When the caption of a 5th Circuit opinion by Judge Emilio Garza includes a police officer’s nickname, and that nickname happens to be “Taser Joe,” you have to find out why. After all, plenty of deputies use Tasers, so it’s not easy to stand out.

In Ramirez v. “Taser Joe” Martinez, Jim Wells County Deputy Taser Joe went to Reynaldo Ramirez’s landscaping business to arrest Ramirez’s sister-in-law on a warrant.  It being Ramirez’s business and sister-in-law, he questioned what Taser Joe was up to. Taser Joe was not pleased.

Ramirez claims the officers had their guns drawn and were pointing the guns at his employees, who were kneeling down. Ramirez approached Deputy Michael Teodecki, another Jim Wells County sheriff’s deputy, and asked him to explain what was happening. Teodecki said Martinez was in charge of the operation and did not disclose any other information.

Ramirez located Deputy Martinez and asked Martinez what was happening and why the officers were there. The two exchanged  profanities. Martinez yelled, “You shut your mouth or I will take you to jail!” Ramirez simultaneously yelled, “This is my business, ok?” twice. Martinez yelled, “Turn around and put your hands behind your back!” Ramirez did not comply. Martinez grabbed Ramirez’s hand and told him to turn around, but Ramirez pulled his arm away. Martinez immediately tased Ramirez in the chest.

The offense of Resisting Arrest is defined in relevant part as follows:

(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

(b) It is no defense to prosecution under this section that the arrest or search was unlawful.

While caselaw holds that pulling away is resisting, the kicker is in subsection (b), that it is no defense to resisting that there was no basis for the arrest in the first place.  This flies in the face of the commonly understood belief that if a person has committed no crime, the police have no authority to arrest or use force to effectuate that arrest.  Silly people, thinking that there has to be lawful justification at the outset or what follows can’t be lawful.

What continually stymies people’s understanding of how criminal statutes work is their expectation that it will somehow comport with a logical progression.  As most any judge will tell you, the law demands you submit first and complain later.  Was Ramirez’s annoying Taser Joe with his insipid questions about why deputies were at his business pointing guns at his kneeling employees a crime?  Well, no. Not a crime at all, but the fact that he pissed off the deputy was more than sufficient to set in motion the chain of events that placed the burden on Ramirez to submit to arrest.  And his failure to do so, by pulling his arm away from Taser Joe, was a crime in itself, even though no crime occurred upon which the arrest could be justified.

There are no shortage of folks, myself included, who think this view of the relative authority of police to arrest for contempt of cop is not merely wrong, but more than sufficient cause for a citizen to defend his constitutional right to be left alone.  But neither the legislators who enacted this law, providing police with authority that bears no connection to reason and subjugates citizens to the craziest whims of police, nor the courts agree.  The notion is that protecting cops is the first priority. Protecting citizens from cops, not so much.

As if that isn’t bad enough, after Ramirez pulled his arm away, Taser Joe did what he does, he tased him.  Based upon the law that pulling away from a police officer attempting to effectuate an arrest, even if there was no basis for the arrest in the first place, is a crime, Taser Joe contended that he was entitled to one free tase.  Taser Joe, meet the line.

Therefore, accepting Ramirez’s version of the facts as true, the first Graham [v. Conner, 490 U.S. 386, 396 (1989)] factor weighs slightly against Martinez. Second, a reasonable officer could not have concluded Ramirez posed an immediate threat to the safety of the officers by questioning their presence at his place of business or laying on the ground in handcuffs. Pulling his arm out of Martinez’s grasp, without more, is insufficient to find an immediate threat to the safety of the officers. Third, as in the first Graham factor, according to Ramirez the only resistance he offered was pulling his arm out of Martinez’s grasp; he alleges several officers then forced him to the ground without resistance on his part. Viewing the facts of this record in the light most favorable to Ramirez, any reasonable officer in Martinez’s place would have recognized Martinez’s conduct was objectively unreasonable under the Graham factors.

While pulling an arm away may be sufficient to give rise to a crime, it isn’t sufficient to pose an “immediate threat to the safety of the officers” such that they can use force against him.  This is a curiosity, given that the act of Ramirez pulling his arm away is deemed sufficient “resistance” for arrest, a not-inconsequential intrusion into a person’s life and liberty, but insufficient to justify the use of a Taser. Sweet.

And it thus goes without saying that the second tasing of Ramirez, when he was on the ground, handcuffed and not resisting anything, was unreasonable and a flagrant violation of established law.  But then, why do you think they call him Taser Joe?

