Radley Balko presents this find by Andrew Sullivan, from a 1990 decision by 9th Circuit Judge Alex Kozinski.  Sullivan repeated it. Balko repeated it.  I repeat it too. 

Defendant relies heavily on the fact that Duran was making obscene gestures toward him and yelling profanities in Spanish while traveling along a rural Arizona highway. We cannot, of course, condone Duran’s conduct; it was boorish, crass and, initially at least, unjustified. Our hard-working law enforcement officers surely deserve better treatment from members of the public. But disgraceful as Duran’s behavior may have been, it was not illegal; criticism of the police is not a crime.

[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers…

The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state…

Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.

Inarticulate and crude as Duran’s conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-in. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech–such as stopping or hassling the speaker–is categorically prohibited by the Constitution…

No matter how peculiar, abrasive, unruly or distasteful a person’s conduct may be, it cannot justify a police stop unless it suggests that some specific crime has been, or is about to be, committed, or that there is an imminent danger to persons or property.

Some people possessed of less than thoughtful rightwing political ideology think this is some silly liberal construct.  Others suggest, as Lou Dobbs did last night, that we have elevated the rights of jerks at the expense of the rights of our police, who are there to protect and serve us. 

But this is no liberal plot, as Judge Kozinksi has yet to make it to any of the clubhouse meetings, and wouldn’t get in anyway since he doesn’t know the secret handshake.  Dobbs, whose stint on CNN only makes sense in light of the fact that Rick Sanchez is on the air, is confused as always.  And citizens retain those rights they have not given up to the government.

This cannot be made clear enough: Hurting a police officer feelings by saying mean things to him, being uncooperative, even belligerent, making obscene gestures, berating the officer, even dressing his mother in imaginary army boots, is not a crime.  It’s not necessarily the smartest thing to do, but it is not a crime.  It’s not.  No, it’s not.  It’s just not a crime.

And you officers reading this (and I know you do), suck it up. 

There once was a day when Martindale-Hubbell was the undisputed king of resources when it comes to getting the low-down on lawyers.  They sold books.  Big brown books.  Really big, and a lot of them.  Big firms would buy the complete set every year.  Small firms would sneak into the libraries to read the books big firms had, or better still take the books from the year before that big firms tossed out and make it look like they were rich enough to buy the full set.

But M-H was the rock of Gibraltar.  That was when people used books.  As books fell out of favor, so too did Martindale-Hubbell’s very substantial revenue stream.  Still, M-H had one thing that no one else could offer.  The rating. 

The rating consisted of two parts.  The first, the general ethical rating, was reflected in the letter “V”, for “very high.”  If you didn’t get a “V”, you didn’t move forward.  There was no other rating than “V”.

The second part reflected ability:

Legal Ability Ratings are:
C – Good to High
B – High to Very High
A – Very High to Preeminent

Getting a CV rating is tantamount to saying that you’re ethical but incompetent.  A BV was an embarrassment.  An AV rating was expected of any half-way competent lawyer.  It may not have assumed skill, but it reflected what was purported to be a peer-reviewed assessment of your lack of incompetence.

Whether the ratings were legitimate is subject to dispute, but they were certainly perceived as legit, and that’s all the really matters.  It was this perception that made M-H matter; any fool could list a bunch of lawyers, but nobody else could offer a peer rating that would be accepted throughout the profession as the minimum standard of competence.

When one obtained an AV rating, it would appear next to your name in the big brown books that M-H sold to big law firms.  The books contained the name of every lawyer in the country, together with basic biographical information, even if the lawyer didn’t pay for a nice firm “biography” in the white pages, the M-H version of an advertisement for lawyers who would never consider such a thing.  If you were rated, it was in there.

Now M-H runs a website called lawyers.com.  It’s a great url, since it has all the right words.  On that website, M-H lists all the lawyers it knows about or cares to include.  I’ve found some who should be there but aren’t, and I assume that M-H has gotten lax in its standards.

When you search for a lawyer on lawyers.com, you may or may not find out that the lawyer is rated.  The absence of a rating on lawyers.com doesn’t mean that the lawyer doesn’t have a rating, but rather that the lawyer hasn’t paid $59 to M-H to have her rating posted next to her name.  It’s safe to say that it doesn’t cost M-H $59 to add the rating to the name, so I’m constrained to assume that it’s a mechanism for increasing revenue.

