While the ABA Journal is busy checking out blogs in bikinis, it’s time for the Practical Blawgosphere to once again honor the dedicated efforts of criminal law blawgers in bringing illumination to the substance of criminal law.  As explained last year,

This is no beauty pageant, but a chance to accomplish two things.  First, to open the door to the best substantive content on the subject of criminal law, and second, to expose the excellent efforts of the best group of blawgers to people who might not otherwise have seen it.

• Anybody can “nominate” a post for the honor, including their own.  SJ posts are off limits.  You can nominate them anonymously, with great fanfare, just by name or with a detailed explanation of why you think a post is the best.  It can be a post from a criminal defense lawyer, a prosecutor or a non-lawyer, provided it’s subject is criminal law.  It can even be a post by a lawprof. You can nominate up to five posts.
  
• Nominations can only be made in the comments here. No emails, phone calls, text messages, fruit baskets or lovely cards with deeply personal messages.
  
• For this contest, and for this contest only, I will allow links to be included in comments to the posts (not the blawgs, but the actual posts) nominated.  Spam links will be treated harshly.
  
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  This is a chance to think back over the year and give everyone some great posts to read, to ponder, to discuss and maybe even change some minds.

And just to be clear, it doesn’t matter if you’re brand-spanking new or an old hand, a dear friend or a complete unknown.  This is all about substance, not popularity, tribes, networking, branding or bonding.  If I smell anyone trying to use this as a marketing opportunity, they’re out of here.  Spam = banned.  If I smell anyone trying to use this for inappropriate purposes, it will end up backfiring. Trust me. Some have even called me abrasive when dealing with impropriety in the comments.

I invite anyone and everyone to offer the best the blawgosphere has in criminal law.  Spread the word, and let others know that this is their opportunity to show their stuff, get a backlink, and let the rest of the blawgosphere know what they’re doing.  

Nothing here at Simple Justice is eligible, so don’t waste time with it.

The winner will be announced on New Years Day.

Judging will be entirely on my shoulders, and I will be as arbitrary and capricious as I please, so there’s no complaining about the choice.  That said, I will do my best to select the blawg post that best reflects our finest work, our highest tradition, our deepest thoughts and our best purpose in putting words on a computer screen.  For anyone who doesn’t trust me to be fair, find a better offer elsewhere. 

In one of the truly rare op-eds that challenge a fundamental precept, Georgetown lawprof Louis Seidman argues in the  New York Times that our adoration of the Constitution is, well, dumb.

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Ancient document from a time long since gone?  But without it, won’t chaos and tyranny ensure? Seidman relates the American history of constitutional disobedience, showing that it’s not as if we’ve stringently adhere to the old gal, and yet we’ve survived.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

Of course, on those occasions when we, as a society, decided that extreme situations demanded turning a blind eye to the Constitution, we didn’t always grow and prosper. Japanese internment camps in World War II wasn’t such a high point. Many would argue that Schechter Poultry did us far more harm than good, and it’s not at all clear that the Alien and Sedition Act was our finest hour.

Seidman isn’t suggesting that we throw it all away, inexplicably arguing that we should retain the rules he likes while discarding the ones he doesn’t, making himself the bar for neo-constitutionality.  For the rest, he contends that we will continue those institutions that society accepts as viable.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy…

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation…

While there is some merit to the arguments that we are hardly as devoted to constitutional fealty as we pretend, and that the strain of trying to shoehorn solutions to current problems into a constitutional paradigm stretches reason to the breaking point, Seidman fails to appreciate the big picture.

As a parent, we dictate rules to our children.  We tell them not to play with matches, or jump off the roof to see if they can fly.  When the younguns demand to know why, we respond: Because we say so. They hate that. Always have. But to keep them from doing boneheaded stuff, we don’t open up our every decision to debate. 

At the same time, we know they will test our boundaries, and expect them to do so.  We hope that the basic rules we instilled in them will serve as the parameters within which they will function, so that when they push the envelope, they won’t do anything too dangerous, too harmful.  We know we can’t watch them every second of every day, and so we trust that we’ve given them sufficient guidance to protect them from the worst.

The same is true of our Constitution.  It provides the fundamental rules within which our society is supposed to function. It’s not that regimes won’t push the envelope, test the edges of those rules or, on rare occasion, run full speed toward the cliff when someone believes it has to be done.  It’s that we have a bottom line, a minimum, by which to judge such actions.

