I was on my way to the New York Giants training camp, a walk-on short, old lawyer for the position of wide-out. After all, I might not have speed, hands or, well, any skills that would commend me for the job, but how many short, old lawyers did they put on the field?

Then again, if the Giants let me suit up, would you watch? Okay, maybe for the highlight film, but after you’ve seen me fail spectacularly once, would the lulz be as good the second time?

Amanda Hess makes a shocking admission.

Some background, if you are not a “Bachelor” superfan like me and the 8.4 million Americans who watched last season’s finale: The show generally chooses its leads from runners-up in the previous season of “The Bachelorette,” finding people that viewers are already invested in and extending their romantic arcs. But lately, the franchise has failed to produce such men.

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Over the past couple of days, there have been a great many deep-dive articles, editorials and op-eds written over the silly little Title IX sexual misconduct problems I’ve been writing about for years. Poor KC Johnson probably has terminal writer’s cramp by now. All are valued academics and pundits, and all are standing atop far larger soapboxes than SJ.

I should be thrilled. After all, misery loves company, But I’m neither miserable nor mind being a lone voice, as I was for years before others hopped aboard.

Jeannie Suk Gersen’s New Yorker article sums up one of the problems that have been taken for granted by so many of those who are speaking out now in support of ending the campus star chambers.

Title IX requires schools that receive federal funds not to discriminate on the basis of sex. The law itself does not mention sexual violence, but its interpretation by courts and by the Education Department since the law’s passage, in 1972, has led to the common understanding that Title IX’s ban on sex discrimination requires schools to address sexual violence among students.

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They don’t think of themselves as rich, as they’re not quite the One Percenters, the mega-wealthy who own private planes and 300-foot-long yachts. But they don’t miss any meals.

My interviewees never talked about themselves as “rich” or “upper class,” often preferring terms like “comfortable” or “fortunate.” Some even identified as “middle class” or “in the middle,” typically comparing themselves with the super-wealthy, who are especially prominent in New York City, rather than to those with less.

When I used the word “affluent” in an email to a stay-at-home mom with a $2.5 million household income, a house in the Hamptons and a child in private school, she almost canceled the interview, she told me later. Real affluence, she said, belonged to her friends who traveled on a private plane.

These are the deeply-progressive, socially-conscious, Democratic-voting working class. And their empathy cannot be understated. Continue reading →

Far too often, the issue at hand is whether an individual, or too often his estate, can survive a Qualified Immunity challenge to a suit against police officers for the deprivation of constitutional rights. The concept was crafted entirely by judicial fiat; it is nowhere to be found in the Constitution or statutes, but was manufactured by the Supreme Court to protect police.

And far too often, Qualified Immunity prevails, preventing recourse despite flagrant constitutional violations. When a plaintiff prevails, however, there is joy in Mudville. But getting the opportunity to bat doesn’t mean the swing will hit it out of the park. There is still a rather huge obstacle that needs to be overcome, and that’s the trial of the underlying claim. Though a cop was denied QI, it doesn’t assure vindication, even when he shoots a guy in the back.

The jury in U.S. District Judge Gonzalo Curiel’s courtroom found Kristopher Walb acted reasonably when he shot Angel Lopez in the back, killing him as he fled from SWAT officers pursuing him in January 2013 for a parole violation.

Lopez’s family has sued Walb and top brass at the San Diego Police Department multiple times, though many of their claims have been dismissed. But a Ninth Circuit panel ruled in October last year that Walb should stand trial for wrongful death and civil rights claims, as physical evidence showed that “Lopez was not facing officers, did not make a threatening gesture and was in the process of complying with the officers’ commands to get down when he was shot.”

Easy case? Maybe not. Continue reading →

The “major speech” by Department of Education Secretary Betsy DeVos began by hitting all the right notes.

We know this much to be true: one rape is one too many.

One assault is one too many.

One aggressive act of harassment is one too many.

This is the standard “do it for the children” speech that has served us so well in striking fear in our hearts so that we accept the premise that no deprivation is too harsh. But then DeVos added: Continue reading →

Ed. Note: Like the old Fault Lines days, Chris Seaton and Mario Machado will duke it out over whether the pardon of former Maricopa County, Arizona, Sheriff Joe Arpaio was the worst pardon ever. This is Mario’s argument.

