Author Archives: SHG

He Liked To Watch

As Brazoria County Sheriff’s Deputy Aaron Kindred delightfully explained, “I ain’t getting up close and personal with your women areas.” Not that someone wasn’t about to, but Kindred was too much of a gentleman to conduct his own probe, as the Fifth Circuit Court of Appeals explained.

On Memorial Day weekend in 2012, Hamilton and Randle were pulled over by DPS Officer Turner for speeding. Turner smelled marijuana and asked the women to exit the vehicle. Hamilton was wearing a bikini bathing suit, and Randle was similarly dressed. Turner did not allow the women to cover themselves before exiting the vehicle. He used his radio to request help from local law enforcement and a female officer to conduct a search of the women. On the radio, Turner stated that the car smelled like marijuana and that one of the women “had the zipper open on her pants, or Daisy Duke shorts, whatever they are.”

It’s like they were asking for it. Not the “Daisy Dukes,” but the pungent odor of weed. After all, where there’s a smoke, there could be fire. Or pot, if they hadn’t already smoked it, which would explain the smell. But there could be some left, and the police would never forgive themselves if they didn’t find it.

Bui arrived, she parked next to Turner’s patrol car. When he had completed the vehicle search, Turner informed Bui and Kindred that he had finished the search but wanted Bui to search the women. Bui asked the men if they had any gloves, and Turner gave her the gloves he had used to search the vehicle.

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An Unpardonable Failure (Update)

Reading Sari Horwitz’s post at The WaPo, my first concern was that Deputy Attorney General Sally Yates didn’t get hurt patting herself on the back.

“Everyone has killed themselves here to get the final recommendations to the president,” Deputy Attorney General Sally Q. Yates said in an interview. “We were in overdrive. We were determined to live up to our commitment. It was 24-7 over the Christmas break.”

U.S. Pardon Attorney Robert A. Zauzmer has not taken a day off since Yates brought him on in February 2016 to sift through the backlog of thousands of petitions. From her home in Atlanta, Yates said she reviewed hundreds of petitions during the holidays.

How horrifying that she spent her holidays reviewing hundreds of petitions instead of drinking egg nog. Maybe she would have had time to go caroling if the DoJ hadn’t screwed the former Pardon Attorney, Deborah Leff, who quit in frustration as she was denied the ability to do her job. Continue reading

The Children Of The Fight

Many remember Martin Luther King for the words that warm our hearts.

Many white Americans focused on one line of King’s “I Have a Dream” speech — that he longed for the day when his children would “not be judged by the color of their skin but by the content of their character” — and molded him into a gentle champion of colorblindness.

There was far more than that, even if you don’t realize it, and contrary to the glowing homages you will see today, he was the subject of vast criticism at the time.

The establishment responded bitterly to King’s speech. The New York Times editorial board blasted King for linking the war in Vietnam to the struggles of civil rights and poverty alleviation in the United States, saying it was “too facile a connection” and that he was doing a “disservice” to both causes. It concluded that there “are no simple answers to the war in Vietnam or to racial injustice in this country.” The Washington Post editorial board said King had “diminished his usefulness to his cause, his country and his people.” In all,168 newspapers denounced him the next day.

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The Limits Of Hero Worship

John Lewis stood with Martin Luther King in the 1960s. He now sits in the House of Representatives as the Congressman from the 5th District of Georgia. On this Martin Luther King day, it is worthy to note that he is, without question, a civil rights leader deserving of a nation’s appreciation and respect.

But that doesn’t mean his every utterance is above reproach. John Lewis is an elected official, and every elected official should be subject to scrutiny and criticism. It does not diminish his accomplishments, which stand on their own. But his accomplishments do not make him immune from criticism. And criticism of an elected official can come from high or low. Even from another elected official, no matter how incomprehensible it may be, for which he too should be criticized.

The problem isn’t that he was criticized, but what he was criticized for and whether the criticism is sound.

