There is little question now that Eric Wilson, a sailor convicted as one of the Norfolk Four in the rape (and murder, though wilson was acquitted of the latter) of the wife of another sailor, should never have been convicted. DNA and another person’s confession made the point.  But he served his sentence, and was then conditionally pardoned by Virginia Governor Tim Kaine. who found sufficient doubt of guilt, though not absolute proof of innocence.

The upshot was Wilson was done with his sentence, but remained a convicted rapist.  And convicted rapists, of course, are sex offenders who must register.  Being innocent and all, this didn’t sit well with Wilson, and so he sought to have his conviction overturned by habeas corpus. The problem, obviously, was the establishment of jurisdiction for the habe, since his sentence was over.

The solution was his sex offender registration. Or at least it seemed to be, until the Fourth Circuit in a divided opinion smacked him down.

The district court dismissed Wilson’s petition for lack of jurisdiction, holding that because Wilson had fully served the sentence for his rape conviction, he was no longer “in custody,” as required by § 2254(a).

We affirm.  While it appears that Wilson has mounted a serious constitutional challenge to his conviction, in which he vigorously asserts his innocence, we conclude that the sex offender registration requirements of Virginia and Texas are collateral consequences of his conviction that are independently imposed on him because of his status as a convicted sex offender and not as part of his sentence.  We also note that the sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson’s liberty so as to justify a finding that he is in the custody of state officials.

The notion of custody for habeas corpus purposes is defined as a substantial restraint on a person’s liberty, which would seem a fair definition.  

To satisfy § 2254’s jurisdictional requirement that he be “in custody” at the time he filed his petition, see 28 U.S.C. § 2254(a) (granting jurisdiction to the district courts to entertain “an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” (emphasis added)), Wilson alleged that the sex offender registration requirements of Virginia and Texas law impose sufficiently substantial restraints on his liberty so as to amount to custody.

Parole? Custody.  Supervised release? Custody. After all, they can tell you what to do, where to go and make you pee in a cup. They can require you to go to rehab or job training, and inspect your home at will.  That’s a pretty substantial restraint on liberty, right?

But not being required to comply with the requirements of sex offender registration laws.  Sure, they can require you to notify the police when you move into a jurisdiction, and can forbid you from living in most parts of town. They can require you to stay away from places where other person’s walk freely, and go nowhere near children. They can limit your use of the internet or force you to include on your Facebook status that you’re a sex offender.

And this is not a restraint on liberty.

The reason is summed up in two words: Collateral consequences.  The legal fiction that laws that may have been passed long after sentence was imposed and completed, laws that dictate the performance of some of the most fundamental aspects of one’s life, laws that control how one exists in society for potentially the rest of one’s life, are not part of the punishment for the conviction of a crime. Instead, by characterizing them as “civil” rather than criminal, they are magically not punishment but collateral consequences.

In dissent, Judge James Wynn is clearly disturbed by the fact that the decision slams shut the court doors to an innocent man.  After running through the caselaw, without reliance on the facile distinction provided by the legal fiction of collateral consequences, he concludes:

I question the majority opinion’s decision to follow the Ninth Circuit’s decade-old summary decision in Henry. Uncontestably, the in-person reporting requirements applicable to Wilson in Virginia and Texas “significantly restrain [Wilson’s] liberty to do those things which in this country free [people] are entitled to do,” and, consequently, the majority opinion should squarely address the question of whether, in the Fourth Circuit, “[s]uch restraints are enough to invoke the help of the Great Writ.”

Judge Wynn argues to break away from the fiction, at least within the Fourth Circuit where the court is under no constraint by holding from other circuits.  Judge Wynn looks to what the sex registration laws demand rather than the denomination of civil, and concludes the obvious, that they are a huge restraint on the liberty “to do things which in this country free [people] are entitled to do.”  And once stripped of the fiction, that’s the hard question.

Even so, Judge Wynn’s concern isn’t about the legal fiction of sex offender registration laws, but about how they foreclose redress by Wilson due to this substantial claim of innocence:

Our hands are not tied here; no precedent forecloses the relief sought in this case. Rather than blindly adhering to formalist procedural concerns, we should instead be guided by the equitable principles that traditionally govern the law of habeas corpus, Munaf v. Geren, 553 U.S. 674, 676 (2008), and by the Supreme Court’s mandate to construe the “custody” requirement liberally, particularly in cases involving deprivations on liberty, credible claims of actual innocence, and an absence of forum for redress.

The problem left on the table is that it’s not just about Eric Wilson, or about defendants with substantial proof of actual innocence.  Rather, it’s about a concept that was fundamentally flawed from the outset, where in society’s fit of fear and outrage, they created a horrendous an ex post facto system of punishment, called it a civil regulation, and the courts shut their eyes to all reason and stamped it approved.