Martindale-Hubbell has put its ratings up for sale.  Perhaps not to obtain a rating, though I once pushed a M-H salesman into giving an associate an AV rating when all he had was a BV if he wanted me to consider paying to be in the Bar Register of Preeminent Lawyers (as if most criminal defendants cracked it open in search of counsel), but to make it matter.  If no one knows you have an AV rating, then you effectively don’t.

Old time lawyers take a small amount of pride in their AV rating.  When we served as “peers” to review others, we took it seriously and tried to be as honest as possible, even to the point of being fair to people we despised.  A rating wasn’t nearly as meaningful as being able to win a case, but it beat the crap out of having a BV, or (God forbid) a CV, next to your name.  We thought of the ratings as a something above and beyond a commodity.  While M-H managed it, the rating came from us, fellow lawyers. 

Kevin O’Keefe and Brian Tannebaum have been pounding the twittersphere over the last few days about how M-H is trying to grab $59 out of the pockets of lawyers, holding their ratings hostage.  Not too much interest in the subject around the twittersphere.  I suspect that’s because there isn’t too much interest in M-H ratings anymore. Who cares about AV when your website can proclaim you the bestest, most empathetic lawyer in the world.  An AV rating pales in comparison.

I won’t pay M-H it’s $59 tare to have the two letters placed next to my name.  I am, for better or worse, AV rated, and have been for many years.  It has not, to my knowledge, persuaded any client to retain me or any judge to rule in my favor.  It’s just something that had always been there, always been mine, since the day it was conferred.

Today, M-H wants to pay to buy it back.  No sale.  And I threw all the second hand books out years ago, when I turned off the lights and shut the library doors for the last time.

One by one, the dominoes fell.  First state courts.  Then the outlier districts, and the Eastern District.  Until there was but one.  That’s right, there is now only one courthouse in New York where a lawyer not on the public dole is treated as so scurrilous, so dangerous, so unworthy, that she cannot be trusted.  It’s the Southern District of New York.  The mother ship.

When I first raised my right hand and stated in a stentorian voice, “I, state you name, do hereby . . .,” there were no cards issued by any government entity to prove to others that you were, indeed, a lawyer.  It was sufficient that you said so, and no one thought to challenge the assertion.  Perhaps it was because no one would claim to be a lawyer unless it was true, but that’s how it was.

Then came the New York City Corrections Department ID card, which included a photograph of our taking on a card that would embarrass a Times Square cubbyhole owner.  It was so amateurish that it would cause uproarious laughter today.  Soon, the Office of Court Administration picked up the gauntlet and issued ID cards of its own, which Corrections spitefully refused to recognize as official given its preference for its own in the turf war.

Lawyers were required to provide their bar numbers.  We didn’t even know we had bar numbers.

It’s hard to remember whether this happened over weeks, years or decades, but there was a point where the court system decided that lawyers, like our clients, would have to pass through the magnetometers, empty our pockets, take off our belts and cufflinks, to gain entrance to the trenches.  That lasted only a brief period, until Dick Barbuto, then President of the New York State Association of Criminal Defense Lawyers and now the Blind Guy, sent a letter to the Office of Court Administration advising them that we would not be treated like the scum of the profession, with ADAs given red carpet treatment while we were forced to do the perp walk.  OCA back down immediately.

Then came the Secure Pass.  What made this special was a cool name and the ability to charge lawyers for the pleasure of having an identification card that told the world they had no felony convictions.  It had holograms, and secret hidden stuff that only showed under the glow of black lights.  Lawyers were now truly official, as few cubbyholes in Times Square could reproduce a card this secure.  Not that anyone would want to.

The secure pass was touted for its, well, security.  It’s highly professional appearance.  It’s many security features.  It was very official. Accordingly, it was accepted everywhere I went, courthouses around the country.  I was treated with the same respect shown attorneys everywhere, for better or worse.  But no one questioned whether I was an attorney.

Except in the Southern District of New York.

One courthouse.  Just one courthouse.  Entering through the magnetometer portal, emptying pockets (thought thankfully being allowed to keep one’s Guccis on one’s feet) remained de rigor at the federal courthouses, lest we bear a slight resemblance to swarthy Mediterranean looking fellows.  It would be too much to expect criminal defense lawyers to be treated like AUSA, who strolled through with a flash of their government issued IDs, not missing a beat.  But this was a minor indignity that will likely remain intact forever. 

