SCOTUS makes a mistake anybody would have made. So it’s okay, right?

December 16th, 2014

The Fourth Amendment established one of our most important protections against government power: if the police search you or your stuff for evidence, their search must be ‘reasonable'; and if they do get a warrant then it has to be specific, and they’ll need probable cause. In writing, it couldn’t be more straightforward.

In practice, however, its meaning is anything but. Over the years, the courts have dramatically muddied the meaning of the Fourth Amendment. Not as badly as the Fifth, perhaps, but badly enough to severely erode the Fourth’s protections against unreasonable searches and seizures. The courts certainly weren’t trying to undermine the Amendment (well, not most of the time, anyway). It’s been a long series of discrete errors, gradually chipping away at what counts as an “unreasonable” search, and what can be done about it. And so legal types have long complained that the courts have been “eroding” our Fourth Amendment protections.

Sometimes this happens because the legally correct outcome sometimes seems so… wrong. What judge wants to let some vile nasty inhuman threat to society go free, on a mere “technicality?” Very often, this sense of “doing the right thing” in fact leads judges to make errors in law — waving away the protections this one bad guy had, and thereby creating a precedent that erases everyone else’s. It’s the “hard cases make bad law” principle, and it’s very real.

Sometimes this erosion happens because the courts simply don’t understand the law they themselves have created! Even the Supreme Court does this. It happens more often than you might think.

And yesterday, the Supreme court did it again.

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The case is Heien v. North Carolina, and in a nutshell the Supremes said this: If a police officer mistakenly thinks something you’re doing is against the law, and if it’s a mistake any reasonable person would have made, then it’s okay if he stops you to investigate. The Court broadened the definition of “reasonable suspicion” so that now an officer can be wrong about what your were doing, and whether it was even illegal in the first place, and he’ll still be allowed to stop and frisk you. Based on the justices’ own understanding of the law, it’s okay, they say.

Actually, it’s not okay. The Supremes themselves were mistaken about the law.

Was it a “reasonable” mistake?

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It looks like, at the heart of this mistake, we’ll find the “Exclusionary Rule.” This is law invented by the courts, specifically for the purpose of enforcing the Fourth Amendment. If you’re charged with a crime, and the police have evidence they unlawfully seized from you, your only protection is the Exclusionary Rule: if the police got evidence by violating your rights, then that evidence cannot be used against you at trial. The officers are not themselves penalized in any way; all we do is take away the evidence that they shouldn’t have had in the first place.

This is a very civilized rule, if you think about it. In any situation, there’s a line the police cannot cross. Every situation is different, and the rules aren’t always clear. If the police themselves might be punished for inadvertently crossing that line, then they’re going to avoid going anywhere near it. Society would lose a lot of evidence that the police could have lawfully obtained. Guilty people whom society really wants to punish will get away with it. That’s bad. A rule meant to deter police conduct is not what we want. Instead, however, the Exclusionary Rule lets police go right up to the line, without fear of repercussion if they mistakenly cross it. All the rule does is take away the evidence they get from crossing the line if that happens. It merely excludes what they shouldn’t have had anyway. The rule has zero deterrent effect on police personally, and only serves as an incentive to collect evidence lawfully if they want to ensure its use at trial. It’s really quite elegant: the lawful evidence is maximized, the unlawful evidence is eliminated. What more could society want?

The problem comes when judges are mistaken about the law. When they say the Exclusionary Rule is all about deterrence. Which is precisely what the Rule isn’t about. They get the whole purpose of the Rule wrong, and then they base the rest of their reasoning off of that wrong premise. And they reach a result that’s not only wrong, but inconsistent, confusing, overcomplicated, and unjust. There’s some satisfaction in the guilty being punished, but in so doing they’ve made things worse for everyone else.

So say the police got a bad warrant, but they didn’t know it was bad. Acting in good faith, they seize evidence the Fourth Amendment absolutely forbids them from having. But they didn’t know it was bad. They sincerely and reasonably thought it was good. There’s no way to deter people against being reasonably mistaken. You just can’t. So if you think the Exclusionary Rule is about deterrence, you’ll have to conclude that it’s literally pointless if the police were acting in good faith. And if you’re a court, you carve out an exception to the Fourth Amendment — a “Good Faith” exception –and our protections are eroded just a little bit more.

It happens all the time, and it happened yesterday.

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As one might expect when a court is arguing from a mistaken premise, the Court’s justification was convoluted and strange. In an area where one would expect the law to be fairly current and on point, the Supreme Court had to reach way back to its earliest cases, especially about international-border customs seizures as opposed to Fourth Amendment seizures, to find something to justify itself. You can read the case itself here, and Scotusblog has a typically excellent analysis here.

The legal issue is whether “reasonable suspicion” is still “reasonable” if the police officer is wrong on the law. “Reasonable suspicion” itself is about the police officer’s assessment of the facts on the ground, whether he’s seeing someone casing a bank to rob it, or someone who’s just pacing back and forth in front of it lost in thought. Police officers aren’t mind readers, and so their suspicion can be reasonable even if their conclusion turns out to be wrong. The whole point of “reasonable suspicion” is to allow the police to investigate whether their suspicion is correct.

It’s never been about whether the officer’s understanding of the law was correct. We want to let the officer stop you to investigate whether his assessment of the facts was correct. An officer doesn’t need to stop you to investigate whether his understanding of the law is correct. It doesn’t even make sense to say reasonable suspicion is reasonable if the officer was wrong on the law.

The Court’s ruling essentially broadens the definition of reasonable suspicion so that an officer can be wrong about what your were doing, and whether it was even illegal in the first place, and he’s still allowed to stop and frisk you.

Though it didn’t say so explicitly, the Court was essentially making the same “good faith” mistake all over again. A police officer is mistaken on the law. Not because he didn’t study it carefully, or because he was sloppy — no, it’s an error that any reasonable person would have made. Anyone would have thought you were breaking the law, despite the fact that what you were doing was technically legal. The officer’s mistaken belief wasn’t his fault. It was objectively reasonable. And there’s no way you can deter people from being reasonably mistaken. You just can’t. And so if the Exclusionary Rule is about deterring police conduct, it’s simply pointless to apply it here. So we have to carve out an exception — a “Reasonably Mistaken” exception — and our protections are eroded just a little bit more.

It would be a mistake to argue that the Court was wrong because its reasoning was convoluted and it relied on irrelevant case law, however. That’s not the problem with the decision. It’s only an outcome, a symptom, of the underlying error. Once again, they presumed that the Exclusionary Rule is something it categorically is not. That’s their error. And our cherished Fourth Amendment probably means just a little bit less now, as a result.

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So they were mistaken on the law. But it’s a mistake lots of judges, even those on the Supreme Court, have made before. It’s an “objectively reasonable” mistake.

But that doesn’t make it okay.

Training and Experience

December 4th, 2014

This has been another one of those years with a heightened awareness of police violence against unarmed black men. Awareness is a good thing. Understanding, however, is better. You can’t solve a problem until you know what the problem is.

The problem isn’t really racism, though. The problem is fear. These shootings don’t happen because the victim was black. These shootings happen because the officer was afraid.

The overwhelming majority of police officers, of course, will go their entire careers without ever pointing their weapon at another human being, much less shooting at one. Of the few officers who do pull the trigger, the majority are justified — they’re using deadly force to protect themselves and the public from deadly peril. That’s the norm. But some police shootings shouldn’t have happened — the victim wasn’t armed, and wasn’t posing a serious threat to anyone.

When those shootings happen, it’s because the officer was afraid. He saw danger where it didn’t exist. Maybe he panicked when the victim reached for his wallet. Maybe he was scared in a dark staircase and was suddenly startled by someone appearing out of nowhere. Maybe he wasn’t scared witless, but simply rationally assessed an indignant shouting person as being a vicious attacker. Either way, he pulled that trigger out of fear.

That fear is real. It doesn’t justify anything, however. Fear is the problem that needs to be solved. So where does it come from, and what can be done about it?

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Police often use the phrase “training and experience” in court, to explain their judgment calls. “I suspected that the defendant was getting ready to rob that store, based on my training and experience.” “I determined that the substance he was selling was probably cocaine, based on my training and experience.” It’s a catchall phrase, but not a meaningless one. Training and experience, after all, are how any of us know anything. We know that 2+2=4 because we were trained in elementary school to do addition. We know that the sun rises every morning and sets every evening because we’ve experienced that every day of our lives.

Experience is stronger than training. I can lecture you until I’m blue in the face that the sky is red, but that’s not going to change what you already know from your experience, that the sky is blue.

This fear that police officers have comes from experience. It is ingrained in an officer’s brain from his lifetime of experience. His perception is that this kind of person, looking like that, behaving like that, in this kind of a situation, is probably a threat. Right or wrong, justified or not, that is what he’s learned. It’s what he instinctively knows. You can give sensitivity lectures until you’re blue in the face, but the only thing that’s going to change that perception is real-life experiences demonstrating that he doesn’t need to be afraid.

