Thursday Open Thread

|The Volokh Conspiracy |

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  1. So, it turns out George Floyd had a lethal level of fentanyl in his system when he died.

    If you were a jury member on the Floyd trial, could you say, beyond a reasonable doubt, that it was the police action which caused his death and not the lethal level of fentanyl?

    1. Yes, particularly since taking a lethal level of fentanyl would have killed him when he took it as opposed to waiting until after a cop knelt on his neck for nine minutes. Because it’s a lethal level of fentanyl.

      1. Super bad luck the fentanyl killed him right when he had a knee on his windpipe.

        1. I take it you don’t agree there’s reasonable doubt?

          1. According to the groundbreaking new Dr. Otis and Dr. Sarcastro Medical Theory of Everything every single cause of death happens at and only at the exact time of death. So Kennedy wasn’t shot by Oswald or the Mob or whatever his head just decided to explode from a bullet one day. Caesar wasn’t assassinated at all, several pieces of metal just spontaneously embedded themselves into his body. And lying in hospital beds are one of the leading causes of death in the world.

          2. Not to me; the timing is much too coincidental.

            1. So removing any specific context, whenever person A takes a lethal dose of a drug and then engages in some other possibly lethal activity and then drops dead you are always virtually certain that the second activity killed them?

              Remind me to never invite you to help the local 2nd graders cheat on their worksheets.

              1. Lethal dose which doesn’t kill right away — ok, sure.

                Lethal does which just happens to kill during the several minutes where the cop has shut his windpipe? Extraordinary claims require extraordinary proof, and your supposition isn’t even close.

                1. Sigh. Yes “Lethal dose that doesn’t kill right away”

                  When drugs are administered, they take time to get into the system.

                  This is why, for example, when you take Advil it takes some time for the headache to go away. It doesn’t go away the instant you swallow the pill.

                  This is why, for example, if you drink too much alcohol, they can pump your stomach, and you can still live. All the alcohol from your stomach doesn’t instantaneously go into your blood.

                2. Again where are people getting this idea that we must automatically default of ‘George Floyd was killed by the knee’ in the absence of evidence to the contrary?

                  1. Res ipsa loquitur.

                    1. I’d have said Occam’s Razor, but Res Ipsa works too.

                  2. For Occam’s Razor on the balance there may actually be more evidence that he died of an OD than being choked with the knee, due to the abundant conflicting evidence, no physical evidence of choking in autopsy, speaking profusely when being ‘choked to death’.

                    In any case the question is not is it possible that he choked to death because of a knee, its is there any reasonable doubt?

                    People who are saying theres absolutely zero reasonable doubt that his death was caused by anything but Chauvin and only Chauvin when he has a pharmacy in his system are frankly being delusional to the point where it seems like its bad faith trolling.

                    1. Have you ever seen someone dying of an overdose? They aren’t arguing with, being arrested by, or begging for air from a cop. They’re unconscious, typically aspirating their own vomit.

                    2. Not everyone ODing is unconscious.
                      Some are damn violent.

                    3. “Not everyone ODing is unconscious.
                      Some are damn violent.”

                      From fentanyl? LOL

            2. Coincidences happen.

              The chances of being hit by lightning are very small. One in 500,000. Yet, it still kills hundreds of people every year.

              Deaths due to drug overdoses are sadly, quite common. The chance of dying of a drug overdose while being arrested by the cops may be low.

              But given the vast number of drug overdoses, odds are, somewhere, someone, is going to die of a drug overdose while being arrested by the cops.

              1. That’s why reasonable doubt is not *any* doubt.

                1. Your only argument is that it was coincidental. But coincidences happen.

                  1. Literally anything is possible.

                    This is so unlikely it does not give me reasonable doubt that Floyd was killed be the knee on his neck.

                    This is a narrative that will make the right feel righteous, and alluring narratives don’t require reason.

                    1. It is unlikely that someone with 11 ng/ml Fentanyl in their system died due to the Fentanyl in their system? When that’s a lethal dose?

                      Is it possible that the knee on his neck killed him? Yes. But it’s also possible the Fentanyl killed him. People who have those types of serum levels die in transit to the hospital.

                    2. Died in that 8 minute juncture when he had a knee on his neck? Yeah, infinitesimally likely.

                    3. Look at it this way.

                      What is the chance of death in any 8 minute juncture when you have 11 ng/ml fentanyl in your system. Any 8 minute span of time at all. A 10% chance? 20%? 30%?

