The assumed connection between drug dealers and their guns has long been a fixture of law, justifying the approval of no-knock warrants, night-time warrants, searches under the protective sweep exception, searches for the hell of it, called frisks even though they involve emptying pockets of small, soft baggies of things, and any number of emanations and penumbras where drugs are involved.

But for the most part, judges put in a little effort to try to pretend that there is some articulable fact, some specific detail, that elevates the routine to the lawful.  In a bold display of honesty, Maine Senior District Court Judge George Singal breaks free of the chains.  Via Brad Heath, Judge Singal eliminates the “middle man” in United States v. Shaun Wray.

Continue reading →

The outcome in Justice Clarence Thomas’ opinion for the 5-3 majority in Utah v. Strieff didn’t come as a surprise, but only because Andrew Fleischman called it.

The idea back then was that, when the government acted unlawfully, it should not benefit as a result. It’s the same basic reason that the government won’t let you use unlawfully obtained money to pay for your legal defense.

Then, somewhere along the lines, things got muddied. Suddenly, the exclusionary rule wasn’t about preventing the government from benefiting from illegal conduct. Instead, it was solely about deterrence.

This refers to Wong Sun and the “fruit of the poisonous tree” doctrine. Violate the Constitution and you don’t get to enjoy the benefits of illegal conduct. Not too elusive of a concept, but one that has fallen into disfavor because it lets the criminal go free. Who wants that? Continue reading →

At Empty Wheel, Marcy Wheeler notes that the government is withholding autopsy information that would reveal how many of the victims of the Orlando shooting died from “friendly fire,” bullets shot by police in their effort to take out the shooter.

Orlando’s police chief said that it was possible that some law enforcement officers — that might include the four who initially responded to Omar Mateen or the nine SWAT team members who later did — had (accidentally) shot Pulse patrons.

Monday, Orlando Police Chief John Mina and other law enforcement officers offered new details about the shooting, including the possibility that some victims may have been killed by officers trying to save them.

Faced with an active shooter and a room filled with innocent people, a tactical decision must be made by police whether to fire to attempt to end the threat, even though there is a likelihood that their bullets will strike an innocent and kill them.  There are times when this tactic makes sense, where the choice is between bad alternatives and the least bad alternative is chosen. There are times when it’s a tactically unsound decision. Continue reading →

Facts are what they are, provided they’re facts. They may support a narrative. They may not. They may introduce ambiguity that takes a good narrative and makes it squishy. That can’t be helped. They’re facts. Until the government gets its hands on them, whereupon facts become what the government says they are, for the sake of the victims.

In an interview with NBC’s Chuck Todd, Attorney General Loretta Lynch says that on Monday, the FBI will release edited transcripts of the 911 calls made by the Orlando nightclub shooter to the police during his rampage.

“What we’re not going to do is further proclaim this man’s pledges of allegiance to terrorist groups, and further his propaganda,” Lynch said. “We are not going to hear him make his assertions of allegiance [to the Islamic State].”

There has been remarkable in-fighting over what motivated the Orlando shooter.  Knowing who killed no longer suffices in addressing a horrific crime. What replaces banal concerns is who gets to claim credit for being victimized, which gives way to who gets a new law to protect them from victimization.  Or, as Attorney General Lynch says, “revictimization.” Continue reading →

Millions upon millions of people have opined that Judge Persky was wrong to sentence Brock Turner to 6 months incarceration.  Many have called for his removal from the bench because they found this sentence outrageous.

But what is the right sentence?  Bear in mind, there are five factors to be considered in fashioning a sentence.

• Retribution (punishment)
• General Deterrence
• Specific Deterrence
• Incapacitation
• Rehabilitation

Within that framework, parsimony requires that a defendant be sentenced to no more than is necessary to serve those functions. Continue reading →

After writing more than 1500 words this morning, I decided to trash my horribly self-indulgent post and instead quote Orin Kerr.

I’ve come to the realization that people who disagree with me are just arguing in bad faith. How do I know? Well, when I get into an argument, no one who disagrees with me ever says anything I find persuasive. They never even come close. It seems to me that if a person who disagrees with me were smart and acted in good faith, surely he would say something that persuaded me (even if only a little). But since that never happens, people who disagree with me must be either stupid or acting in bad faith. I’m a generous person, so I won’t assume the other guy is stupid. And that leads me to conclude, reluctantly, that people who disagree with me are arguing in bad faith.

