Facebook Art Being Passed Around

|The Volokh Conspiracy |

Thanks to Prof. Glenn Reynolds (InstaPundit) for the pointer:

UPDATE: Commenter ConservativeBoy on InstaPundit adds: "June called April and asked for her Covid-19 back."

NEXT: Upgraded Murder Charge Against Derek Chauvin Still Does Not Require Proof That He Intended to Kill George Floyd

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  1. Professor, hate to put you on the spot, but do you think the grand-jury clause of the Fifth Amendment ought to be incorporated against the states? I ask because these cops are being brought trial without a grand jury, from what I understand.

    The Supreme Court doesn’t think a grand jury is needed – neither does the Minnesota constitution.

    In fact, I guess you could say the grand jury clause is the red-headed stepchild of the Bill of Rights and plenty of people want it to go away.

    The chance of that clause being incorporated is probably between nil and zilch, but on the theoretical level, what do The Experts think?

    1. I’ll go further — this case reminds me of the infamous Scottsboro Boys and the related litigation that I believe went to SCOTUS at least twice. Teenagers (aged 13-19 when the age of majority was 21), they were falsely accused of raping two White teenaged women for which they were repeatedly sentenced to death.

      While the technical issue was the all-White jury, all of those proceedings were conducted under circumstances as stressful as today, memory is that it took the state militia to prevent the defendants from being summarily lynched.

      Above and beyond Eddy’s comment, I believe it is fair to say that the 2nd Degree Murder charge is political, and that is what the Grand Jury was intended to prevent. Sure the prosecutor can indict a ham sandwich, but he can’t indict the entire hog without eyebrows being raised….

      1. I’m reading through the autopsy and it seems the most generous you can be going strictly by the known facts was that George Floyd was ‘murdered’ by the police in the same way you’d murder someone by shoving them against a wall. There is no physical evidence of neck injury or compression and you usually can’t talk when you’re actually being seriously choked to death so its probably safe to say a normal person would have survived the encounter.

        I’d like to get more insight into the behavior of the officers beyond the restraints throughout the entire episode but the full video itself is surprisingly hard to find and whats available is extremely biased accounts. I’m guessing very few people on either side have seen the whole thing all the way through.

        1. It was the kneeling on the neck, when the man wasn’t resisting arrest, that led to the death, which I presume was unintentional. The soft tissue of the neck doesn’t provide much in the way of evidence, so I don’t believe the second autopsy that showed it was neck compression that killed him….you can’t come to that conclusion without looking at the video and having pre-conceived notions. The family, that paid for an independent autopsy, got what they paid for.

          If pressure on the neck led to death on a routine basis, you wouldn’t see chokes in Judo, Jujitsu, or MMA. That said, fellows in those activities can tap out, and if they don’t, they die. This guy tried in his own way to tap out, by saying he couldn’t breath. A good choke can knock you out in less than 10 seconds by constricting the arteries. A poor one held for 8 minutes with someone else kneeling on your back simultaneously will kill a man, especially one with serious pre-existing medical conditions who was also on drugs at the time.

        2. Most of Minnesota has banned the knee-on-neck, and the (troubled) Minneapolis PD restricts it to specially trained officers, and we don’t know if this one was. Second, they had reasonable cause to suspect that he was on drugs — the 911 call, the witnesses statements, the other officer’s statement at the scene. And third, what training did the officers have in either psych or drug psychosis, the latter being a very real possiblity here.

          That being said, it appears that he was high as a kite on multiple things (not a good combination) and as best I can tell, the 4-ANPP is both a precursor to Fentaynl *and* a contaminant to it, so he could have gotten a dirty batch and heaven knows what that’s going to do. Fentaynl can cause hallucinations, Meth is particularly notorious for doing so, and #5 are the active compounds of marijauna.

          The amphetamine in his urine was (likely) from the meth, which breaks down to amphetamine in the body (but for some reason is faster acting). Fentaynl *may* break down into morphine, I don’t know. But in any case, it’s additional evidence of *some* drug use.

          So you have a 6′ 4″, 223 lb man who likely is psychotic and I don’t think it is going to take much to convince the 140 lb female juror of self defense.

