As Circuits split on the subject in decisions that reflects as much about their comprehension of modern technology as their concern for the Fourth Amendment, there was fear and trepedation at the idea of our beloved Supreme Court eventually making decision.  That day is soon to come, as the Court considers United States v. Jones this coming November.

In his  New York Times Sidebar column, Adam Liptak notes how different courts have treated GPS tracking:

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

Who doesn’t love analogies to Orwell’s 1984?  Yet this doesn’t really help much in addressing the fact that technology has made things possible that no founding father could ever dream of, and no bootleg-hating justice considered as he wittled away our rights to make exceptions.  But it’s all come home to roost, on virtual steroids.

The Jones case (shockingly) arises from a government screw-up.

The case . . . arose from the investigation of the owner of a Washington nightclub, Antoine Jones, who was suspected of being part of a cocaine-selling operation. Apparently out of caution, given the unsettled state of the law, prosecutors obtained a warrant allowing the police to place a tracking device on Mr. Jones’s Jeep Grand Cherokee. The warrant required them to do so within 10 days and within the District of Columbia. The police did not install the device until 11 days later, and they did it in Maryland.

The problem is that GPS tracking, unlike anything man was capable of before, capable of by his own observation, nails every movement bar none to so specific a degree as to know details with such intimacy that a spouse would be jealous, and can continue as long as desired.  The GPS never gets tired, needs a day off or has to go to the bathroom.

But this isn’t just about GPS, but a transitional case addressing what a bunch of justices whose understanding of both existing technology and whatever will be invented tomorrow will be tested.  Just as the spectacularly bad decision from 1925 in  Carroll v. United States brought us from the horse and buggy era to the automobile exception, and unintentionally paved the road for an ongoing and disconnected stream of exceptions to the Fourth Amendment that have reduced it to meaninglessness today, the Jones case has the potential to create a framework for technology as yet undreamed of that will control the extent of intrusion in our lives going forward.

In other words, the Supremes are staring 1984 in the face and will have the opportunity to draw a line and say “no,” that will not be our future in light of the amazing potential of technology.  Or pull a Carroll, letting the utility of a particular piece of tech and a desired immediate outcome produce a rationale that will be extended, step by step, iPhone by iPad, until privacy has been completely and irrevocably eviscerated.

Ironically, the government’s argument against the need for a warrant for GPS surveillance relies on primitive technology used in United States v. Knotts, decided 30 years ago,

In the Jones case, the government argued in a brief to the Supreme Court that the Knotts case disapproved of only “widespread searches or seizures that are conducted without individualized suspicion.”

The brief added: “Law enforcement has not abused GPS technology. No evidence exists of widespread, suspicionless GPS monitoring.” On the other hand, the brief said, requiring a warrant to attach a GPS device to a suspect’s car “would seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism and other crimes.”

“Trust us, we would never abuse our power,” does not seem like a principled approach for a court, but if the government can get this past the Supremes (and everybody decides to forget about the widepread illegal wiretapping over the past few years where the government proved conclusively that it can’t be trusted), the use of technology in the gentle hands of our benign and loving government, much like Big Brother, will be unstoppable.  The “trust us” argument has no limits.

The question of whether the Supreme Court has both the depth of understanding of the nightmare potential technology brings to the Fourth Amendment, as well as the long-sightedness to realize that it’s decision will be extrapolated to all manner of technology that we have yet to conceive of, is about as scary as it comes.  Interestingly, one of the justices who may well see the long term view best is Antonin Scalia.

A decade ago, the Supreme Court ruled that the police needed a warrant to use thermal imaging technology to measure heat emanating from a home. The sanctity of the home is at the core of what the Fourth Amendment protects, Justice Antonin Scalia explained, and the technology was not in widespread use.

In general, though, Justice Scalia observed, “it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”

It would be foolish indeed.

Yale grad student Annie Le’s 2009 murder by Raymond Clark was a horrible, senseless tragedy.  It’s understandable that her family would feel compelled to make sense of it, between the angst and gestalt of such a loss, and seek some way that her death, days before she was to be married, wouldn’t seem such an incomprehensible waste.  But that doesn’t mean there is sense to be made of it.

