Dude. What world are you living in? The decision we're talking about was written by former Chief Justice Rehnquist. The federal government and most state governments are controlled by the de facto conservative political party. This is nowhere on their agenda.
Correct, sort of. In order to convict, the jury needs to be convinced that the cop did something other than what that hypothetical reasonable officer would do.
I think criminal convictions are sort of the crown jewels of deterring and punishing police misconduct. The cases should be brought but in the current system chances of success are slim. There's a lot more small ball that could meaningfully increase accountability at a local and state level. Those smaller victories may be a pre-requisite for consistently being able to convict officers for crimes against citizens.
Not quite. The jury is effectively being asked 'Did the state prove beyond a reasonable doubt that a reasonable officer placed at the scene as the defendant and under the same circumstances would not have feared for his life? If the state did not prove that you should acquit.'
It is systemic but that means you need to address it on different fronts. You're never going to get everyone to agree on a standard of reasonableness. However, you might be able to build a political coalition willing to pass changes around public sector liability, give teeth to citizen review boards, codify police conduct, or even appoint a judge willing to cause a conflict in precedent in a helpful way.
I think this is exactly the wrong way to look at the situation. This happened because of many small policy decisions implemented over a long period of time. It can only be undone by unwinding/reforming lots of little parts in the system. There is no magic cog or silver bullet.
People on the gun rights side I don't think always appreciate the extent to which the police have become more like the standing army feared by the founding generation. There's also, in my anecdotal and totally unscientific experience, a misplaced cultural affinity in the loudest parts of the gun rights community with law enforcement. They speak a common language about self-defense but I dont think most non-LEO gun owners understand that from the LEO perspective the citizen gun owner is the threat.
Very complicated question. SCOTUS could re-interpret the issue in which case it'd then go down through the courts and set various other, new precedents, depending on what the new rule is. A constitutional amendment around police use of force could also change the standard in some way, and it in turn would then be interpreted by the courts.
Legislatures aren't powerless though. Most of these incidents involve state and local police and state governments can set their own rules around liability for public employees, regulate their police forces, and write their own criminal codes. State courts also have a lot of freedom to interpret their own state constitutions in ways that might add some more balance.
There is a huge web of bad policy and jurisprudence that got us to where we are and, as this incident illustrates, simple solutions like cameras arent going to fix it. To me the avenue to doing something about it is similar to whats happened with marijuana legalization and to a lesser extent gay marriage. Change the paradigm enough at the state and local level and the federal precedents won't matter as much.
Graham (and its progeny) set the standard for how use of force by the police is analyzed under the 4th Amendment. Of critical importance, the court held that whether or not a use of force (seizure) is reasonable is judged from the perspective of a 'reasonable officer on the scene' without regard to the officer's underlying intent or motivation, and not 'with the vision of 20/20 hindsight'.
The way courts have applied this rule ever since has effectively been to give the police a pass as long as they can articulate something (even if that something in any normal context would be absurd) that, based on their experience as a police officer, put them in fear for their lives. The go to is 'furtive movements' or like poor Shaver, 'reaching for the waistband.'
I think its helpful to look at these decisions in the context of the times they were written (mostly the 80s) when crime and violence, especially around drug trafficking, was much worse and much more of a political hot button issue. They're built on all kinds of (in my opinion questionable) assumptions about the split second life or death decisions police supposedly have to make. I still think the decisions were wrong at the time but thats the perspective that the jurisprudence governing these incidents is coming from.
Just to add, what drives people nuts is that they tend to ask the question 'was this shoot objectively reasonable under the circumstances' or 'was the person harmed actually a threat to the officer.' That isn't the question the law asks and its not what juries are told to determine. Once you understand that, these acquittals start to make a lot more sense.
@oscar-gordon There's no way a prosecutor takes these on for kicks. Sometimes its a matter of public pressure but I think mostly when they do they want to succeed. A big part of the problem as that the legal standard set primarily by Graham v. Connor is extremely deferential to police. It could effectively be called the 'reasonably scared cop rule.'
To get a sense of how this plays out in practice, take a look at Arizona jury instruction 4.10 (3a) (you can download them here). Not certain without finding the trial transcript, but this or something very like it is probably what the jury in the Brailsford case was told to determine. The big burden is around section 5 where its asking did the prosecution prove beyond a reasonable doubt that the officer did not reasonably believe it was necessary to defend himself.
