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 Sat, 18 Feb 2017 23:35:48 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.2 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 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.


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.
























  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).


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.







































  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


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.


  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.


  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.



















  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 https://rhdefense.com/2016/09/27/trigger-happy-warnings#respond 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













  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 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”—


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




  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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A Culture of Lies https://rhdefense.com/2016/09/22/a-culture-of-lies https://rhdefense.com/2016/09/22/a-culture-of-lies#comments Thu, 22 Sep 2016 13:27:47 +0000 https://rhdefense.com/?p=11457 This may seem—especially to anyone who knows my views, and read the headline—like it’s going to be a post about cops.

I suppose, mostly, it is. But it’s really a post about all of us. It’s a post about the fact that, as things stand right now, there is very little to give hope for a unified future for America, where people may disagree on certain things—even fundamental things—but are able to continue to respect one another, be truthful about what is happening, and work toward a better world.

The other day, another black man was shot, and killed, by police. It’s the Neverending Story of Black Life in America.

The unrest began at the scene of Tuesday’s deadly shooting of Keith Lamont Scott, and quickly escalated, turning violent. Police needed to call in additional help just after midnight, as the crowds swelled.

People are angry and looking for details over Scott’s deadly shooting, but police and Scott’s family are telling two very different stories of what led to the shooting, reports CBS News correspondent David Begnaud.

The story is—or I should say the stories are—complicated in that the police are saying there was a gun, and they recovered it, while the family says there was no gun, and that he was reading a book.

Now, it’s not unusual for cops to mistake things like books, phones, garden hose sprayers, for guns. Anyone who has ever paid a modicum of attention to the news of police shootings knows this. If you don’t, google it. One reason I don’t write as many posts as some others is I spend too much time hunting down stories to link to my posts. In the interest of writing more often, I’m cutting back on that. If I can learn to use the Google, you can, too.

Anyway, it’s also not at all unusual for cops to lie. Most—if not all—do it when there is a benefit to doing it. As I noted in the post prior to this one, you don’t have to take my word for it. As I said, consider this former San Francisco Police Commissioner if you don’t want to trust me:

Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.

And if you think that they only tell lies to justify dope searches, then I don’t even know what to say to you; there’s something wrong with your brain.

Yet, in that sense, they’re like almost any other American these days. Social Justice Warriors, who often just go by their initials these days—SJW—are absolutely not immune from lying to advance their narrative.

And rape allegations? Don’t get me started. If I had a dollar for every time I’ve heard that I had to believe a “survivor” who later recanted, or was clearly shown to be lying, I might consider getting a new car.

Even our presidential candidates are in on it. Donald Trump lies pretty much every time he gives a speech. For years—at least five, from what I recall—he said that Obama was not born in the United States. When he finally decided the time had come to admit it so he could get a few more votes, he lied that “Hillary Clinton started it.”1

Now, there is a difference between making a mistake, or even engaging in hyperbole, and telling a lie.

People make mistakes all the time. God knows I do. Although if all these police shootings are mistakes, well…something is mightily wrong, and we need to do a better job of hiring police officers who won’t kill people so often by accident.

And hyperbole has no real place in discussing whether the killing of a human being of any color by a human being wearing any color—blue, or not—was a necessary event. I’m not talking about the kind of hyperbole I used above when saying that I could buy a new car if I had a dollar for every false rape allegation—although, to be frank, I’m not even sure that’s hyperbole anymore. Although referring to rape victims as “survivors,” unless there was an attempted murder in the course of the rape, is certainly hyperbole.

No, I’m talking about the kind of hyperbole that exaggerates a man’s refusal to comply with every conflicting order given by a police officer into a threat that results in a bullet in the back of someone whose empty hands are in the air for all the world to see.

That kind of hyperbole is not even rightly called hyperbole, frankly. It’s just another flat-out self-justifying lie by the guys, or gals, who lived to help write the history of the event.


As I’ve said, our culture is shot through with them. Hell, it’s not just SJWs. It’s not just police officers. It’s not just judges in our courtrooms. It’s not just the news. It’s not just politics. It’s not just advertising. It’s not just corporations spouting bullshit about how safe our water is from their leaky oil pipelines.