          1. There are good counter-arguments to this, specifically the amount of time the officer spent with the on the neck, the fact he was already in custody at the time, and the fact that he wasn’t exhibiting any signs of psychosis (this was an issue in the Rodney King case, where the lawyers for the cops said he “charged” the officers and “looked like he was on PCP”; whatever you think of that in the King case, Floyd doesn’t fit those facts).

            Look, at the end of the day, a jury that wants to let cops off will let cops off. But it’s perfectly clear to me that the cop who did this is guilty of some degree of homicide, with the only issue being which one.

            It will be a tougher case against the other three officers.

      2. The only people who make a point of capitalizing the word “white” are white supremacists. Or, to be exceptionally and overly generous, nihilistic trolls who couldn’t care less if they’re indistinguishable from white supremacists.

    2. Second Degree Murder is certainly an infamous crime as that term is defined by the Fifth Amendment. (“[W]e cannot doubt that at the present day imprisonment in a state prison or penitentiary, with or without hard labor, is an infamous punishment.” Mackin v. U.S. (1886) 117 U.S. 348, 352).

      There is also no reason to think that the right to a grand jury indictment is not a fundamental right. After all, being accused of a felony can result in the loss of liberty if you are imprisoned awaiting trial. Even if you are eventually acquitted, you will not get the days of your life back that you spent in jail waiting for trial. Having a grand jury approve the decision that can (and in the case of murder likely will) inflict such a loss of liberty is fundamental.

      I also don’t think we should think that a right to a grand jury indictment is any less important against state authorities than federal authority. The potential for abuse of criminal justice processes exists equally in both cases, and legal history before and after the Civil War shows that we should not necessarily expect the political processes of states to restrain such abuses at the state or county level. For example, it was state and county governments that turned the machinery of the criminal justice system to the task of continuing de facto peonage (involuntary servitude in payment of debt) even after the passage of the 14th Amendment. As a general matter, history shows that the importance of protections against abuse of the criminal justice process does not vary based on the identity (state or federal) of the government doing the abusing.

      Selective incorporation has never been very logically persuasive, although I do recognize that there was widespread judicial opposition to taking the 14th Amendment seriously after the Civil War that made total incorporation a practical impossibility. So, we should be glad that we have had selective incorporation which allowed us to incremental progress to the present day, where we are on the cusp of total incorporation.

      All that said, this particular case seems like one of the least sympathetic to bring such a challenge. Here, evidence sufficient for a grand jury to find probable cause was captured on video and most of us have seen it. Using this case, of all cases, to incorporate the grand jury clause would raise racial tensions. Millions of people, including countless racial minorities, have been convicted of felonies by state governments without the benefit of indictment by grand jury. Why this case, of all cases?

      1. “Why this case, of all cases?”

        We don’t have to worry about that – there’s no way the Supreme Court would take this case if it was looking for a vehicle to incorporate the Grand Jury clause (if it ever chose to do that).

        It would pick a case which is (a) lesser known and (b) with at least some potential for sympathy with the defendant.

        But that all assumes it’s going to incorporate the clause in the first place, and if you’ll pardon the mixed metaphor, that’s a hot potato they won’t want to touch with a ten foot pole.

        1. You know what, I think I’ll attribute that last remark to Sam Goldwyn, unless he objects…

          …hearing no objection, the quote belongs to Sam Goldwyn.

          /sarc

          1. Yogi Berra and Casey Stengel might ask you to look it up.

        2. My guess is it will be this case because of other factors — first, he has (via the union) virtually unlimited legal resources. (If it came to it, I have no doubt that cop unions nationally would contribute, they kinda would have to.)

          Second, do you honestly believe that a highly political AG, personally prosecuting the case, isn’t going to give other cause(s) for appeal?

          And third, I keep coming back to the Scottsboro Boys case(s) and the concept of what constitutes a fair trial. This man may be guilty but I doubt he is going to get a fair trial, starting with where would you ever find objective jurors….

          1. Unlimited resources doesn’t get you a free pass to SCOTUS. The Rodney King cops raised the separate sovereigns double jeopardy issue in their cert petition- the Court granted the petition on another issue, the sentencing guidelines, and denied cert on separate sovereigns. They only heard separate sovereigns this year. And I’d say that’s directly analogous to your grand jury indictment issue in many ways.

      2. In the above comment, “even after the passage of the 14th Amendment” should refer to the 13th Amendment instead. I cited the wrong amendment because I had incorporation on my mind.

