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AvatarComments by Em Carpenter

On “Remembering The Ice Age

I'm not the goodest at math, but I used a calculator. Definitely 30.

On “Wednesday Writs: Kavanaugh v. RoboCalls Edition

Thanks for the link... I already followed them but it was a reminder I should use it more often!

On “Wednesday Writs: Espinoza v. Montana Department of Revenue

I am not 100% sure, but I think the Court could issue a writ of mandamus or prohibition to compel compliance, but generally they rely on respect and cooperation. I'll look into that a bit, or maybe one of the other OT lawyers will chime in.
Most of the time, the lower courts purport to be following precedent in their opinions but find loopholes or ways in which they believe the case before them is different

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Because the Fifth Circuit, which was also the lower court in the first case, disregarded the ruling the first time around and did the very same thing again.
This case was pending appeal at the time that the previous case, Whole Women's Health from Texas, was decided. In that case, Court said "‘[u]nnecessary health regulations that have the
purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ ” and are therefore “constitutionally invalid".
In light of the decision, this case was remanded for further fact finding in accordance with the ruling. The Fifth Circuit thought well this time it's different, found that the Louisiana law was significantly less burdensome than Texas's (despite being nearly verbatim identical) and ruled the same way.
So I guess the Court had to take it up because the 5th misapplied the Whole Women's Health standard.

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I wrote about that!

https://ordinary-times.com/2018/11/09/the-right-of-the-people-but-not-those-people-to-keep-and-bear-arms/

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I wrote about this a while ago, the racist roots of gun control and the NRA's failure to stand up for black gun owners at the time.

https://ordinary-times.com/2018/11/09/the-right-of-the-people-but-not-those-people-to-keep-and-bear-arms/

On “Wednesday Writs: Espinoza v. Montana Department of Revenue

I should have mentioned.... the attorney general of Montana refused to handle the case because he or she had warned the legislature, in writing, that Rule 1 was likely unconstitutional.

On “From LA Times: Golden State Killer suspect agrees to guilty plea in a deal that spares him death penalty

I have been following this case closely and am rather shocked he is agreeing to this, seeing as how CA's death penalty is for show only and nobody has been executed in going on 15 years, and DeAngelo strikes me as the type of asshole who would go to trial just to retraumatize his victims.

On “SCOTUS Rules in Favor of LGBT Rights in Workplace Discrimination Case

Spot on. And some legal commentators have already speculated as much.

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It's worth noting that Gorsuch agrees for the purposes of the opinion that sex means what it mean then: biological distinctions between male and female.
The notion that Gorsuch is arguing that the definition of "sex" as used in the statute has changed or must be updated for modern times is incorrect. Rather, he says the result reached when applying the statute to the facts of this case may have been one that was not intended back then but that is not a deciding concern when interpreting the text.
I did a full write-up on the decision in Writs today, if you are interested.

On “Wednesday Writs: SCOTUS, Gorsuch, and The Amalgamation of Bostock

I noticed that, too. I meant to point that out, actually, so thank you for doing so.

On “Wednesday Writs: Mailing It In Edition

Several years ago my client was up on a probation violation. Among the evidence the prosecutor tried to admit was a print out from my guy’s Facebook with a post saying something incriminating, like about drugs or a gun or something.
The judge was a really tough one, equally an asshole to all parties.
I objected on grounds of authentication, that he couldn’t prove it was really my client’s FB. So he asks the PO about the profile pic to establish that it’s my client, I continued to object successfully and he simply could not figure out why the judge kept sustaining me. The judge understood what I was saying but the pros didn’t; it may have been a pic of my guy and a page purporting to be my guy, but there was no way to prove he himself had created it. Anyone could do it with a photo of anyone else. You’d need FB and technical evidence about metadata etc. to trace it back to my client definitively.
Now, a probation violation only needed to be proven by preponderance of the evidence and the judge totally could have decided it was more likely than not my client and admitted it. But like I said, he was a dick.
That prosecutor was super mad.
(Also it was totally my guy’s FB page.)

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Geez, you all are soooo demanding.
https://www.abajournal.com/web/article/courts-and-lawyers-struggle-with-growing-prevalence-of-deepfakes

On “Unqualified: The Winding Road of Qualified Immunity

Where is this new video? I’m looking and not finding it anywhere. Have a link?

On “Derek Chauvin’s Charges, Explained

Someone on Twitter pointed out that there is some case law that 3rd degree can’t be used when the defendant had a specific target. If that’s the case then 2nd may be more appropriate after all. But then again, an (admittedly quick) look at the caselaw shows that they’re really inconsistent about it.

On “Unqualified: The Winding Road of Qualified Immunity

Derek Chauvin did not know that Floyd had fentanyl in his system. A knee to the neck and a face shoved into pavement is not seizure prevention protocol. And if he was already complaining of breathing difficulties, Chauvin's actions and disregard for that are only more egregious.

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I don't think that makes much sense. The other three could have easily been charged with aiding and abetting third degree murder too, or even the second degree manslaughter charge. https://www.revisor.mn.gov/statutes/cite/609.05

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I did a write up on the charging statutes, but didn't want to get into the weeds on lesser included offenses because I am not up to speed on Minnesota law. I might try to see what I can find out.
In the meantime here's my piece on the various murder/manslaughter charges against them and their differences.
https://ordinary-times.com/2020/06/05/derek-chauvins-charges-explained/

On “Derek Chauvin’s Charges, Explained

You're very welcome, glad it's helpful.

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There are statements that they had been trying to get him in the car after he was handcuffed and were unable to due to his resistance, which led to the scuffle on the ground. I also read that one of the officers got a hobble restraint out but someone, maybe Chauvin? opted to continue with physical restraint rather than use it.

On “Unqualified: The Winding Road of Qualified Immunity

He could possibly sue the cops in their individual, not professional, capacity; i.e., not under color of law. (That would be an interesting situation if the defendants then argue that they were in deed acting as agents of the government when they stole...)

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That's why I called it a self-defeating loop: They invoke QI because there is no case calling it unconstitutional, and there is no case calling it unconstitutional because they invoke QI, which is granted because there is no case holding that it is unconstitutional... etc etc.
(Keeping in mind things can be determined to be unconstitutional in ways other than via 1983 suits.)

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I tend to agree. It's part of what I meant when I said there are plenty of other ways to get a case tossed without claiming QI. But a judge or jury accepting the government version of events is definitely a concern in these cases. Just like the case I mentioned here with the pistol whipping. The events were basically undisputed. Even though the Court decided that QI covered the officer, they also sort of said even if it didn't, that force was justified under the circumstances, so there was no constitutional violation anyway.