Wednesday Writs: The Case of the Too Short Fish

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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21 Responses

  1. Avatar Michael Cain
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    says:

    WW12: The video link is not displaying. On my Mac, not in any of Firefox, Safari, or Chrome.

    <geek discussion>
    Ordinary Times uses secure (encrypted) transport for content (the https in the URI). The default behavior in contemporary browsers is to block any embedded links in a secure document that specify insecure transport (http). The collegehumor.com website uses insecure http. The same video clip is available on the collegehumor YouTube channel with secure transport.

    https://www.youtube.com/watch?v=xDHDM7PfyYs

    Ideally, WordPress would check this stuff and flag it. But it doesn’t. So, it’s another thing that authors have to pay attention to.
    </geek discussion>Report

  2. Avatar Saul Degraw
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    says:

    WW5: I think a lot of legal culture is based on geography and it is too hard to make assumptions on a global scale. When it comes to dress codes, I think the West Coast, especially California, is a lot more lax than any other place. Numerous firms I worked at in CA do not care about my office wear. I could wear jeans, a t-shirt, and sneakers if I got the work done. A lot of the rest of the country is still a lot more conservative. A few years ago I did a deposition in a Hilton Garden Inn where opposing counsel was from the Plains states. It was also a Fresno summer. He wore a black suit and tie and I could only wonder why.

    The hours thing depends on the firm and geography. My firm has a light billable requirement but a lot of firms demand 2200-2400 hours a year. I think these numbers are back breaking and I do not see them going down. These numbers bring in the bucks and too many people are willing to do them.*

    *When the billable hour started, trade magazines said that the top lawyer could expect to bill around 1300 a year. Now the top lawyers can easily bill over 2400. Some of this is technology because of remote access via laptops and e-mail but that is a huge increase.Report

  3. Avatar Aaron David
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    says:

    WW3- Huh, feds have to follow the law also? Whoda thunk? And the analysis at the end of the article, that AR types have no receiver, is so flawed as to be laughable. They have such an item, and they have been regulated for decades. The real objection comes down to when is a piece of metal to be designated as something else.

    WW4- Good. Although they are approaching this from a different point, Due Process, the 2nd is still a civil right.

    WW6- Another good, and hopefully this is permanently stayed. Open-ended settlements are destructive to the rule of law.Report

    • Avatar Oscar Gordon in reply to Aaron David
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      says:

      A huge part of the problem with WW3 is that the definition in question is just one aspect of the ATFs main issue, which is that it’s decisions regarding what is, and is not, a firearm; or what is, and is not, something they can regulate, is wildly inconsistent, and subject to change without notice.

      I’ve read cases where the ATF said item A is fine, but item B, which is merely a simple progression of A, is not. And when it was pointed out to them that A & B are very similar, they do things like say, “You’re right! A should not be allowed. Oh, you’ve been making that for 2 years now and have sold over 10,000 units? Yeah, you need to notify all your customers that those need to be destroyed.”

      It’s like they just make decisions with a dart board and don’t bother doing any kind of research into other things they’ve approved or denied, and they never give anyone a clear and objective explanation as to why they decided the way they did (so the applicant could possibly change things to comply with the… oh, wait, there is no law to comply with, just their random and inconsistent decisions.Report

      • Avatar Aaron David in reply to Oscar Gordon
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        says:

        Oh, I absolutely agree with you. The making up decisions/reasons/justifications willy-nilly is what I was referring to in that they have to follow the law also. The executive branch (the ATF and such) follows laws that the legislative branch makes. When we go outside this, either by abrogating responsibility or usurping it, we are doing real damage to the concept of rule of law and not rule of man.Report

      • Avatar InMD in reply to Oscar Gordon
        Ignored
        says:

        The ATF is… a strange thing. I find myself torn as to whether its backwardness and incompetence is a blessing or a curse.

        On the one hand a better run agency might be more successful at keeping firearms away from people who legitimately shouldn’t have them which could be a benefit to the politics of gun rights. On the other hand I can very much see attempts to improve it resulting in nothing more than more efficient, better funded stupidity.Report

        • Avatar Oscar Gordon in reply to InMD
          Ignored
          says:

          Personally, I think it should be dissolved and it’s budget and a more well defined and constrained mission should be handed over to the FBI and DEA (the FBI already handles firearm background checks, and investigates bombings, etc.; and why are alcohol and tobacco not part of the DEA wheel house, are they not drugs?).

          Current ATF agents should be required to re-apply for their jobs with the FBI or DEA, and all ATF leadership should just be tossed out onto the street.Report

  4. Avatar Oscar Gordon
    Ignored
    says:

    SHITE! Do I have 10 friends I can forward that too?!Report

  5. Avatar Doctor Jay
    Ignored
    says:

    WW1: I still can’t wrap my head around why the captain would replace the first groupers with the second, which were still too small. They still stand as evidence against him. Or was that a case of mistake following malice? If he accidentally caught more groupers that were too small, why not throw them out, too?Report

    • Avatar Em Carpenter in reply to Doctor Jay
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      says:

      A crew member said he’s thrown them out but I don’t think Yates ever admitted that. I read that he said the difference was that Jones measured them with their mouth closed which caused them to appear shorter (or vice versa?) but I can’t find that now. So maybe he never did throw them out. Report

      • Avatar DensityDuck in reply to Em Carpenter
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        says:

        Mismeasurement: This site(*) suggests that the measurement procedure for grouper is to measure with the mouth closed and the tail squeezed together; if the measurer fails to squeeze the tail then the fish will appear to be undersized compared to the standard measurement. (I don’t know enough about grouper to say how much effect this would have.) It’s conceivable that the investigator performed the measurement incorrectly offshore but correctly at the dock, but it doesn’t seem like an especially complex procedure that a properly-trained investigator might fail to perform correctly.