That’s important, because this fear is not something that can be intellectually or rationally changed. It’s purely unconscious. It’s coming from the unthinking part of the brain, before the thinking part ever gets involved. The emotional parts and ingrained memories of past experiences are saying “this is a threat,” and are pumping fight-or-flight signals all over the nervous system without any conscious control.

On top of that, the brain is unconsciously creating a perception based, not on what’s really going on, but on what it expects is probably going on, based solely on what that brain has experienced in the past. We don’t have much room for attention at any one time — our brains can only keep track of a handful of things at once, and the area of our visual focus is (astonishingly) no bigger than your thumbnail held out at arm’s length. Our brains create the illusion of a continuous experience, and of seeing all the things we think we see. And that’s what it is: an illusion. To do this, our brains fill in all the blanks with what’s probably there, based on the experiences we’ve stored. This happens without our awareness, without our control, and it happens constantly. We perceive what our experience expects to see.

And in the case of unjustified shootings, the police officer very often saw a threat where none existed because in his personal experience, that was a threatening situation.

It’s worsened when an officer’s experience is extremely limited. And it very often is. But it’s all he’s got to go on. Someone raised in a quiet suburb, who whose only experience with certain people has been of a violent or threatening nature, is going to know, based on his training and experience, that people like that are dangerous.

This fear can be racial — police officers are generally more likely to use violence against blacks and hispanics than against whites or asians. Even police officers who themselves are black or hispanic. But that doesn’t necessarily make it racist. And in fact race is less important than socioeconomic status — police are more likely to shoot at low-income, low-prestige individuals regardless of race. But that, too, doesn’t necessarily make it classist. It’s not blind racism or classism, but rather a prejudice based on limited life experiences. An officer may have a real prejudice that black people (say) are more likely to be dangerous than white people, and that poor people are more likely to be dangerous than middle-class or rich people.

We can spout statistics until we’re blue in the face again, that these prejudices do not in any way reflect reality, but that’s like telling him the sky is red. They reflect the officer’s reality, the only one he knows.

On top of that is the “us vs. them” mentality that many police officers can’t help but develop over time. Nobody’s on their side — the politicians whose rules the police are enforcing are the first to throw them under the bus if there’s ever any outcry. The citizens whose lives they’re protecting, for whom they’re risking their lives, call them names and march in outrage. The communities they police scream bloody murder when they don’t like what an officer did, but don’t utter a peep about the people in their communities who are killing children and driving businesses away. Nobody organizes marches against the criminals, against the real bad guys. The only people on their side are fellow cops. Not even prosecutors are really on their side. It doesn’t take long for an officer’s training and experience to prove to him that the citizens he serves are actually his opposition. And when any of us look at people as outsiders, we’re even less likely to notice individual differences. An officer who no longer sees himself as “one of us,” but rather sees any of us as “one of them,” is far more likely to rely on internal prejudice when assessing an individual. This is what we all do, by the way — it’s yet another unconscious function of our brains over which he have little or no control. Members of an “other” group just get lumped together into a stereotype, without much attention to individual differences.

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Stereotype is the right word here, but not in the way it’s normally used. It means “the things our brains expect to see.” Most of the time, stereotypes are great — they’re a real survival skill without which we couldn’t function in a complex environment. “That car was coming right at me last time I saw it. It’s in my blind spot now, but it’s probably still coming this way. I’d better get out of its way.” In a panic situation, when there’s no time to think and assess, they’re a real time saver, as the T-shirt says. Your brain falls back on what it already knows, to determine what is probably happening, and what is probably the best thing to do about it. Most of the time, it’s right. Which is why you’re probably still alive to read this.

But sometimes instinctive reactions are tragically wrong. An inexperienced motorcyclist, for example, who suddenly needs to veer left, will do the obvious thing and steer the handlebars to the left. Which is unfortunately the opposite of what he needs to do, and so he goes down and slides into that oncoming truck. A more experienced biker, however, will have trained herself to overcome that instinct and do the counterintuitive thing — she pushes the left handlebar away from her, and veers to the left as she wanted.

Similarly, a police officer whose experience with certain people is limited can easily misinterpret a harmless situation as a dangerous one. Like the motorcyclist, the only cure is more experience.

Training helps a little bit, but it only goes so far. You can lecture to the inexperienced motorcyclist until your face assumes a certain hue, but he’s not going to believe it until he tries it. And it will take a lot of practice to make the counterintuitive decision the ingrained instinct. Similarly, you can give all the cultural sensitivity training you want, but for it to have any real effect the officer is going to have to see for himself that most people who look like that, talk like that, dress like that, live in that neighborhood, etc… most of them are okay. And he must gain enough experience to be able tell those few who are threats from the majority who aren’t.

That doesn’t come from a lecture. That comes from spending time in the community and getting to know the people. That comes with walking the beat with a more experienced cop who knows the people, who can share his knowledge and insights. That comes from giving police officers experience, not just of the criminal element, but of the community as a whole.

That’s hard to do. And it’s getting harder in recent years. Police are less and less likely to come from the communities they police, and cultural dissonance and misunderstanding are ever more likely. Community outrage against police is getting louder, and the “us vs. them” mentality is only getting stronger. Policing policies are less about understanding the community and making judgment calls, and more about arresting every infraction. Police are using more and more overwhelming force to ensure compliance with their commands and improve their chances of getting home safely. Cultural awareness has never been greater, and yet police officers have less opportunity to experience it firsthand than ever.

Giving officers the necessary training and experience is harder than ever. But it’s the only real solution.

Ferguson Q&A

November 25th, 2014

From Tumblr:

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I haven’t seen the actual evidence yet, so I’ll hold off on analyzing the case just yet.

As for the prosecutor’s actions? I think it was a strategy of wussing out.

Let me explain:

I’m pretty sure the prosecutor decided early on that either (1) there was no crime here, or (2) there was insufficient evidence to prove one beyond a reasonable doubt, and that therefore the case should not be prosecuted. (IIRC, the DOJ also looked at the evidence and said they weren’t going to proceed criminally.) I myself have no idea whether this ought to have been prosecuted or not, but the way this all played out, I’m almost certain that the prosecutor himself didn’t think so.

What a prosecutor is supposed to do in that circumstance is simple: Decline to prosecute. If you don’t think someone committed a crime, you don’t subject them to the criminal justice system, period. You don’t “let a jury sort it out.” You don’t initiate the process to convict and punish a human being whom you don’t believe to be guilty in the first place. He didn’t do it? Let him go.

Similarly, if the prosecutor thinks the crime was committed, but doesn’t have enough evidence to prove it beyond a reasonable doubt, he’s supposed to decline to prosecute. Period. You don’t “zealously advocate” for conviction like some sort of civil litigator and hope the adversarial system achieves justice for you. You can’t prove it? Let him go.

Instead, this prosecutor wussed out. Having decided that this is a case that should not be prosecuted, he failed to act accordingly. I’m pretty sure he was afraid that, if he stood by his decision, he’d be pilloried in the press as covering up for the police and as just another white law enforcement asshole perpetuating all this injustice. So he decided not to make the decision at all. “Leave it up to the grand jury,” he thought, “and that way it’s their decision, not mine, and I can’t be blamed.”

That’s cowardly. A prosecutor is supposed to have the judgment to make these calls, and the balls to go ahead and… you know… make the call. Not pass the buck and the blame to an anonymous group of citizens shanghaied into a bureaucratic process.

The prosecutor then presented all of the available evidence to the grand jury, instead of the usual bare-bones presentation. [Ordinarily, you give the jury grand jury just enough evidence to ask them whether there’s probable cause to let you proceed to trial.] This is not, in itself, a bad thing. I myself tended to give grand juries all of the relevant evidence at my disposal. [Unlike many prosecutors who are afraid of creating cross-examination fodder for the defense, or give details that an alibi could be constructed around, I simply preferred to show them that I’m holding all the cards. A much better strategy, in my experience.] And I had grand jury presentations that lasted more than twice as long as this one did (though, granted, they tended to involve years’ worth of wiretaps and surveillance or warehouses full of documents, rather than a single event that lasted a few minutes). My point is, the amount of evidence and the length of the proceeding don’t offend me in the slightest.

But here, the reason why the prosecutor gave the grand jury all of the evidence was plainly to pass the buck. He didn’t want anyone saying he’d cherry-picked the evidence to make it look like the cop didn’t do anything wrong. No sir! Rather than let anyone think he’d influenced the decision in any way, he would simply present everything and let the grand jurors sort it out.

That’s passing the buck. That’s wussiness of lowest degree.

And what was the result? Did he avoid finger-pointing? No! The people who would have pointed fingers at him were going to do so regardless, and theydid so regardless. Instead of accusing him of cherry-picking the evidence, he’s accused of presenting too much, of [gasp!] showing his Brady material to the grand jury, of letting the defendant tell his side of the story (defendants have the right to do so, by the way).

Did he avoid accusations of being the police’s advocate, of being yet another white cog in the injustice machine? No! His unusual tactics just made everyone more suspicious that he was doing something fishy. His failure to get an indictment when everyone knows you can indict a ham sandwich makes people think he threw the game.