Without it, would we devolve into tyranny?  Maybe. It’s happened to others, and it can happen here as well, since the government has a lot of weapons and whoever has the finger on the button gets to say when those weapons get used.  Yet a poetic piece of parchment allows for a regime change every four or eight years without a single shot being fired. This is an astounding thing.  Ponder it for a moment and appreciate its uniqueness in the history of mankind.

While it’s true that some of the rules may not be a whole lot better than their alternatives, it’s like the basic rule of the road, keep to the right.  The right is not inherently better than the left, but without it, we would crash into one another.  It doesn’t matter so much which side is chosen, but that a side be chosen.  The same is true of our Constitution.

Edit: I regularly wonder what would happen if the Bill of Rights was put up for popular vote today. I’m quite certain that the Fourth would never pass, even if the Second was relatively safe.  As for the Fifth and Sixth, I doubt they would get a lot of support as currently written, and the First wouldn’t stand a chance.  One thing the Constitution does remarkably well is protect us from the tyranny of the majority, even though many would disagree.  Without it, the notions of free speech and equal protection would be long dead, rather than merely crippled as they currently exist.  Remember, bad as things may be, they can always be worse.

And frankly, it’s held up remarkably well.  Not perfect, but even now, as we question and challenge the legislative decisions of the past month that ignore the rights preserved by this ancient document, we have something to turn to so that we can call out impropriety and fecklessness.  As the minimum standards to which all acts of government are supposed to adhere, it is still relevant and well-suited to our demands for the preservation of our rights from an overbearing government.

Sure, it can sometimes feel as if it’s strangling us, particularly for those people whose expectations of government are to caress them and make all their fears disappear.  But as the basic rules for the creation of a political system that can withstand the worst mankind has to offer, it’s proven pretty damn effective.

The Constitution?  I’ll keep it.  Now if I can just get the government to love it as much as I do.

Note: This is not an end-of-year review post, reflecting on lessons learned in 2012. Given the date, and the title, it might have been, but it’s not. Sorry if you feel misled.

While abuse of the “do it for the children” rationale is rampant, there are times when it is precisely appropriate.  At those times, the irony of needless initiatives enacted under such appeals to emotion moving forward at lightning speed while worthwhile initiative languish becomes even more pronounced. This post reflects one of those sad ironies. 

From Newsday:

In 2003, Rep. Peter King (R-Seaford) introduced the Cameron Gulbransen Kids and Cars Safety Act, named for a 2-year-old Woodbury boy whose pediatrician father backed over him in their driveway. Five years later, Congress passed the measure with strong bipartisan backing, and President George W. Bush signed it in 2008.

But almost another five years later, the standards have yet to be mandated because of delays by the U.S. Department of Transportation, which failed to meet a Feb. 28, 2011, deadline to issue the new guidelines to car companies.

Greg Gulbransen, an Oyster Bay pediatrician, back over his 2-year-old son because he didn’t see him behind his car.  I know Greg. Dr. SJ knows Greg.  He was my children’s ped. An excellent doc and a good man. This was the most heart-breaking event in his life. 

While it might have been overreaching to demand a cure to this tragedy if it was just one man’s mistake, it turned out to be a fairly pervasive problem.

The government estimates such accidents kill 228 people a year — 110 of them young children — and injures another 17,000.

At the same time, the auto industry already had a ready solution in hand, in use, and available: Rearview cameras.  The chief complaint against the cameras was cost.

The NHTSA estimates that making rear cameras standard on every car would add $58 to $88 to those already equipped with dashboard display screens, and $159 to $203 for those without them.

There were two chief arguments favoring the mandate, that it would resolve a common problem that impacted many people, some of whom were small children who lost their lives.  And secondly, car makers were more than happy to put rearview cameras in vehicles as selling points, as people desired them and they made the cars more appealing to potential purchasers.

The flip side of the problem is that cars that would sell regardless of cameras didn’t need them to close the deal, and so car manufacturers could safely leave out the cameras without a fear of losing sales.  The money issue cut both ways, where the inclusion of the camera cost a bit, but was worth it if it sold the car, but if not, then cutting cameras out of the car put that much more in the manufacturer’s pocket.