Lewis, D-Ga., told moderator Chuck Todd of NBC’s Meet the Press in an interview set to air Sunday that he does not see Trump as a “legitimate president.” Continue reading

Traditions And Laws

He’s not doing what everyone always did, and that’s wrong. He’s not doing what everyone always did and that’s why he was elected. Change the name underlying the “he” in those sentences and pick which one you prefer. But the incoming administration is, if nothing else, defying the “norms” of the presidency. A random example:

Monday, January 9th

Family Matters, Part I: The Kushner Appointment. On Monday, Trump appointed his son-in-law Jared Kushner as senior adviser in the White House, raising questions from ethics experts as to whether the role would violate federal anti-nepotism laws. Whether or not Kushner is ultimately cleared under law, Trump is challenging legal norms and democratic principles against nepotism, an appointment characteristic of the policies of dictatorship regimes writes Jon Schwartz.

The Federal Anti-Nepotism Statute, 5 U.S. Code § 3110, states that a public official may not appoint a relative to a position in the agency in which the official is serving. While the law establishes that the President is a public official and a son-in-law is included as a relative, the interpretation of “agency” as including the White House or the Executive Office of the President could be debated based on the reading of a circuit court case in 1993, reported Ailsa Chang at NPR in November.

Who does this? Well, aside from JFK appointing Bobby as Attorney General, and Bill appointing Hillary to head his health care task force.* Continue reading

From Dry Foot To Wet Back

When my father bought a Volkswagen Beetle in 1967, my mother was furious. World War II was still fresh in people’s memory, and Americans, Jews, didn’t buy things made in Germany. We were supposed to hate them. The mantra was “Never Again,” and it was drilled into my head as a child.

But my father, who fought in the infantry in WWII, winning a Bronze Star and two Purple Hearts, told her the war was over. We won. It was time to move on. He wasn’t exactly ready to forgive the Germans for what happened, but he wasn’t going to let hatred guide his decisions forever.

Cubans who escaped Castro loved their island and hated his regime. America hated communism in general after World War II, and Castro was the communist in our backyard. It was completely unacceptable, and as the Cuban Missile Crisis taught us, the threat was real. We embraced Cubans who risked their lives to escape Castro unlike any other group of people.

Flotillas of Cubans braved death to escape, and our Coast Guard and regular people with boats saved them, brought them to our shores, where we took them in as refugees of a cruel communist dictator. Then the Mariel Boatlift happened in 1980, changing our perception. The Marielitos, we were told, weren’t just refugees, but Castro’s way of cleaning house, emptying his prisons and asylums and making them our problem. Continue reading

The Long March

On the one hand, a march is never a complete waste of time, as you get some exercise. On the other, it rarely does any more than create a spirit of camaraderie amongst the marchers, who often lock arms to show their solidarity and create great optics. We remember, and adore, marchers decades, even centuries later when their cause comes to fruition. We forget the marches that never went anywhere.

There will be a march on Washington soon, which has been denominated the Women’s March. The name may be something of an exaggeration.

Attending the “Women’s March on Washington” has not once crossed my mind. I could conjure up a multitude of reasons why, but will raise what I consider to be most significant: In this event black women are merely peripheral interlocutors for what are supposed to be women’s rights and human rights writ large. There is a long history of black women being overlooked by, excluded from and co-opted into events that profess to be for the benefit of all women but that at their core almost exclusively benefit middle class, straight, white women (á la All the Women Are White). Continue reading

The Magical Doctrine of Qualified Immunity

Lawyers are regularly put in the awkward position of explaining to a client why an idea that strikes the client as eminently reasonable won’t work. There’s no law, we say, to support such an argument. Every once in a while, we get smacked for sound advice: but what about qualified immunity for police, the client responds. And they’re right.

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point.

University of Chicago lawprof Will Baude argues that QI is unlawful. This comes at the same time the Supreme Court issued a per curiam opinion in White v. Pauly, which Greg Doucette contends is the Court’s way of telling us the QI exception has just swallowed the rule.

As every lawyer is taught in law school, each case is unique and “rises or falls on its own merits.”  Meaning, in practice, any trial or appellate judge even remotely inclined to protect bad police from the consequences of their bad decisions can easily distinguish any given case from all prior precedent sufficiently to avoid finding a “clearly established” right. Continue reading

Forfeiting Ferraris Fine, Second Circuit Says

What is it about Ferraris? Cops love them. Too much. Sure, they’re “supercars,” and very expensive, though the relative value of a Ferrari to its owner is likely far less than a Toyota Corolla to a working guy without a dime in the bank who needs that car to get to work to feed his kids. And it’s not like they’re really rare, especially not on Long Island.