Whether they understood its ramifications at the time, or its expansion to such heinous crimes as public urination, or the piling on of additional restrictions that would ultimately leave registered sex offenders with neither a place to live or a chance to be law-abiding productive citizens, is unclear.  Yet that’s been the end result of this fiasco.

It’s cases like Eric Wilson’s, because of the sympathy generated by an innocent man wrongfully convicted, that have the potential to change minds, to bring the slightest chance of reason to a fiction gone insane.  And if the court can’t find it worth its while to come clean on behalf of a guy like Wilson, then there is little hope the insanity will ever come to an end.

H/T Doug Berman

It’s not that the idea was a bad one at its inception. After all, learning doesn’t end in law school, and the problem of lawyers failing to take the time or make the effort to stay atop changes in the law was very real.  It’s not that we didn’t have the books, but who had time to read them?

Yet CLE hasn’t panned out as well as expected.  For one thing, teaching is hard work. It requires preparation, research, more preparation and the ability to teach.  While most lawyers far prefer to be the teacher than the student, few are willing to put in the effort.  It’s so much easier to step up front and tell war stories or speechify your off-the-cuff thoughts on a subject about which you know nothing.  Plus, you get double credit to teach, no matter how awful you do.

In order to provide CLEs, you have to be a CLE provider, and bar associations signed up lickety-split. But bar associations are captives of their “officials,” those lawyers who lost the election for secretary of their sophomore class in high school and desperately need to make up for it by seeking positions that suck time and money from their practice while returning all the glory a plaque can bring.  And since they now hold the power, they’re the folks teaching CLEs. Because signing up for bar positions makes you a lawyer with something meaningful to share.

In the beginning, lawyers were a bit choosy as to which CLEs they attended. They hoped to get something out of it, and expected to actually learn something of value for their sawbuck (or two).  After a while, the content deteriorated. You can’t keep giving the same CLE, so fresh meat was needed. Not only to attract new paying attendees, but to pass muster with the bar honchos who had to approve CLE content.

The alternative are the paid providers, those CLE outfits that charge for the pleasure of satisfying the bar’s demand that you stay on top of your game.  They certainly had better reason to develop interesting and strong CLEs, as this was the business model and source of income. Throw lousy CLEs and you’re out of business.  Throw stupid CLEs and the content isn’t approved. 

Well, that was the idea, anyway.

Now this :

Topics include:

• Introduction to the iPad


• Tour of the iPad


• Getting Documents onto the iPad


• A “Day in the Life” of an iPad-Savvy Attorney


• The 10 “Must-Have” iPad Apps for Legal Professionals


• Recommended Settings for the iPad


• Printing from the iPad

The afternoon is where they get all advanced:

Topics include:

• Legal Research on the iPad


• Getting the Most Out of E-mail on the iPad


• Delivering a Presentation from the iPad


• Using the iPad in the Courtroom


• Taking Notes on the iPad


• 60 iPad Apps, Tips & Tricks in 60 Minutes

In other news, food.com posted the recipe for ice cubes, though  the reviews suggest that the recipe could use some improvement.   No slackers they, the PBI not only produces cutting edge CLEs, but has out-of-state faculty for it’s iPad show, making it well worth the 6 CLE credits bestowed upon lawyers for full day attendance:

Featured Speakers:

Brett Burney, Esquire, Burney Consultants, LLC, Cleveland, OH
Paul J. Unger, Esquire, Affinity Consulting Group, LLC, Columbus, OH

And if you were wondering, yes, the PBI offers discounts for judges to attend this CLE. 

There comes a time when we need to step back, take a look at how a good, if somewhat aspirational, idea has panned out, and admit it’s a failure.  Continuing legal education is an expense of time and money, and can be satisfied by playing with an iPad. It has failed.

This isn’t a commentary on shiny toys so beloved by tech early adopters. They already know how to use an iPad, anyway.  If it makes your life as a lawyer more convenient, that’s fabulous.  But this is so far afield from what CLE was meant to accomplish as to render it a farce, and yet lawyers are constrained by the rules to waste time and money to get their credits on such weighty topics.

The time has come to recognize that CLE has gone off the rails and either put it to a merciful death or go back to the drawing board.  There’s probably an app for that.

H/T  Max Kennerly
 

Despite the dictates of sound judgment, the ABA Journal has once again sent out a  call for nominations for its annual beauty pageant.  If you take it as good clean fun, and nothing more, it’s relatively harmless.  Sadly, there is no shortage of blawgers with personal issues for whom it matters enormously, revealing their childhood traumas of being the last picked in gym.

In the past, I’ve been deeply critical of the beauty pageant for what it does to people, debasing themselves for votes and creating hard feelings for those who feel they’ve been wronged by being left out.  Good clean fun is fine as long as no one suffers needlessly. 