When Dr. SJ bought her first Prius, it came standard with a rearview camera. Back then, Toyota wasn’t sure whether it’s hybrid experiment would work, and wanted to beef up the safety features of the car to make it as appealing to buyers as possible. 

When Dr. SJ bought her most recent Prius, the camera was gone, though it could be added in for a ridiculous amount of money. Toyota’s Prius was a firmly established model, and they left out everything they could get away with this time around. No need for frills when your model is hot.  Even without the rearview camera, the car cost a whole lot more this time around.

As we wave good-bye to 2012, we come up to the ten year anniversary of the law mandating rearview cameras, and yet it has still not been implemented.

But almost another five years later, the standards have yet to be mandated because of delays by the U.S. Department of Transportation, which failed to meet a Feb. 28, 2011, deadline to issue the new guidelines to car companies.
Transportation Secretary Ray LaHood has changed that deadline three times — promising in February that the rules would be issued by year’s end.

“By year’s end” would refer to this year. It didn’t happen.  The explanation is decidedly unavailing:

The National Highway Traffic Safety Administration, charged with completing the new standards, declined requests to discuss the delays.

Spokeswoman Karen Aldana said the agency would not comment while the rule-making process was ongoing, but asserted it was on track to meet LaHood’s latest cutoff date.

In his February letter to lawmakers, LaHood said his agency needed more time for “research and data analysis” to “ensure that the final rule is appropriate and the underlying analysis is robust.”

Ten years without anything, and LaHood’s best argument is that they want the “final rule” to be “appropriate”?

They pass laws criminalizing speech about bullying, to bolster the self-esteem of delicate teacups, in hours.  They pass laws authorizing the warrantless search of electronic communications, so that law enforcement is never forced to suffer the indignity of seeking a warrant, without delay.  Ten years later, there are no regulations mandating the auto manufacturers include rearview cameras that they are more than happy to throw into vehicles at the request of the marketing department.

As much as the law can’t create the perfect world that so many want to believe it can, this is one fix that the law can easily mandate, and it will save the lives of children.  And it’s as dead today as Greg Gulbransen’s beautiful 2-year-old son Cameron. 

At Crime and Consequences, Bill Otis tries to sneak in through the back door of the Webster, New York,  murder of two firefighters on Christmas Eve by raising the  two women who purchased guns for the shooter, a convicted felon who would be ineligible to buy guns for himself.  It’s a sneaky move, considering that he never mentions the impetus for his post until a link in the last line of his post.

Rather, the post begins:

Liberals and, especially, libertarians, have unending heartburn about imposing criminal punishment for non-violent, regulatory offenses.  One particular provision that gives them fits is the federal false statements statute, 18 USC 1001, which makes it a felony for a person to make a false or deceptive statement  to any department or agency of the United States in any matter within the agency’s jurisdiction.

At Real Lawyers Have Blogs, Kevin O’Keefe relates a story from former ABC News reporter, now Mashable editor, Andrea Smith about the Today Show :

It’s not OK to know nothing about social media or the Internet anymore. It’s especially not OK if you are an anchor for a major network TV news program.

This happened after a segment about Randi Zuckerberg’s private family photo being shared publicly. Today’s Willie Geist, Savannah Guthrie and Natalie Morales — three TV journalists at the top of their profession — laughed about their lack of knowledge about Facebook, Twitter and privacy on social media.

It was meant to be cute, but it came off as plain dumb.

As Kevin notes, the same is true for lawyers.  While Kevin may be a tech evangelist, I’m a tech curmudgeon, and yet there is absolutely no doubt that he, and Andrea Smith, are correct. Five years ago, “grown-ups” laughed about kids texting and their silly acronyms. or their incessant checking of their Facebook page as if those friends were real friends.  We were so much more mature, and they were so childish.

For many, lack of knowledge is a badge of honor, to be above fads and trends.  And indeed, there remains no human reason why writing “u r kewl, roflmao” should ever be part of the lawyers lexicon.  But ignorance of the tools of the trade, or a deeply entrenched element of modern society, isn’t cute, or funny, or a badge of honor.  It’s just ignorance.

The internet is here, and its pervasiveness in our society is both certain and growing.  I may not care for much of it, and find fault with many of its pieces, but by no means does that suggest I deny its existence, importance or relevance.

