"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Friday, December 30, 2016

Public schools should not "teach for the test", but law schools should? The glorified brain-dump of the bar exam is further glorified by scared law professors

Let's review the logical chain of events:

  1. Attorneys in the United States and in every state of the United States are licensed to protect consumers of legal services from bad providers of legal services;
  2. Attorney regulation is, thus, help by the government to the consumers in pre-checking providers of legal services for their knowledge, skills and integrity;
  3. An attorney's license is proof of their minimally acceptable knowledge, skills and integrity necessary to provide legal services for the public;
  4. A license can only be given if the attorney passed the bar exam;
  5. An attorney will only be allowed to sit for a bar exam if he graduated from an ABA-accredited law school;
  6. since there is an overproduction of attorneys in the United States for paying jobs, and not enough paying clients, less capable law students want to pay for law school;
  7. since less capable students want to pay for law schools, law schools lower their standards and accept anybody who can line up the money to pay for law school - without any care what kind of providers of legal services law schools will be producing;
  8. as a result, since standards for admission were lowered by law schools, bar passage plummeted;
  9. since bar passage plummeted - ABA started to pluck accreditation, and the government started to stop giving loans for tuition of law schools for which ABA plucked accreditation;
  10. as a result of ABA's threat to pluck accreditation, and of the government to withdraw the lifeline of student loans upon which law schools, and law professors, exist, two law professors, both interested in preserving their livelihood, published an article where they claim that the main goal of law schools is now - gasp! - prepare law students for passing the bar exam.

Not to have knowledge and skills allowing them to properly represent clients - remember the main reason why attorneys are regulated, to provide assurance to the public of minimal qualifications of attorneys?

So, no, law schools do not have to produce attorneys who meet those minimal assurances - they only need to produce attorneys who can pass the bar, a pass-fail one-time brain-dump.

And, this article was published at the time when teachers across the United States are starting to rebel against "Teaching for the Test", claiming that such teaching gives students no real, well-grounded education, does not encourage or develop creative and critical thinking necessary to be a citizen in a democracy, and actually stifles critical thinking.

The bar exam does the same.

Yes, there is a lee-way in answering essays in a free-form, but you have to hit the existing grading points anyway.  You are not graded so much on performance, skills, attentiveness of research.  Law research is slow and time-consuming.

In a bar exam, you have to brain-dump a certain amount of points you were stuffed with during your bar-prep course to score a "pass", and forget about whatever you were stuffed with for the rest of your professional life.

Once you have a license, only criticism of the government or committing a bad crime can cause you to lose it, and even that crime will not be either charged or prosecuted vigorously if you have connections and/or work for the government.

So, law professors whose livelihood depend on law schools that overproduce attorneys that causes unemployment of attorneys that causes less people want to go to law school that causes law schools to grab anybody who can pay, including with loans, which causes low-quality candidates to apply and sit for the bar which causes law school graduates to flunk the bar which causes ABA to pull accreditation from law schools and the government to pull loans for tuition from law schools which causes unemployment among law professors - two law professors who are cause and effect of what is wrong in law education now offer how to fix it, for good.

And, their brain-fruit is: teach for the test!

It is as "refreshingly novel", as it is a mockery of why attorneys are even regulated - because, as a consumer of legal services, I would be disgusted to accept a survivor of a brain-dump as proof of knowledge and integrity, to the point justifying the government to jam that brain-dump survivor down my throat and prohibiting me, under the threat of criminal prosecution for aiding and abetting unauthorized practice of law, to choose a court representative who I trust, license or no license.

It is not teaching for the test that can relieve problems in the market of legal services and the "justice gap".

It is deregulation, removing from the government authority to force consumers to choose providers from a limited government-approved coral, removing from the ABA, a corporation with foreign capital, from deciding the issue of who is and who is not entitled to receive legal education, and less consumers of legal services, every single one of whom is presumed, as a matter of law, to know the law, the competent adults or guardians of incompetents, to decide what is good for them.

But deregulation can leave law professors, and attorneys whose only value for consumers is a pulse and a law license, without their bread-and-caviar.

So, back to test-training, law schools, train to the point of automatic answers without thinking, that's your main job now of those who will later serve as elite in all branches and all levels of our government.

The brain-dump survivors.

They are good for democracy.

A reversal in New York for failure to allow pro se representation

A felony conviction was reversed in New York by the 3rd Department because the defendant was denied the right to represent himself.

The 3rd Department made an interesting point in the case - that the extent of legal knowledge to represent himself for the defendant is irrelevant, what is relevant is only the defendant's capacity to waive his right to counsel.

