Re: Two related things

1

I cannot but here

If not here, then where?


Posted by: teofilo | Link to this comment | 04-23-11 9:28 PM
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I didn't say there wouldn't be any unrelated things

Ah, implicature.


Posted by: redfoxtailshrub | Link to this comment | 04-23-11 9:40 PM
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My local radio station heavily plays a bluegrassy cover of "99 Problems" by ... (pause to google) ... some dude named Hugo.


Posted by: Parenthetical | Link to this comment | 04-23-11 9:46 PM
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It's not nice to make fun of those whose mental health is in severe decline, teo.


Posted by: nosflow | Link to this comment | 04-23-11 10:17 PM
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Who's making fun? I'm just here to gently push for maximal grammaticality in the posts. Shrub seems to have the felicity beat covered.


Posted by: teofilo | Link to this comment | 04-23-11 10:29 PM
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What's the deal with the Tom Scharpling show? How often is it actually funny? I'm starting to think that if I don't like Andy Kaufman, which I don't, I won't like the Tom Scharpling show.


Posted by: Cryptic ned | Link to this comment | 04-23-11 10:30 PM
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2: just for you.


Posted by: nosflow | Link to this comment | 04-23-11 10:40 PM
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There's a couple different things going on in the traffic stop.

"License and registration and step out of the car"
"Are you carryin' a weapon on you I know a lot of you are"
I ain't steppin out of shit all my paper's legit

The question about the weapon is within the scope of a traffic stop as is the license and registration. But refusal to get out of the car is a no go. That's a lawful order as laid down by the Supreme Court over 30 years ago in Pennsylvania vs. Mimms. The refusal in and of itself could be grounds for an arrest.

"Well, do you mind if I look round the car a little bit?"
Well my glove compartment is locked so are the trunk in the back
And I know my rights so you gon' need a warrant for that

Now we're to an obvious request for a consent search. If the cop can articulate a reasonable suspicion of "armed and dangerous" than he can perform a Terry Frisk which can include areas of the car readily accessible to the subject. In that case Jay's right that the cop could not legally access the locked glovebox and trunk. However, plain view of another offense like drug paraphernalia would get him into those locked areas. Alternatively, a hit from a drug dog would be PC to the whole car, hence the "We'll see how smart you are when the K9 come".


Posted by: gswift | Link to this comment | 04-24-11 12:04 AM
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+;


Posted by: JP Stormcrow | Link to this comment | 04-24-11 4:51 AM
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nosflow, I'd like you to review that post from the point of view of an average middlebrow reader, and sit quietly for a while and think about what you've done.


Posted by: Hamilton-Lovecraft | Link to this comment | 04-24-11 6:58 AM
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Alternatively, a hit from a drug dog would be PC to the whole car, hence the "We'll see how smart you are when the K9 come".

... which is itself depressing, given false-positive concerns. Sigh.


Posted by: x.trapnel | Link to this comment | 04-24-11 7:07 AM
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11: It's almost as if the system isn't set up for everyone to be treated equally justly.


Posted by: Hamilton-Lovecraft | Link to this comment | 04-24-11 7:27 AM
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Songs about what it's like to be black are the new songs about what it's like to be in a rock band.


Posted by: Todd | Link to this comment | 04-24-11 7:31 AM
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Happy Easter, you guys! Remember that today is Jesus' day! We're all blessed 'cause He's The Best!!!


Posted by: Pauly Shore | Link to this comment | 04-24-11 7:48 AM
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Wait, you're telling me that bringing in drug dogs isn't a search?


Posted by: Unfoggetarian: "Pause endlessly, then go in." (9) | Link to this comment | 04-24-11 8:12 AM
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Christos anesti!

Alithos anesti!


Posted by: Pauly Shore | Link to this comment | 04-24-11 9:21 AM
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10: either I'm just incapable of doing that properly or, having done it, I still don't see what it is that I've done.

Now we're to an obvious request for a consent search.

See, I am completely unprepared to know that there's a distinction between "step out of the car" and "mind if I look around the car?". One is, admittedly, posed in the form of a question, but one can easily imagine that it's delivered in a peremptory "I don't really have to ask you this" mode, and that the former request comes in the form of, say, "would you step out of the car, please?". Given my uncertainty about what I can actually do in this situation without providing grounds for arrest where otherwise there might have been none, you can bet I'm going to exhibit a lot of deference—which isn't at all the same thing as giving consent, because I don't even know if a police officer has to reply truthfully if I ask, "do I have to do that or are you really asking?".


Posted by: nosflow | Link to this comment | 04-24-11 9:26 AM
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||

Obama Must Lose in 2012 ...Ian Welsh

Obama is not turning things around, what he is doing is negotiating with Republicans how fast the decline will be, and how much and how fast it is necessary to fuck ordinary Americans in order to keep the rich rich. If Obama wins another term, he will continue to negotiate the decline, then, odds are very high, a Republican will get in, and slam his foot on the accelerator of collapse.

This is why Obama must lose in 2012. I would prefer that he lose to a Democrat in a primary, then that Democrat wins, but he must lose regardless. If he loses to a Republican, then 2016 you get a chance to put someone in charge who might do the right things (or even just some of them.)

No, those odds aren't good. They suck. Every part of them sucks. And even if you get a Dem in 2016, you'll probably choose the right most candidate, just like you did last time, and he'll go back to negotiating with Republicans over what parts of the corpse of America's middle class they should dine on next. "No, no, eat one kidney first, they only need one to survive, so that's not too cruel."

But it is still your best chance. Otherwise you're looking at full, Russian-style collapse. What comes out the other end, I don't know, but you really won't enjoy getting there.

Vote Republican. Since I can't I will vote Green, or something.

|>


Posted by: bob mcmanus | Link to this comment | 04-24-11 10:05 AM
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Wait, you're telling me that bringing in drug dogs isn't a search?

Makes for depressing reading.


Posted by: x.trapnel | Link to this comment | 04-24-11 10:34 AM
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Apparently things are different in Canada (link perhaps not the most reliable of sources).


Posted by: x.trapnel | Link to this comment | 04-24-11 10:41 AM
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But making you wait for the arrival of the drug dog appears to be unconstitutional.


Posted by: donaquixote | Link to this comment | 04-24-11 10:49 AM
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"The implications of the findings are expected to be far-reaching. It is now unlikely that schools can invite police in to conduct random searches of lockers and backpacks, unless there is a strong suspicion that students are carrying drugs. "

What a crying shame.


Posted by: Ginger Yellow | Link to this comment | 04-24-11 11:05 AM
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||

Celebrate the resurrection by voting for my improv friend Katie Wee at the Notre Mode fashion contest, which is somehow related to her being in the running for Miss California.

|>


Posted by: k-sky | Link to this comment | 04-24-11 11:35 AM
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Yeah, extending the stop to get the dog there is not allowed. And the sniff is only the exterior of the car.

Probably not surprising but I'm don't find the sniff thing as bothersome as xtrap. A traffic stop can't be an endless fishing expedition without cause but it's also not a free pass on every other plain view crime you're committing. Having a bunch of teachers in the family tree also makes me unsympathetic to the complaints about sniffs at schools. It's school you little tools. Leave your ten bags of weed and shrooms at home.

Off to work soon. The Bible seems big on punishment so maybe I'm supposed to jail people on Christian holidays. There was that Christmas miracle with the guy who sprinkled himself with meth so maybe Easter will be similarly blessed. The Lord works in mysterious ways.


Posted by: gswift | Link to this comment | 04-24-11 11:38 AM
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10, I' far from average, but I am middlebrow.


Posted by: Coco | Link to this comment | 04-24-11 12:14 PM
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Having a bunch of teachers in the family tree also makes me unsympathetic to the complaints about sniffs at schools. It's school you little tools. Leave your ten bags of weed and shrooms at home.

I would have less of an objection to that if we didn't force kids to be in school.

I was thinking earlier today how unfortunate it is to have Easter on the same day that the Armenian Genocide is commemorated, but apparently it doesn't happen very often. I found myself shocked at how much Easter Sunday bounces around. Who knew? Everybody else, I suppose.


Posted by: x.trapnel | Link to this comment | 04-24-11 12:44 PM
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Yeah, im wondering abt the practicality of the schools thing. What if you have reason to believe a kid is dealing out of his locker or something, but the dogs also bust other kids when they come through? (I am imagining either a very fun or very scary school.) And havent they already decided that schools are kinda different, bc in loco something or other parents? (I am too hungover to google from my shitty phone.)