Not only did he fail to avoid criticism, he made it worse. By failing to have the courage of his convictions, he undermined everyone’s perception of the justice of the system. And perception is EVERYTHING in this game. Everything. If the public doesn’t perceive that justice is being done as a matter of course, then the system loses legitimacy and things can go to hell really fast.

Not only did he do precisely that which would undermine the trust of those whose trust he needed to win back so desperately… he put a man whom he clearly believed should not go to trial at risk of being subjected to a circus of a trial and a punishment that public blood lust would guarantee to be severe. A punishment the prosecutor himself did not think was deserved. Again, I don’t know whether it was deserved or not, but the fact that the prosecutor was willing to subject another human being to that… solely to avoid a little criticism?

It’s beyond cowardly. It’s despicable.

Even if he thought the guy was guilty, everything he did was the opposite of what a prosecutor’s supposed to do. He made everything worse.

How to be a good lawyer: Keith Lee’s “The Marble and the Sculptor”

November 5th, 2013

The Marble and the Sculptor

Keith Lee

American Bar Association, November 2013, 180 pages, $24.95

 

I don’t like self-help books. They usually contain a single insight, repeated fifteen different ways, and padded out with anecdotes to fill a couple hundred pages. What might have made an excellent magazine article or blog post becomes a dreary monotone of “omg-check-this-out-guys!” hype.

I don’t like books on the practice of law. When they aren’t just plain foolish, written by marketing types who don’t get the concept of a learned profession, they’re banal. And I’m leery of anything written specifically for the “you are special” audience. They tend to skimp on hard truths and practical wisdom.

Keith Lee has written a self-help book for the “you are special” audience, on the practice of law. And I love it.

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Lee’s book is a primer for those just starting out in the profession. And it’s full of sound advice.

Taking his title from a quote by Nobel Prize winner Alexis Carrel — “Man cannot remake himself without suffering, for he is both the marble and the sculptor” — Lee wastes no time in making his point that becoming a good lawyer takes daily diligence, hard work, and a certain amount of self-sacrifice. Being a lawyer isn’t some job you go to, so you can live your real life after hours and on the weekends. Being a lawyer is your life. A certain amount of transformation is going to be necessary.

Fortunately, Lee has sound guidance on just what kind of transformation is necessary. Showing wisdom beyond his years, he lays out precisely the skills, habits and ways of thinking that lawyers need to have.

There is little fluff here. The chapters are short and sweet. He doesn’t repeat himself, but makes his point and moves on. He actually has a lot to say, and he seems impatient to get on to the next bit. This is a good thing.

Of course, you can’t have everything. His focus on concision means less introspection and analysis. He focuses more on the “what” than the “why,” so sometimes his assertions seem a bit conclusory, and at times I felt like I was left hanging. (In one example, for instance, he warns that the commoditization of legal services can become “overwhelming and dangerous” and then moves on, without describing those dangers. It wouldn’t hurt to include a paragraph or two explaining something like high volume efficiencies may work for routine, nonvarying services, but the second someone has a unique situation requiring creativity or thought, you’re setting yourself up for disaster — either you can’t spend the time and resources to give that client the individualized services he requires, or you do but at the expense of your other clients. Maybe in the next edition.)

But this is more than made up for by the good, sound advice that fills page after page of the book. Frankly, there are tons of books out there exploring all the reasoning behind each of his nuggets of wisdom. If you want deeper analysis, you can find it. But if you want a simple, straightforward “what do I need to know? what do I need to do?” then you can’t beat this book right here.

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As I said, the book’s chapters are short and sweet. Rarely more than a couple of pages each. They are organized into four neat sections: Law School, Fundamental Skills, Clients & Client Service, and Professional Development.

The section on law school leads off with a chapter provocatively titled “Do Not Go to Law School.” But don’t let that fool you. Lee is someone who clearly loves the law, and for all the right reasons. He wants you to go to law school, just not for the wrong reasons. The other chapters in that section are full of advice, not so much for doing well in school, but for taking advantage of those years to prepare for a rewarding career afterwards. A major theme in this section is that you probably aren’t as awesome as you think you are, because you’re too ignorant to even realize what you don’t know… so put in the effort.

The section on fundamental skills is meant to set out the rudiments of legal practice, the basic skills every lawyer must have just to do the job (and which must continue to be practiced and improved throughout one’s career). Here, Lee focuses on writing well, speaking well, and dressing well. Although I agree with all three, I probably would have chosen a more comprehensive set of necessary rudiments — Knowledge of the law itself in one’s field, the ability to do thorough research and meaningful analysis, clarity of thought, and the ability to communicate and persuade in writing and orally. These skills underlie everything lawyers do, from drafting a will to negotiating a deal to arguing in court.  I’d be the last to argue that dressing well is not important, but it is not a fundamental skill required for the practice of law. Oddly enough, I’d have preferred this section to be less detailed and more conclusory — the bits on rhetorical devices and the such are necessarily incomplete given the nature of the book, and a more simple “here’s what you need to learn, now go learn this stuff somewhere else” might have sufficed.

The section on clients and client service should be required reading for every new lawyer before being sworn in. The first chapter says it all: “The Privilege of Being a Servant.” We are here to serve our clients, first and foremost. If anything is sacred in this world, it is our duty to those who have put their lives and livelihoods in our hands. And we are honored to be given that duty. But Lee doesn’t just mouth this lofty ideal; he gets into the practicality of actually carrying it out. How the heck do you serve that client? For that matter, how do you get that client in the first place? He does so without trivializing the relationship, or turning it into a salesman’s mantra of leads and conversions. Recognizing the wisdom of others, Lee makes sure to share insights gleaned from others in the profession. (As he says elsewhere, watch others to see what works, and make it yours. He does a fine job of it here.)

The final section actually takes up the entire second half of the book, and shifts away from clients and the profession to talk about you. Your own personal fulfillment. How to succeed as a lawyer. But it’s anything but touchy-feely. The advice here is really about how to be good at what you do. What disciplines, habits, and choices are going to make you awesome — and by extension, make your life as a lawyer awesome? The chapter titles are brilliant (“To Sharpen is to Destroy,” “Personal Branding is Stupid,” “5 Basic Mistakes to Avoid in Your First Job,” etc.) and just reading the table of contents feels inspiring. The thoughts he shares follow through on that promise. Ending with “There Has Never Been a Better Time to Be a Lawyer” and the most essential truth of all “Chance Favors the Prepared,” the reader has to feel ready to run out there and be that great lawyer right away.

So get the book. Read it. Take those nuggets of wisdom and make them your own. Then go out there and be that great lawyer.

Let’s Make a New Law!

October 24th, 2013

Any moderately well-informed person these days is aware of the shocking injustices that happen whenever criminal laws get written by people who don’t really understand what criminal law is, or how it works. (Brilliant summary here.) They tend to create crimes that are ill-defined, overbroad, and usually an overreaction to the perceived harm. The results can be pretty bad.

How much more cause for concern, then, when the proposed crime violates not only the fundamental principles of criminal jurisprudence, but cherished individual rights that have nothing to do with crime?

And how much more cause for concern, then, when those who catch potential problems are not engaged in thoughtful debate, but are instead shouted down and accused of malicious and reprehensible conduct?

It looks like that’s what’s been going on recently in an ongoing debate over proposed “Revenge Porn” legislation that’s floating around out there. At first the shenanigans were amusing to watch, but lately it’s turned into a distressing train wreck online. A law has been proposed in reaction to something with a lot of emotional pull, thoughtful people have voiced concerns that it may be a bad law, and its proponents have responded less with reasoned debate than with emotional backlash. Those who disagree are shouted down as stalkers and assholes; their comments are deleted so that others may not see them.

Ignoring whether either side is right or wrong, what a terrible blow this has been to the credibility of the law’s proponents. Think how insecure they must be in their own assertions to react so defensively. How much confidence can than inspire in the rest of us?

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“Revenge Porn” is pretty much what it sounds like. You’re in a relationship with someone, they let you have some nude pix, then there’s a breakup and you feel bitter and to get back at them you post their nudes online for the world to see. It’s a nasty, cruel thing to do. It’s not hard to imagine society thinking the practice to be so bad that it deserves to be punished. It’s easy, in other words, to see Revenge Porn as something that might be criminalized.

Some law professors have been pushing a model statute that would criminalize the practice. So far, no big deal. This is something that law professors are expected to do.

None appear to be professors or practitioners of criminal law, though. That’s not encouraging. Those reviewing the language will therefore probably want to keep an extra-sharp lookout for things like imprecise (or missing) mens rea, over-inclusive definitions, and conflated or confused concepts, etc. Nothing personal, just a normal precaution. You get this stuff all the time.

An extra wrinkle comes from the fact that posting a nude picture of your ex counts as “speech” for First Amendment purposes. And the First Amendment doesn’t let the government criminalize speech, except in very tightly controlled circumstances. Even the most awful, painful, hurtful and distressing speech (such as that of the Westboro Baptist “Church”) is not something that gets criminalized in this country.

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This is a criminal law blog, not a First Amendment forum, and so it’d be somewhat off-topic to get into whether or not Revenge Porn is something that can be criminalized without running afoul of Freedom of Speech. But it is pertinent to note that the professors’ interpretation of the 1st Amendment here is not universal — and it is also relevant to examine how they have reacted to the ensuing disagreement.

