Category Archives: Uncategorized

The Incredible, Edible ACLU Chimes In

In the “early days*” of body cams, there were mostly voices proclaiming how they would be the magic bullet that changes everything. After all, seeing is believing, and we would now be able to see what really happened rather than rely upon the police version. The defendant, assuming he survived to tell his side, was never credible, because “why would a cop lie”?

The body cam showed that they do. Asking “why” is a fool’s errand, though so many people fixate on it to “understand” how their belief system could be so badly screwed up. No matter. The “why” can launch a thousand law review articles. In the courtroom, we worry about the “what,” and video showed us what really happened.

Except a few of us didn’t stop at screaming “yay” at the magic bullet that would change everything, realizing that there were issues, problems, that would come of this. Radley Balko was one of the wet blankets who sucked some of the joy out of the magic. I was another.

When it comes to missing video, the question is whether this is best addressed by a presumption designed to overcome the gap of responsibility, or as a remedy for wrongdoing in the management of the video by the police. As the police video lies entirely within the control of cops, and as an incentive to do everything possible to assure that evidence that shows what transpired exists, the contract analogy is more properly the basis for the presumption than the good faith analogy.  We aren’t punishing the cops for tech failure, but requiring the police to do whatever is necessary to assure that evidence of police/public encounters is recorded. Continue reading

Don’t Hang Michael Slager

The jury foreman, the only black person on the jury, got right to the point: “It’s just one juror that has the issues.” His note was to tell Judge  Clifton B. Newman that the jury was deadlocked. Hung is what we call it. They were hung on Slager’s killing of Walter Scott. How could this be possible?

But confusion reigned in the courtroom as the jury wavered about whether it was hopelessly deadlocked about the killing, which was recorded on video and became a symbol of the nation’s heated debate about race and policing.

Slager’s lawyer, Andy Savage, did his best to present a defense that Slager feared for his life. It’s the go-to defense for cops, although there is an industry dedicated to manufacturing excuses for cop shooting with some tricky explanations available to police and no one else. But Savage stuck to the tried and true Graham v. Connor defense.

Mr. Slager, whom North Charleston fired after the shooting, testified that he had become involved in a physical struggle with Mr. Scott over his Taser device, leaving him in “total fear” and causing him to open fire in a lot behind a pawnshop in the city of about 108,000.

“He didn’t shoot him because of the brake light,” Andrew J. Savage III, Mr. Slager’s lead defense lawyer, said of the former officer during his closing argument. “He shot him in fear of his life.”

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Really? Yes, Really, You’re Part of Your Problem

The title to the op-ed stands in contrast to the substance, as the former is the sort of insipid snark favored by children in response to a serious question.

Really, You’re Blaming Transgender People for Trump?

The content, on the other hand, is far more thoughtful.

I wanted to hear Hillary Clinton’s concession speech, but she was late to the podium. On TV, a commentator speculated that Mrs. Clinton had lost because of her party’s focus on things like trans rights — “boutique issues,” they were called.

A boutique — a place where you’d shop for, say, artisan pantyhose — is not the first place I’d associate with an individual’s quest for equal protection under the law, but then what did I know? I was now one of the people from whom the country had been “taken back.”

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The Downside To A Public Defender’s Principled Position

Orleans Chief Public Defender, Derwyn Bunton, took a chance when he made the painful decision to take no more cases than his lawyers could competently handle.  He was sued by the ACLU for his efforts, but Judge Arthur Hunter made the decision to free unrepresented defendants rather than blame Bunton for the state’s intransigence in funding indigent defense.

New Mexico’s Chief Public Defender Ben Bauer wasn’t so lucky.

A Lea County judge this week found the state’s chief public defender in contempt for failing to provide lawyers for indigent defendants and imposed a $1,000 fine in each of five criminal cases in which the cash-strapped Law Offices of the Public Defender failed to enter an appearance.

The judge’s action, described by the state Public Defender Commission chairman in a letter Tuesday, represents the clearest consequence yet of a funding crisis that the agency and the courts have been warning lawmakers about for years as the governor and the Legislature slashed state budgets in the face of declining revenues.

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Because Everybody Loves Lists?

Is it fair to characterize an academic as “dangerous”?  Of course it is. These are supposed to be the grown-ups in the room, responsible for teaching something to impressionable young minds. Many of them abuse their position by using it to indoctrinate their students to their politics.

Many make their grades, and therefore their futures, contingent on the students accepting, or at least spewing back, their political fantasies. They do so under color of academic freedom, as if teaching a course on the anatomy of tree frogs includes the authority to demand that students admit to their racist white privilege and sit silently in the back of the classroom so that they don’t impair the rights of others to express their deepest tree frog feelings about being marginalized.

But make a list? Continue reading

Illegals: Law, Language & Policy

The name “Sanctuary Cities,” which has been absurdly borrowed by Sanctuary Campuses because college administrators adore meaningless words and realize their frightened students are so utterly clueless as to substance that they could tell them anything and the dumbass kids would believe it because they so desperately want to, is where it starts.  We’re so wrapped up in empty words that it’s unclear what words are “permitted” to describe the nice folks who benefit from sanctuary cities.

Are they undocumented aliens? Illegal immigrants? Would they give a damn what they were called if they could be left alone and not deported? Those who obsess over the words tend not to be the nice folks trying to stay below the radar, but their privileged champions who believe that if you don’t call them “illegals,”* people will like them better and not notice that they’re here illegally. Will it work? Beats me. A lot of people seem far more concerned these days with words than substance.