Now the defendant, an inmate, will be retried, representing himself, likely with the same result - because now he will not only be competing against a legally trained professional prosecutor, but also will be building his defense in jail, with only paper - and often inadequate - law library to help him.

At least, the appellate court had the decency of supporting the defendant's claim that the court improperly denied him the negative inference charge to the jury about the missing evidence - the clothes that were washed and not submitted for discovery, eliminating the only physical evidence of defendant's crime, and making the People's case rely upon words of testimony only.

Let's see how the defendant will fair on retrial.

I will continue to monitor this case.

Stay tuned.

How Ontatio County (NY) DA Michael Tantillo, with the help of Judge Craig Doran, robbed a person of his reputation and of 2 years of his life so far - by trying to hoist upon him DA's son-in-law as a juror

In a rare voice of wisdom, on December 23, 2016, New York Appellate Division 4th Department reversed a 2014 conviction for sexual abuse in the 1st degree because:

  • the trial court did not disqualify, for cause, a juror who was the son-in-law and father of the grandchild of the prosecutor; and because
  • the court precluded testimony of a witness to whom the alleged victim made a statement that the defendant did not commit the crime - the Brady evidence.

The conviction was for sexual abuse in the 1st degree, a D felony, for which the defendant was sentenced for 6 years in prison, at the age of 34, and has already served 2 years out of 6 and, which makes the least sense, the defendant now continues to remain in prison despite the reversal on the law,

even though the reversal, and especially the reversal on these grounds, returns the defendant to the situation where he is presumed innocent and charged with a crime where there is a witness claiming that the alleged victim told the witness that the defendant did not commit the crime he is charged with.

Moreover, as of today, New York State Department of Correction continues to list, as legal, the sentence against Todd Collins, which now amounts to a tort of defamation - because the sentence was vacated along with the conviction, and I hope that Todd Collins sues the hell out of the State of New York for, first, continuing to hold him in the state prison despite the reversal, and, second, continuing to claim that he is there on a 6-year-sentence for a D felony sexual abuse in the 1st degree, to be released only in 2020, even though his conviction was reversed a week ago, and his sentence is null and void.

Moreover, Todd Collins was convicted and sentenced under PL 130.65(3) - sexual contact with a minor under 11 years old - so the defamation is of an extreme order, that Todd Collins is a pedophile, which, because of the reversal, is simply not true.

Here are the "heroes" of the case:

1) the Ontario County (NY) District Attorney R. Michael Tantillo who objected against a challenge for cause of his own son-in-law and father of his own grandson on the jury for sexual abuse of a child:

Note how vindictive the incarceration of Todd Collins was - he was even transported to the state prison system on 12/18/2014, a week before Christmas, which is a clearly punitive measure.

Here is the presiding Judge Craig J. Doran

a magna cum laude graduate of SUNY Albany, and a cum laude graduate of the Albany Law School where he was the editor of the Law Review, a political animal who has been first elected into the New York State Legislature in 1994 at the age of 29, and has been very active in many committees, Task Forces and activities - other than, apparently, the activity of brushing up on the law of disqualification.

Judge Doran has, according to his official biography, 3 children, and DA Tantillo has at least one grandson - whose father he wanted to hoist upon the defendant as a juror in a trial for sex abuse of a child.

I wonder whether these public official's parental (and grandparental) feelings got the better of them over considerations of knowledge, fair application of the law, and at least appearing for the public as being impartial.

The first of the two important issues that the 4th Department's reversal is based upon in this case is:

  • that the defendant was forced by the court to take a relative of the DA, disqualified under CPL 270.20(1)(c).

CPL 270.20(1)(c) provides:

"A challenge for cause is an objection to a prospective juror and may be made only on the ground that: (c) He is related within the sixth degree by consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant;  or that he is or was a party adverse to any such person in a civil action;  or that he has complained against or been accused by any such person in a criminal action;  or that he bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict".

Consanguinity is a relationship by blood, affinity is a relationship by marriage. 

CPL 270.20(1)(c ) is, of course, unconstitutional as it is construed now by courts, as it discriminates against criminal defendants by not allowing them challenges for cause against jurors who are not in an official registered marriage, which is a very large percentage of New York families - but that challenge is not relevant there, because the reversal talks about a "son-in-law" of DA Tantillo, even though I would like the public to know of this problem with the statute.

CPL 270.20(1)(c ) does not have to be changed to be made constitutional though, the only things that needs to be done is to start interpreting "affinity" in a way adequately reflecting family dynamics in New York.

Any attorney working in custody or domestic violence cases in Family Court in New York knows that the majority of cases come from unmarried couples, and that, in my view, reflects not the fact that somehow unmarried couples split and divide children more, or engage in domestic violence more than married couples, but that the family dynamic in New York has changed, and the concept of "affinity", in interpretation of courts, now needs to reflect that.