                      If that chance is reasonable, then it is reasonable the drug caused his death. Regardless of whatever else was happening during that period of time.

                    4. OK Mr Armchair Expert:

                      1. When did he take the 11 mg of fentanyl? How long had it been in his system?

                      2. How quickly does fentanyl act? What is the normal time from ingestion to death?

                      Wikipedia says “a lethal dose for the average person is estimated to be 2 mg”, and drugs.com is similar. IANAD but 5 tiems the lethal dose would seem likely to act pretty damn quickly. I await your expertise with baited breath. Put up or shut up. You are either an expert and know, or a blowhard and just making it up or repeating some internet factoid.

                    5. Your assumption that dying within 8 minutes is likely assumes the fentanyl was ingested immediately before the knee was applied.

                      We know that isn’t true. You need better fake evidence.

                    6. What is the chance that a knee on your neck will kill within 8 minutes? 99%? 99.9%? 99.99%?

                    7. Á àß) Since you asked for an expert.

                      1) 11 ng/mL (nanograms per milliliter) is the blood concentration of fentanyl in Floyd’s system. Not the dosing. These are significantly different.

                      2) Fentanyl is dosed several different ways. Orally, a lozenge, nasal spray and more. There are two key numbers here.
                      a) The time for onset of effects (when you start to feel it)
                      b) The peak concentration (When the maximum amount is in your blood).

                      Both a and b differ depending on route of administration. But, to give you an idea, for the nasal spray (fastest non-IV method), the time for onset is 10-15 minutes, while the peak concentration is 15-20 minutes after administration. By contrast the sublingual spray has an onset of time of 10-40 minutes, and a peak concentration of 40-75 minutes.

                      What that means is Floyd could’ve dosed himself a full hour before the encounter with police, before the Fentanyl hit the maximum blood concentration.

                    8. Again where is this postulate that ‘when in doubt default to possible cause of death #2’ coming from? We don’t even have any idea how much pressure was being applied other than it wasn’t enough to leave any evidence behind in the autopsy.

          3. Well, since there hasn’t been a trial, I don’t see how anyone can say whether there’s reasonable doubt or not. That’s why we have trials.

            But even if true, I don’t find the claim that he had a lethal level of anything in his system dispositive. Suppose you take a lethal dose of a slow acting poison that absolutely is going to kill you, but then I shoot you before it has a chance to take effect. Am I really not guilty of a crime just because something else would have killed you anyway?

            1. Well, we can hypothesize about reasonable doubt. It’s why it’s a forum.

              In regards to your analogy. Yes, the bullet in that case killed you. (The more extreme version of this is “everyone’s going to die eventually anyway, so…)

              But this situation is different. This is a fast acting poison, and an action that doesn’t result in instantaneous death. A better analogy is this.

              A subject takes a lethal dose of cyanide. They they get into a fistfight with you. You punch them in the face. They fall to the ground and die.

              Did you kill them? Or did the cyanide?

              1. The two are not mutually exclusive; it’s possible both the cyanide and the punch killed them. The cyanide may have weakened the body’s ability to fight off the effects of the punch, and the punch may have hastened the speed at which the body absorbed and was impacted by the cyanide. So it could have been a tandem effect.

                But I don’t think that’s the legal question anyway. I think if the punch — or the knee on the neck — was a contributing factor, it’s homicide, even if there were other factors. It’s basically the criminal law version of the eggshell plaintiff. Even if the knee on the neck would not have killed most people, if it was a contributing factor to Floyd’s death, then there is legal culpability. If you’re going to commit the bad act of keeping your knee on his neck, you’re responsible for whatever bad consequences follow.

                I might be willing to knock it down to manslaughter on a plea deal.

                1. The problem is, you’re asserting homicide to actions which plausibly “assist” in another primary cause of death.

                  Say it’s not a punch. Say it’s a slap. Still homicide. Say you just spit in the guy’s face, and it causes his stress level to rise, assisting in his death. Still homicide, right? That’s assault.

                  What if you just yell at him, raising his stress levels, which assists in his death. Still homicide? What if it’s just your child crying?

                  At what point do legal actions, or “grey” actions which shouldn’t in any way cause homicide on their own, but might plausibly assist in speeding a death that is already happening not count as part of homicide?