Via Walter Olson at Overlawyered, a complaint has been filed under Title IX against Yale University.  It alleges that Yale was partly to blame :

Yale University failed to control sexual attacks and harassment of women on its campus, leading to the murder of a med student in one of its laboratories, a new lawsuit charges.

“Yale had long taken inadequate steps to ensure the safety and security of women on its campus,” Joseph Tacopina, the Le family attorney, said in a statement to Reuters on Wednesday.

“Sexual attacks on and harassment of women at Yale had been a well-documented and long-standing problem, and there was a widespread belief that Yale repeatedly failed to impose meaningful discipline on offenders,” the lawsuit states.

This raises questions about whether Yale was really a hotbed of sexual attacks and harassment of women, or rather a hotbed of anti-neo-feminism, where women are viewed as so weak and worthless that they were too delicate to handle the normal male/female interaction and otherwise ordinary dealing were transformed into sexual harassment and attacks of sufficient magnitude to complain.  But this question is secondary to the gist of the action.

To connect a murder to an atmosphere of sexual tension regardless of how it’s characterized, is absurd.  This was a sick act of a diseased person, whether Yale had done nothing to sanitize sexual harassment on campus or everything possible, including chastity belts and random neutering.  There are no steps that can be taken that will completely eliminate crime.  There are no steps that can be taken that will cleanse a diseased mind from harming another.

Most curious is that the lawyer for the Le family is my old pal, Joe Tacopina.  Joe’s a good criminal defense lawyer, with a great way before a jury and a charming smile.  Most of his work is on behalf of cops charged with bad things, and he’s had a great deal of success trying cop cases. 

This type of case isn’t what one would expect Joe to be handling, particularly given that Joe’s never demonstrated much interest in feminist causes.  In fact, his last big case was the  acquittal of a couple of cops for having brought a drunk woman home and “hugged her naked.”  This was about as far from a “no means no” case as a lawyer gets.

I’m going to engage in some wild speculation here.  My bet is that the Le family went to some lawyers whose practice was more directed toward Title IX and sexual harassment type work and were turned away, told that while they are very sympathetic to their goals, they could not represent them because there was no non-frivolous cause of action.  Eventually, the Le family found their way to Joe, who saw the potential to make some public waves with this case, and took the case.

Joe isn’t an Ivy League sort of guy.  In fact, Joe is more the kind of guy who would beat the crap out of some Yalie for leaving fingerprints on his Maserati.  Joe may play in the big leagues, but Joe is very much a regular guy.  For some fun, you can read a great article about Joe by our mutual friend, Lisa DePaulo, in GQ.

That said, this case is ludicrous.  There is simply no rational basis for connecting a murder to an alleged atmosphere of sexual, how to even characterize it, benign neglect?  It’s crazy and, well, crazy.

Lawyers are often challenged to take their arguments to the “logical extreme” to determine whether they bear up under scrutiny.  Putting aside the fact that Yale is such a bastion of political correctness that even an  inappropriate fraternity prank gave rise to a federal investigation, the leap from a sexually hostile environment to murder cannot be sustained.  It’s pure post hoc ergo popter hoc. Lawyers can’t ignore logical fallacies just because they want to make a pitch.

Men, boys really, may have urges that women (whom I will not call girls because that would be taken as offensive) may find objectionable.  I’m not talking rape or sexual assault, but normal boy-type urges.  That these have been bootstrapped into sex crimes is a problem all its own.  But as offensive as this conduct may be, it is a world apart from conduct that produces physical harm to another.

An environment that tolerates boys making nasty, stupid, offensive sexual jokes may well encourage other boys to make nasty, stupid, offensive sexual jokes, but it does not drive an otherwise normal person to engage in forcible rape or murder.  Normal people do not do these things.  There is no environment that causes, or even contributes, to normal people committing forcible rape or murder.  Anyone who does so is not normal, and anyone who is of this bent is not driven by the environment, but by a sick and twisted mind.

To connect such things is not merely mistaken, but dangerous.  And there is nobody who should appreciate this more than Joe Tac.  It’s not that a lawyer, indeed a human being, cannot appreciate the horror that Annie Le’s family has been through, and will likely endure for the rest of their lives.  Her murder was a nightmare.  But her murder was the product of one man’s act, one man’s horribly sick mind. 