H/T  FritzMuffKnuckle and Courthouse News

“John Arnold” isn’t a household name, even though he’s made a ton of money as “a wunderkind natural-gas trader at Enron who later founded his own hedge fund.” Enron? Well, even Enron made some real money in its day, and Arnold was their killer trader. With more than he could ever spend, John and Laura Arnold have moved on to doing something worthwhile with their money.

From the Wall Street Journal :

Most billionaires tend to write checks to good causes they’re part of, hospitals where they were treated or universities they attended. These are the so-called “grateful-recipient” donors. Or there are donors who make sizable gifts to meet an obvious need in a community, such as hunger or education. But at a time when charitable giving in the U.S. is still down from its peak in 2007, the Arnolds want to try something new and somewhat grander. John says the goal is to make “transformational” changes to society.

The Arnolds want to see if they can use their money to solve some of the country’s biggest problems through data analysis and science, with an unsentimental focus on results and an aversion to feel-good projects—the success of which can’t be quantified.

What the idea lacks in immediate gratification it makes up for in scope and breadth.  Intransigent systemic problems tend to be ignored because the cost/benefit ratio sucks. Even if a fortune is dedicated to fixing such a problem, there is no assurance that any benefit will ever be derived. Sometimes, intransigent problems are just, well, intransigent.  But then, if you never try, you never know.

This is where the Arnold’s effort gets curious.

Along with obesity, the Arnolds plan to dig into criminal justice and pension reform, among others. Anne Milgram, the former New Jersey attorney general hired to tackle the criminal-justice issue, has a name for all this: She calls it the “Moneyball” approach to giving, a reference to the book and movie about how the Oakland A’s used smart statistical analysis to upend some of baseball’s conventional wisdom. And the Arnolds are in no hurry for answers. Indeed, they believe patience is a key resource behind their giving.

If the goal is to “tackle the criminal-justice issue,” what message comes from the choice of former New Jersey attorney general  Anne Milgram to lead the effort? Her relatively brief career in the law has ranged from New York prosecutor to New Jersey prosecutor.

Then again, this only matters relative to the gist of the criminal justice reform. If the question is how can we convict more people and send them to prison longer, it’s one issue. If the question is how can we prevent the conviction of the innocent it’s another.  The issue under scrutiny here is a bit different:

The Arnolds hired Milgram to analyze criminal justice, with the mandate to “take resources off the table for a while”—in other words, don’t worry about what the research will cost. She zeroed in on how, despite New York City’s success with the CompStat crime-reduction system, the influence of empirical data has barely trickled down to the local level. “It’s hard to think of an area that is less data-driven and analytical than local government,” Milgram says.

Huh?


In particular, she and Laura became fixated on how the country spends $9 billion to keep nonviolent, pretrial defendants behind bars, even though there is little data on the risks those accused pose to society. As Milgram points out, most baseball teams know more about their backup shortstops than judges know about pretrial defendants before locking them up at great cost to society and the accused. 


Oooh. Didn’t see that coming.  As for the “Moneyball” analogy to shortstops, well, it’s pretty darned poor.  There are a whole lot more criminal defendants than major league quality shortstops, and not every defendant has a relevant statistical record to rely on.  “So what team did you commit burglaries for in college, Joe?”

“It struck us as a uniquely bad mechanism to decide who should stay in jail,” says Laura, who also sits on the board of The Innocence Project, which uses DNA testing to clear prisoners on death row.
 Using data from more than 1.5 million cases, Milgram and her team created a risk-assessment tool for judges that will be tested in three jurisdictions later this year. The Manhattan district attorney’s office is planning to try a similar tool designed for prosecutors.

[Edit: This was omitted from the original post this morning. Sorry.] Risk assessment in pretrial bail/detention is relatively easy at the low ends and relatively pointless at the upper ends of the crime spectrum. At the low end, where poor defendants can’t make $500 bail, they sit until they plead to avoid spending the year awaiting trial. At the upper end, solid citizens who have no reason in the world to flee but for the seriousness of the charge, are held without bail lest the judge be impugned for letting some accused murderer out on the streets. It really doesn’t require a billion dollar study to empirically demonstrate that non-violent defendants pose no risk of violence if released on or without bail. 

But if this risk assessment makes any sense, it would seem to have far greater application to sentencing, a far larger systemic problem, than pretrial detention.  After all, at arraignment, everyone is presumed guilty, even though bail determinations don’t necessarily reflect it. After conviction, everyone is guilty. What then is the risk? What then is the sentence? That’s where some empiricism could do us a world of good.