    3. Personally, I think the grand jury clause is obsolete and the constitution should probably be amended to remove it.

      Why? Because grand juries today are not what they were when the relevant amendment was written.

      Back then, a grand jury could start it’s own cases/investigations. It could take testimony from any witnesses the grand jury chose to hear, not just those selected by a government prosecutor.

      Grand juries were neutered because they frequently turned their power on government officials.

      If SCOTUS is going to incorporate the grand jury clause against the states, they should also at the same time declare that the neutered grand juries that exist under modern practice don’t satisfy the clause.

      1. Totally agree on that last paragraph. As long as we’re adding to our wish list.

      2. There’s also a separate issue with grand juries, which is the notion of grand jury secrecy, where if a “no true bill” is issued, it is never revealed and the testimony is kept secret, is really kind of at odds with our notions of a public justice system.

        I am no fan of prosecutors, but at least when a prosecutor makes a decision not to prosecute in a case the public cares about, he or she has got to face the public and explain the decision. Which acts on a check on prosecutorial power. And vice-versa- prosecutors also have to defend their decision to prosecute questionable cases.

        Grand juries have few checks at all on why they act the way they do.

        1. The Grand Jury Clause simply interposes the grand jury as a shield between a suspect in an infamous crime and bringing him to trial.

          The grand-jury secrecy stuff is arguably for the benefit of prosecutors, and in any case isn’t required by the Grand Jury Clause. See how quickly the veil of secrecy is lifted if the prosecutor wants to prosecute someone for perjury before the grand jury.

          1. Grand juries would actually be worse without secrecy.

            1. Broadening the rules for releasing transcripts can avoid this sort of heads-I-win-tails-you-lose dilemma.

              Confidentiality in the general run of cases, release the transcripts when there’s an important public interest (eg, a hot-button case where the jury is accused of a cover-up).

              1. In fact, if there’s an indictment does the defendant get to see the transcripts? I’d certainly hope so.

                1. If an indictment is returned and it goes to trial, the Jencks Act kicks in, as does Brady where the material is exculpatory.

  2. Eugene, please post lewd anime characters! ~uwu~

  3. Betting on the next Event:

    a) asteroid strike
    b) earthquake
    c) hurricane
    d) tsunami
    e) tornado (Line not available in Philly)
    f) 2 or more of the above

    FWIW, my power is out till at least tomorrow due to freakish windstorm that created a power outage for 350k people in SE PA

    1. c) Hurricane
      The South will flood again!

    2. g) Second term for Trump.

      (re ‘B’…there are thousands of quakes per day. I assume, for your comedic purposes; you are talking about a quake significant enough to cause great damage, yes?)

      1. It’s preventing Trump’s re-election that is the goal.

        On a more serious note, the East is overdue for a major earthquake.
        There was a 6-6.3 one off Cape Ann (MA/NH border) in 1755, and geological evidence of earlier ones.

    3. FWIW, my power is out till at least tomorrow due to freakish windstorm that created a power outage for 350k people in SE PA

      That was *our* rain, damn it, and we needed it!!! 🙂

      And after the hail, the next Biblical plague was Locusts.

      1. Here in NM, we had moths in plague quantities a couple of weeks ago, and hail the other day.

    4. What? No zombie apocalypse?

    5. I was promised a zombie apocalypse by countless media. Don’t make this more fake news — demand zombies today!

  4. Well the riots are pretty much the result of the Covid lockdown so I guess we can’t be too surprised.

  5. Ha ha ha.

    If you were seriously affected by Covid, or seriously affected by someone you knew beaten by the police because they were black, this would be about as funny as Buchenwald survivors drinking Diet Coke.

    1. I can’t understand how the stock market is still pumping. Unemployment is through the roof and those jobs won’t likely come back for several months, if not years. And that is assuming that Kung Flu is a nothingburger and we don’t get a second wave with an added lock down.

    2. People die every day in more tragic circumstances and nobody cares. Likewise very few if anybody on any side cares about George Floyd, otherwise they’d seek to understand the actual circumstances of his death and the true wider context rather than running with a BS narrative for personal and political ends. This is above all a political clash with a healthy dose of quasireligious hysteria. Why should Volokh take this any more seriously then everybody else?

