Screw The Children; What About The Cops?

“You have to draw the line between your right as a citizen to privacy and a community’s right to live in a crime-free environment.”

“You can’t have them both.”

— Carrie Mills, International Brotherhood of Police Officers

When the flashbang grenade landed in Baby Bou Bou’s playpen, the Georgia SWAT team was ready with its excuses for why they had no choice:

Sheriff Terrell says the suspects are dangerous drug dealers who are known to be armed. Hence, the SWAT team, the no-knock raid and the flash grenade.

The “drug dealers are inherently dangerous and armed” mantra has been spewed for a long time now, reaching the point where it’s judicially taken for granted.  Drugs = danger, so therefore any measures that protect police in the heroic performance of their duty are acceptable.  No, more than acceptable, necessary. You can’t have police harmed, when all they’re doing is protecting society’s right to a crime-free environment. Continue reading

25 Years Worth of Creative License

If there was a list of tough gang-style rapper names to pick from, what would the chances be that the winning name would be “Tiny Doo”?  I mean, it just isn’t particularly manly, and worse yet, provides ample opportunity for potty jokes. Yet, that was the name under which Brandon Duncan rapped, and will be the name under which he could serve 25 years for being a gang killer.

Except he never killed anyone, unless you take this song too literally.  Via Gawker:

According to the San Diego County District Attorney’s office, Tiny Doo—real name Brandon Duncan—is a documented member of the gang that allegedly perpetrated the attempted murders. No one is alleging that Duncan fired a gun himself, bought the weapons, or was at the scene of the crime—that he had anything to do with the shooting at all, really. Continue reading

Not In My Court, They Don’t (Update x2)

The video of oral argument before the 9th Circuit in Baca v. Adams is making the rounds, and it is certainly worth watching for anyone interested in lying prosecutors and what happens to them.  Sidney Powell provides the story at the New York Observer.

In this case, the prosecution infected the case with false testimony–including by a prosecutor himself–over benefits given to a “cooperator” or a jailhouse “snitch.”

The entire program of “cooperation” is rife with problems. Prosecutors often put extraordinary pressure on the worst criminals, threatening not only them but their families. After completely terrifying the person who knows he will go to prison no matter what (because he really is guilty), the prosecutor then offers life-saving benefits, often secretly, in exchange for testimony against many less culpable “targets” of the government’s investigation.

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The Core Mission of a Traffic Stop

At Volokh Conspiracy, Orin Kerr discusses oral argument in the Rodriguez case, which apparently departed from its stated issue (how long after the completion of a traffic stop may a person be detained for the purpose of conducting a dog sniff).  Both Orin and I agreed that the only doctrinal answer was that upon completion of the traffic stop, there was no constitutional basis to continue to detain a person, and no further detention, even de minimis, could be permitted.

The notable aspect of the argument is that the Justices were more interested in the broad issue of how long traffic stops can last than the narrow question raised in the cert petition. I read the cert petition as raising a pretty specific question: When a traffic stop is over, can the government extend the stop for a dog sniff, and if so, for how long? The narrow cert grant posed a bit of a problem because the Supreme Court has said little about how long traffic stops can extend generally. Without a theory of how long stops can last generally, it may be hard to answer what to do with specific question of delays at the end of a stop. As a result, several of the Justices wanted a general test for how long traffic stops should extend.

Rodriguez’s counsel got caught short, not anticipating that argument would head in this direction.  It’s actually an excellent question and one that must be answered if there is to be given any meaning to when the traffic stop is done and the extension begins.  After all, the entirety of the stop can be easily gamed if the cop simply holds the driver’s license and registration until the dog arrives, whether that takes ten minutes or two hours.  Continue reading


When Washington State took the leap by establishing the first non-lawyer legal post, the Limited License Legal Technician, it was a huge step forward in providing a lower-tier resource for basic legal advice and services.  Indeed, it looked an awful lot like my proposed Legal Practitioner, with many of the same virtues of proper training and qualification.

As Bob Ambrogi notes in an article for the dead-tree ABA Journal (that would be the same one that asked for, then decided not to print, the article on mentoring that Dan Hull and I wrote), the first graduates of the LLLT course of study are about to hit the street.

Michelle Cummings looks forward to this spring, when she expects to take on her first law client. By then, the Auburn, Washington, resident will have completed her studies and taken the state licensing examination. Provided she passes, she will begin practicing right away. Continue reading

Just Another “Term of Art”

There is no one in Boston who believes that Dzhokhar Tsarnaev stands a chance of acquittal for his role in the Boston Marathon bombing, but that hasn’t stopped Judy Clarke, head of his defense team, from doing her job.  But as Judge George O’Toole struggles to find anyone who would qualify as an impartial juror, the ordinary expectations of who would be qualified to sit are coming under attack.