                  1. This is becoming a question about facts rather than about law, which is ultimately up to a jury. I go back to what’s predictable. Is it predictable that if you put your knee on someone’s neck for nine minutes it could kill him? Hell yes.

                    Suppose I slap someone who has some strange medical condition such that he cannot tolerate contact with other humans, and as soon as my skin touches his he drops dead. Was that predictable? Probably not. And probably also not murder, for that reason. I see kneeing someone’s neck for nine minutes as being sufficiently reckless that it at least gets us to manslaughter, if not depraved enough to get us to second degree murder. Slapping someone may not be very nice, and it may be enough for a battery conviction, but it’s just not in the same league as what happened to Floyd. And makes the defendant here far less sympathetic.

                    But all of these are really jury questions, and different jurors don’t always see things the same way. Inconsistent verdicts do happen, and cases close to the line get decided either way. And, if you knee someone’s neck for nine minutes, that’s a risk you take.

                    Though the elephant in the room is that the police officer starts off with the advantage of juries don’t like to convict cops. And in practice that may decide the outcome.

                    1. Is it predictable though? That light pressure to the neck would result in death?

                      Part of the issue is, the neck restraint was expressly authorized by the Minneanapolis police code as a non-lethal restraint for subjects who were actively resisting.

                      5-311 USE OF NECK RESTRAINTS AND CHOKE HOLDS (10/16/02) (08/17/07) (10/01/10) (04/16/12)
                      DEFINITIONS I.
                      Choke Hold: Deadly force option. Defined as applying direct pressure on a person’s trachea or airway (front of the neck), blocking or obstructing the airway (04/16/12)
                      Neck Restraint: Non-deadly force option. Defined as compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints. The MPD authorizes two types of neck restraints: Conscious Neck Restraint and Unconscious Neck Restraint. (04/16/12)
                      Conscious Neck Restraint: The subject is placed in a neck restraint with intent to control, and not to render the subject unconscious, by only applying light to moderate pressure. (04/16/12)
                      PROCEDURES/REGULATIONS II.
                      The Conscious Neck Restraint may be used against a subject who is actively resisting. (04/16/12)

                      https://web.archive.org/web/20200527123248/http://www2.minneapolismn.gov/police/policy/mpdpolicy_5-300_5-300

                    2. He was not actively resisting. He was begging for his life and saying over and over again that he couldn’t breathe. And yes, I saw your earlier comment that criminals lie, but if someone is saying they can’t breathe, and you choose to ignore them, I think you assume the risk for what follows.

                      But assume the officer was following policy. “I was only following policy” hasn’t been a defense since Nuremberg.

                      I don’t have the time to actually do this, but I’ll bet you anything that if you take 100 people at random and ask them if it’s predictable that putting your knee on someone’s neck for nine minutes could kill them, you’d get an overwhelming yes.

                    3. Whatever else you might say, it’s hard to come up for an excuse for not starting CPR or whatever after the officers can’t find a pulse.

                    4. Don’t forget the Pulmonary Edema — lungs full of fluid.

                    5. “Is it predictable though? That light pressure to the neck would result in death?”

                      Putting weight on the ribcage has been known to cause death for a couple of centuries. As for predictable? Floyd straight-up TOLD them he couldn’t breathe, and this was ignored. Is it predictable that if a person can’t breathe the results may be fatal? I think that case can be made.

              2. “Well, we can hypothesize about reasonable doubt. It’s why it’s a forum.”

                And, after reading your attacks on the victim, we can observe your motivated rationalizations and point them out for you.

          4. It’s hard to die from poisoning when you’re already dead from suffocation.

          5. @Armchair Layer I think we’re being trolled dude.. Debating the ‘lol if he didn’t die immediately = Chauvin killed him 100% without a reasonable doubt’ crowd seems a lot like trying to reason with FlatEarthers.

        2. He was positive for COVID. By all pandemic death standards, Floyd was a COVID death.

        3. I don’t have a medical degree but I’m fairly sure that the windpipe is in the front of the neck, and the knee was not on the front of the neck.

          Are you stipulating that Mr. Floyd was not human?

          1. This is just getting dumber. Do you see what’s on the other side of his neck? It’s the ground.

            1. Do you see what’s on the other side of his neck? It’s the ground.

              True story. One side was on the ground; the other side was under Chauvin’s leg, as specified in the version of the Minneapolis police training manual in place at the time (having survived the memory hole here): “compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck).”