Whether Yale needs to look under rocks for misogynist is an argument to be had among those who walk its streets and paths, who live in gothic colleges and have to decide whether it’s an atmosphere that suits their sensibilities.  They can work it out amongst themselves. 

It is not, however, a factor in a murder.  Not in whole. Not in part.  To argue that Yale’s failure to adequately maintain a sexually appropriate environment to suit the delicate sensibilities of some leads to murder is ludicrous. It doesn’t lead down an ivy covered path, but down the road to perdition. 

My son came home from school Friday, and I asked him what he learned that day.  It’s the same question I ask every day, and it usually gets a response along the lines of “not to talk to  smegheads like you,” as he walks away eating pretzels dipped in nutella.  Instead, he said he watched a movie about 9/11.

This struck me as strange, as he and his classmates were alive when 9/11 happened.  Many of the kids in his school had an intimate connection, including family members who died.  Yet they were watching a movie of the event.  I asked him if he remembered 9/11, and he told, “not really.”  It had become no more real than World War II or Vietnam, something that students discussed in history class.  Something that happened to someone else, long ago.

I realized that for him, for his friends and classmates, life post 9/11 was his version normal.  He was a member of the 9/11 generation, a generation of young people who grew up in a world where the USA Patriot Act was what the law merely was.  Where posters and television commercials imploring people “if you see something, say something,” was omnipresent.  Where national guardsmen with automatic weapons and camouflage fatigues were supposed to be hanging around Penn Station, and police checked people’s bags at will.

In school, children are inundated with “messages” from MADD, SADD and Dare.  Classes are regularly  interrupted for assemblies about respecting others, sometimes because of sexual tendencies, other times because of feelings hurt by “bullies.”  They are warned about AIDS and more sexually transmitted diseases than I ever knew existed, how sex will kill them.  If a myriad of other horribles didn’t kill them first.

There is a laundry list of subjects that cannot be mentioned, no less discussed or joked about, in schools.  On top of the list is anything that refers, relates, even obliquely mentions, anything that can be remotely construed as violence.  One of the most important things a parents can teach his child is to never mention the words gun, knife, bow and arrow or slingshot in school.  If they even think the word “bomb,” alarms will go off and troopers will immediately seize you.  If heard, the child will be required to go for psychological testing and approval before being allowed back to school, for fear that he’s about to engage in the next Columbine.  They will take no risk whatsoever.

For the most part, their facility with computers is quite amazing, and yet they have no expectation of privacy.  It’s not as if they care, though, as they will do and see and look at anything they please without a second thought, but they simultaneously hold no illusion that someone can’t find out exactly what they are doing if they want to.  The only safe haven is that they don’t think anyone will want to.

They have all been on airplanes, and can’t conceive of flying where they aren’t required to wait on a long line and prove their identity, take off their shoes, put their things in bins to be viewed by a uniform behind an x-ray.  They know that airplane travel means they are subject to search, whether magnetometer, visual or official touching.  They’ve never known a domestic flight where this didn’t happen, or they were served a delicious meal for free on china.

For those of us who spend time thinking about how things have changed since 9/11, since every dead child gets a law named after him, since well-meaning people impose rules they mistakenly believe will cure every potential threat to a safe and perfect world, we haven’t given up the fight to return life to some earlier day.  This generation doesn’t remember that earlier day, when the post-9/11 rules and ways didn’t exist. In a few more years, they will have never known such a time.

In an old man’s mind, I envision a day when school children will be taught that the USA Patriot Act was terrible mistake made in knee-jerk, visceral reaction to terrible circumstances, like the Gulf of Tonkin Resolution.  They will be asked to compare the TSA Scope and Grope with the internment of Japanese during World War II.  Students will be allowed to run as fast as they can on the playground, and some will fall down and skin their knee.  Others will say something hurtful and get popped in the nose for it, and never say it again.

This world is foreign to our children.  It’s a world they’ve either can’t remember or have never known.  They will never balk at having to remove their shoes on a line at the airport, or having to hold their tongue lest a word come out that will get them expelled from school and labeled a sex offender. 

See their world through the eyes of our children, the post-9/11 world, and realize that this is their normal.  This is the legacy of 9/11, that there is now a generation that has no memory of life before it “changed everything.”

