For those who have never heard of SLAPP, look here. Looks like the California Legislature actually got something right. A few other states seems to have decent laws in this regard as well. Pennsylvania’s anti-SLAPP statute looks very narrow, however. We should fix that.
Category: Law
The Law as a Game
When I write about the law or politics being a game, or sometimes even go so far as to say it’s a joke, this is the kind of thing I’m speaking of. A lot of very rational people look at the law and view it as a rational system. Engineers, especially, and people with analytical minds, read the plain language think that’s what it’s supposed to mean, clearly, and surely judges are rational people who will see it that way.
But the law is administered by people, and people, for the most part, suck. The judge in the Walker case is a pretty clear example of an imbecile in a robe who has decided he is the law, and nothing else. In his courtroom, the law is going to be a game at best, and if you don’t wish to play along, a farce. You have to play around his eccentricity. These are the people the Second Amendment is now in the hands of. God help us.
UPDATE: More here.
Deinstitutionalization and Mass Murder
Clayton Cramer has an interesting article in the Federalist Society publication that looks at the rise in mass shootings, and how they coincided with mass deinstitutionalization. I actually think it should be pretty difficult to commit someone to an institution against their will, but it’s pretty clear that complete deinstitutionalization of the mentally ill hasn’t served either the public, or the mentally ill, as well as many proponents of it had hoped.
Patrick Purdy, a mentally ill drifter, used his Social Security Disability payments to buy guns, while having a series of run-ins with the law. After one suicide attempt in jail in 1987, a mental health evaluation concluded that he was “a danger to his health and others.â€27 In January 1989, Purdy went onto a schoolyard in Stockton, California with an AK-47 rifle, murdered five children and wounded twenty-nine others, before taking his own life.
And you can see how this issue affects ours. Californians now live under their assault weapons regime because the State of California, rather than ensure that the clinically insane were institutionalized, decided to, every so slightly, institutionalize everyone else in the state by limiting everyone else’s freedom.
The Left’s Gotchas on Marissa Alexander
I keep seeing this kind of article pop up in my Google Alerts, wondering where NRA is on Marissa Alexander. First off, NRA did not comment on the Martin/Zimmerman case. You do not see NRA standing up for George Zimmerman personally, and nor should they be expected to stick up for Marissa Alexander, if she justifiably qualifies for immunity or for a defense of self-defense under Florida law. But as I pointed out in a previous post, when you cut through all the media and the left’s bullshit on this case, Marissa Alexander is not the innocent they are portraying her as. She stands convicted largely because she engaged in behavior that destroyed her credibility to a jury.
A big problem with these cases is that no one paid attention to self-defense law before this case. Now a lot of journalist, pundits and non-pundits are bringing a vast ignorance to the table when speaking about them, and understanding how the justice system works. Many people imagine things to be fairly black and white, but they are not. A self-defense defense is, with or without a “Stand Your Ground” law, quite subjective, and will generally be aimed at each side manipulating the jury into rendering the verdict that each side wants. In a lot of ways, the law is a game, much like politics. If you give a prosecutor a path to destroying your credibility, it doesn’t honestly matter how true or how wonderful your self-defense claim is, if the jury doesn’t buy it, because it doesn’t trust you — if the jury does not believe you are a reasonable person — you stand a much better chance of being convicted. Our legal system is not an arbiter of absolute truth, nor does it weed the good from the evil in all instances.
In the cases I’ve seen where media and pundits have tried to interview actual defense attorneys, most of them have really tried to explain these realities as best they could, but it just seems something the media and pundits are having difficulty wrapping their heads around. Perhaps because in TV law dramas, the bad guys have tended to get convicted and the good guys acquitted. The police are always competent, honest and do a thorough and professional investigation. But the real world isn’t TV. You’d think you wouldn’t have to explain that to folks.
When Fun is Banned
It turns out that Steve Jobs wanted to play a bit of Willy Wonka with an Apple customer, but California bans that kind of fun:
Inspired, perhaps, by Willy Wonka, Apple’s CEO wanted to put a golden certificate inside the 1 millionth iMac box. Whoever bought it would have the price refunded and be flown to Cupertino for a tour.
Where Jobs would meet them in top hat and tails. …
Indeed, he was only thwarted in his quest to plumb the Depps of amusement by California law.
It states that entry to sweepstakes should not require the actual handing over of money.
What do you expect? It’s California where they don’t like fun or capitalism.
On The Boston Massacre & Benefit of Clergy
As things usually go when I’m staying in hotels, I had some difficulty sleeping last night, so I took to reading more about the Boston Massacre, and was struck by the level of similarity to the recent Trayvon Martin shooting. Both events involved mistakes on the part of both participants, both were seized upon by propagandists who fanned the anger of the mob, and both resulted in politically motivated charges of murder. No lawyer in the Town of Boston wanted to take up the case of the British soldiers who fired on the crowd, until it fell upon a 34 year old Boston lawyer named John Adams, who agreed to take the case. Adams had designs on political office, and realized taking this case ultimately would be this ruin of those ambitions, but felt it was important that the British soldiers receive a fair trial, and that the law should prevail, rather than the mob.