The problem is that for many who have chosen to ignore it over the past decade, trying to understand it now is extremely difficult.  It may be intuitive for digital natives, but it’s nearly incomprehensible to someone who shied away from touching a keyboard up to now.  The problem is that your one-time cute reluctance now marks you as not merely a Luddite, but a moron. Seriously, the kids think you’re brain dead.  More importantly, your clients do too. It’s just not funny.

There is a huge middle ground between the person who waits on line for the next iteration of the iPhone and the person who won’t use a phone without a coiled cord.  You don’t have to be cutting edge, but you do need to have a clue.  Not only for your professional existence, but as a matter of ethical responsibility, as clients are entitled to expect you to be sufficiently familiar with the tools of your profession to use them to the clients’ advantage.

At The Legal Whiteboard, Bill Henderson had a similar epiphany when it came to lawprofs, where he asked the question “How Do Law Professors Learn About the Intersection of Law and Technology?”

Here is my best guess:  We show up at the intersection and we listen to lawyers, judges, regulators and vendors talk about the issues of the day.

Earlier this month, there was a major conference in Washington, DC on developments in the world of electronic discovery…Lawyers and clients can no longer cope with the rapidly growing volume of electronically stored information (ESI).  Going forward, technology and nonlegal expertise are a permanent part of the legal industry.

Nearly 10 years ago I showed up at the Indiana Solo & Small Firm Conference.  I was there to gain some basic insight for a course I was putting together called “The Law Firm as a Business Organization.”  As the organizers will tell you, a law professor had never before ventured into their conference. What was their reaction?  A very kind, “It’s about time!”  I was immediately drafted onto the organizing committee and in subsequent years conducted two major surveys for the ISBA Solo & Small Firm Section.  To this day, the lawyers I met at that first Solo & Small Firm Conference remain an important part of my professional network.  Ironically, several years ago the small firm crowd was issuing a clarion call on the importance of law and technology — for them, it was all about survival.

Bill goes on to suggest that anyone interested in technology should consider attending LegalTech in New York.  Before you rip him a new one for suggesting a banal trade show as a learning opportunity, bear in mind that Bill is one of a handful of lawprof evangelists seeking to push the professoriate out of the Ivory Halls and into the real world in the hope of teaching law students what they really need to know to function as lawyers. And they need to know more than how to text and update their Facebook status.

For those who have studiously ignored technology for the past decade, in the misguided expectation that it would go away and we would be back to looking up precedent in ALR 3d, those days are gone. Sorry, but they are. Society has moved on. The law has moved on.  And if you haven’t paid attention, you are working at significant deficit and doing yourself and your clients great harm.

The problem is that lawyers, as much if not moreso than TV personalities, haven’t paid attention, and were proud of themselves for their refusal to follow the trend. Now, catching up is going to be terribly difficult. There are a zillion things to learn, and few of them will come easily.  But you have no choice.

The internet and the digital world is here to stay, and only going to become increasingly complex and entrenched in our profession and society.  You can pick and choose which tools you consider viable and necessary, but you have no choice to remain cute and “plain dumb.”  If you haven’t started yet, start now. It’s only going to get harder, and you will only find yourself farther and farther behind, until you finally realize your desperate need to catch up. 

Back in the good old crack days of the 1990s in upper Manhattan, murders were commonplace. There were lots of murders, whether dealers shooting over street corners or users whacking old ladies over the head for their next vial.  Not a day went by when there weren’t murders, and some days made Washington Heights look like the OK Corral.  

And in response, police geared up for war. It had to stop, we were told, And they were right. It was bad.

If everyone can take five from fighting over the elimination of guns and institutionalizing anyone who wears stripes with plaids, there’s a bit of news.  From the New York Times :

Murders in New York have dropped to their lowest level in over 40 years, city officials announced on Friday, even as overall crimes increased slightly because of a rise in thefts — a phenomenon based solely on robberies of iPhones and other Apple devices.

There were 414 recorded homicides so far in 2012, compared with 515 for the same period in 2011, city officials said. That is a striking decline from murder totals in the low-2,000s that were common in the early 1990s, and is also below the record low: 471, set in 2009.

Four hundred and fourteen murders in New York in 2012. And 14 of those didn’t happen in 2012, but were from earlier years but added in as they were now classified as murders. So the real number is 400. Not to suggest that any murder is inconsequential, but there was a war on murder, it’s been won. Even Mayor Bloomberg says so.