There is one thing that happens in the Southern District of New York that happens in no other courthouse:  They refuse to allow attorneys to enter with a cellphone.  Or a crackberry.  Or laptop.  Or any of the computering-communicating type devices that have become as essential to the practice of law as breathing.

There are a laundry list of reasons for this.  Security.  Disturbance.  Just to remind us who’s boss.  The message is clear.  We cannot be trusted to enter a courthouse with our devices hanging from our belt without causing trouble.  It is better to strip away the accouterments of modern society than risk a rogue lawyer on a cellphone.

To its credit, the NYSACDL actually wrote a letter to Judge Paul Crotty arguing for an end to this embargo.  The letter may be tepid and obvious, but it’s the first thing done that might actually improve the lot of criminal defense lawyers in years.  This could be the start of a trend.

Will it work?  Will the Southern District of New York, like its fellow districts, accept us as responsible lawyers, capable of making our way through a courthouse without wreaking crackberry havoc?  Or will the future end at the doorway at 500 Pearl Street?

You can trust us.  We’re lawyers.  We have cards to prove it.

Update:  Per the NYSACDL twit, it’s been announced that Donna Newman will testify at the hearing on 7/29.  I expect all 12 followers will be ecstatic to learn this, and I wish Donna best of luck.  This would be a really good time for Donna to speak out loud and clear, and put aside the fear and equivocation that might control the more squeamish on the board.  And I hope it pans out to be accurate that criminal defense lawyers are heard hearing.  The fact that the NYSACDL wasn’t involved from the outset was a disgrace.  Now that it found its way to the table (assuming it actually happens), make it mean something.

When Dan Hull announced that What About Clients? would become the blawgosphere’s first No-Wuss zone, refusing to allow anonymous comments, I felt the heat.  His reasons were clear and accurate, and I certainly agreed with everything he said.  He made it even more clear in  a podcast with the Bard of the Brit blawgoshere,  CharonQC (his 150th!).

Then Mark Bennett, whose Defending People is the blawgosphere’s best in criminal law, locked arms with Hull, announcing that he too would refuse anonymous comments.  The heat was turned up.

And what of Simple Justice? 

I’ve had much to say about comments in the past, having a love/hate relationship with the concept and execution.  My voice has been raised against anonymity on numerous occasions.  Given the respect I have for both Hull and Bennett, coupled with my general aversion to anonymity as an excuse to mouth off like a jackass, the prospect of adopting the No-Wuss Zone policy had great appeal.  Yet I decided not to join.  Here’s why.

Comments fall into a number of different categories.  Some are the presentment of ideas that stand or fall on their own, and the speaker’s identity neither adds nor detracts from the value of the idea.  These constitute a relatively small segment of the comments, as few true concepts are presented that are not dependent on a value judgment (or normative, as the lawprofs love to say)  which is meaningless without knowing who is doing the talking.  Is the commenter a lawyer?  What type of law does she practice?  How much experience does she have?  What axes does the commenter have to grind?  The list goes on. 

Some argue that these things shouldn’t matter, and they are correct when the comment is limited to a stand-alone idea, but absolutely wrong then the comment is value laden.  The value of a commenter’s opinion can only be judged in context.  A comment along the lines of “Justice Scalia is an idiot” means nothing in itself.  No one, especially me, gives a hoot what some unknown commenter thinks about Scalia.  It’s a totally worthless comment and a waste of my bandwidth.  You have no right to waste my bandwidth.

Of course, commenters who might appear anonymous to others might be well known to me.  I have access, as the blog owner, to information that you, as the reader, do not.  Sometimes, I have someone posting a comment under an anonymous name but, knowing the true identity, I recognize to be significant.  While I won’t out the commenter, I will allow the comment and even engage the person. 

In contrast, there are commenters, and a lot of them, who are anonymous to me as well as you, but who inexplicably think that their opinions are monumentally important.  They believe that they are endowed with the inalienable right to spew their beliefs, or challenge mine, in the comments.  This is the Publius Syndrome, where they liken themselves to Madison’s pseudonymous writings.  As my friends Hull and Bennett have both pointed out, they ain’t Publius.

Forget about Madison’s need to anonymity, and their lack thereof.  These self-proclaimed pundits have an overly developed sense of self-importance, of entitlement.  Without benefit of context, or the guts to show themselves, they nonetheless demand, and often in a highly aggressive manner, attention.  These are the primary targets of the no-wuss problem.  Too gutless to stand behind their assertions, yet bold enough to spew over and over, and in the boldest of language.

