RHDefense: The Law Office of Rick Horowitz (559) 233-8886 https://rhdefense.com Home of Probable Cause: The Legal Blog with the Really Low Standard of Review Thu, 23 Mar 2017 23:02:49 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.3 https://i0.wp.com/rhdefense.com/wp-content/uploads/2016/06/cropped-RHDefense-Small-Logo-512-FINAL.jpg?fit=32%2C32&ssl=1 RHDefense: The Law Office of Rick Horowitz (559) 233-8886 https://rhdefense.com 32 32 4530565 Twits & Stones https://rhdefense.com/2017/03/23/twits-stones https://rhdefense.com/2017/03/23/twits-stones#respond Thu, 23 Mar 2017 22:53:06 +0000 https://rhdefense.com/?p=12159 Well, so I’m a few minutes late getting to the party on this one. Okay, maybe it’s a few days. On the other hand, I don’t see any of you paying me to write these blog articles (he says with a wink). And people have been paying me to represent them in court.

Why, just yesterday, I had a pleasurable experience after repeated instances of the prosecutor in my case telling me that he couldn’t provide me with an arrest report for my client, unless I could tell him which agency arrested my client using the arrest warrant the State was responsible for having issued for him. It was a lovely moment on the record, when I informed the court that there were 25 officers present at the time, and that I had informed the prosecution it appeared possible that two different agencies, which I named, had been present. Being as I had told this to the prosecution more than once before, and still the prosecution had stated on the record that he “needed to know who made the arrest,” I felt it necessary to state,

For the record, your honor, I’ve already said that I believe it was [two agencies I listed]. But I am certain of one thing: neither I, nor my client, were part of the group of 25 officers who arrested him. I suspect if the warrant—of which I don’t have a copy—were tracked, the prosecution might be able to find out who made the arrest. Or maybe he could ask someone at the jail. After all, it’s not like they’re going to talk to me, and give me the answers.

Or very similar words to that effect.

So, you see, I have been busy with various and sundry things, and unable to get to the party, with all its psychedelic lights, and seizure-inducing whatevers, until now.

In any event, I’m here now.

And I’m reminded of something that happened to me perhaps more than twenty-five years ago.

Amazing to think that the Intertubes have been tubing that long. A quarter of a century. But they have.

In fact, intertubing has been happening even longer than that. The incident I am going to tell you about, unless my ancient memory fails me, occurred even before the invention of NCSA Mosaic, one of the first “graphical” web browsers. Or maybe it was right around the same time Mosaic came out.

As I said, it’s been a long time.

You see, there used to be this thing called “Internet Relay Chat,” a.k.a., “IRC.” I believe it still exists today, although I haven’t used it since shortly after I left my undergraduate university in 1995.

Anyway, it was a kind of cardinal rule in the channels on which I hung out that RL—or “real life”—and what happened on IRC occurred in separate universes. And, as in some science-fiction movies, any holes between universes had very bad results, and so anyone who opened one was severely punished, usually by banishment. (Channel admins, of which I was one on several channels, could ban people.)

Now, I’m not looking to revive old wars here, so I’m being deliberately vague about things like names of channels, names of people, etc. But at least one of the channels on which I hung out was important to me because I utilized it for my work.

One day, myself and another self-important person got into a tiff. For those who grew up only on intertubes, that means “a petty quarrel.” Given what this post is about, I figured I better specify that we did not get into a Tag Image File Format (TIFF).

It really was petty: the other individual was an admin and a pedant, and kept banning people for such silly things as improper use of English grammar, even if it was only a single occurrence. I called him on it, a verbal fight ensued, and he banned me. Someone else unbanned me; I banned him; someone unbanned him; he banned me again. This kept on, and, because we were both immature and had supporters, it caused a huge disruption.

In the midst of this, however—and I was not an attorney at the time—I (rather ignorantly, I now realize, as I had no clue then about how the law worked) threatened to take some kind of legal action because he was interfering with a resource I utilized for my work.

That threat to violate the law against opening portals between universes cost me a number of supporters. I tried explaining the reality that what he was doing was disrupting my ability to complete certain projects. But, in numerous lengthy discussions about the relationship between IRC and RL, it didn’t matter: the rule was deemed inviolable. Ultimately, I lost that fight in the Court of IRC Opinion.

Now, in retrospect, there were any number of ways I could have dealt with this situation. Perhaps none of them would have been as satisfactory as the one I wanted, which was to have Mr. Pedant back off, and leave me—as well as those others he tormented to make himself feel important—alone. But I could have found—hell, I probably did find, although I don’t remember the final outcome of all this more than 25 years later, except that I did not pursue any threatened legal actions—another way to deal with the situation.

But I’ve never wavered in my belief that I was right about this one thing, and that so many others were wrong about it: the rule against opening portals between the universe of IRC and RL was a bogus rule, based upon a bogus belief that IRC did not “really” matter to RL. Actions on the Intertubes can, absolutely, have real-life impact.

Now Scott Greenfield1 was a couple days earlier to the party than me here. In case some of you are even later to the party than I am, or in case my post title and writing are obtuse enough that you still don’t know what I’m talking about, Scott’s post provides background:

The charges against John Rayne Rivello* for sending Newsweek writer Kurt Eichenwald, “a disabled person,” a twit with a flashing GIF raise a great many issues that, beyond whatever twisted notions compelled Rivello to do such a thing, create challenges for criminal law. Rivello has been indicted federally, and locally. The latter jurisdiction has charged him with aggravated assault with a deadly weapon.2

And Scott gets into the definition of the phrase “deadly weapon,” which leads him to the question of whether, or not, a tweet is a weapon. As Scott parses it, a tweet that “fires” a GIF at someone is not the same as a gun that fires a bullet at someone. Scott’s concern is that a tweet, or a GIF—his discussion starts with tweets, but switches to GIFs3 —is not a physical thing, and only physical things can be deadly weapons covered by the relevant statutes.

In an update after his original post was published, Scott linked in Eugene Volokh’s article, “Crime on the virtual street: Strobe lighting, ‘virtual groping,’ and startling.” That article contained a link to Volokh’s more complete article, “Law, Virtual Reality, and Augmented Reality.” Both are well-worth taking the time to read, for those (like me!) interested in such things.

In “Law, Virtual Reality, and Augmented Reality,” Volokh says,

Sorting out who is responsible will require courts to understand the technology and how it differs from the world that came before. But it won’t necessarily require a fundamental rethinking of legal doctrines.

I tend to agree with Volokh. I was already predisposed, as Scott noted some people would be, to see the twit,4 or an email, or an instant message of some kind, as the gun that delivers the bullet, or payload, of (in this case) the potentially-deadly GIF.

My thinking on that was that a thing is a thing is a thing. And unless you specifically state that “anything” does not include non-material things, then it does.

But Volokh’s article helps clarify this in a way that draws on my undergraduate philosophy studies in metaphysics, and cognitive science:

We base many rules on the distinction between the mental and the visceral, between things we perceive and things we experience. VR and AR will make it harder to draw that line, and may push us to think hard about why we punish certain kinds of conduct and not others in the physical world. Indeed, they may even lead us to rethink the notion of what is “real” in a world where more and more of our most significant experiences aren’t “real” in the classic understanding of that term.

There’s a lot going on when it comes to the question of what the meaning of “real” is.

But we don’t even have to get very metaphysical to see that what was done to Eichenwald can, indeed, count as an assault with a deadly weapon. Because, you see, both Scott and the prosecution are looking at the situation between Rivello and Eichenwald and misidentified the components of their interaction—or perhaps, it would be better to say that they cherry-picked the components upon which they each focused, because both left out parts.

Eichenwald is an individual who is susceptible to having seizures when his brain is stimulated in certain ways. One such way apparently involves being exposed to stroboscopic light. Now, I don’t know what Scott would say, but I think most people—and particularly most police officers, prosecutors, and judges that I know—would have no problem saying that if someone walked up to Eichenwald with a strobe light, and stuck it in his face, the “attacker” attacked with a deadly weapon; that is, the actual strobe light. I mean, hell, there’s a ton of case law that says guns, knives, cars, baseball bats, and even windows and sidewalks all count as “deadly weapons.”5

I once defended a client in a case that included a charge of assault with a deadly weapon where the weapons were sticks and tree branches.

There’s no principled reason I know of why an actual stroboscopic light could not count as a deadly weapon.

Angry Twitter Bird in Slingshot

To get from this to viewing what happened to Eichenwald as an assault with a deadly weapon, we just need to ask how does this strobe light thing—and here I’m using this “real-world actual thing” thing to satisfy Scott’s definition of a thing—work?

It’s like this: I turn on a switch, and electricity from a battery (via chemical reaction), or electrical outlet, “activates” the light. The light somehow moves through space to your eyeballs.6 This results in stimulation of your optic nerves. Your optic nerves convert the “real world” strobe light signal into electrical impulses that traverse neural pathways leading to the brain, leading potentially to a seizure in certain people. People like Eichenwald.

Depending on what he was doing at the time, Eichenwald foreseeably could choke to death on his own tongue, or fall down and break his neck, or his arm—he could probably be injured, or die, in any number of ways.

Now, in a veridical sense—I’m trying to avoid the use of the problematic word “real” here, but there’s not an easy way to do it; even “veridical” means “coinciding with reality”—does it really (?!) matter if instead of flipping a switch on an actual stroboscopic light so that electricity causes the light to trigger your neural reaction, I push a button on my keyboard so that electricity causes a light from your viewing device to trigger your neural reaction? And the circuits traveled are a little longer than those inside a hand-held strobe light?

If anything, I think the problem here might be a problem of conflation: Scott focuses on the “deadly GIF” because that’s one of four “things” listed in the charge against Rivello. It’s as if in a case where the “real-world actual thing” thing that is a stroboscopic light, the prosecution had charged it thusly:

…defendant did use and exhibit a deadly weapon, to wit: his trigger finger, a strobe light, a battery, and a bulb.

The only thing missing from both Rivello’s charging document, and what I just wrote, are perhaps “photons.”

A lot has changed since the days when a pedantic prick used mere words to negatively impact one aspect of my social and work life. The Intertubes have evolved, not just in capability, but pervasiveness.

But here’s the crux of it: the connection between Rivello, and Eichenwald, was real. The weapon used might be a bit more complicated, but it still consists of very real components. Call them electrical impulses, switches, photons, twits, strobe lights, pixels, GIFs, or what have you.

Want to really wig out? The Internet can not only be a deadly weapon: it could be used as a weapon of mass destruction.

Twits and stones can break your bones.

And worse.

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Endnotes:

  1. You knew that was coming, right?
  2. The asterisk indicates a footnote on Scott’s post, which I don’t include here.
  3. And he notes that the physicality issue is equally applicable to both.
  4. Another influence from Scott: he tends to refer to tweets as twits. I think it’s because of the obvious connection between the vapidity of most tweets, and the ordinary meaning of the word “twit.” I’ve taken to using it that way, as well.
  5. People v. Russell, 129 Cal.App.4th 1182 (2005)(throwing someone in front of car counted as “using” car as deadly weapon); People v. Coe, 165 A.D. 2d 721 (N.Y.App.Div. 1990)(thrusting person’s head through window counts as “using” window as a deadly weapon; State v. Reed, 790 P.2d 551 (1990)(sidewalk used as deadly weapon).
  6. I know it’s not magic, but I’m not a physicist, and this isn’t a physics paper!
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“Fulfilling” the Warrant Clause https://rhdefense.com/2017/03/19/fulfilling-the-warrant-clause https://rhdefense.com/2017/03/19/fulfilling-the-warrant-clause#respond Sun, 19 Mar 2017 19:42:53 +0000 https://rhdefense.com/?p=12045 Earlier today, Scott Greenfield1 wrote in “Fungible Judge and The General Warrant,” about what amounts to a general warrant.