The problem with jury selection now is that jury questionnaires may ask about "affinity" in the narrowest sense - based on marriage of jurors to individuals listed in CPL 270.20(1)(c ) - but not on a partnership, with or without children, but without a registered marriage - and this may obscure and conceal biases and prevent fair voir dire and jury selection.

Here is the chart of consanguinity degrees:

A child to a parent has the 1st degree of consanguinity.

That child's spouse has to be at least the 1st degree of affinity.

So, DA Tantillo's son-in-law had the 1st degree of affinity to DA Tantillo and was absolutely disqualified under CPL 270.20(1)(c ).

Yet, DA Tantillo opposed removal of his son-in-law from the jury for cause, knowing that his argument is against clear statutory law.

And, Judge Doran sided with DA Tantillo, knowing that both the judge's and the DA Tantillo's positions are against clear statutory law, leaving DA Tantillo's relative on the jury, and forcing the defendant to use one of his limited peremptory challenges to remove DA Tantillo's close relative (which defendant ran out of before the full jury was selected and impanelled).

The difference between challenges "for cause" and peremptory challenges in criminal jury selection in New York is that challenges for cause are unlimited, and peremptory (no cause) challenges are limited.

So, for a very large jury pool - jury pools have to be large in cases of alleged crimes involving children, as many people are prejudiced against the topic and will convict simply because a person is charged for such a thing - and with jury selection that may have many, many panels of jurors to weed through, Judge Doran and DA Tantillo robbed the defendant of 10% of chances (see CPL 270.25[2][c] allowing only 10 peremptory challenges in any felony cases below C felony, and Todd Collins was charged with a D felony) to strike down jurors without explaining to the obviously biased judge why he is doing it.

It is good that the 4th Department upheld the law and reversed the conviction.

It is bad that the 4th Department did not make a statement about prosecutorial and judicial bias and misconduct (the prosecutor, as a judge, is required to be unbiased in the case), to the point of trying to force the defendant into a Hobson's choice of either accepting the prosecutor's close relative on the jury (which was clearly against statutory law) or take him down by the use of 10% of the precious peremptory challenges - and running out of chances to disqualify one potential hold-out juror, which made a difference between a potential mistrial and a conviction.

Judge Doran's ruling in favor of illegal opposition of DA Tantillo was clearly biased in favor of prosecution - which was not an issue decided by the 4th Department, an appellate court that notoriously does not see issues of bias even if they are screaming in their faces.

The problem with not dealing with the issue of bias is that the 4th Department reversed and remanded the case to the same judge Doran and the same DA Tantillo who will now devise new tricks of how to screw the defendant in another way, in order to gain "tough of crime" and "child protector" badges, while illegally using a man as a stepping stone in their political careers.

It is interesting to mention that the court reversed and granted a new trial "on the first count of the indictment", thus implying that there were other counts upon which the defendant may have been still convicted.

But, Todd Collins' inmate information from the New York State Department of Corrections indicates that the conviction and sentencing for which he is incarcerated had only one count, so his entire conviction is reversed, and his sentencing, necessarily is made void - requiring his removal from state prison where he is serving that sentence, that became void as of December 23, 2016.

The second issue upon which the 4th Department reversed the conviction is that Judge Doran blocked testimony of a witness who wanted to testify that the alleged victim (the child under 11 years old) told the witness that the Todd Collins did not engage in sexual contact with the child.

As you understand, this D felony, with an extreme punishment of up to 7 years in prison (Collins got 6 out of 7), and a lifetime of being stripped of every plausible human right on release, as a registered sex offender and child molester, is provable by testimony only (he said - she said) in cases where "sexual contact" is simply touching - as in "he touched my child's breasts" - "but your child is 3 years old and he was picking her up by the armpits" (a real case, by the way), and blocking the testimony of a witness who claimed that the alleged victim told him that the defendant never committed the crime is of extreme importance and value in such criminal proceedings.

By the way, DA Tantillo had the audacity to oppose Todd Collins' the appeal where he had a clear personal interest.

And, Todd Collins now has to deal with the same biased DA and the same biased judge on re-trial.

I do not make claims whether Todd Collins "did it", or "did not do it".

I simply do not know.

But, his trial did not follow statutory law, he was robbed, by a biased and personally interested DA and by a biased judge of 2 years of his life already that he spent in state prison as a sex offender, with all indignities and dangers that sex offenders are exposed to in prisons, while now he is, first, not being released from prison despite he is presumed innocent, the State of New York stubbornly claims he is to remain incarcerated until 2020, even though his conviction has been voided a week ago, and - he is PRESUMED INNOCENT by law now.

