Act Like You’ve Been There Before

My fellow curmudgeon, Mark Herrmann, offered a bit of worthy advice in his column at Above The Law.

If you’ve really got it, then you don’t have to flaunt it.

Shamelessness has become a national pastime.  Not only do people feel no shame whatsoever for flagrant self-promotion, but they similarly feel no shame about puffery, overstating their worth.  Often grossly overstating their worth.  Like the Super Blogger and her team of blogging rockstars, the absurd hyperbole seemed so obvious that it was unworthy of mention. Yet, some commenters took it seriously enough to point that it may not be true. You think?

Herrmann noted that it was unnecessary to go on at length to explain how someone who is truly renown needs to prove it.  Larry Bird was his example.

In other words: “I’m Larry Bird. Yes, that Larry Bird.” ‘nuf said.

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The Ram Has Touched The Wall, And St. Louis Cops Are Mad About It (Update)

In Latin, the phrase is “murum aries attigit,” which just happens to be my buddy Marco Randazza’s personal mantra.  It’s from Caesar’s Commentaries on the Gallic War:

Caesar described the principle of “murum aries attigit,” which literally means the “The Ram Has Touched the Wall.” It referred to a Roman policy: surrender would be accepted before—but not after the battering ram touched a enemy’s city walls. Wikipedia explains the purpose behind the policy well: “The policy was to act as a deterrent against resistance to those about to be besieged. It was an incentive for anyone who was not absolutely sure that they could withstand the assault to surrender immediately, rather than face the possibility of total destruction.”

As it happens, there is a football club called the Rams, and they happen to be based in St. Louis, Missouri, not far from a place called Ferguson.  Some of the players on that team expressed their thoughts on recent happenings in Ferguson.  Five St. Louis Rams players entered the field in protest, with their “hands up, don’t shoot.” Continue reading

True Enough Threats

The Supreme Court will hear oral argument today in Elonis v. United States, testing the scope of the First Amendment when words that certainly sound like true threats are made on Facebook by a man after his wife left him.  It’s an ugly fact pattern, offering such social media gems as:

Exhibit 12 in the government’s case against Anthony Elonis is a screenshot of a Facebook post he wrote in October 2010, five months after his wife, Tara, left him. His name appears in the site’s familiar blue, followed by words that made Tara fear for her life: ‘’If I only knew then what I know now . . . I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.’’

If this strikes you as too prospective, try this one instead:

‘’There’s one way to love ya but a thousand ways to kill ya. I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts’’

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You and What Army?

“But they can’t do that?!?”

Well, yes and no. Perhaps legally and ethically, they’re not supposed to be able to do that, but there is a reason Alexander Hamilton called the judiciary the “least dangerous branch” in Federalist 78.  A straggler offered a comment to my post about the Ferguson Lie:

But again, as one poster pointed out, wasn’t he under extreme pressure by the African-American community to prosecute? And because he knew the evidence would not substantiate the claim that Wilson murdered Brown, he chose to present the case to the Grand Jury to in fact “be fair”? Or more probably, to pass the buck so that he would not receive the lion’s share of the wrath of the locals because he didn’t prosecute?

One poster?  Math challenged is nothing to laugh at, but what else could I do?

Is there a reason why repeating the same thing over and over is necessary? There is no exception that allows him to present to the grand jury do appease public pressure. “But he did it?” Yes, he did. “But, but, but…” Continue reading

Inquiring Minds Want To Know: Was Tamir Rice’s Postman’s Neighbor Mean? (Update)

At the top of the story is a parenthetical, meant to calm the cries of foul for the story after it hit social media and was excoriated for it.

(Update: A line has been added to this story to give insight into the motivation to investigate the parents’ background)

The story is all about Leonard Warner.  Yes, that Leonard Warner.  Who, you ask?  Why, Leonard Warner. Have you been hiding under a rock?  You know, Leonard Warner.  Of course, if you’re the sort of person who doesn’t seek legal advice from past episodes of the Kardashians, the name may not mean much to you.  That’s because it shouldn’t. That’s because the name is utterly irrelevant to anything whatsoever.

And that’s why inserted the explanatory parenthetical.  And that’s why thoughtful people everywhere ripped a new one for having posted the story.  It’s not merely outrageous, but feeds the public ignorance by suggesting that it matters and is worthy of space. Continue reading

Forget Super Lawyer. What about Super Blogger?

Among the many things I’ve learned from twitter, almost everyone there is far, far more important than me.  I read the bios of some of the people who follow me, and learn they are all bloggers, aspirational speakers, available for concerts and, in a surprisingly high number, rock stars.

I know! Rock stars are following me! No, I have no clue why either. I’m just a lawyer.

In the email the other day, I received a guest-posting pitch, which I would normally delete like the other dozen I get every day.  For no particular reason, I took a look, and boy was I glad I did.  This wasn’t from the usual desperate writer or gal from Bangalore trying to eek out a buck.

Hi Scott,

Just a quicky. Your blog excites me! it’s a great looking and well kept blog. Unusual these days! Continue reading

Police Shootings: The Worst Discretion Wins

Some police departments have established rules for when officers can unholster their sidearms.  The concern is that a time may arise when a cop should have, but didn’t, draw his gun because of the rules. The concern is that the cop may be killed for following the rules.

No one wants a cop killed, especially his department. So the New York Police Department, which has a Patrol Guide big enough to choke a carriage horse, dealing with everything from the tilt of a cop’s cap to his nose hair, has no rules as to when a cop can draw his gun.

