Why I Love the Law, Reason #362:
Because judges can write 85 pages of very serious analysis on the constitutionality of moving a zipper on a jacket. See today's en banc Fourth Amendment decision by the DC Circuit in United States v. Askew. The en banc court ended up taking a different view than the original divided panel: My coverage of the panel opinion from April 2007 is here. There are some interesting conceptual issues in play here that I'll probably blog about next week, but for now I wanted to just flag the decision so everyone is up to date on the latest in zipper jurisprudence. Thanks to How Appealing for the link.
I suppose I am less worried about the "hours upon hours" that an attorney might spend "not seeing his kids and family" than I am about Mr. Paul Askew, who was sentenced to spend 36 months of his life in prison and now will be set free because of this decision.
I am guessing he does not see this case as "stupid."
Why don't you just zip it?
Couldn't resist. Sorry.
First, the opinion itself is only 43 pages. Judge Griffith's concurrence is 10 pages. Judge Kavanaugh's dissent is 32 pages long. Thus, the note of 85 pages refers to the entire decision, not just the majority opinion.
Second, on Orin's follow-up post about the defendant being "set free," I would note that Mr. Askew is likely already out of custody (he was sentenced to 36 months in prison well over 3 years ago) but I acknowledge that his supervised release period will undoubtedly be vacated.
I'm curious: Do you think the DC Circuit's decision is wrong, and if so, why?
it does really makes a mockery of a legal presumption that all know the law.
we cant have a system without such a presumption-so why not instead make the law simpler?
only problem is-with constitutional law there is no wya to make it simple by passing a statuete-its case law-and thats by definition complicated
You are right, the example works a little better with a civil case, and better yet, with a commercial case.
But I'm still willing to bet that some lawyers on that case felt that way. It's an inevitable part of lawyering, and there are a small number of lawyers who avoid this.
if it makes you feel any better even Orin in this particular case recommended the court not go en banc-becuase it would only establish the law for the small 'circuit' of DC..and only in federal cases.
i think i disagree because i considered the panel wrong and on a slippery slope. but i see the point.
Unless one is an associate whose work otherwise consists of document review and drafting discovery objections and nasty letters to opposing counsel, in which case one might jump at the chance.
or if you just like criminal procedure. is that even possible-somebody likeing the subject matter of their work?
We The People have no reasonable expectation of privacy behind a closed zipper.
I hope i'm wrong.
Read the opinion. You are wrong.
Actually it seems to be a bit more complicated. The controlling opinion doesn't actually reach that issue, as noted in the dissent. Despite all the ink spilled in the 85 pages the case was really decided on narrow factual grounds.
Good to know that the frisk really helped officer safety, hmm?
Let's face it, lawyers who are working for $ are rarely working on anything earthshattering. Or, if you are, you can look up the chain and feel bad by comparison. I don't think you feel this in academia or as a judge - that was my only point. An obvious point but I think one that is well illustrated by the post.
Let's face it, lawyers who are working for $ are rarely working on anything earthshattering. Or, if you are, you can look up the chain and feel bad by comparison. I don't think you feel this in academia or as a judge - that was my only point. An obvious point but I think one that is well illustrated by the post.
I think there is something to this, but there is much more interesting work in academia than in the judiciary. I'm reminded of the recent interview with Justice Scalia in which (if I recall correctly) he complained about how much uninteresting work he had to do in his job. I don't remember the exact quote, but maybe some readers will remember it. I don't think most professors feel that way, although I believe most judges do.
Shakespeare was right
Support for the court's findings, then, means one of three things:
1) one is a felon who routinely hides illegal handguns under his jacket,
2) one likes the fact that felons can more easily illegally hide handguns under their jackets, or
3) one is wealthy enough to live in neighborhoods where felons don't often illegally hide handguns under their jackets, and therefore support for such a ridiculous position doesn't really affect you in a true sense.
So much of abstract legal reasoning depends upon the distance, emotional and physical, between legal reasoners and the consequences of their views. In effect, if you are rich and insulated, discussing felons hiding handguns behind zipped jackets is about as 'real' as discussing felons hiding handguns behind zipped jackets in Croatia. Its irrelevant (to you) whether you are 'right' in a practical, pragmatic sense. Logical puzzles are fun in such circumstances.
Sk
The Fourth Amendment, apparently, makes it easier for people to conduct illegal activity inside their home.
Support for the Fourth Amendment, then, means one of three things:
1) One is a person who conducts illegal activity inside his home.
2) One likes the idea of people conducting illegal activity inside their homes.
3) One is wealthy enough to live in neighborhoods where people don't often conduct illegal activity inside their homes, and therefore support for such a ridiculous position doesn't really affect you in a true sense.
Besides, isn't doctrine based on results "judicial activism," the cardinal sin of the judiciary?
Either that or "I (and a handful of my colleagues) just dealt with a complicated legal question and ended up setting a criminal free and wiping another judge's opinion off of the books. I should explain how I reached my conclusions."
One of those two things.
What I find more notable is that, as far as I can tell, Mr. Askew never attempted to harm the officers with the gun in any way. Instead of stopping to reconsider the efficacy of officer frisks, perhaps we should reconsider the necessity and hence constitutionality of them, at least in a case as this one, where the citizen isn't formally placed under arrest. Someone suspected of a crime without probable clause has everything to gain by not making any movements that could endanger officer safety. Here, Mr. Askew ended with no criminal conviction instead of a serious (attempted) assualt or murder conviction.
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