In a surprisingly frank post. Tom Goldstein of  SCOTUSBlog™ , who has done more than his share of arguments before the Supreme Court, offers some inside baseball concerns about the gay marriage cases awaiting the Court’s blessing.

The upshot is that the parties and lawyers driving the gay-marriage cases have cornered the Justices. They brought and won cases striking down a federal law, a California initiative, and an Arizona statute.

In fact, these are test cases. On day one, the lawyers knew that persuading the lower courts just meant they would end up here. They wanted to force the Justices’ hands.

It worked. Even if the Court wants to stay out, it cannot.

In other words, you got what you asked for. Now are you sure you really want it?

The dilemma for gay rights advocates is that these test cases may be too much, too soon. Too much because Justice Kennedy – the decisive vote – is a conservative on a conservative Court, and many conservatives view heterosexual marriage as foundational.

Too soon because while our culture has rocketed ahead to acceptance of gay marriage, the Court generally rides a horse and buggy. Often, that is just what we want: a Court that does not get pulled along by the tides of the moment.

The issue must be addressed, but are these the Nine we want deciding it? On the one hand, we don’t get to pick the judges who will decide the test cases. On the other, we don’t want to wait another generation or two for a court majority that has caught up with the rest of the nation.  On the third hand, who knows when we will get a Supreme Court comprised of justices who aren’t so deeply embedded in the past, or religion, or politics, that they feel the nature of cultural shifts that allow for foundational change?  And do we want to condemn the next generation or two to living under the thumb of old law based on out-of-date cultural norms until most of the judges get it?

Without the time to adapt, this Court is unpredictable.  Take Bush v. Gore and Obamacare.  The constitutional claims in both cases were generally regarded as ridiculous. But the cases raced ahead to the Court.  And both claims won, with only the Chief Justice saving the health care statute.

That is why other historic test cases like Brown v. Board of Education are so different.  The NAACP controlled race discrimination litigation.  It built a body of lower court and Supreme Court decisions over years.  The Court had time to adapt before it had to decide.

And of course, Brown was decided by a very different Court.  You cannot point to many liberal test cases that won in recent decades.  Conservatives have won on guns and affirmative action; they lost on property rights.  But for pretty good reasons, the left does not even try.  Progressive groups spend all their energy keeping cases away from this Court.

As wonderful as it may appear to have an issue before the court of the historic, foundational nature as Brown v. Board of Education, imagine what our world would look like if the Court had ruled the other way. It’s inconceivable now, but it wasn’t then. And the NAACP spent much time and effort free lessons at Arthur Murray before taking it to the big dance.  It was not going to blow its one big chance at changing the world.

Ohio State lawprof Doug Berman, in a rare commentary, reacts.

[T]his post has a flourish concerning the conservative leanings of the court Supreme Court that reflects what I see as a persistent and problematic myopia concerning criminal justice issues now reflected in the view of many (if not most) of the elites who follow and discussion the work of the Roberts court.  Here is the passage that got under my skin:

You cannot point to many liberal test cases that won in recent decades. 

Berman gives a list of decisions, ranging from Crawford in 2004 to Miller in 2012, to show that the Supreme Court has hardly been as conservative as Goldstein claims, and has in fact been pretty progressive.

I am a bit frustrated that Tom Goldstein does not in this context acknowledge that the Supreme Court right now is, in fact, acting in quite progressive ways on behalf of criminal defendants (which is, of course, one huge way in which the Warren Court established its liberal reputation).  But the myopia in his recent post strikes me as symptomatic of a broader failing among SCOTUS elites and (too) many progressive elites who fail to focus upon or even recognize the extensive harms being done to various vulnerable populations through modern mass criminal justice systems.

Apparently, anyone who thinks the Supreme aren’t up to warp speed are dismissed as myopic “elites,” a rather disturbing resort to ad hominem characterization. At least Berman’s commentary received the applause Bill Otis, who has never met a sentence that was too harsh.

While Berman’s laundry list of criminal defense wins before the Supreme Court has some merit, though not all were as progressive as some seem to think, it misses a critical distinction in Goldstein’s argument. There are big cases and small cases, big shifts and small shifts. Heller, for example, was a big decision.  As it turned out, so was Booker in 2005, but it took the Supremes until 2007 in Kimbrough/Gall before anyone took it seriously.

But as much as those of us engaged in criminal law focus on cases that impact our practice and our clients, almost all of these decisions are, in the grand scheme of things, nibbling around the edges of the law. Fighting over whether sentences are imposed by judges or accountants is big to us, but hardly a seismic shift for society. 

Brown v. Board of Education was a cultural shift in American society, affecting everyone and everything that would follow.  Gay marriage is an issue of nearly that magnitude.  Telling non-citizens of immigration consequences of conviction, per Padilla in 2010, isn’t in the same ball park.