The warrant in question was requested by David Lindman, of the Edina Police Department, in Edina, Minnesota, a town of less than 50,000 people, based on speculation that the warrant might help locate a single individual who committed a crime. The hope was that, of all the people covered by the warrant, one of them might be the guy the cops were after.

It was signed by a judge. Meaning, as Scott points out, that

a lawyer who, for reasons unknown, was given the authority to sign a piece of paper that allows cops to intrude wildly into people’s private lives without recourse.

All that would be bad enough, but that’s not really the end of it. Edina might be limited to a population of less than 50,000 people. But the warrant was not.

The warrant was sought because someone managed to steal $28,500 from a bank. The actual person whose account was targeted—and I hope (and expect) that the bank is eating the cost of their error—was someone with the first name of “Douglas.” His full name is not known to me at this writing, nor is it important. But the warrant contains four iterations of his complete name, further expanding the scope of the search.

The warrant, as I mentioned at the outset, is based upon rank speculation. The idea behind it is that whoever convinced the bank to cough up the money from Douglas’s account did so by providing, among other things, a faked passport. The passport was not presented to the bank in person, but was faxed. So, of course, it provided complete proof that Douglas was the one requesting the bank turn over the money, because no one but Douglas could possibly have used a fax machine to send a fax of what appeared to be identification purportedly belonging to Douglas.

Though that is a digression, the point I’m making is that even if the passport had been legit, the bank fucked up.

In any event, the passport was fake.

The picture used on the passport? Well, it appears that—at least the story appears to rely on the idea that—it really is a picture of Douglas.

So how did the miscreant mis-appropriator of money come by the image? Was it possibly someone who knew Douglas well enough to have access to his pictures? After all, whoever it was knew enough to know which bank to phish from. Could that same person have taken the picture from Douglas’s home? Was the picture perhaps taken from one of Douglas’s relatives? Or maybe the relative of Douglas—Lieutenant Provenza would say it’s always the wife—had the picture?2 Was the picture stolen from someone’s desk at work?

I’m just spit-balling here. Spinning out theories. Speculatin’.

The Edina cops did some speculatin’, too. But they speculated that the picture must have come from the Internet. Frankly, that makes a lot more sense to me than that the picture came from someone who already knew Douglas, and had access to information about Douglas’s having a bank account with $28,500 available for transfer, and who might have had access to a picture of Douglas. It just makes a lot more sense that it was someone who googled Douglas.

Google? Well, the cops decided it had to be Google because neither Yahoo, nor Bing, had a copy of the image when Douglas’s name was searched.

I don’t have a copy of Douglas’s image, either. David Lindman has a picture of Douglas, but the belief is that he didn’t get it until after the investigation started, and, thus—almost by definition—after the crime was committed. So it has to be Google.

And so it was that David Lindman submitted a request for a warrant to a judge in Minnesota who is apparently missing a few marbles, and who authorized Lindman to demand that Google cough up:

name(s), address(es), telephone number(s), dates of birth, social security numbers, email addresses, payment information, account information, IP addresses, and MAC addresses of the person(s) who requested/completed the search [on Google, for Douglas’s picture].

Does it matter if the person who requested the search lives in Brazil? Nope. California? Double-nope. Edina? Not even. No. A judge in the United States of America, a nation with a Constitution that created a limited government, which Constitution also contains a Bill of Rights where live the words of the Fourth Amendment, has spoken: the warrant is virtually unlimited geographically. It does contain a demarcation as to time: further speculation informs the police that the Google search that must have happened must have happened between December 1, 2016, and January 7, 2017.

One may wonder how they came to speculate that the search they speculate took place took place between those dates. When everything else about the warrant is speculative, that matters not. Perhaps in the binary universe of David Lindman (and Judge Gary Larson of the Fourth Judicial District Court who signed it), this “limitation” is what saves it from being a general warrant.

And so David Lindman trotted off to Google with his Get-All-Your-Data-Free card, issued by a real, impartial judge. As Scott Greenfield put it,

even if this judge signing off on this warrant turns out to be the village idiot, the cop executing it is covered. After, he fulfilled the warrant clause. It’s not his fault the judge was a blithering idiot.

What Scott means by “he fulfilled the warrant clause” is problematic. Technically speaking, the cop requested a warrant. To the extent that the warrant clause requires a police officer to request a warrant, he “fulfilled” the warrant clause. At least, that’s what everyone says, including Scott.

I know that Scott knows better. I believe he’s talking about the real universe of rulings in which this warrant exists, rather than what the law actually says. This is because, just as Judge Larson did when he signed this execrable excuse for a warrant, judges routinely ignore the law. And their ignoring the law—not to be confused with ignorance of the law, because they are able to state it: they just don’t follow it—is why general warrants have become more common.

Everyone says the warrant clause was “fulfilled” because the cop requested a warrant, and a judge signed the warrant.

To actually fulfill the warrant clause, however, requires more.

First, let’s look at the so-called “warrant clause,” which is part of that antiquated, decaying document, which sits in desuetude in some museum, and for which I was able to google—showing it’s not just Douglas’s picture you can find there, but a lot of other shit—to locate its actual words:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In case you’re interested, that collection of words comprises what we refer to as the “Fourth Amendment.”

Now the so-called “warrant clause” of this Amendment is constituted—to the extent there is any thing in the Constitution that can any longer constitute anything other than a matter of historical interest—by these words:

[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So one might think that to “fulfill the warrant clause,” we need:

  • Probable cause
  • Oath or affirmation
  • A particular place to be searched
  • Particular persons or things to be seized

Well, we have an oath. To the extent that “Custodian of Records Google Inc.” is a place where the things sought might be found, which I find questionable despite the Custodian of Records being alleged to have an address, a “particular place” has arguably been designated. To the extent that the person(s) or thing(s) to be seized are somewhere among the millions in Google’s databanks one might say, incorrectly, that this portion of the clause has been satisfied. To the extent those people might live anywhere in the world, it has not. But, so far, the cop doesn’t want to search the people: he just wants their effects.

And the cop, of course, swears that there’s probable cause to believe that what he seeks is to be found at the Custodian of Records Google Inc. So we have an oath of sorts, however blatantly speculative the basis for the oath.

But here’s the thing: even putting aside the lack of probable cause here, which I’ll get to in a minute, the idea that the above “fulfills” the terms of the Fourth Amendment is a complete joke. Only if you read the so-called “warrant clause” in complete isolation from the rest of the Amendment, and I realize that this is exactly what courts do when it becomes necessary to save a warrant, is the clause fulfilled. But if you recall that the Fourth Amendment of which the clause is a part starts by saying that the purpose of the limitations spelled out in it are because the people have a right to be secure in their persons, houses, papers, and effects, there is no way that Lindman’s request, and Judge Larson’s authorization, “fulfills” the warrant clause.

The warrant requires Google to sift through millions, if not billions, of people’s searches to find a smaller, currently unnumbered, group of people who performed a one of several searches for particular names,3 and then to turn over all their personal data, along with all the data relating to their networks (IP addresses, MAC addresses), which might unveil other people, as well. Thankfully, Google is not (yet, anyway, to my knowledge) in the business of cataloguing DNA profiles.

You might as well give the cop a warrant that says they can stop and search everyone they encounter anywhere in the world to search them for evidence of this crime. As long as they’re required to release those who don’t have any such evidence as soon as they determine they have no such evidence, it’s all good.

Some right to be secure, eh? This is exactly what makes this a general warrant.

And then there’s the probable cause issue. Probable cause, as I’ve shown in another post, is thought not to be really required, so long as you can get a judge to sign off on the warrant, as Lindman did here. If it were required, though, it has not been met. In another of my posts, in an Endnote, I noted that the Fifth Circuit Court of Appeals had said,

[T]he requisite ‘fair probability’ is something more than a bare suspicion….

Something more than a bare suspicion. Lindman may suspect all he wants that someone possibly used Google to find Douglas’s picture. Lindman found Douglas’s picture using Google. And he didn’t find it using Bing, or Yahoo. He didn’t find it at my house. He didn’t find it at your house, probably. I’m not sure if Judge Larson had a copy. There might be copies of it at Douglas’s house, but presumably Douglas was willing to cough up his copies. Some of Douglas’s friends, or family, might have copies. Co-workers of Douglas, or of someone related to Douglas, might have copies. But that doesn’t mean that someone couldn’t possibly have used Google to locate the image.

And how does that move this from a bare suspicion to probable cause?

So the warrant clearly has some major defects. But the warrant clause has been “fulfilled,” because Lindman kindly asked Judge Larson to sign the warrant, and Judge Larson did sign it. As anyone who has ever read United States v. Leon knows, that settles it. Lindman’s reliance on Judge Larson’s signature seals the deal.

In the ordinary case, an officer cannot be expected to question the magistrate’s probable cause determination or his judgment that the form of the warrant is technically sufficient. “[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.”4

But Leon also clearly states:

[R]eviewing courts will not defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause.

Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.5

Leon further states:

Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. […] [A] warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.6

Having written several briefs on this in several courts, including the California Supreme Court, I can tell you that there is an unbroken string from Leon‘s 1984 holding through to today that reinforces the legal requirements of the Fourth Amendment, and which also reinforce the idea that Leon is not an automatic As-Long-As-A-Judge-Signed-It-You’re-Good card that trumps all other constitutional requirements.7

Leon is used far, far too often, in ways antithetical to its true holding. David Lindman’s acquisition of Judge Larson’s signature on this warrant in no way “fulfills” the warrant clause.

What it does it fulfill, once again, is the government’s need to be able to ignore the warrant clause so they can search whoever, whenever, and wherever they want in today’s lawless United States.

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Endnotes:

  1. Get over it, people!
  2. Except when he says it’s always the husband.
  3. There is more than one search phrase listed in the warrant.
  4. Leon at 468 U.S. 921, citation omitted.
  5. Leon at 468 U.S. 915, internal quotes and citations omitted.
  6. Leon at 468 U.S. 922, internal quotes and citations omitted.
  7. Sadly, I can also tell you that when it suits them, the courts will ignore that string of cases, without even commenting.
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Meet the New Boss https://rhdefense.com/2017/02/13/meet-the-new-boss https://rhdefense.com/2017/02/13/meet-the-new-boss#comments Mon, 13 Feb 2017 18:12:29 +0000 https://rhdefense.com/?p=11886 This morning, I find myself pondering words of woeful wisdom from the writer of Ecclesiastes.

A generation goes, and a generation comes,
but the earth remains forever.

The sun rises, and the sun goes down,
and hastens to the place where it rises.

The wind blows to the south
and goes around to the north;
around and around goes the wind,
and on its circuits the wind returns.

All streams run to the sea,
but the sea is not full;
to the place where the streams flow,
there they flow again.

All things are full of weariness;
a man cannot utter it;
the eye is not satisfied with seeing,
nor the ear filled with hearing.

What has been is what will be,
and what has been done is what will be done,
and there is nothing new under the sun.

Is there a thing of which it is said,
“See, this is new”?
It has been already
in the ages before us.

There is no remembrance of former things,
nor will there be any remembrance
of later things yet to be among those who come after.1

But, since everything today is subsumed in angry political rants, and pseudo-debates, let me quote a more contemporary poet:

There’s nothing in the streets
Looks any different to me
And the slogans are replaced, by-the-bye
And the parting on the left
Are now parting on the right
And the beards have all grown longer overnight2

My last post elicited some interesting comments, but none so totally destroyed my argument as these from Facebook:

Lawyers gonna Law.