Posted by: donaquixote | Link to this comment | 04-24-11 12:47 PM
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In loco parentis. Question: why not "in loco parentium"?


Posted by: nosflow | Link to this comment | 04-24-11 12:55 PM
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If you have reason to believe a kid is dealing out of his locker, search the locker. But random searches are another matter.

Having a bunch of teachers in the family tree also makes me unsympathetic to the complaints about sniffs at schools. It's school you little tools. Leave your ten bags of weed and shrooms at home.

I'm obviously not condoning dealing in schools. But children have privacy rights just like us.


Posted by: Ginger Yellow | Link to this comment | 04-24-11 12:55 PM
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In loco parentis. Question: why not "in loco parentium"

Presumably because when that phrase was invented, only the father matter.

Also, further to 29, I realise the Supreme Court disagrees with me. But they disagree with me a lot on privacy.


Posted by: Ginger Yellow | Link to this comment | 04-24-11 12:57 PM
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on the same day that the Armenian Genocide is commemorated

Where have you gone, Serdar Argic?

Reminds me of the bit of sport I had with TOSsarian here a few years back when I chose to confront him with verbatim Serdar Argic rants (with slight personalizations). He was on his back foot when some conscientious front-page poster cleaned up the whole mess before I could plead for preserving them. But at least *I* had fun with it.


Posted by: JP Stormcrow | Link to this comment | 04-24-11 1:22 PM
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I cannot but hear not merely in the context of

Caca anesti


Posted by: EL SAPO | Link to this comment | 04-24-11 1:31 PM
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I kind of want to leave 32 up.


Posted by: nosflow | Link to this comment | 04-24-11 1:33 PM
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And, indeed, I have done so!


Posted by: nosflow | Link to this comment | 04-24-11 1:38 PM
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34: And continue to do so!


Posted by: JP Stormcrow | Link to this comment | 04-24-11 2:04 PM
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I am unremittingly active in this regard!


Posted by: nosflow | Link to this comment | 04-24-11 2:10 PM
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At root the main problem here is that we've made a common and unremarkable occurence (people having small amounts of marijuana) into a crime. I admit that if we had technology that with say 80% certainty barked if someone nearby had recently shot someone, I'd find that less problematic. But given that there are plenty of illegal things which shouldn't be illegal, it's really scary that you have no right against being searched for illegal things. (This is essentially what the decision seems to be saying, if you can create a technological device which basically just returns criminal activity without revealing other information, then it's automatically legal.)


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 04-24-11 2:23 PM
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Keep up the good work, neb!


Posted by: Natilo Paennim | Link to this comment | 04-24-11 2:23 PM
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For example, suppose you have a bunch of nano-robots which can search an entire car, send the data that they found to a computer which analyzes it, returns to the officer only the list of evidence of illegal activity and automatically and infaliably deletes all other data gotten from the search before it can be read or transmitted to anyone. Furthermore suppose that this can be done very rapidly. Does this make searching cars legal under all circumstances now? This decision sure makes it seem that way.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 04-24-11 2:30 PM
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Oh man, and the facts are even more ridiculous, the thing he was stopped for (driving 71 in a 65 zone on I-80) is not actually wrong and is a case of making normal behavior illegal thereby giving the police the ability to stop people just because they want to, not because they're actually doing anything wrong.

So if you make enough normal behavior illegal, then you can suddenly search people at any time for any illegal stuff you want.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 04-24-11 2:33 PM
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Yeah, is there anyone who goes at exactly 65 on a many-laned highway such as I-80 is (at least for large stretches), when traffic allows for going at least 65?

Yes: annoying motherfuckers.


Posted by: nosflow | Link to this comment | 04-24-11 2:38 PM
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41: Do you at least allow a commonsense exception in cases where there are no faster cars ahead? Or should these other drivers materially increase their risk of a ticket so that you can get somewhere 2 minutes earlier?

Yes, I am both a coward and a scofflaw.


Posted by: Benquo | Link to this comment | 04-24-11 2:50 PM
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Well, of course you should not travel faster than the prevailing speed, even if traveling no faster than that annoys you. But very often the prevailing speed is greater than the speed limit—certainly it's often greater by six miles per hour.


Posted by: nosflow | Link to this comment | 04-24-11 2:55 PM
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"the to a large extent on "Helter Skelter" based Grey Album version" s/b "the to-a-large-extent-on-"Helter Skelter"-based Grey Album version". For readability.


Posted by: Merganser | Link to this comment | 04-24-11 2:57 PM
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45

Yes, but one must strive to maximize the competing ideals of readability and fun.


Posted by: nosflow | Link to this comment | 04-24-11 3:00 PM
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Ah, but here, readability can be increased with no loss of fun!


Posted by: Merganser | Link to this comment | 04-24-11 3:01 PM
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I feel confident that the lurkers will support me on this point.


Posted by: Merganser | Link to this comment | 04-24-11 3:02 PM
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Maybe even an increase of fun, as the rhythm builds from 'filled-at-random' to 'about-to-be-mentioned' to 'to-a-large-extent-on-"Helter Skelter"-based'.


Posted by: Merganser | Link to this comment | 04-24-11 3:05 PM
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49

Well, I don't know (regarding 46); my first reaction to 44 was to wonder, but where's the fun in that?


Posted by: nosflow | Link to this comment | 04-24-11 3:06 PM
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I'm with Merganser.


Posted by: parsimon | Link to this comment | 04-24-11 3:16 PM
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51

That settles that.


Posted by: nosflow | Link to this comment | 04-24-11 3:19 PM
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You bet it does.


Posted by: parsimon | Link to this comment | 04-24-11 3:20 PM
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51: Oh, you with your double meanings.


Posted by: Merganser | Link to this comment | 04-24-11 3:32 PM
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41:I go 55, but in rightmost lane only.


Posted by: bob mcmanus | Link to this comment | 04-24-11 3:36 PM
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Why is everybody in such a hurry? What does 65 over 55 really give you in a 10-20 mile drive? Ten minutes?
I also go 10-20 around schools and residential streets.


Posted by: bob mcmanus | Link to this comment | 04-24-11 3:39 PM
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Semi-relatedly, sniffer dogs are only so useful, but I suspect that they do a good job of indicating that a dude with his hat real low is carrying.


Posted by: snarkout | Link to this comment | 04-24-11 3:43 PM
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I also go 10-20 around schools and residential streets.

10-20 is a little slow, bob. How many cars pile up behind you when you do that?


Posted by: parsimon | Link to this comment | 04-24-11 4:01 PM
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Bob's car, too, runs on annoyance.


Posted by: Minivet | Link to this comment | 04-24-11 4:05 PM
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My view is that the overall development of criminal procedure in the USA got things exactly wrong: right now, (a) there are a bevy of strange "constitutional" rules in which the US Supreme Court micromanages search and seizure for things like automobile stops, purportedly as a result of the constitution, and which can result in excluding critical evidence or letting obviously guilty people go free based on sophistic distinctions (rules which are, for those reasons, somewhat understandably chipped away at in individual cases), and (b) it is somewhere between difficult and impossible to sue the government for wrongfully arresting, wrongfully convicting, or harrassing the innocent. I would reverse those rules completely: You want to check the trunk of someone with dark skin and a low baseball cap (in the early '90s) on I-95 based on a traffic stop? Fine, but be prepared to pay monetary damages and face a class action lawsuit when that doesn't actually net evidence.

It's important to remember that basically all of the American constitutional rules for criminal procedure were the result of the Supreme Court trying to break an apartheid regime in the South in the 1950s and 1960s; things would look a lot differently if you were trying to design the system from scratch.


Posted by: Robert Halford | Link to this comment | 04-24-11 4:06 PM
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Also, Bob, this time you have crossed the line. We are now sworn enemies.


Posted by: Robert Halford | Link to this comment | 04-24-11 4:07 PM
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You want to check the trunk of someone with dark skin and a low baseball cap (in the early '90s) on I-95 based on a traffic stop? Fine, but be prepared to pay monetary damages and face a class action lawsuit when that doesn't actually net evidence.

I don't quite follow. So civil rights only apply to those free of taint of crime or evidence thereof?

Or more constructively: what is the text of the rule you would institute?