Sentencing, as  discussed here numerous times, remains a black hole of empiricism, the last bastion of religion in the law. It can only be explained in broad, meaningless strokes, without any hint of justification for the length of time a defendant is taken from his family, or society is made to pay for his warehousing. It’s voodoo.

And yet, one can’t help but wonder what bases predicated the 1.5 million cases of data? On the one hand, Laura Arnold sits on the board of The Innocence Project, which suggests a concern for the wrongful conviction of the innocent, and in turn the use of weapons in the fight for convictions that lend themselves to the securing convictions at all costs.

On other hand, former New York County prosecutor Milgram has been chosen to take the lead. So Manhattan District Attorney Cy Vance is planning to try using a similar empirical tool? Is that offered to suggest that if it’s good with prosecutors, it should be good with the rest of us? Are prosecutors the bellwether for a healthy criminal justice system?

The outcome of this project may well prove to be beneficial to everyone, providing an empirical basis and maybe sentencing that will end the imposition of meaningless numbers that leave people who pose no risk of recidivism or harm to society behind bars for years, for decades.  But every effort at reform begins with a bias, and there is nothing in this article to suggest otherwise here. 

If anything, it’s particularly scary as it has the potential to offer what appears to be an empirical basis for what’s not done with eyes closed which may prove to be impossible to argue against in the future (unless you have a few billion to do a study of your own), and yet infected with the same assumptions about the bad guys that have given rise to such brilliant solutions as mandatory minimums, three-strikes laws, zero tolerance and life without parole for children caught with their shirt tails out.

So will money end recidivism? I dunno, but I do know that whatever it comes up with, there’s no one around willing to engage in a counter effort to dispute the results.

H/T  Stephanie West Allen

 

When news first broke of the killing of Hofstra student Andrea Rebello, the first reports had two distinct features: the reports were fundamentally wrong and they began with a lie, that she was shot by the masked gunman, Dalton Smith. A  bad smell permeated the news.

When the truth came out, that Rebello was shot in the head by a Nassau County police officer, the explanation was that the first two officers on the scene decided to enter the home, where the gunman, with Rebello in a headlock, pointed his gun at an officer. The unnamed officer fired eight shots, one of which struck Rebello in the head.

The next line of questions related to why a patrol officer would enter a house with a gunman and hostages.  The proper course of action would have been to secure the scene and await supervisors and hostage negotiators. The one thing you don’t do is play cowboy, enter the home and create an untenable situation. There was little chance it would end well.

Enter Excuses 2.0, via the New York Times :

Officers who arrived first on the scene believed that they were confronting an armed robber but knew nothing about the hostages, the police said. That gap in knowledge was critical, experts said, possibly leading to missteps that inflamed an already dangerous situation and ultimately led to tragedy.

Most critical, experts said, was the decision by the officer who ultimately opened fire to enter the home in the first place.

Only minutes elapsed from the time the police were summoned to the home on California Avenue about 2:30 a.m. Friday until the shots were fired. Hostage negotiators were summoned, but they did not reach the scene in time, said Deputy Inspector Kenneth Lack, of the Nassau County Police.

“The first time they knew there were hostages was when the officers were already in the house,” Inspector Lack said, citing details from a preliminary investigation.

Once inside the house, the officers had few options.

A former firearms trainer for the New York Police Department, who asked for anonymity because he maintained close ties with active-duty officers, said a situation like this one — an armed gunman pointing a weapon in proximity to a victim — was “the worst-case nightmare for cops.”

He said such situations required a balance between protecting the victim and the officers themselves.

“I would hate to be in that situation myself,” the former trainer said, “but the bottom line is if a police officer believes that his death or the death of a civilian is imminent, he is absolutely justified in utilizing deadly force.”

Where exactly the balance between protecting the victim and the officers protecting themselves came into play here remains unclear. The answer seems to be in not creating the nightmare scenario rather than having to pick who dies today.

Make no mistake, the gunman, Dalton Smith, bears primary responsibility for the course he set in motion when he decided to rob the home at gunpoint. But it’s the job of the police to come into a criminal situation and make things better, not worse.  And having taken a bad situation and turned it into the “worst-case nightmare,” the lies and excuses to deflect the mistake, the failure to take actions that would have given Andrea Rebello a chance at survival, can’t be ignored.

