Author Archives: SHG

Deer Hunting: Shooting David Sweat

The last man running after his escape from Clinton Correctional Institution in beautiful Dannemora, New York, caught two bullets from State Trooper, Sgt. Jay Cook, as he was about to lose him in the forest.  Governor Andy Cuomo hailed him as a hero for his bravery in shooting an unarmed man while doing the job for which he’s paid.

Nobody thought too hard about shooting David Sweat, as he was a convicted cop killer and prison escapee, not the sort of guy you want to arrive unannounced for dinner. These are the sorts of twisted scenarios where minds shut down and nobody thinks too hard about the uninteresting question of whether this was a legally justified shooting.  Except Cristian Farias, who did exactly that.

To the layperson or the evening news watcher, the use of deadly force on a convicted murderer on the lam in rural New York for nearly three weeks may seem entirely reasonable. And judging from the praise Cook received, the act is even commendable. But police officers must be legally justified to effect a “seizure” on a person — and yes, an official shooting is a seizure under the Fourth Amendment. But nowhere in the account of this shooting is there any indication that Sweat, whose identity was then unknown, gave Cook any reason to stop him, let alone shoot him.

There are a few significant issues wrapped up in that quote, some of which were raised, others ignored, in an interesting discussion at Judge Richard Kopf’s blog, Hercules and the Umpire, so let’s pause to note them. Continue reading

For $167,000, You Too Can Call A Woman A “Chick”

Try as he might, Nevada State Trooper Greg Monroe could not come up with a sufficient reason to search Straughn Gorman’s RV.  It seems almost impossible to believe, but it’s true.  And yet, his tenacity was a thing to marvel, as his own personal lack of imagination manifested in his sloughing the chance to search off on Elko County Sheriff’s Deputy Doug Fisher, who did the dirty and hit the jackpot.

At Techdirt, Tim Cushing explains the decision in United States v. $167,070 in United States Currency:

It begins with the flimsiest of “reasonable suspicion” and heads downhill after that. Straughn Gorman was driving across Nevada in his RV when he was pulled over for a “left-lane violation” — driving too slow in the passing lane. (This itself isn’t actually a moving violation, but the Supreme Court’s Heien decision has ensured that law enforcement needn’t be slowed by actual knowledge of the laws they’re supposed to be enforcing.)

So that it’s clear, RVs are search magnets. They’re often chock full of fun stuff to seize, whether illegal or something shiny for the kids on their birthdays. Either way, it’s always sound practice to stop an RV and see what bounty it holds. Continue reading

The Price of Transparency in McKinney

Among the many quick and easy answers people come up with when faced with an information gap is the knee-jerk, FOIL it!  Because there’s a law that says information wants to be free, and if there’s a law, then it must work. Problem solved!

Gawker sought to obtain information after the infamous pool party fiasco in McKinney, Texas about Sgt. Eric Casebolt, and filed a request for information.

Days after McKinney, Texas, police officer Eric Casebolt was filmed pointing his service weapon at a group of unarmed black teenagers at a pool party this month, Gawker submitted a Public Information Act request to the city of McKinney asking to see Casebolt’s records and any emails about his conduct sent or received by McKinney Police Department employees. 

While it is sound journalistic practice to obtain background information on Casebolt in order to ascertain whether he has a history of using excessive force or engaging in racist conduct, this is Gawker we’re talking about. Salacious stuff, sure. Sound journalistic practice, well, that’s not a phrase often used mentioned in the same sentence as Gawker. Continue reading

Disrespectful, Discourteous & Annoying? Bummer

Like the ends of a vise squeezing, squeezing the delicate ears of the middle of our great nation, the highest courts in Washington State and New York have confirmed what should never have been a question: cursing at a cop is not a crime.

Upholding a minor’s First Amendment rights, the Supreme Court of Washington overturned “E.J.J.’s” conviction for obstruction when he yelled curses at police as they arrested his sister for intoxication:

“While E.J.J.’s words may have been disrespectful, discourteous and annoying, they are nonetheless constitutionally protected,” Associate Chief Justice Charles Johnson wrote for the six-justice majority. When citizens exercise their right to criticize “how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction.”

Packed within these words are some significant concepts, not the least of which is the persistent complaint by police that people no longer behave respectfully toward them.  Continue reading

False Rape Accusations: Is There A Consensus?

When Dara Lind wrote at Vox that there was finally a consensus, it was a huge and critical point of dispute lifted off the discussion.  After all, among the various problems confronting the discussion of whether there is an “epidemic” of rape and sexual assault, most notably on college campuses, but in broader society as well, one of the backlash fears is that the evisceration of due process and shifting of burdens onto the accused is a terrible thing.

But how terrible?  The response of proponents of extreme change to grossly favor rape accusers was that false rape accusations very rarely happen. Almost never.  And so, we should default to believing that every accusation is true, because who would anyone falsely accuse someone of a rape?

Of course, the reaction was that it happens, and has happened in notorious cases, like Duke Lacrosse and more recently Jackie/UVA, Mattress Girl and others. But were these outliers? What was the frequency of false accusations? Dara Lind set out to narrow this down, if not exactly answer the question.

For one thing, research has finally nailed down a consistent range for how many reports of rape are false: somewhere between 2 and 8 percent, which is a lot narrower than the 1.5 percent to 90 percent range of the past.

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Stop It, For The Children

Not only do car chases look really cool in movies, but they rarely end with innocent children being killed by a police cruiser.  Not so in real life. Not so in Detroit.

“[The police] were right on their rear, the police car bumped their tail a little bit, and the car flew up in the air,” the friend said. “There was no need for the police to be that close. I yelled ‘WATCH OUT’ but it was too late. When the car hit them, both of them just looked at me. They screamed. It just keeps re-playing in my head.”