To be fair, the law’s proponents are from academia, where disagreement (often) = bullying and criticism (sometimes) = hate speech. Where speech is generally not very well protected, in the first place. Where debate can be frowned upon and contrary points of view shouted down, removed from newspaper bins, at times even persecuted and hounded out. You ain’t seen petty vindictiveness until you’ve seen someone challenge the orthodoxy. You don’t get this from the better professoriate, of course — there are plenty of wonderful academics who welcome healthy debate, the chance to make their case or (as the case may be) get a new point of view. But there are plenty of others who prefer to point to their credentials and their peer-acceptance as proof of their correctness, and who get the most defensive when challenged.

You can usually tell which kind of academic you’re dealing with based on how they react to a contrary position. The ones who are pushing the Revenge Porn law, sadly, seem to be falling into the lesser camp so far. This is not good for their credibility.

So to the extent that First Amendment practitioners are in dispute with these particular academics, one might be inclined to conclude that the practitioners could perhaps be more likely to be correct.

-=-=-=-=-

But again, this is a criminal law blog. So how does the law look from the perspective of our criminal jurisprudence?

Not… not so great.

Here’s what the model statute says:

Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

(a) Definitions: For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.

(b) Exceptions:
1) This section shall not apply to lawful and common practices of law enforcement, the reporting of unlawful conduct, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

…..

Holy cannoli, where to begin…?

The first problem is one of good old mens rea: It criminalizes disclosing the image without the subject’s consent, regardless of whether the actor knew about it one way or the other, or meant to do so without consent. It criminalizes the act where the subject had a reasonable expectation of privacy, regardless of whether the actor knew or had any reason to know it. The only mens rea here is whether the image was disclosed intentionally.

It’s a strict liability crime. Whenever you see that, huge red flags should be popping up in your head screaming “INJUSTICE AHEAD!” Sure it doesn’t criminalize accidentally dropping a photo out of your wallet, but it does criminalize showing it to people with the mistaken belief that your wife was cool with it — or without the knowledge that she had since changed her mind.

The second problem is one of conflated concepts. “Reasonable expectation of privacy” is a concept of Fourth Amendment law — of procedural rights, not of criminal liability. It is a term of art that has been defined in a fairly convoluted fashion over the years in such a way that the average layman couldn’t give you an accurate definition of the phrase if his life depended on it. His liberty would depend on it, here. The authors probably don’t mean for this phrase to have the meaning & baggage it carries in Fourth Amendment jurisprudence. They just think it sounds good. And so there is inherent confusion in the statutory language. It is not clear what is actually meant here. And where there is vagueness in criminal law, where there is room for interpretation, there is room for cops and prosecutors to screw over the regular Joe. And if you don’t think that happens, you’re not getting out enough. When you see conflated concepts and room for interpretation, those red flags ought to be screaming at you even louder.

The third problem is one of unclear writing. Seriously, what do the “consent” and “reasonable expectation of privacy” clauses modify? Does this refer to images that are disclosed without consent, or taken without consent? Does this refer to images that were disclosed under circumstances where someone had an expectation of privacy, or taken under such circumstances? Is it criminalizing pictures of sexual acts that were nonconsensual? What about images that were taken by someone else, and then given to you by your ex? What about images that someone else forwarded to you, or you found online, and had no way of knowing whether they were consensually/privately taken or disclosed (whichever verb applies)? It can be read all of these different ways.

There is literally no way of knowing for sure what conduct is criminalized here. As written, it outlaws all kinds of behavior its authors probably didn’t mean to punish. It is overbroad as hell. You hear those red flags? Since when do flags scream? These are. Get some earplugs.

Strictly from a criminal perspective, this is a god-awful statute. It’s another one of those “think of the children” “take back the night” “let’s name a statute after the victim” kinds of legislation that pave an eight-lane superhighway to hell with their good intentions.

-=-=-=-=-

You want a statute that works? (Again, ignoring any First Amendment concerns.) Here’s one I banged out in court this morning while waiting for a case to be called. Zero research or deep thought went into it:

…..

DEFINITIONS:

(A) “Private Sexual Image” = any media containing:

(i) an image taken in a non-public place, and in a non-commercial setting…

(ii) of a living person whose identity is readily ascertained from the contents of the image…

(iii) and depicting that person’s unclothed genitalia, buttocks, or female breasts, or depicting that person engaged in sexual intercourse, oral sex, manual-genital contact, or other such sexual behavior…

(iv) and which has not previously been “distributed” as that word is defined herein.

 

(B) “Distribute” = make publicly available by any means, including displaying in public or in a publicly-accessible medium, sharing via any communication or peer-to-peer arrangement, and any other method that makes a duplicate of the image available to others. Excluded are private acts of showing the image, without duplication or transmission, to individuals or small groups of people.

 

CRIMES:

Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person; and

(3) thereby does harass, shame or defame that other person

is guilty of a Fucking Nasty Crime.

 

Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person

is guilty of a Nasty Crime.

 

Any person who

(1) intentionally distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of another person;

(2) when he knows that, or recklessly disregards whether, he does so without the consent of that other person

is guilty of a Crime.

 

DEFENSES.

It shall be an affirmative defense to all of these crimes that, when the image in question was originally taken, it was reasonable to expect that it would later be viewed or possessed by people other than those who were a subject of the image, the person taking the image, and the person accused of distributing the image.

It shall be an affirmative defense to the Fucking Nasty crime that the image in question was transmitted to the accused via electronic or other means whereby the image could be “forwarded” or otherwise duplicated and transmitted to third parties.

…..

There, quick and easy. There’s probably stuff to fix in there, as well, and again who knows if it’d pass constitutional muster on other grounds, but it’s hardly as overbroad or prone to injustice as the one those professors are promoting.

I bet you can do it even better. You are cordially invited to tear my suggestion apart in the comments, and provide your own language. Have at it!

Q&A Dump

September 6th, 2013

I’m on the road today, but I wanted to post something. So I’m going to cheat and cut-and-paste some recent Q&A posts from my Tumblr. If you’re looking for a longer read, go check out my comic, which just completed a long section involving how the Fourth Amendment plays out during different kinds of car stops.

From today:

I don’t know all the facts, of course, and I’m not a Florida lawyer, but from what I’ve read it seems to me like the defense doesn’t have a winning argument here. It’s not unethical to make a losing argument, and lawyers often feel obligated to make every conceivable argument rather than lose an issue for appeal, or in the hope that something sticks — but it might be better to preserve your credibility with the court by choosing those arguments that at least have a teeny bit of merit.

“Stand your ground” laws say that, if you’re lawfully where you are, and someone is then and there about to kill or severely injure you, then even if you could have gotten away safely you’re allowed to use deadly force to defend yourself.

The “Bush Doctrine” is an application in international law of a basic principle of self-defense: you don’t have to wait for the other guy to hit you first before you defend yourself from the coming blow.

From what I understand of the Woodward case, he felt intimidated by these people, but was not in any immediate danger. Nobody was coming at him. Nobody was presently any threat to him.

Instead, he snuck up on a group of people at a barbecue, crawling on his belly to avoid detection. Then he fired a mess of rounds at them, hitting three and killing two. I don’t know what kind of weapon he had, but if the reported numbers of rounds are accurate, then he must have stopped to reload a few times.

This was not self-defense, because he was not in any actual danger at the time. At best, he was defending against some imagined possible future attack that might never have come. I get that he felt terribly harassed, but that’s not the same thing as an actual imminent attack. A hypothetical future attack is not an imminent one.

It was not stand your ground, because first of all he probably wasn’t lawfully there but was trespassing with intent to commit murder; and second of all because he wasn’t reacting to an attack.

The “Bush Doctrine” is just silly to cite, when there are plenty of self-defense cases to cite involving striking the first blow. But even there, the whole point is you’re about to get hit, and you’re defending yourself by making sure that blow doesn’t land on you.

From what I read, it looks like nothing less than cold-blooded premeditated murder, perhaps under great stress from a history of harassment, but in no way justified by it. Very similar to the “battered wife” scenario in my comic, actually.

—-

Just to make this long answer even longer, here are the playground rules I’ve drilled into my kids since they started school:

1. No matter how angry you get at someone, you’re not allowed to hit them.

2. If someone else is about to hurt you for real, first try to get away.

3. If you can’t get away, try to get a grownup to help you.

4. If you can’t get help, then I want you to hit first, I want you to hit hard, and you’re not allowed to stop hitting them until they can’t hit you any more. Let’s practice some moves.

I guess Woodward’s daddy never taught him that.

==========

From a couple of days ago:

This started out as an offshoot of my law blog, which has a similar disclaimer. It’s pretty standard for lawyers to state that their legal information isn’t legal advice, and just because you read it that doesn’t make you a client.

We’re all stating the obvious when we do that. (And no amount of disclaimer would help if a lawyer actually did give legal advice.) I imagine every lawyer cringes a bit as he types one out. Nobody in their right mind needs to have this explained.

