Author Archives: SHG

Hans Bader: Intoxicated Is Not Incapacitated

While there is no shortage of issues to be taken with California’s new “Yes Means Yes” law, one of the fallacies being passed around is that it prohibits sex between intoxicated persons.  Indeed, this may well be a purpose to the buzz surrounding the law, as it’s a trope that any woman who is under some undefined state of influence from drugs or alcohol is incapable of giving consent.  This lends itself to the notion that she can awake the next day and decide whether the prior evening’s activities were fine or rape.

Hans Bader, who has forefront of keeping tabs on such laws, and their related impacts, asked that I post his letter to the editor to the San Francisco Chronicle (which inexplicably calls itself the SFGate on the interwebz):

“New law redefines consent at college” (Sept. 29) claimed that California’s new “affirmative consent” law regulating college sex “says that a person cannot give consent if they are intoxicated.” But it does not say this. What it actually says is that “consent” is absent when “the complainant was incapacitated” due to alcohol.

Most intoxicated people are not legally deemed “incapacitated” and can consent, as law professor Anne Coughlin and the Foundation for Individual Rights in Education have noted. Continue reading

Bronx Travesty, Redux

The horrific tale of Kalief Browder’s loss of three years of his life to systemic failure is back on the front burner, courtesy of a new article about the case in The New Yorker.  It’s not that Browder’s story isn’t already well known, as it was the subject of much castigation and teeth gnashing in stories from December, 2013.

Ah, the Bronx. Where the system died and no one told it.

In 2010, a complete stranger accused Kalief Browder, then just 16 years old, of robbing him. Browder was walking home in the Bronx from a party one night when police officers stopped and arrested him. Browder says officers told him he’d probably be freed later that night. Instead, Browder would go on to spend three birthdays on Rikers.

This past January, Browder was offered a deal: Plead guilty and be sentenced to time served, or plead not guilty, and if convicted, face another 15 years in jail. Browder, who has always maintained his innocence, refused to plead guilty, and in June, charges against him were suddenly dropped.

Lawprof Gerard Magliocca gave the heads up to the new, lengthy article in his post at Concurring Opinions, where he offers that he’s rarely shocked, but this one got to him: Continue reading

Book Review: David Lat’s Supreme Ambitions

Picture Lat, lying naked except for a Harvard College ring, on a silky, billowing black background with what appears to be a sleeve showing the barest of black velvet stripes covering his groin, arms and legs akimbo, with one eyebrow slightly raised, eyes half shut as if meant for only you, lips slightly apart, glistening with a hint of tongue.  This is Supreme Ambitions.

For anyone who remembers the early days of Underneath Their Robes, when A3G obsessed over whether judicial hotties wore boxers or briefs, or the glory days of Above The Law, when it was just David Lat, having outed himself with Jeffrey Toobin as one of Chris Christie’s male Jersey federales, his first novel, Supreme Ambitions, will bring back the glow of what made Lat stand out above all others.  The snark, wrapped in obsession about the world of the elite; Top schools, top firms, top judges and most of all, the path to the top, and yet with that hint of humility that made him endearing.

Published by the ABA of all people, Supreme Ambitions* is pure Lat, the original Lat before he became a blogging impresario, handing off ATL real estate to any bobblehead who would write for short-lived adoration and more concerned with the number of pop-up ads than shameless self-promotion.  That Lat, the one whose obsession with a world that few ever see, still lives, and he’s back in this book. Continue reading

The Slippery Slope of Risk

When Sean Groubert made the split second decision to pump bullets into Levar Jones for being too enthusiastic in his compliance with commands, he was fired, prosecuted and (sort of) universally condemned.  He was able to put together a sufficient excuse for his fear of the unknown, but it flopped.  For those who saw Groubert’s conduct as well beyond the limits, consider how differently this might have played out in Alabama.

On March 6th, Michael Davidson, age 20, was traveling on I-85 on his way to to Seymour Johnson Air Force Base near Goldsboro, NC.  Davidson is an Airman First Class in the U.S. Air Force and was reporting for duty.   Near Opelika, Alabama, he got into a minor collision with an 18-wheeler.

Davidson exited his vehicle to go talk to the semi-truck driver.   About halfway there, he reportedly heard a noise from behind him — “hollering.”  A police officer was now on the scene and was shouting at Davidson.

Police reportedly told to raise his hands in the air, and for reasons unclear, Officer Phillip Hancock of the Opelika Police Department opened fire.  Davidson was shot in the stomach.

Continue reading

Of Princes and Princesses Who Say “Yes!”

The Wall Street Journal noted that Princeton has hopped aboard the curtailment of due process rights for male college students.  Wesleyan University has announced that it will require its two fraternities to go co-ed. Forbes pulled down a post by MIT’s Chi Phi fraternity alumni house president and contributor, Bill Frezza, and summarily “fired” him, for writing “Drunk Female Guests Are The Gravest Threat To Fraternities.”  An editorial in MIT’s Tech disavowed his “regressive” victim blaming.

California has now enacted a law, previously discussed as SB 967, requiring colleges to establish an affirmative consent standard, colloquially known as “yes means yes,” for sexual contact.  Sexual assault is anything that isn’t approved, and affirmative consent is an ongoing requirement during the course of human contact.

Contrary to reports, the law doesn’t turn sex into rape per se when one or both have been drinking alcohol, but when one is “incapacitated” such that their consent cannot be deemed voluntary.  It’s a hard line to ascertain, but the message is to err on the side of precaution when drinking is involved. Continue reading

Half Baked

Efforts to try to illuminate legal issues and problems that result in catastrophe often feel a lot like pissing into the wind.  Few who aren’t engaged in the effort get it. Many attribute it to bizarre and ridiculous conspiracies or simplistic hatred of perceived enemies easily cured by resort to a firm and resolute insistence on adherence to constitutional rights, or a well-aimed bullet.

