Author Archives: SHG

The View From Black, White and Blue

When the story of Michael Brown’s killing broke, my first post began with these words:

There may be a good explanation for why Ferguson, Missouri, a mostly black working-class suburb of St. Louis, had a white mayor and police force. There might be a good explanation for why an unarmed, 18-year-old high school graduate, Michael Brown, was shot down in the street.  But if so, nobody has said so yet.  The only thing for which there is a good explanation is why Brown won’t be starting technical school today. That’s because he’s dead.

The two-thirds of Ferguson who protested the killing have been subject to substantial scrutiny, far more than the shooting of Brown at the time.  That’s because there was a deafening silence from the police.  There was a half-baked press release, replete with the usual ambiguous jargon that gives rise to more questions than answers, to justify the killing.  On the other side, witnesses came forward, subjected themselves to questioning, or not.

On Sunday, the one-third of Ferguson came out, protesting that Police Officer Darren Wilson has been “victimized” for doing his job.  They were peaceful and well-behaved, without fear of being dispersed by tear gas and rubber bullets. There were about a dozen police officers monitoring the protest, five on bicycles instead of armored personnel carriers. Their purpose was to defend the police: Continue reading

An Unfair Fight (Gratuitous Irrelevant Update)

The mantra in support of the militarization of police has a catchiness to it: in a battle between the police and criminals, we don’t want a fair fight.  And no reasonable person can disagree.  But the mantra is loaded, as any good mantra should be.  First, it assumes that the police are opposed to criminals. Second, it assumes there to be a fight.  This is where the argument in favor of militarization goes off the rails.

In the National Review, Jay Nordinger does his utmost to distort the issue by posting a “letter from a reader, who is a policeman.”  The cop offers “his day today”:

We went to serve a drug and gun warrant. The house had surveillance cameras and reinforced doors. Which means they had plenty of warning that we were coming. As the TAC team makes entry, a suspect peeks out the window, sees the cover team standing outside, and fires a round at us. Lucky for us, he’s a bad shot. The TAC team soon takes all four occupants into custody without further incident.

Assuming, arguendo, that this is a true story, it superficially appears to answer the question of why police need SWAT teams, armored carriers, military clothing, armor and equipment.  Upon deeper consideration, it begs many questions.  To their credit, the police went to the right house. After all, they sometimes go to the wrong house in their rush to act without confirming information or gathering intelligence beforehand. Continue reading

Another Saturday Night In Ferguson

Thursday night saw a calm return to the St. Louis suburb of Ferguson.  It didn’t last long.

Hours after Gov. Jay Nixon of Missouri imposed a midnight-to-5 a.m. curfew on Saturday in this small city, a group of protesters defied the order and violence flared briefly on Sunday morning, after a week of demonstrations over the killing of an unarmed black teenager by a white police officer.

A clash between the protesters and dozens of police officers in riot gear began less than 30 minutes after the curfew took effect and ended about 45 minutes later with the arrest of seven people, all charged with “failure to disperse.”

The justification was that there were some people engaged in violence:

Protesters tossed at least one bottle rocket, the police said, and at the sound of apparent gunshots from a restaurant down the street, demonstrators scrambled to safety.

So the rights of all were terminated with extreme prejudice. Continue reading

The Militarization of Movie Theaters

Perhaps the defining feature of crazy people is that they’re unpredictable.  Except in Aurora, Colorado, where United States District Court  Judge R. Brooke Jackson held that the Cinemark Theater where James Holmes committed “madman’s mass murder” during a midnight screening of the Batman film “The Dark Knight Rises.”

From the Denver Post:

Noting “the grim history of mass shootings and mass killings that have occurred in more recent times,” U.S. District Court Judge R. Brooke Jackson ruled that Cinemark — owner of the Century Aurora 16 theater — could have predicted that movie patrons might be targeted for an attack.

What “grim history” would that be?  Are there crazies slaughtering people in theaters all the time?  Is it just Batman movies, just midnight screenings, or does Bambi count?  Regardless, holding that the theater “could have predicted” the act of a madman is akin to saying they could have predicted a meteor shower or abduction by space aliens.  Far more people are harmed by being struck by lightning than by a crazy with a gun, which the judge apparently recognized:

“Although theaters had theretofore been spared a mass shooting incident, the patrons of a movie theater are, perhaps even more than students in a school or shoppers in a mall, ‘sitting ducks,’ ” Jackson wrote.

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Putting Their Life On The Line (for minimum wage)

At Law Enforcement Today, Eric Aguiar makes an eminently reasonable, and very scary, proposal:  Arm and properly train TSA officers.  For now, they’re the joke of law enforcement, recruited from pizza boxes, given enough training to be unaware that a driver’s license from the District of Columbia is ‘merican, and paid worse than the gal at the Dairy Queen counter.

And they are on the front line of Terrorist Theater.

Even so, they are out in public, wearing uniforms, giving orders, molesting children, taking a risk.

On November 1, 2013 a TSA officer was shot and killed at point blank range by a rifle at a Los Angeles airport.

If we had to venture and propose a reason as to why TSA was targeted we would surmise that, tactically, it is because they are the only unarmed law enforcement division at the airport and arguably the least trained. Does it make sense to give an unarmed officer an assignment as sensitive as checking for weapons and contraband?

Well no, it doesn’t.  But then, they aren’t there to play junior DEA agent, even though every jerk with a shield dreams of being a hero.  But I digress. Continue reading

The Constitution in Bo Burk’s Hands

It’s a truism that we get the government we deserve, and that’s proven again by the election of Bo Burk as Public Defender in the 25th Judicial District of Tennessee.  Bo who?


