Author Archives: SHG

Justified Or Avoidable: When Cops Kill

Much as I’ve questioned some of the subjects of the New York Times’ Room for Debate, yesterday’s flavor raised the big question of whether police use deadly force too often, and offered some very thoughtful responses.   One debater, South Carolina law professor and former police officer Seth Stoughton, raised a deeply disconcerting point:

Every time a police shooting gets national attention, the difference in the conflicting attitudes that civilians and law enforcement have toward the use of force is glaring. That conflict drives much of the tension between police agencies and the communities they serve.

Indeed, as I’ve often noted, the First Rule of Policing is to make it home for dinner, a rule that every cop inherently applies in every interaction.

When cops evaluate a use-of-force incident, they ask whether it was justified, focusing on the legal rule set by the Supreme Court in the 1989 case Graham v. Connor. The Court held that officers may use force so long as it is “objectively reasonable.” To determine whether a particular action was objectively reasonable, the Court held, judges must view the situation through the deferential lens of “a reasonable officer on the scene.”

When civilians evaluate a use-of-force incident, they ask whether it was avoidable. They want to know whether the officer could have done something—anything—else.

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But For Video: Horse With No Name Edition

The chase lasted three hours, after sheriff’s deputies in Apple Valley, California, tried to serve a search warrant on Francis Jared Pusok for identity theft.  Pusok took off, and deputies followed.

Authorities said the incident began around 12:12 p.m. when deputies from the Victor Valley Sheriff’s Station served a search warrant at a home in the 25300 block of Zuni Road in unincorporated Apple Valley. The warrant was reportedly related to an identity theft investigation. Sheriff’s officials said Pusok fled the residence in a blue Dodge sedan when deputies arrived.

Pusok drove away, refused to yield to deputies, and a pursuit began in the area of Laguna Seca and Standing Rock roads in Apple Valley. The pursuit continued onto southbound Central Avenue and into Apple Valley town limits briefly, before continuing south into unincorporated Hesperia and onto Bowen Ranch Road. The pursuit reached speeds of 70 mph on paved roads, and 50 mph on the dirt roads south of Bowen Ranch Road, authorities said.

But Pusok then stole an unidentified horse and rode into the desert, where the bulk of the chase occurred. Eventually, deputies caught up to Pusok on the unnamed horse and nailed him with a Taser. What happened next was caught on video by a news helicopter. Continue reading

When 99Rise Wanted To Be Heard

At 10:00 a.m., the words ring out:

The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!

It’s a curious tradition, reflecting the conflicted purpose of a court that was constituted to serve a newborn nation, whose purpose wasn’t entirely clear at first. But traditions are funny things, and so the words are repeated every day the Court is in session, term after term, year after year.

When they say “all persons having business before the Honorable, the Supreme Court,” one might hear an invitation.  Need redress?  They’re here for you, if you take this “admonition” literally, notwithstanding the pomposity of calling themselves “honorable.”  After all, shouldn’t honor be something bestowed by others rather than claimed for oneself?

Perhaps a group of young, idealistic people took the opening that way. Perhaps they thought it was truly an invitation to speak to a branch of government comprised of nine lifetime appointees, who were answerable to no one provided they kept their bloomers up. Or perhaps they wanted to make a point and didn’t really give a damn. Continue reading

David Aylor, The Other Shooter

It’s so very tempting, especially to a new lawyer seeking to establish his brand.  After all, the legal marketing gurus all say that if you don’t get out there and sell yourself, who will?  So when Charleston, South Carolina lawyer David Aylor, admitted to practice law in 2006, saw his opening, he went for it.

Aylor was tapped to represent then-North Charleston Police Officer Michael Slager, who shot and killed Walter Scott.  It was, from all known information at the time, a good gig, a cop who had the usual justification for a kill.  It would put Aylor in the local Post and Courier, sympathetic to his client, and add to his local brand as the “best law firm in Charleston.”

Aylor has quite a few videos on Youtube, reflecting a bit of a penchant for marketing and self-promotion. Of course, these came well before his representation of Slager.  Perhaps he got the Slager case because of them. Perhaps if he had known what would follow, he might have chosen a different brand. Continue reading

Sen. Gillibrand’s Quiet Deletion

The Senate’s foremost advocate for feelz, New York’s own junior Democrat Kirsten Gillibrand, may still cling to her deepest, heartfelt belief that American college campuses are hotbeds of rape that make the Congo look like a safe place, but she has silently deleted from her website the thoroughly debunked statistic upon which so much of the hysteria relied. Via Ashe Schow:

Sen. Kirsten Gillibrand, D-N.Y., one of the most prominent lawmakers working to curb campus sexual assault, has removed from her website the debunk[ed] claim that one in five women will be sexually assaulted while in college, according to Politico.

Using the tracking website, Politico’s Caitlin Emma found that a sentence claiming that incredibly high rate of sexual assault had been deleted from Gillibrand’s website page about her bill, the Campus Accountability and Safety Act. The change was first detected by Inside Higher Ed reporter Michael Stratford.

The one in five stat has been foundational to the claim that there is an epidemic of rape and sexual assault on campus, justifying the evisceration of due process as well as the demand for extreme changes in law and culture to end this blight that doesn’t exist. Continue reading

But For Video: In The Back, Again (Update)

One day ago, I wrote of the killing of Justus Howell, a 17-year-old black kid shot twice in the back.  Before the day was out, the New York Times broke the story of the indictment of North Charleston, South Carolina, police officer Michael T. Slager for the murder of Walter Scott, a 50-year-old black man stopped for having a broken tail light.