Presumed innocent.

I wonder whether such a thing as the law remains important nowadays.

And I do not wonder whether Judge Doran or DA Tantillo will be held accountable for their egregious misconduct in this case.

They won't be.

They already weren't.

Most likely people will react to this case by stating that a pervert and a pedophile got off on a technicality - failing to see that it is not only about Todd Collins, but about all of people coming in touch with New York criminal justice and court system in general.

If judges and prosecutors, government officials, are allowed to violate the law and rob people of years of their lives without any accountability, they will keep doing it, again, and again, and again, and will continue to climb the career ladder.

Using you as stepping stones.

Unless you the people demand accountability.

Will you?

The law that prohibits criminal charges against child prostitutes in California is not the same as legalization of child prostitution

I see a lot of outrage in the media and social media about "legalization of child prostitution" in California starting January 1, 2017, calling California legislators - and Governor - names and lamenting the fall in morality that would allow such an abominable thing. 

Finally, I have found a voice of reason in this article, correctly reflecting what kind of law is going into effect on January 1, 2017 and what it actually meansThe article's main point is this:

Victims, not criminals.

The new California law does not make sex with children legal

It only prohibits charging the children with the crime of prostitution or solicitation of prostitution, even if they come forward to seek protection of the government from those who are exploiting them. 

The law, obviously, makes a lot of sense.

First, if a minor cannot give consent for sex, as a matter of law, the minor's consent for sex in exchange for money is invalid, too, and there is nothing to charge THE CHILD for.

Moreover, the law is correctly designated to protect children, so that, if they come forward to disclose their engagement in prostitution, and disclose the name of those adults who are exploiting them, which is already a decision that may put their life in jeopardy, they should not additionally fear that they are confessing to a crime for which they may be charged separately.

Once again, makes a lot of sense.

How will it be carried out practically, is a question though.

The age of majority in California is 18.

Many girls look 18 (physically developed) while they may be 14 or even 13.

And, I doubt that any prostitutes, and especially child prostitutes, exploited by adults, would come out on the streets wearing their true IDs.

So, now police will have to be very attentive to whether a young prostitute may be a minor, ID or no ID - and to check on authenticity on young prostitutes' IDs.

It also means that a child prostitute who is one day away from turning 18 is not chargeable with a crime, while a prostitute who has just turned 18, is already an adult and is chargeable with a crime of prostitution.

It does not make a lot of sense in protecting children, but not protecting WOMEN from being similarly exploited - so, in my view, it makes sense to decriminalize prostitution for adults, too, on the same grounds, safety protection, as it was done for children.

Specifically, as to application of the decriminalization of child prostitution in order to protect children, young women will still be first arrested by the police if they LOOK over 18 - of course, they will have to be let go if they are actually under 18, but there will be some time before that is ascertained, so arrests of minors for prostitution will still happen.

The only thing that will remain the same - unfortunately - is problems with picking up, charging and making charges stick against the "clients" of child prostitutes, and against their pimps.

For charges, a statement and, if the case goes to trial, the testimony by the child prostitute will be required.  And that will potentially put the child's life in danger.  Which is the same situation that exists now.

But, at the very least, the new law will now protect a desperate child who wants to get out of this situation from having to criminalize herself in order to get protection from the government and to have the criminal who has forced her into sex or who bought her sex (without her consent, as a matter of law) held accountable.

Wednesday, December 28, 2016

The 6th Circuit hurriedly, and illegally, created a precedent protecting police officers in shootings during home raids, putting people and people's pet in danger of on-sight execution, and doing it in order to defeat a wrongful death/civil rights lawsuit of a little girl

Your dog (and my dog) is property.

In 2002 in New York, for example, a court has ruled that there is no cause of action for loss of companionship of a dog - even due to a pharmacist's mistake that killed that dog.

And, recently, in Canada, a judge took his time to mock a childless couple who, while divorcing after 16 years of marriage, asked the court to treat their dogs as their children and to award physical custody and visitation of them.  The judge said - I do not have to decide on the custody of kitchen knives, and the same applies to dogs, as property under the law.  Thus, crossing out, as unimportant, feelings of childless humans toward family pets as family members, and obviously crossing out feelings of family pets towards humans, too.

There is a whole project created to assert in court that animals are not JUST property - that, due to their status as living beings, they must have some rights other than property.

Meanwhile, a new court decision about family pets' right to life was reported from a federal court in Michigan - and is causing waves in comments in the social media - that a police officer entering a residence may shoot a dog if the dog moves or barks.