Odder still, these would-be Publius’ harbor the bizarre expectation that because they throw down the gauntlet, I must pick it up.  They demand debate.  They scream for my attention.  When they don’t get it, they spew about my worthlessness for failing to do as they want. 

Here’s the deal, Pub.  You’re spewing isn’t all that fascinating to me, though I realize that you think you’re brilliant.  Sometimes I will make a joke about it, just to have a little fun.  This enrages you because I’ve not taken you seriously.  You are very serious to yourself.  Sorry, but you’re just not serious to me.  More often than not, you’ve said things that have been said a thousand times before, and just because you are self-obsessed doesn’t mean that I am required to explain why you’re a blithering idiot like the 999 people who came before you.

Other times, I will point out that Publius’ comment is valueless because of its anonymity, whereas it might be of some worth had Publius been tough enough to put his name to his spew.  In response, Pub will inform me that he’s hardly anonymous, but a well known quantity elsewhere.  This happens a lot when SJ gets link love from a political blog, and sends its readers over.  The whole anonymity thing is way bigger amongst the political crowd, where substance is often irrelevant to vapid anger. 

But here, Pub, you are anonymous.  That includes people who use their first name, or even first name and initial.  If your identity isn’t clear on the surface, then anonymous you are.  Obviously, it includes people who use cute names, pompous names, even initials. 

I have no plans to research who you are and painstakingly read your past comments elsewhere so that I can be overwhelmed with your long history of spewing.  When you show up here, you start anew.  I have no plans to spend my time worrying about who you are, and if you can’t manage to stand behind your spewing, I certainly won’t enable you.  If I don’t already know who you are, I have no interest in figuring it out.  That’s your responsibility.

There is another issue deriving from anonymity that falls into a more troubling category, that of the whistleblower.  Some commenters will post some very nasty allegations or information about the subject of a post.  These may very well be true, or they may just reflect the commenters anger toward a subject and an opportunity to vent.  If you want to malign someone here, that’s fine.  But then, you really must identify yourself if you want to be taken seriously or want to assure that your comment isn’t deleted.  Some are too harmful or malicious to be allowed to stand, even though I may have no liability for the content, when posed anonymously.  I understand why you want to be anonymous, but that’s the price for attacking someone.  If you want credibility, then you must pay the price.

Despite the pressure felt from Hull and Bennett, I’ve decided not to adopt the No-Wuss policy.  To the extent that anonymous comments offer some substance despite the lack of context, I accept them for what they are worth.  Most are discounted to the extent the ideas don’t stand on their own.  What does anyone care if you prefer vanilla to chocolate?  It tends to prove one thing, that the commenter is a jerk of no consequence.  And it isn’t going to make anyone switch from chocolate to vanilla anyway.

But when the anon commenter posts something that is either totally foolish, malevolent or ignorant, I will delete it without a second thought.  I hate to have to break this to you, but just because you think you’re a genius doesn’t mean anyone
else agrees.

There are many commenters here who have used pseudonyms for a long time, despite lacking any particular reason for doing so.  That’s fine with me.  Your comments might mean a whole lot more if I knew who you were, had some background about you to put your thoughts into context, but that’s your choice.

As for the car-keyers of the internet, as Bennett calls them, or the Ned Beatty wannabes per Hull, I feel no compulsion to engage anyone who I view as a jerk, twinkie or worthless.  And when I delete your brilliant comment and ban you from Simple Justice, your subsequent email informing me that I am whimpering, gutless pussy for not squaring off with you man to man pains me deeply.  But I get over it.

And so, Simple Justice will allow the anonymous commenter, the wuss, those suffering from the Publius Syndrome.  But don’t expect to be taken seriously if you think you can toss handgrenades while hiding under a rock.  If you want to be given credit, then grow a set and stand behind your opinions.

Eugene Volokh has put together a series of posts on being amicus curiae, friend of the court based on the foundation of Mayer Brown’s Federal Appellate Practice book.  Having served as amicus chair for a number of years for the a criminal defense lawyer bar association, I found this to be a terribly misunderstood and poorly utilized weapon in the fight for good law. 

Every day, we’re confronted with bad caselaw.  It doesn’t happen overnight, but inch by inch.  It isn’t entirely an accident.  We could do something about it, but too often we don’t.

