It’s hard to fault Justice Neil Gorsuch’s textualist logic, even if he felt compelled to repeat himself a few times for clarity. The holding of Bostock v. Clayton County* is clear: firing gay and transgender employees, where “but for” being gay or transgender they would not have been fired, is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964. As outcomes go, it’s a policy that should have been done a generation ago, had Congress ever had the guts to do its job.

And while many are in shock that this 6-3 decision included the hated Justice Gorsuch, usurper of the seat from Merrick Garland, and Umpire C.J. John Roberts, it’s a lesson to all that justices rarely fit into anyone’s political paradigm, whether thrilled by the decision or outraged.

When Congress enacted Title VII, it used the word “sex” as a shorthand, a word intended and universally understood to mean “male and female.” The notion that this would someday prove to be inadequate to express its scope would have been absurd at the time, as the law routinely still criminalized gay sex and transgender people didn’t exist in the popular mind. The Court dispensed with this argument. Continue reading →

Remember “don’t taze me, bro“? Good times. Over the years, we’ve watched cops deploy their Tasers and, on occasion, people die. It got so bad that Taser International had to revive a debunked cause of death to explain it. Tasers characterization was changed from “non-lethal” to “less-than-lethal,” because while they weren’t as deadly as guns, they weren’t undeadly either.

It got so bad that Taser International had to change its name to Axon.

But now, Tasers aren’t deadly anymore, and Taser has Rayshard Brooks to thank.

A taser is not a deadly weapon. A gun is.

Adrenaline and irritation are not the same as mortal fear.

Running away should not be punishable by death.

Public safety must mean the public is safe. All of us.#BlackLivesMatter #AtlantaShooting #RayshardBrooks https://t.co/44ReSLU4Ev

— Stacey Abrams (@staceyabrams) June 13, 2020

It’s not that a Taser is a deadly weapon. It’s that it isn’t an undeadly weapon. It’s not that a Taser is as deadly as a gun. It’s not. But it’s not incapable of causing death or serious bodily injury. What it is, however, is that we’ve just flipped the narrative because this time, this one time as opposed to all the other times, the Taser was taken from the cop and, while Brooks fled, fired at the cop. The cop shot him. The cop killed him. The cop had a gun. Brooks had the cop’s Taser. And now a Taser is not a deadly weapon.

Graham v. Connor controls the use of deadly force by a police officer, giving rise to the “Reasonably Scared Cop Rule.” The fear is not just one of death, but serious injury. Can a Taser cause serious injury? If it can cause death, then it would not seem much of a downward stretch to conclude that serious injury can occur as well. Even if a Taser isn’t a deadly weapon, that doesn’t mean it falls outside the scope of the Rule.

Still, there are significant doubts as to the legitimacy of shooting Rayshard Books, whose identity was know to the police. Let him run, catch him later. No, it’s troubling that some would expect a cop to take a potential taze from a stolen Taser, and the less passionate might recognize that the expectation that cops would let a fleeing defendant taze him without taking action is unrealistic. What’s a cop to do?

Then again, a tazing might hurt, even kill, but shooting a guy three times in the back is surely a more definitive use of deadly force. Once the Taser was fired and the cop wasn’t harmed, was there still a need to fire? There might have been a second set of prongs in the Taser, with 50,000 volts of their own, but if he stayed out of range, any potential harm would have been avoided. There are a lot of moving pieces to what happened, and there is a very strong argument to be made that killing Rayshard Books wasn’t justified.

But in the process, we learned that the Taser was no big thing. Why did we spend all those years, all those words, all those lives, thinking it was a bad compliance tool and one that could very well kill people only to learn that it was no big deal?

Can we talk? No, of course not, because that might lead to someone saying something that would be unacceptable. Now that a consensus has formed around the vague understanding that racism is real, that cops are a serious problem and that the problems criminal defense lawyers have been raising for decades aren’t figments of our fertile lefty imaginations, a sufficient percentage of Americans are ready to accept the fact that change is not merely needed, but required.

Cool, right? Maybe not as cool as one would think.

Crime data and research support calls to defund. Continue reading →

In an interesting, if unavailing, Boston Globe op-ed, Aubrey Clayton offers a valuable contribution to the discussion of the racism of police killings. As it’s kind of a big subject at the moment, with nearly everyone who’s math challenged certain that police are slaughtering black people, it provides some worthwhile concerns.