“The essence of civilization is that you can walk down the street without having to look over your shoulder,” Mayor Michael R. Bloomberg said.

A nice sentiment, but not entirely accurate.

He attributed the low murder rate to the department’s controversial practice of “stop, question and frisk,” in which people are stopped on the street and questioned by officers, and aggressive hot-spot policing, in which officers are deployed to areas with crime spikes.

So people still have to look over their shoulder, but not for fear of the murderer lurking behind them, but the cop.

When staring into a void, it’s easy to claim it’s because of whatever governmental initiatives are in place at the moment.  Stop and frisk, where about 700,000 people are stopped, because a police officer decided to do so, resulting in the seizure of a grand total 780 guns (do the math), was justified by the need to rid the streets of guns, and ridding the streets of guns was justified to stop the epidemic of killings. 

While basic logic reminds us that correlation does not prove causation, let’s allow Mayor Bloomberg and Police Commissioner Ray Kelly their moment in the sun. They did it. Hooray. The number of murders is the lowest since 1963, when the reliability of crime stats were improved. It may be longer.  We should build a statue of these guys, they did such a fabulous job.

But it’s done. They did it, and now it’s done.  Yet the “essence of civilization” remains elusive for New Yorkers, not because of the lack of crime but the extreme tactics of the police. 

Cries following recent events to rid our world of weapons are being heard far and wide, as justification for yet another war and eradication of rights.  It has to be done, proponents say, because it is unacceptable that bad things happen.  Alarms are going off across the nation, and Mayor Bloomberg is among the loudest voices demanding a gunless world. 

Yet there were only 400 murders in New York.

One argument in favor of maintaining the status quo is to point to this significant success and contend that by going back to the days when police weren’t armed for war and empowered to stop anyone, anytime on a whim, we risk a return to the days when 2000 or more murders a year were the norm.  It’s not a good argument for anyone remotely knowledgeable about the streets of the City, but to those inclined to adore fear, it might suffice.

Fortunately, the Mayor doesn’t have to rely on logical fallacies to maintain a standing army in Manhattan, larger and better armed than small nations, and given sweeping powers that would make marshall law seem pointless.  He has the outlier, the freak tragedy, that saddens our front page.  “See,” law enforcement sycophants scream.  “Do you want 20 first graders murdered in Newtown? Do you?” 

No. Of course not, but then I also don’t want 700,000 people, including the  occasional judge and city councilman, to forfeit their constitutional rights either.   I embrace the good mayor’s words, that the essence of civilization is to be able to walk down the street without looking over one’s shoulder.  Whether that refers to criminals or cops doesn’t matter.  

There were only 400 murders in New York this year, and yet we still can’t walk down the street without looking over our shoulder because of the police.  That is not the essence of civilization, but a tactic that was wrong before and wholly unjustified now.  It’s time to silence the alarm.

Among the many unwritten rules of the job is the courtesy one cop shows another. The perk was that cops could ignore the “minor” rules, driving faster than others, getting a cup of joe and a donut from an appreciative shopkeeper, parking where only disabled people are allowed, give way. After all, they protect us from criminals, and shouldn’t they be allowed a bit leeway? Don’t they deserve a break?

In 2011, Florida Trooper Donna “Jane” Watts broke the rules.  From the Sun-Sentinel :

Watts made national news in October 2011 when she pulled over off-duty Miami Police Officer Fausto Lopez for speeding in his marked patrol car on Florida’s Turnpike in Broward County.

She followed him for seven minutes and later wrote in a report that he was darting in and out of lanes at speeds exceeding 120 mph. She approached his cruiser with her gun drawn, yelling, and then handcuffed him.

Lopez, who regularly averaged more than 100 mph on his drive between Miami and his home in Coconut Creek, was fired in September.

When Watts pulled over Lopez, the incident was caught on the trooper’s dashboard camera. “This is not a first-time occurrence with y’all,” Watts told Lopez after pulling him over. “Y’all come from that way all the time, this Miami police car, and we never catch it.”

Lopez apologized and tried to explain he was running late. “With all due respect …,” he said, but Watts cut him off. “You don’t respect me, sir,” she said. “You don’t respect these people out here.”

Watts began opening her mailbox from the side instead of from the front in case there was something in it.