It’s everywhere.

And even when it involves clowns, it’s just not funny.

The ties that bind societies together are built from trust, which requires honesty, truthfulness. We might not always be able to handle the truth.

But we need to have the truth.

Having the truth is not just important for the trust that being able to expect it, that knowing it will be forthcoming even when it’s hurtful, brings. The truth matters because it allows us to formulate real, workable, deliberate proposals for dealing with problems.

When it comes to the shooting of Keith Lamont Scott, I don’t believe we will ever really know whether he had a book, or a gun. The family will continue to insist that it was a book; the cops will continue to insist it was a gun; and I will continue to insist that we can’t really know. There does not seem to be video of the actual moments leading up to the shooting.

And if there is, then why haven’t the police released it yet, since they want to “change the narrative”?

Frankly, there’s something that sounds a little hinky here. I mean, seriously, they killed a man because he allegedly “makes some imminent threat to them, and, uhm….” What exactly was the threat? Have they not had time to come up with that part of the new “narrative” yet?

In the end, the police might be telling the truth this time. I’m having a hard time believing it so far, based on the limited information, and the very limited video evidence, but maybe they are.

But here’s the other problem of living in a society shot-through with lies, particularly lies from law enforcement officers: when I was a kid, one of the things my dad taught me is the reason we don’t tell lies in the first place. That reason, for those who weren’t taught this same lesson, is this: once you become known as a liar, it’s difficult for others to believe anything you have to say.

In today’s world, where Scalia’s—may he never rest in peace—“modern police forces staffed with professionals” have lied so very many times, and been caught lying on video so very many times, that it is impossible for those of us who have seen this to believe anything they say, something needs to change.

And that something is that cops need to quit killing people. Period. They also need to quit lying about the killing that they’ve been doing, because even if they aren’t lying this time, a significant-enough population of us is unwilling to believe them anymore. The road to fixing that starts with cops recognizing this, owning up to this, and fucking doing something about this.

“A gun was found at the scene”? How do we know that gun was not brought to the scene, by one of the officers? It happens. Cops are far from above planting evidence. And while it’s entirely possible this New York lawyer who has appeared on various news stations, including Fox, MSNBC, CourtTV, and elsewhere, and who says that cops routinely did this when he was a prosecutor is lying, as with the cops who claim to have found a gun on Keith Lamont Scott, there’s no way to know that. Cops have been caught in too many lies told to cover up what look to many of us like murders. At best, they are negligent homicides.

And while I don’t know whether or not any gun claimed to have been found was planted in this case, I do know of cases where officers have planted evidence.

Ultimately, though, this question of whether there was a gun, or a book, in Keith Scott’s hands is almost a red herring. A distraction. Bait to lure us away from the real problem I’m talking about here.

Because the reality is that the killings must stop. The killings must stop. The killings must stop.

Because if the killings do not stop, at some point there are going to be entire communities with no faith in the police, with no desire to cooperate with the police, and where police are not safe. Tonight, as I try to finish this blog post, Charlotte, North Carolina begins to look like a war zone. I’ve watched on Twitter as news people are attacked. This is what happens when the ties that bind break.

It will be too much to ask—rail against me for saying it however much you wish, what I say is true—for the people who have felt targeted for so long to sit still, to wait, to hope things will change. Rather, things just have to change.

And there’s only one way that change is going to come.

The killings have got to stop.

But there’s really only one group of people who can make them stop, and that’s the folks with their fingers on the triggers.

And a culture of lies meant to make us believe they had no choice but to pull them.2
























  1. The Google is your friend.
  2. Don’t think I forgot to include Scott Greenfield in this post, either: he has his own article up this morning, which wasn’t there last night when I was writing this.
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The Unaccountables https://rhdefense.com/2016/09/21/the-unaccountables https://rhdefense.com/2016/09/21/the-unaccountables#respond Wed, 21 Sep 2016 11:07:08 +0000 https://rhdefense.com/?p=11434 Last year, on a 2,000-mile roadtrip, I listened to a semi-fictionalized, semi-autobiographical book about the life of Eliot Ness, called “The Untouchables.” Ness was a law enforcement officer tasked with taking down Al Capone, a notorious mobster, who had become famous, and rich, for running bootlegged alcohol during the Prohibition.

