Previous month:
January 2005
Next month:
March 2005

Crime and Federalism Defeat

Frank Bird drove his van through the front door of an abortion clinic.  Does Congress have power under the Commerce Clause to make this a federal crime? 

Under 18 U.S.C. 248, anyone who "intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services" is guilty of a felony.

Per Judge Garza, today a 2-1 panel of the Fifth Circuit Court of Appeals upheld that law in spite of United States v. MorrisonUnited States v. Bird, No. 03-20884 (5th Cir., Feb. 28, 2005).  Judge DeMoss dissented.  I predict the Fifth Circuit will rehear the case en banc, and we'll have a re-match between the McFarland factions.

Hap tip: AL&P.

Choose Wisely

Unlike the good prof at CrimProf Blog, United States v. Yoon (CA6) (applying the consent once removed doctrine to confidential informants) does not trouble me.  In Yoon the panel wrote:

In Pollard, we held that when one invites an undercover agent and an informant into his residence, the agent or informant can summon back-up officers for assistance, and that these back-up officers are acting within their constitutional limits when they enter since no further invasion of privacy is involved once the undercover officer and informant make the initial consensual entry. Today, we extend that concept to cases in which a confidential informant enters a residence alone, observes contraband in plain view, and immediately summons government agents to effectuate the arrest.

The courts tell us to choose our friends wisely.  Cf. Maryland v. Pringle (If you ride in a car with dope dealers, you might get arrested).  Since the Constitution does not apply to private actors, we can exclude people - rationally or not - from our homes.  When we invite people into our homes, with drugs in plain view, aren't we surrending our right to privacy? 

Imagine a person saying that his right to privacy was violated when a guest saw sex toys sitting on the coffee table.  Could the person really expect the guest not to see the toys?  If you come over to my place (which is unlikely since I am extremely private and hermit-like), you'll see a small humidor and the latest issue of Cigar Aficionado.  I can't take offense when a guest learns that I smoke cigars.

It would be a different case if the informant had went into Yoon's bedroom, snooped in his cupboards, or otherwise exceeded the behavior we expect of guests.  If I invite you into my living room, you can't look around my bedroom.  But in Yoon, the informant saw the marijuana on the coffee table.

Why should Yoon bother me?  What am I missing?

Don't Be Modest Mike

Wow! When I was in law school I was content merely to pass exams. I did not help craft winning briefs in the Eighth Circuit. I did not help craft winning criminal briefs for lawyers across the continent. I did not offer opinions and commentary to lawyers coast to coast.

Mike does all that.

The guy is a machine. And he deserves some praise for the assistance he offered Maren Choloupka in the Dossett case.  The case does not create new law, but it does reverse a trial court's erroneous instruction on the law. The trial judge had little comprehension of the elasticity of the state-action requirement in a federal civil rights action. Most significant language in the case? No reason a private party can't be sued under 42 U.S.C. Section 1983 when they conspire with a state actor.

Mike also helped obtain a dismissal of criminal charges in Connecticut not long ago for a guy charged with possession of child pornography.

Not bad for a guy not yet past the bar.

No, Maren, you're not chopped liver. But today is Mike's turn for a little stroking.

Dark Justice -- Chapter One

Well, everyone wants to try fiction at some point in their life. Here is Chapter One of my first effort, first published in serial form in The Connecticut Law Tribune a couple years ago. I have had two requests to reprint it here. Neither request was from my mother. I will post a chapter every so often. Warning: The whole shebang is about 100,000 words in length.

Dark Justice


Dead bodies weigh a lot, they smell and they are hard to hide. But there are a few good places to stash them. The Appalachian Trail is one.

How many corpses are scattered along the trail? Snaking its way up the East Coast from Springer Mountain in Georgia to Mount Katahdin in Maine’s Baxter State Park, the trail has certain attractions for those seeking an informal and unheralded disposal.

First, it is remote enough so that a hiker or two can haul a dismembered corpse in a couple of backpacks for three or four miles without attracting much attention. Second, it is not so remote that there won’t be dozens, if not scores, of persons passing through most points every week or so. Plenty of suspects if a decomposed body is found. And almost everyone looks more or less the same: fatigued, grungy and possessed of the faraway stare of the long-distance hiker or professional killer.

Peter Petrine tried to remember the trail’s attraction as he dragged one foot after the other in the midmorning mist. In his pack, a torso and a head, each wrapped separately, of course, in plastic and doused in disinfectant. Both parts had been crisped up some in a furnace. At the bottom of the pack some lime to spread over the body. He’d seen bodies covered in it on the television in some war-torn corner of the globe. He couldn’t tell you why lime, but if it was good enough for CNN it was good enough for him.