But not everyone is in their right mind, sadly. You hear stories about how every now and then someone didn’t quite get the concept, which can turn into an unpleasant situation. So lawyers hope their disclaimers deter some of those people — and it’s nice to have something in black and white to point out to them.

It hasn’t happened to me, though. Not yet, anyway.

image

Or you could just… you know… try not to get arrested in the first place.

Read them, and not get arrested. Yeah. That might be better.

(Thanks, tho!)

==========

And from a couple days before that:

Yeah… well… not quite.

18 USC 241 & 242 aren’t really about unlawful search and seizure or other stuff dealt with by the exclusionary rule. They’re about police seriously abusing their power. 241 is about conspiring to injure or threaten or intimidate someone, to hinder their civil rights or to retaliate against exercising their rights. 242 is about abusing their power to actually deprive someone of their civil rights.

And the abuse of power has to be really severe. We’re talking about intentionally making up false evidence, intentional false arrests, sexual assaults, and severely excessive force.

What’s being deterred isn’t merely violating the Fourth or Fifth Amendments, but actual criminal conduct. This goes beyond even a civil rights lawsuit. These are not charges that you could bring yourself. They’d have to be filed by a prosecutor.

For a non-federal example of how states deal with it, here’s a story about a Mississippi sheriff who just got indicted the other day for similar conduct.

image

Thanks!

That’s really my purpose here — to dispel all the crazy myths and misinformation that are so prevalent out there, and present the straight facts in a format that’s easy for any high school student or adult to understand.

Not that I want anyone to think they have to accept how things really are. Maybe we ought to do some things differently. I like to think I’m helping people at least make informed arguments one way or the other (and I’ll be honest: I get a real thrill whenever I see people link to the comic in their online debates).

And I love getting messages like this. Totally makes my day. Thanks again!

This is FANTASTIC!

(Sounds like your kid has a great parent, by the way.)

Is Ray Kelly a Complete Idiot?

August 19th, 2013

As we all know, Judge Scheindlin ruled that the NYPD’s stop-and-frisk program was unconstitutional. This should have come as no surprise.

Our Fourth Amendment law forbids a police officer from stopping you without first having reasonable suspicion to believe that you are up to no good. Police officers were stopping people without any reason to believe they might be up to anything. That this was unconstitutional should surprise nobody.

Once you’ve been stopped, Fourth Amendment law forbids a police officer from frisking you without first having reasonable suspicion to believe that you are armed and dangerous. Police officers were frisking people without any reason to believe they might be armed. That this was unconstitutional should surprise nobody.

It is also unconstitutional for the government to single people out for this kind of treatment based on their race. Police officers were stopping and frisking Black and Hispanic people almost exclusively. On purpose. That this was unconstitutional should surprise nobody.

These were not the random errors of wayward officers, but institutionalized behavior directed and commanded by the police department. It was a program. That the NYPD has been given an injunction to knock it off should surprise nobody.

And yet Police Commissioner Ray Kelly has done nothing but act shocked and offended ever since.

Kelly made the rounds of TV news shows yesterday, angrily asserting Judge Scheindlin doesn’t know what she’s talking about, and claiming that this ruling is going to make violent crime go up. He argued firmly that the stop-and-frisk program is just good policing. It works. It’s effective. And now the NYPD can’t do it any more. It works. It’s effective. And so they should be allowed to keep doing it.

He firmly believes that, just because something is effective, the police should be allowed to do it.

This is the same guy who’s gunning for Secretary of Homeland Security. You thought you were living in a cyberpunk dystopia now? Just you wait until someone like him is in charge.

-=-=-=-=-

Forget whether he’s even correct that this is an effective policing strategy. (I already told you why it isn’t.) Let’s just, for the sake of argument, presume that stop-and-frisk actually worked to keep crime down.

That doesn’t mean the government should be allowed to do it. Effective does not mean constitutional.

The government is a mighty thing, with overwhelming power and force at its disposal. But one of the most beautiful things about America is that our government is constrained. It cannot use its might against you unless the Constitution says it can. There are plenty of things it might like to do, but it isn’t allowed to. (People being people, government folks will try to bend the rules or skirt them or even ignore them. Hoping nobody will notice, hoping nobody will say anything, hoping they’ll get away with it. Very often even believing they’re doing nothing wrong, and believing that in fact they’re doing the right thing. Still, the fact remains that they’re no allowed to do it.)

Of course there is a tradeoff. There’s always a tradeoff. If we gave the government unlimited power to snoop into our homes and search our persons, they would certainly catch a lot more criminals. If we took away the exclusionary rule and rules of evidence, they’d convict more of them, too. Ignore innocents wrongly convicted — let’s presume that the police would be inhumanly perfect about all this. It is a certainty that, without that pesky Bill of Rights, more wrongdoers would get punished, and more severely.

But we have decided that a lot of things are more important than catching and punishing criminals. Privacy is more important. Free will is more important. Fair hearings are more important. We as a society are willing to accept a certain level of crime — even violent and horrific crime — as a consequence of protecting these rights.

And so the government is forbidden from violating those rights, no matter how effective such a violation might be.

Kelly does not get this.

This is not rocket science. This is not obscure ivory-tower theory. This is a basic core principle every rookie police officer should know. Is Ray Kelly a complete idiot, here?

-=-=-=-=-

Kelly defends targeting Blacks and Hispanics because statistically, they commit a disproportionate amount of the crime in this city. And statistically, they do. But that doesn’t justify stopping individuals just because they happen to have been born into those groups.

Just as “effective” does not mean “constitutional,” the statistics of a general population don’t give you reason to stop that particular individual over there. His being Black does not give you reasonable suspicion. You need reasonable suspicion to believe that this guy is up to something. Ours is a system of individual justice. You need a reason to suspect this particular person, not a belief about people like him in general.

Again, this is stuff you learn your first week at the Police Academy. It’s pretty basic.

If the statistics showed that people of Italian descent committed a disproportionate amount of bribery, or that Jewish people committed a disproportionate number of frauds, would that give the police reason to target Italian or Jewish people just because of their heritage? Of course not. It would be as absurd as it would be abhorrent.

And yet that’s essentially what Kelly’s saying about the racial discrimination.

Does he not see how blatantly wrong this is?

Is he a complete idiot?

-=-=-=-=-

You sort of have to hope he is.

Because if he’s not an idiot, then he knows exactly what he’s saying. He knows exactly why he’s wrong. Not just intellectually wrong, but morally wrong and contrary to everything this country stands for. And he’s still saying it. Hoping to convince you he’s right. Hoping you’ll let him continue to have those powers.

Pray he’s only an idiot.

Too Many Lawyers?

August 19th, 2013

Keith Lee posted an interesting chart on his blog today, comparing how fast the number of lawyers is growing to how fast the general population is growing. The U.S. population has grown at a slow and steady pace since 1945. The lawyer population, however, has grown at a much faster rate since the 70s.

People have been complaining about “too many lawyers” since at least the 70s, if not earlier. This data would seem to explain some of that feeling, as the lawyer population has grown faster than the general population.

But how accurate is that complaint? Are there too many lawyers?

Not too long ago, you could say “no” and back yourself up with a convincing supply-and-demand argument. The market demanded more legal services, so more lawyers were coming out of school to fill that demand. If there wasn’t demand for a lawyer’s services, he’d soon find something else to do.

It’s not as if lawyers create their own work, after all — personal injury lawyers don’t go around causing traffic accidents; transactional lawyers don’t draft contracts because they feel like it; criminal defense lawyers don’t make people go out and commit crimes. It’s the clients who want to sue each other, who have deals that need to be structured, who get in trouble and need help.

So if more and more lawyers were out there, it wasn’t the legal profession’s fault. It was because the rest of you were suing each other more often. It was because life, business and government were getting more complex, and you needed more help in navigating your affairs. It was your fault, not ours. Simple supply and demand.

There weren’t too many lawyers. There were exactly as many lawyers as you, the clients, wanted there to be.

Actually, the growth in lawsuits and wills and ordinary lawyering wasn’t really ballooning. Ordinary lawyering was keeping pace with the population, for the most part. What was really growing, starting around 1970, was the demand for corporate transactional work. That’s what created the big firms, what drove the big fees.

But this new corporate demand wasn’t a permanent shift in the demand curve. It was a bubble. Actually, it was a series of bubbles — the M&A bubble of the 70s, the real estate bubble of the 80s, the dot-com bubble of the 90s, another real estate bubble in the 00s — Wall Street percolated with all kinds of demand for more corporate work. Each bubble burst, as they tend to do. But so long as Wall Street kept percolating, there were always new bubbles coming along. Overall, it was constant. And it drove higher and higher fees, higher and higher salaries, secure and steady work. And that drove more and more people to go into the law, looking to get some of that steady work and high pay. (Which is the exact wrong reason to go into the law, but that’s what happened.)

But then, about six years ago, it stopped. The demand for the high-pay big-firm corporate work dropped significantly. The profession tried to ride it out, keeping all those high-pay lawyers around for when the work came back. But it didn’t. And a year later they realized they couldn’t keep paying all those high salaries without the same level of fees coming in. So they started shedding lawyers.