The officer who fired the shot that killed Andrea Rebello hasn’t been named. Indeed, it’s likely that he will be  scarred by what he did to this young woman for the rest of his life. His career with the police may be over, not because he will be fired for having acted improvidently, but because he can’t shake off the guilt of being directly responsible for the death.  The police will likely speak to the heartbreak of the police officer, the psychological trauma he will suffer for the rest of his life, to remind us that he too is a sympathetic player in this tragedy.

While this may be true, the suffering of the officer who killed Andrea Rebello won’t be nearly as deserving of sympathy as the suffering of her twin sister or her parents. The difference is that the officer had a choice of whether to enter the house. He gave Andrea Rebello no choice.  And the excuses to deflect blame from the police just make the suffering of the Rebello family worse.  It’s bad enough a cop killed Andrea Rebello. Don’t make it worse by making up excuses.

Having already taken charge of the op-ed page of the Times, I needed a new challenge. What better for a cutting edge guy like me than the Style Section?  Do I not know that the Louis Vuitton store is on 57th Street? Come on.

And so, I tackle the hard questions posed to  Philip Galanes in today’s paper, since he obviously isn’t really cut out for this style stuff.

My husband and I are preparing our wills. We have two adult children: a daughter who is more successful than we are, and a son, who has been down on his luck for years. He also has three young children to educate. Everyone, including our lawyer and close friends, tells us that we should leave our money to them in equal shares to avoid hurt feelings. But that doesn’t seem right. Our son needs the money. Still, we don’t want to hurt our daughter. What would you do?

Anonymous, Chicago

Stop listening to everyone. It’s your money, and they’re your children. Who better to walk this perilous tightrope than you, especially if we set up cushiony nets beneath you (unlike Burt Lancaster in “Trapeze”)?

Burt Lancaster in “Trapeze”?  Seriously. When I was a kid, that movie was so old it was on the  4 O’Clock Movie five days a week.  Come on, Philip, strap on those sock garters and spats and get out once in a while. But I digress.

So is your irony detector going crazy like mine? The anon questioner, who hasn’t bothered to make a will until her children were old and half-losers, has already raised their issue with the people who know them, know their financial sitch, maybe even knows their kids, and so they’ve decided to ignore people with knowledge in favor of a guy who writes for a newspaper and doesn’t know them from Adam. Minus 1.

And what does the newspaper guy say?  Stop listening to everyone. Oh, the irony alarm is deafening. Don’t listen to them. Listen to me? Anybody home?

Naturally, what caught my eye about this question was that it stands at the crossroads of law and feelings. So the old folks who never thought to make a will before are now struggling with how to take care of their loser son. Does it dawn on them, or Philip, that leaving him more than a half share might not be a helpful way to deal with it at all. How about a good smack in the face, a la Moonstruck?  Remember the old give a man a fish allegory? 

So they feel guilty about having failed their baby boy. With good reason, apparently, and so their parting message to their daughter, who worked hard and accomplished something with her life, is we don’t love you as much as your brother.

Bequests to children aren’t rational, even if the daughter says she gets the reason. It’s a matter of legacy.  If you hate one of your kids and want to get in the final smack, screw him in the will. Just remember that there is no going back afterward, so you better really, really hate the kid because the kid is for sure going to hate you.

The point of advice isn’t to confirm what the person asking wants to hear anyway. It’s to help them despite whatever really dumb thing they want to do.  When it comes to something like a will, there are a wealth of concerns that would never occur to a Style guy because he’s never sat in a room with the children of dead parents, trying to figure out why they did what they did. Experience suggests that things nobody wants to believe will happen will happen. They get greedy and needy. They get angry. They get spiteful and hateful.  They shouldn’t, and the testator didn’t think they would. But they do.

How do we know such things? Because this isn’t the first person who ever made a will. Now the big question: Is she leaving behind any Louis Vuitton bags?

So when should I move my stuff into Philip’s old desk?

For reasons that can best be described as a generosity of spirit combined with some internal pride,  Fishtown Lawyer Jordan Rushie posted about the things he did in his extralegal week.  He had a busy week.

Monday: Confer with FNA Board to discuss PTSSD grant, which involves a significant amount of money coming into the neighborhood for civic projects
Tuesday: 6:30pm – 9:00pm – Hosted an FNA Zoning community meeting to take a vote by the neighbors on a large scale residential development proposal.
Wednesday: 12:00pm – 5:30pm – Testified before the Zoning Board of Adjustment on behalf of FNA about proposed development along the Delaware Avenue Waterfront (the largest development ever proposed in Philadelphia), and its impact on the Fishtown neighborhood.
6:30pm – 9:00pm: Hosted a Fishtown Area Business Association meeting, which was attended by over 60 local business owners to discuss happenings in the neighborhood (and drink a few beers).
Thursday: Attend FNA General Membership Meeting to discuss happenings in the neighborhood with the community, including all of the things that happened earlier in the week.
Friday: Quizzo in my local watering hole, Luke’s Bar.
Saturday: 1:00pm – 3:00pm – Station table at the Trenton Ave Arts Festival for FNA.