Two children were dead.

Makiah Jackson (L’il Mama), 3, and her brother Michaelangelo Jackson, 6, were killed June 24, in front of their home on Nottingham.

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Grandma In The Kitchen With A Knife

Eighty-eight-year-old Phyllis Stankiewicz came to the door with a knife.  Maybe she was in the kitchen cutting up rutabagas.  Maybe she wasn’t expecting company, and at 88, wasn’t inclined to take chances.  Who knows? But she was in her own home, minding her own business, and didn’t anticipate anyone knocking on the door.

Officers were dispatched to 57 Wilson St. about 3:50 p.m. for a report of a disturbance involving someone with a baseball bat. Police knocked several times and announced their presence at Stankiewicz’s home and said they were there for a report of a crime, according to court files.

It’s possible that her hearing wasn’t what it used to be. It’s possible that at 88, it takes her a while to make her way from the kitchen to the front door. But assuming the police “knocked several times and announced their presence,” it doesn’t tell us much about  Stankiewicz.  Except that she was still in her own home, minding her own business and didn’t anticipate anyone knocking on her door. Continue reading

With Friends Like These

A lot of people sent me a link to Judith Shulevitz’s New York Times op-ed, Regulating Sex. As any regular SJ reader knows, there is nothing in there that hasn’t been discussed here, sometimes long ago, at far greater depth. But Shulevitz is against the affirmative consent trend, which she calls a “doctrine,” so it’s all good, right?

What Shulevitz accomplishes is a very well written, easily digestible, version of the problem that serves to alert the general public, those unaware of law, the issues of gender and sexual politics, the litany of excuses that have framed the debate and the seriousness of its implications, to the existence of this deeply problematic trend.  She notes that one of its primary ALI proponents, NYU lawprof Stephen J. Schulhofer, calls the case for affirmative consent “compelling.” She neglects to note this is a meaningless word in the discussion. Still, it’s in there.

The other day, Mark Bennett and I were discussing the problem with the ACLU’s Lee Rowland taking the public lead on the issue of criminalizing revenge porn.  In the beginning, Lee was a good choice of spokesperson, as males were dismissed as misogynists while Lee’s bona fides as a feminist were well established.  When some association or law school decided to throw a debate, the proponents were willing to take the stage with Lee. Not so with someone like Bennett or me, as we were misogynists.  Continue reading

A Bleg: How’s Fault Lines Doing?

It’s almost one month since the birth of Fault Lines.  After a few days, then another week, I tried to whet yer appetite by providing links here to the stuff being done there by writers Ken Womble, Tamara Tabo, Greg Prickett and Cristian Farias, plus the guest post by Ron Kuby and Allan Brenner.

So here’s my bleg: What do you think? Have you read FL? If not, why not? If so, what can we do better, what are we doing well and what are we doing poorly?  What do we suck at?  Is Fault Lines doing whatever you want it to do for you, or is it falling short? To make it the best it can be, I need to know what you really think.  Be brutal. Just don’t hurt my feelings. Too much.

But For Video: Infant Edition

According to SEPTA, which runs the Philadelphia subway, children under four ride free with a fare paying adult. But that doesn’t mean there aren’t questions, challenges, heinous criminals trying to sneak in the occasional four year, one month child and rob SEPTA blind.  From Shaun King at the Daily Kos:

Originally posted on Facebook earlier Friday morning by Irize Refined Earth, this video shows a young father, carrying his infant daughter, being arrested by Philadelphia police. Witnesses state that it was all because he didn’t pay a far for his daughter, but policy there states kids under 4 are free.

See how people just can’t see the problem with those munchkins bent on destroying society by feigning four or under status?  You pay for their larcenous ways. Well, maybe not you, but someone does.  And so the brave protectors of subway fares leapt into action.

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To Serve Man; Not Just A Cookbook

On the twitters the other day, a discussion broke out (to the extent discussions break out on the twitters) over whether non-lawyer staff in law firms should be referred to as “non-lawyers” or something else.  Bob Ambrogi valiantly defended the honor and feelings of those diminished by the language, while others, lawyers, kicked sand in his face.

The source of the problem was a post by former Orrick chairman, Ralph Baxter.

It is time to stop using the term “non-lawyer” to refer to everyone who works in legal service who has not passed the bar exam. This may seem like a minor issue to some, but it is not. In fact, it reflects an outlook that impedes the ability of our profession to make the changes we need to make.

Why? Baxter never actually explains, but rather launches into a feelz anecdote, followed by more vague feelz rhetoric. And this is the guy who ran a law firm. Continue reading

Your Money or I’ll Bratwurst You

Deangelo Dixon robbed a bank.  No, his name will not loom as large as Jesse James, nor will he be glorified in a romantic crime movie with only modest nudity. If anything, his name will be forever linked with Polish meat, for which he has Judge Frank Easterbrook of the Seventh Circuit to thank. Apparently, Judge Posner passed on the opportunity to do personal, off-record research to write the opinion.  Good all.

In United States v. Dixon, the court considered the distinction between bank robbery by use of a dangerous weapon and bank robbery by intimidation.

A more promising argument is that the conviction should have been under §2113(a) (bank robbery by intimidation) rather than §2113(d) (violation of §2113(a) by using a dangerous weapon or device). In one robbery Dixon waved at tellers a bag containing a stiff object and threatened them, saying “Five seconds or I’m gonna shoot”. In the other Dixon brandished an object with a long barrel and directed a teller to “give him the money or he would shoot” The object in both robberies was not a gun but a butane lighter with a long barrel.

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