Category Archives: Uncategorized

Saving Campus Due Process Isn’t A Game For Dilettantes

They mean well. They always mean well. Lord, save us from the well-intended.

Dubbed the Campus Equality, Fairness, and Transparency Act (CEFTA), the bill would largely overturn the regulatory apparatus that has governed campus sexual-misconduct proceedings since the Department of Education’s 2011 “Dear Colleague” letter, now the subject of litigation.

Though CEFTA is written for introduction in Congress, its author – Stop Abusive and Violent Environments – wrote that it could be modified for the state level as well.

The bill won’t be enacted, so it’s not like it’s worth the time to parse it in detail. This is good, because writing a law is very difficult and while this was a fine effort for n00bs, it’s replete with internal inconsistencies. What? Well, how about the accused having the right to remain silent, but the complainant having the right to “safely” (whatever that means) examine the accused. Continue reading

No Pricks Allowed

On one level, the Supreme Court’s ruling in Birchfield v. North Dakota seems like the kind of opinion we hope for. It gives us a rule, a bright line test, as to what the police are authorized to do and what they’re not.  The holding is that after an arrest, they can compel a breath test, but they can’t compel a blood test without a warrant.  A job well done (finally)?

Absolutely. Except for the lingering questions about how this plays out in real life. The perennial bugaboo of law is that final official decisions are made in an ornate, quiet, impressive, dignified courthouse, while it’s executed on dirty, mean, nasty streets.

Putting aside the obvious detail that makes this ruling somewhat less significant than it might appear, that a cop can get a warrant to do pretty much anything he wants at any time of the day or not with a quick phone call, rendering the rest of the ruling rather silly, at least it forces the process to pretend to be a little closer to the unloved warrant clause than it might otherwise be. But then there are the easy words used by the majority that seem so very clear but get all fuzzy on the road.

You’re under arrest. Continue reading

The Floyd Chronicles: With All Deliberate Speed

Sure, there were other pressing matters requiring New York City’s attention. Like crafting an effective law that authorized people to make up their own words and titles, and mandating that other people use them upon pain of death.  But then, how hard was it to put body cams on a thousand cops?

Three years have passed since a Federal District Court ruled that New York City’s stop-and-frisk program violated constitutional prohibitions against unreasonable search and seizure and discriminated against minority citizens, who were disproportionately and unjustifiably singled out for stops. A court-ordered reform process — overseen by an independent monitor — is off to a promising start. But some of the thorniest and most contentious issues lie ahead.

Three years? And this is “a good start”?

In 2011, at the height of the program, the police stopped people on the streets an astonishing 685,000 times — up from just 97,000 a decade earlier. In practical terms, this meant that individuals in heavily policed neighborhoods could be stopped on the street without cause multiple times within a given year.

Continue reading

Bringing Down The House

It’s hard, if not impossible, for this picture not to evoke a reaction.

sitin

House Democrats staged a sit-in to, something, something, “common sense” gun control. There were twits aplenty about how it was just “common sense,” a phrase with which I’ve taken some small issue in the past, but only because it’s a ploy to pander to the hard of thinking in order to make their feelings appear rational in the absence of any thought at all.

The concept of a sit-in raises some questions as to its purpose, what the participants hoped to gain.  After all, they are sitting on the ground in a chamber where they have comfy seats, where the public cannot tread, where they are the stewards of the chamber, together with their Republican colleagues.  What were they hoping to gain? Continue reading

Lessons From A Dispassionate Judge: Focus On What Matters

There is often a level of nuance that flies over (or under, as the case may be) the heads of people who see something that, to the uninitiated, unduly simplistic or overly passionate, seems to be a good thing. Indeed, that’s how many reacted to the conduct of Las Vegas public defender Zohra Bakhtary, who was applauded by many for her passion and zealousness. She got no props here.

As a general rule, lawyers, particularly young lawyers and public defenders, are to be applauded for being bold enough to stand up to a judge on behalf of their client.  This is particularly true when they put themselves at risk in doing so.  But like the simplistic “don’t be a jerk,” be bold and interrupt the judge is only one tool in the lawyer’s tool box. Knowing when and how to use the tools of the profession is what being a lawyer requires.

The problem arises when knee-jerk reactions to displays of “passion” are applauded, as if being a passionate public defender is good enough. This is not merely a dangerously foolish notion, but one that puts the lawyer’s feelings above the client’s interests.

Sorry, all you deeply passionate folks, but feelz isn’t a substitute for good lawyering. And no, the fact that the judge reacted poorly as well doesn’t make what happened better. Sure, logical fallacies elude you, but still, what happens afterward never justifies what came before. That’s just not how logic works. More importantly, and in direct conflict with what so many young lawyers mistakenly believe, the lawyer and judge are not equals in the courtroom. The judge runs the joint and makes the calls. That’s how it works. If you don’t like that, do transactional work. Continue reading

Rhode Island Revenge Porn Crime Gets Vetoed

The announcement from Governor Gina Raimondo was, frankly, stunning. The Rhode Island governor did what few politicians are willing to do anymore. She put the Constitution first. Even more shocking, she put the First Amendment to the Constitution first. From the Providence Journal:

In her veto message signed late Monday night, Raimondo said: “The bill is apparently intended to curb the dissemination of private sexual material over the internet, but its sweep is much broader. It could also cover works of art that depict the human body. And unlike virtually all other similar state statutes, H7537 does not include basic safeguards such as the requirement that ‘intent to harass’ be demonstrated for conduct to be criminal.”