Prior 9/11 Posts: 9/11/07 , 9/11/08, 9/11/09, 9/11/10.

Oh, how the youth love to be trendy, but some of us eschew fashion and stick with what works.  When I was lambasted as a dinosaur because I still use the same AOL email address I locked up back in 1993, I refused to budge.

Call me an anachronism.  An old man.  A dinosaur.  If you’re looking for a Dude, you’re in the wrong place.  I don’t hold it against anyone that they are obsessed with the superficial accouterments of coolness and geekdom.  Well, maybe I sneer at them a little and think they smell like elderberries, but they’re allowed.  Just not me.

I prefer to think of myself as a rebel.  Someone who refuses to be a slave to trends, to each new shiny thing that comes along.  I have a great email address, even if it’s got a suffix for a service upon which the sun has set.  If you think a different URL would make me a better lawyer, then I would pay attention.  But to make me look trendier?  Forget it.

I’m sticking with my stinky, old AOL email address.  If that puts you off, then don’t email me.  I can live with that.

Esquire’s Rule #1033. If your lawyer’s email address ends in hotmail.com, gmail.com or yahoo.com (or aol.com), find a new lawyer.

Yesterday,  Venkat Balasubramani sent me a gift in this post at  Politico by Ben Smith.

There’s long been a certain stigma attached to an AOL.com email account, and those of us obsessed with keeping up with the times have cycled through Hotmail, Earthlink, Yahoo!, and any number of corporate domains before ending with the current standard of email modernity, the Gmail account.

But despite Google’s best efforts to stigmatize those unfashionable old domains, I’ve started to notice a certain prestige attached to the AOL.com survivors. Now that my mother has switched to Gmail, virtually the only people I email at AOL accounts are bigshots — people who were already so important by the time the various new fads (and technical advantages) arrived that they couldn’t be bothered to switch, and had nothing to prove to anyone.

You want to wear bell-bottoms or skinny jeans, knock yourself out.  You need an iPad or iPhone, have a blast. It’s not that I’m anybody’s bigshot, but that I have nothing to prove to anyone.

While it may be cool again to have a retro email address like AOL, you hipsters won’t be able to do it.  All the really good email addresses are long gone, and now the best you can get is bunch of numbers tagged on the end, the mark of the n00b, the stigma of latecomer trying too hard to be cool.  

It doesn’t matter that you’re on the cutting edge of every new meme that’s floated through Funnyjunk or have your own Youtube channel.  Social media wannabes collect followers of equal irrelevance, only to compensate for the fact that they weren’t around when this began and know in their hearts that the most they can be are social media climbers.  But those of us who carry our AOL email address around for almost a generation laugh at you. Ha!

So now the worm has turned and the old AOL email is the new cool.  If it makes you feel better, no doubt the worm will turn again, because that’s how cool works, constantly changing to some new thing every few minutes.  When that happens, I’ll be a dinosaur again, out of touch and totally unhip.

But you know what else will be uncool?  The cutting edge wannabe buying every new iToy that comes along so show to the world how cool they are.  So get whatever email address will float your boat. I’m sticking with my old AOL address, and couldn’t care less what you think of me for it.  For the moment, however, I am cool.  And it will pass.

Hot on the heels of  TSA Agent Thedala Magee demand for half a mil from Amy Alkon, Elie Mystal from  Above The Law played two minutes in heaven with TSA agents of his own.

After going through the full-body scanner (note: this is my only reference to the essentially naked pictures the TSA is allowed to take of anybody with the impudence to travel by air), I’m told to wait while the TSA lady looks for a TSA man to fondle me. Apparently this is because of “low resolution” on my scan. This is minute one of embarrassment, as all the other passengers scuttle by me with the “thank God I’m not that guy” look.

Two men appear, and I’m told to accompany them to the private screening room. I’m already waddling around with no belt and no shoes, so this has all the dignity of a perp walk. Which is exactly what it is — you’re being accused of something, and don’t have a chance to defend yourself. I ask them to just re-scan me. The men ignore my request, and beckon me to follow them. “Stay calm,” I think.

The private screening room looks about as safe as the back of a van of a pedophile. I’m in this box with two dudes, thinking about how my mother has warned me about getting trapped in this situation since I was five.