Posted by: Minivet | Link to this comment | 04-24-11 4:10 PM
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57:What the traffic will bear on thoroughfares etc. Let them pass me if I can.

Mostly taking about my own neighborhood, which I walk twice a day, and know every cat, dog, and kid. I turn onto my street and think:"One fucking minute over three blocks. What's that worth?"


Posted by: bob mcmanus | Link to this comment | 04-24-11 4:10 PM
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61 -- Whether guilty or innocent, you can sue and collect damages based on a search or an arrest that issues without probable cause. With the standard of what is or is not probable cause left as a fact question to the jury (within the same boundary constraints that govern ordinary trials, like summary judgment), and perhaps some form of statutory minimum damages (that can be multiplied or applied by a jury based on the facts of the case). This would apply something like an ordinary tort reasonableness standard to police search and seizure. Obviously this would favor completely innocent victims of police harrassment over the unsympathetic (but not completely, which is why you'd have statutory minimum damages) but I'm fine with that. I also think that a rule like that is much closer to the original understanding of the Fourth Amendment. This will never happen in a million years, of course.


Posted by: Robert Halford | Link to this comment | 04-24-11 4:20 PM
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Whether guilty or innocent, you can sue

As we rehearsed in Witt's guest post earlier, a lot of people can't afford to sue. So I don't see this as a solution.


Posted by: parsimon | Link to this comment | 04-24-11 4:30 PM
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Contingency fees, my dear Parsi. And if the case doesn't look like it's worth bringing to recover damages, it probably shouldn't be brought -- that's part of the idea.


Posted by: Robert Halford | Link to this comment | 04-24-11 4:34 PM
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Or, you could adjudicate whether or not there was probable cause as part of the criminal case, where free representation is mandatory, though there are disadvantages to linking the procedures.


Posted by: Robert Halford | Link to this comment | 04-24-11 4:36 PM
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56: ah yes, that's the article I had in mind. Depressing as hell. But luckily the Sox are on a roll, so I'm not going to think about it too much.


Posted by: x.trapnel | Link to this comment | 04-24-11 4:43 PM
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65: Isn't it better to head the (potential) need to bring suit off at the pass to begin with?


Posted by: parsimon | Link to this comment | 04-24-11 4:52 PM
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Isn't it better to head the (potential) need to bring suit off at the pass to begin with?

How do you propose to do that?


Posted by: nosflow | Link to this comment | 04-24-11 4:54 PM
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By having the police regulate themselves, perhaps.


Posted by: nosflow | Link to this comment | 04-24-11 4:55 PM
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Sure, but the question is what's the best way to create a system in which arrests and searches are made only on the basis of probable cause (the overwhelming majority are, of course). The current system doesn't work at all for some of the reasons pointed out in both the Jay-Z song and the original post: the rules are sophistic and incredibly confusing, and the only people who tend to know them are cops, criminal lawyers, and hardcore criminals, and there's no effective way to micromanage the system through the courts.


Posted by: Robert Halford | Link to this comment | 04-24-11 4:56 PM
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71 to 68.


Posted by: Robert Halford | Link to this comment | 04-24-11 5:03 PM
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Now I'm completely puzzled: the problem outlined in the OP and as explicated by nosflow in 17 is that people don't generally know what their rights are in the first place. One obvious solution to that is to apprise them more clearly of their rights, whether through civics education or other means.

Halford, you seem to me to be proposing that we let cops do whatever they do, and if they fuck up, we can sue them. Eh? Isn't that a rough approximation of the current system?

I must be missing something.


Posted by: parsimon | Link to this comment | 04-24-11 5:04 PM
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Also, in my fantasy criminal procedure system, the judicial warrant would work like an immunity -- not mandatory for a search or an arrest, but if the cops get the probable cause for the search or arrest approved by a judge in advance, they have an affirmative defense to any lawsuit based on a lack of probable cause for the search described in the warrant.


Posted by: Robert Halford | Link to this comment | 04-24-11 5:06 PM
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The current system is that cops, lawyers, and serious criminals exploit a series of ad-hoc, incredibly complex rules for search and seizure created by the Supreme Court. The primary remedy if the cops violate one of those ad-hoc rules isn't that you can sue the cops, but that if a guilty person is convicted based on evidence obtained through an illegal search, he will go free (yes, this is a ridiculous oversimplification of the "fruit of the poisonous tree" doctrine). This (a) doesn't particularly incentivize the cops, who can often come up with workarounds to avoid the various rules; (b) gives the benefits of constitutional rules primarily to people who are, in fact, clearly guilty of a crime, and whom we often would generally want to have been imprisoned and (c) as a result of (b) leads courts to chip away at the rules mentioned in (b).

Civics education cannot conceivably fill the void. Criminal procedure is a hard.


Posted by: Robert Halford | Link to this comment | 04-24-11 5:14 PM
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I could edit my comments, or I could say fuck it.


Posted by: Robert Halford | Link to this comment | 04-24-11 5:25 PM
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Editing is a hard.


Posted by: Sifu Tweety | Link to this comment | 04-24-11 5:29 PM
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In my fantasy, editing is done by lawyers who work for $7.68/hour.


Posted by: Moby Hick | Link to this comment | 04-24-11 5:32 PM
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Now I'm completely puzzled: the problem outlined in the OP and as explicated by nosflow in 17 is that people don't generally know what their rights are in the first place.

There's also the problem that the rights make no fucking sense. For instance, in order to enjoy your right to be silent, you have to affirmatively assert it, you can't just be silent. (Nor is it, of all things, presumed!) Did you know that? I was just informed. Why should this be the case? God only knows. Now I know it, and you do too, and that's fine. But it's a fucking stupid rule.


Posted by: nosflow | Link to this comment | 04-24-11 5:33 PM
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You mostly want to correct for the possibility that a guilty person will go free due to procedural misconduct on the part of the police?

(And on review, I see that you did say this in 59; and for those following along at home, cf. 63's this would favor completely innocent victims of police harrassment over the unsympathetic (but not completely, which is why you'd have statutory minimum damages) but I'm fine with that.)

But Halford, I thought the task was rather to protect the guilty-seeming (because, you know, black or low-slung, but possibly not at all guilty, even remotely) from what we tend to call unreasonable search and seizure.


Posted by: parsimon | Link to this comment | 04-24-11 5:35 PM
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80 to 75.


Posted by: parsimon | Link to this comment | 04-24-11 5:37 PM
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79: What if you kept silent for a long time? Would they take a hint?


Posted by: Moby Hick | Link to this comment | 04-24-11 5:37 PM
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The guilty-seeming can yet be completely innocent.


Posted by: nosflow | Link to this comment | 04-24-11 5:37 PM
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79: What if you kept silent for a long time? Would they take a hint?

They might well realize what you meant to do, but since you haven't said the magic words, they don't have to respect that.


Posted by: nosflow | Link to this comment | 04-24-11 5:38 PM
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gives the benefits of constitutional rules primarily to people who are, in fact, clearly guilty of a crime, and whom we often would generally want to have been imprisoned (emphasis added)

This might be true, but I suspect this perception is due largely to the fact that the ones who make a big deal about the rules in court are the guilty ones, because they're the ones that have a lot to gain (viz., evidence suppression). But they aren't the only oness affected by these sorts of prophylactic rules; what doesn't happen is also very important. When cops follow the rules, and don't end up with evidence as a result, both because they followed the limiting rules and because the person in question was innocent, you never hear about it. I agree with your claim that cops try to find ways around this, and often do, but do you really think these rules do nothing to limit how cops treat people, including the innocent?


Posted by: x.trapnel | Link to this comment | 04-24-11 5:38 PM
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Plus, naturally, UF-9's concerns about overcriminalization.


Posted by: x.trapnel | Link to this comment | 04-24-11 5:41 PM
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83: yeah, but Halford said "unsympathetic" in contradistinction, so we know what he means by "completely innocent."


Posted by: parsimon | Link to this comment | 04-24-11 5:43 PM
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Oh, sure, it's not like the various constitutional rules have done nothing at all, including to protect innocent people. I just think that both things that we want with searches and seizures -- giving cops the ability to find evidence to convict the guilty, but making sure that both searches and arrests are only made based upon probable cause (which is really just a fancy way of saying that the cop has a solid reason to believe that the search or arrest is justified, and isn't just acting for purposes of harrassment) would be better served by moving to a liability system instead of the exclusionary rule and the much of the rest of our largely incomprehensible world of criminal procedure.


