Law & Law Enforcement

Comment of the Day: “Prelude: Intent, Gross Negligence, And ‘Extremely Careless’”

/ Jack Marshall / 9 Comments

eyes closed driving

Long-time commenter (and blogger) Glenn Logan has authored not one but three COTD-worthy posts of late. I have chosen his commentary on the gross negligence/extremely careless distinction for the honor, but any of them would have been worthy choices. You can find the others in the threads here and here.

Before I get to Glenn, I want to point out that a recent and ridiculous news story illustrated the difficulty of the gross negligence/extreme carelessness distinction perfectly:

A North Florida woman is saying her prayers after running her car into a home — after saying her prayers.

The 28-year-old woman was driving in the tiny town of Mary Esther, located west of Fort Walton Beach in the Florida Panhandle. Deputies from the Okaloosa County Sheriff’s Office say the driver told them she was praying and had her eyes closed before the incident took place.

According to NWFDailyNews.com, authorities say she ran a stop sign, going through an intersection and into the yard of a home. The driver tried to back out, but her car got stuck in sand and dirt around the home. No one was hurt inside the home and the driver was taken to a nearby hospital for evaluation. She was cited for reckless driving with property damage.

Gross negligence would be praying, driving, and closing her eyes knowing well that it endangered others, and doing it anyway. Extremely careless would be praying, driving, and closing her eyes assuming that no harm would come of it, perhaps because God would be driving the car. “Reckless,” however, may cover both.

Here is Glenn’s Comment of the Day on the post, “Prelude: Intent, Gross Negligence, And ‘Extremely Careless’”: Continue reading →

Pokémon Go Ethics: Beware The Terms Of Service Agreement!

/ Jack Marshall / 14 Comments

pokemon-go-starters

I had a hard time finding anything unethical about Pokémon Go, the smartphone GPS scavenger hunt game that sends players all over the landscape to find and trap those adorable Japanese monsters that caused a trading card craze and more a decade ago. (I assume that anything that seems really dumb is likely to have ethics problems. You’d be amazed how often I’m right.) It seems benign. The game can be good exercise, it’s engaging for people who have no more productive avocation, and best of all, it gives American something to obsess about not named Bill or Hillary. There are some troubling signs: administrators at the National Holocaust Museum and Arlington National Cemetery felt that they needed to ask visitors not to play the game while contemplating the murder of six million Jews and the fallen heroes of foreign ways—what is these spoilsports’ problem?—and some people are letting the game endanger themselves and others, leading to these morons falling off a cliff, causing this idiot to drive  his car into a tree, and prompting this in Arizona…

Pokemon go traffic sign

Continue reading →

Four Supreme Court Decisions: Abortion, Guns, Affirmative Action, Corruption…And Ethics. Part 3: Whole Woman’s Health v. Hellerstedt

/ Jack Marshall / 54 Comments

shrinking-number-of-abortion-clinics-in-texas

[The Supreme Court came down with four controversial and ideologically contentious decisions in June, and I apologize for taking almost a month to cover them all. One of the reasons Ethics Alarms occasionally launches a series like this one is to ensure that developing ethics stories of importance do not push important issues to the sidelines. The fact that this four part series had only finished parts 1 and 2 was an irritant to me, as well as some readers.]

In Whole Woman’s Health v. Hellerstedt, decided on June 27, the Supreme Court held in a 5-3 majority that two provisions of a Texas law, one requiring physicians who perform abortions to have admitting privileges at a nearby hospital and another requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center,  places a substantial and unconstitutional obstacle in the path of women seeking an abortion, because they constituted an undue burden on abortion access.

Life would be so much simpler if our elected officials and activists employed an adaptation of the Golden Rule, and looked objectively at issues from the other side’s point of view. This is especially true in the realm of rights.  Second Amendment absolutists insist that virtually any laws regulating who can purchase guns, when and where they can purchase them, and how and how quickly they can be purchased are efforts to whittle away the right to bear arms. They also argue that such regulations have the ultimate goal of  eliminating that right entirely, which, in many instances is the case, especially if you listen carefully to the rhetoric of the legislators proposing such measures. There is little difference from this and what anti-abortion advocates are attempting to do with laws like House Bill 2 (H. B. 2).