Nothing untoward yet.  Just the price we pay for living in a free society, where the collective welfare trumps any individual’s feelings.  Notably, it’s not that Elie refused to get scanned, but something aroused suspicion.

I haven’t been in the room 30 seconds, but I’m consumed with how not free I am. I can’t leave; I can’t even roll my eyes. The guy explains to me why he “has to” touch my crotch. In any other American situation, this is where the bargaining would happen. “No officer, please don’t do that, I’ll flip instead.” You’re supposed to have choices in America. But in this situation, there’s nothing you can do to stop this from happening. You could be sitting on information about an active terror plot to destroy the whole airport; they’re still going to touch your crotch.

(If I seem fascinated with my crotch, it’s because they are fascinated with my crotch. It’s the only thing they talk about before they start touching you.)

One of the problems of knowing a little bit about the law works is reaching the undeniable recognition that you are now separate from the rest of the world and in the absolute control of another. 

The other touches are perfunctory. Once under your arms, once down your arms. Your chest and belly are rolled over like they spilled something on you and are trying to help you dry. They slap you on the ass like you just hit a double (more on that later). But when they get to your inner thigh and crotch, they act like they’ve found the only place on the human body that has ever been used to smuggle anything. I could have smuggled a moob-sized bomb under my shirt, but the TSA guys know whether or not I shave my balls.

The strangest thing was the testicle search. During the explanation phase, the dude said he would place his hand on my inner thigh and run it up into my crotch and “lift and separate” my testicles, three times on each leg. Now, I couldn’t hide a third testicle between my other two without it being really obvious. What weapon could I possible wedge up in there that would require six touches to detect?

At the 1:30 mark in the private room, I make my only mistake. During the third and final vertical pass across my shaft, TSA guy “Zed” says: “You can relax, sir.”

No rape.  No permanent trauma. No PTSD.  Flying society is now safe from any potential threat lurking in Elie’s pants.  But enjoying his few minutes alone with the TSA, Elie urges that everyone, every flyer, every public official, every judge, enjoy the same experience.

I think we need a new rule. I think that everybody should have to go through a TSA private screening every time they fly. Why should most of us regular people, and nearly all the decision makers, be relatively oblivious to this new form of big government? If it’s so damn important, why not let everybody get in on the fun? We’d be safe! At least from any crotch-based airline attacks.

Either we’d all get used to it, or judges and governmental officials would remember that we have rules that we put into our Constitution specifically designed to stop this kind of gross excess of government power.

If the federal bench is going to allow American citizens to be molested, it should at least have some skin in the game.

At least just once.  After all, nothing matter until it touches someone’s life.

Bob Ambrogi posts about an ambitious project by Boston College law student Anusia Hirsch, who has decided to blog about her experience at the law school Legal Assistance Bureau.  While there’s nothing new about another law student who feels that her transitory feelings are worthy of telling the world, or that her insights are inherently meaningful, Hirsch’s approach is different.

A second-year student at Boston College Law School is intentionally doing something that most legal bloggers know better not to do: blog about a client. A key difference here is that the student, Anusia Hirsch, is doing this with the full consent and cooperation of the client, who reads and approves each post before it is published, as well as of her supervising attorneys.

Hirsch started the blog,  bclabstudent, in August to chronicle her experiences working at the BC Law Legal Assistance Bureau in Waltham, Mass. She wanted the blog to serve as a guide to other law students considering working at LAB. She soon realized that the most important aspect of LAB was her work with clients, so she wanted to blog about that.

Hirsch decided that her blog would tell the story of the clients she encountered at the LAB.  How this serves as a guide to anyone isn’t exactly clear, but clearly using this blog to reveal client confidences is a world apart from the usual blog chronicling a law student’s feelings as she grows into the profession.

Her supervisors at the LAB obviously realized that this wasn’t within the scope of what lawyers do, but rather than kill the idea, sought to find a way for Hirsch to reveal confidences without violating ethical proscriptions.  This is what they came up with:

They agreed on this plan by which the client consented to the posts and approves them in advance. Names and identifying information are changed to protect identities.

A spokesperson for BC Law says this is the first law student blog that includes sanitized yet open discussions of client experiences in a sanctioned format such as this.