Posted by: Robert Halford | Link to this comment | 04-24-11 5:48 PM
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83: yeah, but Halford said "unsympathetic" in contradistinction, so we know what he means by "completely innocent."

You don't think the guilty are unsympathetic?


Posted by: nosflow | Link to this comment | 04-24-11 5:51 PM
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To 80, the "task" for search and seizure jurisprudence is what I stated above: giving cops the ability to find evidence to convict the guilty, but making sure that both searches and arrests are only made based upon probable cause (which is really just a fancy way of saying that the cop has a solid reason to believe that the search or arrest is justified, and isn't just acting for purposes of harrassment)


Posted by: Robert Halford | Link to this comment | 04-24-11 5:52 PM
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Or do you think that Halford thinks that young-black-hat-slung-low men are somewhat guilty?


Posted by: nosflow | Link to this comment | 04-24-11 5:52 PM
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They are somewhat guilty of fashion crimes: Dressing like the 1990s!


Posted by: Robert Halford | Link to this comment | 04-24-11 5:54 PM
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much of the rest of our largely incomprehensible world of criminal procedure.

OTOH, probably a lot of this incomprehensibility could have been avoided if jurisprudents didn't go in to such a great degree for casuistry, sophistry, muddy thinking, specious arguments, and "reasoning" engaged in purely for show so as to prop up expedient, given-in-advance conclusions.


Posted by: nosflow | Link to this comment | 04-24-11 5:54 PM
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I guess I mean "judges" rather than "jurisprudents". Remember, only use $5 words you know and trust.


Posted by: nosflow | Link to this comment | 04-24-11 5:55 PM
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I took 91 to be the case.


Posted by: parsimon | Link to this comment | 04-24-11 6:06 PM
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"completely innocent and/or sympathetic" over "unsympathetic and/or guilty." Also, fuck you Parsi.


Posted by: Robert Halford | Link to this comment | 04-24-11 6:17 PM
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88: I just think that both things that we want with searches and seizures [...] would be better served by moving to a liability system instead of the exclusionary rule and the much of the rest of our largely incomprehensible world of criminal procedure.

I feel I'm repeating myself now, but I think you're underestimating the value of all that protection of innocents business. And again, making things a matter of liability assumes that people will be able to (plausibly, given enough merit to warrant someone taking the case on contingency) bring suit: it effectively puts the burden on citizens rather than on the police.

I really find this pretty horrible and alarming, Halford.


Posted by: parsimon | Link to this comment | 04-24-11 6:18 PM
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Possibly because you have no fucking clue what I'm talking about.


Posted by: Robert Halford | Link to this comment | 04-24-11 6:19 PM
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96: Oh! Sorry, I was misreading, I guess.


Posted by: parsimon | Link to this comment | 04-24-11 6:20 PM
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Alright.


Posted by: parsimon | Link to this comment | 04-24-11 6:21 PM
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I am disappointed to find that although the word "jurisprude" is sometimes actually used in apparently unfacetious contexts, it is a back-formation influenced by the word "prude" (as opposed to having developed entirely straight, as it were).


Posted by: One of Many | Link to this comment | 04-24-11 6:34 PM
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The ' better civics education' thing is kind of funny given that police can lie about all this stuff.


Posted by: yoyo | Link to this comment | 04-24-11 6:48 PM
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I like halfords idea though. I'm not sure how out would work out; I mean the calculus three police would use.


Posted by: yoyo | Link to this comment | 04-24-11 6:56 PM
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Having better civic education isn't really going to help that much. Suppose I know all the rules, how confident am I going to be that I'm totally right? If it turns out I'm wrong on some point and I stick to it in the wrong situation, the cop is basically authorized to hurt me physically, take my money (via a fine for some resisting something-or-other), and if they really want to they can kill me (this requires claiming that they thought I was reaching for a gun).

To make matters worse, if the *cop* is the one who is unclear on one of these details of what's required and what isn't, they can still do all of the above!

Basically the only "right" I would feel comfortable asserting to an officer would be just asking to clarify if something was a request or a command. And even that I'd feel a little nervous about with the wrong cop.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 04-24-11 7:10 PM
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My last bit on this: I think it's a mistake to try to think of this as a system to be solved by the (single) right legal code, even when when the code in question is about structures like liability & evidence. These are a big part of it, yes, but police departments are fundamentally bureaucratic institutions. More sociology! More comparative studies!


Posted by: x.trapnel | Link to this comment | 04-24-11 7:12 PM
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105 may be -- putting aside the question of "should I get drunk and hit on frauleins," where we are as one -- the only time I've ever unreservedly and absolutely agreed with X Trapnel.

And Parsi, I'm only mad at you because I thought you were calling me a racist.


Posted by: Robert Halford | Link to this comment | 04-24-11 7:20 PM
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I really find this pretty horrible and alarming, Halford.

I would too, but then I remember that Rob is wrong about everything, and it becomes benign and comforting.


Posted by: foolishmortal | Link to this comment | 04-24-11 7:22 PM
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The criminal procedure rule that really pisses me off is that mobile homes are treated as cars in terms of probable cause standards and warrant requirements (a lower standard) rather than as houses even though some "mobile homes" aren't really mobile at all.


Posted by: Bostoniangirl | Link to this comment | 04-24-11 7:23 PM
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making things a matter of liability assumes that people will be able to

This could be solved my automatically sentencing the plaintiff or prosecution in case of an innocent verdict. Like the NHL stick check rule:

10.5 Stick Measurement - A request for a stick measurement shall be limited to one request per team during the course of any stoppage in play. ...

If the complaint is not sustained, a bench minor penalty shall be imposed against the complaining Club in addition to a fine of one hundred dollars ($100).


Posted by: Econolicious | Link to this comment | 04-24-11 7:24 PM
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frauleins

Racist.


Posted by: apostropher | Link to this comment | 04-24-11 7:30 PM
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Civics education could go a long ways on this because it's really not that complicated. Police academies are five or six months, not years. And only a fraction of that is your legal training.

A lot of people get hung up on 4th and 5th amendment issues because they don't know very basic things like what is a search and the different types of searches. There's only few types, not hundreds. Likewise people get wrongheaded ideas about the fifth amendment. For example, not having to incriminate yourself doesn't mean you don't have to identify yourself. And ye gods someone please teach the masses what an interrogation is and its relation to Miranda. No godamnit, this is not television and I don't have to read you Miranda just because you're being put in handcuffs.


Posted by: gswift | Link to this comment | 04-25-11 12:12 AM
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Almost everyone consents. "You dont mind if I look around a bit?"

Cops lie all the time to get people to consent.

Drug dogs are unreliable.

Cops rarely get in trouble.

www.theagitator.com is a great website.


Posted by: will | Link to this comment | 04-25-11 5:50 AM
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Other pet peeves:

Many officers believe that they shouldnt be videotaped in the performance of their duties.

Many officers speed when they are not supposed to speed. Or make illegal turns. Or park illegally.


Posted by: will | Link to this comment | 04-25-11 5:52 AM
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111: The more I look the more complicated it seems to be to me. For example, the meaning of "request" is wildly different whether it's the officer or the civilian doing the requesting. A cop's request to do a search doesn't need to be a clear request, however a civilian's request that the search stop needs to be extremely explicit (according to Gray).

Similarly, the definitions of when you're under custody are nutty. Ostensibly if you're not under custody then you're free to leave, but this consistently ignores the actual dynamics of interacting with the police. Passengers in stopped cars are obviously not free to leave in reality, but the supreme court says that they're obviously free to leave.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 04-25-11 7:32 AM
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114:

So true.


Posted by: will | Link to this comment | 04-25-11 8:32 AM
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Halford, I wasn't calling you racist. Really. As for the question whether switching to a liability system is a good idea: you've said I'm not understanding what you mean, and I believe you, so I won't carry on protesting against something you didn't even mean. I'm reasonable!

Peace.


Posted by: parsimon | Link to this comment | 04-25-11 9:06 AM
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Hey guys! I got on my princess panties!


Posted by: Pauly Shore | Link to this comment | 04-25-11 9:07 AM
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The problem I see with a liability system (and possibly Halford's got a solution to this that I've missed), is that there mostly isn't any economic damage from an unconstitutional search or seizure. You may be humiliated and inconvenienced, but you're probably not out any significant money, and there's very little the legal system can do for you other than give you money.

