If the option is kill or be killed, the choice is clear. But the option is rarely so clear. The probability of surviving an encounter with police is vastly improved by complying with their orders, no matter how wrong, confused, conflicting or distasteful they may be. No, no innocent, law-abiding person wants to be forced to lie in the dirt, and any cop who fails to grasp this is an idiot. But better to have to wash your clothes than have your loved ones lay out clothing for a funeral.

And before anyone else points out the obvious, no, compliance doesn’t guarantee survival or even that you make it through the encounter without physical injury. But it still greatly enhances the likelihood you will, and that’s about the best we can do until we come up with a better way to all survive. Continue reading →

She was fired from the Buffalo police department before she hit her 20 year mark, and finally was vindicated by a decision almost 15 years in the making that her termination was wrongful. So what did former Buffalo cop Cariol Horne do that was so bad that she was thrown off the force? She saved a life.*

On Nov. 1, 2006, a postal worker flagged down a patrol officer to report an argument between a man and a woman at a two-unit house on Walden Avenue. Among the Buffalo police officers responding was Horne. Continue reading →

The killing of Daunte Wright, on the heels of the needlessly aggressive actions of officers who stopped Lt. Caron Nazario, during the trial of Derek Chauvin for the murder of George Floyd, is a “perfect storm.” For what, however, varies wildly.

Is this the moment to revisit whether police should be involved in traffic stops at all? They are too easily abused as pretext stops. The legal justifications range from trivial nonsense that could be better handled by non-police, indeed, cameras, although they too have significant problems that seem to elude those arguing for alternatives. And drunk drivers, dangerous vehicles, harm others. There’s a long list of concerns which are serious when they’re on the front burner, and insignificant when another problem is front and center. Continue reading →

Is there a “bright side” to the misbegotten stop of Lt. Caron Nazario? Absolutely. He “only” ended up being pepper sprayed and not dead, like Daniel Shaver. Both presented two fairly common themes in police encounters. First, the person is not an “experienced criminal” who knows what to do when he’s confronted by the police, but is an ordinary, law-abiding citizen who has no reason to expect the police to feel antagonistic or threatened by him. Second, the police issued conflicting commands. Or to be more realistic, police simultaneously screamed  directly contradictory orders interspersed with threats and vulgarities.

These two factors aren’t inherently connected, and yet play out together. What’s an ordinary person to do when two police officers, with guns drawn and pointed, engaged you with professionalism, courtesy and respect? Continue reading →

Ed. Note: This isn’t a post about what happened to Lt. Caron Nazario. I make that absolutely clear up front because I will be brutal about it later in the comments. Don’t go there.

For the most part, the twitter account @BadLegalTakes has a fun, if overwhelming, time, retwitting screen caps of legally ignorant things being spewed on twitter, mostly by non-lawyers, but occasionally by lawyers and even the President of the United States. There is no shortage of legal ignorance, with a certainty of correctness that would make Dunning and Kruger blush. Continue reading →

The Retail, Wholesale and Department Store Union tried to unionize an Amazon warehouse in Alabama. The employees voted. The union lost. Obviously, that can’t be possible unless Amazon did something wrong, because why else wouldn’t employees vote for a union to take dues from their paychecks?

“Our system is broken,” said Stuart Appelbaum, the union’s president. “Amazon took full advantage of that.”

Continue reading →

It was awful. Disgusting. Repugnant. But was it assault?

A Florida woman who was seen in a widely watched video intentionally coughing on a shopper at a Pier 1 home-goods store last summer, as fears about the pandemic raged, was sentenced on Thursday to 30 days in jail, court records show.

The woman, Debra Hunter, 53, had been charged with misdemeanor assault in June after she walked up and coughed on the shopper, Heather Sprague, who had been recording video of Ms. Hunter’s dispute with employees at the store, in Jacksonville.

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For years, UCLA Lawprof Eugene Volokh has provided interesting and thoughtful commentary on First Amendment law, establishing himself as one of the foremost scholars of Free Speech in the country. Perhaps more importantly, Eugene has become something of a free speech guru at his long-standing blawg, Volokh Conspiracy, and some people, lawyers and lay alike, tend to take Eugene’s word as First Amendment gospel. It’s not that they necessarily find his arguments persuasive, but that if Eugene says so, then it must be.

Mark Bennett isn’t necessarily buying.

I’ve been writing for eight years now about how revenge porn statutes are unconstitutional because the Supreme Court has defined “unprotected speech” as “speech within narrow categories of historically unprotected speech,” and nothing about revenge porn puts it into any heretofore recognized category of unprotected speech.1

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He didn’t make it to the second year of medical school at the University of Virginia by being a slacker or none too bright. So when Kieran Bhattacharya decided to raise questions to a panel discussing the fashionable if unempirical notion of microaggressions, he chose to ask some questions. Pointed questions, but just questions.

Bhattacharya: Hello. Thank you for your presentation. I had a few questions just to clarify your definition of microaggressions. Is it a requirement, to be a victim of microaggression, that you are a member of a marginalized group?

Adams: Very good question. And no. And no—
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The question of what constitutes “consent” to sex has been in near constant flux for the past decade, employing various meaningless characterizations doomed to fail. For the most part, these battles have been waged on college campuses and civil courtrooms, with criminal law remaining modestly above the fray. A gang of woke academics tried to change the definition in the Model Penal Code to “affirmative consent,” but were beaten back by lawyers who grasped their definition was untenable and backwards.

NYS Assemblywoman Rebecca Seawright has proposed a bill to redefine consent. Penal Law §130.5 now provides that the prosecution must prove lack of consent as an element of the crime. Beyond force and incapacity to consent, the definition requires that the “victim” communicate lack of consent. Continue reading →