While the primary problem may be attributed to a judiciary lacking a meaningful concern for constitutional rights, given that many of the fine men and women who become judges are pillars of society, dedicated to elevation of order over law and firmly on the side of good in the fight against evil (or at least desirous of appearing that way), other problems can’t be blamed on the judges.  We are at fault, “we” being the voices who should be speaking out in favor of the Constitution and against bad law but instead remain mute.

There are some huge issues sitting on our doorstep that are routinely neglected.  The first is that when an appeal arises that presents a critical issue, one that extends far beyond the interests of a particular defendant but will impact defendants going forward, we watch from the sidelines hoping that the attorney handling the appeal does an adequate job and the praying that the courts come out the right way.  The problem here is that, while we may recognize that a case will produce an overarching rule that will effect us and our clients for years to come, we fail to acknowledge that we have as much at stake as does the individual defendant.  We choose to sit it out.  This is nuts.

One of the foremost uses of our specialized bar associations and interest groups is to speak for the larger group, the broader interests.  Unfortunately, many either can’t be bothered, obsess over collecting dues for self-perpetuation, or exist to give out awards to each other to pretend that we’re doing far better than we are.  They are not serving our mutual self-interest because it’s far more difficult to actually do work, exert effort, pay attention, give a damn.  Getting awards is so much more fun than working hard.  And being a selfish and self-aggrandizing sort of group, most want the kudos but few want to lift a finger to actually produce something useful.

Through amicus work, we could assert our positions, concerns, views and interests into cases of greater interest and import than the mere concerns of any individual defendant.  Counsel for the appellant all too often is an inadequate guardian of the greater interest.  Some simply aren’t good enough lawyers to be entrusted with big issues, and hence decisions come back to bite us in the butt because an appellate lawyer couldn’t manage to put a comprehensive and comprehensible argument together.  This is, I believe, the primary cause on our side of bad law.  Lawyers take cases that far exceed their skill level, and we suffer the consequences of a huge and perhaps needless loss.  We bemoan the result, but failed to lift a finger to achieve a better result.

From the courts’ perspective, it’s one thing to smack down a bad defendant who raises a significant issue, but one where the court would be very reluctant to reverse because this isn’t the sort of person they want to see walk.  When the only voice raised is the lone defendant, the court gets no sense of how the issue will impact others, often many others, who may not be such an unsympathetic appellant.  A bit outcome oriented, you say?  Judges are human.  Also, judges may not appreciate how a decision in one small, seemingly inconsequential case can become a fundamental decision that alters the course of the law for many others. 

Amicus work requires not merely the interest and will of an organized group to make the decision to become involved, but also the willingness of talented lawyers to step up to the plate and do the work.  And here’s the kicker: For Free.  Lest anyone call me disingenuous, I’ve produced dozens of amicus briefs over the years, happily and willingly.  Indeed, when I was in the position of amicus chair and couldn’t find anyone willing to step forward, I did it myself.  I never let a case that I believed to involve a significant issue fall between the cracks.  If no one else would write, then I did.  Someone had to do it.

On this aspect, some of the people who are responsible for bar association amicus work see it as a burden rather than an opportunity.  They refuse to seek out important cases, and wait for cases to come to them.  They challenge those who seek help as to why they are deserving, rather than embrace the chance to improve the law and stand up for what’s right.  It seems like their focus is to do as little amicus work as possible, rather than be there whenever they can be a positive force in the law.  This attitude toward amicus work completely misses the point; if it’s too much trouble, then the reins are in the wrong hands.

I’ve also seen lawyers who agreed to produce the brief drop the ball completely, with the submission date past and a “sorry” as their sole excuse.  On huge cases, mind you.  As an aside, these include lawyers who are long-term bar association mavens whose mouths never seem to close when it comes time to spout facile opinions, but they never seem to manage to find the time or ability to actually do anything.  Plenty of promises, spoken loudly for the whole room to applaud, and no production after the clapping dies down and the promises are forgotten. 

We have a lot of that ilk, desiring to appear to be “important” lawyers but, if one looks under the hood, having done nothing to fulfill the obligations they’ve undertaken or justify their worth.  Beware of our bar association bigshots, whose only interest is becoming very important in the eyes of lawyers who don’t know better and are impressed with official titles. 