Unfortunately, Clayton opens by begging the question.

There is overwhelming evidence of racial bias in the criminal justice system, in everything from policing to sentencing. Nonetheless, the ongoing protests against racism and police brutality have prompted a familiar, fallacious reply from armchair statisticians in op-eds, social media, and police departments: that racial bias in the use of force by police is a myth, easily debunked with statistics. Continue reading →

After Walter Olson wrote about “taming police unions” at Arc Digital, which curiously relied on all manner of newfound scholarship despite the fact that an old trench lawyer has been writing about this for many years before academics discovered the problem, an interesting question was raised. Was it possible to allow other public sector unions, teachers, clerical staff, nurses, firefighters and others, while prohibiting police from unionizing?

Putting aside the other insurmountable failings of public sector unionism, it’s never been tried. Once laws were enacted to allow public employees to form collective bargaining units to negotiate the terms and conditions of employment, it was no less applicable to cops than anyone else. Now, people are considering alternatives. Continue reading →

Even as the helpful reply guys popped into my timeline to “explain” to me what Defund Police really meant, citing the renowned police reform scholar John Oliver or their favorite blue check on the twitters, I just shook my head. They meant well, even if they didn’t know shit from Shinola. And it’s hard to control that natural human impulse to tell other people stuff.

But unlike the slackoisie, I’ve paid attention to the more radical ideas for criminal law and police reform over the years, so I knew what they didn’t. When they called to abolish police, they meant it. And frankly, I appreciate the honesty that this isn’t some coded slogan for reform, replete with the thousand variations of what they really meant from their helpful friends who felt compelled to explain their words for the sake of the deplorables. They meant what they said. Continue reading →

Rather than turn to the liberal think tank, Brookings Institute, which has produced a fairly sound and fair review of the new Title IX regs, they turned to the louder, if less factual, source of the “survivor” activist organization, Know Your IX.

Jaslin Kaur, student engagement organizer for Know Your IX, a national advocacy group for survivors of sexual assault, agrees that community colleges often lack the resources and infrastructure to adequately respond to Title IX complaints — and that the new regulations won’t change that. She said community college students busy with work and childcare responsibilities and commuting back and forth to campus are less likely to know the protections that Title IX affords to them. The new regulations further reduce those protections, Kaur said.

Continue reading →

No, not an order to clear the area. Not an order to shoot into a crowd of peaceful protesters. Not even an order to beat and arrest a reporter. But NYPD Lt. Robert Cattani of the Midtown South Precinct had one regret.

“The conditions prior to the decision to take a knee were very difficult as we were put center stage with the entire crowd chanting,” he wrote.

“I know I made the wrong decision. We didn’t know how the protesters would have reacted if we didn’t and were attempting to reduce any extra violence.”

Cattani was one of those white shirts who got down on knee to show solidarity with protesters. These were the pics that people gushed over on social media, in juxtaposition to images of militarized cops firing at crowds or pushing an old man to the ground. These were supposed to be the good cops, the more empathetic cops. Why couldn’t all cops be like Cattani? Continue reading →

A student asked UCLA accounting lecturer Gordon Klein for some sort of accommodation. What, exactly, is unclear, as the email seeking it hasn’t been fully disclosed, but Klein’s response has generated some extreme outrage, the university suspending him and police protecting him against threats of harm.

According to screenshots of the exchange shared with Inside Higher Ed, the group of students asked Klein for a “no-harm” final exam that could only benefit students’ grades, and for shortened exams and extended deadlines for final assignments and projects.

In light of recent “traumas, we have been placed in a position where we much choose between actively supporting our black classmates or focusing on finishing up our spring quarter,” the students wrote. “We believe that remaining neutral in times of injustice brings power to the oppressor and therefore staying silent is not an option.” Continue reading →

At various points in the past, the public perception of police ranged from heroes to a few bad apples. Television created mythical cops who were not only endearing public servants who protected us from mustachioed villains, but had magical powers to know the good guys from th bad. No TV show, even on cable, showed the street cop tossing some random black kid against a wall for his daily stop and frisk, or reply to a question in the usual cop lingo of “shut the fuck up, asshole.”

There was a lot of bad that somehow never managed to make it into the public’s eye. Well, some of the public, anyway. What they didn’t do on Park Avenue was done daily on 168th Street. And no, it wasn’t because they deserved it, but just because that’s the way it happened. Continue reading →