              At least two cool things about that cite: First, it confirms that Chauvin was following approved procedure (whether or not you agree it should have been approved procedure, which is a fine discussion to have but is irrelevant to the murder charges here). Second, you don’t even have to go crack open Grey’s Anatomy to confirm that the windpipe indeed is not on either “side” of the neck.

              1. “compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck).”

                This is a “sleeper hold”. The PPB in Portland, OR took it out of their training manual a couple of decades ago because a high number of black suspects were getting dead from the practice. It works because if you compress the arteries delivering oxygenated blood to the brain, the brain goes to sleep. Later, some of the PPB’s less-evolved members got in trouble for their custom t-shirts that said “smoke ’em don’t choke ’em”

            2. Indeed, your statement and follow up assumes the spine has a great deal of elasticity and almost no rigidity. Which is decidedly not so. Not to mention the only way for his entire windpipe to be on the ground would be for his head to be facing directly up from his body. Otherwise the muscles of the throat twist and would be between the windpipe, and the knee and ground.

              I’m not countering your position that what was done was wrong, I’m countering only your statement that his knee was on the man’s windpipe.

              1. The knee put force on the man’s windpipe. Perhaps indirectly, but that’s a thing that was happening.

                Life of Brian’s pedantry does not change that.

                Also: if this was an allowable police use of force, that does not make the case *against* reforming the police.

                1. Then say what you mean instead of meaning what you say. You’re better at words than this, I’ve seen you’re repertoire of commentary. I expect more from you.

                  Also, the case for reforming police use of force has long since been proven I think.

                  1. Thank you for the compliment, but it seems to me a distinction without a difference in the issue that we are talking about – the cause connection between the police action and the man’s death.

                    I agree about the case for reform, but the public seemed to only get on board after these protests (and the subsequent police overreactions)

                2. 3ducerist’s understanding of anatomy seems closer to what I was taught than yours. My sense is that you are expressing a degree of certainty that exceeds your knowledge.

        4. Sort of like in Arsenic and Old Lace:

          DOCTOR EINSTEIN: We’ve been chased all over the world, and they stay right here in Brooklyn, and they [murder just as many people] as you do.

          JONATHAN: What ?

          DOCTOR EINSTEIN: Yeah. You got twelve, they got twelve.

          [Jonathan grabs Einstein by the collar.]

          JONATHAN: I’ve got thirteen!

          DOCTOR EINSTEIN: No, Johnny, twelve. Don’t brag.

          JONATHAN: Thirteen.

          [They both starts counting on their fingers.]

          JONATHAN: There’s Mister Spenalzo. Then the first one in London.

          DOCTOR EINSTEIN: Yeah.

          JONATHAN: Two in Johannesburg, one in Sydney, one in Melbourne, two in San Francisco, one in Phoenix, Arizona.

          DOCTOR EINSTEIN: Phoenix ?

          JONATHAN: The filling station.

          DOCTOR EINSTEIN: Filling st… Oh, yes. [He mimes the gesture of one having his throat cut.]

          JONATHAN: Three in Chicago and one in South Bend. That makes thirteen.

          DOCTOR EINSTEIN: You cannot count the one in South Bend. He died of pneumonia.

          JONATHAN: He wouldn’t have died of pneumonia if I hadn’t shot him!

      2. You realize that drug ODs via Fentanyl and other opioid-like drugs don’t instantaneously kill a person, right? That it can still take a small period of time? That’s why Narcan (Naloxone) works. Because there’s time to effectively reverse the overdose.

        1. You also realize someone ODing on that level of opioids is not going to be conscious, right?

          The fact that Floyd was responsive and moving on his own means any level of fentanyl he was one was not a lethal/OD level

          1. Point me to the medical journal pre2019 that says all lethal ODs cause immediate loss of consciousness.

            Man I’m seeing some pretty scary gaps in ..not even medical knowledge but just basic reasoning things through in this thread.

            1. Since we’re talking about medical knowledge, you do realize that people develop tolerances to drugs, right? And a dose that’s lethal to one person might not be to another, right?

              In most cases, when a doctor refers to a “lethal” dose the reference is actually to the LD50 figure–the dosage that is lethal to 50% of the population. That leaves a lot of room for the person to survive a so-called lethal dose.