Essentially, this shifted the responsibility from lawyers/law student to client to determine whether privilege should be waived.  Technically, it should suffice, as the privilege belongs to the client, and the client is entitled to waive privilege.  Technically.  Yet, these scheme is troubling on two levels.

First, to what end?  This blog clearly doesn’t serve the interests of the client, who has come to the Boston College LAB for help, and ended up a public guinea pig so that a law student has something to write about.  Does this smack of using the poor and needy, the ones for whom clinics are intended, as test cases or, at best, educational tools as a price of representation?  It’s unclear whether the clients will feel pushed into agreeing to give up privilege, and it may well be that they are told in no uncertain terms that they can refuse to play along and there will no consequences whatsoever.

The most that can come of this is that it provides fodder for Hirsch, a second year law student, to express her feelings about these clients.  So what?  Hirsch is learning herself, and neither her thoughts nor feelings offer much insight.  She has no insight to give.  She’s a second year law student.  If anything, the only insight gained is how much a student has yet to learn.  Is this worth the sacrifice of a client’s confidentiality?

Worse still, this reflects an effort to find something new and different, provided one doesn’t mind the fact that the pedagogical lesson is that one of the most important aspects of practicing law, the protection of client confidences and putting the interests of a client ahead of one’s own, can be tossed to the wind in order to come up with a new concept in blogging.

“This is a big deal,” Hirsch says in her video. “We are testing new waters.”

It is a big deal, but she is not “testing new waters,”  She is ignoring a foundational duty of a lawyer so a second year law student has something cool to write about on the internet.

As for the clients, they are unlikely to appreciate what it means to give away their privilege.  Even though their names may not be fully revealed (Hirsch does use the first name, but not the last), it’s more than enough to reveal to their identity to anyone involved in a case.  Moreover, once a client has waived privilege, they waive it for all purposes.  They can’t change their mind later, when something embarrassing, significant or critical happens, and reclaim it.

Do clients appreciate what they’re giving up?  Rarely, and it’s part of the advice that an attorney would provide so they can appreciate the importance of their decision.  Are they getting this advice from a second year law student?  Are they getting this advice from a disinterested counselor? Are they getting this advice at all?

Even if this is handled with the utmost discretion and circumspection at BCLAB, will the next law student who decides to reveal all be similarly cautious, or will this become the new, cool trend for law students to reveal client confidences?

I can appreciate, better than most, how difficult it can be to write about something that is new and interesting on the internet, and why Anusia Hirsch is reaching for something different.  But I can also appreciate that the trade-off of client confidences for Hirsch’s insights is a rotten deal.  And I can similarly appreciate how this can spiral out of control and do serious harm to the very people these clinics exist to serve.

There is a pedagogical lesson to be learned here, that law students should be taught to appreciate the importance of protecting client confidences.  The first lesson is that there is nothing that pops into their heads that’s worth giving away a privileged communication. 

This blog is a bad idea, and it should not be allowed by Boston College Law School regardless of whether they’ve found a way to circumvent ethical rules.  It’s just a really bad idea.

Via Radley Balko, making his facepalm of the day, the story from  WKMG in Orlando where police claimed that they were forced to shoot Rogelio Cortes who was attempting to ram the police with his white van.

After seeing this video, prosecutors dropped attempted murder charges against Cortez, when the video clearly showed Sgt. Rhonda Huckelbery, the driver of the blue pickup behind the van, pushing the van forward into the other officers.  It’s worth going to the WKMG website for their video, which includes statements by Huckelbery.

Of course, dropping the attempted murder charges doesn’t exactly make up for the cops shooting Cortez in the abdomen and arm, and curiously doesn’t explain why he remains charged with “attempting to flee or elude police,” given that the only forward momentum demonstrated was at Huckelbery’s insistence.

But then, Huckelbery wasn’t exactly neutral on the subject of Cortez’s capture and shooting:

OPD Sgt. Rhonda Huckelbery . . suspected that men in the van stole her husband’s credit cards the day before and used them to buy nearly $1,000 in electronics.

And if that doesn’t deserve a few good bullets in the gut, then what does?

Once again, without the kismet of having a video available of what transpired, there is no way in the world that Cortez could have challenged the OPD story about his attempting to flee and ram the cops, who, fearing for their lives, had no choice but to put a few bullets into him.  There isn’t a judge alive who wouldn’t have believed the cops.  But for video.

