Category Archives: Uncategorized

From Dry Foot To Wet Back

When my father bought a Volkswagen Beetle in 1967, my mother was furious. World War II was still fresh in people’s memory, and Americans, Jews, didn’t buy things made in Germany. We were supposed to hate them. The mantra was “Never Again,” and it was drilled into my head as a child.

But my father, who fought in the infantry in WWII, winning a Bronze Star and two Purple Hearts, told her the war was over. We won. It was time to move on. He wasn’t exactly ready to forgive the Germans for what happened, but he wasn’t going to let hatred guide his decisions forever.

Cubans who escaped Castro loved their island and hated his regime. America hated communism in general after World War II, and Castro was the communist in our backyard. It was completely unacceptable, and as the Cuban Missile Crisis taught us, the threat was real. We embraced Cubans who risked their lives to escape Castro unlike any other group of people.

Flotillas of Cubans braved death to escape, and our Coast Guard and regular people with boats saved them, brought them to our shores, where we took them in as refugees of a cruel communist dictator. Then the Mariel Boatlift happened in 1980, changing our perception. The Marielitos, we were told, weren’t just refugees, but Castro’s way of cleaning house, emptying his prisons and asylums and making them our problem. Continue reading

The Long March

On the one hand, a march is never a complete waste of time, as you get some exercise. On the other, it rarely does any more than create a spirit of camaraderie amongst the marchers, who often lock arms to show their solidarity and create great optics. We remember, and adore, marchers decades, even centuries later when their cause comes to fruition. We forget the marches that never went anywhere.

There will be a march on Washington soon, which has been denominated the Women’s March. The name may be something of an exaggeration.

Attending the “Women’s March on Washington” has not once crossed my mind. I could conjure up a multitude of reasons why, but will raise what I consider to be most significant: In this event black women are merely peripheral interlocutors for what are supposed to be women’s rights and human rights writ large. There is a long history of black women being overlooked by, excluded from and co-opted into events that profess to be for the benefit of all women but that at their core almost exclusively benefit middle class, straight, white women (á la All the Women Are White). Continue reading

The Magical Doctrine of Qualified Immunity

Lawyers are regularly put in the awkward position of explaining to a client why an idea that strikes the client as eminently reasonable won’t work. There’s no law, we say, to support such an argument. Every once in a while, we get smacked for sound advice: but what about qualified immunity for police, the client responds. And they’re right.

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point.

University of Chicago lawprof Will Baude argues that QI is unlawful. This comes at the same time the Supreme Court issued a per curiam opinion in White v. Pauly, which Greg Doucette contends is the Court’s way of telling us the QI exception has just swallowed the rule.

As every lawyer is taught in law school, each case is unique and “rises or falls on its own merits.”  Meaning, in practice, any trial or appellate judge even remotely inclined to protect bad police from the consequences of their bad decisions can easily distinguish any given case from all prior precedent sufficiently to avoid finding a “clearly established” right. Continue reading

Forfeiting Ferraris Fine, Second Circuit Says

What is it about Ferraris? Cops love them. Too much. Sure, they’re “supercars,” and very expensive, though the relative value of a Ferrari to its owner is likely far less than a Toyota Corolla to a working guy without a dime in the bank who needs that car to get to work to feed his kids. And it’s not like they’re really rare, especially not on Long Island.

None of this matters to James B. Ferrari, who was driving his Ferrari Modena coupe at speeds up to 100 mph when he was nabbed for drunk driving.

The Second Circuit US Court of Appeals upheld the government’s confiscation of James B. Ferrari’s Ferrari in a ruling last week. Officials in Suffolk County, New York had grabbed the 2003 Ferrari Modena coupe, valued at $95,000, after Ferrari was stopped and accused of driving under the influence of alcohol (DUI) on May 26, 2009.

A police officer saw the Ferrari allegedly reaching speeds over 100 MPH on South Country Road in Bellport. Ferrari was arrested and his Ferrari confiscated under the state’s drunk driving statute. Ferrari’s attorney argued the Due Process clause of the Constitution required the exotic automobile be returned after his client posted a bond — at least while the charges were being litigated in court. At that point, Ferrari had not be found guilty of any crime. Ferrari’s attorney insisted that it was the county’s burden to prove the seizure was the only possible remedy to the situation, and a judge and jury both agreed. They ordered the county to pay $95,000 to Ferrari to compensate for the loss of his automobile.