Those were good lawyers, of course. These firms had only hired the best of the best. Which was great if you weren’t a top student from a top school — with those guys competing for the Wall Street-driven jobs, there was more room for you on Main Street. But once those guys started competing for the Main Street work, there was less demand for graduates whose grades or schools weren’t stellar.

And so you saw an awful lot of students who had entered law school expecting an easy job market graduate with no job (but plenty of debt).

If you asked one of those new graduates if there were too many lawyers, you’d probably hear a resounding “YES!”

But that’s because there were more lawyers competing for fewer jobs. The actual number of lawyers working as lawyers was still exactly as many as you, the clients, were demanding.

The job market took that hit in 2008, and it hasn’t really changed much since then. But law school applications — which had been steadily falling up until then — now shot up, rising faster than before for the next couple of years. Presumably well-educated college-graduate adults saw law school as an attractive option, despite all the evidence to the contrary. A lot of these applicants looked on law school as a default — the economy sucked, so this was a great way to ride out the recession and have a good-paying, steady, upper-middle-class career on the other side. They didn’t want to be lawyers for the right reasons, but they wanted to go to law school.

Supply and demand being what they are, if more people wanted to pay good money to go to law school, there were going to be more seats for them to fill. And so the number of law students continued to rise. And so even more fresh graduates came out to face the same job market that had NOT been growing at the same pace.

If you ask any of these new graduates if there were too many lawyers, you’d probably hear a resounding “YES!”

Supply and demand being what they are, of course, people eventually stopped applying to law school in such numbers. They’ve resumed their downward path. In fact, applications are going down faster than ever, and are probably at their lowest point in thirty years. Meanwhile, those who couldn’t find work as lawyers have mostly found something else to do. So this oversupply of fresh graduates is in the process of shaking itself out.

But even with this momentary oversupply of fresh graduates, the number of lawyers actually working is still going to be however many you, the clients, demand. The answer to the question “are there too many lawyers” is still “no.”

-=-=-=-=-

Of course, what people are really complaining about when they say “too many lawyers” is that there are too many bad lawyers. Nobody complains about the good ones. But that’s a subject for another time.

-=-=-=-=-

 Since I got off on this from looking at some graphs, I thought I’d make some of my own. Look at these and ask yourself if there really are too many lawyers:

On the DEA’s Special Operations Division

August 5th, 2013

It should be clear by now that I’m no apologist for governmental overreach or law enforcement abuses. But after the news broke this morning about the DEA’s Special Operations Division, and everyone has been freaking out about yet another erosion of the Fourth Amendment, I feel like I ought to tone it down just a little bit. I have a little inside info here, because back in my days as a narcotics prosecutor, I dealt with them. (Don’t worry, I’m not going to divulge anything I shouldn’t.)

A lot of international drug trafficking takes place outside our borders, so the idea was to take advantage of intelligence data to make the drug war more effective. You just can’t use the intelligence  data in court. So SOD was formed as a way to make the information known, without compromising criminal investigations.

As reported, what the SOD does is get evidence from sources that can never see the light of day in court — usually from intelligence services here and abroad. Wiretaps conducted without regard to Title III because they’re not intended for criminal prosecution, top secret sources, and the like. If something comes up about some big drug trafficking — not at all uncommon to hear about in the intelligence world — then the SOD hears about it. Then they clue in law enforcement. It’s up to law enforcement to figure out how to gather the evidence legally. SOD’s involvement and its tips are rarely shared with prosecutors, and almost never with the defense or the courts.

So there’s a lot of understandable brouhaha that Obama’s eroding our privacy, the Fourth Amendment has been eroded even further, it’s unfair to the defense, this country’s going to hell in a handbasket, etc. People are concerned that law enforcement is “laundering” its evidence so it can use stuff that should have been inadmissible, and lying to everyone to cover it up.

First of all, this didn’t start on Obama’s watch. It got started under Clinton, back in ’94. And its existence has been fairly common knowledge in criminal law circles ever since. It’s even been reported on before.

Second of all, the whole “evidence laundering” thing isn’t quite accurate.

When I was dealing with them, back in the late ’90s and early ’00s, we in my office only half-jokingly called them “the dark side.” It was well understood that you couldn’t build a case off of their information. We’d never know where their information came from, for one thing. Without a source to put on the stand, the information couldn’t even be a brick in the wall of any case we wanted to construct.

And to be fair, the SOD folks themselves were very clear in their instructions: Their information was not to be used as evidence. It was only to help us figure out what we were looking at in an investigation, and let us know about other things we might want to be looking for. It was all along the lines of “how you gather your evidence is up to you, but you ought to know that this Carlos guy you’re looking at is part of a much larger organization, and his role is… and their shipment chain appears to have nodes here, here, and here… and your subject Gilberto over here is looking for a new local dealer.”

So what would you do? You’d realize Carlos wasn’t the top of the food chain, and start looking at your evidence in a different way, maybe change the focus of your investigation. And you’d pay more attention to traffic going to certain places. And you’d try to get an undercover introduced to Gilberto as his new dealer. You weren’t being spoon-fed evidence, but being clued in on where to look for it and what it might mean.

The Reuters article everyone’s citing quotes former DEA agent Finn Selander as saying “It’s just like laundering money — you work it backwards to make it clean,” in reference to a practice called “parallel construction.” He makes it sound like law enforcement obtained its trial evidence illegally, and then went back and tried to think up a way to make it look admissible. That would indeed be cause for much concern. And you’re kidding yourself if you don’t think that’s something police do on a daily basis.

But that’s not what “parallel construction” means. It means “dammit, I have this evidence that I cannot use. Is there another way to go get this evidence that is lawful? Why yes there is! Let me go do that now.”

So let’s say you know that a blue van with Florida plates XXX-XXXX will be going up I-95 this weekend, loaded with heroin in a variety of clever traps. But you can’t just pull it over because you can’t introduce that information in court for whatever reason. Instead, you follow it in a series of unmarked cars, until it makes a moving violation. Which is very likely to happen, no matter how careful the driver is (it’s practically impossible to travel very far without committing some moving violation or other). You now have a lawful basis to pull the van over. And a dog sniff doesn’t even count as a Fourth Amendment search, so out comes the convenient K-9. And tada! Instant lawful search and seizure, and the original reason why you were following him is not only unnecessary but irrelevant.

It doesn’t matter if the original reason you wanted to pull the van over came from the dark side or from an anonymous tip or from a hunch. It’s a legal stop, and the original reason doesn’t matter. This is a very common scenario in day-to-day law enforcement, and isn’t specific to the SOD.

Or think of this equally very common scenario: Someone inside an organization has given you probable cause to go up on a wire and to arrest a lot of people. But you don’t want that person’s identity to ever come out, or even raise any suspicion that there was ever an inside informant. So you get that guy to introduce an undercover. Who maybe introduces yet another undercover. And you only use information that the undercovers themselves develop to build your probable cause and build your case. The original informant’s identity need never be disclosed.

Those examples are parallel construction. It’s not about going back and laundering your evidence. It’s about going forward to gather it lawfully this time.

I’m not saying the dark side isn’t cause for concern. Law enforcement and intelligence are supposed to be two entirely different things. We have given the government amazing intelligence-gathering powers on the understanding that it won’t be used against our own citizens, and won’t be used for law enforcement. A very good argument can be made that the SOD program subverts that super-important limitation on government power.

But it’s harder to argue that it violates the Fourth Amendment or gets evidence in court that should have been inadmissible.

If you’re gonna complain about it, at least complain for the right reason.

No, that’s not what the Fifth Circuit said.

July 31st, 2013

The internet is abuzz over yesterday’s Fifth Circuit decision on cell-site data. And hardly anyone seems to know what they’re talking about, as usual.

It’s to be expected when sources like Wired say “cops can track cellphones without warrants, appeals court rules.” Which is not what the court ruled at all. After all, you can’t expect tech zines to be accurate on the law. And it’s to be expected when tons of people get all upset on sites like Reddit, because they only saw the inaccurate headlines and are now freaking out about something that never happened. But when the usually responsible New York Times jumps in with “warrantless cellphone tracking is upheld,” it might be time to get concerned.

Yes, there is a lot of concern these days with government access of our data. A lot of that concern is legitimate, and a lot is misplaced, but the fact that the conversation is even happening is a wonderful thing. Except the conversation is downright counterproductive when nobody knows what they’re talking about. And such lazy (or deceitful?) reporting isn’t doing anyone any good.

Here’s what the court said, in a nutshell:

1) The government wanted to get historical data of cell sites that were used by certain phones. Not real-time data. Not tracking.

2) Existing law says this is allowed when the government can provide specific and articulable facts that make it reasonable to conclude that the data will be relevant and material to an ongoing criminal investigation.

3) The government did exactly that.

4) The lower court screwed up, and applied the rule for getting real-time data. The lower court needs to do it over again. Period.

All the court did was apply existing law, correctly.