And,

Hey, Rick Horowitz! You’re an insufferable dick! Law school’s not hard, it’s just a lot of reading. Get over yourself. How about we discuss why Germany has hate speech laws.

I mean, after that last one, why would I ever want to try a rational explanation of why not everyone gets the law, and why we need lawyers? As you can see, every point I made, crushed; picked apart, piece by piece.3

Okay, not really. Or, more accurately, not at all. But as Scott Greenfield—whose work never gets quoted anywhere, least of all on this blog—said in his ten-year anniversary post today:

It’s not nearly as much fun to write about the law when readers are nuts. It’s even less fun fending off the insane comments, here and by the geniuses on other social media, from reddit to the twitters….

As another of Scott’s posts notes, the nuttery is overflowing as more and more people get sucked into social justice hell over things like “Trump’s Totally New and Evil War Against Immigrants.”4

The fear of future outrages is a facile justification for being extra outraged in advance, but one that has consumed a broad swathe of previously level-headed people.

And you thought fear was the domain of the Right.

How wrong you were.

I’ve been (falsely, it should go without saying) accused a time or two of being a Scott Greenfield sycophant; a puppy, if you will, who follows him about wherever he goes. It might seem that I like Scott, read Scott’s words, and not only pay close attention to what he has to say, but frequently quote him here. That’s because I do. But I’m not a very good puppy. Scott and I don’t exactly see eye-to-eye all the time. No surprise there: we’re both lawyers; we both have egos (as at least all the best lawyers do); and we don’t have exactly the same knowledge, background, and experiences.

Yet…we are both lawyers. Our knowledge comes from, among other things, having training as lawyers that has lead us to have similar experiences defending people—as Scott likes to say—”in the trenches.” And these things have made us both good lawyers.5

But, as I said, we don’t always see eye-to-eye.

Scott thinks the nuttery is filling up because (among many other reasons) people are jumping the gun on Trump.

My pal, Stephanie West Allen, sent me a link this morning about a Yale history professor who says we have “maybe a year” to defend America from Trump, who is “literally Hitler.” This isn’t a serious point. This is insanity.

Yes, saying Trump is “literally Hitler,” is insanity. Which is another of those things some people (and I think, sometimes, Scott) have wrongly believed I think.

Let me be clear and unequivocal here: Trump is not literally Hitler. So far, he’s not remotely Hitler. The differences begin the moment you recognize that Hitler was the leader of the Nazi party in Germany from 1934 to 1945. It may make many people sad, but while Trump is also the leader of country—the United States of America—he is not the leader of the Nazis, or even the so-called “Nazis/neo-Nazis,” better-known as the alt-right. True, they seem to love him.

Except when they don’t.

I’ve said many times—including before Trump was a blip on my political radar—that Athena may have been born of Zeus’s brow, but Hitler, and the real Nazis, did not spring fully-formed from the brow of Germany. This fact is undeniable, and actually pedestrian: no political figure really comes out of nowhere. They are born in a particular time and place; they grow up in a particular time and place; and eventually they come to power, whether slowly, or with alacrity (or at least rapidity), in a particular time and place. So it should be no surprise that it has been so with Trump.

But as I said in “Godwin’s Shortcut,”

There will be no explicit comparisons of Trump to Hitler.

I’ve said that for the same reasons that Scott says calling Trump “literally Hitler” is insane.

Because it’s insane. You should read the posts linked above from Scott, because I don’t want to just repeat everything he said. My statements on the matter to a certain degree track his because, as I said, we’re both good lawyers. We’ve watched certain things happening for years. But we both understand—how shall I put this? since this is a law blog, I’ll put it in legal terms—issues of justiciability. There is no case here for deeming Trump to be “literally Hitler.” There may be a lot of controversy, but that’s mostly the production of prolific imaginations, coupled with weak recognition of the disutility of facile analogies.

Hitler rounded people up, based on a number of factors—mostly, but not exclusively, having to do with their culture (or religion, for those who don’t know what Judaism really is)—and had millions of them murdered. Trump hasn’t rounded anyone up. So far, the most he’s done is say he doesn’t want some people in this country. The facile analogy to Hitler is believed by some to hold because they don’t understand his methodology builds upon what Presidents like Obama did during their own presidencies, and the fact that his non-Mexican targets (and probably some of his Mexican targets) share a culture (or religion, for those who don’t know what Islam really is). Hitler has not shoved anyone into ovens, or gas chambers. He hasn’t proposed doing so. Nor has he encouraged anyone else—alt-right acolytes notwithstanding—to do so.

More important than Trump is today’s milieu—the particular time and place—that spawned his political “career.”  Again quoting myself (instead of Scott Greenfield, this time):

I’ve often thought about what it must have been like to live in 1930s Germany. To see the nascence of Hitler, and his Nazi political party. What must people, especially people who disagreed with Hitler, have thought? Did they say that it was all talk? Did they say he wasn’t really saying what it appeared he was saying? Did they say it was just politics? Did they say, “He’ll never become our ruler”? Did they say, “The People will never vote for him”? Did they say, “If he does win, he’ll never do anything like what his critics are worried about, anyway”? Did they think their Constitution, and the Rule of Law, would prevent it?

This (I think) is where Scott and I don’t see eye-to-eye. But it’s also where so-called SJWs (the misnamed “social justice warriors”) and I do not see eye-to-eye. If I could just get Scott to tell more jokes, I could pull in another set of lyrics here.

In any event, my musings about what it must have been like to live in 1930s Germany were never meant to say that Trump is “literally Hitler.” I’m concerned about the rest of us. Our lack of desire to maintain a free nation—free of governmental control, and free to pursue our own lives unfettered by the fears of fellow citizens.

The United States has, frankly, lost its mind. Consumed by avarice, too many of our “leaders” eschew the ways of the so-called “robber barons” of the 20th Century. These men—and, yes, they were pretty much always men—may have had their faults, but they actually gave a shit what happened to the world, and they cared about freedom not as a commercial, as part of their brand, but because they actually believed in freedom. Modern-day robber barons have none of the desire to improve society of these men, but all of their acquisitive drives for power and wealth.

The “old guys”—I’m talking Vanderbilt, and Carnegie, and others of their time—got rich as a side effect of creating things that improved society; guys like Trump don’t really create anything. To build their wealth, they use their names, branding Towers, and anything else that doesn’t move fast enough; and when in political power, fear. With more money than even God could spend, they’re nevertheless never satisfied, which is why they favor tax cuts over social programs.

The hoi polloi, or ordinary folk, just don’t get it. I’m not sure why. Maybe it is because, as Ron White said, “you can’t fix stupid.” Maybe it’s because of the warping of the American Dream, which today has people supporting the unbridled support of wealth by the aforementioned leaders because the hoi polloi really believe they will join that same club some day. The reality is the highest most of them will ever earn in their lifetimes—and that includes the doctors, lawyers, and architects—is earned in minutes, hours, or at most a few years, by those who control our nation.

Whatever the reason for this state of affairs, I worry about the State of the Union, and the union of the states. We are, and “literally” in some cases, ripping ourselves apart.6 And frequently over words. Ironic words, at that, given the way so many SJWs think their freedom of speech has been too long impinged.

Anyway, I’m getting side-tracked.

The tl;dr point of what I’m saying today is this: Trump isn’t Hitler. At least, he isn’t yet. Importantly—very importantly—he may never be. But, unfortunately, the United States—and we don’t seem to be alone in this—is working overtime to build the kind of world where, if he isn’t, someone is bound to come along who will be. And all the necessary tools to effectuate that reality are in place.

You want to stop it? Stop all the pointless marching and bitching about Trump’s latest twit. Listen to a few lawyers, who have been trying to warn you about the police state we’ve been building bigly for a very, very long time. Make actual phone calls, and write actual letters to your legislators. Work to change the laws that make seemingly unfettered Executive Orders possible. Let’s actually begin to limit the power of our government. And fucking VOTE!

Because Donald J. Trump isn’t the real danger in America. With apologies to my friends in the sex trade, he’s just the John for whom too many Americans, for far too little payment in return, are prostituting themselves.

Trump is just the new boss. And for the moment, he’s only building on the work of, and using the tools of, the old boss.

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Endnotes:

  1. Ecclesiastes 1:4-11 (English Standard Version).
  2. The Who, “Won’t Get Fooled Again.”
  3. And law school? No thinking involved. No learning. Just read a bunch of stuff, and you, too, can be a lawyer. Don’t worry about California’s Bar Exam, with its record-high failure rate. That’s probably just because law school’s not hard, but the test to become a lawyer is.
  4. KABOOM! Two cites to two different posts in one day! Take that, Greenfield!
  5. You don’t have to take my word for that. You can read what others have had to say about our defense of others elsewhere.
  6. However, even this isn’t something new under the sun.
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Who Needs Lawyers? https://rhdefense.com/2017/02/11/who-needs-lawyers https://rhdefense.com/2017/02/11/who-needs-lawyers#comments Sun, 12 Feb 2017 01:58:40 +0000 https://rhdefense.com/?p=11815 For some days now, so-called discussions have been occurring throughout the intertubes concerning “free speech.” Built upon years of confusion produced largely by the popular press, these discussions are almost all completely worthless, except from the standpoint of giving some people good (even self-righteous) feelz, and other people headaches. Attempts to explain by those who do have the legal background—law degrees, special training, courtroom experience—have been met with anything from disagreement to outright scorn.

Interestingly, some of this comes even from people who consider themselves experts in their own fields, such as anthropologists, and the Twitterati (who consider themselves experts on everything). Not that the two groups are necessarily identical: I’m just singling out two groups.

Key to the beliefs espoused by non-lawyers that they are as capable of evaluating statements about the legal aspects of “free speech” as are lawyers seems to (at least partly) rest upon a misunderstanding of the so-called fallacious “appeal to authority.” Philosophers can perhaps take almost as large a portion of blame for this sad state of affairs as can the rhetoricians. In the Western philosophical tradition, which is largely eschewed by modern Social Justice Warriors (SJWs), except when it comes to using Western philosophico-rhetorical tools like the so-called “appeal to authority fallacy” to shut down experts who oppose them, the argumentum ad verecundiam has been taught (at least) for centuries.

It has been misunderstood for just as long.

More Back Story for This Article

My decision to write this article arose out of a Facebook exchange. A friend, who is an anthropologist, had posted a thoroughly confused article by Katherine Cross, who may be a sociologist.1

My friend posted the article to Facebook along with this comment:

What free speech is and is not. Let’s not get this confused.

After reading the article, I said,

You mean the way this article writer is?

A little back-and-forth ensued with my friend saying, “No. The writer has it correct,” and me offering to shred my law degree and my (totally worthless for anything but showing that I am not thought stupid on First Amendment issues by at least one group of law professors) Witkin Award for a First Amendment course I took in law school. I had intended at that point to write a blog article on “free speech,” but Scott Greenfield and I began a short email correspondence about this conversation, after which he beat me to the punch.2

In any event, this resulted in a response of “Appeal to Authority?” to which I responded:

[T]he law is based on the appeal to authority. We call it precedent. Learning the acceptable ways to do it is why we go to law school. Some of us learn better than others, and pass the test to become lawyers.

I could have said that better; indeed, this article is meant to do so.

Finally, I said,

Arguments about humanity are a little different than arguments about law. Arguments about humanity aren’t prescribed, like law is.

And I could have said that much better: in fact, my point was perhaps so poorly made as to be almost wrong. I was challenged to explain that statement, and ultimately decided to write this blog post.

