Happy Festivus...

... for the rest of us.

Some airing of grievances:

1) Judges who don't vary down from the guidelines for first-time non-violent offenders.

2) Prosecutors who don't have open file discovery.

3) Defense lawyers who don't share what their cooperating clients are going to say.

4) The sentencing guidelines.

5) The few remaining judges who don't order early exhibit lists and pre-trial Jencks.

6) The good-faith exception to the 4th Amendment.

7) "Harmless error."

8) "PCA"

9) Arresting someone without giving them the opportunity to surrender.

10) Min-mans

CA11 holds that police can't tase someone for calling 911

CA11 holds that police can't tase someone (in this case a pregnant woman!) for calling 911. One wonders how this was even a question... but I digress:

Mrs. Brand then turned to Ms. Velazco and asked for a phone so she could call 911. Ms. Velazco handed Mrs. Brand the home phone. Deputy Pardinas ordered Mrs. Brand to “drop the phone,” but she did not. Instead she announced she was dialing 911. Mrs. Brand began dialing when suddenly and without warning, Deputy Pardinas tased her. The tase caused Mrs. Brand to fall to the floor in “[h]orrible, excruciating” pain.
Deputy Pardinas ordered Mrs. Brand to lie flat on her stomach. Deputy Pardinas began “punching [her] back,” striking Mrs. Brand about three times in an attempt to get her to lie on her stomach. Mrs. Brand said she couldn’t lie flat because she was pregnant. She kept one of her legs “elbowed out” to protect her stomach. Deputy Pardinas kicked Mrs. Brand’s leg several times to get her into a fully prone position.
***
As far as Deputy Pardinas knew, Mrs. Brand was not suspected of any crime when the deputy deployed her taser. Mrs. Brand was not the subject of the arrest warrant. And although Mrs. Brand was eventually arrested by Deputy Casal for obstruction and cruelty to children in the third degree, these alleged offenses were based on conduct that occurred before Deputy Pardinas joined Deputy Casal at the front of the house. Deputy Pardinas did not see, and did not know about, the altercation between Mrs. Brand and Deputy Casal that led to the charges against Mrs. Brand.
7 Those charges do not therefore support the reasonableness of Deputy Pardinas’s use of force. See Rodriguez v. Farrell, 280 F.3d 1341, 1352–53 (11th Cir. 2002) (“We do not use hindsight to judge the acts of police officers; we look at what they knew . . . at the time of the act.”).
Second, Mrs. Brand did not pose any “immediate threat to the safety of the officers or others” when Deputy Pardinas tased her. Graham, 490 U.S. at 396, 109 S. Ct. at 1872. It is true Mrs. Brand was “extremely upset [and] agitated” that the officers would not get out of her house. But, under the Brands’ version of events—which we accept at this stage—Mrs. Brand was never violent or aggressive toward the officers. For example, Ms. Velazco reports that Mrs. Brand never even yelled. Indeed, Ms. Velazco testified that “[t]he only aggressive acts came from the officers.” Mrs. Brand was simply standing in her foyer, asking the officers to leave, holding a phone, and attempting to dial 911. The defendants point to the fact that Mrs. Brand disobeyed Deputy Pardinas’s order to “drop the phone.” But there was nothing dangerous about Mrs. Brand holding a phone in the first place, especially where she made clear she was using it only to dial 911. Her refusal to comply with the order to drop the phone did not pose any threat to the safety of the officers, and certainly was not a threat that would necessitate the use of a taser with no warning to Mrs. Brand. Cf. Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011) (“[R]esisting arrest without force does not connote a level of dangerousness that would justify a greater use of force.”).
Third and finally, Mrs. Brand was neither actively resisting arrest nor attempting to escape when Deputy Pardinas tased her. Graham, 490 U.S. at 396, 109 S. Ct. at 1872. By all accounts, she had not even been told she was under arrest at the time she was tased.
Based on the Brands’ account of the facts, we are persuaded that Deputy Pardinas “used force that was plainly excessive, wholly unnecessary, and, indeed, grossly disproportionate under Graham.” Lee, 284 F.3d at 1198. We therefore conclude that Deputy Pardinas’s tasing of Mrs. Brand constituted excessive force in violation of Mrs. Brand’s Fourth Amendment rights.