(I just scanned up, and I'm seeing that Halford proposed statutory minimum damages. They'd need to be pretty serious, and to include attorney's fees, to actually make it practical to sue.)


Posted by: LizardBreath | Link to this comment | 04-25-11 9:11 AM
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They keep riding up on me, which is a little annoying. But still: PRINCESS POWER! Nobody better mess with my Unfogged friends!!!


Posted by: Pauly Shore | Link to this comment | 04-25-11 9:14 AM
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I don't think paying high attorney fees is going to be much more popular than releasing a few obviously guilty people.


Posted by: Moby Hick | Link to this comment | 04-25-11 9:16 AM
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Uh oh, I just peed a little. Sometimes that happens when I get excited. I'll be right back.


Posted by: Pauly Shore | Link to this comment | 04-25-11 9:18 AM
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What happens is that if the police dont find something, the driver just drives on muttering. Very few people complain to the officer's supervisors. Those few who complain often find that nothing gets done.

So, there is little to no downside to bad behavior.


Posted by: will | Link to this comment | 04-25-11 9:19 AM
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Yeah, I'd have minimum statutory damages and a fee shifting provision, and allow for recovery for emotional distress and humiliation in an amount to be set by the jury. The idea would be to protect the most unsympathetic criminal defendants with some damages (i.e., the guilty guy whose rights were clearly violated) while creating a risk of big payments for particularly egregious cases involving more sympathetic parties.


Posted by: Robert Halford | Link to this comment | 04-25-11 9:21 AM
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It could work.


Posted by: LizardBreath | Link to this comment | 04-25-11 9:46 AM
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Many officers believe that they shouldnt be videotaped in the performance of their duties.

I would be much more in favor of uk syle survailance state if the rules of evidence were changed not allow eyewitness testimony


Posted by: yoyo | Link to this comment | 04-25-11 10:04 AM
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I'm understanding correctly that this is chiefly to have a deterrent effect, right? The cops are to become less likely to engage in unlawful searches and seizures if the risk of substantial penalties is high.

My primary reservation is really that bringing suit against the cops is just not going to be viable for quite a few people: even if a lawyer finds the case to have merit and takes it on contingency, the offended citizen is going to have to take time off from work (quite possibly not viable without losing his or her job), for example.

It seems to me that it would sort itself in much the same way it does already: those who are less able and likely to bring suit are more likely to be the victims of predatory and/or untoward practices. You (the cops, in this case) can treat the lower and marginal classes more roughly and unjustly than you can treat the UMC (and white), because there's less likely to be blow-back from the former.

I know I said I'd leave this alone, but if I'm still misunderstanding the proposal, please tell me how.


Posted by: parsimon | Link to this comment | 04-25-11 10:04 AM
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126: This is, of course, bluesky bullshitting that's never going to happen. That said, you're right that the proposed liability system would be imperfect, in that people with more resources would be better able to bring suit, as you say. On the other hand, I think there's a fair argument that it'd be less imperfect than what we've got now, where people have essentially no recourse at all if their rights are violated by the police other than the exclusionary rule.

So, judged against perfection, it's not ideal. Judged against what we've got now, it could possibly be an improvement.


Posted by: LizardBreath | Link to this comment | 04-25-11 10:08 AM
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127: Okay. Thanks. I'm still not sure I think it'd be an improvement, since I think it might actually widen the gap between people with more resources and people with few-to-none, but I'll think about it.


Posted by: parsimon | Link to this comment | 04-25-11 10:14 AM
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127 is right, especially the part about how this never will happen.

I just learned today that in France you can get a search warrant in a civil case -- that is, on a showing to a judge, you can go to someone's house with a bunch of policemen and conduct a search yourself of someone's home. Now there's some potential for abuse!


Posted by: Robert Halford | Link to this comment | 04-25-11 10:48 AM
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Honestly, it would better protect well-off people. Certainly there's an argument that in the aggregate this would be better than the current system, but it doesn't address the problem of the extent to which less well-off people (who often seem unsympathetic anyway) are without viable recourse in the event of unlawful search and seizure.


Posted by: parsimon | Link to this comment | 04-25-11 11:09 AM
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Well, if you were a person without resources, and your rights were egregiously violated by the police, and if my pie in the sky system really did provide adequate damages, you would have representaton so long as you could find a contingency fee lawyer to take the case (which, if the system was set up right, you could).

In a world of contingency fees, the size of the potential recovery can dictate the available litigation resources, as much as the wealth of the parties.


Posted by: Robert Halford | Link to this comment | 04-25-11 11:17 AM
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Passengers in stopped cars are obviously not free to leave in reality, but the supreme court says that they're obviously free to leave.

Where are you and will getting this idea? Brendlin_v._California and Arizona_v._Johnson are quite clear that passengers are part of the detention.


Posted by: gswift | Link to this comment | 04-25-11 11:20 AM
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That would just be way, way too much of a gamble on the part of resourceless person: first, how much time are you going be able to spend looking for a lawyer? Remember, you have to get to work, and look after the kids, and you have *no* savings. It is probably much more sensible to just drop it.

I frankly don't like bringing recovery fees into the matter: it sounds like the question is "How much money is recoverable from this egregious overstepping of bounds? Is this injustice *profitable*"?

Ew. It seems conceivable that we're a short step away from ambulance-chasing on the part of the legal community, for one thing.


Posted by: parsimon | Link to this comment | 04-25-11 11:26 AM
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Cops lie all the time to get people to consent.

That's the game and everybody knows it. Obviously some lies are going to cross into coercion territory and that's to be avoided. But come one, no one ever knows how fast they were going, why they are being stopped, why their friend just dropped a gun or drugs and went running into the neighborhood, etc. The flip side of that is hell yes I will use a bit of trickery when I can if it helps me solve a crime or get a solid arrest.


Posted by: gswift | Link to this comment | 04-25-11 11:28 AM
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Honestly, it would better protect well-off people.

I'm having trouble conceiving of any mode of recourse against being wronged that doesn't better protect well-off people. You're always going to need some kind of resources to complain -- time to make the complaint, knowledge of the process for complaining, knowledge of your rights, belief that your complaints will be heard. The better off you are, the more you have of all of these.

It's reasonable to argue that systems for protecting rights should be devised to protect the poor as well as possible. But just noting that a system is likely to serve the rich better than the poor is an empty criticism; any system that doesn't penalize people for being rich is going to serve rich people better than poor people.


Posted by: LizardBreath | Link to this comment | 04-25-11 11:28 AM
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135.2 has me kind of gobsmacked, and I'm going to have to think.


Posted by: parsimon | Link to this comment | 04-25-11 11:36 AM
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That's the game and everybody knows it. Obviously some lies are going to cross into coercion territory and that's to be avoided. But come one, no one ever knows how fast they were going, why they are being stopped, why their friend just dropped a gun or drugs and went running into the neighborhood, etc. The flip side of that is hell yes I will use a bit of trickery when I can if it helps me solve a crime or get a solid arrest.

Everyone doesnt know it.

The ends do not justify the means: that is part of what is supposed to make this country different.

The police should have to play by the rules. I dont really care for a system where the rule is that the police do not have to play by the rules.

I also do not like the system where I have to trust the integrity of the officer and there are no consequences for not following rules.

Is it surprising that a system where the police do not have to play by the rules creates a lack of respect for rules?


Posted by: will | Link to this comment | 04-25-11 11:38 AM
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To clarify, I am talking mostly about the rule breaking involved in tricking people into consenting.

Once someone is in custody, they have a lesser claim to not realizing that they are putting themselves in jeopardy.

No criminal seems to know that the jail monitors the phones. Dumbasses. I dont have a lot of sympathy for that one.


Posted by: will | Link to this comment | 04-25-11 11:42 AM
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137: It's not clear to me why lying is always against the rules for cops. There are plenty of ways in which a lie could help elicit useful information without harming the public interest or crossing into coercion.


Posted by: togolosh | Link to this comment | 04-25-11 11:47 AM
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138.1: That one I think is clearly over the line. Police ought not be able to lie about the law or the extent of their powers.


Posted by: togolosh | Link to this comment | 04-25-11 11:49 AM
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Suppose you have two cops: one who always lies and one who always tells the truth...