The “Argument from Authority Fallacy” Fallacy

The idea that anything that smacks of an “argument from authority” is a fallacy is itself frequently fallacious. Especially when it comes to the law, which actually depends on arguments from authority.

John Locke, in An Essay Concerning Human Understanding, in the Chapter on “Reason,” identified four degrees of reason, and said,

The first is, to allege the opinions of men, whose parts, learning, eminency, power, or some other cause has gained a name, and settled their reputation in the common esteem with some kind of authority. When men are established in any kind of dignity, it is thought a breach of modesty for others to derogate any way from it, and question the authority of men who are in possession of it. This is apt to be censured, as carrying with it too much pride, when a man does not readily yield to the determination of approved authors, which is wont to be received with respect and submission by others: and it is looked upon as insolence, for a man to set up and adhere to his own opinion against the current stream of antiquity; or to put it in the balance against that of some learned doctor, or otherwise approved writer. Whoever backs his tenets with such authorities, thinks he ought thereby to carry the cause, and is ready to style it impudence in any one who shall stand out against them.

As Locke notes, this method of “reasoning” is considered by some inappropriate, insolent, wrong. From this—and the apparently derogatory phrase “thinks he ought thereby”—it seems, we have developed the idea that appealing to authorities (that is, experts) is fallacious.

But Locke did not say it was a fallacy to appeal to authority. His statement is cautionary. In fact, appeals to authority, when there is reason to believe those authorities know what they are talking about are not only completely appropriate, but unless one is going to somehow become an expert on every possible area of knowledge all by one’s lonesome, they are necessary. What’s important to remember, as this Introduction to Logic says, is that it is not fallacious to rely on authorities; only to rely on improper authorities. In fact,

Ad verecundiam arguments are not necessarily fallacious even if the appropriate authorities are found to be mistaken.3

For example, while (appellate) courts overturn opinions that they deem to have been wrong, until they do so, those opinions must be followed by lower courts, or courts that aren’t overruling them, or attorneys who cannot overrule anything, as if they were right. The opinion itself might be wrong, but the appeal to authority that says, “we have to do it this way because the opinion says so,” is right; it is clearly not fallacious to do what the opinion says must be done “because it’s the law.”

The Framework of Authority

What makes someone an “authority”? The short answer is “anyone who knows more than you do on a particular subject.”

Courts follow this rule to a ridiculous degree. They step on the slope that says “anyone who knows more than jurors do on a particular subject” and slip all the way down to “whoever is deemed by a judge to know more than jurors do on a particular subject.”4

They aren’t necessarily—or even often—the same thing, at least when it comes to criminal law. The court rule leads to such idiotic atrocities as cops being deemed experts on gangs, including the history, sociology, habits, primary activities, etc., of gangs. In fact, so enamored are judges (and jurors) to this particular brand of an appeal to an improper authority that when defense attorneys hire people who really are experts on gangs, the cops’ uninformed opinions are usually taken over those of the real experts.

This makes sense only to those who have either not really thought about things, or who have so little education themselves that they don’t understand how people get to know the things they know to become experts.

Ignoring that real experts are ignored, at best this court rule endorses a view that anyone who is exposed to something you haven’t been exposed to is an expert on the matter. That, quite frankly, is just bullshit. It’s akin to saying that if you watch a lot of race cars, and someone else who also watches car races tells you what he (or she, but gang cops are usually males) has seen, you’re an expert on how race cars work. Or, as I once pointed out after voir dire of a cop proffered as a so-called “gang expert”:

In his job, he practices shooting his gun, engages in “vehicle” pursuits, tackles fleeing bad guys, arrests a lot of people, writes tons of police reports. Does that make him an expert on ballistics? physics? bad guys? spelling and grammar?5

By the way, the prosecutor proposed that under the law pertaining to experts, it did. Arguably, he was right in that the law is frequently deemed to say that an expert is “anyone who knows more than jurors do on a particular subject.” That shows you just how fucked up the law is.

But true expertise is not based on simply having watched a lot of cars, or firing a lot of guns, or writing a lot of reports. Would you trust a doctor whose training consisted of nothing but watching a lot of sick people die?

No. You want someone who has learned a discipline, like medicine. Not someone whose degree comes from Wikipedia, but someone who has learned from real and reputable sources.6 Such persons are properly deemed experts because they don’t just know what a race car looks like going around the track, but they understand some of the things like aerodynamics, air-fuel ratios, torque—I’m not a race car expert, so I can’t be more detailed than this. Medical experts don’t just watch people, or learn from other “health experts” on Twitter. They spend years studying the framework upon which medical knowledge is built: biology, chemistry, calculus, and other sciences. And then they start to study “medicine,” or specific things pertaining to what is known about what makes people healthy or sick. Some specialize, and begin to focus on a particular thing, like “everything you always wanted to know about kidneys, but were afraid to ask.”

Each discipline has its own framework of knowledge that must be mastered. Different types of disciplines require different levels—and types—of study in order to master those frameworks. And, finally, some disciplines can be pursued in different ways, for different purposes. You can become a pretty damn good cook by cooking a lot. But if you want to become a chef, you’re almost certainly going to have years worth of focused, specialized training to learn the framework. You can be a fairly decent photographer without studying the rule of thirds, understanding the inverse-square law of light, or other even more sophisticated issues relating to photography and photographic equipment.

Anyone who said that a father who cooked all the family meals for 20 or 30 years knew more than a certified chef would rightly be deemed ignorant. Most of us would prefer to hire the professional photographer who studied his craft rather than having Uncle Joe shoot our wedding. And you can read all the books on home health, vitamins, exercise; take care of as many sick family members as you like, but only an idiot would come to you for diagnosis and treatment after a rapid 40-pound loss of weight accompanied by anal bleeding.

How Law Is Different

I mentioned that I said,

Arguments about humanity are a little different than arguments about law. Arguments about humanity aren’t prescribed, like law is.

What I meant by that is that when someone (who may be an expert on “humanity,” whatever that may mean) says something about humanity, they are at best talking about something that has been “proven” to be true; i.e., is generally accepted by the relevant experts as not currently refutable. Or they may be hypothesizing, which will require investigation to prove the “truth” thereof. It’s not as if an anthropologist says, “This is how things are going to be with humanity” because the anthropologist deems that it will be.

Law is different. Laws state specifically that certain things will be, or not. Sometimes, they say why.

Basic legal principles like those under the rubric of “rule of law,” and stare decisis, require adherence to what the laws have stated, or to what courts have said those laws mean. In some cases, based primarily on the imprecision of language, there may be arguments over what those laws say, or what they mean, but there are rules for how that gets decided, too.

Nothing about the law in this sense is “discovered,” or hypothesized; it is prescribed.7 Someone may come up with a new and persuasive argument for why the law should change, or be interpreted differently in different situations. But they aren’t discovering something in the sense that an anthropologist (specifically an archaeologist) discovers a new bone, or finds evidence of a lost culture, or even hypothesizes about (say) power structures in an already-known culture. The anthropologist may invent a new theory, but the anthropologist isn’t inventing some other thing that did not previously exist; the anthropologist is coming up with a new way to explain or describe something that already exists.

Lawyers are not archaeologists unearthing previously unknown laws, which numbers of other lawyers then can use. They may be said to “unearth” a new argument, which if persuasive enough changes some portion of the legal framework resulting in a new prescription, in the sense of “the action of laying down authoritative rules or directions.” But they aren’t “finding” some legal thing that no one knew existed.

This isn’t changed just because more complex legal issues, with a richer textual history, require involvement of those who have not just the ability to read a specific legal text (statute, court opinion, treatise), and not just a knowledge of the context (predecessor texts, position within conceptual framework of both past and current related texts, and other related laws), but an understanding of the system of law itself.

As to that last point, I’m talking about things like standards of review, legal procedures, and presumptions, (among other things) which are themselves also based on previously prescribed rules. So another thing that makes law different from some other discipline (like anthropology) is that law actually prescribes how you get to think about, and “do,” law. But while there is some foundational knowledge involved in “doing anthropology,” I’m not aware that there is anything that says “your theory, which appears to have very high explanatory value, is incorrect because you didn’t follow the proper procedure.”

Again, law is not “discovered.” It is not something that happened on its own by means we have to figure out, like Darwin did with On the Origin of Species. Learning these things is a matter of studying “law” generally, and “the laws” of a particular jurisdiction in which one plans to practice; studying things that exist because we made them exist.

How Law is the Same

Here we circle back both to what I said in the section on frameworks, as well as to my comment that my original statement about how law is different was poorly stated, and “almost wrong.” The lines I implied between making “arguments about humanity” and “arguments about law” aren’t quite as well-demarcated as I’ve implied.

There are ways in which the study of law, the making of pronouncements about the law, and arguing about the law with people who are not trained as lawyers is the same as studying humanity, making pronouncements related to humanity, and arguing about humanity with people who are not trained in…whatever being trained in “humanity” might mean. Let’s just say “anthropology” to delineate things a little better.

There is a body of knowledge, starting (as I mentioned above) with some very basic foundational knowledge, that people must have to intelligently argue about anthropology. If you haven’t learned it, you might as well concoct your anthropological theories the way astrology “experts” do: just make shit up, and convince people to buy into it. And the more you move beyond the foundations of anthropology, the more your expertise is going to matter, relative to the non-expert. Law is the same.

Similarly—again showing the implied lines aren’t as sharp as initially implied—there are different schools of thought in anthropology: diffusionism, evolutionism, Marxist anthropology, cultural relativism, etc. Law is the same: there are different schools of thought in law: textualism, originalism, the “living Constitution,” and so on.

In anthropology, there are thinkers with whom you should be familiar: Benedict, Boas, Geertz, Levi-Strauss, Mead, Radcliff-Brown, and so on; in law, Black, Marshall, Brandeis, Brennan, Holmes, Black (again).

Conclusion

This article is so damned long now that I’m fighting with myself over whether I should split it into parts. But, to be frank, I don’t like doing that, so I hope you’re still here. (Or maybe you skipped to here, which would be a bummer, because I think you missed some good shit.)

Whether you agree with me that law is different than other disciplines, like anthropology, or you disagree, and think they’re the same, I think my ultimate point still stands. If an actual lawyer, and especially one whose work focuses on constitutional issues, says that a non-lawyer’s article about a constitutionally-enshrined principle like “free speech”—and I could easily do a whole ‘nuther article on what that phrase even means—is confused, there’s a better-than-pretty-damn-good chance that it’s confused.

Why? Because being educated in a particular field matters. Because law—as opposed to the text of a particular law—isn’t just something you can Google. And because not only should you not hire an anthropologist to defend your right to free speech in a court of law, even if you did, it wouldn’t be allowed, and that law came into being for reasons very much like what I’ve written above.

So who needs lawyers? I guess it depends on what you really want. But if what you want is an informed commentary on law, you probably need a lawyer. If you’re in a situation where you need to (legally, as opposed to just arguing with someone) defend your right to free speech, you need a lawyer. And if you go to court for any other reason? You can try to defend yourself because you know oh so much better than a lawyer, but doing that would be like asking an anthropologist how to treat your sudden 40-pound weight loss and anal bleeding.

At that point, somebody is going to be pulling things out of their ass.