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A Prosecutor’s Privilege

Caleb Mason was making the point that good papers matter. It’s a point that’s been made before, but bears repeating.

You can win or lose a case based on the quality of your written submissions to the court—from pretrial motion practice through trial, post-trial motions, and appeal.  I can’t exaggerate this point:  courts notice good work product.  It must be cleanly argued, compliant with formatting and length rules, properly cited, supported by declarations, and directly on point.  Many judges, especially in state court, see a steady stream of written filings that are, in a word, half-assed.  Producing a high-quality piece of legal writing takes time, effort and skill.  We take pride in our written work at Brown White & Osborn LLP.  We don’t submit sloppy, half-baked briefs.  Good writing gets results.

If that firm name sounds familiar, it should. But Caleb’s point isn’t funny or snarky, and there’s no mention of taint or ponies. Producing excellent papers can make the difference, and it’s absolutely critical and worth the effort. But then, that’s the defense side, because we’re invariably at the bottom of the mountain fighting our way to the top. The prosecution, on the other hand, expects to win, so why bother putting in good papers?

After Caleb did his voodoo, and the prosecutor came to the realization that he was about to lose on an actual innocence motion, a nearly impossible motion for the defense to win, privilege kicked in. Continue reading

@TheFIRE Under #DearBetsy

That candidates for office served as criminal defense attorneys has long been a smear, enjoyed by their adversaries to tie them to an ignorant public’s belief that defending criminals aligns them with the commission of crime. No matter who is targeted by this slime, it’s a lie, unworthy of acknowledgement and demanding condemnation.

A variation of this theme was hurled at the nominee for Secretary of Education, Betsy DeVos. No, she wasn’t a criminal defense lawyer, but she did something that could play into the hands of the ignorant. She donated $10,000 to FIRE.

Republican megadonor Betsy DeVos has given thousands of dollars to an advocacy group that is seeking to overturn an Obama administration policy that made it easier to discipline college students accused of sexual harassment or assault.

The donations, totaling $10,000, by Donald Trump’s Education secretary pick have prompted criticism from Democrats and women’s groups in the run-up to her confirmation hearing next week.

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A Flash Bang Too Far

As Lou Hayes explained at Fault Lines, SWAT raids don’t have to be violent paramilitary adventures, even though the alternative would be “boring.”

What got us to the point where the surround-and-callout as a default tactic rather than the stereotypical “raid” entry? The research on human decision-making under stress. We learned how our own bodies and minds reacted to compressed time, fear, confusion, smells, noise, anxiety…as I had been affected on my first raid.

But what about the acute stress and fear we caused in those inside the homes we raided? How about waking up a family at 4:30 a.m. from a dead sleep? Could we expect the best decisions (think: compliance) from them? Or were we inadvertently putting them into a state of primal, animalistic, reactive, survival-mode decision-making too?

Does this seem remarkably obvious, that the shock, confusion and adrenaline could make for poor choices all around, putting everybody at risk? And yet, Lou suffers the slings and arrows of his fellow cops for suggesting that everyone survive the day rather than just the cops. Or more to the point, that this may well prove safer for the cops, even if there is a risk of losing some evidence down a toilet. Continue reading

Sessions And The Previously Unprotected

Senate confirmation hearings are a staged show, as should surprise no one. The nominee is prepared and those senators on his side of the aisle lob softballs at him designed to let him hit them out of the park. If the other side opposes the nominee, it tries to throw screwballs, designed to make him swing and miss. The hope is that he will swing wildly and say something so embarrassingly foolish that it will shame other senators into turning away.

Jeff Sessions’ confirmation hearing, thus far, went according to script with the Republicans. As for the Democrats, the New York Times was terribly disappointed.