Think about that standard for a minute. How do you prove a negative about another person's state of mind? Even without the myriad of ways people are biased in favor of the police, its really easy for a juror acting in good faith, even one who is disgusted with the shooting, to say the state didn't prove that. Some version of this is what jurors are typically being told in these cases and its completely consistent with what the law is. Juries, I think, are mostly applying the law correctly, its just really bad law. Then you throw in all the cultural baggage on top of it, and well...
One terrible movie a couple friends and I have made a semi-tradition of watching around Halloween is Spookies. It is in fact two movies spliced together and got a lot of circulation on USA networks Up All Night. I'd recommend it for your gathering, Burt, if you haven't seen it.
My favorite show to feature bad or strange fare was Joe Bob Briggs' Monstervision. Ah the days before cable matured.
Reading this I think we may be talking passed each other. There are aspects of how things are done now I have my qualms about but I'm not losing loads of sleep over it. What I'm hearing is calls for unspecified change around the issue. Thats what I'm challenging.
The military is another beast and I'm not sure thats a good model for this discussion. What you're talking about out in the working world sounds kind of Orwellian to me and ripe for abuse. Now I think in practice, for college educated professionals 'pick the relationship or the job' isn't so terrible (even if I don't love it) but thats not most people. Outside of extraordinary circumstances I just can't be so sanguine about private companies delving into their employees' sex lives.
It sounds to me like the kind of thing that in practice further empowers employers at the expense of everyone else. I also can envision a trajectory not unlike all those drug laws written for kingpins but enforced against the poor. So here's my question- is making it tougher on the Bill Clintons of the world worth the downstream repercussions? Maybe someone has done the math on that but I'd need to see it before I could entertain getting on board.
Ok I see what you're saying but I'm still not sure I see a solution beyond the types of policies that already exist around sexual harassment. POTUS v. Intern is probably about the starkest power differential we could ever come up with, and I'm fine with a rule that says 'POTUS may not have sexual relationships with interns.' What bothers me is that the further into the social/economic ladder this goes the murkier it gets.
So my question is this: is the rule that punishes the POTUS for consensual sex with the Intern also going to be used to punish the consensual relationship between the cashier and the day shift supervisor, or the server and the assistant manager, and are we sure we are comfortable with that writ large across society? I ask because right now I'm envisioning a power dynamics org chart that says who it is and isnt permissible for people to have consensual sex with and I'm not sure thats a world we want.
Fair enough, but I guess that leads me to the question of what's your point then? Just that Bill is an icky guy? If that's it I agree but it sounds like there's more to it that I'm missing.
I can't speak for others but part of the issue I have with this is the lack of limiting principles and clear coherent proposal defining specifically what conduct is to be addressed and how to address it. We have laws on the books prohibiting sexual harassment, rape, sexual battery and all manner of offenses. We incentivize the private sector to come down harshly on anything that could remotely be construed as inappropriate in employee relations*. In fact, we are so into punishing people and so paranoid about sex and sex crimes that we even make teenagers register as sex offenders for all kinds of stupid teenager things.
You may hear empathy for powerful men, but what I think is more prevalent is skepticism for what you're selling. It sounds suspiciously like there's a movement afoot to (often post hoc) evaluate and punish people (read men) for all manner of sexual relationships, including ones that were consistent with recent-past social norms, based on unclear, poorly defined criteria. One doesn't have to be shedding tears for high profile creeps to be concerned about a project like that. If whats been going on at colleges is any guide the skepticism is not only warranted but crucial in avoiding similar mistakes to those we've made before.
*I'm not saying all of these things are bad, just that the idea that this is something thats gone unaddressed has no basis in the modern United States.
I think most people could agree it was ill-advised, dumb, and irresponsible. It might even be unethical. That's not the same thing as nonconsensual. People consent to idiotic and detrimental things all the time.
I guess it depends on how we define success. Bill Clinton gave the center left a viable political counter to the Reagan view of the world that still prevailed. His election was consistent with where the world was at the time as evidenced by similar administrations coming to power in the West (Tony Blair's Labor, Gerhard Schroeders SDP, etc.).
Did he get everything right? No. Is there a really strong argument that his wife's career his presidency propelled way outlived its usefullness? Yes. Should the Democratic party probably reassess the utility of some of the Third Way ideology its leaders have been muddling along with ever since? Absolutely.