Writing amicus briefs is, as Eugene points out, very different than representing the individual on appeal.  It’s all about the issue, not the individual.  It need not be lengthy, and often is far more meaningful and persuasive when directed solely at the critical issue at hand.  Amicus work offers the opportunity to stand back from the details of a case and argue how a decision, one way or another, will affect the state of ithe law and the functioning of society.  It speaks to right and wrong, to philosophical positions, which are often far afield from the arguments that counsel for the appellant might proffer.  Without amicus, these concerns would never be presented to the appellate court, or ineffectively presented, and other interests and arguments will prevail. 

Amicus also serves to let a court know that a case isn’t just about a particular defendant, but that the entire bar is watching them closely because of the larger issue at stake.  If nothing else, this may cause a court to give much more thought to a case, and the issues involved, then it might otherwise.  There are times when the appellant’s counsel has done excellent work, has covered the issue well, and has presented every argument needed, but st
ill would benefit from the assistance of amicus to let the court know just how important the issue at stake is to the rest of the bar. 

In my anecdotal and unscientific experience, amicus curiae briefs are submitted in a mere 20% of the cases in which they should be, leaving 80% of appeals up for grabs for one reason or another.  It is perhaps the most massive failure of the organized bar to impact the incremental growth of the law and to fulfill its mission, assuming it has any mission to fill beyond patting each other on the back. 

Between incompetent counsel, lazy, self-serving,self-important bar association “leaders”, a myopic understanding of what amicus work means and sheer lack of interest, the critical work of amicus curiae has been horribly neglected.  And we’ve got the law to prove it. 

It’s war.  The AP has declared war. 

Tom Curley, The A.P.’s president and chief executive, said the company’s position was that even minimal use of a news article online required a licensing agreement with the news organization that produced it. In an interview, he specifically cited references that include a headline and a link to an article, a standard practice of search engines like Google, Bing and Yahoo, news aggregators and blogs.

Asked if that stance went further than The A.P. had gone before, he said, “That’s right.” The company envisions a campaign that goes far beyond The A.P., a nonprofit corporation. It wants the 1,400 American newspapers that own the company to join the effort and use its software.

“If someone can build multibillion-dollar businesses out of keywords, we can build multihundred-million businesses out of headlines, and we’re going to do that,” Mr. Curley said. The goal, he said, was not to have less use of the news articles, but to be paid for any use.

Candidate for Manhattan District Attorney, Cy Vance, Jr., was given a platform on the Huffington Post to set out his views on dealing with racial disparities in police interactions with citizens on the street.

It is no secret that African-Americans and Latinos are stopped and frisked disproportionately by the police.

This statement, on its face, is significant.  While seemingly obvious, it is an acknowledgment that no matter how hard the rest of society tries to put racial prejudice behind us, it remains a hard, cold reality when it comes to policing.

According to the Civil Liberties Union, in 2007, the NYPD stopped about 469,000 New Yorkers, which equals about 1,300 people a day. Of these 469,000, 88 percent were not charged. African-Americans, who represent 25 percent of the City’s population, represent over 50 percent of those stopped; 30 percent of those stopped were Latino. Non-Latino Whites, who make up about 35 percent of the city’s population, only represent 11 percent of those stopped. In both 2006 and 2007 African Americans and Latinos made up over 90 percent of those stopped.

Lest anyone challenge these numbers on the basis of their being compiled by the NYCLU, it was Vance’s choice to adopt these figures in his post.  I will defer to his decision, and accept them as accurate.  They tell an appalling story, that 88% of those people subject to a stop and frisk are not charged with any wrong.  That’s a monumental number.

Consider, for a moment, what this means.  Police officers make the decision to take a person, walking down the street minding his own business, seize him (in the legal sense of preventing him from continuing on his way unimpeded) and then place their hands on his body to determine whether he has anything that would lead them to arrest him.  This could include a weapon, or drugs, or stolen property.  But whatever causes the police officers to make the decision to seize and touch a citizen, they are wrong 88% of the time.  That’s an extraordinary number of innocent, law-abiding citizens who are being denied their right to walk down the street unmolested by the police.

Who are these people being hassled by the cops?  In New York City, 90% of them are black and Hispanic.  The reason I’ve framed the story this way is to prevent those who would immediately resort to the argument that it’s because blacks and Hispanics are more likely to be criminals from taking comfort in their bias.  Since 88% of these people are not charged with any crime, there is no blame to be placed on blacks and Hispanics for just being there when a cop feels compelled to give them a toss.