The suit states that Watts’ supervisors “do not believe that it would ever be safe for her to return to road patrol” and that Watts believes if she ever need police backup in an emergency, it would not be provided. More than a dozen troopers from her own agency also looked up her personal information.

The drones are coming to a neighborhood near you.

As the  New York Times editorial says, it’s no longer a matter of if, but when.

Congress has ordered the Federal Aviation Administration to quickly select six domestic sites to test the safety of drones, which can vary in size from remote-controlled planes as big as jetliners to camera-toting hoverers called Nano Hummingbirds that weigh 19 grams.

The drone go-ahead, signed in February by President Obama in the F.A.A. reauthorization law, envisions a $5 billion-plus industry of camera drones being used for all sorts of purposes from real estate advertising to crop dusting to environmental monitoring and police work.

There are many excellent uses for drones, ranging from search and rescue to providing a capability of an eye in the sky over large stretches of border.  But then, there are uses that are less savory, from law enforcement surveillance to killing.

As is invariably the case, the argument in favor of drones, at least domestically, elevates its good uses over the ones people would find unacceptable, with the government promising the latter won’t happen because it will make rules, maybe even pass laws, that forbid uses that we might find unpalatable at the dawn of the drone age.  Those inclined to believe will sigh in relief. 

One of my inspirational muses, Radley Balko has spent the last year writing a book on the militarization of American law enforcement, which will be available next summer. called Rise of the Warrior Cop.  Though I haven’t read it, I surmise based on Radley’s writings that a core message is that if we put the accoutrements of war in the hands of the police, they will use them.  We can explain the need for tanks and heavy armaments by pointing at the ability to thwart a terrorist takeover of Des Moines, but once they have custom fitted SWAT gear, it will be used at the slightest provocation. Or photo ops.

There will no doubt be times when a drone will appear to be the best choice to deal with a situation which, from the perspective of law enforcement to fulfill a mission unhampered by legal niceties and concern for collateral damage.  No commanding officer will say “let the victim die because there are regulations that say we are not allowed to use a drone for this purpose.”  And when the victim is saved, America will applaud.

And the next time, there will be no victim, but a man the cops believe is very bad, and the drone will protect police from any potential harm in getting this very bad man.  After its successful use, and the press conference where the chief tearfully announces that no police officer died in the apprehension of this very bad man, America will applaud.

And drones will become a part of our life, just as SWAT teams have become a part of our life.  Except they were once only called upon for the most extreme and dangerous of situations, and now they show up to break down door when someone is thought to be smoking pot inside. 

The New York Times anticipates the slippery slope, and offers its solution:

Responding to growing concern as the public discovers drones are on the horizon, the agency recently and quite sensibly added the issue of citizens’ privacy to its agenda. Setting regulations under the Fourth Amendment guarantee against unlawful search is of the utmost importance. But since the F.A.A.’s primary mission is safety, Congress should take the matter in hand by writing privacy safeguards for the booming drone industry.

Certainly agency regulation is inadequate to ensure that interests contrary to the convenience of the government are honored. Regulations change all the time. Regulations are ignored, giving rise to a commission and investigation that, years later, admonish the offending entity and direct it to never violate the regulations again. 

But is Congress a better answer?  After Senator Patrick Leahy  scuttled the warrant requirement for online communications when law enforcement whined that it would force them to work harder, the message is clear.  Congress can no more be trusted with assuring the preservation of our rights than the FAA. Or your local police. Our last line of defense would be the Supreme Court’s refusal to frame a drone exception, but that won’t bring comfort to many.

That drones can, and no doubt will, serve extremely useful, socially acceptable purposes is not in doubt. It’s that the government, once the technology is in place, won’t use it for improper purposes as well.  To ask the public to trust them, to believe that they would never use it improperly, is to ask too much. 

The government has demonstrated at every turn that it cannot control the impulse to use any tool available for purposes beyond the approved scope. And Americans, with short memories and emotionally charged willingness to overlook the government’s trespasses, will applaud.

The idea of watchful drones buzzing overhead like Orwellian gnats may seem far-fetched to some. But Congress, in its enthusiasm for a new industry, should guarantee the strongest protection of privacy under what promises to be a galaxy of new eyes in the sky.

It’s hardly far-fetched, as the technology is readily available. What is far-fetched is the New York Times’ naive hope that the government can restrain itself from abusing this technology as it did the last.  The only way to “guarantee the strongest protection of privacy” is to not give government the tools to violate it.  Once they have them, they will use them. 