Posted by: heebie-geebie | Link to this comment | 04-25-11 11:53 AM
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"Not giving us consent to search your car gives us probable cause....."

I dont have the time to compile a list, but the basic rule is that cops can lie about almost anything.


Posted by: will | Link to this comment | 04-25-11 11:54 AM
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135.2: It's reasonable to argue that systems for protecting rights should be devised to protect the poor as well as possible. But just noting that a system is likely to serve the rich better than the poor is an empty criticism

What's reasonable, in fact necessary, to argue is that systems for protecting rights should be designed to protect the poor equally as well as the rich.

I'm still to an extent gobsmacked, so I'm off.


Posted by: parsimon | Link to this comment | 04-25-11 12:00 PM
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"Not giving us consent to search your car gives us probable cause....."

Are courts out there letting people getting away with that? I've never even heard that one attempted. I don't think I could find a DA who would file the case on that type of search let alone get it through a trial.


Posted by: gswift | Link to this comment | 04-25-11 12:01 PM
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It's threads like this that make me want to make sure my jib is cut in a pleasing manner.


Posted by: Eggplant | Link to this comment | 04-25-11 12:02 PM
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File?

It happens. The person gets arrested. The prosecutor doesnt know anything about it until trial. Then, it is up to the defense attorney to raise it as a defense.


Posted by: will | Link to this comment | 04-25-11 12:03 PM
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Suppose you have two cops

I'm Officer Tor and this is Officer Tuga. Can we see your license and registration, please?


Posted by: apostropher | Link to this comment | 04-25-11 12:07 PM
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147: Total shell game.


Posted by: Stanley | Link to this comment | 04-25-11 12:08 PM
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143: What's reasonable, in fact necessary, to argue is that systems for protecting rights should be designed to protect the poor equally as well as the rich.

What are your proposals?


Posted by: LizardBreath | Link to this comment | 04-25-11 12:27 PM
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What kind of move is that?


Posted by: parsimon | Link to this comment | 04-25-11 1:54 PM
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I think it's a fair move, in this case, because it ties into LB's specific point -- for any set of rules there has to be an enforcement mechanism. Think of it as a way of asking theses two questions:

1) Can you think of a way to use the court system as the enforcement mechanism that doesn't give well off people an advantage (because they have more access to the court system)?

2) Can you think of a better enforcement mechanism than the court system?


Posted by: NickS | Link to this comment | 04-25-11 2:08 PM
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I'm curious.

You criticized Halford's proposal because it would protect the rights of the rich more effectively than the rights of the poor. When I try to think of a system that would protect the rights of the poor as effectively as it protects the rights of the rich, I can't come up with one -- it appears to me that so long as there are rich and poor, the rich are always going to have more resources to protest with.

But given your criticisms, it seems possible that you're thinking of some plausible system that really would protect the rights of the poor just as well as the rights of the rich. Were you?


Posted by: LizardBreath | Link to this comment | 04-25-11 2:11 PM
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I don't have an answer to the unequal meting out of justice, no.

152.2: I was vaguely thinking about policy design in terms of regulation: say, clean air and clean water regulations. These are designed, anyway, to protect the health and environments of both poor and rich equally. Now, we all know that companies wind up polluting in lower-income areas more readily than in higher-income, and that's ultimately because they know they have less of a chance of getting away with it in the latter environment, but that fact is something to consciously account for in designing the regulatory system: one thing you wouldn't want to do is arrange a system whereby pretty much the only recourse for those-polluted-upon is that they engage their own personal lawyer. Instead you can call the regulatory agency in charge of the matter.

Lobbyists mess all of this up: the well-off engage proxies to affect both the writing and the enforcement of government regulations. And god knows Republicans are trying to make regulatory oversight into a bad idea altogether, but we must fight that in part because it takes away whatever ability the less well-off have to represent their interests.

Anyway. I'm not willing to be sanguine about a proposal that provides more avenues to the well-off to seek justice, but doesn't do much of anything for the marginal, who are the chief victims of police misconduct in the first place.


Posted by: parsimon | Link to this comment | 04-25-11 2:30 PM
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134: But come one, no one ever knows how fast they were going, why they are being stopped, why their friend just dropped a gun or drugs and went running into the neighborhood, etc.

My new boss just recounted her recent traffic stop:

Officer: Do you know what I'm stoppin' you for?
New boss: I was speeding?
O: No.
Nb: I made an illegal left turn?
O: No.
Nb: I failed to use my turn signal?
O: No.

After running a bit further down the list, it turned out her tabs were expired.


Posted by: Natilo Paennim | Link to this comment | 04-25-11 2:42 PM
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Instead you can call the regulatory agency in charge of the matter.

In practice, of course, it's often your lawyer that calls the regulatory agency. Determining what your rights are, or when someone else is violating regulations, is the sort of thing that's much easier for the better off, with more knowledge of the regulations and more money and leisure with which to make a case to the agency that their interests should be served.

That's not a reason not to rely on regulatory agencies -- if well run, they can be much cheaper and better than trying to get the same level of enforcement out of the court system. But they favor the interests of the better-off and more powerful like any other system I can think of.

I don't have an answer to the unequal meting out of justice, no.

You and me and Halford are all in the same boat on that one, sounds like.


Posted by: LizardBreath | Link to this comment | 04-25-11 2:43 PM
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154:

My clients typically say "Bc I just bought a bag of weed?"


Posted by: will | Link to this comment | 04-25-11 2:45 PM
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137: Is it surprising that a system where the police do not have to play by the rules creates a lack of respect for rules?

From Louis Lingg's speech to the court:

You have charged me with despising "law and order." What does your "law and order" amount to? Its representatives are the police, and they have thieves in their ranks. Here sits Captain Schaack. He has himself admitted to me that my hat and books have been stolen from him in his office -- stolen by policemen. These are your defenders of property rights! The detectives again, who arrested me, forced their way into my room like house breakers, under false pretenses, giving the name of a carpenter, Lorenz, of Burlington street. They have sworn that I was alone in my room, therein perjuring themselves. You have not subpoenaed this lady, Mrs. Klein, who was present, and could have sworn that the aforesaid detectives broke into my room under false pretenses, and that their testimonies are perjured.


Posted by: Natilo Paennim | Link to this comment | 04-25-11 2:46 PM
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155: We have provisional comity.


Posted by: parsimon | Link to this comment | 04-25-11 2:53 PM
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Officer: Do you know what I'm stoppin' you for?

Answering that question is a mug's game.


Posted by: Bave Dee | Link to this comment | 04-25-11 2:55 PM
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And of course, the only honest answer is "No." Maybe sometimes, "I don't know, but I have a guess," but you almost certainly don't know.


Posted by: LizardBreath | Link to this comment | 04-25-11 3:00 PM
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What we're talking about here isn't establishing regulations, but figuring out what your enforcement mechanism is when those regulations are violated.

doesn't do much of anything for the marginal

Honestly, I'm getting sick of defending my not at all realistic proposal, but seriously, Parsi, think about the concept of a contingency fee.


Posted by: Robert Halford | Link to this comment | 04-25-11 3:01 PM
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The main problem with the Halford Proposal seems to me to be the way it would build a virtually perfect shield around not only people with the means to hire the best lawyers, but moreover the people who would be most sympathetic to juries. I mean, basically you could never arrest a middle-to-upper-middle class white woman for anything unless she shot someone and posted the video on Youtube.

Not that I'm opposed to anything that would significantly hamstring the police, you understand, I just want to be cautious.


Posted by: Natilo Paennim | Link to this comment | 04-25-11 3:22 PM
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159: And how. My dad told me to never answer that or "Do you know how fast you were going?"


Posted by: Moby Hick | Link to this comment | 04-25-11 3:22 PM
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think about the concept of a contingency fee.

I already said that I think people who are, like, working at CVS or something at just under 40 hours/week (so that they don't qualify for benefits) aren't remotely going to be in a position to look for a lawyer who will work on contingency, so I think it's a non-starter (aside from the ambulance-chasing law firm); but yeah, I'm getting tired of this too, and I don't have an answer.


Posted by: parsimon | Link to this comment | 04-25-11 3:26 PM
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Oh, and what Natilo said,


Posted by: parsimon | Link to this comment | 04-25-11 3:29 PM
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If you wanted to give Halford's proposal (again, blue-sky, not going to happen, although probably more realistic than my divorce agency) a fair shake, you'd have to get over the dislike of 'ambulance-chasers'. If something like that were enacted, a population of lawyers who specialized in police-abuse suits would develop, and the successful ones would probably be fairly aggressive about finding clients.