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Endnotes:

  1. Scott Greenfield (aha!) addresses the article in “A Sociologist’s View of Free Speech,” so I won’t.
  2. I really do think that one reason I don’t write as much anymore is that I almost always find that the things I want to say have already been said by Scott. Call it a lack of imagination on my part. We both have similar interests; we both follow current events; and I just don’t feel driven to repeat what he’s already said.
  3. Underlined words were italicized in original. Since this blog’s style of blockquoting uses italics, I have underlined them.
  4. And sometimes it’s not even that. Sometimes it’s “whoever is proposed as an expert by the prosecution (this is very one-sided, as things frequently are in the so-called “justice” system; defense experts don’t usually get the same pass) when there is no objection.”
  5. Anyone who reads police reports knows that cops may be a lot of things: experts on spelling and grammar, they are not even remotely.
  6. Which, incidentally, frequently involves another way of appealing to authority: teachers.
  7. That’s why on some simpler legal issues, computer programs and pre-printed forms can satisfy legal needs.
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The So-Called Rule of Law https://rhdefense.com/2017/02/04/the-so-called-rule-of-law https://rhdefense.com/2017/02/04/the-so-called-rule-of-law#respond Sat, 04 Feb 2017 23:03:14 +0000 https://rhdefense.com/?p=11764 In the aftermath of what appears to be a not-well-thought-out xenophobic executive order banning—or pausing, or just plain being confused, which goes back to the idea that it was not-well-thought-out—anyway, in the aftermath, a number of judges have issued stays. Thus, the Donald is learning that executive orders notwithstanding, He’s not—not yet, anyway—the Supreme Ruler in the sense that say, Putin, or Kim Jong-un, are Supreme Rulers of their respective disreputable countries.

And His predictable response?

The probably also predictable response of the twitters is to point out that he’s not a so-called judge, anymore than He Who Believes Himself King is a so-called President; that is, in the same sense things became trumped up, and the Donald is actually President, so, too, the judge is actually a judge.

And there is, of course, celebration.

The Constitution prevailed today.

This is newsworthy because, on any given day, contrary to the hopes, dreams, and desires of so many lawyers, and ordinary citizens, the Constitution does not usually prevail. As Scott Greenfield1 noted in “Will The Crime Of Hallways Finally Be Over?”:

So judges were outraged by this flagrant violation of constitutional rights? Nah. Not one.* Not a single judge took issue with it. It’s not that the unconstitutionality of seizing someone because a landlord signed an affidavit forfeiting other people’s rights (no, you can’t, but yes, they did) wasn’t argued. It was. And it was rejected. Suppression denied.

In the footnote denoted by the asterisk, Scott adds:

Non-lawyers and academics ponder where the appellate decisions are that provide the basis for these programs. Trench lawyers shake their heads. These cases never made it to appeal, as they were pleaded out quickly to short-time sentences and the defendants rarely had the funds or desire to fight cases on appeal.

But that’s really just fluff. Appellate courts are only slightly more willing to honor the Constitution, and then usually only because sometimes they write out their reasoning. And reasoning that the Constitution doesn’t apply when it clearly does takes a bit of creative writing.

Not that appellate judges don’t enjoy a bit of creative writing from time to time. It’s just that unless they’re going to go with their infamous postcard denial, some of us would occasionally see that the Emperors have no clothes.

Another small exchange of twits evolving out of these thoughts is what finally caused me to write this blog post.2 Twitter is a piss-poor environment for any decent explication of one’s thoughts. For me, anyway, I end up writing something that is too long for a single twit. So I can go back and try to re-word it, or cut words, or try to guesstimate how many twits I’ll need to get it all out, and insert the “1/3, 2/3, 3/3” notation. Nearly always I end up with something less satisfying—and readily subject to being picked apart by pithier writers than me.3

So….

At some point in the discussion, I said,

There followed the back-and-forth betweets betwixt myself and Mark Bennett—who is (and I am not being sarcastic here) eminently smarter than me—wherein Mark took issue with me.

If I’m understanding his comments correctly, Mark disagrees that either “who the judge is” matters, or “whence came the appointment” matters, or both. Then he said that I was committing an error in logic, because it’s entirely conceivable that the law might not matter, and the identity of the judge could still not matter.

And, of course, it is absolutely conceivable. It’s just not often the case. Further, my saying that when the law does not matter the judge does, or agreeing that when the judge matters the law does not—and I agree with both statements—well, that does not necessarily negate the possibility that “whence came the appointment” does not matter. These are all different things.

Frankly, I think the judge always matters. I think this primarily because judges are people, and despite our best hopes, desires, aspirations, or whatever else you want to call it, people are not driven by emotionless logic. If it were all about logic, books on advocacy and persuasion would not talk about the importance of things like getting people to like you—what difference to logic does it make whether you are a nice guy, or an asshole? The judge always matters because even if the law matters to the particular judge, that is not all that is going to drive his decisions. And much of what drives him is going to be unknown to him, and possibly unknowable to those before him.

Don’t take my word for it: read a little on the neuroscience of decision-making from people like Jan Gläscher.

As much as we’d like “the law” to be decided “logically”—whatever that really means—the fact is that the law is a mechanism for regulating human behavior. Someone—a bunch of someones, actually, including people who vote, legislators, and people who interpret what these others intended—make decisions about what behaviors to regulate, the degree to which to regulate them, and what should happen when actors do not behave in accordance with the regulatory scheme (i.e., the law). Our arguments for many (most? all?) laws are ultimately based on our moral views. Punishment—meted out by judges—involves making moral decisions. And,

moral decisions, compared to non-moral decisions, engage emotions, especially when one is required to consider the consequences of one’s actions for another’s well-being.4

I can’t think of many things that involve the well-being of others more than sentencing. There will be consequences to the well-being of victims, families of victims, defendants, families of defendants, as well as possibly that of prosecutors, police officers, other witnesses; all impacted by the decision of the judge.

And not every judge has the same proclivity on a particular issue as another. Lawyers in Fresno, where my law office is located, know that you don’t want certain judges hearing theft cases, and you don’t want certain judges hearing sexual assault cases, and so on. Some judges are sticklers for rules, including rules of procedure and evidence, while others are not. In California, Penal Code section 170.6 exists at least partly in recognition that the judge sometimes matters.

It is a separate question whether “whence the appointment came” matters. As a starting point, I realize—since I started writing this, and have continued popping in and out of Twitter—that the question of whether or not “whence the appointment came” (in the context of the discussion, whether it matters that the appointment was made by a Democrat, or a Republican, and possibly whether it matters that the appointment was done by a particular Democrat, or Republican) was vague and ambiguous in the Twitter discussion. Two twits made this clear.

On trying to make sense of this, I realize that one could take a statement that it mattered “whence the appointment came” to mean that whether or not one should be bound by a judge’s decision depends on who appointed the judge, or it could mean that how the judge rules on the legal issue depends on “whence the appointment came.” As to the latter proposition, even in our current “rule of man, and not of law” system, that’s bullshit. Even we have not (yet) gone so far as to say that we will ignore a judge’s ruling depending on who appointed him. As to the former proposition, while I think that “whence the appointment came” is sometimes an indicator of which way you might expect a judge to rule, it’s absolutely not foolproof.

In any event, the politicization of judicial appointments has had an impact on the courts, including on matters of criminal law. And even those who deny it affirm it.

Is Gorsuch the dream justice for criminal defense? Of course not, but then, neither was Sotomayor, Kagan or, for that matter, the Notorious RBG, who is adored when she’s not being hated. But nobody suspected that William O. Douglas or Thurgood Marshall would be resurrected to be Nino’s replacement, so no tears are being shed.

The range of difference may be narrower—Gorsuch versus Sotomayer, Kagan, or NRBG—than in the days when we could have a Douglas, or Marshall. But politics has always determined the future of our courts because “whence the appointment came” matters in the sense that a particular party is going to be responsible for placing judges on the bench. They’ve always done this based on whether the candidates for the position favor, or are inimical to, their party’s views on what courts should do.

But how does all this factor in to the issue of whether the judge matters, or the law matters?

It’s because the rule of law is dead. To the extent the rule of law ever did live in the United States, it has been dead for some time. Scott Greenfield’s post I quoted from above is just one of many stories that could prove that point. As Scott stated,

Eventually, the program [that had driven judges to ignore constitutional violations by cops] began to fall out of favor, and some judges started refusing to abide the program.

In cities around the United States, the same thing has happened, and continues to happen. I’ve said this before: I’ve lost track of the number of times people call, or come to my office, wanting to hire me because the cops came into their homes, without warrants, and searched for something, or someone. After almost any given gang-related crime, in particular, Fresnans will hear on the news about the police having apprehended—usually quite quickly—the gang members who allegedly perpetrated horrendous crimes.5 What you don’t hear is how the police apprehended them. It wasn’t a piece of brilliant police work: too often they did it by tossing a neighborhood. In other words, door-to-door searches, without warrants, which are per se unconstitutional. But there is nothing I can do for people who come to me with these complaints: I’m a criminal defense lawyer. I don’t even know if a civil rights lawyer could do anything about it: who’s going to entertain a lawsuit for cops coming into a poor brown or black person’s home, searching, making no arrests, and then leaving? I sure haven’t seen it.

No, the rule of law is dead. In too many cases, we have to rely upon the luck of the draw regarding judges—some will favor a particular program, some will not, and programs themselves will come in and out of judicial favor. To that extent, I say to Mark Bennett, yes, there’s a certain amount of relying upon the dice. Is it totally a throw of the die on judges? No.

Dice matter with regard to criminal defense lawyers, too, by the way. Some have more persuasive ability of than others. But as I’m now approaching 2200 words, I think this post has gone on long enough.

But one last thing: I do worry that Trump is going to take this problem of “who the judge is” to a whole new level. He’s already shown a willingness to criticize a judge based on ethnicity. And now we have Him referring to another member of the judiciary as a “so-called judge.”

Which, when you think about it, is a perfect fit for—and a further enhancement for—the so-called rule of law.


Endnotes:

  1. Yeah, don’t expect that many of my posts will not mention him, since I read his blog almost every day, and when I don’t get to, I go back to read what I missed in a binge-read. Sometimes he reads my blog, too, so it evens out. Or, it would, if I wrote more.
  2. As I write this post, that small exchange continues to grow.
  3. Though sometimes it’s just a disagreement. And, of course, I’m always right. And they’re always right. (That is kind of inherent in the idea of “disagreement,” isn’t it?)
  4. Naqvi, et al, “The Role of Emotion in Decision Making: A Cognitive Neuroscience Perspective” found at https://www.researchgate.net/profile/Nasir_Naqvi/publication/228449030_The_Role_of_Emotion_in_Decision_Making_A_Cognitive_Neuroscience_Perspective/links/00b4952f8de79aa59b000000.pdf, last visited 2/4/2017.
  5. They’re always horrendous, according to the reports, regardless of what they are.
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A Dookhansian World https://rhdefense.com/2016/11/27/a-dookhansian-world https://rhdefense.com/2016/11/27/a-dookhansian-world#comments Mon, 28 Nov 2016 00:51:00 +0000 https://rhdefense.com/?p=11648 In today’s world, I have serious doubts I can expect anyone to get the reference in my title, so I’m going to start off by ruining the punchline on the headline right here: it’s a play on the idea of a Dickensian world, which is defined in the Cambridge Dictionary (and who should know better?) as

relating to or similar to something described in the books of the 19th-century English writer Charles Dickens, especially living or working conditions that are below an acceptable standard:

The bathrooms in this hotel are positively Dickensian – no hot water and grime everywhere.

In an old piece of news, dating back to ancient times—2013, to be exact—Annie Dookhan, described as “an ambitious state chemist,” set out to “prove her worth.” She was enabled in her quest by a set of working conditions that were below an acceptable standard.

Yeah, I know: not the world’s best joke. But at least you know I care enough to try.

Anyway, Annie loved her job, you see. But the job where Annie got her fun involved working as a chemist in the drug analysis unit that tested drug evidence submitted by law enforcement throughout the state of Massachusetts. Over an unknown period of time—she was hired in 2003, promoted in 2005, and resigned in 2012—Dookhan’s “work product was consistently the highest in the lab among her co-workers.”