      1. Houston’s beaner gungrabbing democrat sheriff had two poor white people murdered in a fake drug raid by his scumbag cops. The national media will never let normies hear that story because it goes against the narrative. If blacks had a lick of sense, they’d use white victims of police brutality to advance the cause of reigning in out of control cops. #PoorWhiteLivesDontMatter

      2. Why should Volokh take this any more seriously then everybody else?

        What makes you think he takes the death of George Floyd seriously?

      3. “People die every day in more tragic circumstances and nobody cares.”

        Other than “tsk, that is very bad, I hope they prosecute”, why should I care about what happened in a city I have never visited to a person I never knew existed killed by a cop I also don’t know.

        I didn’t hear about “Raven Gant [who] was fatally shot in an apparent domestic dispute in north Minneapolis Thanksgiving night [2019]”. She is just as dead as Floyd.

  6. Here is the autopsy if anyone wants to see it:
    https://www.hennepin.us/-/media/hennepinus/residents/public-safety/documents/Autopsy_2020-3700_Floyd.pdf

    Positive for fentaynl and meth.

    1. He was a good boy just trying to get his life back on track. He loved Jesus and his momma. #BlackLivesMatter

      1. As I understand it, 3.4-ANPP is both a Fentanyl precursor and a contaminant. These are not USP-quality drugs being sold on the street, something people tend to overlook.

        He well could have been having hallucinations.

        1. Will we get a second riot when the cops are acquitted? I need to get some new Air Jordans!

          1. Thanks to the BabylonBee

            “Nike has released a commemorative shoe to honor those looting and burning down buildings across the country.

            The Nike Loot Force One comes packed with features the company says will help people loot safely and efficiently. From cushioned soles to make sure you make it through shattered windows without getting your feet cut to a detachable swoosh that can be thrown at business owners or police officers like a Batarang, the shoe is the ideal footwear for those looking to incite violent riots and also coincidentally get some free stuff.”

            https://babylonbee.com/news/nike-releases-commemorative-shoe-to-honor-looters

      2. You forgot to include that he was a “gentle giant” somewhere in that description.

    2. Thank you for the factual information NEWS.

  7. It isn’t “riot season.” It’s “protest season”. Have Profs. Reynolds and Volokh ever heard of the 1st Amendment? If not, it’s a definite must read.

    1. They started reading it, but didn’t get all the way through.

    2. Did someone miss the adjective “peacably”?

      1. I wouldn’t say they miss it, Bob….

      2. Nope.

        Protestors being peaceable didn’t stop Barr and Trump from using tear gas against them.

        And please don’t repeat any of the Barr lies that I’m sure you have ready at hand, and don’t come up with some of your own either.

        1. Protestors being peaceable didn’t stop Barr and Trump from using tear gas against them.

          Sure, under the new bespoke definition of “tear gas” some wokester dreamed up as anything that makes you cry.

          By that standard, you post tear gas here on a daily basis.

          1. Fuck you, LoB. It’s the CDC’s definition, but of course you eat up Trump’s BS as usual. Open wider. He’s got plenty more for you to swallow. Does it really taste that good?

            And so what? By all (non-Barr) accounts Monday’s protestors were calm and peaceful, exercising an explicit Constitutional right. To disperse them forcibly, whatever the means, violates that right.

            If I make you cry, I’m delighted. You and your fellow Trumpists are destroying this country.

            1. Fuck you . . . If I make you cry, I’m delighted.

              Yup, yup — got it. Clearly aggression and bullying are still peachy keen, as long as it’s against the right… er, correct group of people. It’s all so transparent after a while.

              I’d suggest trying to get out a bit more regularly for fresh air, but I have my doubts that the past few months have had any measurable influence on the clearly charming specimen of humanity you are.

          2. Go. Argue the semantics of what’s technically tear gas. See where that gets you with anyone who does not already agree with you.

            1. See where that gets you with anyone who does not already agree with you.

              Interestingly enough, the opposite is also true: the new made-up definition goes nowhere with anyone who is not already looking for every conceivable excuse to play Orange Man Bad.

  8. All I can say about this post is that it’s yet more evidence that Eugene’s professed concern for the First Amendment rings hollow indeed.

    It seems to be nothing but a cudgel against his ideological foes.

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