Employment discrimination cases are like that now -- part of what I do is defense in employment discrimination cases, and you've got contingency-fee specialists who do end up representing people very much like the CVS part-timers you're thinking of. And they're not always the most personally appealing lawyers you've ever met, they're largely in it for the money rather than for the justice of it all, but they still do good work for people with meritorious cases who can't find classier lawyers.


Posted by: LizardBreath | Link to this comment | 04-25-11 3:33 PM
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I've been trying to think of an alternate proposal, and how about this -- off the top of my head.

What about a robust audit system. What if your goal was to take 1/50 (say) Felony arrests, and audit the conduct of the police from beginning to end.

How would one achieve this goal? It seems like it would be difficult to do within the police department (for obvious reasons), and it should probably happen simultaneously with the trial (if there is a trial) so that the defense could take advantage of any information uncovered in the audit.

On one had the ideal solution would just to be to hire the OJ Simpson defense team for 1/50 randomly chosen cases, but that doesn't seem practical either.

So who could be in a position to conduct that audit and do the appropriate discovery?


Posted by: NickS | Link to this comment | 04-25-11 3:34 PM
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162: I'm not seeing this -- anything that came to a real arrest that might turn into a prosecution, the same misconduct that would be at issue here would be the kind of misconduct that would keep evidence out under the exclusionary rule. If you're talking about actually prosecuting the well-off, the police are as hamstrung now as they'd ever be.


Posted by: LizardBreath | Link to this comment | 04-25-11 3:35 PM
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the same misconduct that would be at issue here would be the kind of misconduct that would keep evidence out under the exclusionary rule.

I'm guessing that he thinks that changing from a judge to a jury enforcing the rules would change the standards that were applied.


Posted by: NickS | Link to this comment | 04-25-11 3:40 PM
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168: Right, but how many cases in the US criminal justice system actually go to trial? 1 in 50? The S.O.P. is for DA's to massively over-indict, with a throw-mud-against-a-wall-and-see-what-sticks. When the only sanction on them is a slightly smaller conviction rate from the 1 in 100 people who are in a good position to contest the evidence against them, that's really no disincentive at all for the DA, and not even a blip on the police radar. How many DAs have been forced from office for getting plea bargains from suspects in cases where there were questions about the way evidence was obtained? Hardly any. But if there was a real threat of multi-million dollar lawsuits being won for police misconduct that did not involve beating someone to within an inch of their life, the whole apparatus would have to change.


Posted by: Natilo Paennim | Link to this comment | 04-25-11 3:45 PM
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Somewhat relevant, I had only heard about a few of these things:
http://www.newstatesman.com/north-america/2011/04/orleans-city-jail-police


Posted by: Natilo Paennim | Link to this comment | 04-25-11 3:46 PM
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170: The point is that we, as citizens, only find 'hamstringing the police' problematic insofar as it reduces their ability to convict people who actually commit crimes, or to keep order. (Come to think, I'll rephrase that so I'm speaking only for myself -- you're probably not that keen even on the keeping order bit.)

Outside of that limited arena, where they're already as hamstring as they're going to get when dealing with better-off people, more hamstringing is a plus, not a minus. (Sorry, gswift. I love you like a brother, but I'm all about the hamstringing. In a non-literal sense.)


Posted by: LizardBreath | Link to this comment | 04-25-11 3:53 PM
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If police misconduct that doesn't result in a near death can often lead to a seven figure payout, Pittsburgh is fucked, budget-wise. (The Android swype software will not, no matter how carefully type, let you type "fucked".)


Posted by: Moby Hick | Link to this comment | 04-25-11 4:05 PM
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.do you know why I stopped you' is really asking for a smart ass reply


Posted by: yoyo | Link to this comment | 04-25-11 4:09 PM
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Fucked is swypable for me.i think you have to type it out once to add it to the dictionary.I'm using a 2.3 rom.


Posted by: yoyo | Link to this comment | 04-25-11 4:14 PM
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What about a robust audit system. What if your goal was to take 1/50 (say) Felony arrests, and audit the conduct of the police from beginning to end.

I like this idea, but that was something of a foregone conclusion. What with the randomization and dedicated institutionalized ex-post accountability, it's total Trapnel catnip--you only left out the part about how it ought to be at least partially staffed by randomly picked, but fully paid, citizens.


Posted by: x.trapnel | Link to this comment | 04-25-11 4:55 PM
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dedicated institutionalized ex-post accountability

I admit to having read this article at an impressionable age and, perhaps, been overly influenced by this idea:

The most effective way to produce safety is to eliminate unsafe behavior. OSHA's definition of an accident--"when someone gets hurt"--is inadequate. To cut down on accidents the definition has to be "a violation of the rules of safe behavior, whether anyone gets hurt or not." This is the definition under which the United States has been running its nuclear submarines. Anyone in a nuclear sub, whether the commanding officer or the most junior seaman, is punished for the slightest violation of the rules of safe behavior, even if no one gets hurt. As a result, the nuclear submarine has a safety record unmatched by any industrial plant or military installation in the world; and yet a more unsafe environment than a crowded nuclear sub can hardly be imagined.

Posted by: NickS | Link to this comment | 04-25-11 5:15 PM
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More cheerfulness! Las Vegas Cop Beats Man For Videotaping Him.


Posted by: x.trapnel | Link to this comment | 04-25-11 6:00 PM
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I have to say that when at age 17 I was caught speeding, and the officer asked if I knew why he stopped me, I straight-up admitted to it (45 in a 25 mph zone: my everyday route, and besides, I was accelerating on the downhill to coast up the uphill, an obvious speedtrap; okay, I was totally busted). I got off with a warning.

Caveat: I'm white, female, and was somewhat attractive.


Posted by: Jackmormon | Link to this comment | 04-25-11 6:03 PM
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ought to be at least partially staffed by randomly picked, but fully paid, citizens.

Googling "police audits" I found this story which I find charming (not least because I didn't even know there was an "association of local government auditors"). It isn't about randomly chosen citizens, but I think it captures a certain romance of small scale government:

I've done more audits of police organizations in my eighteen year audit career than any other type. Overtime, disability payments, civilian oversight, information systems, and internal affairs have been among the topics I've covered.

Ihope no one shies away from auditing police organizations because of a fear that the topics are too large or complicated, or just plain foreign to general management auditing. . ..

In 2007, we issued probably the most personally rewarding report of my career. It centered on our local area's response to victims of sexual assault. A previous report on general detective clearance rates showed the solution rate for rape cases was low and getting even worse. . . .

Don't be afraid to leverage your audit skills and common sense to do something which might, at first, appear to be outside your expertise. Most of what you do in a police audit will, at first, be foreign. ... However, don't be afraid to use common sense to structure a fieldwork plan that you can handle.

...

When I reported to the 9-1-1 Director that most dispatchers were not following their own guidelines, she was immediately skeptical. I pulled out my Excel spreadsheet containing detailed notes from each call, and she didn't make it through half the list before saying she would immediately start retraining her call takers.


Posted by: NickS | Link to this comment | 04-25-11 6:13 PM
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That's excellent, Nick.


Posted by: parsimon | Link to this comment | 04-25-11 7:08 PM
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Caveat: I'm white, female, and was somewhat attractive.

Only trumped by white anything with a diplomatic ID. The thing had magic European cop and customs official attitude changing properties.


Posted by: teraz kurwa my | Link to this comment | 04-25-11 8:22 PM
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153

Anyway. I'm not willing to be sanguine about a proposal that provides more avenues to the well-off to seek justice, but doesn't do much of anything for the marginal, who are the chief victims of police misconduct in the first place.

This is silly. Given that the current system better protects the rich as does any likely alternative objecting to alternatives on the grounds that they don't provide total equality (even if they are substantially reduce the difference) just favors doing nothing.


Posted by: James B. Shearer | Link to this comment | 04-25-11 9:07 PM
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in policy debate the conclusive response for those sort of harm claims is 'its nonunique'


Posted by: yoyo | Link to this comment | 04-26-11 2:09 AM
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183: the point about moving from an exclusionary system to a liability-based system is that it will mean substantially less protection for the poor, because they have much less access to justice in the civil courts even than they have in the criminal courts. In the criminal courts they get a lawyer appointed. In the civil courts, someone who wanted to sue the police would not have free representation.