More on Kozinski (UPDATED -- KOZINSKI RETIRES)

UPDATE: Judge Kozinski has decided to retire, effective immediately.



ORIGINAL POST: The Washington Post had another front page article this weekend, detailing another round of Judge Kozinski allegations.  It’s not pretty.  Above the Law explains:

And that’s really been the nugget at the core of any defense of Kozinski. He was “only” joking, or that he should get a pass or a mere slap on the wrist because his behavior didn’t cross the line into the physical. But in the new WaPo article more women are coming forward with allegations that seem to cross that line and are deeply unsettling.

Take the story of Christine O.C. Miller, who is now a retired U.S. Court of Federal Claims judge. She says that in 1986 she attended a professional event with Kozinski and shared a car ride home at the end of the evening. During that ride Miller alleges Kozinski asked her to stop at a hotel and have sex. When she rejected his advance, she alleges things turned physical:

“I told him, no, I wasn’t interested and didn’t want to be involved in anything like that,” she said. Kozinski, she said, persisted.

“He said if you won’t sleep with me, I want to touch you, and then he reached over, and — this was the most antiseptic — he grabbed each of my breasts and squeezed them,” Miller said. She said she stared straight ahead, and he soon dropped her off at her home.

So now what? The Second Circuit is investigating. He’s hired Susan Estrich at Quinn Emanuel. Will he step down before the Second Circuit concludes its investigation or will he dig in?

Your Friday moment of Zen

Your Friday moment of Zen:

If you haven’t watched Trump’s judicial nominee Matthew Petersen testify yesterday, then you need to watch this.

Judging A Book: Cooke Reviews 'Constance Baker Motley'

Judge Marcia Cooke reviewed "Constance Baker Motley: One Woman’s Fight for Civil Rights and Equal Justice Under Law" for Law360.  Here's the personal and interesting intro:

In the spring of 1955, my mother boarded a train in Sumter, South Carolina. She was traveling to join my father, who had moved to Detroit shortly after I was born. The plan was that she would join him later. They both knew there was little opportunity for economic advancement for African-Americans in South Carolina. They became part of the great migration — Southern African-Americans moving north from the dangerous, segregated South.

She carried me in her arms. I was 9 months old. She packed and carried enough provisions for both of us for the two-day trip. My mother, as a child of the segregated South, knew that the dining car on the train was not available to her. Whatever we would need on the two-day journey was in her luggage. Food. Clothing. Hygiene. Years later she spoke of the kindness of the Pullman porters, the African-American men that worked on the train. One would surreptitiously take my bottle, warm it and return it to my mother. Another would alert her when the small communal bathroom in the “colored” car was just tidied and available so she could take time to clean herself and me of the traveler’s dirt.

Ten years later, a return trip was very different. My family stopped at a West Virginia Howard Johnson’s on a Southern road trip. We walked into the dining room and were promptly seated, our orders were taken and we were served — without incident, thanks to Constance Baker Motley. Constance Baker Motley, who?

As historian Gary L. Ford Jr. states in his recently published biography, "Constance Baker Motley: One Woman’s Fight for Civil Rights and Equal Justice Under Law":

Many of the people Motley helped had no idea who she was or what she did for them. She operated within the confines of courtrooms where many protesters were either banned or strongly discouraged from attending their trials. She was their unseen and unknown guardian angel.

Ford is an attorney and professor of African studies at Lehman College. His biography of Constance Baker Motley is an interesting read, even for nonscholars. The book is also an excellent reference material. The appendix details Motley’s numerous cases before the U.S. Supreme Court, the various U.S. courts of appeals and the U.S. district courts.

Ford’s book is more than a general biography of the woman who would become the first African-American female United States district judge; it presents in vivid detail how her work altered the legal landscape of the United States systematically, case after case, dismantling the Jim Crow laws in the Southern United States. Most of us know that Thurgood Marshall and the NAACP Legal Defense Fund (“LDF”) filed cases to end public school desegregation, defended individuals arrested at sit-ins, and provided legal support and guidance to the early civil rights movement in this country. Most forget that Marshall left the LDF in 1961 when he was appointed to the United States Court of Appeals for the Second Circuit. The legal enforcement of Brown v. Board of Education, the desegregation of professional schools and a host of other litigation and civil rights enforcement fell to Motley.