Commenter Archive

AvatarComments by Em Carpenter

On “Derek Chauvin’s Charges, Explained

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.

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It's illegal, but no case law has deemed it unconstitutional. If I recall the 9th circuit acknowledged the officers could be prosecuted criminally for it. They just can't sue under 1983 because they say there is no precedent for those actions being a violation of civil rights.
I don't agree. The constitution says government cannot deprive you of your property without due process and clearly, they are depriving him of his property. When it was seized it was via legal search and seizure, as far as I know, so there was due process there... but then they kept it. Which has apparently never been taken up and decided by a court to be a constitutional violation...
And there is an argument that while the seizure was in the course of official duties, the theft was not, which would eliminate the "under color of law" element.

On “Wednesday Writs: Lloyed Gaines Fights the Power Edition

Really? I remember my IP exam being open book, but I don’t think most of mine were. I know evidence wasn’t.

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Not to mention probably more than half of the practice of law involves finding the answer rather than knowing the answer. And open book might help you find the law or concept; applying it to the facts is the part that matters. I'm ok with the open book test thing.

On “Wednesday Writs: Say It to My Face Edition

Fixed. It is here: https://www.abajournal.com/news/article/lawyer-suspended-for-giving-clients-business-a-bad-review-in-good-for-the-gander-retaliation

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Gah. Sorry! I need an editor for myself.

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I'll add that the reasoning for it to be an exception from the hearsay rule is that a person in that situation is assumed to have no reason or motivation to be lying. Same rationale for hearsay exceptions that apply to statements given to medical personnel in the course of obtaining treatment.

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There is a hearsay exception for “dying declaration”, but I’ve only seen it as something a person is saying as they are actively dying, like “Jaybird shot me!” as I bleed out and die. Not a planned ahead recorded statement.

On “Let Slip the Dogs of Quarantine

There are definitely a lot of those, especially the pit mixes. But also a lot of mutts of various origins. Mine are beagles mixed with who knows what. It’s worth checking. I can’t post pictures so I changed my avatar to them :).

On “Wednesday Writs: In Utero Edition

Yeah, my idea of the social contract is ensuring people have the means to be healthy and well fed, nothing to do with the aesthetics of one's lawn.
And clearly, nothing says "individuality" like a neighborhood full of perfectly landscaped, neutral toned cookie-cutter houses.
No basketball hoop in your own damn driveway. Not allowed to park your work truck there, either. Shorten your flagpole, don't paint your door red, etc etc etc.... All just super important to the fabric of society.

On “Wednesday Writs 4/22: Ramos v. Louisiana

No, just like I think a conviction should require 12 unanimous votes, so does an acquittal. No consensus= mistrial.
But it can be an indicator to a prosecutor whether or not retrial is a good idea or not.

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I suspect Alito's allegiance to precedent will suddenly dissolve when Roe is at stake. Or perhaps he will shock the world with a swing vote to the libs? (I'll eat my hat, and yours too.)

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Well, as you probably read, the opinion makes it applicable to cases currently on direct appeal but leaves open the question of whether the holding applies to habeas corpus/post-conviction relief (with Kavanaugh opining that it definitely does not.) So I think until that particular question makes its way back up, those with final convictions who have exhausted direct appeals are SOL.

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One thing that has occurred to me is that if 2 jurors (assumed to be reasonable via voir dire) find reasonable doubt, then doesn’t it follow that reasonable doubt exists?

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It happens a lot in criminal cases. That's a nice Venn diagram of people on the left and right who fall on the side of protecting defendant's rights -- and also one which shows great overlap among those "tough on crime" die hards who don't.

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I assume you know, but in case anyone doesn't, reliance interest is important because people, businesses, and governments make decisions every day based on what they believe to be established law. I agree with a conservative approach to upending longstanding precedent that has wide-spread implications. But there are clearly circumstances in which "the consequences of being right", as Gorsuch puts it, are of little importance in the face of egregious injustice.

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Technically, 6-3 in favor of Ramos but for a variety of different reasons, with Alito, Roberts, and Kagan dissenting.

On “Harsh Your Mellow Monday: Problems, Progress & Progressive Edition

This was the one that made me unfollow. (Sub Trump, and yes, I would still unfollow.)

https://twitter.com/thebabylonbee/status/1250095459730771968?s=21

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“Two hours IS lightning fast. Here, the ONLY place that does pick up currently (the wal-mart), you gotta get super lucky to get a slot. It’s kind of like an old-skool eBay auction for a hot commodity.”

Yeah. Recognize your privilege, Andrew.
:D

On “Quarantine Life: The WebEx

I wrote this to mirror almost exactly the meeting I had yesterday. The VP/SVP sniping at each other over the format of the meeting notes was a thing to behold.
In the end, we had no action items.

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Yeah, teleconferencing/web conferencing isn't new to us either - we have a lot of remote employees around the country, and I'm one of them. We have two 2 corporate headquarters, one in the east and one in the northern midwest, and both of them are closed right now and so there are now dozens or hundreds more of us working from home. Part of the problem is variously bad internet connections and those of us who are used to doing the web conferences from conference rooms where someone else runs the equipment.
Fortunately, our server does not seem able to handle the load if everyone has their cameras on, so we mostly keep them off. Which is good for me because I haven't brushed my hair in weeks.