Walking 20 or so paces ahead of him was some kid he’d spotted outside a convenience store in Bennington. Petrine, or Petey P to his friends, had offered the kid $50 to pack in with him. Petrine told him he was muling supplies in to a church youth group. The kid actually praised Jesus – twice – and offered to carry the pack for free. Talk about luck. It turns out he was some sort of Pentecostal. Mentioned that he spoke in tongues, and, by the way, had Petey P been anointed by the spirit? Petey P nicknamed the kid Jesus I, as in Earth to Jesus I, come in please.

Jesus I carried arms and legs, which were, like the torso and head, wrapped in plastic and charred. It had been an ordeal getting the legs into the pack. Hacking away at the back of each knee was hard work. A chainsaw would have been helpful. It is not easy to break a leg in two. Once the tendons dry, they are like iron bands. The hands were easier to detach; a blunt swing of an axe and off they popped. Odd how the right hand hadn’t burned that much.

"Twenty-one hundred miles of trail, and I picked the one spot straight uphill," Petey P muttered.

"I beg your pardon, Mr. Cardone," Jesus I said. Petey P tried to avoid ever giving his real name. Why? A lifetime of cautious habits born of the need forever to cover his tracks.

"Nothing. Man, this trail is a killer." Petey P was working hard to keep the F-word from seasoning each sentence. The perfect utility word, capable of service as noun, verb, adjective and adverb, it was also the perfect interjection. Of course, Petey P could not parse a sentence. But he knew how to blow off fucking steam. No point in offending Jesus I, though. Avoiding the word made him feel like some mope on a late-night FM radio talk show.

Petey P was leaning against a refrigerator-size boulder, pulse pounding and sweat pouring. He imagined his heart popping right out of his chest and dancing a spasmodic jig right there on the trail. It could happen, he could just feel it pounding to get free.

The first half-mile of path heading South off Route 9 in Vermont is a rock-tossed scramble belched out by some creature with neither thighs nor the need for oxygen.

"Don’t worry. It flattens soon." Jesus I waited politely. He hadn’t even broken a sweat and his breath was as even as a sleeping baby’s. Petey P already despised the unctuous little creep.

The weather report had promised intermittent sunshine; the day itself delivered a steady drizzle. Although it was August, it was damp and chilly. A verdant canopy served as an umbrella of sorts, until a stiff breeze unloosed each leaf’s burden, and it poured cold, drenching rain. Petey P was wet, miserable, and tired.

Two hours later the trail leveled some, as Jesus I had promised, although it was far from easy walking. Roots cris-crossed the path, and sharp foot-sized rocks were everywhere. Petey P’s ankles hurt, and the big toe on his left foot was about to explode.

Petey P and Jesus I had seen only one other hiker. A gaunt-looking thing about five and half feet tall glided past them, eyes sunken. It took a moment for Petey P to discern the thing’s gender. She grunted hello, and kept gliding down the trail. Jesus I figured she was hiking the whole trail, a through hiker. Why not just kill yourself? Petey P wondered. A bullet is quicker.

Jesus I passed Petey P a water bottle, and then headed into the woods.

"I gotta take a leak," he said.

"Wait up," said Petey P. "Hey, what’s that behind the rock?" Petey P pointed with a shaky left hand. "I could swear something moved."

Petey P walked into the woods, with Jesus I a step or two behind them. Each walked quietly.

Twenty yards off the trail a Volkswagen-shaped boulder sat beneath a fallen beech tree. Petey P stepped behind the rock.

"Hey, come here and look at this," he said.

Jesus I padded over.

"Look, would you look at that?" Petey P pointed down, and then he leaned to touch a wet leaf. "I’ve never seen anything like this."

Jesus I was puzzled. He didn’t see anything.

"Look," Petey P said, as he stood. "Feel it."

Jesus I knelt and touched the leaf. As he was about to turn his head something smelled funny and pounded into the back of his head. Two quick bronco kicks. He fell forward, suddenly seeing, smelling or hearing nothing.

Petey P’s pistol smoked. A silencer transformed the retort into a modest "poof, poof." He rolled Jesus I over to check his pulse. Finger over the carotid artery. Nothing. Double checking on the other side of the neck. Still nothing. Good. Good and dead.

He walked back to the trail and listened for the sound of other hikers. He heard nothing but the patter of rain on the forest canopy. The scent of gunpowder hung in the air, and he waved his arms in some crazy expectation that he could drive away death’s perfume.

One last check to make sure Jesus I wasn’t planning to rise from the dead. Jesus I lay in the cruciform pose in which Petey P had left him. For no good reason at all, Petey P then shot him once in each palm. He chuckled. A neat 22 caliber bore piercing each bloodless palm.

It took him a good hour to gather together enough rocks to build a crude cairn over Jesus I’s body. He built a separate one for the body parts. His chest ached, and sweat stung his eyes. His hands hurt and quickly became chapped as he heaved ragged rocks. Soon he was huffing and puffing and thinking of nothing so much as a hot bath. His mind wandered to the night that he killed the dismembered kid. Something close to a smile traced his lips as he wiped sweat from his face with the handkerchief he carried in his hip pocket.