Think about how many people you walk by on any given day without even looking up from your smartphone because you’re updating your Facebook status. Every one of those people is a potential future client, and you’re busy with cat pictures.

The handsome young couple down the corner, One-Eyed-Nick, Crazy Cat Lady, or even just your Friendly Neighborhood Postman — just say “Hello!” You’ll catch people off guard. You might even strike up a brief conversation. But more than that, these folks will begin to recognize you. While you might start off as “that weird guy who says ‘Hi’” every day”, over time you become “that criminal defense lawyer whose office is around the corner.”

A few years ago, I was encouraged to go to local business meetings, breakfasts, lunch groups, etc. And they all – yes, all! – had the following composition:

– Attorneys
– Real estate agents
– Insurance salespeople
– Mortgage brokers
– Random chick selling gift baskets

Nothing else.  They were pathetic gatherings where people whose businesses relied upon sales handed out business cards to each other.  Look at who your fellow bottom feeders are.

If you’re not a salesperson, you will not be a successful lawyer. If you’re uncomfortable shaking hands and schmoozing and networking and spending half your life working the room in sleazy gatherings, you will not be a good lawyer. Law is not about law. Nothing that makes you a successful lawyer is learned in law school.  You would be better off spending three years slutting around on a used car lot, because that’s how you learn how to snare people into deals they don’t need for prices they can’t afford.

An interesting post from Jonathan Turley :

There is an interesting lawsuit against an academic institution in Colorado. Spanish-speaking custodial workers at the Auraria Higher Education Center in Colorado are suing over the failure of the Center to give them instructions in Spanish — alleging that they have faced unsafe conditions over the use of English rather than Spanish. The case suggests that the use of Spanish can not only be legally required but that the use of English can constitute a type of unsafe workplace.

Blaine Nickeson, an AHEC vice president, said that the AHEC does offer some translations, but that it cannot be required to use native languages for all of its employees.

I cannot see how using English as the primary form of communication in the United States can be the basis for discrimination or an unsafe work environment. If schools are legally required to speak the language of custodians and other employees, can they refuse to hire non-English speaking employees or would that be a form of discrimination based on national origin?

“Too many things have happened to me there that I don’t even know how to explain it,” said Auraria custodian Bertha Ribota.

Ribota said she was injured at work because she couldn’t read a warning sign that was in English.

“If I could speak English I wouldn’t have the problems that exist,” said Ribota.

The same, of course, could be said of people who come to the United States to work, that it would be in their interest to learn English.  Of course, that’s easier said than done, and even if they do, they have to eat until they’ve achieved a sufficient level of mastery that they can read the sign that says “don’t stick your head inside machine while blades are turning.”

While Title VII of the Civil Rights Act of 1964 requires employers to provide “reasonable accommodations” in the cases of religion and disability, it does not require an employer to communicate with every employee in his or her native language.  The question isn’t whether it’s a good idea to do so, but whether the law requires an employer to do so.

Like Turley, I don’t see how it could work or be enforceable. If an employer has a staff that speaks 5 languages other than English (or make that 20, or 50), would the employer be required to have supervisors who speak those languages as well, signs for every language, perhaps translators working full time?

The alternative is that the law would have to allow employers to discriminate based on language, which implicates national origin, so that he could have staff speaking only one or two foreign languages, and then it would be relatively manageable to have supervisors or translators to manage the Babel.

But these are inherently burdensome on an employer and pretty ineffective means of dealing with the problem. What if your one Mandarin speaking custodian quit and was replaced by a Ukrainian?  The problems are endless.

The obvious “solution” is for foreign language speaking employees to learn English (or for everyone to agree to speak Spanish) so that there is only one language in the workplace, but that’s a fantasy solution, impractical as well. And yet who can blame employees for not wanting to get hurt?

It started at .10%. Then it was .08%. Now, the National Transportation Safety Board wants to  reduce it to .05% blood alcohol content to create a per se crime of drunk driving.  And it comes with a plethora of ideas, including steering wheels that can tell from perspiration whether the driver has been drinking, or interlock devices that won’t allow a car to start until the driver has done some heavy breathing,

The  New York Times says it’s a good thing.

