Category Archives: Law: Criminal Law

What the Hell???

I really hope this turns out to be false:

Federal Law Enforcement Use Unmarked Vehicles To Grab Protesters Off Portland Streets

But I can’t say I’m optimistic.

Posted in Law: Criminal Law, Question Authority, The Resistance | 3 Comments

Why is Barr Sending Bureau of Prison ‘Riot Control’ Troops to Miami?

Attorney General William Barr is reported to be sending Bureau of Prison riot control troops to Washington, D.C. and … Miami.  I’m unclear if these are Special Operations and Response Teams (SORT), or Disturbance Control Teams, or something else — sadly we have so many different paramilitaries in this country that it is really hard to keep track.

Whichever they are, the fundamental idea is so broken that it almost seems pointless to look at its entrails, but after explaining why this is nuts in general, I’ll explain why it’s nuts in particular.

The idea is nuts in general, because it’s an almost inevitable rule that shows of force against generally peaceful protestors end in tears and tragedy.  Similarly, even a degree of restraint against an ugly mob throwing the occasional rock can pay off handsomly in saved lives and long-run peace. That doesn’t, however, mean police should, if they have the numbers, permit looting and arson, as those too have bad long-run consequences.  The problem with a lot of police presences around the country is that they’ve been too violent, not that they’ve been too ‘weak’. We have the videos to prove it.  And those are officers who, in theory at least, are trained to deal with citizens who are innocent until proven guilty.

Contrast that (desired) mind-set with the role of officers in the Prisons.  Prisons are places where the inmates have radically reduced rights.  I recall working on a pro se prisoner case as a law clerk more than 30 years ago.  The prisoner had alleged that during a prison riot he lay on the ground unmoving, but that an officer nonetheless came along and shot him in the back.  It turned out that circuit law precluded almost any claim a prisoner might make in a riot: for example if he had been standing, or hiding, or moving, his claim might be barred.  But claiming a constitutional violation for being shot in the back while lying face down unmoving in the open was not then precluded by 7th circuit precedent.  (I’d be unsurprised to hear that the 7th Circuit has filled that narrow gap by now.) So we let the case proceed past the government’s motion to dismiss and set it for discovery.  That is the mindset that Bureau of Prison riot control officers bring to a confrontation. Is that what we want to unleash on our citizens?  There’s no reason at all to think people habituated to treating anyone breathing as a target will be the least bit discriminating.

The idea of bringing people who for better or worse are trained at a particular kind of potentially indiscriminate violence onto our streets and unleashing them on our citizens would be madness in any but the most authoritarian regime.  Yet, this is only early June, who knows how deep rock bottom may lie.

In that context, speculating about why Miami and Washington, DC, are specially blessed seems almost besides the point.  But since I live just south of Miami, indeed in a county that outsiders often call Miami (it’s Miami-Dade), I have some interest in that question.

Let me start by saying I’ve paid a lot more attention to the news about developments here than in DC.  My sense, though, is that in Miami, and maybe to a very slightly lesser degree in DC, the police have behaved really well.  (And here in Coral Gables, both police and protestors had a very civil event.)  There was some protester or opportunist violence in Miami: five police cars were attacked, some destroyed, and a handful of business in the fancy Bayside Mall got looted.  But overall, given the scale of the protests, the primary disruptions were to transit and to traffic on I-95, which was blocked for hours. The police by and large seem to have handled all this with aplomb.

I gather there was some destruction in DC as well and (unlike Miami) numerous injuries to law enforcement personnel. At one point someone in the White House pulled the plug on the lights, and took Trump into a secure basement.  I presume this was out of caution, not a desire to emulate presumptive Democratic nominee Joe Biden.

It being the nation’s capital, and there being some fear running around in the White House, one can perhaps understand why someone there wants reinforcements.  But, why Miami of all places?  It’s not been perfect here, but it’s been a lot better than many other places.

So here’s some wild speculation:

Theory 1: The real goal is to create more violence. Team Trump is betting it’s 1970 all over again, and they want their Kent State to rally the base.  Thus, picking towns where there hasn’t been ‘enough’ violence makes sense.

Theory 2: DC gets the nod because it’s DC.  Miami because it’s close to Mar-a-Lago.

Theory 2A: The cities are close to where the relevant units are based (NB: I have no idea where they are actually based….)

Theory 3: DC is DC; Florida is an essential swing state and it’s suddenly slipping away.  The elderly vote has started to turn against Trump; playing the law-and-order card against ‘radicals’ (and those people), might win them back.