The problem isn’t one of competition, which is generally healthy, but that the choices made in the boiler room of the ABA Journal are generally arbitrary, often bizarre, and largely a product of what interests a few non-lawyers.  Some of the choices over the years have been, well, inexplicable, as have been blawgs ignored.

The number of viable law blogs at any given moment is hard to fix, but appears to number in the thousands if one uses a generous definition of “viable.”  Many are focused on tech for lawyers, and only chime in when a shiny new toy is announced.  Then there are the lawyer marketing blogs, which repeat the ten rules for whatever every month or so.  And many blawgers have fallen into the hole of curation, doing little more than noting posts or articles of interest and cut and pasting some or all of the content, adding no ideas of their own.

There are a fairly large number of blogs that exist for the purpose of marketing and self-promotion, writing about cases or news items in a practice area that they think will be found by potential clients and be sufficiently interesting to get those potential clients to call.  They tend to be simplistic in their content and fairly obvious in their purpose.

Finally, there are many blogs that are best described as peripherally related to law, in that they are primarily political in nature and promote an ideology that occasionally involves law as a transmission vehicle, without regard to accuracy.  These tend to capture the interest of the tin foil hat crowd.

By my personal highly scientific calculation, there aren’t 100 blogs, written by lawyer about law, that are worth reading.  There are a couple of new blogs that have either been created or come onto the radar in the past year, but there are far more than have faded into oblivion as blawgers got bored, burned out or learned that they weren’t going to get rich and famous on the internet.

The number 100 is a nice, round number. For the sake of a beauty pageant, it’s a good number to use. But I doubt they can come up with enough decent blawgs to make 50, no less 100.

One answer is to bring the pageant to its natural conclusion, that the blawgosphere no longer warrants a pageant.  Another is to cut the number down to something more realistic.  Somehow, I doubt either will occur.  After all, the Blawg 100 sounds much cooler than the Blawg 37.  But it also renders what little point there might possibly be in throwing a beauty pageant moot.  If there aren’t 100 blawgs worth reading, then there is no point throwing a beauty pageant for 100. 

Back in 2007, Dave Hoffman questioned whether the blogosphere was stagnant.  I responded that it wasn’t, but that the first wave of blawgers, what I called the Old Guard, kept their circle tight and refused to look beyond it.  My criticism was unappreciated at the time, but I was right.

In 2009, I wrote of Blawgospheric Darwinism, when lawyers began to believe the nonsensical hype that blawgs were the new way to market and everybody and their brother started a blawg.  I argued that they would collapse under their own weight, as the blawgosphere couldn’t sustain thousands of blawgs of little consequence.  There just wasn’t enough readers, and most weren’t worth reading. They would pop up out of nowhere and, just as quickly, disappear, leaving their dead carcasses floating around the blawgosphere.  And I was right.

By 2011, I wrote of the Third Wave of Blawging, which I described as isolation. There may well be wonderful new blawgs around, but no one knows about them because they don’t link to anyone else, they don’t engage with other blawgs and they add nothing to the synergy of the blawgosphere.  It’s not that they don’t want to be noticed, but they think it’s a one way street. 

I nominated the  Philly Law Blog for the beauty pageant, my way of supporting Jordan and Leo for their efforts.  It’s a great blawg, and I do what I can to promote new blawgs.  I tried to nominate  Appellate Squawk as well, but the website rejected me, perhaps because it’s only one per customer, and I had already made a nomination.  I didn’t nominate these blawgs because I believe the ABA Blawg 100 matters, but because there aren’t many ways to show appreciation for new blawgs, aside from putting them on my blawg roll and linking to them in a post.

But I can’t see how the ABA Journal machers are going to find 100 worthwhile blawgs.  There will be no difficulty filling in the blank spaces, but not with quality stuff.  There will be no shortage of nominations by blawgers’ secretaries, third-cousins, marketers or social media gurus, but it won’t make a mutt of a blawg look beautiful.

Having something of a vested interest in the continued vitality of the blawgosphere, I want to be wrong this time.  Nothing would please me more than to have hundreds of great blawgs vying for the attention of the ABA Journal folks, making their job so painfully hard that only the crème de la crème make the cut.  But I don’t see it happening. I don’t think it can be done.  I don’t think they exist.

Prove me wrong.

A debt of gratitude is owed  Jeff Gamso for reading the New York Law Journal when no one else bothers.  Jeff came across a story by Joel Stashenko  announcing a new rule for prosecutor who “discover” they have convicted an innocent person. 

Half jokingly, Jeff notes the old rule: Bury the evidence.  Of course, that’s not quite true. They merely ignore its existence if at all possible and fight any effort at its disclosure, all in the name of finality.  The new rule, however, changes everything:

The rules were added to the Rules of Professional Conduct by the presiding justices of the four Appellate Division departments in July. They stipulate that when a prosecutor knows of “clear and convincing evidence” that a defendant did not commit the crime for which he was convicted, “the prosecutor shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.”