It is surprising how few drinks can impair a driver’s judgment. A report from the National Transportation Safety Board estimates that alcohol-impaired driving contributes to thousands of deaths and tens of thousands of serious injuries each year. It is right to urge states to reduce that toll by lowering the allowable blood-alcohol concentration for drivers from 0.08 percent to 0.05 percent.

The first sign of a problem is the wiggly word used to make the connection between alcohol and thousands of deaths.  See how they snuck it in there, “contribute”?  Not “cause,” because there is no evidence that alcohol was the cause, and indeed there is a ton of evidence to the contrary. The statistics are played by including in the numbers any death where anyone anywhere near a car had any alcohol in them, including the victim, without regard to whether alcohol had anything to do with it.

The second sign is that Mothers Against Drunk Driving, the force behind the reduction from .10% to .08% and the public service announcements, the school groups like SADD, and pretty much every initiative relating to drunk driving, doesn’t support this change.

This is shocking. No, worse than shocking.  But MADD isn’t just the mothers who have endured a tragedy anymore, but a sophisticated machine. In their zeal to wipe drunk driving from the face of the earth, they realize that this move goes too far.  They have thrived on the support of middle America, using the “do it for the children” argument better than anyone else.  But this move goes beyond the tipping point of acceptability, and that would spell the death of their power and their effort.

The use of a percentage of blood alcohol content as the definition of a crime is a strict liability offense. You don’t have to drive dangerously. In fact, you can driver perfectly, but you’re still a criminal.  You may not put your own interests ahead of society, but just be a pretty normal, law-abiding, happy person, and still you’re a criminal.  You may support the death penalty, make cookies for the DAR bake sale, own an AK, but still you’re a criminal.

If the BAC is reduced to .05%, it’s going to change a lot of lives, and the people whose lives it changes aren’t bad people and aren’t going to like it.

The point has been made that if we want to eradicate drunk driving, then it can be done quite easily by making the legal BAC .00%. No drinking, period. Easy. But people aren’t going to like that at all. The argument offered to make the .05% BAC more palatable is that it allows some drinking:

The new standard would not bar all alcohol, but would mean giving up a drink or two. A 180-pound man who might be able to drink four beers or glasses of wine in 90 minutes without reaching the 0.08 limit might have to cut back to three to meet the lower standard. A 130-pound woman who could have three drinks in 90 minutes and stay below the current standard might have two drinks instead.

The advocates want to make this change seem as innocuous as possible, rather than controlling the behaviors of others. Not being much of a drinker, it would likely have no impact on me. But for those who enjoy a bottle of wine with dinner, or live out in no-man’s-land and whose only entertainment is a dozen beers at the highway honky-tonk, they will become criminals.

And that’s the issue. This isn’t about advocating for the right to drive drunk, but about the criminalization of things that are done today by the law-abiding.  This isn’t about people making a decision to engage in criminal conduct, but about people not knowing whether they’re going to be a criminal or not.

There are many consequences of this change, together with the other ideas to prevent people from driving drunk, that aren’t being discussed. What happens when the technology of the magic steering wheel fails and cars won’t start? What about the person who shares a car with a convicted drunk driver but is constrained to use the interlock device? What about the person with an emergency who needs to get to the hospital but can’t get the car to start?  The list goes on for a long time. Use your imagination.

The Bubble Boy agenda, the Utopia where no one is ever harmed, won’t happen because of this change. There will still be crashes, because people can’t drive worth a damn, and there will still be children who die in crashes. There will be diseases that take the lives of people who don’t deserve to die, even though the television informs us that they’ve cured restless leg syndrome. There will never be that perfect world where no mother has to bury her child.

Still, anyone who has had too much to drink should not get behind the wheel. You are selfish and foolish, and you have no right to put me or my children at risk because you wanted to have a good time.  But you can do this because you’re a human being, not because it’s the new crime du jour. And police can, and should, arrest you if you drive recklessly, whether it’s because you’re drunk or you just drive like crap.

It’s hard to argue against something that has become so socially unacceptable as drunk driving. Only a pariah, or a criminal defense lawyer, would be crazy bold enough to speak out against something that saves the lives of children.  But when half of America finds itself branded as a convicted criminal, crying in a lawyer’s office that they meant no harm, and caused no harm, it will make more sense.