There was just one problem. It appears that Dookhan’s ability to generate the “highest” work product depended upon her ability to skip the work part. And if someone started to dig a little too deeply into what she was—or, rather, wasn’t—doing, she covered her tracks with a bit of photoshopping. In other words, she created fake work product that looked enough like the real thing to pass in court. One example in the Statement of the Case went as follows:

[I]nvestigators found a discovery packet that had been emailed to a prosecutor for a pending criminal case that contained an altered test. In that packet, Dookhan submitted a print out for a test designed to quantify the drug sample. In organizing the discovery information, the defendant realized that she had not printed out, or never ran, the quantifying analysis. To cover this mistake, the defendant ran the test using that the [sic] case sample number and submitted it with the discovery packet. The defendant obliterated the date the test was run. This particular machine has no capacity to save past analyses and the print date on the bottom of the document states May 5, 2011, nearly six months after the drug samples were returned to the submitting police agency.

I used the term “photoshopping” above to describe what Dookhan did. Adobe wants to remind people that, well:

Trademarks are not verbs.
Correct: The image was enhanced using Adobe® Photoshop® software.
Incorrect: The image was photoshopped.

But, strictly speaking, that ship has sailed. The genie is out of the bottle. Words happen. And Collins Dictionary online defines “photoshop” without the registered trademark sign, thusly:

verb -shops, -shopping or -shopped
(transitive) trademark[;] to alter (a digital photograph or other image), using an image editing application, esp Adobe Photoshop

Jet ski through the tears, there’s no way you’ll ever scotch tape that broken rule back together. Xerox it all you want. Fax it to violators. “Photoshop” is something we do as much as a software product we use.

Photographs have been susceptible to photoshopping since before there was a synonym for “altering” that could be applied specifically to the photo-pictorial medium. Two images from the linked article bear insertion here.

TV Guide cover: Oprah

In 1989, TV Guide’s cover image of Oprah Winfrey would not have been revealed to be a fake, if not for the sharp eye of a fashion designer, who recognized the dress from a 1979 publicity for Ann-Margret.

Kerry & Fonda fake composite

When Kerry ran for President, a composite was created to cast him in bad light, as Fonda is hugely disliked by military families for her anti-Vietnam crusade.

In fact, we can go back even farther:

Ulysses S. Grant fake

Click to Enlarge

Photoshop has just made it one heckuva lot easier to create fake photos to tell fake stories.

Photoshop itself has allegedly played a part in helping to solve crime. Sometimes indirectly. And in at least one case I found from 2009, a Tennessee man was arrested for his Photoshop activities, and charged with “aggravated sexual exploitation of a minor” for photoshopping pictures of underage girls onto adult female bodies. This is despite the fact that the United States Supreme Court ruled in 2002 that “virtual child pornography” in which no actual children were harmed, was protected speech that did not constitute a crime.1, 2

Other than that, though, a somewhat-exhaustive search I’ve done of the Internet, and of case law via Lexis, reveals no instances where photoshopped images have altered the outcome of a criminal case. There have been some problematic cases, such as the Connecticut case of State v. Swinton, where bite mark evidence was overlaid using Photoshop to show a “match.” That case almost certainly has other issues more problematic (e.g., the fake science of “matching” bite marks) than the Photoshop issue. In any event, while there was a complaint that the method for “enhancing” the photos falsely increased the appearance of a match, there was no accusation that I recall of any deliberate use of Photoshop to falsify the evidence.

In short, I didn’t really find any cases—though given our modern “professional” police force, I would not be shocked to hear it existed—of deliberate falsification of evidence using Photoshop.

Which is a good thing, because while some viewers have become more sophisticated about fake photography, so has the ability to create realistic-appearing fakes. Moreover, the world really is a strange place, and sometimes things are just as they appear in photographs of them, however unbelievable that may be.

Fire-ravaged utility pole

Fire-ravaged utility pole is held up by the tension of the wires. (No Photoshop.)

Zony, or, more correctly, a zebroid

Zebroids like this were even mentioned in Darwin’s “Origin of Species” (1859) (No Photoshop.)

But this does not put my concerns to rest.

Using Photoshop to manipulate images in an undetectable manner still requires at least some amount of skill to pull off. Additionally, I’m just not aware of that many cases where a photograph, by itself, was enough to make, or break, the case. It’s entirely possible that the reason we haven’t seen this problem in criminal cases is that the combination of the difficulty in pulling it off, plus the probably minimal payoff it would bring, just makes it not worth the effort.

But now….

Previewing the app at the Adobe Max 2016 software expo last week, researcher Zeyu Jin from Princeton University showed just how easy it will be in the near future to manipulate and transform sound files – and in extreme cases effectively put words that were never actually said into people’s mouths.

I’m not sure why the article says, “and in extreme cases.” I saw the demo. If by “extreme,” they mean “with a little work,” that’s not it at all.

By simply copying and pasting in the text window – with no other editing techniques needed at all – Jin … changes the recording….

That’s right. Unlike with Photoshop, it does not appear that you need to have any special knowledge of how to use the program. No special tricks. No special filters. No add-ons, or plug-ins.

Adobe hasn’t explained how this technology works just yet, but the software seems to identify and log phonemes – the individual speech sounds we put together to make up words and sentences.

With the right amount of sound data on file – which Adobe says is about 20 minutes of one person talking – VoCo will have actually recorded enough of these phonemes to basically impersonate that person, by stitching them together into new word and sentence formations.

My initial reaction to seeing this last night was horror. While everyone else was talking about how neat this was, how cool this was, my only thought was that “false confessions” just took on a whole new meaning, and I wondered about the potential for their increasing use to obtain convictions.

You might trust the police. I don’t. I’ve been a criminal defense lawyer long enough to recognize that police do lie. The FBI recognizes the potential enough to suggest documentation techniques when it comes to chain of custody, and other factors, relating to digital imagery. The ability to fake evidence that depend on computers has been raised even in DNA cases. For that matter, the FBI itself has finally admitted to having essentially created an entire fake field of forensic science that resulted in virtually every “examiner” in that field giving “flawed” testimony in “almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”

The fact is, police officers lie. When they’re being honest, they admit it. Judges know it. One astonishing study made clear that even prosecutors know:

[This] study is stunning because, unlike many of the comments on this issue, Orfield’s findings are based on the views of prosecutors and judges as well as those of defense attorneys. In his survey of these three groups (which together comprised twenty-seven to forty-one individuals, depending on the question), 52% believed that at least “half of the time” the prosecutor “knows or has reason to know” that police fabricate evidence at suppression hearings, and 93%, including 89% of the prosecutors, stated that prosecutors had such knowledge of perjury “at least some of the time.” Sixty-one percent, including 50% of the state’s attorneys, believed that prosecutors know or have reason to know that police fabricate evidence in case reports, and 50% of the prosecutors believed the same with respect to warrants (despite the fact that many prosecutors refused to talk about this latter area). While close to half of all respondents believed that prosecutors “discourage” such perjury and fabrication, a greater percentage believed that they “tolerate” it, and 15% believed that prosecutors actually “encourage” it. One former prosecutor described what he called a “commonly used” technique of steering police testimony by telling officers “[i] f this happens, we win. If this happens, we lose.” Most amazingly, 29% of the respondents did not equate lying at a suppression hearing with the crime of perjury.

Any reasonable person realizes that police lie for the same reasons other human beings lie: they have reasons to lie, and they get benefits from it.

But even if you trust police, how do you feel about people going through nasty divorces? Again, I’ve lost count of the number of men I’ve defended against false accusations of domestic violence, especially during a breakup or divorce.

And, guess what? Not only is it difficult to win such cases in some areas—after all, our culture has devolved to the point there “innocent unless proven guilty” has become “why would victims lie?”—but women who are able to get restraining orders, or protective orders, are expressly given permission to record any interactions with the restrained person. By “expressly,” I mean the law allows it, and judges tell women that.

What are the chances some semi-intelligent, wholly-vindictive, woman is going to provide law enforcement with a recording showing a criminal threat was made against them when, in the real world, no such threat was made?

Adobe says it is aware of the potential for misuse with Project VoCo, so is already working on technologies that will make it possible to detect if a recording has been tampered with – such as embedding hidden audio watermarks, which could potentially trigger voice security features used in systems like digital banking.

Swell. I guess there’s nothing to worry about then.


Endnotes:

  1. Lexis indicates that the Beatty case was superseded by statute as noted in United States v. Beatty, 2009 U.S. Dist. LEXIS 121473, but that does not appear to be true.
  2. Japan has recently taken a different view on that.
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W(h)ither Free Speech https://rhdefense.com/2016/11/25/whither-free-speech https://rhdefense.com/2016/11/25/whither-free-speech#respond Fri, 25 Nov 2016 23:02:55 +0000 https://rhdefense.com/?p=11625 For many years now, it has seemed—at least to myself, and many of the people I have talked to about it—as if freedom of speech is the Final Frontier. Unlike the Fourth Amendment, Amendment One has been the one amendment that has remained beyond the stranglehold the government, with courts aiding and abetting the diminution of the former, but continuing to support the latter.

It may be that this was an illusion, and that all along there was a building current ready to sweep away this remaining bastion of constitutionally-shielded rights privileges.1

In any event, all that may be about to change. Freedom of speech is about to be parceled out, with the lion’s share going only to those deemed deserving of the privilege.

In Burnet County, Texas, the San Antonio Police Department posted about the arrest of 31-year-old Otis Tyrone McKane, accused of the cold-blooded murder of Detective Benjamin Marconi as he sat in his car writing a traffic ticket for someone else—not McKane—during a traffic stop. McKane pulled up behind Marconi’s car, walked up to the passenger side, and shot him twice in the head because he was angry at not being allowed to see his son.

“I lashed out at someone who didn’t deserve it,” McKane said. ” I’ve been through several custody battles and I was upset at the situation I was in.”

McKane wants to say a couple of words, to apologize to Marconi’s family.

But that’s the difference between actions, and words. Actions have real immediate effect—sticks, stones, bullets—and Marconi is dead. One suspects no amount of words from the man who apparently admits to murdering him is going to make the family feel better.

Burnet County Judge James Oakley, on the other hand, gets to apologize. The judge posted improvident words in response to the San Antonio Police announcement.

Oakley shared the Police Department’s Facebook post about McKane’s arrest. In the comments, he wrote: “Time for a tree and a rope…”

But the San Antonio police were apparently unmoved by these words, having already uneventfully stopped a car in which McKane was riding with a woman and a small child, and having merely arrested McKane without anyone being lynched, or even shot.

Judge Oakley was not arrested, despite the obvious import of his words. Aside from the fact they were mere words, they are words that might find broad support in an area where the police strive to make America great again. Maybe.

To be fair, notwithstanding the hat incident, San Antonio appears intent on making sure it takes seriously the job of protecting and serving, rather than just controlling. Officers there have been disciplined for such acts as trying to serve a shit sandwich to a homeless man. And while their statistics on use of force appear to show that such use is increasing, this is because of a move towards greater transparency. In 2014, use of force reports increased to 1,189, from 573 in 2013. And while this might initially seem to contradict my point about San Antonio’s chief, there’s a reason for this dramatic increase that belies the idea of a police force having flipped out:

“We take a hard look at our use of force and injuries that we cause, and at that time, ‘takedowns’ were not counted as part of use of force,” SAPD Chief Anthony Treviño told the Current. “But we realized that as a result of officers taking people down, that it was causing injuries. So we thought it was important as an organization to capture that information.”