The officers selected by Ness for his team were called “The Untouchables” because they were fearless, and believed to be incorruptible. Prior to Ness putting together the team, Capone himself had remained largely untouchable due to his ability to bribe law enforcement.1

Supposedly, Ness’s team eventually brought Capone down, but not for his bootlegging activities. They got him for tax evasion for all the money he made, but didn’t report, from his bootlegging activities. After all, the government must get its share even of ill-gotten gains.

But that’s a subject for another post.

Today’s cops, of course, are not even remotely the fearless and incorruptible sort that made up Ness’s team. The willingly-blind cannot understand this, of course, but today’s cops have been largely corrupted and taught fear by their trainers before they even make it to the force.

The corruption comes in the form of learning how to write police reports so as to cover their asses when they do things that would get you or me arrested, were we to do them. Things like assaulting people in public for watching—and videotaping—them, despite the fact that court after court after court has ruled such videotaping completely legal, and some states where cops attack, or arrest, people for recording even have written laws that say recording cops is legal.

I might not have any real proof that cops fabrica—oh, wait….

The fear comes from the hypersensitization to danger that is drilled into police officers. Scott Greenfield2 has referred to it as “The First Rule of Policing.” And he has written about it extensively. Perhaps his clearest explication of the rule came in his 2010 article, “Counting Bullets.”

The first rule of policing, as I’ve explained many times, is get home for dinner. What? Did you think it would something heroic and inspirational? Well, it is, just not to you. Foremost in a police officer’s mind as he straps on his gun is to make it through his shift unharmed. Be reasonable. It’s a job, not something to die for. He’s got a wife and kids. She’s got a husband and kids. Not even a pension and gold shield will make up for leaving your children parentless. Get home for dinner is a very good rule.

In that same article, the subject of which wasn’t actually the First Rule of Policing so much as a musing over reports that shootings by and of police officers in New York were down the year before. Scott posited (among other things) that cops were becoming less fearful of the public. And he suggested that this might not be a good thing, as, lacking the fear that their disrespectful—I would even say “reprehensible”—behavior towards us would upset us, they might become emboldened to do what they will with us.

In 2016, it’s hard to know whether Scott was right, or wrong.

Are cops less fearful of us? A good argument could be made for saying they are. After all, they have no problem with approaching people who are doing nothing illegal, and slapping their cameras out of their hands, then blithely working together to fabricate police reports to make it sound as if the individual they attacked did something illegal, and deserved it.

And this isn’t so rare as the bootlicking public might think. One New York detective even testified after being snared in a corruption scandal that it was “common practice.” My experience as a criminal defense lawyer has caused me to believe that all police officers will lie, if they think it is necessary to achieve a goal—whether that might be punishing someone who crossed them; nailing someone they think is a bad guy, but on whom they don’t have enough evidence; or just covering their asses.

But don’t take my word for it. Here’s what Peter Keane, a former San Francisco Police Commissioner, said:

Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.

The quote comes from a 2013 New York Times article, “Why Police Lie Under Oath.” But officers don’t just lie under oath. Sometimes they do it as performance art for citizen bystanders. Sometimes for the video. Sometimes they do it on Facebook.3 Sometimes it’s both.

Without video,4 police lies can result in lengthy prison terms for innocent people.

Lying is one thing. What about Scott’s other concern, that cops might become less fearful, and “do as they will with us”? This one is interesting.

On the one hand, it appears that Scott is right. Cops most definitely appear willing to “do as they will with us.” This 2014 article from The American Conservative makes that clear.

A Department of Justice study revealed that a whopping 84 percent of police officers report that they’ve seen colleagues use excessive force on civilians, and 61 percent admit they don’t always report “even serious criminal violations that involve abuse of authority by fellow officers.”