Police shoots family dogs lately in alarming numbers, as an article reporting on the same federal court decision observes, so that even law enforcement publications raise the question whether we are dealing with an "epidemic" of such shootings.

And, for an officer, anything - anything - qualifies as a reason to be afraid for his safety - even when a dog is STANDING over the corpse of her dead companion dog and barking at its killer, but NOT attacking or moving.

Of course, the article recognizes public anger at the decision and claims that "nothing changed" by the decision - that people still have constitutional 4th Amendment "property right" against governmental "unreasonable search and seizure", killing of a family pet qualifying as a "seizure" - the judge "just" found, in that particular incident alone, that the killing was reasonable and "justified".

Yet, that claim, that "nothing changed" is not true.

Under precedential power, in the jurisdiction covered by the 6th Circuit - and, likely, in the entire United States, looking at that decision as a precedent - the "totality of circumstances" "test" now includes a dog "moving or barking", and thus, ANY officer entering ANY residence with a dog, is empower to shoot the dog on sight, and then concoct a story about being "threatened" - unless, of course, every owner installs INTERNAL security cameras and crates dogs within the home at all times - which are, both, unreasonable suggestions which will not work and will not be utilized.

Right now, at 11:20 am Eastern Time, as I am writing this article, there are 324 comments and 702 shares of the article about the 6th Circuit's decision:

Most comments are from people outraged by the decision and indicating that they will protect their pets the same way they will protect themselves - with armed resistance.

And this is just one example of how unreasonable court decisions, made contrary the contents of the record showing that, at the very least, the 2nd dog did nothing to invite the officer to kill her,

decisions made for a pre-judged purpose, in order to protect the government from liability, can cause disrespect to the judiciary and destroy people's belief in the rule of law.

Of course, there were attempts to "calm down" the public - with comments accusing the reporters of "click-baiting" and "misleading the public:

The commentator Rob Cozart is, of course, according to his LinkedIn profile, and according to his FB profile, a retired police Leuitenant:

with the exact same mentality that causes the public to fear the police: look how he reacted to my comment that the decision has a precedential power:

As soon as anybody tries to just point out that a certain precedent is going to be dangerous in application, giving the police extremely broad powers to shoot at family pets - which can, by the way, kill children and people who are inside the house, next to the dogs, and who the dogs may be protecting - the police logic is:

  • our "system" - whatever it is - 'isn't perfect, but it's the best one in the world", and
  • that "that's why everyone wants to come here" - I do not know whether Rob Cozart was hinting at the fact that I came to the U.S. as an immigrant, but that's what the clear implication is.

Of course, the "best system in the world" has resulted in an epidemic of wrongful incarcerations, incarcerations in for-profit prisons, and incarcerations that exceed, by far, incarcerations in all other so-called "civilized" countries, as well as police shootings of innocent unarmed people (not just dogs), reported nearly daily, and thus cannot be considered "the best system in the world".

Apparently, for a police officer, or a retired police officer, there is magic in words - as soon as the magic words "we have the best system", and "that's why everyone wants to come here" are pronounced - they are supposed to justify any violations of the law and of people's (and animal's) rights.

According to this retired police officer's logic, this

was justifiable, and unless the officer is allowed to shoot, and shoot, and shoot, and shoot again the dog that provided no threat to him - and then shoot her "to put her out of her misery" because "he didn't want to see it suffer" - while the dog could be saved by simply taking it to the vet, and the officer definitely was not threatened by a wounded dog - unless the officer would be allowed to do THAT, "the rest of the country" will "turn into Chicago".

That's exactly the mentality that should have given the federal court pause and should have prevented the court from ruling that ALL of officers' shootings - including the shots that wounded a dog just standing at a distance and barking, and that killed that same dog, after it was wounded down - that all of that is justifiable under the "totality of circumstances" "test".

Of course, the owners of the house offered officers keys to open the door, and obviously could be allowed to come in in front of officers to calm down the dogs - but officers refused to use the keys under the pretext that there was a possibility that "false keys" could be offered to delay the search and allow evidence to be destroyed.  Instead, dogs were "destroyed".

And, of course, the "totality of circumstances" "test" is no test at all, giving the widest discretion to police officers to claim they were "threatened", even in situations where they cannot be possibly "threatened" so as to justify the use of deadly force - and that applies not only to dogs, but to police shootings of people, too.

And, of course, the K-9 "units", dogs "working" for the police are, of course, cherished by the police - which does not cancel the fact that police shootings of other people's dogs is on the rise, making, once again, even a law enforcement magazine calling it "an epidemic".

Now, as to the Fox article being a "click-bate" that caused so many angry comments from the public as to the court decision.