Prosecutors must act within a “reasonable time” to notify the court and the defense that they have come into the possession of significant new evidence. Those materials are to be turned over to the defense unless doing so would interfere with an ongoing investigation or endanger the safety of a witness or another person involved in the case, according to the rules.

Not enough wiggle room for you in Stashenko’s write-up?  Try  the actual rule instead:

When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time:

(1) disclose that evidence to an appropriate court or prosecutor’s office; or

(2) if the conviction was obtained by that prosecutor’s office,

(A) notify the appropriate court and the defendant that the prosecutor’s office possesses such evidence unless a court authorizes delay for good cause shown;

( disclose that evidence to the defendant unless the disclosure would interfere with an ongoing investigation or endanger the safety of a witness or other person, and a court authorizes delay for good cause shown; and

(C) undertake or make reasonable efforts to cause to be undertaken such further inquiry or investigation as may be necessary to provide a reasonable belief that the conviction should or should not be set aside.

(d) When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted, in a prosecution by the prosecutor’s office, of an offense that the defendant did not commit, the prosecutor shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.

(e) A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (c) and (d), though subsequently determined to have been erroneous, does not constitute a violation of this rule.

Naturally, the District Attorneys Association is lauding themselves for this great step forward.

District Attorney William Fitzpatrick of Onondaga County, who worked on the new rules on behalf of the District Attorneys Association of the State of New York, said the rules are due to the “tremendous attention given to wrongful convictions” over the past several years.

Fitzpatrick’s statement appears unintentionally revealing, in that this rule change is a public relations effort “due to the ‘tremendous attention given to wrongful convictions’ over the past several years,” so prosecutors can point to the rule and claim procedures are in place.  And indeed they are, though the rule is so filled with holes, caveats, provisos and wiggle words as to render them utterly worthless.  But then, public relations is all about perception, not reality.

As revealed by the text of the rule, as opposed to Stashenko’s somewhat generous description, they neither assure that an innocent person be released, nor that a prosecutor who sits on evidence of innocence be sanctioned.  Only the most pathologically stupid district attorney would find himself in trouble for concealing proof of innocence, given the myriad opportunities to rationalize their deep-sixing the evidence. 

For those non-New York lawyers, this rule was adopted by the four Appellate Divisions of the Supreme Court of the State of New York, the body responsible for making and upholding the New York Rules of Professional Conduct, and for dealing with violations of those rules.  In other words, they run attorney (including prosecutorial) discipline in New York.  And this is what was given their blessing.

What is fundamentally astounding is that this rule approves of the continued incarceration of an innocent person in furtherance of law enforcement.  Even by pretending that the meaningless rhetoric, “consistent with justice, applicable law, and the circumstances of the case,” isn’t meaningless rhetoric, this is about a person who is not guilty of committing a crime.  By what authority does a court approve a rule that keeps an innocent person imprisoned both for the the convenience of, and as the discretion of, the prosecution?

As the  recent battles over whether prosecutors have to adopt all of Brady or only those pieces they prefer continues, this post-conviction analog is a smack in the face.  Note that this only applies to evidence discovered after a conviction, since prosecutors would never withhold evidence favorable to the defendant beforehand, which of course is what seems to always be the crux of the problem of wrongful convictions.

But now that a rule is in place to “fix” the problem, both the District Attorneys and the justices of the Appellate Divisions can stand tall and proud, knowing that they have faced up to their awesome responsibilities and addressed them.  And so they can wipe their hands as they walk away from the grave.

Adam Mueller, co-founder of CopBlock.org, was found  guilty of three counts of wiretapping in New Hampshire.  Based on the law, there is little question that he was, in fact, guilty, and the jury took a mere 30 minutest to return the verdict.

Still, it’s wrong.  

Carlos Miller provides a succinct summary of how and why Mueller, who writes under the name Ademo Freeman,

The case stems from an incident at a New Hampshire high school where a student video recorded a police officer beating up another student.

School officials ordered the student to delete the footage and he acted as if he did, but kept the clip showing the beating and gave it Cop Block, who turned it into a national story.

Mueller than recorded a video of himself calling the Manchester Police Department and the West High School in the same city, seeking comment about the incident from officials.

He didn’t inform them that he was recording, but he did identify himself from Cop Block and it was clear that he was seeking official comment because he didn’t beat around the bush with informalities.

The cop hung up the phone on him in a matter of seconds and it is believed police record all incoming calls into the station.

And the school official answered a few questions in a manner that it was clear she was speaking on the record before hanging up the phone.

New Hampshire is a two-party consent state, except for police. Carlos’ rationale notwithstanding, Ademo did not inform the other person on the phone that he was recording. Whether it was clear that the call sought “official” comment or not, it’s against the law. And so he was convicted.