But even with all that I think he did a lot to modernize what was a moribund party and most importantly from a purely partisan perspective he knew how to win. That ain't nothing.
I don't think its a selling out so much as the tactical stupidity of embracing a leader from a different era. Now maybe the election of Trump proves that the only thing worse than a crime is an error. However Clinton, H. and Clinton, B. are both products of the politics of the 90s and their stances are fully consistent with what at the time was center left. Doesn't free them from criticism on policy grounds but in the 90s embrace of big finance was good politics and we were still many years away from being compelled to 'believe the survivor'/impose a particular narrative on these situations no matter the circumstances.
It isn't hide the ball its attitudes changing about sex, privacy, legal presumptions, and a bit of a cutural flipping on who wants to be the bedroom police.
I respectfully dissent. There are a million criticisms you can make about Clinton, including about the damage an affair does to a family. However there's never been a claim that any of it with Lewinsky was nonconsensual (I understand that is not the case for some of the other accusations). I posit that the talk about 'power differentials,' while not out of bounds when we're talking about personal ethics, is too relative to be a basis of social opprobrium or legal sanction. Trying to do that gets us to a place where we are second guessing people's personal decisions which are none of anyone else's damn business.
We also should be very wary of our modern tendency to infantilize people. I think this is especially so for women. Telling them they're always victims and at the mercy of men is not a way to prepare them to assert themselves when its in their interest. It might even encourage the opposite. I've got total faith that the ladies can handle themselves and am perplexed that so many of their supposed advocates apparently believe the opposite.
If we need to criticize Clinton's personal failings then I think calling him a shitty husband and father is more than fair. All this talk about 'power differentials' though is to imply that Lewinsky and maybe all women are in some way lesser and incapable of full agency. That should be rejected outright.
*Comment archive for non-registered commenters assembled by email address as provided.
On “The Tyranny Of Our Peers”
Dude. What world are you living in? The decision we're talking about was written by former Chief Justice Rehnquist. The federal government and most state governments are controlled by the de facto conservative political party. This is nowhere on their agenda.
"
Correct, sort of. In order to convict, the jury needs to be convinced that the cop did something other than what that hypothetical reasonable officer would do.
I think criminal convictions are sort of the crown jewels of deterring and punishing police misconduct. The cases should be brought but in the current system chances of success are slim. There's a lot more small ball that could meaningfully increase accountability at a local and state level. Those smaller victories may be a pre-requisite for consistently being able to convict officers for crimes against citizens.
"
Not quite. The jury is effectively being asked 'Did the state prove beyond a reasonable doubt that a reasonable officer placed at the scene as the defendant and under the same circumstances would not have feared for his life? If the state did not prove that you should acquit.'
"
It is systemic but that means you need to address it on different fronts. You're never going to get everyone to agree on a standard of reasonableness. However, you might be able to build a political coalition willing to pass changes around public sector liability, give teeth to citizen review boards, codify police conduct, or even appoint a judge willing to cause a conflict in precedent in a helpful way.
"
I think this is exactly the wrong way to look at the situation. This happened because of many small policy decisions implemented over a long period of time. It can only be undone by unwinding/reforming lots of little parts in the system. There is no magic cog or silver bullet.
"
People on the gun rights side I don't think always appreciate the extent to which the police have become more like the standing army feared by the founding generation. There's also, in my anecdotal and totally unscientific experience, a misplaced cultural affinity in the loudest parts of the gun rights community with law enforcement. They speak a common language about self-defense but I dont think most non-LEO gun owners understand that from the LEO perspective the citizen gun owner is the threat.
"
Very complicated question. SCOTUS could re-interpret the issue in which case it'd then go down through the courts and set various other, new precedents, depending on what the new rule is. A constitutional amendment around police use of force could also change the standard in some way, and it in turn would then be interpreted by the courts.
Legislatures aren't powerless though. Most of these incidents involve state and local police and state governments can set their own rules around liability for public employees, regulate their police forces, and write their own criminal codes. State courts also have a lot of freedom to interpret their own state constitutions in ways that might add some more balance.
There is a huge web of bad policy and jurisprudence that got us to where we are and, as this incident illustrates, simple solutions like cameras arent going to fix it. To me the avenue to doing something about it is similar to whats happened with marijuana legalization and to a lesser extent gay marriage. Change the paradigm enough at the state and local level and the federal precedents won't matter as much.