Look at a bug under a microscope and it’s going to appear much bigger than it really is. We all suffer the conceit of myopia to some degree, focusing as we do on the issues that matter most to us. We believe them to be more important, more significant, to society than they turn out to be. It’s not that they’re insignificant, but they aren’t earth-shattering. Truly foundational decisions come along very rarely.

Goldstein speaks to a cultural shift that has already happened in America, with only nine people who live cloistered lives left to decide whether it meets their sensibilities.  Berman compares it to bugs under his personal microscope because his own myopia precludes him from realizing that gay marriage reflects a cultural shift of a fundamentally greater magnitude. 

Like Berman, I spend a lot of time parsing the details of decisions affecting criminal law. Unlike Berman, I recognize that Goldstein is talking about something bigger than the issues that fascinate me.

Somebody, maybe everybody if there is an everybody, at the  Sky Valley Chronicle is very upset about what they (he/she?) claims is either cyberstalker or cabal who is attacking them (it?) for something. The Washington State local paper has made its story news, though unlikely for the reasons it might prefer.

Via Popehat, the SVC  published a story that purported to tell of its own sad tale of victimization.

SkyValleyChronicle.com and it’s [sic] parent company are preparing to file at the earliest possible date documents and evidence designed to result in federal, or at the very least state cyberstalking charges being filed against at least one and possibly more individuals in Washington State that operate a rumor and accusation filled Internet blog and Twitter account, both of which are maintained almost exclusively, according to those who have monitored them over time, as vicious cyber-attack platforms against individuals, companies and institutions.

Well, that certainly clears things up, provided paranoid delusions are one’s norm.  Whether there is truth to the claims or not is unknown. Certainly, there are people on the interwebz, be they bloggers or twitterers, who are vicious and nuts. Anyone with a keyboard and internet access can post any insane screed they like, and it can give rise to some horribly false and vicious, and quite scary, claims.

It would be a whole lot easier to be sympathetic to the SVC’s claims if they posted anything, anything, to support their assertion, but being a local newspaper and all, why would they be expected to provide support or substance?  But I digress.

After a slew of vague accusations of instability toward their unknown attackers, the SVC makes the point that is supposed to strike fear in the heart of it’s (their?) nemesis.  They are going to file a federal prosecution against not only the primary disturbed individual cyberstalking, but the many accomplices. it urges the accomplices to come forward to rat out the evil mastermind and thus avoid the consequences:

Should you be a person who was duped into helping the cyberstalker, not understating the full ramifications of what you were getting into or the risks you were assuming – meaning possible criminal prosecution and a conviction that may follow you forever and harm your future employment prospects and the potential of civil action which could place your marital assets at risk – we urge you to contact us with what information you have in this matter as we have no desire to file charges or seek civil remedies against persons who were duped into helping another engage in cyberstalking, not fully understanding what they were getting themselves into.

In an update, they double down on the efforts (despite claims of getting evidence, help and support from people across the country) to turn accomplices into snitches:

THE PERP WILL TAKE YOU DOWN WHEN RUBBER HITS THE ROAD

Because we are serious as a heart attack when we say we will do everything in our power on behalf of all the victims of this person to have every single person who was in consort with the cyberstalker over the years, helping that stalker do damage to many innocent people, to be charged with as many criminal counts as we can possibly help obtain.

And have you priced quality, criminal defense attorneys lately? You’ll want to be able to qualify for a very large loan and 2nd mortgage the house to boot.

It’s always the lawyer’s fault. Ken at Popehat, bemusement at the poor writing and journalistic standards of the SVC notwithstanding, sent them an email to find out what they were talking about.

Dear Sky Valley Chronicle Staff,

I am an attorney, a member of the First Amendment Lawyers Association, and a blogger on issues including free speech, defamation threats, internet culture, and online misbehavior.

I read with interest your November 30, 2012 post “Sky Valley Chronicle Prepares To File Federal Cyberstalking Charges.” As a writer on free speech and legal threat issues — and as a former federal prosecutor — it interested me. I am preparing to write a post about it.

Is anyone at your paper willing to answer some questions about the situation discussed in the article?

What is interesting is that I suspect Ken could have gone either way (about the underlying conduct) at that point.  He, as have we all, knows the reality of the nutjobs on the internet as well as the thugs who make wild accusations to stifle free speech. It’s not always easy to pick sides, even if a local newspaper writes an absurd story, compensating for its lack of substance with an abundance of crazy.  Ken received this response to his email in an initial update to the story:

And to the former federal prosecutor who contacted us and indicated a willingness to help put this perp behind bars, we appreciate the contact.

We’ll be getting back in touch with you.

A “willingness to help” isn’t quite what was suggested, and Ken went on to write a post about the SVC that was neither flattering nor particularly supportive.  That’s just the sort of thing that makes paranoids go, well, paranoid.