Yet, the feeling of constitutional dissatisfaction with such a simplistic analysis is overwhelming.  Ademo, it should be noted, represented himself.  Had he prevailed with his argument, it would have been glorious, a David against Goliath fight where every libertarian’s dream was fulfilled.  But he didn’t win.

The argument that needs making is whether the New Hampshire law passes muster under the First Amendment freedom of the press when the recording is made of a public official relating to the performance of his duty. 

Mueller, who is representing himself, plans to use the Glik vs Boston landmark decision as one of his arguments, even though that stemmed from a case in which a man was openly video recording cops in a public park.

But if you read through the decision, you can see where it can apply in his case.

Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). 

Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'” First Nat’l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties.

It was obvious from Mueller’s questions that he was seeking information to disseminate to the public.

Collecting honest and accurate information from public officials in the performance of their duty, where concerns of impropriety are the subject of serious investigation, is a core virtue of a free press. To require the investigator to alert his target that he’s recording the communication is to neuter the efficacy of the First Amendment.  Would undercover agents alert their targets that they’re trying to make a drug bust?

Persuading a court that a state law is unconstitutional as applied is not an easy task. This argument has many moving parts, even though it may seem obvious to those inclined to understand why a prohibition on recording government employees in the performance of their duty, regardless of anything else. Much as it may draw the ire of those who believe that any citizen should have the ability to prevail in court, it’s not a game for amateurs.  It’s an extremely difficult thing to accomplish.

Yet, this is a case where the law is unconstitutional as applied.  The First Amendment is fundamentally offended by a law that impairs the ability of the press to record public officials in the performance of their duty, and the rationale behind such a law, the protection of privacy, does not bear up to strict scrutiny.  The law falls woefully short under the circumstances of this case.

Ademo was sentenced to 12 months in jail, nine months suspended, which means he will spend two months (with good time) in jail and five years on probation, according to Cop Block co-founder Pete Eyre.  Less than a lifetime but incarceration nonetheless.

Notably, Ademo was allowed to argue jury nullification, to argue to the jury to reject the law as written and acquit him nonetheless.  Many want to believe that the conscience of good people is all that’s needed to save us from bad law, as if nullification is the magic bullet that will save us from an overreaching government.

Ademo’s closing took only a few minutes but it was strong and straight-forward. He acknowledged that he hadn’t informed those that he called that he was recording but he hammered-home the fact that they were public officials, that they knew he was affiliated with CopBlock.org and was seeking comment, and advocated for jury nullification.

It didn’t save Ademo. 

For quite a while, Radley Balko has been drawing a line between the militarization of police and the scope and depth of damage done in the name of order.  He’s done so in words, and done so in images.  As the cops dress up like toy soldiers, and driving around in vehicles meant to withstand the enemy’s assault, it conjures up the notion of an occupied nation. But we know otherwise. This is America, home of the free.

Of course, there is no shortage of people on the internet who see a conspiracy under every rock of the one percent, the power elite, the oligarchy, talking softly about how much they love us while arming their minions to keep us in our place.  But these are the crazies, the people wearing digital tin foil hats who fear imaginary conspiracies and cry for revolution at every opportunity.  No one pays them any heed.

But what if they weren’t as crazy as we think?

Via Jonathan Turley, it appears that somebody is actually making plans.  Just in case, but plans nonetheless.

Most recently, the Marines moved to create a battalion to allow the military to “be capable of helping control civil disturbances, handling detainees, carrying out forensic work, and using biometrics to identify suspects.” Now the Small Wars Journal, a respected publication closely followed in the U.S. military, has published an article entitled “Full Spectrum Operations in the Homeland: A ‘Vision’ of the Future” by retired Army Col. Kevin Benson of the Army’s University of Foreign Military and Cultural Studies at Fort Leavenworth, Kan., and Jennifer Weber, a Civil War expert at the University of Kansas. It lays out not just the military but the legal basis for military operations to crush domestic insurrections in the United States.

It likely surprises no one that the military has contingent plans for plenty of things that will never happen.  After all, better safe than sorry, and if called upon by the Commander in Chief to move out, the guys with stars on their collars would look awfully silly if they were caught empty handed.

But the kicker, as Turley notes, is that it appears that the deeper, more nefarious element of the plan, it’s legal rationale, has already been worked out.  Never again will John Yoo have to scramble to justify torture.

The authors write “once it is put into play, Americans will expect the military to execute without pause and as professionally as if it were acting overseas.” The article takes on a chilling tone, telling its many military personnel readers that “the Army cannot disappoint the American people, especially in such a moment.”

The authors spend comparatively little time considering the constitutional and legal barriers to the operations. They details how “Federal forces continue to tighten the noose as troops seize and secure power and water stations, radio and TV stations, and hospitals.” Yet, legal limitations are treated as largely irrelevant.