There was actually two separate trials, one of the commanding officer, and other of the remaining enlisted soldiers. This complicated things for Adams, because the easiest defense would be that the commanding officer had never given the order to fire, and for the soldiers that they had only been following orders. Captain Thomas Preston, the commanding officer, was acquitted, having claimed successfully that he never gave the order to fire. No transcript survives from Preston’s trial, but one did survive from the trial of the remaining soldiers, which was complicated by defense Preston had successfully made. Concluding with an eloquent closing argument, Adams managed to get all but two of the soldiers acquitted, with the remaining two convicted of manslaughter, rather than murder. In the sentencing, the two soldiers successfully appealed to the benefit of clergy, and were sentenced to having their thumbs branded.
One striking thing reading the archive of the trial is how little the practice of law has changed. I was unfamiliar with the term “benefit of clergy,” which has a rather fascinating history. Today we would call this as probation. The branding was to ensure you could not take advantage of it again in a future court, given there were no computerized criminal records in those days. In those days most felonies were capital offenses, but the legal system usually tried to figure out ways to get around having to hang every person who committed felonies. In the English legal system, one available alternative to the gallows was to waive the death sentence is exchange for enlistment in the military. Another was to sentence the convicted individual to “transportation,” to America, and later Australia, upon pain of death if one attempted to return. A third was “Benefit of Clergy,” which was based on the principle that the church was entitled to regulate its own affairs. In the early days, when literacy was generally limited to the clergy, courts would demand the reading of a biblical passage, to ensure the individual was entitled to being turned over to the church for punishment. Usually Psalm 51, which became known as the “neck verse,” for it’s ability to save one’s neck. With the expansion of literacy, this defense became more widely available, and eventually became generally available without the need to read from the bible.
This concept fell off favor with 19th century legal reforms that introduced the concept of the modern prison or penitentiary. But it was surprising to find an 18th century version of what is essentially the modern concept of probation.
Early Response to SYG Laws in Louisiana
This bill, to ease SYG in Louisiana, is interesting in what it requires:
The bill, which received unanimous approval from the Senate Judiciary C Committee, would require a “full investigation” by law enforcement and coroners in any death that results from violence or under suspicious circumstances in which a claim of self-defense is raised.
So only when self-defense is raised should we expect a full and thorough investigation? Someone is found face down in a swamp, and we can short change that investigation, eh Senator? This sounds like a mandate that the police be competent, and how do you enforce that? Another bill has already failed in committee:
Another bill inspired by Martin’s killing, Senate Bill 719, did not make it out of committee. Sen. Yvonne Dorsey-Colomb, D-Baton Rouge, said her bill was aimed at closing a potential loophole in the stand your ground law that would allow people to start a fight, try to withdraw and then claim self-defense if the other person continued to come after them.
That’s a “loophole?” I believe traditionally, and correct me if I’m wrong, you lawyers out there, but you could always regain faultlessness if you attempted to retreat from the fight, but your opponent kept pressing the fight.
And that is my big fear, but also a bit of a comfort; that our opponents will not merely try to repeal SYG, but will try to gut self-defense laws even further. It is a fear, because I always worry they could be successful. It is a comfort, because this kind of overreach is what’s ruined their fortunes in the past.
Congratulations to Clayton
Challenge to Self-Defense Law
There’s an activist in Georgia who supposedly challenging SYG in federal court. In reality he’s challenging centuries of common law, and attacking the very core of self-defense:
“It is not clear what actions would create ‘reasonable belief’ that deadly force is necessary,” said the suit filed in U.S. District Court in Atlanta. “An individual seeking to stand their ground and assert self-defense has no way of knowing if their ‘reasonable belief’ comports with the standards protected by the law and [they] want to ensure that they do not subject themselves to criminal penalties.”
Reasonable belief has always been the standard. This case is pretty obviously a publicity stunt, and I don’t believe the federal courts are going to overturn centuries of common law and statutory law. Besides, after Heller, there’s arguably a constitution right to self-defense. But it’s worth noting that there are enough hucksters out there capitalizing off this case, that they’ll try anything, even attacking the very foundations of the rule of law, to make a name for themselves.
Duty to Retreat, Another Way of Thinking About It
Eugene Volokh takes a look at a case where duty to retreat did play into a case. In this case, the man who failed to retreat from someone threatening his life got 18-20 years in prison. The man was also black:
Again, the question was: Did the victim’s “I’m going to stab you n[—–]†require defendant to give up the right to be where he was, or else be legally stripped of the right to defend himself with deadly force if he stayed? (I infer that he was on a sidewalk or a place that’s similarly open to the public, and not on the threatener’s property, or else the court would have noted that […)]
Bracketed part I edited, as to avoid tripping anyone’s keyword filters and for brevity. Read the whole thing. There have been a lot of accusations from blowhards like Sharpton that the Florida law is a license for white people to kill black people, when in reality the law will probably protect more blacks than whites, simply due to the fact that blacks live in areas where the need to defend oneself tends to be more acute. In this case, Mr. Benoit ended up in prison. Our opponents say these cases don’t exist, but they do. It just often happens to people who don’t have the money to hire PR firms to make their cases to the public.