Via Gideon at A Public Defender:

Now, who won the election for Public Defender in the 25th Judicial District?

Yep, it’s pro-death penalty, 7-year prosecutor Bo Burk, who, if you zoom in on the image, touts his membership in the NRA as a plus to be the champion of individual rights for the poor and disenfranchised.

But as if that wasn’t enough, he is also a fiscal conservative who will use all resources available to save taxpayer dollars.

Perhaps since he’s never represented a criminal defendant in his life, he might be confused as to where the government largesse in the criminal justice system comes from: it is from over-criminalization and vindictive prosecutions, excessive prison sentences and lengthy terms of probation.

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The Smearing of Michael Brown (Update x2)

There is no expedient to which a man will not resort to avoid the real labor of thinking.

–Sir Joshua Reynolds

The only thing surprising about the press conference held by Ferguson Police Chief Thomas Jackson was that it took so long to happen.  It was nearly a week before they pulled the standard tactic that has traditionally held great sway over the hard-of-thinking: Smear the victim.

Maybe it took them that long to come up with “strong-arm robbery” instead of shoplifting, which didn’t sound at all menacing?  Perhaps it was because their initial failure to play the taint card left the Ferguson PD no explanation for why they were pulling it out so late, well after it made any sense to go for the smear, and they couldn’t come up with a story that passed the laugh test?  Maybe they weren’t that shameless?  Nah.

The story is that before Michael Brown was gunned down in the street by Ferguson Police Officer Darren Wilson, he and Dorian Johnson shoplifted a box of baby cigars, Swisher Sweets, from a convenience store.  Based on the store’s video, Brown used his size when doing so, giving rise to the “strong arm” language as a show of force.  The kids shoplifted. Bad kids.

But here’s where we need to put this logical and legal trash to the curb.  The taint tactic must die. Continue reading

Just Too Lenient

On September 12, 2008, Erin Evans and her boyfriend, Octavius Bonds, went on a date.

A sweet start to the statement of facts in United States v. Mersed Dautovic, a Des Moines police officer.   The night ended with Bonds hospitalized, head split open, bones protruding through the skin, after being pepper-sprayed and beaten by Dautovic and his partner, John Mailander.

The 8th Circuit’s description of what happened after Evans didn’t move out of the way quickly enough is too vivid to  be captured in summary.  The sweet start to the evening offered little hint that the nightmare to follow wouldn’t end until Evans and Bonds were acquitted at trial.

Curiously, the scenario flipped, as it almost never does, so that a federal prosecution of the police, for the use of excessive force under color of law, and their perjury in the state court trial that obstructed justice, followed.  There is no explanation for how a case that was deemed strong enough to take to trial in state court turned into a prosecution of the police in federal court.  Not that I’m complaining, but the incongruity is astounding.

Mersed Dautovic was convicted after trial.  The sentencing guidelines calculations were unforgiving. Continue reading

Better to be Sentenced by Ostrich or Pigeon? (Update)

Fresh back from trademarking the Sentence-O-Matic 1000, Jake DiMare proudly advised me that this idea wasn’t dead yet, as demonstrated by Judge Richard Kopf’s continued push toward sentencing empiricism.  Oh, that Jake. Oh, that judge.

While yanking Attorney General Eric Holder’s chain for wanting his cake and eating it too, by decrying the use of race as a predictor of recidivism while prisons are filled to the brim with men of color put there on Holder’s watch for living the lifestyle of poor black rather than Attorney General (or president) elite black, the judge proffers an alternative list of factors as predictors.  Notably, race is crossed off the list.

Let’s face it friends, “race” is low-hanging fruit. It is too easy to attack, although the social science data on race when used as a predictive metric for sentencing is not really about genetics (“race”) as a causative factor in crime. It is about being correlated with crime, and there is a huge difference between the two (causation and correlation). But the word “race” is too freighted with the notion of “discrimination,” so let’s just agree for the sake of argument that empirical data on “race” will never be used at sentencing.

And indeed, race is certainly a flash point, despite its utility in what passes as empiricism these days.  So here’s the balance of the list, taken from James C. Oleson’s article on data-driven sentencing. Continue reading

Losing Michael Brown

A black man did something in Ferguson, Missouri, that so many others were incapable of doing.  Someone took a photo of it so we won’t forget.


The man stood there in a police uniform. The normal style, without camouflage, body armor and a helmet and facemask. He carried no heavy armaments. Instead, he held a photograph of a young man, Michael Brown.  The man is Missouri state police Captain Ronald Johnson.  Continue reading

The Constitution? Not In This Court

Subject matter is the sort of thing that doesn’t make it onto the plate of non-lawyers, who properly assume that if they have an argument in support of their own defense, a court will hear and consider it.  This makes perfect sense, so naturally the government has come up with a way to screw with it.

Via Eugene Volokh at WaPo Conspiracy, the 9th Circuit’s opinion in United States v. Szabo:

William J. Szabo was prosecuted for violating a Veterans Administration regulation banning “disturbances” at VA facilities. The panel unanimously found that the regulation was constitutional as applied to Szabo’s speech, “because his conduct involved a ‘true threat’ of violence.” But Szabo also claimed that the speech restriction was unconstitutionally overbroad — something that is generally allowed in First Amendment cases.

Yet the majority held that Szabo couldn’t bring this challenge, because a federal statute expressly provided that such regulations could only be challenged in the U.S. Court of Appeals for the Federal Circuit. Szabo was arguing that the regulation was unconstitutionally overbroad before the federal district court that tried him, and then before the Ninth Circuit; that, the court held, was impermissible. “‘[So long as] Congress provides for a ‘special statutory review proceeding’ in one specific court, challenges to the administrative action must take place in the designated forum.’”

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