Let’s face it, there are times when the First Amendment just plain sucks.  There is the sort of revenge porn perpetrated by scum like Hunter Moore.  There is the poster boy for protected speech, the Skokie Nazis.  And Tim Cushing at Techdirt raised a new one, the companies that manufacture license plate readers.

Private companies engaging in large-scale surveillance are pushing back against the push back against large-scale surveillance… by filing lawsuits alleging their First Amendment right to photograph license plates is being infringed on by state laws forbidding the use of automatic license plate readers by private companies.

An intrusion on personal privacy on a mass scale never before seen, capturing license plates at a fantastic rate of nearly 1,000 per hour, the companies have amassed a database of about 1.8 billion images. And, aside from some company knowing all about movements, they’re happy to share them with law enforcement. Continue reading →

At the WaPo Conspiracy, insomniac lawprof Orin Kerr posts about an important Second Circuit opinion:

The Second Circuit has handed down a very important new Fourth Amendment case, United States v. Ganias. In an opinion by Judge Chin, the court held that the government violates the Fourth Amendment when it indefinitely retains computer files that were seized pursuant to a search warrant but are not responsive to the warrant.

Orin runs through the government’s “practical” arguments, ranging from the claim that once the government has it, it’s the government’s property, through its need to maintain the integrity of the evidence, whether for future availability or authentification.  And of course, the “no harm, no foul” argument since it later obtained a warrant to search what it had no right to possess.

As Orin does an excellent job addressing the opinion, there’s no need for me to recap as I have nothing worthwhile to add.  So why am I writing about it?  Well, in his sleep-deprived state, Orin goes one toke over the line when he writes: Continue reading →

If you read this post, I’m going to come to your house and beat the living daylights out of you.  Does this scare you?  Probably not, both because you know I won’t do it, and because you know I don’t mean it.  Not because you don’t necessarily deserve a damn good beating, but because there isn’t a chance in the world I could actually do it because anybody in the world has the capability of reading this post, and I wouldn’t have a clue who you are.

So while it’s a putative threat, it’s not a “true threat,” as the categorical exception to the First Amendment would require in order for my threat to be actionable.  But why? Is it because I didn’t really mean it, or because you weren’t really afraid? That’s the question posed in the Elonis case, in which cert was granted by the Supremes.

At Slate, Dahlia Lithwick offers a conflicted view of the case.  Anthony Elonis, regardless of whether his threats were true or not, is a pretty troubled dude, based on the thoughts that flow through his head alone.  He posted “rap lyrics” on Facebook about killing people. He claims it was artistry, because Eminem.  His wife, one of the targets of his artistry, thought otherwise.  It didn’t help that he “artistically” wrote about shooting up a kindergarten class. Continue reading →

The spousal privilege exists as a matter of legislation, but there is a secondary opportunity when it comes to other family members despite the absence of law protecting the relationship.  Federal Rule of Evidence 501 allows for the ad hoc creation of privilege based upon “reason and experience.”  And the reason and experience reflected in the Fourth Circuit’s Under Seal v. United States (no relation to the singer), by Judge Stephanie Thacker, speaks volumes about the government’s ability to compel a son to testify against his father.

Via the Wall Street Journal Law Blog:

The investigation was launched, according to the opinion, after Maryland sheriff’s deputies responded to a domestic violence 9/11 complaint at the father’s house, where they found drug paraphernalia and a mass of firearms.

The child, known in the opinion as “Doe Jr.,” lived with his father at the time, and moved to quash the request that he testify against his father. Doe Jr. argued he was protected by a so-called “parent-child privilege.” He argued, according to the opinion:

In a case like this, where the Government seeks to solidify a criminal case against the father by compelling the child’s testimony, the necessary conclusion on the child’s part will be that he, [Doe Jr.], is responsible for his father’s prosecution. The damage to the father-son relationship is, under these circumstances, as certain as it is incalculable.

The district court granted the motion, finding that a privilege did exist.

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In Padilla v. Kentucky, the Supreme Court held that the collateral consequences of a plea mattered, enough so that a defendant was entitled, under the Constitution’s promise of effective assistance of counsel, to be accurately told of the immigration consequences of his plea to a drug offense.  Maybe the Second Circuit thought that was just the Big Bench being softies on immigration, or maybe they figured this was a way to circumvent the problem, but should the crime require post-release sex offender registration, the rules change.

