Philip Datz was a freelance photojournalist, doing what freelance photojournalists are supposed to do.  That annoyed Suffolk Police Sgt. Michael Milton, who did what he wasn’t.

Philip Datz, 37, was covering the aftermath of a police pursuit on June 29, 2011, when Suffolk Police Sgt. Michael Milton approached him and told him not to film the scene. He filmed the encounter with Milton, who ordered him to leave the scene but not without first charging the freelancer with a misdemeanor count of obstruction of governmental administration. Datz was given a desk appearance ticket.

Suffolk County District Attorney Thomas Spota dropped the charges in August 2011.

Datz sued the county, and its taxpayers will now be paying the $200,000 settlement.  It’s important that they feel the pain for Milton’s wanton abuse of authority and deprivation of Datz’s constitutional rights, though it would certainly have meant more if Milton suffered for his choices.  But his punishment was a  loss of 23 days of “accrued time,” ten of which he got back if he didn’t do it again. Continue reading →

Could it be?!?  Is it true?!?  Who cares. This is the greatest contest ever in the history of the interwebz.

First prize is the official Gerry Spence fringed buckskin jacket, modeled here by the lovely SJ spokesmodel, Midday Cowboy.  That’s right, fringes. Buckskin. Gerry Spence. Does it get any better?  I think not.

And how can you win this fabulous prize? Continue reading →

Northwestern law dean Dan Rodriguez has taken the mantle of AALS Head Cheerleader, arguing on the one hand that the Legal Academy “gets it” when it comes to the problems facing law students and new lawyers after having pissed away a ton of money and opportunity on their JD, while simultaneously perpetuating the myth that they can continue doing things as they always have because it makes lawprofs happy.  And anyone who disagrees can shut up.

Let the scamblogging games commence!!
I should have added to above: law faculty with whom I meet are remarkably resilient and positive in the face of the bottomless pit of screed and invective that comes by way of (mostly) anonymous bloggers.

Posted by: dan rodriguez | Jun 9, 2014 9:34:08 AM

But while scambloggers don’t have much of a soapbox these days, Above the Law remains the 800 lb. gorilla (sorry, Elie, but I had to) in the lecture hall.  A debate broke out on Facebook over ATL’s failure to include solos in their law school rankings, and Rodriguez jumped in with such constructive thoughts as Continue reading →

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.

Continue reading →

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.

Continue reading →

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 →