The most transparent district judge seized upon a point made by another transparent judge, Richard Posner.

The American people know more about the CIA than the federal judiciary.

I suspect that’s partially true because the CIA is full of spies, and spies are cool.  Judges, not so much.  How many judges drive Aston Martins, for example? Yes, that’s MI5 rather than the CIA, but that only means Brit spies are cooler than American spies, and as everyone knows, the Brits make far cooler cars than we do. Would Clancy have Jack Ryan drive a Ford Fiesta?  But I digress.

Judge Richard Kopf applauds Judge Posner’s call for judicial transparency:

Here is my quick take. Posner is exactly right. We run the federal judiciary as a secret society. It is not. The federal judiciary is a public body that should be open and as transparent as the work of the courts permit. For example, I strongly believe that now is the time to video all federal judicial proceedings–everyone and in every court. We have the digital technology today to make these recordings available on a daily basis through CM/ECF. It could be done at low-cost, and it would open the federal judiciary to review by the public about the daily struggles, strengths and weakness of our federal courts. People throughout the world could see in near real-time what really goes on. In my view, what really goes on is largely triumphal. In any case, the people have a right to know.

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After applauding Judge Paul Gardephe’s bold grant of the Rule 29 motion to Cannibal Cop Gilberto Valle (who shall, in perpetuity, be called “Cannibal Cop,” regardless of anything else), the question was raised whether the good news overshadowed the bad news in the case, that Judge Gardephe upheld his conviction for illegally accessing police computers to check out his fantasy victims.

Count Two alleges a violation of the Computer Fraud and Abuse Act (the “CFAA” or the “Act”). The CFAA, 18 U.S.C. § 1030, imposes criminal liability on anyone who

intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any department or agency of the United States; …

18 U.S.C. § 1030(a)(2)(B). Under the CFAA, ”’exceeds authorized access’ means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter[.]” 18 U.S.C. § 1030(e)(6).

EFF’s curmudgeon overlord, Jim Tyre, asked me whether I was concerned about this, given that I failed to make any mention of it at all in my earlier post.  Others were, he said, and wondered why I was not. Continue reading →

The advent of pervasive citizen video has been a boon in putting the lie to police claims that their conduct was always justified when a complaint of excessive force is made. After all, it’s the word of a decorated police officer against the word of a criminal, and the target of police force is, by definition, a criminal or they wouldn’t have deserved to be the target of force.

Now, they have to work harder and stifle chuckles to pull off their claim of justification in the face of video showing what happened.  But, for those who have found these videos illuminating as to law enforcement misconduct and lies (which would exclude most judges), there is one thing to bear in mind. As much as the proof is now indisputable that police sometimes engage in abuse and needlessly excessive force, it doesn’t mean that the victim of their force is pure as the driven snow.

What the videos can show is that there is a pointless mix of entitlement, antagonism and just plain dumb behavior by people involved in police interactions.  And before anyone informs that people have a right to behave poorly, and that behaving poorly is never an excuse for police to use excessive force, you are absolutely right. In a theoretical vacuum.  And police should, without question, exercise sufficient self-control and restrain their violence so as not to harm.  We are in complete agreement. Continue reading →

Ah, to own a liquor store near a law school last night.  There must have been some heavy drinking going on, as lawprofs held an emergency lean-in support group to come up with some spin to counter the New York Court of Appeals decision in People v. Marquan M., as it sucked the wind out of their best appeals to emotion.

The case dealt with an Albany County law criminalizing cyberbullying, a most fashionable crime.  There was no question, as there shouldn’t be, that it could cause children (though the inept language of the original law covered all “persons,” from adults to corporations) terrible distress.  But the fact that there is harm in the world doesn’t mean that we throw the Constitution under the bus to make sure it’s addressed.

[D]efendant Marquan M., a student attending Cohoes High School in Albany County, used the social networking website “Facebook” to create a page bearing the pseudonym “Cohoes Flame.” He anonymously posted photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information. The descriptive captions, which were vulgar and offensive, prompted responsive electronic messages that threatened the creator of the website with physical harm.

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The assumption is that the more horrible the crime, the less likely a judge is to apply the law neutrally and fairly. After all, the defendant was awful, and nobody likes really awful people.  In the scheme of horribles, cooking and eating women is right up there.

Yet, SDNY Judge Paul Gardephe did exactly what he was sworn to do, pushing aside the disgusting nature of the allegations and focusing instead on the law and facts.  While those who are inclined to agree with his ruling, granting the defense’s Rule 29 motion and dismissing the count of conspiracy to commit kidnapping, you may not appreciate how bold Judge Gardephe was in doing so.  The pressure to deny the motion, when it’s the cannibal cop, must have been unbearable, and yet the judge performed his duty.