This was written in 2010. It’s gotten worse since then. More significantly, smart, well-educated people have given up thought for emotion, and then indulged their value system by pretending that it’s justified because they’re right and anyone who disagrees is not just wrong, but malevolent. Continue reading →

Cristian Farias wrote a post about a guy named Daniel McGowan, who was punished by the United States Bureau of Prisons for violating a regulation that had been rescinded, getting tossed in the hole and then being told by the Second Circuit that he had no “clearly established right” to not have this happen to him. I picked up on Cristian’s post, and wrote about it here.

This isn’t where this post ends, but where it begins.

A passionate advocate named Ryan Fletcher, who is with Movement Media, appreciated Cristian’s post.  Whether this was because he pitched the story or just liked it is unknown. That something like Movement Media openly exists is itself a disturbing sign of the times.

We are activists at heart and publicists by trade.
We create and anchor public relations and
communications infrastructure to build movements,
sustain momentum, and influence social change.

In the past, this would be considered a shameful endeavor, seeking to manipulate opinion to “influence social change.”  It’s not that it’s wrong to believe that one’s flavor of social change is a virtue, but that the means by which it succeeds is the merit of its argument, not public relations skills as are beloved in the marketing of new and improved laundry detergent. Continue reading →

When Andrew Fleischman finished writing his Fault Lines post about the Texas Supreme Court’s decision in Texas v. One 2004 Lincoln Navigator, he was still shaking his head.  “Why,” he rhetorically asked, would they have gone through all that effort to justify endorsing a constitutional violation?

The decision is one of those sophist’s arguments that reflect the sort of hypertechnical legal reasoning that makes people think “the law is a ass.”  It’s not that the rationale is logically wrong, but that, given the rationale for the opposite result is similarly logical, it reflects a policy choices between two rational positions.  And that’s what makes the decision so hard to fathom.

Why, one has to ask, would the Supreme Court of Texas make the policy choice to turn a blind eye to a violation of the Constitution for the purpose of allowing forfeiture of unlawfully seized assets.  After all, of the many assertions of authority by the government, few are more hated, more easily abused, more subject to error and more onerous for an innocent owner to fight than civil asset forfeiture. Continue reading →

Whether the $22 million verdict will hold up on appeal has yet to be seen. Whether it will be collected, in whatever amount is eventually determined, is a separate question. But what the cops in East Cleveland did to Arnold Black is as good a reason to bankrupt that cesspool in any event.

After leaving his mother’s house after dinner on April 28, 2012, Black was driving home through East Cleveland when he was tailed by Det. Randy Hicks who was driving an unmarked car, according to testimony.

The two exchanged glances and another officer, Jonathan O’Leary, pulled up behind him. O’Leary ordered Black out of the truck, handcuffed him and sat him on the hood.

Hicks tore apart the inside of Black’s green truck, including the door panels, searching for narcotics.

Scholars parse Supreme Court opinions for hidden meaning on the Fourth Amendment. Cops just rip apart green trucks because they want to. Fit that one into your law review article. Continue reading →

San Francisco Public Defender Jeff Adachi opened his op-ed on public defender bias with an anecdote:

A couple of months ago, a San Francisco public defender was assigned a case. The client was a 19-year-old African American arrested for carrying a gun. He faced a stiff sentence for weapon possession.

He explained to his attorney that he began carrying a gun after his best friend was shot dead by rival gang members at war with a gang in his neighborhood. He was not part of that group, but he feared he would be killed in the violence that rocked his streets.

The client’s lawyer, who had grown up in an upper-class neighborhood and graduated from a good school, had a hard time understanding this explanation. Why, she wondered, didn’t her client just call the police?

His purpose in relating this story was to show that even public defenders, a subgroup of criminal defense lawyers closer to minority defendants than any other, suffer from bias. It’s written for public consumption, to make a point about implicit bias, that some find it hard to grasp that there are people whose lives were different than theirs, and this gives rise to a misapprehension of how they think, how they react, how they exist. Continue reading →