Not quite a thoughtful justification, but the fact that they’ve considered, and dismissed, the question of lawfulness of a military seizure of the United States is chilling indeed.  Imagine, if you will, the post-seizure trial of those soldiers who gunned down one hundred American citizens in Darlington explaining, but we were just following orders, and the government told us it was perfectly lawful, and our duty, to seize control and quell the insurrection.

The very existence of such a plan, no less its disclosure, will feed the wildest imaginings of conspiracy theorists.  It will also turn those on the edge into believers.  It will sell guns and large ammo magazines.  It will compel people to restock their shelters with food and water for the seige.

And this plan is rationalized as not disappointing the American people, who just happen to be the nice folks the military is rounding up at the point of a gun for not being sufficiently compliant.  And this is a good enough legal justification for the plan?

America is exceptional in the sense that we have a bloodless coup every four years or so, in that the most powerful man in the world hands over the keys to the White House to his mortal enemy because a sufficiently large group of electors tell him to do so.  Thus far, no one has refused.  Many of us have been less than thrilled with the new guy. Or the old guy. Or the choices. But we sleep at night because we trust that the system, for all its flaws, works better than the alternative.

Knowing that the plans are in place just in case the American public wakes up one day and decides that they aren’t as thrilled with the way things are going as those in power want us to be changes the equation.  If Congress doesn’t know about this, they need to. If Congress does, then they need to come clean and explain to the American public why they think we are the enemy. Either way, the mere existence of a plan, and a legal justification, raises the stakes.  Maybe we shouldn’t sleep nearly as well at night as we do.

An inexplicable wave came over white women of child bearing age from 1980 to 1990 that compelled them to name their male offspring “Josh.”  Today, walk into a meeting of the Young Lawyer Section of the ABA and yell out, “Hi, Josh,” and you’ve got 90% of the place covered.  It’s weird, but Mrs. Blackman succumbed like her contemporaries.

When Joe Palazzolo, the guy who took over the Wall Street Journal Law Blog after  Peter Lattman went legit,  Dan Slater got dumped and Ashby Jones got bored, and now mails it in, wrote about Paul Ryan on the Rule of Law, it was a provocative enough title to take a look. While I learned nothing whatsoever about Ryan, I did get a surprise.

H/T to Josh Blackman, a professor at South Texas College of Law, who  highlighted the speech on his blog.

As Professor Blackman notes, Mr. Ryan casts the ever-present tension between liberty and security in economic terms.

The vice presidential debate — remember: Joe Biden taught constitutional law  – could be very interesting, as Professor Blackman points out.

Professor? Not only does Palazzolo mention Josh Blackman three times, but each time made sure to note he was a “professor.”  How is this possible, I wondered?  Josh Blackman was a smart, extremely wet behind the ears law grad about 30 second ago, and now he’s a professor?  Not that I’ve ever heard of South Texas College of Law before, but apparently it exists and Josh is a professor at it. Huh?

Some kids coming out of law school know, just know, that they want to be scholars. Nothing wrong with that, and Josh Blackman was definitely one.  To that end, he wrote thoughtful posts at his blog, and for while was allowed to guest post at Concurring Opinions,  Both reflected two disturbing, if not surprising, problems. 

First, a peculiar self-absorbtion, like a five year old on the high diving board yelling at the grown-ups to look at him.  Second, a desire to opine on matters far, far beyond his ken, such as the future of legal education and the practice of law.  In noting this, I  subtly hinted that Josh might want to change his trajectory a bit:

Yet, one of our own has boldly leaped where no man has gone before.  Following on a  curious post by Josh Blackman, who is in the process of transitioning from law student to legal scholar by hurdling over the chance to practice law, if only for a moment.

Aside: One of the most intriguing things about most of those who aspire to telling lawyers what their future will be is that they don’t actually practice law, and some have never practiced law.  It’s like being a food critic when no savory crumb has ever passed their lips, and they’ve only gazed upon cuisine from afar, reminiscent of a Star Trek episode they’ve likely never watched where the food looked magnificent but had no flavor whatsoever.  And yet, they feel no shame in telling those who do about the view from those who don’t. Go figure.

Sadly, I was ignored. As soon as his clerkship was over, Josh signed up for pedagogy, rather than spend a few minutes of his life actually being a lawyer. You know, just for the experience of it.  Try a case. Negotiate a deal. Hold a real person’s hand whose life or fortune depends on you. Learn for yourself what it is you hope to teach someone else. Something. Anything.

But no. Instead, Josh made a bee line to South Texas College of Law, the Harvard of Houston, award-winning for best work/life balance and cafeteria barbecue, where young minds will be placed in his hands.

