Patterico's Pontifications


WaPo on the Flopping Aces/AP Bombshell

Filed under: General — Patterico @ 9:28 pm

The “AP vs. CENTCOM and Flopping Aces” story has hit the Washington Post.

Except that Flopping Aces is not mentioned.

Dahlia Lithwick Is Exactly Right

Filed under: General,Law — Patterico @ 8:29 pm

You’re not going to see that title here often. But I completely agree with Lithwick’s argument that the Supreme Court should release same-day audio of the oral argument in every case it hears — not just in selected cases involving divisive, hot-button social issues.

Libertarian Calls for Federal Oversight of Local Police Techniques; Patterico’s Devil and Angel Dispute How Best to Respond

Filed under: General — Patterico @ 8:05 pm

I have two little guys, one sitting on each shoulder, when I blog. On one shoulder is the little guy in the devil outfit. He’s the one who is forever imploring me to snark at people and get into fights with them. He’s entertaining, and I give in to him sometimes — but he often gets me into trouble.

On the other shoulder, I have the little guy in the angel outfit. He warns me to be polite and understated in my observations, claims, and inquiries. This guy is a little boring sometimes, but he’s probably the right one to listen to in most cases.

I got different reactions from these guys when I read Glenn Reynolds’s observation that we need federal legislation to tell local police departments how to serve search warrants.

The guy in the devil suit wasted no time in whispering: is this an example of fair-weather federalism?

I’m ignoring that guy and listening to the guy in the angel suit, who advises me to ask this polite question of Prof. Reynolds: can you tell me how your proposal squares with federalist principles?

UPDATE: I’ll add that if Prof. Reynolds is simply referring to his pet idea of eliminating official immunity in such raids, I don’t necessarily see a federalism problem with that if it’s limited to the federal section 1983 statute. I do have a problem with the federal government telling local police how to do their jobs. Ironically, the former (eliminating immunity) would have the same effect as the latter, in reality. The wisdom of that step as a policy matter is a question for another day.

UPDATE x2: Prof. Reynolds responds here, saying that the whispered accusation of “fair-weather federalism” made by the little guy in the devil suit on my shoulder is “silly.” He argues that kicking in someone’s door without a very good reason is a deprivation of liberty and property, and often life, without due process.

But in the Terri Schiavo case, I made a similar argument based on due process rights. You can read my argument here. I argued that language in Supreme Court cases supported the position that life-or-death issues like the ones raised in the Schiavo case must be litigated according to a “clear and convincing” standard of proof, and that federal courts have an appropriate role in reviewing such decisions to ensure that the federally mandated standard of proof was properly applied — much as happens in habeas corpus proceedings in criminal cases.

At the time Prof. Reynolds dismissed arguments like mine on federalism grounds. [UPDATE: I should have included a specific link to the particular post I meant. Here is that link.]

I don’t understand why. If you read my argument on the Schiavo case, it seems to me that I make at least as strong a due process argument as one saying that police fail to observe due process of law when they enter a home pursuant to a lawful search warrant, signed by a neutral and detached magistrate. (In cases where the warrant is invalid due to bad faith on the part of the police, there is already relief available under Section 1983.)

In any event, in an update, Prof. Reynolds seems to limit the scope of his proposed federal legislation to stripping away immunity in no-knock cases. If that is all he means to propose — and he intends this immunity-stripping to apply only to liability arising under existing federal law — that does not strike me as an example of fair-weather federalism. But I think a ban on no-knock searches would be.

UPDATE x3: Prof. Reynolds has responded further. Rather than having the updates completely swallow the post, I’ll respond further in a new post.

Prof. Klinger Interviewed on NPR

Filed under: General — Patterico @ 7:18 pm

Prof. David Klinger, whom I interiewed in this post regarding the Johnston case in Atlanta, was on NPR’s “Talk of the Nation” today. You can hear the program here.

AP: That Iraqi Police Captain is Genuine, and So Is Our Story

Filed under: General — Patterico @ 6:28 pm

The AP is standing by that story quoting the alleged Iraqi police official who, the military says, isn’t actually with the police:

The Associated Press is standing by its report that six Sunni men were burned to death in Baghdad Friday by Shiites, even though U.S. military officials have accused the wire service of relying on a source who “is not who he claimed he was,” an Iraqi police captain.

Military officials also say they cannot confirm that the incident took place and have asked AP to retract or correct the story, which was repeated by media around the world and cited as a grim example of Shiites taking revenge for a deadly bombing that killed more than 200 people a day before.