Under New York law, before a police officer can lawfully stop and frisk an individual, he must have an objectively reasonable belief that the person has committed, is committing or will commit a crime.  It’s less than probable cause, which is required for arrest, and greater than a suspicion that “criminal activity is afoot,” justifying the common law right of inquiry.  A stop and frisk is a significant intrusion on the sanctity of the person.

To Vance’s credit, he acknowledges the existence of a very serious extant problem with the police, both in the fact that police are engaging in rampant constitutional violations generally, and that these violations are having a grossly disproportionate impact on blacks and Hispanics.  Of course, this does little to stop the assistants in the New York County District Attorney’s office from enabling the fabrication of constitutionally acceptable excuses for unlawful police conduct.  So much for that oath of protecting and defending the Constitution, eh?

The current means of addressing this problem is to hand out palm cards.  I wouldn’t kid you about this.  After police engage in rampant violations of constitutional rights, the problem is smoothed over for the 88% of those not charged by giving them a card.

The NYPD recently began a pilot program in three precincts in which officers give an explanatory “palm card” to those they stop and frisk. The card serves to inform suspects why they’re being stopped and of their rights.

I’m not sure what these cards say, but I doubt that they explain, “You were stopped and frisked because you are black or Hispanic, and we suspect all of you to be criminals.  Better safe than sorry.”

While Vance states that these palm cards are “a positive step in the right direction” (as opposed to a positive step in the wrong direction?), he acknowledges that they are inadequate to deal with the problem.

The Manhattan DA must work closely with the NYPD. No relationship is more important — or more complex — than the relationship between the DA’s office and the NYPD. The two offices work closely together on thousands of cases, incidents and issues every year. Yet, the DA provides a critical oversight role for the public in regard to the NYPD. The DA prosecutes NYPD officers when they go over the line — whenever they go over the line.

This is where things get a bit fuzzy for me.  Does this mean that Cy Vance plans to start prosecuting police officers for engaging in systemic violations of the constitutional rights of black and Hispanic citizens, those 88% of the 90% of all those stopped and frisked?  He states that he wants to put ADAs closer to the people, in the neighborhoods where these New Yorkers live, work, get frisked.  But is that to make them closer to the people?  Will his ADAs remain the child brigade of the Police Department, or will they be the voice of the 88% of New Yorkers whose constitutional right to be left alone is subject to the whim of any cop with an attitude?

In a courtroom, the players often find themselves dealing with a fantastic scenarios constructed for the purpose of overcoming constitutional limitations on what police are permitted to do in their efforts to stop crime.  But the only ones who make it to the courtroom are the 12% of individuals subject to stop and frisk who are charged with an offense as a result.  The other 88% simply disappear into the mist, happy to be allowed to go on their way after this baseless assault on their dignity.  The system never hears from them again.  No one is held accountable.  It’s as if it never happened.

Will Cy Vance speak for the 88%?  They too are the victims of a terrible wrong.

GatesGate has, as anticipated, produced a great deal of conversation, most of which is productive in the sense that it has people talking about the issue of whether a person should be subject to arrest for being belligerent and disagreeable with a police officer.  In this comment, Sojourner links to a terrific New York Times article discussing the breadth of police attitude toward dealing with the angry citizen who verbalizes their disagreement.

But the discussion is inhibited by one disturbing factor: Many people have absolutely no idea what constitutes an offense, and the debates has too often involves people inventing crimes from their vague sense of what they either believe the law to be, or think the law should be.

As my posts on GatesGate have found their way into some non-lawyer political blogs over the last few days, I’ve had an opportunity to check out blogs that I had never before seen, and read some of the comments reflecting people’s understanding of the law.  Not surprisingly, they often demonstrated a fundamental lack of understanding.  It’s hard to talk about a subject when there is no shared recognition of the basics.  As comments to these blog posts show, people simply insist that being disagreeable toward a cop is a crime. 

In order to facilitate a higher level of discussion, I offer this post to help the non-lawyer better understand the subject of discussion.  A crime, whether infraction, misdemeanor or felony, is an offense created by a law enacted by a legislature.  There is no such thing as common law crime, a crime that we all kinda agree exists but we just make up as we go along.  If it is not expressly prohibited by law, it is not a crime.