Update 12/4/12: Hey “former federal prosecutor popehat.” We knew you were a tank town shill as soon as your message hit the loading dock. Why do you think no one ever contacted you? Why do think the line above was even slipped in?

Where did you toe pickers and yam heads learn to do intelligence work, amateurville? Be sure and tell cyberpunk the legal walls are slowly closing in and it is hellfire serious business that’s on the way. Oh, And say hi for us to the “sister,” hear? Oh. And did we mention the FBI is about to be contacted regarding an issue that has to do with this case? Ya’all have a nice day now, hear?

I’m informed that the names “toe pickers” and “yam heads” are considered very harsh and hurtful around Snohomish, Washington.  As for the rest of it, no one seems to have the slightest clue what they’re talking about.

Does the fact that whoever has their fingers on the keyboard at the Sky Valley Chronicle is batshit crazy and a poor writer mean they aren’t the victim(s) of cyberstalking? Not at all.  But it surely means that whatever passes for journalism around Snohomish has issues, and that the efforts to sway public sentiment toward their plight, as well as convince their nemesis’ accomplices (if they exist anywhere outside the haze of a paranoid delusion) to cooperate, with their (its?) hysterical threats of filing a federal charges makes for fun reading.

To the extent there are fears that the recent Washington referendum legalizing the recreational use of marijuana may have a notable impact on the locals’ ability to think, this seems to put that point to rest.  At least for whoever writes the Sky Valley Chronicle, the horse has left the barn.

Whether you agree with Inside the Law School Scam, by Colorado Lawprof Paul Campos, in whole or part, it is undeniable that he’s caught the attention of others in the legal Academy.  In the same vein, he’s become the voice of, cult hero to, a great many law students and new lawyers who are deeply dissatisfied with their choice of education, their alma maters and the concept of law school altogether.

It wasn’t long ago that he was brand new, a mystery lawprof revealing the ugly inside secrets of the legal Academy.  When he came out, he was reviled and ridiculed by his peers.  While a great many still despise what he writes, he has become a force to be reckoned with and, despite the facially dismissive reaction of many scholars with deeply vested interests in the status quo, he has moved the conversation sufficiently that even Case Western Reserve Law Dean Lawrence Mitchell, in his  ode to rainbows and law school felt constrained to acknowledge that it was, at least in part, in response to the success Campos has had in opening students’ and lawyers’ eyes.

Campos is no longer the new kid on the block, having written “421 posts, consisting of 317,489 words, supplemented by 37,480 comments.”  Of course, the vast majority of the comments were written by the same person, Anonymous, reflecting the law students’ conundrum, how to express every critical thought without having to bear any responsibility for it.  After all, life is tough enough as an inchoate lawyer without having to suffer for ones beliefs.

In honor of his 421 posts (round numbers are for kids), Campos has written an Executive Summary, an ironic title indeed.

It is difficult to get a man to understand something when his salary depends on his not understanding it.  — Upton Sinclair —

This is why your law school charges what it charges.  This is why your professors believe sincerely in the “value proposition” of what they have to offer.  This is why nothing ever changes, until it does.

If something cannot go on forever, it will stop.  — Herbert Stein —

When the price of something increases and its value decreases, at some point people will not pay for that thing any longer.

Debts that can’t be repaid won’t be.  — Michael Hudson —

That someone lends you money does not mean there is a reasonable probability that you will be able to repay that money.  It only means that someone is making money from loaning you money.

In a peculiar post, Carolyn Elefant at  My Shingle questions whether lawyer ratings can ethically co-exist with “lead generation”

Public demand for lawyer ratings is on the rise.  As the above graph from Google Trends  shows, searches for the terms “attorney reviews” have increased five-fold in the past five years.

The push for lawyer reviews is hardly surprising.  Today’s consumers routinely check ratings before reserving hotels, buying books or selecting a roadside diner.

As I’ve been saying  for years, like it or not, lawyers  can’t stop this ratings train.

This reflects what may be the most pervasively misunderstood aspect of social media marketing, As marketeers have come to realize, the page of a lawyer’s website that gets the most view is invariably his bio, which they’ve misconstrued to believe to be a critical force in gaining potential clients off the internet.  Dopes.

People aren’t finding lawyers on the internet, but verifying them, trying to ascertain whether they’re any good. They already have a name, and they go to the lawyer’s bio to check them out, just as they look to reviews and ratings as a means of distinguishing between ten different loaves of white bread.

But what happens when the same entity that purports to rate lawyers makes its money off “lead generation”?

Consumers want ratings, that much is clear.  But pay-per-lead systems can’t give consumers ratings or recommendations if they want to remain ethically compliant – because a rating or referral transform the ethically permissible pay-per-lead into a  pay-for-recommendation/referral.