The bill ostensibly is designed to make abortions safer, thus protecting women’s health, just as many gun laws are promoted as safety measures. Oddly, virtually all of the supporters of the Texas bill would make abortion illegal if they could. I’m sure it’s just a coincidence, just as it’s a coincidence that the authors of bills requiring potential gun owners to jump through increasingly burdensome hoops and deal with mandatory trigger locks and “safe gun” technology would gladly repeal the Second Amendment if they could. The ethical principle is the same in both matters: a right isn’t a right if legal obstacles make it difficult to exercise that right.

The question is, what’s a reasonable obstacle? Any regulation imposed on a constitutional right must not create “a substantial obstacle” and must be reasonably related to “a legitimate state interest.” The Supreme Court uses the language and logic of case precedents, which are its previous examinations of these issues and the balancing they require. One such case, though I did not find it mentioned in the majority opinion or dissents in Hellerstedt, would be the voter ID decision of many years ago, in which a strong majority ruled that the state interest in preventing fraudulent voters and maintaining the integrity of the election process justified inconveniencing those who were subjected to the extra burden of obtaining appropriate identification. In recent years, this decision has been questioned because many believe the motive behind voter ID laws is not really to protect the franchise, but to keep likely Democratic voting blocs from the polls.

Is there a difference legally between a bill that is authored with the intent to restrict the right to vote of older, poorer, and darker citizens while claiming that its sole purpose is to make sure non-citizens don’t affect the results of elections, and an identical  bill that is genuinely intended to safeguard the voting rolls, without any political motive at all? No, or at least there shouldn’t be. The Court’s job is to evaluate what the law does, not try to read the minds and hearts of those who wrote it. Justices only should try to do the latter when there is a debate over what the law says.

Ethically, however, there is a significant difference between a law using a public purpose as a sham to accomplish unethical ends, and a law with a legitimate purpose that has some negative side effects. Trying to restrict a citizen’s rights because one doesn’t respect those rights (or perhaps the citizen) is unethical.

The SCOTUS majority, in its typical examination of a balancing case like this, looked at whether there was a sufficient public safety benefit to a law that had resulted in a precipitous reduction in abortion services: Continue reading →

Ethics Quote—But Not Necessarily ETHICAL Quote!—Of The Month: Supreme Court Justice Ruth Bader Ginsburg

/ Jack Marshall / 3 Comments

i-was-wrong

“On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”

—- Justice Ruth Bader Ginsberg, officially apologizing for making remarks sharply critical of Donald Trump last week, including suggesting (in jest) that if her were elected President, she might “move to New Zealand.”

Observations:

1. Supreme Court justices almost never apologize, and I only say “almost” because I can’t do enough research right now to safely say “never.” They don’t apologize because the don’t have to: they are, ethically, a law unto themselves, and accountable to nobody unless impeached and convicted. (Justice Samuel Chase, was impeached by the U.S. House of Representatives on March 12, 1804, on charges of arbitrary and oppressive conduct of trials; it was a purely political attack. He was, correctly, acquitted by the U.S. Senate on March 1, 1805.)

2. An apology was appropriate, however. Justice Ginsberg proved herself smarter, better, more ethical and more principled than the embarrassing, crypto-facsist “these are not ordinary times” crowd, including the folks at Salon and other left-wing blogs, this guy, and too many of my dear friends on Facebook, whose expressed opinions really are beginning to make me wonder if they will solemnly send me to a Lobotomy Man when I oppose President Clinton’s declaration of open borders, ban on fossil fuels, race and gender quota in all hiring and admissions to (free) colleges, and confiscation of 50% of my property to help pay for national health care including late-term abortion on demand and tax-payer funded recreational drugs.