I’m open to other, better, explanations.  Bring them on, please.  Because right now it looks like cynicism overlaying evil.

Posted in Civil Liberties, Law: Criminal Law, Miami | Leave a comment

Florida Voters: Sign the ‘Make It Legal Florida’ Petition

There’s a petition campaign being conducted by Make it Legal Florida to amend the Florida state Constitution to make possession and use of small quantities of marijuana legal under Florida law.

I strongly support this change: the war on pot has criminalized too many people, disproportionately poor.  The pot war also creates contempt for the law among an ever-larger population, one that thinks the ban is ridiculous and which thinks nothing of flouting the marijuana laws routinely. Also pernicious is the excuse, real or feigned, of ‘smelling marijuana’ that has justified a large number of law enforcement searches that would otherwise be illegal and, in poorer areas, would otherwise be seen as the discriminatory and coercive actions they are.  (Wait until we have driverless cars and the ‘erratic lane change’ and ‘failure to signal’ excuses go out the window….)

While pot use may not be totally safe, and has little appeal for me, it doesn’t seem as dangerous or addictive as alcohol, which is legal for adults, nor for that matter (as far as we know) tobacco, which is still legal for the moment. Bans on pot, and arguably other drugs also, not only motivate and finance organized crime, they divert police resources from more important public safety issues. The large profits available in the illicit drug trade is a major source of potential corruption in law enforcement — although to be fair this is likely more true of harder drugs where the public health consequences of legalization would be more fraught.

Normally, you would expect this sort of change by legislation.  But Florida is a 50/50 state which has a large gerrymandered Republican majority in the legislature.  As a result, state constitutional amendments are often the only way to get progressive proposals adopted, even when they have as wide popular support as this one. Thus, in Florida purism about what does and doesn’t belong in a Constitution needs to be relaxed considerably from the ideal.

Crassly, putting a pot amendment on the 2020 ballot should also motivate increased turnout from younger voters, something which is usually good for progressive candidates. So that’s another reason for registered Florida voters (only) to download, sign, and mail the petition.

The petition contains a summary, reflecting what would be on the ballot. The full text of the amendment is also online.

Posted in Florida, Law: Criminal Law, Politics: 2010 Election | 1 Comment

Miami is #1!

…. in fraud. And according to a report from the Federal Trade Commission last year Florida was home to 18 of the country’s top 50 cities for consumer fraud.

This is both unsurprising and misleading.  It’s unsurprising because something about the Florida lifestyle seems to attract smooth-talking grifters (the less smoothing-talking ones go into local politics).  But it’s misleading because it only measures garden variety consumer fraud; to do fraud on an epic scale requires a bank.  Places like California (Wells Fargo) and New York (Wall St.) surely have us beat six ways from Sunday in that department. Unless of course the FTC counts those by victims too in which case we could well be #1 after all…

Posted in Law: Criminal Law | Leave a comment

We’ve Found Some Racially Unbiased Judges? (Updated)

I’m at the University of Florida Levin College of Law 2019 Technology, Media & Privacy Law (TMPL) Conference. One of the speakers, Michael Braga, pointed us to a series of articles on racial bias in judical sentencing in Florida (TL/DR: there’s a lot of it).

I found one of the articles online which included this arresting chart:

Click for bigger picture

Orange bars are length of sentences given to blacks, grey to whites.  The first column is all Florida judges.  Each subsequent column is some subgroup of judges, either all whites/all blacks, male whites/blacks.  The last column on the right–the only group that sentences both groups equally–is female black judges. Does this mean we should prioritize appointing black women as judges until we can figure out how to eradicate bias in other groups?

PS. And yes, I realize there are probably so few female black judges in Florida that that this might reflect the exceptional  personal characteristics of the ones who survived the sieving process that keeps them off the bench.  But there might well be more where they came from.

Update: A later speaker mentioned that while the black female judges were the most even-handed they also gave the longest sentences across the board.  So much so that a black defendant often might be better off appearing in front a white male judge even if that judge gave longer sentences to blacks than whites — because even the biased sentences were shorter overall.

Posted in Law: Criminal Law | Leave a comment

Battle Stations!

Special Counsel Robert Mueller has delivered a report to the Justice Department

This is the report about possible crimes. What we don’t know is whether there will be a second report direct to Congress on the (arguably more important?) counter-intelligence project about foreign attempts to influence the election, and perhaps even more reports.

Posted in Law: Criminal Law, National Security, The Scandals | Leave a comment