And so cop-killer McKane lives to experience due process. Hopefully not in Judge Oakley’s courtroom.

Meanwhile, in Dallas—on the other side of Burnet County from San Antonio, the unfortunately-named Babak Taherzadeh sits in jail for posting improvident words. I say “unfortunately-named” because his name isn’t something white, or judge-sounding, like “Oakley.” In its place, he has a rather common Iranian name, and one cannot help but wonder if that doesn’t have some impact on what has happened with him. I think it’s more likely Taherzadeh is being treated differently than Judge Oakley because one has the word “Judge” in front of his name. But the fact is that race has an impact on how one’s words are perceived.

The sender has a message he or she intends to transmit, and s/he puts it in words, which, to her/him, best reflect what s/he is thinking. But many things can intervene to prevent the intended message from being received accurately.

At any rate, unlike the judge, whose words said that it was time to kill lynch someone, Taherzadeh had a personal dislike for the judge, and posted a comment suggesting people pray for the death of the man he didn’t like. Skill with words is one of those things that can intervene to prevent an intended message from being received correctly, as is anger.

In a second bit of misfortune, the man Taherzadeh disliked turns out to be a judge. Possibly a rather fragile one, at that.

“Since all this began, Birmingham has become exceedingly paranoid and has changed his daily habits,” the warrant says. “Given the escalating nature of his bizarre fixation on [Judge] Birmingham and his family, his abusive and sexually violent language, his threats, and his delusional ideations, Birmingham is in fear for the life of his family and for his own.”

As examples of the “abusive and sexually violent language,” the story tells us that Taherzadeh asked Twitter followers if they wanted to see him “bitch slap” the judge, adding that he was not someone to be trifled with, that he asked people to pray for the judge to die—like that’s going to work—and that he complained to Radley Balko about the judge threatening to lock him up for using social media.2

One can understand why a judge might become paranoid over such nasty “sexually violent language”3 as “should I bitch slap him?” After all, one judge is not an entire class of people such that you can suggest it’s just a manner of speaking, the way you can with blacks who complain about posts promoting lynching.

But this points to an interesting problem with actions, and speech, interpretation, race, and everything else that rightfully goes into the mix here.

Like it or not, election or no election, wall or no wall—lists, camps, deportation, or none of these—we live in a multicultural, land of the somewhat free, home of the kind-of brave (but not to your face). Sometimes, the things people say they are going to do are clues to future behavior. Sometimes, they aren’t. And sometimes—our current PEOTUS comes to mind—we might find things increasingly confusing, and decide we have to adopt a wait-and-see approach.

The problem here is that unlike with actions, where you can point to an instance with a real-world consequence, we can’t always know which of the above-three situations is controlling just going off the words.

Sure, bitch-slapping a white judge sounds a lot more violent than, having captured a black man, suggesting we dig out the noose and look for a good tree. It’s a matter of perspective, no?

In reality, though, it’s all words. And while I see nothing wrong with castigating someone for their words—especially a white judge making statements about blacks, nooses, and trees—words are not actions. They’re not even extremely good indicators of actions—past, present, or future.

This is why freedom of speech, even for ignorant, angry, stupid speech, is so important.

In Fresno, California, where my law office is located, it’s not uncommon to see people arrested for an argument, and because in the heat of it they said, “imma kill you!” they end up charged with a felony for “criminal threats.” The fact of the matter is that 999 times out of a thousand, these are just words. And nothing more. Nobody gets killed. Indeed, the “victim” survives long enough to call the police, and (not infrequently) continue arguing with the potential murderer until they arrive.

And now we have a new President. A man known to have extremely thin skin, and a strong dislike for a free press, and protesters.

I can’t wait to see how long it takes our final privilege in the Bill of Privileges to go the way of the rest of the Constitution.

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Endnotes:

  1. You can’t really call them “rights” anymore. Rights are something you have by virtue of simply being; privileges are granted to you, begrudingly, or not, by temporarily complacent rulers. Perhaps out of benignity, or perhaps because their plan to benight the public’s perception of fragmentary freedom has yet to reach fruition.
  2. No doubt, it was that last item that caused the greatest alarm.
  3. In the absence of any other examples, I’m guessing that the use of the word “bitch” made this “sexually violent.”
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Send in the Clowns https://rhdefense.com/2016/09/30/send-in-the-clowns https://rhdefense.com/2016/09/30/send-in-the-clowns#respond Sat, 01 Oct 2016 01:57:32 +0000 https://rhdefense.com/?p=11583 Americans are freaking out over non-existent killer clowns. Again. This isn’t news. Not anymore, if it ever was.

Since the early 80s, there have been several localized rumor-panics in North America and Europe involving sightings of phantom clowns attempting to kidnap children. They have also been referred to as Killer Clowns and Kidnapping Clowns. At first glance, it would be tempting to think that there may be a group of criminals dressing up as clowns. Yet, when you examine the reports, a curious trend appears: they are almost never caught, and vanish into the shadows. There is also a lack of tangible evidence. All police have to go on is eyewitness testimony, which is notoriously unreliable, especially given that most witnesses are children. Another curious fact is that the children always seem to get away. The clowns appear totally incompetent. (Robert Bartholomew, Ph.D., “Phantom Clowns in South Carolina Are Nothing New: Killer Clowns From Your Imagination,” Psychology Today (August 31, 2016).)

But if there’s one thing people who relish moral panics hate, it’s being told they’re wrong.

I posted something about this idiocy—and that’s what it is, idiocy—on my Facebook page, and wounded idiots, such as a car washer from Texas, were so infuriated that they decided to try to ruin my online reputation by giving me 1-star reviews.

Let’s take a very brief sidetrack here: if you’re picking your attorney because of how many “stars” they have on Facebook, you deserve the prison sentence with which you’re likely to end up. And if you listen to car washers from Texas when deciding on hiring an attorney from California, you deserve what you get in spades. At any rate, I’ve fixed that problem: leaving reviews, either negative or positive, on my Facebook page is no longer possible.

So, back to the other clowns—the ones who don’t eke out a living washing cars in Texas.

Kids who used to never be a problem before, because they were so scared of the monsters hiding under their beds that they couldn’t get out of bed to bother the rest of us, now have access to the Internet.

Unsurprisingly, these kids—being complete failures in their own lives—need to disrupt the lives of others. One of the ways that they find the most entertaining are by scaring the shit out of as many people as they can. They might do it by campaigning for President on the idea that Muslims must be banned from the United States, and possibly put into interment camps if they’re already here. They might do it by trolling people online. Or they might make a few phone calls and swear that they’ve been attacked by the world’s most enigmatic clowns.

It’s like they’re trying to get even for all the times the boogeyman in their own closets caused them to piss their pants.

And the media is complicit in the spread of bogus reports.

People are telling the media and police that they’ve seen sinister clowns near forest, offering children money and luring them into the woods.

The clown sightings have continued for days, but so far, there’s no photographic or physical evidence of any malicious clowns.

Despite the lack of hard evidence, media in the United States, Canada, and overseas are running with the story.

The media, of course, isn’t doing this all by their lonesome.

“Everything had been on Facebook, with people creating these names like ‘LaGrange Clown’ or LaFayette Clown’ or whatever. Pick a city and put clown on the end of it,” said Sgt. Stewart Smith of the Troup County Sheriff’s Department. “All of that was over social media.”

There’s just one problem:

We never had any direct contact – any vehicles, anybody ever dressed up like a clown, or anything like that.

But that’s how moral panics work.

Moral panics are not about reality: they’re about perception. Moreover, they are a natural product of a torn society, rather than any actual activities in the real world.

Events are more likely to be perceived as fundamental threats and to give rise to moral panics if the society, or some important part of it, is in crisis or experiencing disturbing changes giving rise to stress. The response to such threats is likely to be a demand for greater social regulation or control and a demand for a return to ‘traditional’ values. (Kenneth Thompson, Moral Panics 8 (1998).)

If ever there was a society in crisis, or experiencing disturbing changes, it is ‘Murca in 2016. The political divides between us, which have become extreme, make this clear. As David Post posted on the Volokh Conspiracy,

we are really, finally, collapsing into separate camps, each with its own favored newspapers, and websites, and TV news channels, and so on, and across whose boundaries nothing passes.

And with this collapse comes the event horizon, or, more accurately, a radical fear of anything outside of our own event horizon.

‘Murca is coming to the end of the second term—yep, second, because the majority thought he did a good enough job to deserve two terms—of its first black President, has seen unprecedented advances in the recognition of rights of gay, bisexual, transgendered and other individuals. Hillary Clinton has won the Democrat nomination, and—depending on which bubble you live in—stands a better than average shot at becoming the first woman President. Too many people who have been in the majority, and enjoyed a privilege they do not deserve because, though white, they are ignorant fucks, are individually shitting their pants, and collectively shitting on the real, if heretofore unrealized, ideals of the United States: a world where everyone can enjoy life, liberty, and the pursuit of happiness.

It is this type of milieu that specifically calls for—that needs, that craves—a moral panic. Moral panics are stress relievers for people who feel their world is spinning out of control. It provides a boogeyman on whom to pin their fears, and a target to punish them out of existence.

The rapidity of social change and growing social pluralism create increasing potential for value conflicts and lifestyle clashes between diverse social groups, which turn to moral enterprise to defend or assert their values against those of other groups. (Thompson at p. 11.)

The problem with moral panics, though, is that they distract us from working on real-world problems. While we’ve got our panties all in a bunch over phantom clowns, we’re not paying attention to real dangers, like cops who won’t quit killing unarmed black men because their SWAT trainers teach that you have the best sex of your life after killing someone.

Or, worse yet, we could end up with a few dead clowns. And perhaps a few more piss-poor laws, aimed at banishing phantom clowns in order to make us feel safe—which is, after all, the number two reason for passing new laws these days. (The primary reason being to continue to grow our new number one industry: the police state.)

In the end, I can’t help but think of Stephen Sondheim’s words regarding his song from the 1973 musical, “A Little Night of Music”:

I get a lot of letters over the years asking what the title means and what the song’s about; I never thought it would be in any way esoteric. I wanted to use theatrical imagery in the song, because she’s an actress, but it’s not supposed to be a circus […] [I]t’s a theater reference meaning “if the show isn’t going well, let’s send in the clowns”; in other words, “let’s do the jokes.” I always want to know, when I’m writing a song, what the end is going to be, so “Send in the Clowns” didn’t settle in until I got the notion, “Don’t bother, they’re here”, which means that “We are the fools.”

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Trigger-Happy Warnings https://rhdefense.com/2016/09/27/trigger-happy-warnings Tue, 27 Sep 2016 23:05:34 +0000 https://rhdefense.com/?p=11567 An article on Heatstreet—HeatStreet? Heat Street? I’d really like to get this right. I don’t want anyone upset. It’s upsetting me that I might be unable to un-upset others—anyway, this article posted on a website with a confusing climate-change-oriented name reminds us that what the world needs now is…

…no, you idiot! (Oh, crap! I’m sorry! I’m sorry!)

Anyway, signage.

That’s what the world needs now.

In particular, what we need are trigger signs scattered throughout all public spaces. Because public spaces, you know, frequently contain stuff. And stuff can be scary. Heck, did you notice both words—”stuff,” and “scary”—even start with the same letter?!

In today’s world, that’s connection enough, isn’t it? Like when U Mass threatened action for Title IX violations based on infantile Harambe memes.

We understand that social media has been popularizing Harambe in some crude ways, which may appear as funny to groups of people,” the RAs wrote. “However, these comments are not only derogatory, but also micro-aggressions to some UMass Students.