The court decision clearly states that:

  • the police had a search warrant, but not an arrest warrant;
  • that the target of their search warrant was a person who was arrested outside of the house before their search of the house;
  • that the police arrested - and handcuffed - one of the plaintiffs, without an arrest warrant, explaining to him that they are going to exercise the search warrant - which was illegal, because there is nothing in the law allowing them to insist that they can only exercise the search warrant in the absence of residents, and especially to arrest residents, who provide no resistance at all and pose no threat, without an arrest warrant, in order to prevent their presence where the search warrant is exercised - such "policies" allow police officers to plant evidence during searches in the absence of witnesses;
  • the handcuffed plaintiff offered officers the keys to the house that he just used to open the house and to let the dogs out;
  • the police looked inside the residence before ramming into it, and saw two pit bulls - a 92-pound and a 53-pound dog - jumping, "pawing", and barking at the windows;
  • the arrested plaintiffs could very well be allowed to get into the house with the police officers in order to calm the dogs down or crate them;
  • the police refused the use of keys and rammed the residence instead;
  • there was no people inside the house - the handcuffed plaintiff came to the house during his lunch break to let the dogs out - so the justification that somebody will "destroy the evidence" if there is any delay in opening the door is fake;
  • that the smaller dog "never barked in her life", and that she disappeared from the upstairs room into the basement after the police entered the house - indicating that she would rather retreat than attack the officers and presents no danger to them;

So, great job, the 6th Circuit - encourage police officers to shoot dogs inside a residence on site, because they "moved or barked", and then justify the killing of a child or an adult that the dog covers with his body by claiming that the officer "felt threatened by a dog", and "did not see a human".

There was already an alarming court decision from the 2nd Circuit that justified discrimination against smarter police force candidates, indicating that employers of new police officers are justified not to hire smart candidates, for fear that they will leave the job soon for greener pastures:

"Applying that lenient standard of review, we conclude that even absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed -- on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC -- that there was such a connection.

Plaintiff presented some evidence that high scorers do not actually experience more job dissatisfaction, but that evidence does not create a factual issue, because it matters not whether the city's decision was correct so long as it was rational. The city could rationally have relied upon the guide to interpreting test results provided by the test maker as justification for reducing the size of the applicant pool with both a low and a high cut off.  Even if unwise, the upper cut was a rational policy instituted to reduce job turnover and thereby lessen the economic cost involved in hiring and training police officers who do not remain long enough to justify the expense."

As a result of that horrible decision, police departments "justifiably" started to hire dumb brutes who would shoot first and think never.

The 6th Circuit decision about shooting a dog inside a residence if it "moves or barks" will embolden those dumb brutes even more.

The 6th Circuit decision was made on a motion for a summary judgment - where the court rules on evidence, instead of a jury, and decides whether there are "reasonable issues of fact" raised in opposition to the motion.

The use of summary judgment in federal court has been challenged as unconstitutional by legal scholars as usurping the parties' 7th Amendment right to have their factual issues decided by jury.

Summary judgments are decided on a pretense that the court is not deciding factual issues - it is only "spotting them", and granting the motion only if the court is unable to find "triable issues of disputable facts".

Yet, even with summary judgments, courts have a 2-prong test only to resolve - without resolution of the issue of justification - and both the district court and the 6th Circuit unlawfully resolved that 3rd issue.

In review of a qualified immunity defense (a concept, by the way, unlawfully amending the Civil Rights Act by judicial fiat in violation of Articles I and III of the U.S. Constitution, because this "defense", as a restriction of civil rights plaintiffs right to a remedy for constitutional violations, does not exist in the Civil Rights Act, and cannot be introduced into the Civil Rights Act by a court), the court follows a 2-prong "test":

  1. taken in the light most favorable to the party asserting the injury (the plaintiffs), do the facts alleged in the complaint show the officer's conduct violated a constitutional right
  2. is the right clearly established.
In this particular case, the court did acknowledge that it must follow this test:

The 6th Circuit answered the 1st question in the affirmative - that there is, indeed, a constitutional right of people not to have a dog "unreasonably seized" - as in "killed". There are no emotional rights of owners losing pets as family members, and there are no right to life of pets reviewed, raised or discussed, of course.

As to the 2nd question of the prong - whether that right was "clearly established" by the time the defendant officers acted, and the 6th Circuit also answered that question in the affirmative - yes the right was clearly established by the time the defendant officers acted.

So, a two-prong test, the court has answered both prongs in the affirmative, end of story, motion for a summary judgment had to be denied.