No, it can’t.  This is where  Avvo’s initial effort on selling the legal profession on the legitimacy of its ratings fell off the cliff. No one who pays any attention at all believes that Avvo ratings are real, though they claim it’s all some magical algorithm and they would never tweak the numbers. Much. But the public thinks Avvo is real. They want to think Avvo is real, because it enables them to do what would otherwise be too hard to do on their own, decide which loaf of white bread to buy.

After reading Carolyn’s post, I spent a few minutes listening to my buddy Josh King, Avvo’s general counsel and, oddly, webinar ethics guru, explain why it’s completely ethical to buy whatever Avvo sells. No conflict there, right?  I couldn’t help but wonder, given Carolyn’s correct assertion that ratings services and pay-per-lead services cannot ethically co-exist in the same entity, why she didn’t go the next step.

It’s not just Avvo, but its much older and uglier brother, Martindale-Hubbell (with its horrible system of rating lawyers AV, to assure that no member of the public has a clue what they’re talking about) who has sought to bootstrap its rating system into a money machine.  They are the Lexis-Nexis, Lawyer.com, marketeers, headed up by Larry  We-Don’t-Need-No-Stinkin’-Ethics Bodine.

At some point, we need to recognize that we can either lead or follow.  People love lawyer ratings, flawed though they may be?  You bet.  But as these rating services have succumbed to a directly conflicted business model, and the only basis upon which they can claim something remotely resembling ethics is to plead “trust us,” we would never put money ahead of integrity, it’s time to come to terms with reality. This is all utter nonsense, and we, lawyers, have embraced a massive fraud upon the public in the name of getting some potential client to hire one of us over another of us.

That’s all there is to it. 

Interestingly, there was a very unusual comment to Carolyn’s post (ironically immediately preceding a flagrant spam comment).  For the most part, commenters at My Shingle  unapologetically applaud anything they can use to rationalize their marketing, ethics be damned. Not this comment :

You assume that this ratings juggernaut simply can’t be stopped.  Why can’t it?  If lawyers stand up as a group  for the profession and make clear at every opportunity they get with clients and the public that (1) ratings are nonsense, mostly because they aren’t reliable, and (2) ratings are sleazy, so lawyers shouldn’t engage in it, and that those who do are sleazy and aren’t to be trusted with a client’s life, then maybe the issue would go away.  

We don’t have lawyers soliciting business from mass disaster sites because we came to the conclusion as a profession that the practice is sleazy and leads to a race to the bottom.  These things can be stopped if we want them to be.  So, when a prospective client comes to you and mentions ratings, e.g., why you don’t have ratings and your competition does, tell the prospective client that he or she should not go to any lawyer that uses ratings systems; and that the use of ratings is a sign of a sleazy lawyer. 

Don’t want to be party to the race to the bottom? Don’t want to spend your nights thinking up excuses for lying to your “leads”?  You’re not alone.  Nor am I.  Nor is Brian Tannebaum. Nor is Mark Bennett.  Even if  the ABA and  state bar associations have given up hope.

And for the wag who will feel compelled to ask the question, “but if we can’t use these schemes, how are we supposed to get business?”, how about web 3.0, doing good work and conducting yourself with integrity?  Just because sleaze is out there doesn’t mean we have to embrace it or accept it. We can fight it. After all, fighting bad things is what lawyers are supposed to do.

The black letter rule is clear, that when you cross a national border, you and your possessions are subject to search without regard to cause.  What has been forgotten is why this is the rule, and reflects another instance of remembering the rubric while forgetting the rationale. 

The rule was meant to stop the introduction of dangerous items, like plants or animals that could carry diseases or had no natural enemies in our environment to stem their spread. Then there was the need to collect taxes on items purchases elsewhere, justifying a search to make sure no one was sneaking anything in without giving Uncle Sam his cut.  And finally, there was the smuggling of contraband. At the time, these rationales were accepted as a sound basis for the rule, and so the rule was born.

But when they seize your computer at the border, they aren’t looking for invasive species.  Maybe their looking to see what nasty images you have on your hard drive, which may fall outside the rationale as a means of law enforcement, but many people wouldn’t be too troubled by that.  Or maybe they are looking for seditious people who think thoughts and spread ideas that the government doesn’t like. Maybe border seizures of electronics are an opportune method of identifying, harassing or controlling people who are a thought threat.

From the New York Times :

A laptop belonging to Lisa M. Wayne, a criminal defense lawyer, was searched after she returned from a trip to Mexico.

Ms. Wayne said her main concern was the information about clients’ cases stored on her laptop: she is a past president of the National Association of Criminal Defense Lawyers, which is a co-plaintiff in the Abidor suit, along with the National Press Photographers Association. But at the time of the search, she was unaware of her rights and felt pressured to hand over her computer.

“It was very clear to me that the longer I objected or interrogated them, the longer I was going to be detained, and I had a connecting flight,” she said. “It’s an intimidating experience. It was not consensual other than, you comply with the rules.”