None of this matters to James B. Ferrari, who was driving his Ferrari Modena coupe at speeds up to 100 mph when he was nabbed for drunk driving.

The Second Circuit US Court of Appeals upheld the government’s confiscation of James B. Ferrari’s Ferrari in a ruling last week. Officials in Suffolk County, New York had grabbed the 2003 Ferrari Modena coupe, valued at $95,000, after Ferrari was stopped and accused of driving under the influence of alcohol (DUI) on May 26, 2009.

A police officer saw the Ferrari allegedly reaching speeds over 100 MPH on South Country Road in Bellport. Ferrari was arrested and his Ferrari confiscated under the state’s drunk driving statute. Ferrari’s attorney argued the Due Process clause of the Constitution required the exotic automobile be returned after his client posted a bond — at least while the charges were being litigated in court. At that point, Ferrari had not be found guilty of any crime. Ferrari’s attorney insisted that it was the county’s burden to prove the seizure was the only possible remedy to the situation, and a judge and jury both agreed. They ordered the county to pay $95,000 to Ferrari to compensate for the loss of his automobile.

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A Prosecutor’s Privilege

Caleb Mason was making the point that good papers matter. It’s a point that’s been made before, but bears repeating.

You can win or lose a case based on the quality of your written submissions to the court—from pretrial motion practice through trial, post-trial motions, and appeal.  I can’t exaggerate this point:  courts notice good work product.  It must be cleanly argued, compliant with formatting and length rules, properly cited, supported by declarations, and directly on point.  Many judges, especially in state court, see a steady stream of written filings that are, in a word, half-assed.  Producing a high-quality piece of legal writing takes time, effort and skill.  We take pride in our written work at Brown White & Osborn LLP.  We don’t submit sloppy, half-baked briefs.  Good writing gets results.

If that firm name sounds familiar, it should. But Caleb’s point isn’t funny or snarky, and there’s no mention of taint or ponies. Producing excellent papers can make the difference, and it’s absolutely critical and worth the effort. But then, that’s the defense side, because we’re invariably at the bottom of the mountain fighting our way to the top. The prosecution, on the other hand, expects to win, so why bother putting in good papers?

After Caleb did his voodoo, and the prosecutor came to the realization that he was about to lose on an actual innocence motion, a nearly impossible motion for the defense to win, privilege kicked in. Continue reading

@TheFIRE Under #DearBetsy

That candidates for office served as criminal defense attorneys has long been a smear, enjoyed by their adversaries to tie them to an ignorant public’s belief that defending criminals aligns them with the commission of crime. No matter who is targeted by this slime, it’s a lie, unworthy of acknowledgement and demanding condemnation.

A variation of this theme was hurled at the nominee for Secretary of Education, Betsy DeVos. No, she wasn’t a criminal defense lawyer, but she did something that could play into the hands of the ignorant. She donated $10,000 to FIRE.

Republican megadonor Betsy DeVos has given thousands of dollars to an advocacy group that is seeking to overturn an Obama administration policy that made it easier to discipline college students accused of sexual harassment or assault.

The donations, totaling $10,000, by Donald Trump’s Education secretary pick have prompted criticism from Democrats and women’s groups in the run-up to her confirmation hearing next week.

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A Flash Bang Too Far

As Lou Hayes explained at Fault Lines, SWAT raids don’t have to be violent paramilitary adventures, even though the alternative would be “boring.”

What got us to the point where the surround-and-callout as a default tactic rather than the stereotypical “raid” entry? The research on human decision-making under stress. We learned how our own bodies and minds reacted to compressed time, fear, confusion, smells, noise, anxiety…as I had been affected on my first raid.

But what about the acute stress and fear we caused in those inside the homes we raided? How about waking up a family at 4:30 a.m. from a dead sleep? Could we expect the best decisions (think: compliance) from them? Or were we inadvertently putting them into a state of primal, animalistic, reactive, survival-mode decision-making too?

Does this seem remarkably obvious, that the shock, confusion and adrenaline could make for poor choices all around, putting everybody at risk? And yet, Lou suffers the slings and arrows of his fellow cops for suggesting that everyone survive the day rather than just the cops. Or more to the point, that this may well prove safer for the cops, even if there is a risk of losing some evidence down a toilet. Continue reading