In Doe v. Cuomo (one name of which is used to conceal the party in interest’s true identity), the court crushed the hopes and dreams of ending a decade-long nightmare, following a plea of guilty to the state misdemeanor of attempted possession of a sexual performance by a child.

The amendments extended the registration requirement for level-one sex offenders from ten years to a minimum of twenty years and also eliminated the ability of level-one sex offenders to petition for relief from registration. Doe argues, among other things, that requiring him to comply with these post-plea amendments violates the Ex Post Facto Clause and the Fourth Amendment, and deprives him of due process and equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983.

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After watching a number of youtube videos sent to me, each of which involved a person subject to commands by police who were, upon failure to comply, harmed, it occurred to me that both the victims of the harm, and those who commented about it, failed to appreciate what was happening.

The harm was in response to what we refer to as “contempt of cop,” the failure to do as told, whether completely or quickly enough.  The reaction tended to focus on the propriety of the command. Sit down. Stand up. Stay in the car. Get out of the car. Stop the video. Move away.  The reaction by the target of the command was that they don’t have to, the command was unlawful or that the order was ridiculous.

The orders may be arbitrary. The police officer didn’t particularly care whether the person was standing or sitting, in the car or out.  What the cop cared about, and cared deeply, is that the person complied with his order, no matter what his order was. Command presence. Continue reading →

I’m not an easy dad to serve breakfast in bed.  I awake rather early, often before the sunrise, and few young people share my circadian rhythm.  My kids call me a farmer, among other things.  It’s understandable.

But my daughter woke up this morning, on her own, at 7:30 a.m.  It is not a time of Sunday with which she is well acquainted.  She didn’t say good morning to me, but instead quickly shuffled out of the house and got in her car.  She was off to the bagel shop.

My breakfast of preference for Father’s Day is flagels and lox.  Don’t judge me. It’s what I like, and I’m allowed.  There are a few bagel shops around here, but one makes the best flagels, and it always has a long line.  I knew she would go there, and I knew she would wait on line.  That’s my gift from her. Continue reading →

As should be readily apparent, rights clash all the time.  My right to free speech comes at the expense of someone else’s right to be left alone.  Your right to safety comes at the expense of my right to liberty.  Balancing rights is usually unsatisfying, as they then fail to serve any purpose very well.  For those who think this should all be simple and easy, these clashes offer some indication of how difficult it can be.

Bobbi Jo Floyd of Richland, Washington, got smacked in the face by a clash of rights, but both were hers and neither were inherently in conflict.  Via KOMO News:

The Second Amendment gives every law abiding American the right to bear firearms, but the two don’t coexist very well when it comes to marijuana. The conflict between federal and state law is putting police and gun-owning marijuana users in the middle.

It’s a conflict Bobbi Jo Floyd of Richland knows all too well.

Floyd is also an outspoken proponent of medical marijuana and an authorized patient.

“I’m also a Republican and I believe in my guns,” she said.

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During the #notallmen and #yesallwoman twitterfest, one twit stood out as the embodiment of the feminist rationale. Ironically, it was a twit by a man.

Put aside the logical and statistical failings of the metaphor, and consider instead its emotional appeal as a justification for women’s condemnation of the 90% for the actions of the 10%.  And if you’re a lawyer, wipe Blackstone’s Ratio completely from your mind.  This became a rallying twit, and was taken to heart by those seeking to justify their victimhood.

Cut to a video that went fairly viral, of drone flying Austin Haughwout being attacked by Andrea Mears, who was certain he was a “pervert” using his drone to harass women and take improper photos of Mears on the beach. Continue reading →

How many times have you wanted to respond to your prosecutor’s plea offer with, “are you on drugs?”  Apparently, it might be the correct response on occasion, as revealed by an article first published in the Washington State Bar Association’s NWLawyer and reposted at The Puddle.  From the perspective of a reader who enjoys made for TV movies on Lifetime, it’s a heart-warming story of survival and redemption.

From the perspective of a person responsible for the lives of other people, it’s a story of massive failure, at many levels.  While redemption is good, and a lawyer shaking off the yoke of addiction and surviving is laudable, the lack of recognition of the harm that may have been caused to others is disturbing.  Great for the lawyer. Not so great for anyone else. And troubling that neither the lawyer nor the empathetic realize it.

Douglas Wilson “Wil” Miller is a litigator in Seattle with a private practice focused on criminal defense, family law, and personal injury. During his career, he had the honor of working for three remarkable county prosecutors before going into private practice.

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