        However, that’s about the only thing I could think of that might make the captain replace the very-small fish with sorta-small fish, if he wanted to claim that the measurement had been performed incorrectly and the fish were actually within the size limit. (Either that or embarrassment at having failed to recognize such obviously-undersized fish.)

        Punishment for the size doesn’t seem to be an issue; there’s no sliding scale in the Florida statutes for fish size, no “misdemeanor if it’s 19-20, felony if it’s below 19” sort of thing. It’s understandable why Yates would have an interest in avoiding a crime under SarbOx because that’s a Federal felony crime and you go to pound-me-in-the-ass prison for that kinda thing.

        The accounts we have are frustratingly light on details of the actual infraction; was there testimony from Jones regarding the process of measurements? Did Jones recheck the entire catch and find the same lengths with the exception of those four fish? Do Florida investigators typically give “margin” on measurements between 19 and 20 inches?
        The crewmember who claimed that he’d thrown fish overboard at Yates’s direction, was this testimony in a criminal trial or was it hearsay?

        (*) which appears to be run by Florida’s government tourist board, so I’d expect to be accurateReport

        • Avatar PD Shaw in reply to DensityDuck
          Ignored
          says:

          Looking at the Court of Appeals decision, some of this is clearer. The officer testified that he measured the fish with mouths closed and tails pinched at all times, and gave the benefit of a doubt for fish just under 20 inches. He and another officer recorded the sizes on a catch measurement verification form, with most of the fish btw/ 19 and 19 1/2 inches, but a few were under 18 inches.

          When Jones was directed to re-measure the fish four days later, most of the fish were btw/ 19 1/2 and 20 inches, and none below 18 inches. This gave rise to the suspicion, and they interviewed the crew member who explained that Yates told them to dump the fish and replace them. (I don’t think this posed any evidentiary issue)

          The jury trial seems strange because Yates defended on the ground that the fish were not undersized, but Yates wasn’t being charged with fishing violations, but with destruction of evidence. The prosecutors failed to object and waived this issue. Yates argued that had the fish been measured with their mouths open, they would not have been undersized. The prosecutors identified an expert witness that if called to testify would agree, but only adding on average 3 to 4 mm, but they ultimately didn’t call him. When Yates’ attorneys tried to call the government’s expert, they were barred for not having identified him themselves. Their own expert testified in favor of open-mouth measuring and the impact of ice on fish shrinkage, but he apparently was brutally cross-examined for a record of fishing violations himself.

          This area of law appears to be an example where the certainty of a quantitative standard is undercut by an uncertainty to testing methodology. The rule stated that the measurement could be made with the mouth open or closed, tail pinched or not pinched. Its possible that the law isn’t enforceable as a practical matter outside of some buffer, which is why the officer gave the benefit of a doubt to some.Report

          • Avatar George Turner in reply to PD Shaw
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            says:

            Are contentious court cases about the size of fish lips a sign that societal collapse is imminent? I would say yes. We like to feel we’re more advanced than ancients who argued about whether savory duck fat could substitute for goose fat to appease Apollo, and whether the transgression should carry a penalty of fifty fatted goats, but we would be wrong.Report

          • Avatar DensityDuck in reply to PD Shaw
            Ignored
            says:

            Thank you for the information! I didn’t find that when I looked.

            It does sound like what I imagined–they gave you a margin for “just below the limit” with the idea that the inspectors know their business but didn’t want to get into a court case over every fine with days of argument about how exactly you measure the length of a fish.

            I think the the thing is, if they hadn’t charged Yates under SarbOx then we wouldn’t even be having this conversation, because he’d have taken his prosecution and shut up. (If anything, he seemed entirely willing to go on with paying a fine over the issue and getting on with his life.)Report

        • Avatar Michael Cain in reply to DensityDuck
          Ignored
          says:

          In this day and age, and only half joking, where’s the app? Lay the fish on a waterproof mat with a one-inch grid drawn on it, snap the picture with your cellphone, it tells you if it’s undersized or not. Especially for the wildlife officials, who then have a photographic record of the undersized fish. How distinctive are the markings/scale pattern on a grouper? When the boat got back to shore, would they be able to say, “Here’s the picture of the 18.75-inch grouper taken on your boat. This fish is not in the catch you brought back to shore.”?

          We’ve all got cameras in our pocket that I would have killed for when I was young, and a several billion ops per second GPU.Report

          • Avatar DensityDuck in reply to Michael Cain
            Ignored
            says:

            Well, this inspection took place in 2007; digital cameras were around, but the idea that everyone had one in their pocket (on a smartphone) wasn’t something to be expected. I’m sure these days there are a lot more pictures involved.Report

  6. Avatar Oscar Gordon
    Ignored
    says:

    Legally related, Qualified Immunity excuses yet another heinous act by our professional CJ agents.

    This is a rule desperately in need of reform…Report

  7. Avatar Burt Likko
    Ignored
    says:

    Something in the recesses of my mind says that I, too, once wrote about Yates and, I mean, how can a SCOTUS junkie not? It combines the sublime and the ridiculous. This was a fabulous writeup and a great explanation of the kinds of results that the very ugly cocktail of imprecise legislative drafting and rigid judicial textualism threaten to yield.Report

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