So why was it granted?

and the 6th Circuit judges, the amiable looking Judge Karen Nelson Moore, age 68,

the kind-looking Judge Eric L. Clay, age 68,

and the assigned district judge Joseph M. Hood, age 74, of Kentucky,

an author of a law review article on "judicial independence" - I guess, in not following the court's own rules, too -

these 4 judges unanimously violated that "test" and raised and answered a THIRD question - a question that only a jury can answer - whether actions of the officer, in violation of a clearly established constitutional right, were JUSTFIABLE?

Here is what the 6th Circuit, in the place of a jury, decided as to the "reasonableness" of killing the first dog - the 93-pound pit bull:

And here is what the court decided about the 2nd dog - the one who disappeared when seeing the officers, never lunged at them, was just standing and barking in the basement, the one that was killed "to put her out of her misery" after she was wounded and presented no threat to the officers:

Once again.

The question before the court as to the second pit bull was - "whether the Plaintiffs presented a genuine issue of material fact as to whether [the second dog] posed an imminent threat to the officers' safety".

That is too narrow - and incorrect - concept of what the court must do on a motion for a summary judgment, a 101 1st year law student F-grade incorrect.

Because, on a motion for a summary judgment, the moving party (the defendants, officers), have the burden of proof.  And, if issues of fact are raised on the record of the moving party - as it was undoubtedly done here - the burden of rebuttal does not even shift to the opposing party.

When the defendants, on a motion for a summary judgment, recognized, as to the 2nd dog, that it did not lung at the officer, was just standing or hiding - and he still shot at her, and that, Officer Case "fired a fatal shot" when he found the dog "bleeding profusely behind the furnace", when, answering the court's own question, the dog presented no "imminent danger" to the "officers' safety", and the killing - instead of notifying the owner so that he would be able to bring the dog to a vet to save it - was presented as a "mercy killing", to "put the dog out of its misery" - glaring issues of fact existed based on the defendants', moving parties, own record, and the court HAD TO, was OBLIGATED to DENY the motion for a summary judgment, because the defendants did not meet their burden of proof, at least with the 2nd dog.

When the court ruled that all officers' actions were "reasonable" and "justifiable", the court also resolved two disputable issue of fact:

  1. whether the officers' actions were reasonable and justifiable under the "totality of circumstances"; and
  2. whether officers are credible as witnesses,
thus usurping the function of the jury.

What is bad about this decision is not only that the court

  • violated its own "2-prong test" on qualified immunity defense, and
  • violated its own law as to how motions for summary judgment must be decided
in order to bend over backwards and justify police killing of two dogs.

It is about precedential power of these decisions, and how this decision will further empower police officers to shoot first and think never.

Now, expect not only dogs, but humans, adults and especially children to be killed.  Children are those who family dogs usually protect and cover with their bodies, and who will be subjected to the rain of bullets on police entry into the house.

And wait, why did the 6th Circuit which, as all federal appellate courts, affirms without an opinion, by summary non-precedential orders, all appeals in civil rights lawsuits?

Why didn't it do just the same here?  Just affirm it, without expending any time on a 25-page opinion?

There may be a reason for that that goes beyond dog killing.

And that reason - the need to create a precedent protecting the police and creating a new standard for the court to usurp jury functions and decide, instead of the jury, the question whether the police officer's actions were or were not "justifiable".

And that reason has a name and a face.

A sleeping child, a 7-year old girl Aiyana Stanley-Jones, was already killed in May of 2010 during a no-knock police raid - "coincidentally", in Detroit, Michigan, a lawsuit under Civil Rights Act and wrongful death was filed by the girl's family, the police invoked the affirmative defense of "qualified immunity", moved to dismiss, with the following conclusion:

and a jury trial was set for August 8, 2016, but then the case was stayed, at the request of the Plaintiffs, on a "Colorado River" abstention because of a parallel litigation:

Note that, even though the civil rights/wrongful death lawsuit of Aiyana is listed as "closed", it is closed only "for administrative and statistical purposes", but in reality it is only stayed:

Note that the case languished in state courts and in federal bankruptcy court for no fault of Aiyana's family:

and that the court rejected the Defendant's (officer Joseph Weekly's) claim that his federal rights will not be adequately protected in federal court:

The officer was accused of throwing a flash-grenade and shooting into the residence and killing a sleeping child to create more drama for a reality show video - but charges against the officer resulted in two mistrials, a dismissal of the charge by the judge, which the prosecutor did not appeal, and in agreement by the prosecution to ultimately pursue criminal charges against the officer; and the officer was reportedly reinstated on the job.