A rather bizarre clash of religious belief against the secular demand for testimony is playing out in Los Angeles, as Rabbi Moshe Zigelman refuses to testify against others Jews.  From the LA Times;

[F]ederal prosecutors are threatening him with a return to jail unless the 64-year-old devout Hasid agrees to testify before a grand jury regarding the federal government’s ongoing probe of tax evasion in his Orthodox Jewish sect. On Wednesday, they will ask a judge to order him to testify or be found in contempt.

His attorney says Zigelman, a teacher of scripture and son of Holocaust survivors, will again refuse, citing his religious principles.

This would come off as far more sympathetic but for the fact that the rabbi did his own bit for tax-evasion in the case, and the government demands his testimony against others in the scheme.  The argument against Zigelman is framed as the rabbi being wrong (as opposed to insincere) about his beliefs:

Prosecutors have said the rabbi’s position is unsupported by Talmudic law, according to court papers filed by Zigelman’s attorneys. Defense attorneys contend that he is again being asked to make the obvious choice between heaven and earthly jail cells, and that no prison time will be able to get Zigelman to go against his religion and face ever-lasting punishment.

This is a particularly curious approach, given that three Talmudic scholars will give four opinions as to what something means.  On the one hand, the free exercise clause suggests that the government’s efforts are designed to prevent a person from exercising a legitimate religious belief upon pain of imprisonment.  On the other hand, we are a secular nation (at least some of the time) and the functioning of our system can’t be held captive to individual’s self-imposed religious limitations.  That a federal judge is being asked to rule on the validity of a rabbi’s Talmudic beliefs is, well, unseemly at best.

Rabbi Zigelman’s lawyer attempts to remove the argument from one of Talmudic interpretation and lay it out at the bottom line:

“No earthly sanction will ever make Rabbi Zigelman abandon his religious precepts,” Michael Proctor, an attorney for Zigelman wrote in court papers. “Imprisoning Rabbi Zigelman would be an empty, unjust act that accomplishes nothing.”

That, of course, is the nature of religious belief, that it is not subject to the approval or acceptance of secular authority.  Then again, the piety of the rabbi’s beliefs isn’t helped by his role in the scheme.

Zigelman was arrested in 2007 for his part in a decade-long enterprise through which wealthy donors made tens of millions of dollars in contributions to Spinka, a Brooklyn-based Hasidic sect, only to have most of the money refunded through an underground money-transfer network. The donors received large tax breaks on the bogus amounts; Spinka and related charities profited through the small portion of the sums they kept.

So what part of his religious beliefs says it’s cool to engage in criminal conduct?  Then again, having sinned once (and served his 24 month sentence for it), is the rabbi obliged to sin again?

The gist of this conflict is whether the rabbi’s refusal to testify based on his religious beliefs should give rise to his being incarcerated for contempt, meaning that the contempt power will be used to coerce a person to relinquish sincerely held and legitimate religious beliefs.  The government contends that while the beliefs might be sincere, they are not legitimate because other Talmudic scholars disagree with Rabbi Zigelman’s interpretation.

It seems to me that the government’s position is a non-starter, both from a religious perspective given that Talmudic scholars have argued and disagreed about the meaning of the Talmud for thousands of years, and no rabbi or scholar to takes the government’s position trumps the interpretations of other rabbis and scholars.  Similarly, no federal judge has any business ruling that one side’s interpretation of the Talmud is correct as a matter of law.  That’s just not how secular law rolls.

However, it’s less clear that Zigelman gets a walk because of his religious belief that he cannot testify against other Jews. 

The rabbi’s attorneys wrote in their papers that what matters is not whether Zigelman was correctly interpreting Jewish law, but the fact that his belief is sincere and that the rabbi, who is in failing health, will under no circumstance change his mind. Given his clear principle, finding him in contempt and sending him to jail will be “vindictive rather than coercive,” they wrote.

Assuming that the rabbi will not be coerced into changing his religious beliefs, then incarceration as the product of living in a secular nation, a nation of laws that apply to all subject to reasonable accommodation, as the consequence for his choosing to take a principled stance rather than acquiesce to secular authority, may be necessary.  For example, if there was some Talmudic interpretation that would compel a religious leader to commit a crime, say, that any non-believer who entered a religious sanctum must be executed, would sincere religious beliefs preclude his being punished for murder?