3. She apologized because any fool could see that her comments did undermine trust in the institution of the Supreme Court, and that her critics were right. Some of my more misguided colleague in the legal ethics field opined that it was silly to think that Justices don’t have political opinions and biases, just as it is silly to think journalists do not, so why shouldn’t she exercise her First Amendment rights? This  lame notion was decisively rebutted by a lawyer whose name I wish I could reveal, except that his comments were on a private list. He wrote in part… Continue reading →

The Black Lives Matters Effect, Part I: The Tenor And The Blogger

/ Jack Marshall / 18 Comments
Singing the right lyrics also matters, you boob...

Singing the right lyrics also matters, you boob…

One thing you have to say for Black Lives Matters: it is good at making people make asses of themselves. “Late Night” host Seth Myers was yesterday’s example, but there are oh-so-many-more, and much worse.

For example, in the pre-game ceremonies of the Major League Baseball 2016 All-Star Game in San Diego, a Canadian tenor, apparently driven to distraction by the reverential treatment given to a group that promotes race hatred and a color-based standard for law-enforcement, snapped while performing the Canadian national anthem. Remigio Pereira, a member of  the vocal group The Tenors tapped to sing the anthem, held up a handwritten sign that read “All Lives Matter” altered the lyrics in the line “With glowing hearts we see thee rise. The True North strong and free” to “We’re all brothers and sisters, all lives matter to the great.”

This doesn’t fit the music, and is even worse than the real lyrics, which is quite a feat. Of course, Remigio was unethical to do this, expropriating an event that had nothing to do with Black Lives Matter, nor race, nor politics to make his own grandstanding statement (come to think of it, baseball does have something to do with grandstands. The stunt was disrespectful of everyone—his hosts, Major League Baseball; San Diego; the captive audience in the stadium, the TV audience, Canada. It was also a breach of trust that directly and perhaps fatally wounded his group, which immediately suspended him (Can we say F-I-R-E-D, Tenors? Sure we can) and issued an abject apology.

The statement was not unduly disrespectful to Black Lives Matter, however, which has shown itself to be unworthy of respect, as all divisive hate groups are.

The Black Lives Matters effect is wide-ranging, however, as this episode shows. It not only makes Canadian tenors irresponsible, but sportswriters too. Over at NBC Sports online, baseball blogger Craig Calcaterra couldn’t perceive the unethical nature of a performer hijacking a paid gig for his own purposes, but lectured his readers on the sin of using the term “All Lives Matter,” writing,

This may not seem terribly controversial to some, but in the context of the Black Lives Matter movement that has risen over the past few years, “All Lives Matter” has come to be seen as a reactionary response which fundamentally misunderstands — often intentionally — the purpose of the Black Lives Matter movement. And is used to belittle and marginalize the Black Lives Matter Movement. The phrase “black lives matter” does not mean that “black lives matter more than any other lives.” If it did, sure, maybe “All Lives Matter” would be a reasonable response. But “Black Lives Matter” is a response to a society and, particularly, police, which treat blacks as lesser persons and who do not face repercussions for harming and in some cases killing black people through excessive force. It’s “black lives matter too” — a necessary statement, sadly — not “black lives matter more.”

Sigh. Continue reading →

Prelude: Intent, Gross Negligence, And “Extremely Careless”

/ Jack Marshall / 44 Comments

falling bowling ball

By now I intended to have published a thorough essay deciding the question of whether conservatives, and their claims that James Comey was part of a Justice Department conspiracy to save Hillary from indictment, were more unethical that Clinton supporters in the news media and elsewhere pronouncing her “exonerated” because she’s not facing trial. Alas, pressing matters have intervened, but no matter: I will present it soon. Meanwhile, however, allow me to clean up a relevant controversy.