In the civil rights case though, the officer was not out of hot water, and his attorneys resisted disclosure of the officer's official account, made by him within hours of the shooting and with a fresh memory, necessitating Aiyana's family to file a motion to compel production of that document, which production Officer Weekly opposed on contrived and non-meritorious reasons:

  • that the officer is, allegedly, "not in possession" of his own statement;
  • that the Plaintiff allegedly did not issue discovery request for that particular document, even though the document was subject to mandatory discovery exchange pursuant to Federal Rules of Civil Procedure; and
  • that the document, the account of the shooting, is allegedly the "work product" of third parties - the police department.
It is interesting that the counsel who raised these obviously frivolous grounds, was not punished by the court for frivolous conduct - a civil rights attorney for the plaintiff, in his place, raising the same issues would have most certainly been sanctioned.

In the civil rights case, Plaintiffs also made a motion to strike Officer Weekly's two expert witnesses for non-compliance with discovery, and Officer Weekly made a motion to preclude portions of testimony of two of Plaintiffs' witnesses, one - an expert witness who planned to provide an opinion about standard police practices of planning and de-escalation of raids on residences, and the other - an expert on weapon safety and ballistics, as supposedly irrelevant to the triable issues.

Here is the complaint in Aiyana's case that is stayed, not dismissed by the federal court, and here is the order of stay, over the opposition of Officer Weekly.

Here is the entire docket report in her civil rights/wrongful death case in federal court, obtained by me personally from today.

Here is the shameful Answer by Officer Weekly raising "qualified immunity defense" for throwing a flash-grenade and shooting into the residence where a child was sleeping, so that the TV crew present get more "action" for their footage to sell it to the viewers.

Here are the pleadings in the 5 outstanding motions in Aiyana's federal case:

are all pending, only stayed.

The lawsuit can be revived at any time.

So, this "bending-over-backwards" decision about "justifiable" "mercy killing" of a dog by a police officer, a dog that presented no harm, the unnecessary killing that was done in the absence of the owner, who was just outside the house, offered help, offered keys, but was illegally arrested, without a search warrant, handcuffed and detained, so that officers would have fun using his dogs as shooting targets, with him handcuffed and listening to the carnage - this shameful, and shameless, decision, violating the very "tests" and rules of how qualified immunity defense and motions for summary judgments, are to be resolved, this decision is not so much about dogs.

All of it was about protecting a reality show star for A&E, police officer Joseph Weekly, from accountability for killing of a little girl on camera.  There was also a question whether the flash-grenade was thrown, and the shooting occurred that killed the little girl because the officer was trying to impress and provide material for a TV series "The First 48".

So, it was protecting the movie star.

And the practices of the police department who invited a TV crew to film a home raid upon unsuspecting people, with a child inside - where the child died as a result.

And, the dog case - a supposedly unconnected case - was to serve as a convenient vehicle to create a precedent, a court rule indicating, should the case return after a stay, that:

  • a federal court, sitting in review of a motion for a summary judgment in a civil rights case litigating the use of force, and deadly force, by a police officer - against anybody - people, as well as pets - may rule on reasonableness on the issue of "qualified immunity" defense, even though the "qualified immunity defense" 2-prong test does not include the "reasonableness"/"justification" question and even though that question is within the jury's, and not the court's, power to decide
So, don't think that "a police officer can shoot the dog if it barks or moves" case is only about the dogs.

It is predominantly about the people.

About the police shooting people, and children.

It is about Aiyana Stanley-Jones, and killing her twice - first her life, and then her lawsuit, and ability of her family and her estate to have any remedy for the killing-for-reality-show.

Now expect the police to shoot on sight, if a dog is on the couch alone, or cuddling with an adult, or protecting a child, and expect courts to justify the police killing as "reasonable".

Expect the police to push the envelope even further and claim, in cases where there is no dog, and when they killed a human during a home raid, that they thought the human, adult or child, was a dog who moved on the couch in the dark, was not visible, and that officer "reasonably perceived" himself to be a danger to officer's safety.

And, while the police raids and police killings are predominantly on the homes of minorities and of the minorities, do I have to wonder why all 4 of the judges who decided this case were white?

I will give these 4 white judges credit - they pulled their trick very cleverly.

The "dog" decision made on December 19, right before Christmas time, when people are united with their families, have some spare time on their hands, will be reading accounts in the media and will most certainly be enraged - enraged and concerned about their pets only, since most people are not literate in the law, and especially in federal civil rights litigation law, and will not see through the scheme.

Count on judges acting in collusion with a governmental defendant and ruling to protect the government.

Have them focus the public on pets, deflect the public from the fact that, through precedential power on the issue of the use of "reasonable" deadly force, this is actually also and primarily about people killed.

About children killed.

About the black little girl killed by a Michigan police on camera.

About a toddler injured by a similar flash-bang grenade assault by police in Georgia.