As Cristian Farias ably notes, the errant paragraph of Justice Scalia’s Heller opinion holds the door open to, well, wild interpretation. And as Cristian further ably notes, the errant paragraph means that there is no need to repeal the Second Amendment, no matter how many youngsters take to the street or how much David Hogg, et al., are enjoying their 15 minutes of fame.

In a passage that has become a thorn in the side of gun-rights enthusiasts, Scalia warned that people shouldn’t read too much into the fundamental right that he had just helped announce. Among other caveats and restrictions, Scalia wrote, “long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” were still fair game.

There are two rather huge holes in this paragraph, the first being that Scalia offers no principled basis for it, in contrast with the rest of the decision holding the Second Amendment to be a fundamental individual right. It’s assumed to be a compromise, to soften the blow of the holding by not undoing the entire regulatory scheme for firearms. Continue reading →

Any law named after a dead child is presumptively a bad law.

–The Ted Frank Rule

There is a movement afoot to enact “Marsy’s Law.”

Kelly Vierling, a Stillwater native, says she never had any doubts or concerns about the criminal justice system before tragedy struck her family. “You always just assume the system works until you are thrown into it,” she says. Continue reading →

There are few things that makes us feel more justified in being authoritarian than an empirical study, all wrapped up statistical-ish words. We don’t know quite what he means, and hang on the technical jargon so the weasel words connecting the parts that don’t move well together can be easily overlooked. This is no more true than when there is an evil villain to blame for the death of human being, and Paul Cassell doesn’t disappoint.

As the Chicago Tribune reported this morning, University of Utah Economics Professor Richard Fowles and I have just completed an important article on the 2016 Chicago homicide spike. Through multiple regression analysis and other tools, we conclude that an ACLU consent decree trigged [sic] a sharp reduction in stop and frisks by the Chicago Police Department, which in turn caused homicides to spike. Sadly, what Chicago police officers dubbed the “ACLU effect” was real—and more homicides and shootings were the consequence.

It’s like a perfect storm, homicide spike, “multiple regression analysis and other tools,” and of all the people who could possibly be responsible, it’s the ACLU! The ACLU? Who doesn’t hate them? It’s even got a cool name, the “ACLU effect.” How could this not be right? Continue reading →

For the past ten years, the ABA Journal has run a “peeps in law” contest in anticipation of Easter. It’s cute. It involves a diorama made of icky candy, making it absolutely perfect for any third grade classroom. But one submission has been deemed too provocative, too controversial, year after year to be allowed: the Peeps of B. McLeod. And so his 2018 Peeps appears here instead.

No, I can’t tell which one is Stormy Daniels either. Continue reading →

The big question for college admissions officers is whether an applicant has the chops to graduate. At least, that used to be the big question before it was supplanted by whether their admission demographics matched Skittles. And like so many worthy causes, it had unintended consequences. In this instance, the consequence was failure.

First, some good news: In recent decades, students from modest backgrounds have flooded onto college campuses. At many high schools where going to college was once exotic, it’s now normal. When I visit these high schools, I see college pennants all over the hallways, intended to send a message: College is for you, too.

How wonderfully inspirational, even if the positives of higher education too often fail to meet the promise of “averages.” If they paid tuition, there was a cost involved. Even if they didn’t, there was opportunity cost. And then there was the cost of realizing that you can’t make the grade, even if they gave you better grades than you earned because, well, reasons.  Continue reading →

Lawyers. You can’t live with them, but you can’t live without them after the commencement of a criminal prosecution.* So the en banc Sixth Circuit, in its intermediate wisdom, has provided a roadmap to circumvent the Sixth Amendment right to counsel. Jonathan Adler at Volokh Conspiracy explains.

The Sixth Amendment to the U.S. Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” Yesterday, in Turner v. United States, the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, considered whether this right applies prior to criminal indictment. By a vote of 12-4, the Sixth Circuit concluded the answer is “no” — at least under current precedent.

And it’s clear, under current precedent, that the court arrived at the only answer possible. Judge John Bush concurring: Continue reading →

Social media can be a joy or nightmare, according to the moment. When random people “like” your twits, you feel so validated. When they twit back that you’re the ginchiest, you bask in the warm glow of their love. But when some random, unknown frogboy responds that you should be raped?

This week, Amnesty International released a report declaring the social network “a toxic place for women.”

“The company’s failure to meet its responsibilities regarding violence and abuse means that many women are no longer able to express themselves freely on the platform without fear of violence or abuse,” Amnesty International said.

The human rights group conducted research on the site between December 2016 and March 2018, interviewing 86 women and non-binary individuals in the United States and United Kingdom about their experiences. The organization also conducted a separate survey of 1,100 British female Twitter users: 62 percent of them experienced abuse, while 78 percent said they didn’t feel they could express their opinion without being trolled.

Continue reading →

If you’re a prisoner serving an indeterminate sentence in New York, your god isn’t Jesus, Allah or Pasta. It’s the Parole Board. A purely political gang, accountable to no one, which holds literal life or death power over you. It’s not that the power can be used arbitrarily, but that there is no other entity that can grant you parole after you’ve served your minimum sentence. And all it takes for them to hold you in prison until the day you die is a shrug and nah.

This applies to prisoners sentenced as adults. This applies to prisoners sentenced as youths. All must pray to the Parole gods, or they will rot until their 15 to life has maxed out. Judges have tried to force the Parole Board to do their job, to no avail. Even if the Parole Board’s denials are pro forma malarkey, the most they can do is order the board to do is reconsider, getting another denial plus more empty words. Some victory.

Cravath has taken on the cause on behalf of plaintiffs, as a class action, who were sentenced as juveniles, making an end run around the Parole Board by suing for a violation of their constitutional rights in the Southern District of New York. Continue reading →

Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

On Saturday, March 17, 2018 in Sacramento, Stephan Alonzo Clark was in his grandparents’ back yard. Police, who were looking for a man suspected of breaking car windows, came into the backyard, confronted him, and fired 20 rounds, killing him.

Clark was not armed and only had a cellphone. The Sacramento Police have a policy of releasing their video within 30 days of an officer-involved shooting. Having reviewed the videos[i] , they illustrate a common problem in the way we currently train police officers.

(This video is from the Washington Post, and they have synchronized the audio from all the body cameras and the helicopter.) Continue reading →

Not just overweight, but obese. Americans continue to get fatter.

American adults continue to put on the pounds. New data shows that nearly 40 percent of them were obese in 2015 and 2016, a sharp increase from a decade earlier, federal health officials reported Friday.

The prevalence of severe obesity in American adults is also rising, heightening their risks of developing heart disease, diabetes and various cancers. According to the latest data, published Friday in JAMA, 7.7 percent of American adults were severely obese in the same period.

The reasons are fairly obvious. We eat processed, carb-laden, sugary foods, provided they’re gluten-free. We don’t get nearly enough exercise, if you don’t count your finger moving whenever the tone alerts you to a new Facebook “like.” Continue reading →