Others, often smart people who don’t realize they’re behaving like dilettantes, come up with half-baked ideas that not only fail to offer anything remotely realistic, but tend to make people stupider by reflecting no grasp of the problem. Continue reading

Sometimes, Video Doesn’t Matter

The allegations against University of Maryland student John McKenna would likely have stuck, but for the fact that it was caught on video.  It was infamous at the time, a happy college kid skipping down the  sidewalk after beating Duke in basketball in 2010.  Then beaten.

It was bad enough that he was beaten. It was worse that they lied about why. Worse still that the cops who could be identified, Reginald Baker and James J. Harrison, refused to give up the names of other cops in riot gear who were also doing the beating.  But that’s before it ended up in court, with Baker and Harrison as defendants instead of McKenna.

The upshot was that Harrison was convicted of misdemeanor assault.  Not much of an outcome, but something.  Hope you enjoyed it while it lasted, as it’s now gone.

IN PRINCE George’s County, it is now clear that the police, without provocation, can beat an unarmed young student senseless — with impunity. They can blatantly lie about it — with impunity. They can stonewall and cover it up for months — with impunity. They can express no remorse and offer no apology — with impunity.

The agent of this travesty of justice, and this impunity, is Judge Beverly J. Woodard of the Prince George’s County Circuit Court.

Continue reading

Rob Graham: The Best of Intentions

My computer literate buddy, Rob Graham, did the sort of thing knowledgeable geeks do.  Computer voodoo.

In order to measure the danger of the bash shellshock vulnerability, I scanned the Internet for it. Many are debating whether this violates the CFAA, the anti-hacking law.

The answer is that everything technically violates that law. The CFAA is vaguely written allowing discriminatory prosecution by the powerful.

The Computer Fraud and Abuse Act is a disaster, though it’s unclear whether the fault is with the law itself or Congress’ failure to update the law, enacted in 1986, when computers existed mostly as stand alone contraptions.  There was no internet, no world wide web.  Heck, even Gopher was still a twinkle in Mark McCahill’s eye. Continue reading

Unblurring The Ethical Lines

A while back, the question arose whether a poor strategic decision in the Crystal Cox case was the product of choice by her lawyer, Eugene Volokh, or a duty imposed on him because his client demanded it.  The issue arose after Eugene won an important victory in the 9th Circuit, despite his client, but the decision included a sentence that perturbed Cox.

So he moved to excise the sentence from the opinion.  That opened a door to not only revisit the sentence, but slam it shut far harder and more conclusively than in the first instance.  As the sentence was inconsequential to the outcome, it was, to be blunt. an incredibly foolish motion.

The point raised by Eugene, that citation to a New York Times article does not prove the point, has some validity.

A judicial assertion of misconduct by a named person, even a judicial assertion modified with the word “apparently,” could be based on the record in a case, or on authoritative findings by another court. But it ought not be based on a newspaper column, which was written without the benefit of cross-examination, sworn testimony, or the other safeguards of the judicial process. The claims in the columnist’s assertion are neither facts found by a factfinder nor facts subject to judicial notice under Fed. R. Evid. 201.

Of course, the motion presents a potential flaw that neither Cox nor Eugene may appreciate.  While Carr’s article may fall short of irrefutable proof, that doesn’t mean there aren’t a ton of other sources to substantiate the point with overwhelming evidence. Continue reading

But For Video: Extreme Compliance Edition

Before anyone gets too worked up, the officer in the video, South Carolina Highway Patrol Officer Sean Groubert, 31, has been fired from his position and is being prosecuted for his actions.

As the video has already gone viral, chances are pretty good you’ve seen it. But in case you live under a rock:

That the stop was for a seatbelt violation, silly as that may be, really isn’t a material aspect of what followed.  As any cop will happily explain, when you make a vehicle stop, you never know what’s happening in the head of the driver. It’s the unknown they fear most. Continue reading

An Unobstructed View

It’s long been a peccadillo of mine, that when I buy a car, it’s not a free advertising opportunity for the dealer. If they want it to be their billboard, they are free to negotiate for the space. If not, then there is no reason for the dealership’s name to adorn my vehicle.  Most people, however, don’t care.

It used to be a metal plaque drilled into the trunk of the car, which later devolved to a sticker and then, now, a tasteless license plate frame.  Dealers can be so compulsive about their free advertising opportunity that I’ve had one switch out my plain frame for theirs when my car was brought in for service.

They’re ubiquitous, though most do something that has surprisingly been ignored. They violate section 402(1)(b) of the New York Vehicle and Traffic Law, which provides:

Number plates shall be kept clean and in a condition so as to be easily readable and shall not be covered by glass or any plastic material, and shall not be knowingly covered or coated with any artificial or synthetic material or substance that conceals or obscures such number plates or that distorts a recorded or photographic image of such number plates, and the view of such number plates shall not be obstructed by any part of the vehicle or by anything carried thereon . . ..

Continue reading

But For Video: Black Man With Gun In Wal-Mart Edition (Update)

John Crawford III was shopping at Wal-Mart, which may reflect a questionable choice of venues but is not illegal in these United States.  And still, he ended up dead.  While walking through the store, he picked up an unboxed pellet gun and continued down the aisles, chatting on a cellphone all the while.

Another shopper, seeing Crawford carrying what looked like “an automatic rifle” while black, called 911.  The police appeared with both alacrity and passion, having just been trained to be “aggressive” to stop shooters.  Who doesn’t want to try out their new lessons?

According to the officers, they commanded Crawford to drop the weapon a few times.  He didn’t, so they killed him.  But there’s a video tape, because Wal-Mart. Continue reading