What the ACLU and EFF and others wanted, however, was for the court to break new ground, and create a new legal standard. I am in favor of such things — a court’s not going to do that unless you ask, and I encourage making such arguments at every meaningful opportunity. But this court said it wasn’t going to touch that issue with a ten foot pole. (It did suggest going to Congress, to change the law. Congress passed the statute that enables such requests of phone companies, and right now the statute simply tracks existing Fourth Amendment jurisprudence. But the statute could always impose greater burdens on the government than are required by the Fourth Amendment. The Constitution is a floor, not a ceiling, after all. So why not lobby Congress to amend the relevant statute?)

Or they could, you know, take it up with the Supreme Court and ask them to change their mind on what’s reasonable under the Fourth Amendment.

The problem, of course, is that the existing rule fits neatly within the general principles of how the Fourth Amendment works.

Basically, the Fourth Amendment comes into play when the government intrudes on something that you would reasonably expect to be private. They’re allowed to do it when they have a warrant based on probable cause to believe they’ll find evidence of a crime or catch a criminal. And they’re also allowed to do it without a warrant if it’s reasonable to let the government do so — when your privacy interests are outweighed by some other concern like public safety.

So the first issue is whether historical cell-site data is something you would reasonably expect to be private. The ACLU and EFF and others say it is. The government says it isn’t. And existing law says that it isn’t. This is the new ground that the court was being asked to break.

Cell site data is not something that you create. The government isn’t going into your phone or your computer to access the data. It’s not yours. Instead, it is a record kept by your phone company. They create the data, and they retain the data.

Cell site data does not contain the contents of your communications. What you’re saying and texting and emailing and posting are not being accessed. It only says what cell tower your phone was using at the time. Which can give a general idea of where your phone was at the time.

Historical cell site data does not tell the government where your phone is right now. It’s not a tracking device. It’s not real time. It just lists the towers your phone was using back then.

This cell site data is created by the business, not by you. And it’s about a transaction which that business engaged in. It’s not just about you. It’s a record of its interaction with your phone. It’s nothing more or less than a routine business record, of the business’s own activity, kept in the ordinary and regular course of business. It’s not about you.

And the government did not compel the business to collect that data.

So when the government goes to the business and says “give us those business records,” it is not so much your privacy that’s being invaded as it is the business’s privacy. The act of getting the data, the act itself, does not require any intrusion into your own privacy. They’re not going into your phone or home or computer to get it.

And the data itself is not something that’s yours to claim as your own private information. You didn’t create it, you didn’t keep it.

But the law does recognize that you do have some expectation of privacy here. Just not anywhere near as much as if you were the one who created or kept the data. So the government has to make some showing that it’s actually relevant to an actual criminal investigation. They just don’t have to show there’s probable cause to believe they’ll get evidence of a crime. It’s a similar standard as for getting a pen register — real-time data of the numbers you’re calling, without overhearing the contents of the communications.

Also, stepping away from your interests for a moment: We don’t want law enforcement* just randomly poking through records for no reason, hoping to chance on evidence of a crime — the Fourth Amendment hates it when that happens. It’s not about your privacy, but everyone’s. So they can’t demand records in bulk. They have to be records of a specific phone, that they have specific reason to believe will be useful. It’s arguable that this consideration is even more important than your privacy interests, when it comes to setting the standard the government has to meet.

In the end, the law just isn’t on the ACLU & EFF’s side right now. They need to change the law, if they want the government to have to jump through the probable cause hoop here. They made a game effort of asking the Fifth Circuit to take the plunge, but the Circuit punted (I love mixing metaphors, don’t you judge me). They can lobby Congress to increase the government’s burden, and whip up public support for it (which is entirely possible), or they can try to get the Supreme Court to reinterpret the Fourth Amendment here (yeah, good luck with that).

But this decision broke no new ground. It did not give law enforcement new powers. It did not undermine the Fourth Amendment.

Please, if you’re going to get up in arms about it, do so for the right reasons. Not because you didn’t understand what happened in the first place. And don’t misrepresent what happened to try to foment misinformed popular outcry.

I’m looking at you, New York Times.

*Not the same as national security or intelligence, by the way, but that’s a whole nother discussion.

Ray Kelly on Stop-and-Frisk: You saved HOW many lives?

July 23rd, 2013

NYC’s Police Commissioner Ray Kelly wrote a piece for today’s WSJ titled “The NYPD: Guilty of Saving 7,383 Lives” and subtitled “Accusations of racial profiling ignore the fact that violent crime overwhelmingly occurs in minority neighborhoods.” In it, he makes a great case for the fact that his cherished stop-and-frisk program is not effective policing, and may in fact lead to more crime.

That’s not his intent, of course. His purpose is to defend the NYPD’s much-maligned stop-and-frisk program (and also its surveillance of political dissidents). He doesn’t succeed. In fact, he does a great job of discrediting himself right off the bat. Which is a shame, because he makes it too easy to roll your eyes at him, and that would be a mistake. This stuff demands serious discussion.

He starts off with a burst of illogic and bad math, to wit:

(A) During the 11 years Bloomberg’s been mayor, unspecified tens of thousands of weapons have been seized by the police;
and
(B) During those same 11 years, there were 7,383 fewer murders than in the preceding 11 years [though he cites 13,212 and 5,849 as the figures, so the actual difference would be 7,363];
therefore
(C) The NYPD has saved 7,383 lives.

Uh huh. Right.

Well, he IS right that crime is way down. A careful statistician might even observe that crime in this city is way WAY down. And this is a good thing.

But to what extent is it a result of the police seizing all those weapons? (And how many weapons did they seize in the 11 years before Bloomberg? He doesn’t say.) In fact, to what extent is the drop in crime the result of policing policies at all? Most research I’ve read seems to support demographic shifts and maturing community attitudes as its primary causes.

Kelly makes this “we saved lives” point in order to justify the NYPD’s stop-and-frisk program. He makes other arguments, too. Taken together, his arguments all boil down to “it works, therefore it’s justified.”

No. Wrong.

Just because something works, that doesn’t make it right. Or even legal. Just think of the atrocities the State could commit if mere effectiveness was all the justification it needed. Better yet, don’t think of them. I don’t want to give you nightmares.

But put that aside for now. Is he even right to claim that it’s working, in the first place?

-=-=-=-=-

It is silly to deny that good policing can affect crime rates. When the police are effective — when criminals stand a good chance of being caught and punished — then that effectiveness serves as a deterrent. People who otherwise might have committed a crime are more likely to think twice about it.

Then again, we are talking about violent crime, here. How much violent crime is even capable of being deterred? Most assaults and murders are unplanned, spur-of-the-emotions stuff. The odds of being caught and punished aren’t exactly being weighed. Even an effective police force will have an iffy deterrent effect there, at best.

But that’s not what stop-and-frisk is about. And it’s not really about getting weapons off the streets, either.

Stop-and-frisk is about making the risky people take their risky behavior somewhere else.

The NYPD is doing it because they think it will work. That it has worked. That it is working.

And they are wrong.

-=-=-=-=-

First things first: It is Read the rest of this entry »

Confused about the outcome

July 16th, 2013

You’re not the only one to ask, that’s for sure.  The short answer is this:

  1. The prosecution had the burden to remove all reasonable doubt from the jury’s minds — both that Zimmerman had committed every element of the crimes charged, and that he had not acted in self-defense.
  2. This was a very difficult case for them to prove.  Their evidence was iffy and called for a lot of speculation.  Their arguments were easily shot down by the defense.  And the defense view of the case was fairly consistent with the evidence.  At the end of the day, there was plenty of room for doubt about a lot of important things.
  3. With all that doubt, the jurors found that the state had not met its burden, which meant that they had to say “not guilty.”

Different people are confused and upset about this for different reasons.

Some are confused about what the evidence was, how the law applied to it, and where all the reasonable doubt came from.  I can try to go over all that with illustrations later, if you like. (I don’t mind, it’d be fun.)

Others are confused because they think the jury’s job was to decide what really happened, rather than to decide whether the state had proved its case beyond a reasonable doubt.  The jury’s verdict doesn’t mean “George Zimmerman is innocent” or “George Zimmerman was justified to shoot in self-defense.”  All it means is “the prosecution did not prove every element of the crime beyond a reasonable doubt” and “the prosecution did not prove it wasn’t self-defense beyond a reasonable doubt.”

Also, in cases like this, a lot of people take sides without knowing (or even caring) what the actual evidence was, or how the law applies to it.

Instead, a lot of people take sides, for and against, because they want to further some sort of political agenda.  There is a narrative they want the case to tell, regardless of what the facts really were.  It’s all about their cause, not the case.  So of course they get upset when the jury’s verdict doesn’t fit their narrative.

And a lot of other people take sides because they get the sense that one or the other is the “right” side to be on.  Sort of a knee-jerk, follow-the-crowd sort of thing.  They may not really know what was going on, but they feel that they are on the side of good and justice.  So of course they get upset when the jury’s verdict isn’t what the crowd had led them to expect.

Yes, juries can and do come back with bizarre verdicts that make you wonder how many brain cells they had between them.  But this just isn’t one of those cases.  The jury’s verdict was not at all unsurprising, given what came out during the trial.  It would be very easy for people of ordinary judgment to believe that the government came nowhere near proving its case beyond a reasonable doubt.