There are numerous suits pending against the government challenging the seizure of electronics, like laptops, cameras and cellphones, without any suspicion of criminal activity.

A decision in one of those suits, Abidor v. Napolitano, is expected soon, according to the case manager for Judge Edward R. Korman, who is writing the opinion for the Federal District Court for the Eastern District of New York.

In that case, Pascal Abidor, who is studying for his doctorate in Islamic studies, sued the government after he was handcuffed and detained at the border during an Amtrak trip from Montreal to New York. He was questioned and placed in a cell for several hours. His laptop was searched and kept for 11 days.

The contention is that while the right to be free of baseless searches ends at the border, the First Amendment does not, and these seizures impair the right to freedom of expression by seizing based on thought, ideas, images, writings, content. The 4th Circuit ruled against this argument in United States v. Ickes, 2005, but that was a child porn case, rather than political expression. But even the Times has drank the government issued cool-aid:

Courts have long held that Fourth Amendment protections against unreasonable searches do not apply at the border, based on the government’s interest in combating crime and terrorism. But Mr. Pascal’s lawsuit and similar cases question whether confiscating a laptop for days or weeks and analyzing its data at another site goes beyond the typical border searches. They also depart from the justification used in other digital searches, possession of child pornography.

See what they did there? Warrantless border searches weren’t allowed to combat crime or terrorism (particularly noting that nobody thought much about terrorism until 9/11).  Same with kiddie porn, a new claim for old law, one that had absolutely nothing to do with the birth of border searches. 

Yet if a reporter was to only consider the government’s press releases and court decisions over the past decade, it would be understandable why they would be unaware of the original rationale for warrantless border searches and accept revisionist history.

Curiously, caselaw has essentially ignored the genesis of warrantless border searches in favor of such facile assertions as “well-settled law.”  And indeed, it is extremely well-settled :

Authorized by the First Congress, [Act of July 31, 1789, ch.5 §§23-24, 1 Stat. 29, 43 (current version at 19 U.S.C. §§482, 1582)] the border search exception has a history as old as the Fourth Amendment and obtains its broad power from Congress’s authority to regulate commerce with foreign nations and to enforce immigration laws. 

However, reliance on trite phrases has allowed courts to divorce the justification from the rule, and thus used a rule to sweep in newfound justifications where they were never part of the original basis. It may well be that the Supreme Court, if it was to consider the rationale for warrantless border searches today with a blank slate, would happily conclude that the 4th Amendment’s warrant requirement was just too much trouble, but the rule hasn’t been revisited since the invention of computers, where people now carry their lives and most intimate secrets with them wherever they go.  They aren’t search for infected coconuts anymore.

The search of laptops crossing borders changes everything, and creates a compelling need to rethink whether warrantless border searches in the age of electronics changes the balance.  Long-settled rules no longer cut it, and it’s remarkable that so few recognize the seismic shift in intrusiveness that’s happened with barely a whimper.


 

The internet used to be described as the Wild West, a place where there were no rules per se, but users kept each other in line with the fear that anyone behaving poorly would be met by others teaching him a good lesson on how not to act.  It may have resembled a school yard, but it worked.  And that meant the the well-intended saviors of propriety could keep their noses out of it.

Doesn’t sound familiar?  That’s because it’s all gone mainstream, more like a shopping mall with mall cops than the Wild West, with lawprofs writing lengthy yet boring articles on how to stifle speech and thought, how to impose their delightfully sweet vision of etiquette, and make the internet safe for shopping and political correctness.

Yet, below the veneer of shininess, of happy faces blowing kisses in the hope of making a quick sale, there remains the ugliness of those who use the internet for bad things.  Recently,  Marc Randazza, with some help from Popehat and others, outed one bad guy who created a website for disturbed people to post naked photos of others, and then  created a fake lawyer who the victims could pay to get their photos removed. 

Going to battle against slime on the internet is a mitzvah, a good deed, but often a difficult one to pursue.  The problem is that the forces of evil have a vested interest in winning the war, as they are making money off their diseased scheme, while the forces of good are merely trying to clean up the mess. One will spend his every waking moment fighting, while the other has to fit it in when he can. It’s not a fair fight.

But then Marc posted this :



While a somewhat different target, this is remarkably similar to the second stringers targeted by Marc, with the added component of this mutt including home addresses of his victims.  Here is  the text of the message to Hunter Moore.

While many fear Anonymous, as its nature precludes control by the forces who want to turn the internet into a happy place, there remains a truth, that the nature of the internet will never be fully controlled by laws, by courts, by well-intended hand-wringers.  They may be able to constrain individuals, but not the internet.

Despite the heresy of this coming from someone as “establishment” as a lawyer, my time online leaves me no doubt that despite the best efforts of governments, of academia, of control freaks, to make the rules of engagement online, they will never be able to control the internet.  To the extent that anything exists to constrain the forces of evil, it’s Anonymous.