Senator Patrick Leahy was the hero of the great unwashed, those of us who exist in a world where email and internet are a part of our everyday life, and the idea that we weren’t feeding it straight into the belly of law enforcement was our boldest dream.  And then he wasn’t.

At Overlawyered, Walter Olson sees the curiosity of the post Newtown massacre debate much as I do.  On twitter, he coins a great word, blamestorming :

Who to blame after a freak atrocity? For many of those who’ve felt obliged to comment, the question seems rather who not to blame.

After the Sandy Hook school shooting, as well as after other shootings, those of us who are skeptical about gun controls are often asked: So what are we suggesting should be done about the shootings? If we’re not suggesting gun controls (as opposed to proposals such as allowing teachers to be armed, increased concealed carry rights outside schools, providing school guards, and the like), the argument goes, we’re not taking gun tragedies seriously.

Now I generally don’t support the “don’t just stand there, do something” school of criminal law. When all the proposals seem likely not to work, or do more harm than good, implementing one of them for the sake of “doing something” strikes me as a mistake.

Nothing?  That’s it?  If there is no magic bullet (get it?) solution to such tragedies, we throw up out hands and walk away?

But let me offer a concrete analogy (recognizing that, as with all analogies, it’s analogous and not identical). Every day, about 30 to 35 people are killed in the U.S. in gun homicides or gun accidents (not counting gun suicides or self-inflicted accidental shootings). And every day, likely about 30 to 35 people are killed in homicides where the killer was under the influence of alcohol, or in alcohol-related drunk driving accidents…

So what are we going to do about it? When are we going to ban alcohol? When are we going to institute more common-sense alcohol control measures?

Well, we tried, and the conventional wisdom is that the cure was worse than the disease — which is why we went back to a system where alcohol is pretty freely available, despite the harm it causes.

So his solution to the murder of 20 children is to ban alcohol?  No, you dolt. Eugene is drawing an analogy to show the hypocrisy of our concern over the deaths of children and the failure of prohibition.  His solution, thus, is to not ban guns. See what he did there?

We should certainly consider proposals that aim to ameliorate the problem, and weigh their costs and benefits. But we should not presume that there’s somehow a moral imperative to Do Something. In fact, there’s a moral imperative not to do something that’s likely to make matters worse.

As one who regularly cautions against knee-jerk, simplistic responses to tragedy, I can well appreciate Eugene’s message.  But then, there is this nagging sense that the discussion has little to do with coming up with rational changes that might alleviate the potential for “freak atrocities” so that nobody messes with stuff we like to do. 

Though I’m not a gun guy, and have no interest whatsoever of packing heat as I stroll down the street, and have no desire to have others strolling down the street with their weapon strapped to their ankle just in case, the arguments proffered by those who disagree with me are not unreasonable or unsupported.  One of the most difficult point raised is that, given the Heller decision, the right to keep and bear arms is a fundamental, personal right. 

Whether I could have slept just as well at night had the Supreme Court come out the other way on Heller, I very much appreciate the fact that the right is established in law, and that I cannot rationally promote respect for only those constitutional amendments I like while advocating against those that didn’t match my personal tastes,  Hooray for the first, fourth, fifth and sixth, but screw the second?  If I took that position, I would be shooting blanks.  For those who adore the second but couldn’t care less about the others, the same it true.

Yet, none of this leads to anything remotely suggesting something worth doing. While I can understand and appreciate Eugene’s admonition not to make matters worse, I hesitate to believe that we’ve exhausted all rational thinking and have reached the point where we throw up our hands and walk away.  Sure, there are crazies making loud, stupid noises all over the place.  Plenty of gun guys are cringing at the mere mention of Wayne LaPierre, who has brought more embarrassment on gun ownership than Jim Brady.

But we’re no closer to a worthwhile discussion of things that can be done to improve safety without sacrificing rights or making things worse.  It’s not because there is no fix, no tweak, no limitation that can make things better, but that too many of the thoughtful people, like Eugene Volokh, are spending all their time and capital shifting blame away from their beloved sacred cows.

Unless and until we start to consider things that can be done, nothing will change. It’s possible that nothing should change, but we can only know that after all the screaming and blaming stops, and people start putting their efforts toward something more useful than marshalling the arguments to save their favorite things.