Posted by: ajay | Link to this comment | 04-26-11 4:03 AM
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185

That the proposed change would be worse than the current system is a reasonable objection, that it would not be perfect is not.


Posted by: James B. Shearer | Link to this comment | 04-26-11 4:45 AM
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Fellow bleeding heart liberals, I find myself siding with a right wing parties insta-outrage over lax treatment of criminals, am I crazy? The facts:

The other day two young men, aged eighteen and twenty one, beat the shit out of a stranger at a subway station in Berlin. The victim was repeatedly kicked in the head while lying unconscious and is now in a coma with severe brain injuries. They also slammed a bystander in the head and gave him a severe concussion after he tried to intervene. The beating was caught on a security camera, the images quickly made public and the two assailants separately turned themselves in and confessed. The confessions are consistent with one another and the footage. Both gave as their motive 'we were drunk, we were bored, we were feeling aggressive, we thought it would be fun to beat somebody up'.

They were charged with the German equivalents of aggravated assault, grievous injury and the more active one also got an attempted murder charge. They were then promptly released under their own recognizance because their youth and the fact that they have no criminal record means they might just get probation.

The CDU promptly flipped out and is seeking to pass a bill that would prevent eighteen and over people charged with serious violent crimes from just walking away with probation. I've got to say I agree. I'd rather prefer these folks to not be wandering around. It may be their first crime, but it's a serious one and without any real mitigating circumstances.


Posted by: teraz kurwa my | Link to this comment | 04-26-11 4:51 AM
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re: 187

I'm broadly inclined to agree with you, however, I do tend oppose mandatory sentencing as it prevents judges/magistrates from exercising discretion in those cases that clearly have some mitigating circumstances. But yeah, unprovoked and serious violent assault on a stranger? Jail.


Posted by: nattarGcM ttaM | Link to this comment | 04-26-11 5:09 AM
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I dont have any handy statistics, but I think you will find that the United States does not shy away from putting people in jail for a long time.

Newspapers publish the outrageous stories, not the typical criminal justice story. The outrageous ones usually have some reason that they turned out that way. For example, perhaps a murder or a beating where there is little evidence. But the defendant pleads guilty to a short jail term to avoid the risk of a long jail term.

Or, maybe the police officer screwed up so the evidence is going to get thrown out.

The horrific bad stories of people getting locked up for far longer periods that you think are fair will FAR outweigh the ones where the criminal got too little time.

I've seen 20 year olds who broke into a church and vandalize it get 5 or 6 years in jail. Sure, they shoplifted before. But is that your idea of justice? Are they going to be better or worse when they get out? Especially given the climate of not providing any job retraining or services while locked up.

Bc they get out of jail eventually.

Go spend a week in court and then report back on whether we are too easy on criminals.


Posted by: will | Link to this comment | 04-26-11 5:12 AM
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I am willing to guarantee you that in 98 percent of cases in 98 percent of the country that an unprovoked and serious violent assault on a stranger is going to result in more than two years in jail.

An attempted murder resulting in probation? Not happening. In the United States, if they are over 14, they are getting tried as an adult and going away for long, long time.

Dont believe the newspaper.


Posted by: will | Link to this comment | 04-26-11 5:17 AM
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re: 190

In this case, teraz kerwa my is talking about Germany, and my own experience is of the UK, so what happens in the US doesn't necessarily have much impact on whether certain crimes are treated leniently or not in countries that aren't the US.

As it happens, the UK is also fairly punitive with respect to many crimes -- much more than I would like, certainly -- but I know from real life experience of people getting off with a slapped wrist or non-custodial sentences for what were pretty horrific crimes of violence. Although admittedly several of those were before the New Labour enthusiasm for law and order.


Posted by: nattarGcM ttaM | Link to this comment | 04-26-11 5:23 AM
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191.

Sure. I was just giving my experience here in the US. I cannot speak about other countries.

I am not surprised that you know people getting off lightly for violent crimes. I've seen cases like that. Ive handled cases like that.

My point is that those situations are often due to other circumstances, and not due to the belief that violent crime shouldnt result in long jail time. Evidentiary problems or the possibility of a complete defense or witness unavailability are the typical causes. Anecdotal evidence isnt really reliable.


Posted by: will | Link to this comment | 04-26-11 5:33 AM
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As natt said, Deutschland, not America. Different laws, different results. I have no reason to believe the facts are not accurate. The key issue in the potential leniency is age and lack of a criminal record - 18-21 year old defendants are apparently treated as juveniles under German criminal law if they don't have a criminal record. I haven't seen the exact details of the CDU proposal, but it seems to amount to trying those eighteen and over as adults when charged with serious violent crimes.


Posted by: teraz kurwa my | Link to this comment | 04-26-11 5:34 AM
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In the United States, 18-21 year olds are treated as adults. Unless they are white, middle-to-upper middle class college students. Then, they are just a kid with so much potential ahead of them and they are not like those other criminals.


Posted by: will | Link to this comment | 04-26-11 5:40 AM
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In most places, a 16 year old who intentionally kills will be tried as an adult. At least, that's what at seems from the newspapers.


Posted by: Moby Hick | Link to this comment | 04-26-11 5:46 AM
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Drop it down to 14 or 15, actually.


Posted by: will | Link to this comment | 04-26-11 5:47 AM
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193

As natt said, Deutschland, not America. Different laws, different results ...

Germany seems very lenient in some cases. For example the guy who stabbed Monica Seles got probation .

Parche was charged following the incident but was not jailed because he was found to be psychologically abnormal and was instead sentenced to two years' probation and psychological treatment. The incident prompted a significant increase in the level of security at tour events,[3] although this is disputed by Seles, who was quoted in 2011 as saying "From the time I was stabbed, I think the security hasn't changed".[5] Seles vowed never to play tennis in Germany again, disenchanted by the German legal system. "What people seem to be forgetting is that this man stabbed me intentionally and he did not serve any sort of punishment for it... I would not feel comfortable going back. I don't foresee that happening."[6]


Posted by: James B. Shearer | Link to this comment | 04-26-11 5:52 AM
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Part of the reasoning behind trying someone as an adult is that you can't (at least in PA) hold someone convicted as a juvenile after they turn 21. So, somebody could do three years for murder (or several murders, if they wanted to economize) and go free if they never tried a minor as an adult.


Posted by: Moby Hick | Link to this comment | 04-26-11 5:53 AM
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But enough wistful reflection on missed opportunities.


Posted by: Moby Hick | Link to this comment | 04-26-11 5:55 AM
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I suspect that other countries take a more lenient view on mental illness. Culpability is lessen bc of mental illness. When looking at punishment, rehabilitation, protection of the public, it makes sense to consider mental illness in a more sliding scale manner as opposed to the all or nothing way we do it here.


Posted by: will | Link to this comment | 04-26-11 5:57 AM
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Of course, mental illness in the criminal justice system is a tricky thing. You can prove diminished culpability and, probably, convince people to cut punishment. However, when there is no good treatment, you can clog the hospitals with people who cannot be treated and will not be released for the safety of the public (e.g. certain types of sex offenders).

Even with illnesses where there is a (mostly) accepted treatment, you can have issues with maintaining treatment without confinement. It is (or was) impossible to force somebody to take medications even when those medications are likely the reason the person was doing well enough to be unconfined.


Posted by: Moby Hick | Link to this comment | 04-26-11 6:11 AM
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As ever, Clans of the Alphane Moon presents the only workable solution.


Posted by: Sifu Tweety | Link to this comment | 04-26-11 6:16 AM
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Perception is very different from reality on violent crime. There was a survey in England a few years ago that gave the respondents descriptions of various (real but anonymised) violent crimes, and asked them a) what penalty do you think the criminals received, and b) what penalty do you think they ought to have received?

They then compared the answers with c), the sentence the real criminals actually received, and found that a) was on average half c), but b) and c) were roughly equal.
So it's not a sentencing problem, it's a perception problem. The trouble is that cases like the one listed catch the public eye, whereas someone getting five years for agg assault when they maybe only deserved three doesn't.


Posted by: ajay | Link to this comment | 04-26-11 6:25 AM
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Relavent vignette


Posted by: Jimmy Pongo | Link to this comment | 04-27-11 9:34 PM
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