Hate them? Hate that they can’t be controlled? Hate that they may make a choice with which you don’t agree, and be your bad guys?  This may well be true, but without Anonymous, there would be no way to strike fear in the hearts of these scum at all.

You may not like life in the schoolyard, but if you end up being beaten up by the bully, you will be pretty darned glad that someone bigger and stronger punches him in the nose.  This was how the web policed itself before you got here, and despite your best efforts to “civilize it” so you can use it to make a quick buck, it remains the last guardian of the internet.  Hate Anonymous all you want, but when things go bad, they will be our last defense.

Following the passage of an Animal Abuse Registry in Suffolk County, New York, animal rights advocates pushed Westchester County to dig a hole of its own.  While causing sadistic harm to pets has no justification, the leap from prosecution to creating an analog to sex offender registries, which immediately descended into a disastrous morass, is spreading.

The initiative in Westchester was backed by Roxanne Beecher, who appeared in favor of the new law as a member of he Westchester County Bar Association, animal rights committee.  She pitched the County :

Ms. Beecher stated that Westchester County ranks number 9 out of 62 counties in the state for cases filed for animal abuse and this is why they are asking for animal abuser registry.  She said 71% of abused  or battered women report that their abuser has hurt or killed animals, 32% of battered women with children report that their children have hurt or killed animals, and 25-48% of battered women report delaying leaving their abuser for fear of their animal being abused. 

She said there was a woman (not in Westchester) in a domestic violence shelter who received photos from her mother of her estranged husband cutting off her dogs ears with garden shears and he was threatening to hurt her other animals. This woman left the shelter to go rescue her animals and she has since disappeared.

Ms. Beecher continued by saying 40% of battered women report that they are forced to perform sexual acts with animals, 48% of rapists have committed acts of animal cruelty as adolescents, 30% of child molesters have committed acts of animal abuse, and 15% of active rapists also rape animals.

Sick stuff, for sure, and certainly more than enough to inform the legislators to be scared of these sick animal abusers. Except a bit of research fails to back up most of it.  Even the  Humane Society’s “fact sheet,” also unsourced, supported only Beecher’s first statistic. Other than that, the balance appears of dubious origin.

Beecher then informed the County that plenty of others have been busy enacting animal abuse registries:

Ms. Beecher stated that the following states currently have an animal abusers registry: California, District of Columbia, Louisiana, Maine, Colorado, Connecticut, Illinois, Massachusetts, Nebraska, Ohio, Tennessee, Virginia, West Virginia. 

Except a little research shows this, too, falls a bit shy of accurate.  According to the Animal Legal Defense Fund, the leading advocacy group supporting animal abuse registries, only three have been enacted across the country, all in New York, consisting of Suffolk, Rockland and Albany County. While registries have been proposed elsewhere, and have occasionally passed on legislative house (such as in Texas), they have never made it to enactment.

Clearly, Beecher’s “expert” advocacy offered a horribly scary picture of animal abusers, And it certainly comes as no surprise that no one appeared to speak in favor of animal abusers. But what of the Westchester Bar Association’s criminal defense members?  There may be nothing good to say about anyone who abuses animals, but there’s plenty to say about the creation of a registry that will turn yet another group, who like the hated “sex offenders,” will come to encompass the deserving as well as the undeserving, into second class citizens who will be unable to find work, homes or normal lives.

Or what of the advocates of domestic abuse, having their issue usurped by animal rights activists with statistics that seem absurd and incredible?  Do “40% of battered women report that they are forced to perform sexual acts with animals”?  Are “15% of active rapists also rape animals”?  How would it even be possible to arrive at such a statistic? Do active rapists respond to surveys? 

This contradicts the current theory about rape, that it’s a control crime rather than a sex crime. But if rapists spend their spare time raping animals (seriously?), then it’s not about control over another person, but about sick sexual gratification. Are rape advocates in agreement with this?

After hearing this litany of horrors, the Westchester County Board of Legislators  unanimously approved the animal abuse registry.

According to Tuesday’s Westchester News, new legislation will not only mandate that convicted animal abusers be listed in a public database of animal abuse offenders, but those offenders will also be prohibited from owning, adopting or otherwise possessing (or exercising control over) any animals.

The county legislators made their unanimous decision based upon known ties between animal cruelty and domestic abuse, citing testimony from Roxanne Beecher, Co-Chair of the Animal Law Committee of the Westchester County Bar Association…

Known ties?  Not until now, when this pitch is bootstrapped into some alternate reality where the blind adoption of these statistics will be repeated wherever the ALDF next seeks to pitch a registry.  And then it will appear in quickie research online, not because there is any foundation for it, but merely because of repetition, until the myth becomes the reality.

This is how bad law is born, and how the basis for bad law moves from fiction to reality.  While one might hope that legislators would seek to know the basis for such outrageous claims, rather than blindly embrace them as “known ties” when there appears to be no empirical basis for them, one might similarly hope that the criminal defense committee would appear to counter the animal rights committee, to warn of the hole they are digging and the fiasco they may be creating.