There are some New York City police officers who can count on one hand the number of times they have drawn a gun, even over decades on the force.

Then there are the officers who patrol the city’s 334 public housing complexes. There are about 2,350 uniformed officers in the department’s Housing Bureau, about 1,825 of whom are rank-and-file police officers.

To some of them, drawing their guns, even with no present threat, is routine, a practice borne of habit or some internal gauge of an encounter that might go bad. And their bosses, unlike some police commanders around the country, permit it.

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You’re Ugly And You Dress Funny Too

There is no shortage of assertions that the harm suffered by words is real, so much so that those contending that hurtful words must be criminalized are no longer expected to explain why. It’s understood.  Thus, an intermediate appellate opinion out of Iowa discussed by Eugene Volokh either reflects  a return to sanity or an abomination, according to which side you take.

The facts are somewhat interesting, at least for those of us who were unaware that there are so many young women who go by the nickname “T-bitch” that it creates confusion.

On February 20, 2013, three high school classmates got off a school bus on the way home after school. After exiting the bus, D.S. yelled, “T-Bitch,” to get the attention of her friend T.B. The victim in this case, also having the initials T.B., thought D.S. was yelling at her so she turned around and said “what?” to D.S. D.S. replied to the victim, “I wasn’t talking to you, you fat, skanky bitch. I’m way better than you and prettier than you, and I’m not desperate like you to sleep with the bus driver.” The victim replied, “I don’t care about looks, at least I have a heart.” D.S. and the victim were approximately ten feet from each other during this exchange.

D.S.’s friend than approached D.S. and said, “let’s go.” The two left the scene and went to D.S.’s house. The victim was hurt by these words and went home and cried, reporting the incident to her mother.

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When Did You Stop Beating Your Wife?

The fact that professional football players are idealized, not to mention paid a far better salary than they are likely to get in any non-sports related occupation, it’s perfectly understandable that the public would focus, and focus hard, on such outrageous misconduct as Ray Rice sucker punching his fiancé (later wife) in an elevator.  And it’s similarly understandable that the NFL come under severe negative scrutiny for trivializing it until a very bright light was shined on its callousness.

So what explains cops? Conor Friedersdorf explains:

And there is another American profession that has a significantly more alarming problem with domestic abuse. I’d urge everyone who believes in zero tolerance for NFL employees caught beating their wives or girlfriends to direct as much attention—or ideally, even more attention—at police officers who assault their partners. Several studies have found that the romantic partners of police officers suffer domestic abuse at rates significantly higher than the general population. And while all partner abuse is unacceptable, it is especially problematic when domestic abusers are literally the people that battered and abused women are supposed to call for help.

There is an old “joke”:  Continue reading

Dead Wrong About Tamir Rice

When news of the killing of 12-year-old Tamir Rice broke, I tried to be the honest broker I aspire to be.

Tragic outcomes don’t necessarily mean wrongful causes.  Sometimes a tragedy occurs and there is no one to blame. This may be one of those times.

No.  This was not “one of those times.”  I was wrong. Dead wrong. Tamir Rice was executed.

I was impressed by the way in which the police appeared to immediately “come clean” with the details of the shooting, with the disclosure of the 911 recording that showed that they were open to criticism, and yet gave it up anyway.  These suggested to me that the police narrative, messy as it was, rung true.  And so, I gave the police the benefit of the doubt.  I was wrong.

This surveillance video of the killing of Tamir Rice surfaced yesterday. Continue reading

The Ferguson Model of Grand Jury Love

Embracing the Ferguson model, prosecutors will hereinafter represent the defendant in the grand jury. That is all.

Twit, 26 November, 2014, 9:11 a.m.

There was the  process.  There was the evidence. There was, unexpectedly, a synergy of the two.  It was not only theatre to appease the critical demands of the angry locals, but one carefully orchestrated to make sure that there would be standing ovation at the end.

Many have scratched the surface of the grand jury proceeding that returned no indictment of Darren Wilson for the killing of Michael Brown, concluding that it was a sham, never meant to indict but to create the show that quiets the maddening crowd. They think this is an epiphany.

Others have noted that this isn’t lawful, as the prosecutor can’t present a case to the grand jury in which he doesn’t believe, and to do so only to silence demands is unethical (they call it unlawful, but they must be forgiven such minor imprecision). As was already noted, we are a lazy and ignorant people when it comes to the processes of government.  Perhaps naïve should be added to the list. Continue reading

The Natural, Yet Ridiculous, Next Step In Affirmative Consent

A pervasive problem in discussions about rape and sexual assault is that the words are thrown about with reckless abandon.  When words are untethered to definitions, it’s impossible to know whether it’s a forcible gang rape or an undesirable guy on the street saying “hi.”  The flavor du jour is affirmative consent.

Aha! Finally, a word with a deeply rooted definition in law: Consent.  Consent is knowing, voluntary and intelligent agreement. A bill has been introduced in the New Jersey legislature to put this to the test:

Earlier this month, state Assemblyman Troy Singleton (D-Burlington) introduced the bill (A3908), which would create the crime of “sexual assault by fraud,” which it defines as “an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not.”

The impetus was a woman, Mischele Lewis, who was scammed by a guy, to the tune of $5 grand. Not nice at all, but problematic as crimes go since she gave him the money because he lied to her.  While this seems as if it should be covered by New Jersey’s version of larceny by false pretense, prosecutors apparently couldn’t make it work.  Continue reading