Much of the mockery of Comey’s explanation of the FBI’s recommendation, since accepted with a big “Whew!” by Loretta Lynch, arises from his assertion that while Hillary’s handling of classified information was “extremely careless,” it did not arise to the standard of “gross negligence” specified in the relevant statute. Too many pundits and commentators to mention have snorted at this, arguing that there is no practical difference. Comey did not help, when he was asked the question in his Congressional testimony, by explaining the difference as one of enforcement: in a century, he said, no conduct similar to Clinton’s has ever been found to meet the “gross negligent” standard sufficiently to warrant prosecution. Attorney General Lynch, when she was asked the same question by Rep. Jim Sensenbrenner (R-Wis), just repeated how she accepted the recommendations of Comey not to indict Clinton.

There is a difference, however. I don’t know why neither Comey nor Lynch could articulate it, but it exists, and I will now make it clear.

For this analogy I owe thanks to a D.C. lawyer, ethics expert and law professor friend of long-standing with whom I was recently discussing the Clinton matter. He has a gift for  analogies, and said this…

“Intent, is when you drop a bowling ball out of an office building window, aiming so that it will kill somebody by falling on the victim’s  head.”

“Gross negligence is when you toss a bowling ball out of an office building window without looking in order to get rid of it, knowing full well that it is mid-day and very likely to fall on someone’s head.”

“AH HA!” I interrupted. “Then ‘extreme  carelessness’ is when you toss the bowling ball out of an office building window without looking, in order to get rid of it, because it’s 3 AM and you mistakenly/ignorantly/ stupidly  assume nobody will be walking on the sidewalk at that time of night!”

“Exactly!” he said.

More to come…

Ethics Dunce: “Late Night” Host Seth Meyers

/ Jack Marshall / 21 Comments

meyers-giuliani

Seth Meyers is a comedy writer and performer, and his job, on the show following the Tonight Show, is to be funny, not to use the program as a platform for his political views. His predecessor twice-removed, David Letterman, increasingly ignored that line as time went on and he moved to CBS. This stratified his audience, and abused his role, but massaged Letterman’s massive ego. (Meyers’ immediate predecessor, current Tonight Show host Jimmy Fallon, may not always be funny, but he knows his place.) Meyers is relatively new to the job, and this week went much, much farther than Letterman ever went, while being supremely smug about it. Here were his hilarious comments last night:

MEYERS: So there were some incendiary and counterproductive responses to the tragedy in Dallas, but there were perhaps no worse response than that of former New York City mayor Rudy Giuliani, who complained, in perhaps the most galling and offensive way possible, that those peacefully protesting for police reform should shift their focus.

RUDY GIULIANI (on video): If I were a black father and I was concerned of my child, really concerned about it, and not in a politically activist sense, I would say, “be very respectful of the police. most of them are good. some can be very bad. and just be very careful.” I’d also say, ‘Be very careful of those kids in the neighborhood and don’t get involved with them, because son, there’s a 99% chance they’re going to kill you, not the police.’

MEYERS: Okay, first of all, don’t ever start a sentence with the phrase, “if I were a black father.” If you are black father, you don’t need to say it. And if you’re not, you should probably just shut the fuck up. And if Giuliani’s willing to say that some police can be very bad, you would think he’d see the value in the Black Lives Matter protests. But instead, he condemned them.

Observations: Continue reading →

Donald Trump Candidacy Ethics Train Wreck Passenger List Update: Georgetown Law Prof. Paul Butler Scores A Perfect Rationalization #28

/ Jack Marshall / 10 Comments
We're real sorry about this, but these are not ordinary times...

We’re really sorry about this, but these are not ordinary times…

The human ethics train wreck named Donald Trump is now in the process of exposing how thin the veneer of professionalism is for many alleged intellectuals, scholars and lawyers. On an e-mail list of most of the legal ethicists in the country, one of them posted this in reaction to Justice Ginsberg’s unethical and unjudicial shots at Donald Trump:

“I love RBG way too much to be critical of her in any way . Long may she live!”