Zimmerman may or may not have committed the crime with which he was charged.  But that jury had good reason to come back with a “not guilty” verdict after that trial.

-=-=-=-=-

You wanna hear something shocking?  I don’t think the prosecutors really Read the rest of this entry »

Hello again

July 16th, 2013

Hello, again. That was quite the hiatus, there.

Long story short, I sort of got the feeling that folks wanted me to spend more time on the comic, which ate into the time I would have spent doing this.  And eventually took over.  Which is a shame, because here I don’t have to stick to my syllabus, but get to write about whatever’s going on.

But three people in three days have told me that this blog was in fact valuable for them.  And I did miss it.  So I guess I’ll have to make time for both.

The next post won’t take any time at all, though — I’m just going to cut-and-paste an answer I wrote to one of my Tumblr followers last night about the Zimmerman case. That’s cheating, I know.  But I promise more new content shortly.

On this latest Miranda thing…

April 22nd, 2013

So after catching one of the guys thought to have committed the Boston Marathon bombing (and a string of violent acts thereafter), the government said they weren’t going to read him his rights. Not just yet. Invoking the “public safety exception” to the Miranda rule, they said they wanted a chance to find out who he was working with, where other bombs might be, etc., before telling him he’s allowed to clam up.

Predictably, a lot of people were upset about this. But why?

Yes, it was wrong of the administration to say that. But not for the reasons everyone’s saying. Not because it’s further eroding our rights (it’s not), but because it’s just stupid.

It conflates intelligence with evidence — stupid. It misses the whole point of Miranda — stupid. It defeats the purpose of intel — stupid. And pisses off those who love the Constitution — stupid.

And of course, it’s nothing new.

About three years ago, the Obama administration made it DOJ policy to permit “unwarned interrogation” not only in situations involving immediate public safety (“where’s the bomb?”), but also cases where cops believe getting intel outweighs your right to remain silent.

The 2010 memorandum states:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

On top of that, the Obama administration wanted Congress to specifically pass legislation allowing longer interrogations before Miranda need be invoked. (A brilliant writer blogged about that memo a couple of years ago, concluding that it was “An Unnecessary Rule.”)

The administration is just trying to have its cake and eat it, too. Miranda does not prevent them from gathering intelligence. The Fifth Amendment does not prevent them from gathering intelligence. They can interrogate people all they want, in any way they want, and the Constitution doesn’t say jack about it. But if they force you to incriminate yourself against your own will, they’re just not allowed to use those statements against you to prove your guilt in a criminal proceeding. That doesn’t mean they can’t force you to incriminate yourself, and it doesn’t mean they can’t use those statements for other purposes.

But the government wants to be able to do both. It wants to be able to override your free will, force you to condemn yourself, and use your words both to prevent future attacks (laudable) and to convict you so the State can punish you (contemptible).

Their saying this out loud is idiotic, because everyone sees how contemptible it is, and the government looks even more like an enemy of the public, rather than its protector. And of course giving a heads-up to the real bad guys about what we’ll be doing. (And announcing it in a specific case, as they did this week, just lets everyone in the bomber’s organization know that we’re learning everything that guy could tell us. Stupid. You never want the enemy to know how much you know.)

But it’s also stupid because it misses the ENTIRE POINT of Miranda.

Sorry to break this to you, but Miranda isn’t about protecting your rights. It never was.

Miranda is about giving the police a free pass. It always has been.

The Fifth Amendment is there to make sure we don’t have another Star Chamber. We don’t want the government using its power to override your free will, and make you confess to a crime so it can punish you. Lots of confessions are purely voluntary. In fact, most probably are. But sometimes the government has to force it out of you, and we don’t want that to happen.

But it’s hard for courts to tell voluntary confessions from involuntary ones. They have to look at facts and assess things on a case-by-case basis. That’s hard. And it’s hard for police to know if they’re crossing the line, when the line is different for every individual. So the Miranda rule creates an easy line that applies to everyone:

Say the magic words, and the law presumes that the confession was voluntary.

See how easy that was? Not hard. Easy.

All a cop has to do is recite the Miranda litany as they’re taking a suspect into custody, and BAM! they get to interrogate all they want, and everything the guy says can be used in evidence at his trial.

It is hard to imagine a more pro-law-enforcement rule. In one stroke, Miranda dispensed with actual voluntariness, and replaced it with “as a matter of law” pretend voluntariness.

And yet law enforcement — even our nation’s top officials, who went to law school and everything — astoundingly persist in thinking Miranda is bad for them. They think that, if you mirandize someone, they’ll shut up, and you’ll lose all that delicious intel and lovely evidence. (NYPD officers are actually trained NOT to mirandize people on arrest, for this very reason. Yeah, TV ain’t real life.)

But here’s the kicker: People don’t clam up when they’ve been read their rights. The people who clam up remain silent regardless of whether they’ve been mirandized or not. In fact, there is evidence that people are MORE likely to talk once they’ve been read their rights. They don’t know what those rights mean, but they know they’ve got them, and TV has conditioned them to expect the magic words. So when they hear them, they relax. All is well. Their rights are being acknowledged. And they start blabbing.

So not only do the magic words let you use all those statements, compelled or not, but they actually get the statements flowing.

So wanting to hold off on saying them is just stupid. Counterproductive. Idiotic.

So there’s lots of reasons to dislike what the government is saying in this case. But eroding our rights just isn’t one of them.

You lost those rights in 1966.

Drawing the Line

March 29th, 2013

Everyone knows that drunk drivers cause deadly car accidents. This is because alcohol impairs one’s ability to drive safely. So it is against the law to drive under the influence of alcohol.

Everyone knows that texting while driving causes deadly car accidents. This is because texting distracts your attention from driving safely. So it is against the law to text while driving.

Everyone knows that speeding causes deadly car accidents. This is because going faster than conditions and one’s ability permit make you unsafe. So it is against the law to speed.

And now West Virginia is looking to outlaw driving while wearing Google Glass. Because presumably having the internet in your heads-up display would distract your attention from driving safely.

Of course, these laws are all trying to prevent people from driving unsafely. So why not, instead of a whole jumble of laws dealing with specific causes of unsafe driving (and having to be written to deal with new, unforeseen causes), why not have a single law punishing… you know… unsafe driving?

Because these particular causes of unsafe driving are worse than any other? If you say so. But even then, they could just be grounds for enhanced penalties for violating the basic law. No need for separate laws.

The actual reason is that “unsafe driving” is a very subjective concept. It’s really an “I know it when I see it” kind of thing, not readily reduced to formulas. Different people have different abilities, physiologies, training, etc., so one person could drive safely with distractions/speeds/alcohol intake that would make another person a deadly menace. If all you’ve got is a cop who can testify that “this person was driving unsafely because of X Y Z,” when it’s not necessarily so that X Y or Z equal “dangerous, then you’re not going to get a lot of convictions.

And so we draw a line. Forget individual variations — as a matter of law, if you do X, Y or Z while driving, you are automatically a menace, and that’s that. The police officer doesn’t have to make a judgment call about whether you were actually unsafe. All he has to do is determine whether you did X Y or Z.  It’s so much easier to prove that you had crossed the line, than to prove that you were actually being unsafe.

Of course, this is overbroad and unjust. Because where we draw the line is arbitrary. Someone driving 70 is no more dangerous than someone going the limit of 65, but that’s where we drew the line.

Where we draw the line depends. For speeding, it’s sort of a lowest-common-denominator kind of thing: We pick a speed that, for this road, most drivers should be able to manage safely. And by “most drivers” we mean “poor drivers.” Because as a society we’ve decided that we’d rather make it easier to get a license, and we’re willing to accept a certain number of traffic fatalities per year in exchange for letting more people drive. So sure, there are plenty of people who could manage it safely at a higher speed, but they’re going to have to obey the same line drawn for everyone else.

For alcohol, it’s more a lobbying kind of thing: Victims and families of victims of drunk driving are understandably upset that people are committing reckless homicides and being treated like it was just oopsie an accident. So they lobby lawmakers to make driving with any alcohol in your bloodstream a crime. And over the years, the amount of alcohol required gets smaller and smaller, because who wants to lobby for the alternative? Who wants to be the guy pushing to make the law go easier on those killers? And so the arbitrary line keeps ratcheting down because nothing is there to prevent it.

For things like texting, it’s more of a zero-tolerance thing: We can’t ever know which text or other distraction is the one you could do safely or the one that would cause a pileup on I-70. So we just outlaw all of them. (If we were intellectually honest, we’d simply outlaw driving while distracted, which is the actual problem. But that would fill the jails with moms who were yelling at kids, people driving while furious after an argument, girls putting on makeup on the way to work, truckers eating tacos, and the like. And we don’t want to do that, do we?)

It’s not just traffic laws — the law is filled with examples of “bright line” rules. All are arbitrary. Some try to strike a balance, some are purely political, and some are unthinking zero-tolerance rules. But the lines have been drawn. And that’s the important thing.

The important thing is that the line is drawn somewhere. Because it’s not about justice. And it’s not about safety.

It’s about not having to make subjective decisions.

And now you know.