“The attempt to question the existence of the known police officer who spoke to the AP is frankly ludicrous and hints at a certain level of desperation to dispute or suppress the facts of the incident in question,” AP International Editor John Daniszewski said in a statement e-mailed to On Deadline this afternoon.

He added that “we have conducted a thorough review of the sourcing and reporting involved and plan to move a more detailed report about the entire incident soon, with greater detail provided by multiple eye witnesses.”

“The police captain cited in our story has long been known to the AP reporters,” Daniszewski wrote.

“The AP stands by its story.”

But a U.S. military spokesman has told the AP in a letter that “neither we nor Baghdad Police had any reports of such an incident … and could find no one to corroborate the story.”

“Unless you have a credible source to corroborate the story of the people being burned alive, we respectfully request that AP issue a retraction, or a correction at a minimum,” Navy Lt. Michael Dean, the spokesman, wrote to the AP on Monday.

Fascinating. We’ll have to see how this shakes out.

Via commenter steve, who always provides great links.

The Supreme Court Identifies A Patently Obvious Racket

Filed under: Court Decisions,General,Law,Public Policy — Justin Levine @ 3:56 pm

[posted by Justin Levine – not Patterico]

The current U.S. Patent system is a thoroughly corrupt racket that stifles human innovation and free markets in favor of special interests and statist monopolies. Regretfully, much of the international community has also followed suit.

This racket is so foul that the legal system has even seen fit to try and monopolize the issue by creating a “Patent Bar” and forcing litigation to go through only one federal appellate court.  

Because there is no “competition” between different courts in finding the proper interpretation of Patent Law, the Federal Circuit has been allowed to screw up something as simple as interpreting what the word “obvious” means. They have even gotten away with ignoring Supreme Court precedent in this area for several years. Partly as a result, patent cases now routinely employ “experts” to try and educate juries as to what is or is not “obvious”. Got that? 

Fortunately, the U.S. Supreme Court is indicating that it might be willing to provide at least a small amount of relief in this area. The key issue will be how broad the final ruling turns out to be.

Reading the tea leaves of Supreme Court oral arguments can admittedly be tricky. But it looks like this ruling could bridge ideological lines among the Justices.

A few choice excerpts from the oral arguments:


Did the Judge in Atlanta Rubber-Stamp the Search Warrant in the Johnston Case?

Filed under: General — Patterico @ 7:30 am

I mean literally rubber-stamp it?

Orin Kerr looks into the possibility.

UPDATE: Radley Balko has a fun, LGF-style graphic that helps make the point.

Interview with a Use-of-Force Expert Regarding the Shooting of the Woman in Atlanta

Filed under: General — Patterico @ 6:41 am

On Saturday, I spoke with use-of-force expert Prof. David Klinger about that incident in Atlanta where an elderly woman shot police serving a no-knock warrant on her home, only to be killed when police returned fire. I sent Prof. Klinger some follow-up questions by e-mail after our talk on the phone.

Here’s a brief summary of what he said:

Prof. Klinger, an advocate of drug legalization, said that we don’t know enough about the facts to come to a conclusive judgment about the tactics employed. Prof. Klinger cautions people against jumping to hasty conclusions in this case, even now that new accusations have been made against the police.

The majority of our discussion took place on Saturday, and was directed at the topic of the tactics and wisdom of dynamic entries. However, I felt compelled to ask him about yesterday’s revelations, given their seriousness.

Yesterday it was revealed that the informant in the case claims police asked him to lie. Prof. Klinger agreed with me that this is bad news for the police regardless of the truth of the informant’s claims. The informant may or may not not be telling the truth, he said. If he is, the police should go to prison. If he’s lying, that’s still ample cause for an investigation of the police department’s history of dealings with this informant.

Regarding the tactics of the raid, he said that, based on what we know so far, the police probably did an inadequate job of scouting the location to learn what they were up against.

He says that regardless of one’s feelings about drugs, we have to enforce the law, and that includes serving search warrants in drug cases. Sometimes, those entries will have to be dynamic entries.

However, Prof. Klinger is, in general, an opponent of dynamic entries, and says that they should be reserved for situations where the people inside are dangerous criminals and where recovery of evidence is paramount to an investigation. (He notes that drug dealers are sometimes dangerous criminals.)

Although he generally opposes dynamic entries in the typical drug case, Prof. Klinger says that the alternate suggestion many are making — that police should in all cases simply knock on doors and wait on the porch for the occupant to answer — is a silly suggestion that will pose an unacceptable risk to police.

There is a third way, he says, that hasn’t been discussed on the blogs. He describes it in the interview, which is in the extended entry.


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