It’s not like this wasn’t anticipated, but Judge O’Toole decided to plow ahead and the parties have to live with the consequences of his foolishness decision.

If Dzhokhar Tsarnaev’s defense team wanted to prove that seating an impartial jury in Massachusetts was an impossible task, it could rest its case now. Over four days, the federal judge George O’Toole has interviewed more than three dozen potential jurors who were not eliminated after filling out a written questionnaire, and only a few have emerged as both apparently impartial and open to the possibility of voting for the death penalty, which they must be in order to be chosen to serve.

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A Bird In The Hand

If there wasn’t a West headnote for “giving the finger” before, there will be now.  The 2d Circuit in Swartz v. Insogna held that “a gesture of insult known for centuries” does not give rise to probable cause to arrest for disorderly conduct.  Oh, what the heck, Judge Jon Newman spelled it out: giving a cop the finger.

The case came before the 2d Circuit on appeal, having been dismissed by Judge David Hurd out of the Northern District of New York, where no such gesture had ever before happened. Much.  Judy Swartz was driving when her husband John saw Police Officer Richard Insogna doing a radar trap.

John expressed his displeasure at what the officer was doing by reaching his right arm outside the passenger side window and extending his middle finger over the car’s roof.

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An Execution in Jersey

Jermane Reid, as he exits the passenger seat as commanded, with hands in the air. is executed by Bridgeton Police Officers Braheme Days and Roger Worley.

As he exits, Reid says:

“I ain’t got no reason to reach for nothing, bro, I ain’t got no reason to reach for nothing….”I’m getting out and getting on the ground.””

Then, with his hands visible at shoulder height, Jerman Reid was executed.

Blame It On The Greeks

In 1975, I pledged the Alpha Rho chapter of Phi Kappa Sigma.  I can still recite the Greek alphabet five times on a match, and having been elected to the exalted position of Delta (bartender), I held the secret recipe of our fraternity beverage, The Blue Meanie.

It’s not that I was big on the whole brotherhood thing, but that I needed a place to live sophomore year and PKS had a pretty nice chapter house, Greentrees.

It is now the home of Pi Kappa Phi, as my fraternity was banned from campus in 1991 following an unfortunate incident.  But when I was there, we had some damn good parties and some great times.  Nobody realized at the time that this was horribly wrong. Continue reading

Order In The Court

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Eight people rose, one at a time, from the gallery of the United States Supreme Court to express disapproval of the Supreme Court’s decision Citizens United.  They were led off to face the consequences.

Kathleen L. Arberg, the Court’s public information officer, said eight individuals were arrested in Wednesday’s disturbance. Seven have been charged with violating a federal law against making “a harangue or oration, or utter[ing] loud, threatening, or abusive language in the Supreme Court Building,” as well as with violating two Court regulations.

Arberg said those seven, along with the eighth individual, were also charged with “conspiracy-related offenses” under District of Columbia law.

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Gutting The Rules: What Could Possibly Go Wrong? (Update)

As every lawyer is well aware from the gazillion solicitations that come via every conceivable means, there is an industry out there dedicated to taking as much of your money as possible whose claim is to make you fabulously wealthy. If it wasn’t for all those damn ethical rules that states impose on legal marketing.

So legal ethics lecturer and Avvo’s general counsel and vice president for marketeering business development, Josh King, urges a radical change:  it’s time to “gut” the ethics rules.

Get rid of most attorney advertising regulation.

Or more specifically, eliminate everything other than restrictions on false advertising and real-time solicitation. Our suggested advertising rules would look like this:

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The Color of Heroes and Villains (Update)

Few things resonate more than the Castle Doctrine, the right of a homeowner to defend his home and family from attack.  When it turns out that the invaders wear shields, the homeowner’s defense turns from an inalienable right to controversial.  So controversial that homeowner Marvin Louis Guy faces the death penalty for the killing of Det. Chuck Dinwiddie.  Had Dinwiddie not been a cop, Guy might have gotten a medal instead.

So when Dallas Horton’s shooting of Sheriff Louis Ross four times for kicking in his door  resulted in prosecutors declining to charge him, one would have expected some cheers for the rights of the homeowner against the police invaders.

The homeowner who nearly killed an Oklahoma police chief during a raid won’t face charges since cops busted the wrong house. Continue reading