This isn’t about a lack of concern for animal abuse, for which criminal laws exist and abusers received well-deserved punishment.  This is about the growth of registries as a trendy reaction, like such other simplistic solutions as three-strikes laws and mandatory minimums, whose unintended consequences have proven to create problems far beyond the purported intent of these registries. 

Whether Westchester County would have enacted the animal abuse registry regardless of Beecher’s claims isn’t clear. Once a fashion trend begins, it can be hard to stop. There may be no one willing to speak out on behalf of animal abusers, just as there was no one to speak out on behalf of sex offenders, until the stories begin of outrageous and unintended applications that start destroying lives.  By then, however, it will be too late, as the registry was already unanimously approved based on once spurious, now “known,” claims.

After approval of the referendums in Colorado and Washington to legalize the recreational use of marijuana, some police stopped arresting people and some prosecutors dropped charges, even though the law has yet to go into effect.  The People have spoken, and they honored the spirit of their vote in advance of its technical application.  Some did, but not all.

From the New York Times :

In the uncertain weeks after Colorado’s vote to legalize small amounts of marijuana for recreational use, the answer in hundreds of minor drug cases depends less on the law than on location.

Hundreds of misdemeanor marijuana cases are already being dropped here and in Washington State, which approved a similar measure. Police departments have stopped charging adults 21 years and older for small-scale possession that will be legally sanctioned once the laws take effect in the coming weeks.

But prosecutors in more conservative precincts in Colorado have vowed to press ahead with existing marijuana cases and are still citing people for possession. At the same time, several towns from the Denver suburbs to the Western mountains are voting to block new, state-licensed retail marijuana shops from opening in their communities.

There was once a time when drunk driving prosecutions were based on a driver being drunk.  That meant that a driver was sufficiently impaired by alcohol that he could not adequately drive safely, and the tell-tale was his driving.  Then things got “scientific.”  Blood alcohol became the test, first at .10%, and later at ,08% when the former didn’t yield enough criminals.

The argument, initially, was that the numbers meant nothing. Alcoholics typically functioned just fine at .10%, as their livers were used to being filled with booze. Larger men and smaller women had very different physical reactions to two and a half beers. Then there was the notice question, how anyone was supposed to know what their BAC was at any given moment.

But in time, the science overcame reason, and absolute numbers answered all prosecution questions.  The only real problem was that it wasn’t actual science, but a quantifiable substitute for proof of wrongdoing.  Aside from criminal defense lawyers and a few drunks, nobody complained all that much.  Mothers Against Drunk Driving owned the public relations campaign, and nobody argued for the conduct that killed children. It’s a tough argument to make.

Now, there is a new kid in town, the next frontier of a life of perfect safety on the road: drowsy driving.

Roadside signs around the country have long warned drivers not to doze off behind the wheel with gentle catchphrases like “You Snooze, You Lose” and “Drive Alert, Arrive Alive.”

Now the campaign against so-called drowsy driving is moving to the courtroom, with law enforcement officials increasingly pushing to hold sleepy drivers criminally accountable when they cause fatal crashes.

The shift from polite chiding to prosecution follows successful efforts to criminalize other dangerous driving habits, like speeding, drinking alcohol and using cellphones. But drowsy driving, which the AAA Foundation for Traffic Safety calls “one of the most significant, unrecognized traffic safety problems,” faces tougher legal hurdles. A blood-alcohol test can show whether a driver was drunk. Skid marks may betray a speeder. And cellphone records will reveal whether someone was texting right before a crash. But drowsiness is a personal and often fleeting state of mind that leaves no permanent record.

The push toward the courts has been supported by traffic-safety advocates, researchers and lawyers who say that when it comes to, say, driving without seat belts or driving while texting, educational efforts alone are rarely enough to change human behavior.

“The threat of criminal prosecution can go a long way to heighten driver awareness,” concurred Daniel Brown, a lawyer who is on the board of the National Sleep Foundation, a scientific and educational group in Washington.

At Volokh Conspiracy, Orin Kerr discusses a good ruling out of the 9th Circuit in United States v. I.E.V., where the court suppressed evidence seized by a border search conducted 100 miles inland.

Two teenage brothers drove their car up to the United States Border Patrol Checkpoint near Whetstone, Arizona, about 100 miles from the Arizona/Mexico border. A drug dog alerted to the presence of narcotics in the car. The car was directed to a second check point, and the two were asked to exit the car. They did so, and they consented to a search of the car. The drug dogs were then unable to find any drugs in the car and did not alert to any drugs on their persons. However, an officer observed that one of the brothers was acting nervous and repeatedly “touched his abdomen area.” Officers decided to frisk the two brothers for weapons.