This self-reporting moves us well beyond anecdote into the realm of data: Police brutality is a pervasive problem….

But is this because the police do not fear the public enough? Or is it because they fear the public too much? Are police officers shooting citizens to death as an extreme example of “do[ing] as they will with us”? Or because they’re scared shitless crybabies with hair triggers that go off due to uncontrollable anxiety and pants-pissing?

I don’t know if we can really answer that.

Video may show what appears to be an unarmed man with his hands in the air being shot down in cold blood, but the officer will likely never be charged because she will claim she was in fear for her life. Besides, he had drugs in his car. Who cares if the officers did not know that when he was shot: the post-hoc smear helps to justify the cop’s fear.

I’m not even going to bother linking all the stories about police shooting people holding water hoses, cell phones, wallets, etc. You can google that on your own. I would submit that these incidents may be fueled by fear, but many of them are also evidence that police just don’t care enough about the people they encounter to try to figure out what’s going on before pulling the trigger.

What we do know is that something needs to be done about it, and nothing is going to be done about it, and that may be the main reason it keeps happening.

Going back to The American Conservative article, the one which referred to the Department of Justice study that showed 84 percent of cops reported seeing colleagues using excessive force,

In central New Jersey…99 percent of police brutality complaints are never investigated. Nor can that be explained away as stereotypical New Jersey corruption. Only one out of every three accused cops are convicted nationwide, while the conviction rate for civilians is literally double that. In Chicago, the numbers are even more skewed: There were 10,000 abuse complaints filed against the Chicago PD between 2002 and 2004, and just 19 of them ”resulted in meaningful disciplinary action.” On a national level, upwards of 95 percent of police misconduct cases referred for federal prosecution are declined by prosecutors because, as reported in USA Today, juries “are conditioned to believe cops, and victims’ credibility is often challenged.”

So the majority of cases of police brutality—which we know is a pervasive problem despite the public’s belief, because cops say so themselves (and they don’t always lie)—are never even investigated.

And then there’s the United States Supreme Court, which essentially gave police a license to lie in a set of cases that on their faces appear to restrict when police may use deadly force. But, in fact, they do anything but.

[L]egal experts find that “there is built-in leeway for police, and the very breadth of this leeway is why criminal charges against police are so rare….” … According to Erwin Chemerinsky, dean of the UC Irvine Law School, recent Supreme Court decisions are not a path towards justice but rather a series of obstacles to holding police accountable for civil rights violations.

So there’s the first gauntlet accountability must run.

The second gauntlet is equally important: the average citizen.

The average citizen doesn’t—deliberately, or with what mattered back in the days of the Rule of Law: the requisite mens rea—go about committing crimes all day. They’re not particularly fond of people who do. Aside from cops, there are some people who do. And cops sometimes arrest them.5

This scenario—of people who don’t deliberately commit crimes, people who do, and a group charged with occasionally knowing the difference between the two—drives the average citizen to like cops. After all, if your average Joe (or Josephine, and all the possible incantations in-between) accepted reality, that realization that they have somehow managed to survive in the midst of a cesspool of cops who abuse as often as they abate would quite literally drive them to Despair. With a capital-D.

When you take that base, combine it with Police PR good enough to capitalize on confirmation bias, a collection of legal decisions from judges who should—but refuse to—know better, you end up with a perfect recipe for our post-Scalia modern police force. You get, from the police-officers’-union point-of-view, something far better than Ness’s Untouchables: you get the Unaccountables.





















  1. Then, as now, huge numbers of police officers were either corrupt, or corruptible. That’s what made Ness’s men so unique. And, if I recall, even one of his team was compromised.
  2. You knew that was coming.
  3. Aside from ignoring Facebook’s terms of service this way, sometimes the cops work to make sure only their version of the truth can get out by ordering Facebook to shut down a targeted citizen’s Facebook account.
  4. You really have to love the way the lying officer wrote this one up: “’In fear of receiving a battery’ Kahn ‘defended himself by using his impact weapon to disable the offender’s delivery system,’ the report said.”
  5. You didn’t think the only thing they did was frame and shoot innocent people, did you?
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