He spread the 10 pounds of lime he had in the bottom of his pack over the bodies before constructing each mound. No one passed by as he did so. He then checked to make sure each pack was empty, and stuffed one into the other to walk out. He figured he’d burn the packs later in Max’s kiln.

As he walked back down the trail, he suddenly realized that only one thing had gone wrong. When he gathered the charred remains of the body, the right hand was missing, the one that had not burned up much in the furnace. He thought of walking back to double check on whether it was there, but darkness was falling. The trail frightened him, and he was cold, wet and hungry.

"Aw, fuck it," he said, happy now to speak freely. "Maybe I’m just tired and it was there all along."

Petey P was tiring fast, and feeling like a pro. Jesus I was an easy kill. Another notch. He was getting good at killing. "Piece of fucking cake," he said. Soon he focused merely on setting one foot ahead of the other, and finding a cheap motel.

Wanted: Book Scouts

My wife and I will close this week on a used and rare book store located just outside New Haven, Connecticut, in a small town called Bethany. The name of the shop is Whitlock Farm Book Barns, and it sits in a picture perfect meadow. It's the sort of place where horses outnumber people, even though we are only 80 miles from New York City.

Yalies will perhaps know the place. The Whitlock family has been a fixture in New Haven for almost a century. The Book Barns have been open since 1948.

Of course, my wife and I know little about the buying and selling of books. We are readers, but we are learning to buy and sell with the assistance of a great staff with decades of experience.  For a fun fictional account of some the joys of book selling, you can't beat John Dunning's Cliff Janeway Series. Booked to Die is the first in the series.

We are looking for book scouts. What's a scout? Someone who can't resist a used book store, an estate sale, browsing a flea market, or stopping wherever the written word is on display to find a treasure. Put less prosaically, someone who intuitively understands the following: Books set you free.

So, in your travels keep an eye peeled for Americana, legal materials, rare briefs, literature of protest, books once banned by some stuck-up constipated spirit, photographs of great litigators, posters, pamphlets all breathing fire, brimstone and the spirt of liberty, and ephemera related to the law and the courts. I am particularly interested in Clarence Darrow. I suspect these things will become our niche in the independent book sellers' world. Shoot me a note at [email protected] about what you have found, and I just might buy it.

Better yet, drop me a line at:

Whitlock Farm Book Barns, 20 Sperry Road, Bethany, CT 06524.  Phone: 203.393.1240.

And remember, any judge who shops at Whitlock's gets a free paperback copy of the Wizard of Oz if he or she presents identification sufficient to permit us to determine they are a member of Oz's cast.

Help keep the spirit of independence alive in New England.

Poor Betty Lou

If a private employer fires an at-will employee at the behest of a government official, is the employer liable under 1983?  Pending before the Eighth Circuit Court of Appeals is a fascinating case raisings that question.  Betty Lou Dossett vs. First State Bank (No. 03-2624).

Betty Dossett worked for a bank in Nebraska.  After she spoke out at a school board meeting, the president of the school board complained to her boss.  He told Dossett's boss that if she wasn't fired, then he would pull the school's account from the bank.  The bank manager complied and fired Dossett.

Since Dossett was an at-will employee, she did not have a traditional lawsuit against the bank.  But plaintiffs' attorney Maren Lynn Chaloupka creatively thought to sue the bank under section 1983.  Although a 1983 action requires acts done under color of state law, a private party who conspires with a state actor to deprive someone of her rights is, for purposes of 1983, a state actor. 

Since the bank agreed with a state actor to fire a Dossett for protected speech, the bank became a state actor.  A jury agreed and awarded Dossett $1.56 million.  [The cases gets really interesting here, but prudence cautions me to stick to the legal issues.  All I'll say is that the trial transcript indicates that the trial judge, on his own motion, kills the verdict and orders a re-trial.  He does not offer the plaintiff a remittur.  Then he re-writes the jury instruction, even though he relied upon the Eighth Circuit's Model Jury Instructions during the first trial.]

Anyhow, the case has been perfected.  Dossett's appellate brief is here, her reply brief is here, and bank's brief is here.

The policy issue raised in Dossett is also fascinating.  Should a private employer face liablity for doing nothing other than please his (government) customer?  There's a strong policy that employers can fire employees for any reason, or no reason.  And one of the beauties of the Constitution is that is does not encumber private decisions with constitutional procedures.  It's a good thing that you are not required to give notice and an opportunity to be heard to someone you decide to summarily delete you from your friends list.

On the other hand, few of us would have a problem with holding liable under 1983 a private actor who helps a police officer brutalize a citizen.  Why then should we tolerate a bank's helping a school board official violate the First Amendment rights of a citizen?

Full disclosure: I offered research and writing support for the appellant's brief, although Ms. Chaloupka did the lion's share of the work.  (I only helped with the joint action theory of the brief).

UPDATE: Victory!