At the WaPo Conspiracy, David Post raises an interesting issue relating to the “seizure” by the TSA when one crosses an imaginary security line at the airport:

But even worse is this:  while waiting on the hoi polloi line, I started watching the TSA video that was running on the monitors overhead, and I was struck when the narrator said:  ”Once you enter the screening area, you will not be permitted to leave without TSA permission.”  Really?! Actually, I am permitted to leave without TSA  permission, whether they like it or not, because the Fourth Amendment’s prohibition on “unreasonable . . . seizures” gives me that permission. We have a word for this, too, in the law, when government agents don’t allow us to leave freely:  ”being in custody.”

While his point makes sense from a logical perspective, his fellow traveler, Orin Kerr, notes that the law doesn’t quite agree: Continue reading →

In yet another screwy screed, Georgetown Law’s Bill Otis at Crime & Consequences, who fancies himself a leader in the war against the Smarter Sentencing Act, boosted by the recognition of C&C as the “top-rated pro-prosecution blog” according to a scam link-bait survey that’s been desperately trying to find fools pathetic enough link back to it, says the feds can’t reduce their prison population.  It just won’t work.

In debating the Heroin Dealers Bonanza Act Smarter Sentencing Act, I hear one question again and again:   Since some states like Texas and Michigan have reduced their prison populations over the last few years and  have seen the decline in crime continue, why can’t the federal prison system do the same?

Who, exactly, Otis debates with, aside from the voices he hears in his own head and the occasional dog, is unclear. But as strawmen go, it’s a fair question, even if framed in a self-serving manner.

Even if prison reduction programs work for the states, they are not going to work for the feds.  The feds prosecute precisely the kind of drug gangs, and drug offenders, who are the most violent, the most entrenched, and the most prone to recidivism. Continue reading →

The New York Times business section profiles Brooklyn Law School, as Dean Nicholas Allard takes the bold move of refusing to play the U.S News & World Reports ratings game.

Brooklyn will hold tuition at its current level — $1,800 a credit, or $53,850 a year — for the class entering this fall. Next year, it will introduce an across-the-board 15 percent cut in tuition. It is also reducing some kinds of merit aid, increasing need-based aid and offering a curriculum that allows some students to graduate in two years rather than the standard three. “It’s still expensive, and I wish we could do more,” Mr. Allard said.

While holding tuition at current levels isn’t exactly radical (or inexpensive), the cut in merit aid is the kicker. Continue reading →

Walter Olson shreds the conduct of the FBI in seizing the antiquities collection of 91-year-old Don Miller in Indiana.

FBI agents Wednesday seized “thousands” of cultural artifacts, including American Indian items, from the private collection of a 91-year-old man who had acquired them over the past eight decades.

The aim of the investigation is to determine what each artifact is, where it came from and how Miller obtained it, Jones said, to determine whether some of the items might be illegal to possess privately.

Jones acknowledged that Miller might have acquired some of the items before the passage of U.S. laws or treaties prohibited their sale or purchase.

What is happening to Miller reflects a conundrum facing anyone who had the misfortune of getting caught in the net of modernity, the effort to revisit the rules in light of current sensibilities by demanding that things that happened in the past somehow match the rules of the day. Continue reading →

Between the rhetorical “search for the truth” stuff that’s thrown up when convenient, and the burden of proof stuff that’s hauled out for the same reason, people would likely believe that a video that shows police testimony is false less than accurate would be good enough to put an end to a phony reason to stop a car.

Not true, said the Indiana Supreme Court in Robinson v. Indiana.  There, the trial court held a suppression hearing for the stop of defendant’s car, which was pulled over by Deputy Casey Claeys of the Elkhart County Sheriff’s Department.

Deputy Claeys later testified he saw the vehicle “drive off the right side, which was the south side of the road, twice.” Immediately after the second incident, he turned on his vehicle camera and initiated a traffic stop for “unsafe lane movement.” The camera, once activated, retroactively records the previous thirty seconds. Continue reading →

When Nassau County police officer Nikolas Budimlic decided that the best idea was to individually charge into a house where a gunman was holding people hostage, there were couple of possible outcomes. The first was that he would be a hero, get a medal and have a statue of him erected.  The second was that a lovely young woman, a Hofstra student, would lie dead before he was done, and the machinery of the state would crank into gear to shift the blame.

The odds were against Budimlic’s getting a statue.

Immediately after the death of Andrea Rebello from a bullet to the head, the gunman was blamed. Then it turned out that the “gunman” was Budimlic.  The police union then rushed to its member’s aid, explaining how it wasn’t the cop’s fault for shooting Rebello in the head, because criminals.

Then came the victim blaming, speculation about drugs in the house and how maybe Rebello was looking for Mr. Goodbar so that Budimlic’s bullet to the head wasn’t really a big deal. Continue reading →

Most people would be inclined to believe that the training regimen for police officers would be the subject of great oversight.  Perhaps a rigorous course of study developed by the best minds so that the public will receive the best service.  At the very least, it would be more than one guy’s idea of how a bunch of other guys with guns should behave.

Not in Albuquerque, which might answer the concern of former cop turned prof at John Jay College of coppery and shoe repair, Peter Moskos, asked after viewing the videos of the execution of James Boyd.

I think this was a bad shooting.

But what really worries me is that perhaps the officers performed exactly as trained. If so, we need to change police training (and not make scapegoats of the officers).

While Moskos holds cops in such low esteem that any bit of murderous stupidity can be sloughed off elsewhere, Continue reading →

Many years ago, I shared offices with a couple of guys, Paul Goldberger and Larry Dubin.  They were kinda big deals, and big deals got big fees. Their firm, Goldberger & Dubin, got big fees. Big enough that when paid in cash, Form 8300 was required by the IRS, and the form required, inter alia, the identity of the payor.

This was a problem, so they refused. The Second Circuit was unsympathetic.

Section 6050-I stops far short of the forfeiture statutes that were at issue in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) and United States v. Monsanto, 491 U.S. 600 (1989), in which the preclusion of the defendants from using seized assets to pay their attorneys was held not to violate the Sixth Amendment. Section 6050-I does not preclude would-be clients from using their own funds to hire whomever they choose. Continue reading →

At Tempe Criminal Defense, Matt Brown offers an amusing anecdote about how a court clerk at the Mesa Municipal Court acts as if he didn’t exist.

The court called us at 2:25 p.m. and left a message about getting our position on the state’s motion to continue trial.  That’s right, the state’s motion.  Not ours.  The motion the state didn’t bother faxing us until 3:45 p.m.

I called the court back sometime shortly before 5:00 p.m. and spoke with a very pleasant lady.  She wanted to know my position on the state’s motion.  I told her we didn’t oppose it and had in fact filed our own motion.  She asked for me to wait a moment and came back a bit later.

“Oh my goodness, so you did!” Continue reading →

On the surface, it probably wouldn’t surprise anyone to learn that there are law enforcement groups that are trying to subvert bipartisan support for the Smarter Sentencing Act.  Sure, the hardcore and lazy federal prosecutors have come out against it, as it could make them have to work for the notches on their guns, but that was to be expected.

Yet, as the HuffPo explains, there is a second level of organized law enforcement working in the shadows to try to blunt the edge of reform of the mandatory minimums that allow prosecutors to own the system:

Several organizations representing state and local law enforcement are quietly trying to kill a bipartisan bill that would roll back tough mandatory sentences for people convicted of federal drug offenses under legislation passed during the height of America’s drug war three decades ago. Continue reading →