During the frisk, the officers felt an object through one suspect’s shirt. They lifted off the suspect’s shirt and found a “brick-shaped object taped on the Defendant’s abdomen.” The then found a similar brick-shaped object taped to the other suspect’s abdomen. The opinion isn’t very clear as to exactly what happened next, but it seems that they ripped off the tape and took the brick-shaped objects, which contained marijuana. (The opinion just says that at that point the officers “seized the marijuana.”) The brothers were then charged with possessing marijuana, and they challenged the frisks as violating the Fourth Amendment.

The Ninth Circuit divided on whether the officers acted properly. The majority, Judge N.R. Smith joined by Judge Christen, concludes that the officers acted improperly and violated the Fourth Amendment because they lacked reason to think that there was a gun present as opposed to drugs.

An intellectually honest decision, particularly given how easy it would have been for the officers to make up a rationale to justify their fear that the brothers were armed. They didn’t. They told the truth. The law worked. Well, at least two-third of the way.

Judge Kozinski dissents, reasoning that where there may be drugs, there may be guns, justifying a frisk of the suspects for guns.

While Judge Kozinski is often on the side of the angels when it comes to adhering to doctrine, even though it lets the bad guy walk, not this time.  This time, its the unwritten presumption that wherever there are drugs, the law should presume there are guns. 

Common sense tells us that people engaged in legitimate business don’t tape bricks to their bodies. This would be true even if the encounter had been on a street corner in Pocatello, but at a checkpoint on a highway heading from the Mexican border, after a dog had alerted to possible drugs? Any officer who sent I.E.V. on his way without finding out what he was hiding under his shirt should have been fired for incompetence.

There it is, the enemy of proof and the cheap backdoor when there is no reason to be had: common sense. When you can’t explain something logically, just chalk it up to common sense and leap right over that huge gap.

Of course, there is a much simpler answer to the issue of incompetent border patrol agents letting a suspect go because he’s constrained by the Constitution. Got probable cause? Get a warrant. Too much work? Too nebulous a justification for a warrant?  Bummer. That darn Constitution keeps getting in the way of catching the bad guys.  But Alex, you know this is how it works.  You know sometimes the guilty go free. You’ve even held as much.  Why eschew the Constitution this time?

The bugaboo of drugs has given rise to no shortage of convenient myths that the judiciary has embraced to create exceptions to the Constitution.  Guns and drugs are integrally connected. Dogs are magic and honest and cute as the dickens. Cars with drugs emit odors that can be smelled from great distances and at high speeds. Cars with drugs aren’t covered by the Fourth Amendment in any event, because, well, they’re not.

My utter rejection of the use of “common sense” to leap tall buildings and logical and evidentiary gaps is been explained many times before. There is no such thing. It’s a really cool fallacy used to appeal to facile assumption when facts and the laws of physics won’t support the conclusion. It’s pulled out of the bag of tricks when reasonable doubt stands in the way of conviction.  Never use “common sense” around here unless you want to get an eyeful.

So drug dealers don’t use guns? Of course they do, when they do. And when they don’t, they don’t.  And when the drugs are taped to the abdomen of mules, like these brothers, there is little chance anybody put a gun on them as well.

But who cares?  The question isn’t how many facile assumptions can be made to justify circumvention of the Constitution, but whether the officers involved had a reason to fear for their safety.  They didn’t. They said they didn’t. They offered nothing to suggest, despite their lack of subjective fear, there was an objective basis to believe they did, or should. Judge Kozinski’s leap to the contrary, there is no intrinsic rule of nature that anyone in possession of drugs is presumed to be armed, and yet Kozinski chides (he does that, sometimes) the majority of his panel for being “out of touch”:

It’s easy enough, sitting safely in our chambers, protected by U.S. Marshals with guns and dogs, surrounded by concrete barriers and security cameras, to say that officers in the field had no cause to fear for their safety. But if we’d been there when I.E.V. and his brother pulled up in their car, heard the police dog alert and seen one of the suspects fidget like he was reaching for a weapon, I’d have dived for cover into the nearest ditch, and my guess is I wouldn’t have been the first one there.

This would have been such a great benchslap, if only he came out the other way.  But there is another failing to Judge Kozinski’s dissent that goes unnoticed. Not until the officers searched and found a brick of marijuana taped to the defendant’s abdomen do they have evidence of drugs.  Search first, then justify the legality of the search by what’s found?  Not around these parts, cowboy.

Perhaps I’m naive (as I’ve been accused a few times lately), but I’ve come to expect better of Judge Kozinski, who is usually on the more fearless side of constitutional interpretation.  Come on, Judge. Pick yourself up, dust yourself off and get your judicial butt out of that ditch.  You’re right, you probably wouldn’t have been the first one there, but do you really want to hang out in a ditch with others who wring their hands out of fear of the consequences of adhering to the Constitution?  I didn’t think so.