This happened because there happened to be a defined residential community—a kind of dormitory-style safe space—for African-American students.

Now let’s not get side-tracked here. (I can say that, right? I mean, I don’t want to accidentally offend anyone by appearing to disparage trackers, or side-trackers.) If I can try to be serious for a moment—and I will readily admit that I have trouble taking much of this seriously—I have absolutely nothing against so-called DRPs.1

Anyway, I was being serious. And, in the spirit of that seriousness, I want to say that I have absolutely no problem with DRPs. In fact, I did already say that. I think people can live in whatever kind of community they want. After all, my wife and I have created a kind of little mini—alright, come on here! my wife is 4’10” (or 4’11” if you ask her, or own a tape measure)—oasis in our backyard. The lush (no offense, drunkards) plant-type things, and tree items create a safe space for us at the end of a hard day.

And if anyone else comes into our DRP without permission, we scream. They typically scream, too, because we’re not infrequently sitting in our spa, au naturel—and I apologize: I realize now that I probably should have given you a trigger warning before saying that.

But, really, life in the United States is not always, shall we say, “friendly,” to people of color. And I mean that. Despite my feelings about things like what I’m here writing about, I realize that I don’t have the life experiences to do more than imagine—and that has its limitations—what it’s like to be non-white in a country which of late often seems hell-bent on transmogrifying (not a gender thing, I don’t think) into a KKK stronghold.

But there’s a big difference between saying that people should be allowed to have a place to call home that comports with their comfort needs, and suggesting that the rest of the world needs to not talk about certain stuff—scary stuff—because it happens to have the same name as your space. It’s like me being upset because there are other people named “Rick” in the world, or feeling “triggered” because someone invented “rickrolling” instead of “barackrolling.”

Things have gotten so bad that two University of Houston faculty members are helping to create “emotional first aid kits” distributed by the 99.99% Society as a way to protect students from “microaggressions.”

Speaking of triggers, you know what kind of triggers we really need to be concerned about?

The epidemic of triggers that are killing black men all over America. The ones cops can’t seem to keep their fingers off of.

But, thanks to the idea I got from Hofstra University, I think I’ve found a way we can solve the problem.

According to U.S. Attorney Zachary Fardon—no, no, we’re not doing the infantile jokes here—and FBI Director James Comey, so many police officers have been caught on tape apparently murdering people that

police officers may be more reluctant to get out of their patrol cars and confront suspects because of fear they will be videotaped and criticized.

In other words, all these goody-goody American citizens running around with their freedom, and video-phones, and protests, and stuff (!) are scaring cops into not shooting people.

I therefore propose that we post signs on every block of every street of every city, town, and village of America:

Trigger Happy Warning

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Endnotes:

  1. The aforementioned defined residential communities. Yeah, I know the words “community,” or “communities,” do not start with “P.” I didn’t come up with the name, so I have no idea what it’s about. If you’re really triggered by this, maybe google it? But—TRIGGER WARNING!—be careful: We’ve already talked about how scary stuff can be. For example, these may not be the DRPs you seek: You may run across Del Ray Pizzeria in your search, for example, which could be traumatic if you’re a vegetarian. And DRP Belle Haven (Edit 3/21/2017: Link broken/removed.) is even worse: they serve “mini” sliders, which is not only a slight against little people who fall down a lot, but may contain uncooked meat!
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World-Wide Pariahs https://rhdefense.com/2016/09/26/world-wide-pariahs https://rhdefense.com/2016/09/26/world-wide-pariahs#comments Tue, 27 Sep 2016 00:14:30 +0000 https://rhdefense.com/?p=11562 In this post, I’m going to talk a little bit about sex offenders. I’m not going to ask you to like them. I’m not going to ask you to feel sorry for them. You can continue to think of them as the vilest forms of human beings on the face of this earth.

But you might want to know what “sex offender” actually means, and maybe realize that by doing much of what we do with sex offenders, we actually create the potential for more crimes, and more victims—not necessarily just of sex crimes—by what we do.

And now our federal government is trying to enhance the harm to everyone—sex offender, and non-sex-offender, alike.

Just today, I was going to get myself some lunch, when I passed a homeless man who looked familiar to me. Shortly after I passed him, he also realized that he recognized me, as he apparently turned around, and entered the food place in which I was about to order.

Now, I’m not going to go into any identifiable details, especially on this topic. Suffice it to say that I had once tried to help the guy when he moved here from another state where he was convicted, and where he had to register as a sex offender. California has rules about this, and because he had to register there, he has to register here.

There were two other things about this, though. One is that the offense was for having pinched someone’s bottom in a bar when he was quite inebriated and, as he thought, kidding around. The second is that the registration for that offense would have expired, except that the legislature there had—years after his conviction—changed the law to extend the registration period.

So now, being forced to register for once pinching someone’s bottom, he’s lost everything, cannot find a job, and cannot find a place to live. He’s homeless,1 dirty, bedraggled, and beaten down, and you can see every bit of that in his face and frame.

I should add that he’s also a really incredibly nice person. Has been, ever since I’ve known him. I doubt he’d ever consider pinching anyone’s bottom ever again, even in jest, probably not even with permission.

He follows the law, and does what he is supposed to do vis-á-vis registration, although one wonders how effective that can be, not just because of what I’ve already told you above, but because he doesn’t have anywhere specific to stay. He wanders the streets alone, and I didn’t even ask where he sleeps.

I didn’t want to have to think about it. (Although it turns out that’s all I’ve done since I saw him again.)

Not content with torturing men—it’s almost always men, from what I know—in this manner, the federal government now wants to get into the business of trying to have guys like him killed.

A Bay Area federal judge says the rights of registered sex offenders will not be violated by a new U.S. law that will stamp their legal status on their passports to notify the governments of countries they visit.

And the really cool thing about this—aside from the fact that in some countries, it could lead to the deaths of the passport holders—is that it manages to be even worse than the law that requires a man to register as a sex offender for pinching someone’s bottom.

While California requires most convicted sex offenders to register for life, most other states drop the requirement if an offender can show rehabilitation after a certain number of years. The federal law, however, would require passport stamps for those offenders as well.

Yep. Saner states that California have recognized that a lifelong registration might not be necessary for every single kind of offense that can land you on a sex offender registration list. But the federal government plans to fix that. Even if your butt-pinching crime was committed 30 years ago, and your state is sane enough to “only” require registration for 25 years for that crime, you’re going to carry a federally-stamped scarlet letter for the rest of your life.

And for what?

Aside from the butt-pinchers, some people—including children—can end up being required to register as sex offenders for committing the following “crimes”:

  • Taking naked photos of yourself when you are under the age of 18 (child pornography!)
  • Visiting a prostitute
  • Taking a leak (pissing) in public
  • Flashing your breasts without being male
  • Having consensual sex with a teenager—even if you also are a teenager
  • Sleeping with your sister (yeah, I get that there’s a yuck there; I assume from the article that it was consensual, and both were hormone-driven teens)
  • Giving another child a hug (mentioned in the 20th paragraph of this article)

The Center for Sex Offender Management—which is said to be a collaborative effort of the U.S. Department of Justice, Of ce of Justice Programs, the National Institute of Corrections, the State Justice Institute, and the American Probation and Parole Association—notes that:

About 12 to 24% of sex offenders will reoffend. When sex offenders do commit another crime, it is more often not sexual or violent.

So, less than one-fourth of all sex offenders will commit another crime. And, in fact, it might be something like stealing, or shoplifting, or a similar crime. After all, it’s not like they have jobs, so they can afford food on a regular basis.

Ironically, our very approach to dealing with people who are listed as sex offenders—and I’m saying it this way, because as I’ve already pointed out, one might not actually be a sex offender—is what leads many of the one-eighth-to-one-fourth of “reoffenders” to reoffend.

The restrictions that come along with being a registered sex offender also make people convicted of these crimes harder to track, which would seem to be the opposite of what most people who endorse registration requirements want. According to this article on Corrections.com, a website for folks who work in the prison industry,

Law enforcement has observed that the residency restriction is causing offenders to become homeless, to change residences without notifying authorities of their new locations, to register false addresses or to simply disappear. If they do not register, law enforcement and the public do not know where they are living. The resulting damage to the reliability of the sex offender registry does not serve the interests of public safety.

One report mentioned in the article noted that residency requirements—restrictions against being near schools, daycare centers, or places where children congregate—would not have deterred a single crime among those prisoners who were being followed in the study. Because none of the offenders had committed their crimes near a school, daycare center, or place where children congregated. In fact, according to California’s “Megan’s Law” website,

90% of child victims know their offender, with almost half of the offenders being a family member.

Not everything the Megan’s Law website says is correct, but I figured you’re more likely to believe them than me, and on this point, they appear to be correct. On this point, the U.S. Department of Justice’s NSOPW (National Sex Offenders Public Website) backs them up, as does the National Institute for Justice.

As R Street has noted, the issue here isn’t really one of eliminating sex offender registries—and I’m not suggesting that, either. Rather, we need to take a look at the real goal of sex offender registries, as well as to consider what how to reduce the attendant harm. One way to do that is to get people off registries who don’t really belong there—for starters, I’d suggest that my friend, the butt-pincher, for example, should not be there, nor should public pissers, nor should children who take naked selfies, nor should teens who have sex with other teens. Let’s reserve the registries for people who have committed actual sex offenses.

And if you’re paying attention, you’ve already realized that sex offender registries—as they currently “work”—do not work well at achieving their goals for one very big reason:

The practice of requiring sex offenders to register with law-enforcement officials is effective and has contributed to a sizable drop in sex offenses committed against children in the United States. Notifying the public of sex offenders, on the other hand, is ineffective and should be limited if not eliminated. The registries that exist, furthermore, do tremendous harm to some people who, although clearly guilty of various wrongs, do not pose a significant threat to children or anyone else in society. (Emphasis added.)

Frankly, nothing good comes of the public being notified of where sex offenders live. The best that comes of this is unnecessary (yes, really; do some reading for goodness sake) worry; at worst, it results in vigilantism which can result in the death of public urinators, and the imprisonment of the vigilante.

Which brings us back to the impetus for this post: the “international Megan’s Law.” As Leon Neyfakh notes,

like the domestic sex offender registry it’s based on, the law is premised on a profound and consequential misunderstanding of how sex crimes against minors are usually perpetrated.

Also like the registry it’s based on, it makes no distinction between people whose crimes do not even remotely suggest their likelihood of engaging in “sex tourism” the bill purportedly aims to curb, and those whose crimes do. Nor does it matter that passports have other uses than for travel.2

Passports are not merely the necessary implements for international travel — they are a basic badge of citizenship, and they are used for all sorts of identification purposes (opening a bank account, getting a job, getting a driver’s license) having nothing to do with international travel.

I myself have worn out two passports (that is, one expired, and I got another, which I think has also expired), without ever leaving the country.

The bottom line is this: it’s doubtful this new law does anything but extend the reach of what is already a bad idea, harmful to the individuals it targets, the individuals it does not but who are swept up because of poorly-designed laws regarding registration, and the societies it purports to protect.

If we really wanted to protect other countries from American criminal activities, we’d get farther stamping passports of thieves, and drunk drivers.

Or maybe we could just put—on the cover, in large red print just before the words “United States of America”—

WARNING! CITIZEN OF

Hey! Look at that! I made it all the way through a post without mentioning Scott Greenfi—doh!

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Endnotes:

  1. In California, for instance, which keeps some of the most detailed public statistics on sex offenders, 20 percent have no place to live as a result of residency restrictions.
  2. Yes, I know the article uses a somewhat offensive analogy. It’s still true that passports are used for more than travel.
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