The story isn’t a particularly complicated one, when an  armed intruder broke into an apartment of Hofstra University co-eds in search of money and, not finding enough to satisfy him, sent one to an ATM to get more. Even for someone stupid enough to invade a home, this was idiotic. If you want money, you don’t pick an apartment of college women.

Instead of going to the ATM, Jessica Rebello called the Nassau County Police. Her twin sister, Andrea Rebello, remained inside with the intruder. The story turns particularly banal at this point. Cops swarm, gunfight ensues and two dead bodies are found. Two?

According the Huffington Post :

Andrea Rebello, 21, of New York, was shot dead by a masked gunman while her twin sister was in the house, cops told the New York Post. The gunman was also killed in a firefight with police.

The intruder broke into the home at about 2:20 a.m., where the sisters, one of their boyfriends and another woman were staying. The suspect held them hostage for a short time, but let the unidentified woman go to get cash from an ATM. She called police, NBC News reports.

Rebello and the gunman were killed during a firefight that erupted when police arrived. Police told the Post that the suspect killed Rebello, and cops killed him.

This didn’t seem right. Not that it was impossible that the gunman shot and killed this lovely young Hofstra student, but why, in the midst of a gunfight with police would he kill her? To what end? The  Daily News told a different story.

Police brass acknowledged that officers opened fire in the house, but couldn’t confirm who fired the bullets that killed the popular college student and the unidentified attacker.

There’s the rub. Bullets have no mind, no conscience. They don’t know who they strike, and they don’t care.  At this time, it’s unclear whether the masked intruder ever fired his weapon.

Asked if the suspect fired his weapon, [Chief of Detectives Rick] Capece said authorities wouldn’t comment “until we get more info.”

Why is it always after the bodies are dead that the concern about getting more info strikes?

It may be that the police arrived and were fired upon by the robber, returning fire in turn. It may be that the robber, inexplicably, turned his gun on Andrea Rebello in the midst of a gun fight with police and killed her. There is no requirement that stupid or crazy people act in a rational way or do things that make sense under any line of reason.

But it may also be that the Nassau County Police, a force that doesn’t get many shootouts, failed to exercise tactical judgment, knowing that there was a young woman in the house with an armed gunman.  Was there a need for dozens of police cruisers to descend on the house in shock and awe fashion?  Did anyone think it through, make an active decision that this was the best thing to do under the circumstances?

It’s not a matter of sympathy for the masked gunman, but cold, hard analysis, that the primary goal at the outset was that Andrea Rebello, as well as the others inside the house, make it out alive.  There would be time later to deal with the robber, and capturing or killing him didn’t need to come first.  First, make sure the innocents inside stayed alive.

That didn’t happen. That is what makes this a disaster.

The smell of this scenario is all too usual, massive police presence descends on house. The sound of a gun shot and every cop there opens fire. Maybe it was the robber. Maybe it was a cop. Maybe it was an accident. Maybe it never happened, and one cop thought he heard something and it was his first shot that made the rest discharge their weapons.

But did anybody stop to think there were people in this house? Did anybody stop to think that firing into this house meant that bullets would strike whoever was in their path, without regard to whether it’s a masked gunman or a young woman?

I hope it turns out that the gunman shot at police first. I hope the gunman shot this 21-year-old college student. Not because it makes this pointless, terrible death any better, but because it’s better than the alternative that the police mindlessly fired into this home and killed her.  As a father, that would be more than I could take.

But the smell of this tragedy is bad, and regardless of who killed whom, the goal of the police should have been to assure that the people inside emerged alive. That didn’t happen, and there is nothing about the way in which the police dealt with this situation that gave it much of a chance. Their knee-jerk reaction prevailed when they responded to the call.

And when questioned about how Andrea Rebello died, the knee-jerk reaction was to blame the gunman, even though it may well prove to be the cops. Regardless of whose bullet struck her, this was not a good day for the Nassau County Police.  This was a horrible day for the Rebello family.  This was a bad day for everyone.

Update:  The good news is that an answer as to who shot Andrea Rebello now exists, and Nassau Police Commissioner Thomas Dale released it as soon as possible. The bad news is that it’s as suspected.

Andrea Rebello was shot once in the head Friday morning by an officer who opened fire after the masked intruder pointed a gun at the officer while holding the 21-year-old Hofstra University student in a headlock, Nassau County homicide squad Lt. John Azzata said.

In a tense confrontation with the officer, gunman Dalton Smith “menaces our police officer, points his gun at the police officer,” Azzata said. The officer opened fire, killing Smith and his hostage.