"
Graham (and its progeny) set the standard for how use of force by the police is analyzed under the 4th Amendment. Of critical importance, the court held that whether or not a use of force (seizure) is reasonable is judged from the perspective of a 'reasonable officer on the scene' without regard to the officer's underlying intent or motivation, and not 'with the vision of 20/20 hindsight'.
The way courts have applied this rule ever since has effectively been to give the police a pass as long as they can articulate something (even if that something in any normal context would be absurd) that, based on their experience as a police officer, put them in fear for their lives. The go to is 'furtive movements' or like poor Shaver, 'reaching for the waistband.'
I think its helpful to look at these decisions in the context of the times they were written (mostly the 80s) when crime and violence, especially around drug trafficking, was much worse and much more of a political hot button issue. They're built on all kinds of (in my opinion questionable) assumptions about the split second life or death decisions police supposedly have to make. I still think the decisions were wrong at the time but thats the perspective that the jurisprudence governing these incidents is coming from.
"
Just to add, what drives people nuts is that they tend to ask the question 'was this shoot objectively reasonable under the circumstances' or 'was the person harmed actually a threat to the officer.' That isn't the question the law asks and its not what juries are told to determine. Once you understand that, these acquittals start to make a lot more sense.
"
@oscar-gordon There's no way a prosecutor takes these on for kicks. Sometimes its a matter of public pressure but I think mostly when they do they want to succeed. A big part of the problem as that the legal standard set primarily by Graham v. Connor is extremely deferential to police. It could effectively be called the 'reasonably scared cop rule.'
To get a sense of how this plays out in practice, take a look at Arizona jury instruction 4.10 (3a) (you can download them here). Not certain without finding the trial transcript, but this or something very like it is probably what the jury in the Brailsford case was told to determine. The big burden is around section 5 where its asking did the prosecution prove beyond a reasonable doubt that the officer did not reasonably believe it was necessary to defend himself.
Think about that standard for a minute. How do you prove a negative about another person's state of mind? Even without the myriad of ways people are biased in favor of the police, its really easy for a juror acting in good faith, even one who is disgusted with the shooting, to say the state didn't prove that. Some version of this is what jurors are typically being told in these cases and its completely consistent with what the law is. Juries, I think, are mostly applying the law correctly, its just really bad law. Then you throw in all the cultural baggage on top of it, and well...
On “Welcome To The Room, A Staggeringly Bad Movie”
'You're tearing me apart, Lisa!'
One terrible movie a couple friends and I have made a semi-tradition of watching around Halloween is Spookies. It is in fact two movies spliced together and got a lot of circulation on USA networks Up All Night. I'd recommend it for your gathering, Burt, if you haven't seen it.
My favorite show to feature bad or strange fare was Joe Bob Briggs' Monstervision. Ah the days before cable matured.
"
You act like this is a bad thing.
On “Bill Clinton: Time for a Reckoning”
Reading this I think we may be talking passed each other. There are aspects of how things are done now I have my qualms about but I'm not losing loads of sleep over it. What I'm hearing is calls for unspecified change around the issue. Thats what I'm challenging.
"
The military is another beast and I'm not sure thats a good model for this discussion. What you're talking about out in the working world sounds kind of Orwellian to me and ripe for abuse. Now I think in practice, for college educated professionals 'pick the relationship or the job' isn't so terrible (even if I don't love it) but thats not most people. Outside of extraordinary circumstances I just can't be so sanguine about private companies delving into their employees' sex lives.
It sounds to me like the kind of thing that in practice further empowers employers at the expense of everyone else. I also can envision a trajectory not unlike all those drug laws written for kingpins but enforced against the poor. So here's my question- is making it tougher on the Bill Clintons of the world worth the downstream repercussions? Maybe someone has done the math on that but I'd need to see it before I could entertain getting on board.
"
Ok I see what you're saying but I'm still not sure I see a solution beyond the types of policies that already exist around sexual harassment. POTUS v. Intern is probably about the starkest power differential we could ever come up with, and I'm fine with a rule that says 'POTUS may not have sexual relationships with interns.' What bothers me is that the further into the social/economic ladder this goes the murkier it gets.
So my question is this: is the rule that punishes the POTUS for consensual sex with the Intern also going to be used to punish the consensual relationship between the cashier and the day shift supervisor, or the server and the assistant manager, and are we sure we are comfortable with that writ large across society? I ask because right now I'm envisioning a power dynamics org chart that says who it is and isnt permissible for people to have consensual sex with and I'm not sure thats a world we want.