During the hearing, Republicans were ready with lavish praise and defenses of his character against charges of racism, while Democrats rarely offered more than tepid and predictable criticisms. Meanwhile, outraged protesters repeatedly interrupted the hearing with denunciations of Mr. Sessions and Mr. Trump before being dragged out by Capitol police officers.

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Puppy Bowl

At Volokh Conspiracy, David Post writes about the sudden appearance of dogs on planes.

I have taken a number of airplane trips over the past month or so, and I noticed, on each of the flights I took, that there were dogs on board — not in carriers, but sitting on the laps, or in the arms, of their owners. It struck me as odd, and now, thanks to an interesting and informative article by Karen Elliott and Rebecca Lightle in The Washington Post a few weeks ago, I have an idea about what’s going on.

How he was unaware until a few weeks ago, or later if he just read the old post, of the comfort critter phenomenon is a question that only he can answer. It’s not like it hasn’t been mentioned before. But the “sudden” pervasiveness of comfort animals on planes gives rise to an epiphany. Continue reading

Andy Cuomo Starts His Run To Be The Next President

He’s got problems. He’s not black. He’s not Muslim. He’s not undocumented. He’s not transgender, or even gay from what we can tell. And he doesn’t have a vagina. He lacks every apparent qualification necessary for nomination by the Democrats. But that won’t prevent Mario’s boy from doing everything he can to achieve what his father couldn’t. New York Governor Andrew Cuomo has begun his run for the presidency.

Delivering the first of six State of the State addresses planned around the state this week, Gov. Andrew M. Cuomo on Monday located the cure to the nation’s political fever in New York State, implicitly offering himself as an antidote to a president-elect whose name went unmentioned.

“New York knows that our progressive principles of acceptance and diversity are not the enemy of our middle class, and we know that middle-class success is not the enemy of our progressive beliefs,” he said. “In fact, it was the progressive policies that created the nation’s middle class in the first place.”

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The Problem With Jeff Sessions

Senate confirmation hearings will begin today over the nomination of Jeff Sessions, of all people, as Attorney General of the United States. This makes some people who are concerned about criminal law reform and civil rights angry. It’s understandable, as Jeff Sessions represents none of the qualities in an AG that we would hope for. But what did we expect? Did anyone seriously think Trump was going to nominate Ramsey Clark?

Will Sessions be as awful an AG as anticipated? Maybe. Maybe not. There are issues that should, under other circumstances, make his confirmation hearings contentious, such as his omissions on his disclosures, not to mention the same reasons why the Senate refused to confirm him as a federal judge. They will be raised. Sessions will be confirmed anyway.

And Sessions will join a group of others who served in the office of Attorney General. Like Dick Thornburgh, John Ashcroft and Alberto Gonzalez. Remember them? They sucked, each and every one of them, if your concern was criminal law reform and civil rights. But it’s not just that we survived them, but that there was neither shock nor surprise that conservative presidents appointed conservative attorneys general. It’s what they do. It’s what they were expected to do.

If you want someone to be angry about, furious about, you’re looking at the wrong guy. Don’t blame Trump for nominating Sessions. Don’t blame Sessions for being Sessions. If you want someone to blame, blame Eric Holder. Blame Loretta Lynch. Blame Barack Obama. Continue reading

Teaching The Bottom Of The Lawyer Barrel

For a brief and shining moment following the crash of 2008, there was talk of reform of legal education. There were some efforts made, such as the opportunity to complete school in two rather than three years. There were claims aplenty of law school turning out “practice-ready lawyers.” And there were academics decrying the dumbing down of law schools to trade schools.

It was all a big steaming pile of crap.

Nobody wanted the two-year grads. Even with clinical programs, externships and whatever pedagogical-sounding programs they dreamed up at faculty teas, new grads were hardly “practice-ready.” And as the prestige, and more importantly, the job opportunities and salaries for new lawyers outside of the smattering of biglaw jobs that remain following the retrenchment, dwindled, schools couldn’t even turn out graduates capable of passing the bar.

Then there were the Access to Justice fantasists, for whom an iPad would inexplicably make new lawyers capable of providing legal services at dirt-cheap rates while earning enough to eat that night. It was all so very social justice-y, and absurdly insane.  Continue reading