They then lapse into the usual rationalizations:

Azzata said the Nassau County police officer fired eight shots at Smith, who police described as having an “extensive” criminal background. Smith was hit seven times and died. Rebello was shot once in the head.

“He kept saying, ‘I’m going to kill her,’ and then he pointed the gun at the police officer,” Azzata said.

It appears that the story has changed markedly, now with two officers appearing in response to the call, and immediately entering the house, prompting the gunman to hold Andrea Rebello in a head lock. It appears that the gunman never fired a shot.

Condolences to the Rebello family.

Because everybody loves a listicle:

10. Reading a law review article.
9. Twitting.
8. Waiting for your client to be brought down to the visiting room at a correctional center.
7. Asking your mother-in-law “how are you.”
6. Driving on the Long Island Expressway.
5. Waiting for your case to be called for a quick adjournment.
4. Trying to find a new, worthwhile blawg.
3. Asking a parent “how are your children.”
2. Discussing the law of contracts with a fellow named Rajesh in Bangalore.
1. On hold waiting for someone at Dell Customer Care to anwer the phone.

One of the things that people, including lawyers, have a hard time with is that laws and rights aren’t always in sync, and occasionally create a direct and irreconcilable conflict. Ultimately, a side has to be picked, and some will disagree with the choice.  This video of the police responding to a domestic dispute in Cotati, California, via Turley, presents a good view of the problem:



Way back when, domestic disputes were treated by law enforcement as a family matter, something that they had no business being involved with and below the threshold of “real crime.”  Not that it had anything to do with the old joke, “what do you call the husbands of 156,000 abused women? Officer.”  No, the problem is that what they perceived as benign neglect ended up with the occasional dead spouse.

While this isn’t a gender thing in the abstract, it is in real life. There are men who abuse women and do them grave harm. Yes, it happens the other way around too, but the frequency and level of abuse isn’t often the same. No carping on who gets beaten more or worse permitted.

A seismic shift in policy happen, and police in most departments across the country were not only required to fully investigate claims of domestic abuse, but to not take no for an answer.  No community or police department wanted a dead spouse after the police left a home.  This isn’t a bad goal.

As for what happened in the video, consider the pragmatics of the situation. The couple refused to come out, as is their right, and refused to let the cops in, as is also their right. If the cops walked away and the wife ended up dead, there would be hell to pay, but if they forcibly entered and found a beaten wife, there would be no downside. The remedy for an unlawful entry is suppression of evidence, and the only evidence would be the victim. You can’t suppress a victim.

On the other side, if they break in without a warrant and there is no evidence of a crime, the couple can try to find a lawyer to handle their civil rights claim for a broken door. Not too likely, and chances are fair that they would never make it past summary judgment, even though they should. That’s the nature of §1983, whether you like it or not.

But does that make the entry lawful? Not by a long shot. The domestic dispute call might give rise to a reasonable suspicion, but not probable cause. The cops had authority to investigation, but what they found at the home was a couple who asserted their constitutional rights. The issue, of course, is that abused women frequently deny abuse to the police, for fear of retribution afterward, so the wife’s (and we’re assuming that the police here figured it was the wife who would be getting the worst of the dispute) assertion that she was fine may have been completely accurate. Or not.

But the absence of any evidence, response or observation that supports the allegation that someone was being harmed doesn’t create an exigency that permits the police to enter a home without a warrant. Lack of knowledge is neither cause nor exigency, even though one can argue that lack of knowledge doesn’t prove that everything is fine.

So the solution was for the police to remain at the window and continue to observe while calling in for a search warrant issued by a neutral magistrate. If they saw someone being beaten in the interim, then they break down the door and enter to help. Otherwise, they cool their jets. And if the judge refused a warrant based on their allegations, then they turn around and walk away.

Might this put someone at risk of harm, even death? Yes, it might, but the Constitution isn’t an inconvenience to ignore when hypothetical concerns present themselves. Absent a warrant or exigent circumstances, the police cannot lawfully enter a home. That there is no meaningful remedy for their doing so is a fault in the way we address constitutional violations, not a free pass to ignore the Fourth Amendment.

As for the tasing upon entry, well, there was absolutely no explanation or justification for that use of force, and the woman’s screams reminds us that Tasers aren’t the easy fix to any situation, but painful and potentially deadly weapons only to be used then force is needed and permitted.

For those still unhappy about how the concerns for abused women interact with constitutional rights, consider that the only pain inflicted her upon the woman came at the hands of the police. How does that fly with your belief system?