and his beliefs demanded, and it was now time to rejoin civil society as a responsible adult. The meant he had to work, earn a living, support himself and establish his life.  He appreciated his father’s generosity of a week’s cover.

A lawyer friend of mine, whose name I won’t reveal because he asked me not to, forwarded an email to me sent by his former associate. She came recommended by her law school placement office as smart and interested in his niche practice area. He interviewed her and concurred. He gave her a job. Her first job.

She was awful. It wasn’t for lack of intelligence, or even legal knowledge. It was that she couldn’t produce work. His law office was like every other small firm that does litigation. There are slow times, then an emergency requiring work be done now.  When a motion is needed now, it means work has to be done now. Good work. Hard work. Now. Continue reading