This opne expression of willful denial, from not merely a lawyer, but an ethics specialist! It is the epitome of one of my father’s favorite quotes, “My mind’s made up, don’t confuse me with facts.” I responded to the list that it was the most depressing statement I had ever read from any of the list’s participants.

Paul Butler’s op-ed in the New York Times isn’t much better. The Georgetown Law Center professor defended Ginsberg’s indefensible comments by arguing that these times are special, and thus suspend the ethics principles that must govern judges if the judiciary is to engender any respect or trust at all. He writes:

“Normally Supreme Court justices should refrain from commenting on partisan politics. But these are not normal times. The question is whether a Supreme Court justice – in this case, the second woman on the court, a civil rights icon and pioneering feminist — has an obligation to remain silent when the country is at risk of being ruled by a man who has repeatedly demonstrated that he is a sexist and racist demagogue. The answer must be no.”

No, Professor, the answer must be “yes.” Continue reading →

Ethics Dunce: Supreme Court Justice Ruth Bader Ginsburg

/ Jack Marshall / 22 Comments
Justice Ginsberg, not giving a damn.

Justice Ginsberg, no longer giving a damn.

Add one more bit of evidence to the pro- side of the debate over whether there should be a limit to Supreme Court tenure. Justice Ruth Bader Ginsburg, 83 and a cancer survivor, has now apparently entered the “What the hell: I’m going to say what I feel like saying” period of her life. How nice for her. The problem is that there are some things an ethical Justice should not and cannot say.

In an Associated Press interview published last week, Ginsberg opined that a Trump Presidency was too awful to contemplate, saying that she presumed Hillary Clinton will be the next president, and that she didn’t ” want to think about that possibility” of Trump being elected instead. Talking to The New York Times, she said, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”  Then, in a CNN interview, she got specific:

 “He is a faker…He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
Law professor Daniel W. Drezner, who teaches at the Fletcher School of Law and Diplomacy at Tufts University,  minces no words over at the Washington Post, nor should he. Like me, he agrees with Madam Justice on the substance of her remarks about, yechh, Donald Trump. Nonetheless, he writes, Continue reading →

Unethical Website Of The Month: “Above The Law”

/ Jack Marshall / 21 Comments

above-the-law

Stay classy, Above The Law!

Above The Law, which styles itself a legal profession gossip site and half-baked professional ethics watchdog, has been a useful resource for me on occasion, though the commentary of its writers, particularly lead writer Elie Mystal, has often left a lot to be desired ethically and logically. My last four posts regarding Above the Law, going back a year, have been Ethics Dunce entries, and there easily could have been more.

I used to get Above the Law’s stories sent to my in box, as I had subscribed several years ago. Then I noticed that I wasn’t getting them any more, so I subscribed again. I got notices for a few days, then they stopped. Again I subscribed. Again, my subscription vanished.

I just re-subscribed today, and expect that I will again be cut off.

Ethics Alarms has, it seemed, been “unfriended” by Above The Law, because I have had the impertinence to point out the increasingly lunk-headed ethics confusion and partisan bias of the site. Wow, that’s petty!  That’s also cowardly: the site seems to think that if I don’t know about their frequently misguided posts, I wouldn’t be able to criticize them. In fact, they are mostly right. I have now more than once gone many weeks without noticing the lack of the site’s notices in my e-mail. Life without “Above the Law’ is still rich and full of joy.

I did check today, however, which is when I discovered my latest subscription was gone with the wind. While I was responding positively to the site’s invitation to me to subscribe (for the 4th time), I checked the most recent posts, and saw this, from Elie, naturally…

Praising a recent post by a professor who was criticized for openly supporting Black Lives Matter—a group that declares on its website that the deaths of “Alton Sterling and Philando Castile at the hands of police” were “murders” before any investigation or assessment of the events leading up to the shootings has been completed—Mystal’s post, titled “To Be Honest, I’m In No Mood To Explain #BlackLivesMatter To White People Today” reads in part… Continue reading →