But here’s the part that teary-eyed advocates prefer not to discuss: These are people who have entered or remained in the United States illegally. They’re not bad people because of their nationality. They’re not bad people because they commit crimes once here, though some do while others don’t. But they have violated immigration law. They are here illegally. Get over it.

That has nothing to do with the policy implications of what to do about people here illegally, but that they are here illegally is beyond dispute. Conflating the policy question, whether deporting people, forcing them to hide, denying them benefits such as education and health care, or turning a blind eye to their immigration status when providing “privileges” such as a driver’s license, is an entirely different matter. It doesn’t change the fact that they are in the United States in violation of federal immigration law. Continue reading

The Unreasonable Expectations Of Authority

It was Frank Robinson at ESPN who said that close only counted in horseshoes and hand grenades, but then, he wasn’t a judge, so what did he know? Of course, that was before the Supreme Court decided Heien and gave us the reasonably stupid cop rule. And Arizona has more than its share of reasonably stupid cops.

TaRaHawk von Brinken sued Tucson police officers James Voss and Richard Legarra in June 2014, claiming they unlawfully arrested him after he refused to show Voss his driver’s license.

Von Brinken claimed he was driving behind a friend when Voss pulled the friend over into a bowling alley parking lot. Von Brinken followed and parked in the same lot, away from Voss and his friend’s vehicle.

It’s not that von Brinken did anything wrong, even a traffic infraction. It’s not that the cops pulled him over, even though they pulled over his friend whom he was following. Nonetheless, the cops did as cops are wont to do, demand his papers. Continue reading

Regulating The Fake News Marketplace

If libertarians see the marketplace as the solution to all evils, progressives see regulation, and Harvard lawprof Noah Feldman is their apologist.* He proposes that fake news may not be protected speech. In fairness, the notion has surface appeal, because who would possibly champion fake news?** Who wouldn’t agree that we deserve better than deceit?

The piece, by the journalist Jessica Lessin, argued that Facebook should not be expected to accept the type of fact-checking responsibilities that some critics say should come with being the dominant news aggregator.

“No matter how many editors Facebook hired, it would be unable to monitor the volume of information that flows through its site, and it would be similarly impossible for readers to verify what was checked,” she wrote.

Who is this woman brave enough to come forward in Facebook’s defense?

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Fault Lines: Law Student Division

So you don’t have ten years in the trenches? You’ve got no war stories to tell, no experiences to share, no depth of knowledge that puts the law in context? We now have a place for you at Fault Lines.

If you have a sincere interest and appreciation of criminal law, have the chops to produce good writing and the willingness to commit to hard work, there may be a place for you at Fault Lines. We want you on the JV team, the practice squad, the developmental team, where you can put your interests and efforts to good use.

Between re-instituting our Daily Links, writing blurbs on interesting stories and cases that would otherwise not make it onto the front burner, you can contribute to the cause of making people more knowledgeable about criminal law. If that piques your interest, then let me know. You might be able to join some of the smartest crim law writers on the internet, not to mention a few federal judges, as part of Fault Lines. Plus, you get to hang out with some pretty cool people who can teach you a thing or two about what real criminal law is all about.

Taser’s Body Cams Extra Special Feature

Albuquerque police have issues.

The most famous recording of Albuquerque police in action shows them shooting and killing a homeless man — a shooting that began as a normal rousting for the crime of “illegal camping.” From there, the police turned it into a “standoff” with a cooperative person unsure of which direction to move next out of the very justifiable fear of being shot.

This was just another in a long line of killings by APD officers, not many of which were captured on video. The DOJ issued a report stating that a “majority” of shootings by the city’s police officers were “unreasonable and violated the Fourth Amendment.”

Ain’t that DoJ great, reporting that the shoots are bad? It’s a shame they’re never around before the cops wrongfully kill people, dealing with the known problem until after the blood is cleaned up, but hey, who doesn’t love a report afterward confirming what everybody knew? Yay, feds! But I digress. Continue reading

The “Regular Guy” Goes To Washington

Larry Tribe called him “constitutionally clueless,” which is a fair and alliterative reaction to the president-elect’s latest dictate by twit:

Without needlessly delving into the obvious, Texas v. Johnson held that desecretion of the flag is protected speech, and there is no remedy of “loss of citizenship.” The kings of old might have been able to banish undesirables from the land, but the president cannot.  Even the venerated Scalia, who was no fan of flag burning, realized that presidents don’t get to wear the crown of feelz.

scaliaflag Continue reading

California Lawyers Dreaming (About Sex With Clients)

There are plenty of nice people out there, and maybe even one or two who might want to have sex with you (for free). Find them. Go and search. But leave your clients, their wives, husbands, sons and daughters alone. This makes some California lawyers sad.

The nation’s largest state bar association is overhauling ethics rules for attorneys for the first time in 30 years, and some lawyers are unhappy about a proposal that would open them up to discipline for having sex with clients.

California currently bars attorneys from coercing a client into sex or demanding sex in exchange for legal representation.

Yes, that would be the same California that championed the affirmative consent approach to collegiate sex, even though they had no clue what it meant, So what? It’s sex, and when it comes to sex, one can never be too cautious and harsh. Except when it comes to lawyers. Continue reading