A brief throat-clearing before deploying the first strike: Joe Arpaio is a contemptuous sadist and President Trump is the poor man’s Silvio Berlusconi, with the added bonus of Trump having access to the Gold Codes. They’re both sheep-faced loons who shouldn’t be in a position that involves law or governance.

That I take such a position should be obvious since I am a criminal defense lawyer sentient primate, but these days it’s wiser to Gertrude before a discussion rather than after. It’s a sign of the times.

So, the question before the house is not whether Arpaio is the kind of person that should make those with a modicum of humanity wish there was a special hell for him to go to, but whether he’s the “worst” person to have ever received a presidential pardon. That, my friends, he is not. Continue reading →

Ed. Note: Like the old Fault Lines days, Chris Seaton and Mario Machado will duke it out over whether the pardon of former Maricopa County, Arizona, Sheriff Joe Arpaio was the worst pardon ever. This is Chris’ argument.

Maricopa County, Arizona put their trust in a man named Joe Arpaio back in 1993. They gave him a badge, a gun, the state-sanctioned license to kill and an entire Sheriff’s department. A man tasked with upholding the law would then repeatedly violate the law and abuse the power of his office for twenty-four years. Pardoning “Crazy” Joe Arpaio, the self-styled “America’s Toughest Sheriff,” is undoubtedly the worst pardon in Presidential history.

Let’s look at the offense Arpaio committed: criminal contempt of court. At face value, it seems harmless compared to other offenses wiped clean by presidential pardon. Arpaio defied a federal judge’s order to stop detaining undocumented immigrants. That’s a far cry from jury tampering, robbing a bank or tax fraud. Contempt is the mechanism by which the courts enforce their orders. Essentially, a judge told an old man to not do something, and the old man said “no.”

What makes Arpaio’s defiance so odious is his insistence on enforcing a certain aspect of Arizona’s human-smuggling law. Specifically, this section of the law: Continue reading →

In Millard v. Rankin, an as-applied challenge, Colorado Senior District Judge Richard Matsch rejected the pretty ribbons the legislature wrapped around the Sex Offender Registry Act. Applying the “intents-effects” test to the law, the court held that it was unconstitutional under the Eighth Amendment.

In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court employed an “intent-effects” analytical framework to determine whether Alaska’s sex offender registration statute was punitive. The Court stated that it would first consider whether the legislative intent was to impose punishment; if so, “that ends the inquiry.” Id. at 92. If the intent was to enact a statutory scheme that is civil and non-punitive, however, the Court stated that it must further examine whether the statutory scheme is so punitive in purpose or effect as to negate the legislative intention to deem it “civil.” Id. In making the “effects” analysis, the Court considered five of the seven factors employed in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963):

The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: [1] has been regarded in our history and traditions as a punishment; [2] imposes an affirmative disability or restraint; [3] promotes the traditional aims of punishment; [4] has a rational connection to a nonpunitive purpose; or [5] is excessive with respect to this purpose.

Smith v. Doe, 538 U.S. at 97. The two additional factors considered in Kennedy were [6] whether the statute’s requirements come into play only on a finding of scienter; and [7] whether the behavior to which it applies is already a crime.

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Last week, I wrote about the statue of Chief Justice John Marshall. I provided some history about Chief Justice Marshall, noting his association with slavery.[i] That resulted in a number of interesting comments that expanded the discussion to, among other things, statues of confederate soldiers. I write next about those statues.

Imagine, if you will, a tin soldier in confederate garb. I am taking about an object a history buff might use in his or her basement to reenact a battle during the civil war. The little figure might be someone like Confederate General Thomas “Stonewall” Jackson.[ii]

This tiny tin soldier in the hands of a history buff would not be offensive to most people, whether they be white or black. But now let’s expand the thought a bit. Assume the tin soldier has been blown up and plunked down in front of a courthouse where blacks and whites go to get justice (whatever the hell “justice” means). Does that change things? Continue reading →

What are friends for? Shooting, when the cop brain goes into survival mode.

Andy Grimm, who knows Shaw, said he does not want the officer to be fired, the paper reported.

“I know Jake,” he said. “I like Jake.”

And Deputy Jake Shaw likes Andy Grimm too.

“We know the deputy. This is a small town of 5,000 people … We know the deputies. We work with them on a daily basis. We have an excellent relationship with them,” he said.

So a big hug will fix everything? Not the bullet holes in Andy Grimm’s body. Continue reading →