And with his new post comes the return of his blog, aptly named Josh Blackman’s Blog, where he has gotten right down to business with a critical and thoughtful plea :

Wanna help me get back into the ABA Journal Blawg 100?

During my hiatus, I was unceremoniously bumped out of the august crowd of the ABA Journal Blawg 100 after my entrance into this Parthenon of Electrons in 2010

Now, I’m back. If you would like to help, please nominate me here. It only takes a moment.

Welcome back, Josh.  It’s too bad you didn’t take my suggestion to heart. And if begging for the attention of others (it only takes a minute?) matters this much to you, I hope someone nominates you.  But it still won’t prepare you to teach law school, or to opine about matters you’ve only seen from afar.

The shooting in Darius Kennedy, a man with a knife, may have happened in the most public place on earth, Times Square. It comes as no surprise, therefore, that tourists from everywhere pulled out their cellphones are recorded the incident.  One tourist, however, had the misfortune of being noticed by the police.

Julian Miller, 22, who was visiting New York from Boston, said the police confiscated his phone after he recorded video of the confrontation. He said in an interview that he followed the pursuit from Times Square to 37th Street and Seventh Avenue, his phone recording as he ran to keep up. He said a police detective pulled him aside after the shooting and asked to see his phone and the video.

Assuming that Miller, like most people these days, has a cellphone that is both expensive and utilitarian, in the sense that he kinda likes to have it so he can use it at his leisures, the question is raised whether the police have the authority to seize it. 

A secondary question relates to the contents of his cellphone, in that it is likely to contain other, personal information and images that are private and which he prefers that no one, particularly the police, can see.  While one might surmise that they will only be interested in the video of the shooting, there is nothing to prevent the cops from inspecting all the contents of his phone, whether in searching for the video or just for fun.  Should there be images that are either inculpatory, or perhaps just personal, what authority do they have to inspect it?

Before going further, it’s critical to bear in mind (for the non-lawyers) that police have no rights.  Rather, they possess authority pursuant to the police power, the general authority to make and enforce laws that regulate behavior for the public health, safety and welfare.

Historically, the police possessed the authority to seize evidence that was either contraband in itself or relevant and material to prove that a crime occurred and the identity of the perpetrator of the crime.  This authority related to seizure from the person being arrested for the crime, and there was little question in the law about the authority to do so. However, seizing a cellphone from a wholly unrelated third part, in this case a tourist from Boston, raises an entirely different question. 

Just as cellphone videos have become ubiquitous, so too has seizing the cellphones of unrelated third parties.  While it may be understandable why the police want the video, and there is little question that the video (or still images) may be relevant to the underlying incident (and is substantively evidentiary), it remains the property of a person who has concededly committed no crime and is otherwise uninvolved in the underlying incident.  By what authority can police confiscate the personal property of a law-abiding citizen?

Quick research has revealed nothing dealing directly with the issue of cellphone videos.  The only effort at meaningful commentary comes from (you guess it) Carlos Miller at Photography is Not a Crime,

Two attorneys I interviewed in 2009 in the wake of the Oscar Grant incident said that police can only seize your camera if it was used in the commission of a crime, such as child pornography or upskirting.

And more recently, Mickey H. Osterreicher, attorney for the National Press Photographers Association reiterated those statements in a letter to Miami Beach Police Chief Carlos Noriega (bold emphasis mine):

Your officers should be well aware that they may only seize the property of another pursuant to a lawful arrest or by court order. Their alleged actions with regard to the seizure of a WPLG camera from a working photojournalist cannot be tolerated. Video showing another officer pointing his weapon at an unarmed citizen, who was then allegedly pulled from his car, placed face down on the pavement, handcuffed and threatened at gunpoint is an affront to the public. For officers to do so and then smash his cell phone in hopes of destroying any recordings should make them liable for both criminal and departmental prosecution.  

However, another attorney I interviewed said officers do have the right to confiscate your camera to preserve evidence.

This can only be done in extreme cases such as homicides, rapes or kidnappings, said Michael Pancier, who not only is a nature photographer, but is representing me in my case against 50 State.

Pancier, who Carlos notes is a strong advocate for photographers’ rights, goes on to argue that

The alternative (to confiscating camera) is that they detain you until such time as a subpoena is obtained which could be days.

Evidence has to be preserved.  If you photographed a murder scene; that’s evidence;  they can’t just let you go and hope that you don’t delete it or alter it.   If the evidence is not immediately preserved, it may be challenged and may be inadmissible. Likewise, if the evidence is destroyed or lost because it was not preserved; then a whole case whether for the state or the defense may go down the tubes. 

Carlos then asked the money question:

I asked Pancier what is more important, preserving the evidence or preserving the Fourth Amendment and he said preserving the evidence is preserving the Fifth Amendment that entitles a suspect to due process in the legal system.