Yet this isn’t about committing murder, but about compelled testimony against another person, which is itself subject to limitation. Certainly a priest cannot be compelled to violate the priest-penitent privilege. Why is that more sacred from a secular perspective? To imprison Zigelman for his refusal to be a snitch against his co-religionists isn’t much of a stretch.

If only Rabbi Zigelman hadn’t been part of the crime.  At Volokh Conspiracy, Eugene doesn’t give Zigelman much of a chance of prevailing.  I suspect he’s right, though I can’t quite find a principled basis to justify that outcome.

H/T Billy

There’s a nagging question about what Thedala Magee did before she got a job with the TSA, where the power of the government to touch Americans at will emboldened her.  Did she hold some inconsequential, nasty, unimportant job, living a life of quiet desperation waiting for the chance to assert herself and let others know that she was a force to be recognized?

Without knowing more about Magee, one can only speculate, but her demand of the Advice Goddess, Amy Alkon, for the  payment of $500,000 for the emotional hurt caused by being named as the person who put her hand in Amy’s vagina four times at LAX suggests that whatever puny life she led before remains her burden.  Why else would she be so deeply hurt by the revelation?

Amy  first told the story of her treatment while the fury of “raped” by Magee was fresh in her mind.  There was no thought of concealing the name of the person whose hand penetrated her vagina.  Of course, not even the most fragile government sycophant would have imagined that a lawyer, whose aspiration is to be a  Hollywood ingenue despite her wrinkles, would seize the cause of Magee for lack of real work to do and send Alkon the nastygram.

The story is told here.  And here.  And here.  And here.  And here. And here. And here.  No doubt it will be told many more times today as well.

If Thedala Magee was stung by Amy Alkon’s using her name in describing what happened to her, she will be devastated by the attention she will receive now.  By compounding her touching with the shocking, if laughable, attempt to grab money, Magee will forever be known as the TSA agent who tried to rape twice, once by touching Amy Alkon’s vagina four times at LAX, and again by her lawyer’s demand for a half million dollars for her hurt feelings.

Will the government come to Thedala Magee’s aid, to compensate for her lawyer’s horribly bad judgment in turning her client into an object of perpetual ridicule on the internet?  The TSA’s routine response to allegations of improper sexual touching is that the agents are just doing their job, following procedure.  Which raises the question, is it the TSA’s procedure to have agents insert a hand in a woman’s vagina during a routine enhanced pat down?

I can’t imagine anyone at the TSA will take the position that its agents should insert their hands, or fingers, or penises, or tongues, into the vaginas, anuses, breasts or mouths of airline travelers.  I can imagine that there will be vague excuses to explain that these things don’t actually happen, and that their agents merely come near those parts of bodies over which Registries are made. The concern that TSA agents not be in fear of touching too closely, or sickly, presents a problem for both the TSA and those touched.

But when a person, regardless of whether they wear a uniform or think the government will cover their naughty conduct, violates the body of a person, there are no vague words that make it acceptable.  Not even a TSA agent is entitled to be a sexual predator under cover of the government.  This might all have been forgotten had Vicki Roberts, the Hollywood ingenue, not had too much time and too little prescience on her hands.  Her ill-advised demand has opened the door to a vast array of scrutiny.

What makes Thedala Magee special is that she has reminded the rest of us that the government is still empowering twisted nobodies to take liberties with the bodies of others in an exertion of their petty power.  Magee’s demand has given us reason to challenge the government’s ongoing violation of the body politic, and the bodies of human beings.  And no government agent has the authority to insert her hand into a woman’s vagina.

Marc John Randazza  has responded to Magee’s lawyer’s demand, with a letter that is meant to speak to all of us.  What happened to Amy Alkon happens to every person who believes their government should not put power in the hands of the puny, who then put their hands into our bodies, well beyond any authority the government can or does exert.

And that we have this opportunity to tell Thedala Magee, and every TSA agent who thinks their uniform makes them omnipotent or allows them to engage in the sexual assault or rape of an American, is very special indeed.  Thedala Magee is special, but not for the reasons she or Vicki Roberts thought she would be.