              Further, from the sources I have, the LD50 in humans for fentanyl is not known. Do you have a source that we can compare to the reported concentration in his blood?

            2. ” I’m seeing some pretty scary gaps in ..not even medical knowledge but just basic reasoning things through in this thread.”

              Of course you’re seeing them. You’re seeing them before you even hit “submit”.

          2. Again, it’s not instantaneous. A lot depends on the route of administration. Let’s say it was oral. Orally administered fentanyl can hit its maximum blood concentration hours after administration. So, he may have been moving, but the level of fentanyl in his system was slowly getting higher and higher and higher as it got absorbed into his blood…

            https://www.clinicaltherapeutics.com/article/S0149-2918(13)00073-8/pdf

            1. I believe it was anal — he admitted to “rimming.”
              That’s even less predictable.

          3. The guy, aside from being a walking pharmacy, had a laundry list of medical problems as long as your arm. It’s somewhat of a medical miracle that he lived long enough to reach the police.

            1. “It’s somewhat of a medical miracle that he lived long enough to reach the police.”

              Bit of a shame that he had a melanin-disorder that caused his interaction with police to be fatal, then.

        2. And, EMS was on scene, and had NARCAN even if the police didn’t…

          Not a good death….A lifetime of horrible life choices by Mr. Floyd..

          But not murder or manslaughter.

      3. So according to Galaxy Brain over here you can scarf down as many death cap mushrooms as you want because if it doesn’t kill you immediately its not lethal.

        1. In much the same way as the classic law school hypothetical, where the guy throws himself off the top of a building but gets shot halfway down.
          Put another way, we’re all dying taking one step closer to that end every day we’re alive. Therefore, killing someone isn’t really killing someone, because they were going to die anyway.

      4. If it caused a massive heart attack, yes it would.

        Cops should have administered Narcan and I’ll grant medical malpractice. But medical malpractice is not murder.

        1. ” medical malpractice is not murder.”

          Depraved indifference is.

      5. there is an allegation that Mr. Floyd swallowed a white substance as he was being arrested. if true, and if it was in part fentanyl, the effect through ingestion would be delayed as compared to intravenous. From a reasonable doubt point of view, not a good case for prosecution if defense can prove something white was swallowed.

        1. Sure, and if he pointed a handgun at his head and pulled the trigger, it could be suicide. If.

      6. Pulmonary Edema — lungs full of fluid — 2-3 times their weight at autopsy.

        Of course he couldn’t breathe — I think the cops badly mishandled this, but stupidity is not murder.

        https://www.fox9.com/news/court-filings-medical-examiner-thought-george-floyd-had-fatal-level-of-fentanyl-in-system

        1. “stupidity is not murder.”

          Depraved indifference is.

      7. And the Pulmonary Edema (lungs full of fluid) had nothing to do with it. He was drowning and that wasn’t an instant death.

        They did request an ambulance Code 3 — where *was* it?

        1. The ambulance was on scene, Floyd actually was alive when placed in it….

    2. I’ve been saying it all along that he may very well have died from self inflicted medical complications and the Dr. Houses on Facebook and other places including here couldn’t take a contrary possibility.

      Not to mention the ‘choking to death without actually choking’ mechanisms social media and sadly doctors with actual degrees jumped on as the definite cause. It really makes you scared to go under the knife when you realize just how many excitable fools with a medical sheepskin there actually are.

      1. He was literally drowning — autopsy says so.

    3. Floyd had more drugs in his system than a pharmacy.

      If you want to engage in an interesting exercise, try to find the autopsy report anywhere on the internet. (Hint – it is not a fool’s errand. You can find it. Just not particularly easy.)

      1. Jimmy, I found it months ago.

        1. Months ago it was easier to find, try to do the same exercise right now.

          1. Well, the Phyllis Schlafly Eagles were kind enough to email me a link to this: https://www.theblaze.com/news/medical-examiner-george-floyd-fentanyl

            1. And this is interesting — BOTH shootings self-defence?
              https://www.theblaze.com/news/video-first-kenosha-victim

              1. The fact that you seem to get all your information from blaze.com explains a lot.

                1. I got the autopsy from the county website.

              2. “And this is interesting — BOTH shootings self-defence?”

                Self-defense or not is the wrong question. The real question is justified or not. Self-defense is often, but not always, considered justified.