“When you have a serious crime where somebody can do 25 years to life, then it’s important to gather all the evidence,” he said.

Because that video clip might turn out to be exculpatory evidence, meaning it could prove the defendant’s innocence.

While Pancier’s rationale is certainly logical, it seem to utterly miss the critical issue: By what authority do the police seize the property of an unrelated third party?  As a corollary, by what authority do the police seize the person of an unrelated third party, as suggested by Pancier as the alternative, who has committed no crime?

Clearly, his argument that the images may just as well be exculpatory as not, and that exculpatory evidence is something the defense certainly wants to preserve, is true. But good intentions are not a substitute for lawful authority. The Constitution does not permit the police to simply seize property at will from people who have committed no crime because it’s in their interest to do so. Indeed, it prohibits the government from taking property without authority and just compensation. 

The police can use court process to obtain evidence and testimony, whether by a subpoena or, where there are reasons to believe a witness will not comply, a material witness warrant.  That it doesn’t prevent a witness from destroying the evidence in the interim (whether innocently or intentionally) is certainly true, and clearly a problem for whoever desires the evidence.

But the alternative, that police are empowered to seize at will the personal property of innocent people, unrelated to the commission of any offense, is fundamentally intolerable. No matter how much the police (or the defense) might have wished the videos be preserved, there is no authority for the police to seize property from people who have committed no crime.

While Radley Balko is busy studying up for his CPA exam (or something like that), he’s got some friends providing guests posts at the Agitator.  One guest is Lenore Skenazy from Free Range Kids, fighting to keep our children from being put in a hermetically sealed bubble so they never skin their knee and, instead, have a life.

Lenore picked up on a story in the  New York Post about unicycling high school student, 18-year-old Isaih Rosemond.

The laundry list of shocking major allegations is long: 

• An approach following a rolling stop with gun drawn


• Strip search for an alleged rolling stop


• Strip search on the side of a public road


• Strip search in front of her children


• Second strip search


• Forcible removal of a tampon

• Michael Sechrest wants to earn a legal fee


• This is not going to be a quick settlement for nuisance value


• Given the outrageous nature of the allegations, Sechrest certainly conducted a significant investigation before putting his name on the complaint and is confident that his client’s story is both accurate and provable


• The Sheriff hasn’t produced a dash cam video of the stop to disprove the allegations

• The Citrus County Sheriff’s Department vehemently denies it


• No witnesses have come forward to say to say they were on that busy street and saw a woman being strip searched


• There is no video to prove it happened

“The Citrus County Sheriff’s Office wants to go on record as saying the allegations made in this lawsuit are not only ludicrous, but completely untrue.  Yes, a traffic stop was conducted on July 17, 2011.  The plaintiff was issued a criminal citation for violation of restrictions on her driver’s license.  She also was issued a written warning for rolling through a stop sign.

No strip search was conducted, and the plaintiff’s tampon was never forcibly removed by any deputy.

It is the Sheriff’s Office intent to aggressively defend itself against these malicious allegations.

As required by the police handbook and the ABC Affiliate “never piss off the cops” policy manual, the obligatory irrelevant smear of the claimant was thrown in at the end.

Tarantino has been arrested multiple times in the past for drug possession, driving under the influence and domestic battery.

Whether this revelation is included for the purpose of proving that she deserved whatever happened or that “she must be high” isn’t clear.  It is curious that they elected to mention domestic battery, given that this is a sheriff’s department, for whom domestic battery is an occupational hazard.

It’s possible that the understanding of strip search differs from the police to the lawyer and his client.  Perhaps the police understand it to be the full removal of all garments, while Tarantino believes it to be the removal of something less than everything.  There is some wiggle room in the relative use of the phrase strip search, and the removal of some garment may not equate to the police view of squat and spread as the sine qua non of a strip search.

It’s harder to explain the forcible removal of a tampon, however.  Does this mean that the female officer, one of six present, commanded Tarantino to remove her own tampon, or does it mean that the officer physically did the removal?  The latter is not merely gross, but truly bizarre. 

One would assume that some passerby would come forward to confirm at least part of Tarantino’s allegations.  Unless, of course, people are strip searched on the side of the road in Citrus County so regularly that no one would make note of it.  Or no one wants to make enemies for life with their local sheriff’s department, just in case they need them some day or find themselves inadvertently rolling through a stop sign.

All things considered, it seems more likely than not that the claims of Leila Tarantino are true, at least as far as she and her lawyer understand their allegations.  Of course, if it’s as ludicrous as the sheriff’s department claims, there is always the dash cam video to show that she’s out of her mind and none of this ever happened. 

Leila Tarantino and her lawyer, Michael Sechrest, have laid their cards on the table.  It’s up to the sheriff’s department to do the same. Denials notwithstanding, the ball is in their court to show that this is not merely crazy, but false.