“The breadth and lack of clarity may have a chilling effect on free speech,” she wrote. “The right course of action is to follow the example of other states, and craft a more carefully worded law that specifically addresses the problem of revenge porn, without implicating other types of constitutionally protected speech.”

This follows the Rhode Island ACLU’s challenge to the law as enacted. Continue reading

Drugs And Guns, Guns And Drugs, Whatever

The assumed connection between drug dealers and their guns has long been a fixture of law, justifying the approval of no-knock warrants, night-time warrants, searches under the protective sweep exception, searches for the hell of it, called frisks even though they involve emptying pockets of small, soft baggies of things, and any number of emanations and penumbras where drugs are involved.

But for the most part, judges put in a little effort to try to pretend that there is some articulable fact, some specific detail, that elevates the routine to the lawful.  In a bold display of honesty, Maine Senior District Court Judge George Singal breaks free of the chains.  Via Brad Heath, Judge Singal eliminates the “middle man” in United States v. Shaun Wray.

wray Continue reading

The Supreme Court’s Attenuation Deficit Disorder

The outcome in Justice Clarence Thomas’ opinion for the 5-3 majority in Utah v. Strieff didn’t come as a surprise, but only because Andrew Fleischman called it.

The idea back then was that, when the government acted unlawfully, it should not benefit as a result. It’s the same basic reason that the government won’t let you use unlawfully obtained money to pay for your legal defense.

Then, somewhere along the lines, things got muddied. Suddenly, the exclusionary rule wasn’t about preventing the government from benefiting from illegal conduct. Instead, it was solely about deterrence.

This refers to Wong Sun and the “fruit of the poisonous tree” doctrine. Violate the Constitution and you don’t get to enjoy the benefits of illegal conduct. Not too elusive of a concept, but one that has fallen into disfavor because it lets the criminal go free. Who wants that? Continue reading

Good Bullet, Bad Bullet

At Empty Wheel, Marcy Wheeler notes that the government is withholding autopsy information that would reveal how many of the victims of the Orlando shooting died from “friendly fire,” bullets shot by police in their effort to take out the shooter.

Orlando’s police chief said that it was possible that some law enforcement officers — that might include the four who initially responded to Omar Mateen or the nine SWAT team members who later did — had (accidentally) shot Pulse patrons.

Monday, Orlando Police Chief John Mina and other law enforcement officers offered new details about the shooting, including the possibility that some victims may have been killed by officers trying to save them.

Faced with an active shooter and a room filled with innocent people, a tactical decision must be made by police whether to fire to attempt to end the threat, even though there is a likelihood that their bullets will strike an innocent and kill them.  There are times when this tactic makes sense, where the choice is between bad alternatives and the least bad alternative is chosen. There are times when it’s a tactically unsound decision. Continue reading

All The News That Fits The Orlando Narrative

Facts are what they are, provided they’re facts. They may support a narrative. They may not. They may introduce ambiguity that takes a good narrative and makes it squishy. That can’t be helped. They’re facts. Until the government gets its hands on them, whereupon facts become what the government says they are, for the sake of the victims.

In an interview with NBC’s Chuck Todd, Attorney General Loretta Lynch says that on Monday, the FBI will release edited transcripts of the 911 calls made by the Orlando nightclub shooter to the police during his rampage.

“What we’re not going to do is further proclaim this man’s pledges of allegiance to terrorist groups, and further his propaganda,” Lynch said. “We are not going to hear him make his assertions of allegiance [to the Islamic State].”

There has been remarkable in-fighting over what motivated the Orlando shooter.  Knowing who killed no longer suffices in addressing a horrific crime. What replaces banal concerns is who gets to claim credit for being victimized, which gives way to who gets a new law to protect them from victimization.  Or, as Attorney General Lynch says, “revictimization.” Continue reading

If Judge Persky Was Wrong, What’s Right?

Millions upon millions of people have opined that Judge Persky was wrong to sentence Brock Turner to 6 months incarceration.  Many have called for his removal from the bench because they found this sentence outrageous.

But what is the right sentence?  Bear in mind, there are five factors to be considered in fashioning a sentence.

  • Retribution (punishment)
  • General Deterrence
  • Specific Deterrence
  • Incapacitation
  • Rehabilitation

Within that framework, parsimony requires that a defendant be sentenced to no more than is necessary to serve those functions. Continue reading

The Anti-Indulgent Post About You

After writing more than 1500 words this morning, I decided to trash my horribly self-indulgent post and instead quote Orin Kerr.

I’ve come to the realization that people who disagree with me are just arguing in bad faith. How do I know? Well, when I get into an argument, no one who disagrees with me ever says anything I find persuasive. They never even come close. It seems to me that if a person who disagrees with me were smart and acted in good faith, surely he would say something that persuaded me (even if only a little). But since that never happens, people who disagree with me must be either stupid or acting in bad faith. I’m a generous person, so I won’t assume the other guy is stupid. And that leads me to conclude, reluctantly, that people who disagree with me are arguing in bad faith.

This was written in 2010. It’s gotten worse since then. More significantly, smart, well-educated people have given up thought for emotion, and then indulged their value system by pretending that it’s justified because they’re right and anyone who disagrees is not just wrong, but malevolent. Continue reading