      2. Autopsy report is here.

    4. Fentanyl is a medically prescribed drug which has legitimate uses. Having fentanyl present in ones system is not necessarily an indicator of any illegal drug use. There seeme to be, at the very least, significant disagreement whether the amount of fentanyl present was fatal. The jury would need to believe the defense’s experts amd disbelieve the prosecution’s. It’s by no means clear that they will do that, or that they should.

      1. 1. I didn’t say it was illegal. It doesn’t need to be illegal to be lethal.
        2. This was the Hennepin County Medical Examiner’s records. Arguably, they should be on the side of the prosecution. And they said “It was a lethal level of fentanyl”
        3. If you can find any sources that say that the level wasn’t considered a lethal level (Not that it didn’t kill him, that’s different), I’m willing to listen.

        1. This article based on a different toxicology evaluation characterizes the amount of fentanyl as “negligible.”

          https://www.google.com/amp/s/www.nytimes.com/2020/06/25/opinion/george-floyd-toxicology-report-drugs.amp.html

          1. That is pay walled, and I do not have access (and an opinion article, but regardless)

            Care to summarize? Did they say what level of fentanyl was measured in the blood? And why that was a “negligible” level?

            1. The opinion article equivocates on fentanyl.

              It leads with statements that based on the toxicology report drugs “could not have contributed to his death,” and that he had a “negligible amount of drugs in his system.” It discusses the amount of methamphetamine and THC in his system, and states that those amounts were unlikely to cause him to act violently.

              On fentanyl, however, it states:

              “He also had 11 nanograms of fentanyl in his blood. That number, in and of itself, doesn’t tell us much. Immediately after a person dies, the blood concentration of fentanyl increases significantly, so knowing only the post-mortem amount does not tell us about Mr. Floyd’s level of intoxication before his death.

              What’s more, the same amount of fentanyl that produces euphoria in a tolerant user can result in an overdose in a newer user. That’s why, along with the toxicology report, we have to look at Mr. Floyd’s behavior shortly before his death.”

              1. That’s some equivocation…

        2. I believe they said, “potentially fatal.”

          Which means not sure to lethal. As opposed to a knee on the throat for 8 minutes.

          Wow. These threads are getting worse.

          1. These stink of desperation. Even as they say this unrest is making everyone secretly vote Trump, they’re desperate for some kind of narrative showing they’re 100% right.

            Which makes me think their cries about BLM fascism may be ringing hollow even in their own ears.

          2. A knee on the throat is not sure to be lethal. I guarantee I can put a knee on someone’s throat and not kill them. A lot depends on the pressure.

            11 ng/ml Fentanyl though. That’s going to be deadly.

            1. The same minute you posted this response, you posted in response to a quote saying that level of Fentanyl was not obviously deadly.

              1. Now you’re just outright lying. Are you that desperate?

                1. He also had 11 nanograms of fentanyl in his blood. That number, in and of itself, doesn’t tell us much. Immediately after a person dies, the blood concentration of fentanyl increases significantly, so knowing only the post-mortem amount does not tell us about Mr. Floyd’s level of intoxication before his death.

                  What’s more, the same amount of fentanyl that produces euphoria in a tolerant user can result in an overdose in a newer user. That’s why, along with the toxicology report, we have to look at Mr. Floyd’s behavior shortly before his death
                  ….
                  Armchair Lawyer
                  August.27.2020 at 2:48 pm
                  That’s some equivocation…

                  1. Yep, you’re outright lying.

                    What you’ve quoted does not say what you said it did.

                    1. Sarcastr0: ‘…that level of Fentanyl was not obviously deadly’

                      What I quoted ‘…knowing only the post-mortem amount does not tell us about Mr. Floyd’s level of intoxication before his death’

                      Stop saying I’m lying. I may be wrong, but quit it with the bad faith accusations.

                    2. When you make statements such as you did with such certainty, I can only assume you’re lying.

                      If you were in actual doubt as to what was worded, you would write it as a question.

                    3. Anything to say about the quote above?

                    4. Sarcastro,

                      None of this matters. No matter what Floyd was doing, or had done, or had in his bloodstream, these assholes would be making similar claims.

                      There is no point in trying to refute them.

