In a previous post on H.L.A. Hart’s Concept of Law, I had taken issue with the idea, expressed by Hart, that the criminal code consists of “commands” or “imperatives.” I don’t think it does, and regard both Hart’s discussion and much discussion based on it, as fundamentally confused as a result. This was the topic of a Zoom conversation we had last Sunday, and then an email missive I sent out and promised to post. I was originally going to make it a comment on my last post, but it’s too long, so I’ve made it a post of its own. I’ve cleaned it up slightly, but not (I think) in ways that anticipate the criticisms that were made of it in the email discussion. Continue reading
Tag Archives: criminal procedure
Thoughts on a Traffic Stop (1): Backstory
I got stopped the other day in Raritan, New Jersey by the local police department, my first traffic stop in awhile. I regard every interaction with the police as a learning experience, and this one was no exception, so I thought I’d write up what happened, and what I learned from it.
Until recently, I owned two cars, call them Silver and Blue, both insured by Geico, an insurance company for your car and other associated headaches. I generally tended to drive Silver rather than Blue. In July, Blue was driven to Canada by another driver and, in August, was totaled by that driver in an accident in Toronto; it was then towed from the accident scene and taken to a Geico-affiliated inspection site near Toronto, where it sits to this day, awaiting judgment from Geico as to an insurance payout. Recall that the Canadian border is closed due to the pandemic,* so I couldn’t have retrieved the car even if it was drivable, and even if I could have afforded the time and expense of the trip. At any rate, the car isn’t drivable, and I can’t afford the trip. So there we go–three strikes against driving up there, putting the car in my backpack, and bringing it home. Continue reading
Bloomberg on “Stop and Frisk”: (Part 2 of 2)
I wrote this post back when Michael Bloomberg was still a presidential candidate. He dropped out of the presidential race on March 4. Soon after that, the pandemic struck. Consumed in the latter issue, I forgot that I’d written the second half of my “Bloomberg on Stop and Frisk” series. In some ways it’s dated, but in other ways not, so for whatever it’s worth, I’ve decided to run it now, six months after the fact. Sue me.
In my last post on this topic, I distinguished between two different senses of “stop and frisk,” ordinary and Bloombergian, and argued that the distinction between them matters to our assessment of Michael Bloomberg as presidential candidate. On the one hand, it makes no sense to attack Bloomberg for his support of ordinary stop and frisk. To attack ordinary stop-and-frisk is to attack police work as such. On the other hand, it makes perfect sense to attack him for the specific version of it that prevailed when he was mayor of New York City. To attack Bloombergian stop and frisk is to attack a perversion of the real thing. Continue reading
Giants and Dwarfs
Two years ago, my cousins Sa’ad and Salman (Khawaja Saad Rafiq and Khawaja Salman Rafiq) were arrested in Pakistan on charges of “corruption” by that country’s absurdly named NAB, or National Accountability Bureau. For two years (and not for the first time), they endured incarceration and vilification at the government’s hands. The first time this happened (to both of them), was during the military dictatorship of General Zia-ul-Haq; the second time (for Sa’ad, but not Salman), was the military dictatorship of General Pervez Musharaff. This time, for both, was under Pakistan’s Trump-like civilian Prime Minister, Imran Khan.* Plus ca change, plus c’est la meme chose.
Coronavirus Diary (28): The Fifth Amendment Under Quarantine
The Attorney General (of New Jersey) needs to explain whether the Fourth and Fifth Amendments have literally been suspended in Essex County, where enforcement actions have been stepped up considerably (especially in Newark, Irvington, Orange, and East Orange).
In order to be stopped by the police, there must be reasonable suspicion of the commission of an infraction within the jurisdiction of the officer doing the stop. The mere presence of a person in public cannot constitute reasonable suspicion of any infraction, including Executive Order 107.* So we need to know: do Fourth Amendment strictures still apply, or have they been discarded for the duration of the order? Continue reading
Bloomberg on “Stop and Frisk” (Part 1 of 2)
I can’t stand Michael Bloomberg. I don’t intend to vote for him, and regard his entry into the presidential race as a net loss for liberty and justice. That said, I also think that some of what’s been said in criticism of him is confused, and in some cases downright childish. Unfortunately, this is particularly true of the policy that most obviously redounds to Bloomberg’s discredit: stop and frisk. If we’re going to nail Bloomberg on stop and frisk, we need to get the issue right, or at least avoid getting it wrong. But “we” haven’t. Continue reading
The Unwarranted Demonization of Scot Peterson (6): Vengeance Is Theirs
Friday was the second anniversary of the tragic Parkland shooting. The shooting was remembered in an appropriate-enough way in the media, except for one (to me) conspicuous thing: the continued, thoughtless, fact-free demonization of Scot Peterson, the School Resource Officer universally blamed for not entering the building where the shooting took place. Almost without exception, journalism about Parkland continues to take for granted the unexamined dogmas that Peterson “failed” to enter Building 12 and “failed” to confront the shooter, that he knew where the shooter was but deliberately hid from danger, and that his malfeasance goes beyond cowardice to legally actionable neglect, and beyond civil wrong to outright criminality. Continue reading
Caught with Your Pants Down: The Strange Case of Mayor John Roth of Mahwah
I’m about to recount an almost entirely inconsequential political incident, the strange case of John F. Roth, mayor of Mahwah, a small, affluent town in northeastern New Jersey. But while the incident is almost entirely inconsequential, I’d say that precisely one feature has broad significance. Let’s see if you and I agree on what it is.
About a month ago, John F. Roth, the mayor of Mahwah, went to a party at the home of a Mahwah Township employee. You’re not going to believe this, but alcohol was served at this party. Yes, alcohol. And–hold on to your hats here–but Roth actually consumed some of this alcohol. I wouldn’t lie about something like this. Having done so, he managed to get drunk. He must have realized that he was drunk, because instead of driving home–like a normal person–he decided to walk into a bedroom or guestroom of the house, take off his pants, and fall asleep on a bed. He was later discovered pants-less in that very bed. A call was placed to his wife, who arrived to retrieve him. Retrieved, I gather that he went home to sleep it off, very possibly pants-less, in his own bed. Continue reading
MLK: “Believe Women,” Rape, and the Worst-Case Scenario
Yesterday, I wrote a post arguing that the supposedly woke slogan “Believe Women” has some odd implications for the recent Sanders-Warren controversy. It implies that we should believe Elizabeth Warren’s accusation that Sanders is a sexist, or at least presume his guilt until he can conclusively prove his innocence. Because I take this consequence to be a reductio, I take “Believe Women” to be an absurdity. Put charitably, the original, unqualified version of the slogan has to be modified. Put uncharitably, it has to be rejected. To split the difference, it requires a bit of both. Continue reading
“Believe Women Except When…”
So whatever happened to the “Believe Women” mantra, brought to us care of #MeToo? Yesterday’s unqualified axiom seems to have been washed away by today’s intra-progressive controversy. The reasoning here seems to be: Elizabeth Warren accused Bernie Sanders of sexism. But Bernie is more progressive than Liz. So the accusation can’t possibly be true, because if it were true, its truth would ruin the most progressive mainstream candidate’s shot at the presidency. Hence the accusation must be false, and Elizabeth Warren is a bit of a bitch for making it. From which it follows that the “Believe Women” axiom must also be false, though we’re not to say so out loud.
Gee, that was easy. Who knew that moralized axioms could so lightly be adopted, and so lightly be cast aside? Continue reading
Policy of Truth 