"
Fair enough, but I guess that leads me to the question of what's your point then? Just that Bill is an icky guy? If that's it I agree but it sounds like there's more to it that I'm missing.
"
I can't speak for others but part of the issue I have with this is the lack of limiting principles and clear coherent proposal defining specifically what conduct is to be addressed and how to address it. We have laws on the books prohibiting sexual harassment, rape, sexual battery and all manner of offenses. We incentivize the private sector to come down harshly on anything that could remotely be construed as inappropriate in employee relations*. In fact, we are so into punishing people and so paranoid about sex and sex crimes that we even make teenagers register as sex offenders for all kinds of stupid teenager things.
You may hear empathy for powerful men, but what I think is more prevalent is skepticism for what you're selling. It sounds suspiciously like there's a movement afoot to (often post hoc) evaluate and punish people (read men) for all manner of sexual relationships, including ones that were consistent with recent-past social norms, based on unclear, poorly defined criteria. One doesn't have to be shedding tears for high profile creeps to be concerned about a project like that. If whats been going on at colleges is any guide the skepticism is not only warranted but crucial in avoiding similar mistakes to those we've made before.
*I'm not saying all of these things are bad, just that the idea that this is something thats gone unaddressed has no basis in the modern United States.
"
@maribou if I'm misreading him I'm happy to be corrected. Two of his comments above mention consent which is why my responses also discuss it.
"
I think most people could agree it was ill-advised, dumb, and irresponsible. It might even be unethical. That's not the same thing as nonconsensual. People consent to idiotic and detrimental things all the time.
"
I guess it depends on how we define success. Bill Clinton gave the center left a viable political counter to the Reagan view of the world that still prevailed. His election was consistent with where the world was at the time as evidenced by similar administrations coming to power in the West (Tony Blair's Labor, Gerhard Schroeders SDP, etc.).
Did he get everything right? No. Is there a really strong argument that his wife's career his presidency propelled way outlived its usefullness? Yes. Should the Democratic party probably reassess the utility of some of the Third Way ideology its leaders have been muddling along with ever since? Absolutely.
But even with all that I think he did a lot to modernize what was a moribund party and most importantly from a purely partisan perspective he knew how to win. That ain't nothing.
"
This... is not how I remember things.
On “Tech Tuesday 11/21”
AERO3 is crazy. Had that comet not hit maybe we'd be real live lizard people.
Also @oscar-gordon a fogo de chau Thanksgiving sounds awesome hope you enjoy it.
On “Bill Clinton: Time for a Reckoning”
I don't think its a selling out so much as the tactical stupidity of embracing a leader from a different era. Now maybe the election of Trump proves that the only thing worse than a crime is an error. However Clinton, H. and Clinton, B. are both products of the politics of the 90s and their stances are fully consistent with what at the time was center left. Doesn't free them from criticism on policy grounds but in the 90s embrace of big finance was good politics and we were still many years away from being compelled to 'believe the survivor'/impose a particular narrative on these situations no matter the circumstances.
"
@jaybird
It isn't hide the ball its attitudes changing about sex, privacy, legal presumptions, and a bit of a cutural flipping on who wants to be the bedroom police.
"
I respectfully dissent. There are a million criticisms you can make about Clinton, including about the damage an affair does to a family. However there's never been a claim that any of it with Lewinsky was nonconsensual (I understand that is not the case for some of the other accusations). I posit that the talk about 'power differentials,' while not out of bounds when we're talking about personal ethics, is too relative to be a basis of social opprobrium or legal sanction. Trying to do that gets us to a place where we are second guessing people's personal decisions which are none of anyone else's damn business.
We also should be very wary of our modern tendency to infantilize people. I think this is especially so for women. Telling them they're always victims and at the mercy of men is not a way to prepare them to assert themselves when its in their interest. It might even encourage the opposite. I've got total faith that the ladies can handle themselves and am perplexed that so many of their supposed advocates apparently believe the opposite.
If we need to criticize Clinton's personal failings then I think calling him a shitty husband and father is more than fair. All this talk about 'power differentials' though is to imply that Lewinsky and maybe all women are in some way lesser and incapable of full agency. That should be rejected outright.
*Comment archive for non-registered commenters assembled by email address as provided.