The memorandum decision is long, at 118 pages, reflecting the seriousness of the case and the response such a controversial ruling would naturally evoke. In what appears to be an “executive summary,” Judge Gardephe kindly explains up front his basic conclusions, with the legal argle bargle to follow.  The New York Times sums it up. Continue reading →

In an upcoming law review article, Orin Kerr plans to argue that the subjective expectation of privacy prong of Katz is dead. Muerte. Gone, gone, gone. I told him that wasn’t the case. It wasn’t dead. It was just sleeping. Or to be more precise, the subjective expectation of privacy prong was only honored in the breach. It was taken for granted, except when the prosecution can demonstrate that it didn’t exist. Then it was resurrected to be used against the defendant.

But as was my good fortune, Judge Richard Kopf, in the course of asking some silly questions, raises a point that goes to the heart of Orin’s issue:

Second, virtually all smart phones can be locked.  That is, they cannot be opened and operated without using a code or a fingerprint scanner. Indeed, my government iPhone locks itself when no longer than five minutes has expired after the last use and may lock as early as one minute.  At that point, I cannot use the device without unlocking it using a six digit code or a fingerprint scanner. (A terrible pain in the ass.) Continue reading →

Potter Stewart wrote an opinion in the 1974 case of Geduldig v. Aiello.  Not too many people remember the opinion, because it was mercifully murdered by changes in the law in 1978, when Congress used to enact laws.  The question before the court was whether California’s denial of disability benefits for pregnancy constituted invidious sex discrimination.  The Supreme Court held it did not, as it would be costly to pay for pregnancy-related disability, and saving money was a rational purpose.

The dissent by Justice Brennan, noted that the Court gave short shrift to the discriminatory aspect of the exclusion of pregnancy disability benefits.

When, as in this case, the State employs a legislative classification that distinguishes between beneficiaries solely by reference to gender-linked disability risks, “[t]he Court is not . . . free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves overriding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible, less drastic means.”

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Josh Blackman, who has been on the Supreme Court’s abortion protest buffer zone speech restriction case, McCullen v. Coakley, like a fly on shit lawprof, notes some very interesting language in Chief Justice Roberts’ opinion.

On a somewhat related note, another key limitation recognized in McCullen on crimes that regulate speech, is a requirement of intent. It’s not enough that speech may have an incidental effect that harms another. Rather, the speaker must have the intent to “intimidate” or “harass” someone else.

The second supposed defect in the alternatives we have identified is that laws like subsection (e) of the Act and the federal FACE Act require a showing of intentional or deliberate obstruction, intimidation, or harassment, which is often difficult to prove. As Captain Evans predicted in his legislative testimony, fixed buffer zones would “make our job so much easier.” Of course they would. But that is not enough to satisfy the First Amendment. To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.

The tailoring requirement does not simply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. Where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demand­ing a close fit between ends and means, the tailoring requirement prevents the government from too readily “sacrific[ing] speech for efficiency.”

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Stephanie West Allen sent me a link to a law student, Jacqueline Horani, who, after her first year, found a peculiar niche that interested her greatly.  She describes it as “the intersection of community & the law,” which clarifies nothing for me, but to her credit, she’s going for it.  She needs $1500 to fund her summer tour, and she turned to Indiegogo to get it.

The title of her pitch is “A law student’s adventure through the U.S. to discover the intersection of community & the law.”  She describes it as

Did you know…

that there are over 1,500 Intentional Communities, planned residential communities where people live together under a common vision/values, in the United States alone? Almost all of these communities have sustainability as an aspect of their focus; many create local organic farms, local businesses, and establish land trusts to protect open spaces from development.

Even if you don’t live in an intentional community, the more we make it easier and more successful for their establishment, the more organic produce, locally made jams, clothing, and cheeses, retreat centers and nature preserves the world can enjoy!  Plus, the more we learn from these microcosms of community, social experiments in collective resources, the better we can re-define and re-organize how we live our lives in cities, suburbs, and neighborhoods.

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Ask an engineer and he may be happy to explain the theory behind the little magic black box, whose digital readout is, standing alone, sufficient to put a person in prison.  When the Breathalyzer 5000 was accepted as proof of drunk driving, it became a fixture of the law.  There aren’t many bank robbers, but there are a ton of drunk drivers. We know because the box says so.

In time, the magic science of the box became the subject of scrutiny.  Experts questioned its accuracy, both internally and theoretically.  After all, it purported to measure the alcohol in a person’s breath, while the salient information was the alcohol in a person’s blood.  It gave a number, which conclusively proved a crime notwithstanding the absence of evidence that the number, at first .10 BAC and then lower and lower, as MADD gained influence and legislators had fewer criminal dragons to slay, that condemned people without regard to any real harm.

Prohibition may have failed, but we’ve never really gotten over the moralist’s hatred of evil intoxicating beverages.  And this black box made it easy-peasy to nail the culprits. Continue reading →