The story of Scott’s killing originally told a narrative of a struggle in which the officer was in fear of his life.

The incident began about 9:30 a.m. Saturday when Officer Michael Slager, 33, pulled 50-year-old Walter Scott over for a broken tail light at the corner of Remount and Craig roads.

Police and witnesses say Scott tried to run from Slager before turning to fight for the officer’s Taser. It was during that scuffle that the officer fired his service weapon, fatally wounding Scott.

According to an incident report, officers heard Slager say over the radio that he had deployed his Taser and “seconds later” he said “Shots fired and the subject is down. He took my Taser.”

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In The Back?

The question isn’t whether 17-year-old Justus Howell was up to no good.  Buying a gun from some guy on the street is, without question, not the sort of thing that is likely to be ignored.  But even kids who are up to no good shouldn’t end up dead from two bullets in the back.

Zion police have said Justus Howell, 17, of Waukegan, was shot Saturday afternoon by an officer responding to a call about an altercation.

On Monday, the Lake County Coroner’s Office issued a statement saying an autopsy showed one bullet struck Howell old in the left back, penetrating his heart, spleen and liver, and the second bullet struck him on the right side of his back. Tests to determine whether drugs were in the victim’s system are pending.

Unless there is a drug that causes bullets fired at a person’s front to end up entering through his back, it’s pretty much certain that drug testing isn’t relevant to the material question of why police shot a kid who was turned away from them. Continue reading

Advocate or Scholar: Pick One

As much as practicing lawyers may disdain the pontifications of the academic elite, who easily spout caselaw and theory as if oracles of the law gods, the tacit reality is that law professors in the well carry that extra bit of credibility when offering their arguments.

They are what we are not: scholars.  We make a highly technical argument that compels a judge to think hard and it’s dismissed out of hand. They make the same argument and, boom, it’s considered. The same is true of outlandish arguments.

To the practicing lawyer, this really burns our butts.  We may be every bit as sound in our position as the prawf, but we’re just plain, old advocates.  But who is a judge to dismiss a scholar with the imperial wave of the hand?  It’s not that they necessarily win the point, but at minimum, they are taken more seriously. A world renown constitutional scholar must know something about the Constitution, right?  He cannot simply be ignored.

Harvard’s Larry Tribe is such a scholar, which is why his representation of Peabody Energy to challenge environmental limitations designed to stave off global warming caught some serious attention. Continue reading

The Death of Apology

The failure of so many of us, myself included, to have taken the Rolling Stone report of a forcible rape at University of Virginia that never happened  with sufficient skepticism of both accusation and reporting should be a clarion call to constrain the passion of belief until facts are proven.  And yet, Rolling Stone’s retraction of its story in the face of a report by Columbia School of Journalism as to its pervasive abject failure to be accurate and dispassionate fails as an apology and, instead, twists its lie to serve the very same purpose that gave rise to its blind, and grievously misguided, faith.

As Eugene Volokh notes, the writer of the false story, Sabrina Rubin Erdely, offered an “apology.”

Here’s the apology from Sabrina Rubin Erdely, who wrote the now-discredited Rolling Stone story alleging that there was a gang rape at the Phi Kappa Psi fraternity:

The past few months, since my Rolling Stone article “A Rape on Campus” was first called into question, have been among the most painful of my life. Reading the Columbia account of the mistakes and misjudgments in my reporting was a brutal and humbling experience. I want to offer my deepest apologies: to Rolling Stone’s readers, to my Rolling Stone editors and colleagues, to the U.V.A. community, and to any victims of sexual assault who may feel fearful as a result of my article.

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A Reply To Senator Franken (or lending Jim Comey a hand)

The ranking member of the Senate Subcommittee on Privacy, Technology and the Law, Al Franken, proving this his comedic chops are neither greater nor lesser than they were when he held down a real job, has sent FBI Director James Comey a letter.

Jim, being a busy guy given the time he’s constrained to spend putting Department of Justice Inspector General Michael Horowitz in his place, not to mention winning the War on Drugs, could probably use some help fielding Franken’s questions. After all, Franken, despite being rank, isn’t a lawyer, which explains why he would have a seat on that subcommittee.  I’m here to help.

Dear Senator Al, Continue reading

He’s Baa-aack, Again

After a grueling nine hours of deep sleep and the miraculous epiphany that reindeer is tastier than I ever would have thought and steak Fiorenza may be the finest dinner ever, I’m back. To those who sent me emails with links to current stories or questions requiring thousand-word answers plus a legal education, I hate you.

I’ve been gone before, and while it’s hard to keep tabs on interesting things happening in the world about which I’m dying to have my say, I restrained myself.  This time, I didn’t bring a computer with me, but skimmed life via smartphone, often yelling at people on the twitters and wondering why no one thought it prudent to stop micro-aggressing me by making me feel guilty about my silence.

One observation came from the juxtaposition of what seems like the perpetual whining noise coming from the youth of the United States as compared to those of Europe: instead of searching under every rock for something to be offended about, to blame for the trauma done their delicate sensibilities, some sounds that needed to be silenced, they were busy living life and having a great time of it. Continue reading