Each crime has specific elements, things that must happen in order for conduct to be criminal.  If all of the elements of the crime are not met, then the conduct is not criminal.  We may think there should be more elements or less, but they are whatever the law says they are, and the crime consists of all required elements regardless of how much you love or hate them.  That’s the legislature’s decision, and until it’s changed, and it defines the crime.  The reason it’s important that the crime is defined is that we wouldn’t know what not to do otherwise.  The law puts on notice of the conduct that is illegal, which in turn is important so that each of us doesn’t get to behave in whatever manner we think appropriate, raising or lowering the bar in accordance with our personal idea of criminality.  The bar stays put.

For those commenters who bandy about legal jargon with abandon, there is a difference between civil and criminal law.  Civil law gives rise to an award of damages or injunctive relief.  Criminal lands you in jail (more or less).  They are not two sides of the same coin, and slander, as was discussed in some comments, is a civil concept rather than a criminal one.  In other words, there is no crime of slander per se, though in some jurisdictions, there are crimes that involve the use false statements with various additional elements.

And now for one of the most difficult concepts for the non-lawyer, jurisdictional differences.  States get to pass their own laws.  One state may enact a law making something a crime that is perfectly legal in another state.  Similarly, the elements of a crime in one state can differ markedly from that in another. This is counterintuitive, in that one would naturally believe that if certain conduct is wrong, it would be wrong everywhere.  That’s not necessarily the case.  It’s usually true for crimes that are malum in se, conduct that is evil in itself, but less so for conduct that it malum prohibitum, conduct that is prohibited simply because the state chooses to make it so.  For example, there is nothing inherently evil about driving on the left hand side of the road, but states have chosen to have us drive on the right hand side to avoid a lot of nasty crashes.  In Britain, they got it backwards.

Adding to the confusion is that fact that laws are enacted using the English language, as understood by politicians.  Words require definitions, and people often understand their meaning differently.  Consequently, courts spend a great deal of time defining words.  The objective is to make their meaning clearer.  Courts often fail to achieve this objective, and either make relatively clear words fuzzy to encompass conduct that would not ordinarily be understood to be covered or so broad and vague as to be rendered meaningless.  To understand what the words in a law mean, lawyer are constrained to read caselaw, the decisions of judges, and try to make sense out of them.  It’s not always easy.  It’s not always illuminating.

In GatesGate, Henry Gates was arrested for disorderly conduct (not disturbing the peace, as many seem to think).  The New York version of disorderly conduct, contained in New York Penal Law Section 240.20, provides:

§ 240.20 Disorderly conduct.
    A  person  is  guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
    1.  He  engages in fighting or in violent, tumultuous or threatening behavior; or
    2. He makes unreasonable noise; or
    3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or
    4. Without lawful  authority, he disturbs any lawful assembly or meeting of persons; or
    5. He obstructs vehicular or pedestrian traffic; or
    6.  He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
    7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.
    Disorderly conduct is a violation.

The law as enacted is remarkably broad, covering a variety of actions that would otherwise appear perfectly lawful, if not constitutionally protected.  A key to appreciating the law is the preliminary requirement, that the conduct be done with the “intent to cause public inconvenience, annoyance or alarm.”  That means that the person engaging in the conduct desired those outcomes. 
If the purpose of a person’s conduct is to express outrage and anger toward a police officer for acting in a manner that the individual believes to be wrong, improper, racially motivated, for example, then his intent is not to cause public alarm.  No disorderly conduct.

(Edit: for the reckless version, as opposed to intentional version, at the annoyingly vigilant prodding of my dear Prof. Yabut, whose gnawing concern with precision keeps me on my toes, see the comment below.)

Of course, this is how the law works in theory.  On the street, it’s another matter.  The police officer, such as Sgt. Jim Crowley in the Gates matter, makes the arrest and it’s then left to the judge to decide whether there is sufficient cause to maintain the charges against the individual.  In New York, the time between arrest and being brought before a judge for initial arraignment, at which point a neutral magistrate will have an opportunity to determine whether the allegations o
f fact are sufficient to meet the elements of the offense, is about 24 hours.  Those are often the worst 24 hours a person will ever experience. 

It doesn’t necessarily matter whether the prosecution proceeds.  If nothing else, those first 24 hours will be the price of mouthing off to a cop.  It’s a high price for exercising one’s right to speak one’s mind to a overly sensitive police officer.