                    5. @bernard11

                      This entire thread is people pointing out the reasonable possibility that drugs may have had a role in Floyd’s death and you guys point blank denying it

                      Please point out the absolute killer argument that definitively shows that drugs had absolutely nothing to do with his death and it was 100% Chauvin’s knee that did it beyond a reasonable doubt. I haven’t seen any coherent argument from you guys.

                      The closest we’ve gotten is this theory that if a drug doesn’t kill instantaneously its not involved in a death at all. Please explain how that works.

                      Ie in a generic situation where a man swallows a deadly drug and then has a weight of random size placed on his neck you say it is virtually certain 100% that the weight killed him every single time. Walk us through how that works.

                    6. ” in a generic situation where a man swallows a deadly drug and then has a weight of random size placed on his neck you say it is virtually certain 100% that the weight killed him every single time. Walk us through how that works.”

                      this is meaningful if telling a drug to stop killing you would be expected to have an effective result. He told the cop that the cop was killing him, and the cop chose to continue. The deadly drug in your hypothesis lacks mens rea. Therefore, the drug didn’t murder him.

                    7. “Yep, you’re outright lying. ”

                      By using your exact words? That’s a neat trick.

        3. ” Arguably, they should be on the side of the prosecution.”

          Absolutely. Cops and prosecutors are known to be particularly vigilant when investigating cops as defendants.

      2. You’d better have a script if you are going to argue it was legal.

    5. You keep flailing, Armchair Lawyer.

      I like my political opponents flailing.

      Oh . . . and open wider.

    6. I don’t understand the nature of this claim.

      The lethal level of fentanyl depends on one’s tolerance. The more a person uses fentanyl or other opioids, the higher one’s tolerance. What would be a lethal does to a non-user may not be a lethal dose to a user. And users each have their own level of tolerance.

      So, is this claim specific to George Floyd, taking into account his specific tolerance?

      And if this is true, why did the Hennepin County Medical Examiner rule the cause of death to be a homicide? Did they not measure the fentanyl is his body? Did they not understand that it was a lethal dose to him?

      1. “The lethal level of fentanyl depends on one’s tolerance.”
        -To an extent. You can’t have infinite tolerance.

        “So, is this claim specific to George Floyd, taking into account his specific tolerance?”
        It’s unclear if it’s specific to his tolerance (and it’s difficult to know that absolutely ahead of time).

        What the Medical examiner said, what that Fentanyl OD’s have been certified with blood concentrations of 3 ng/mL. Floyd had 11 ng/mL of fentanyl in his system. “That is a fatal level of fentanyl under normal circumstances.”

        1. If you’re interested further, here’s a series of case reports out of Yale on Fentanyl overdoses among multiple patients, where people had fentanyl levels of 0.5 ng/ml up to 13 ng/ml.

          What you observe is the two patients with high fentanyl levels (11 ng/ml, 13 ng/ml) died en route to the hospital. The one at 9.5 ng/ml died in intensive care. Only at 4.6 ng/ml and under did the patients survive, while getting treatment.

          https://www.cdc.gov/mmwr/volumes/66/wr/mm6604a4.htm#T1_down

          1. This is basally jet fuel can’t melt steel beams levels of Internet sleuthing now.

            1. Jet fuel can’t. And didn’t.

              What it can do — and did do — is weaken a truss.
              If the steel beams had melted, the buildings would have gone sideways like a tree being cut down. They didn’t.

              1. You got it Doc. Increased heat lowers the Yield Strength of steel. That reduces it’s ability to withstand loading. You get it hot enough it can’t handle the load that is on it and the building collapses. That’s why many of the beams were bent, not, sheared.

            2. Just because you don’t understand toxicology Sarcastro doesn’t mean that other people don’t.

              This mockery of science is something I wouldn’t expect out of you.

              1. Toxicology, epidemiology. The amount of medical expertise found in these threads from the likes of A.L., Dr. Ed, and others is truly amazing.

                Should be required reading for medical students, I’d say.

        2. He also had a precursor that is often a contaminant of homemade fentanyl — so you don’t know what else might have contaminated it.

          1. George Floyd Autopsy:
            Blood drug and novel psychoactive substances screens:

            1: Fentanyl 11 ng/mL
            2: Norfentanyl 5.6 ng/mL
            3: 4-ANPP 0.65 ng/mL
            4: Methamphetamine 19 ng/mL
            5: 11-Hydroxy Delta-9 THC 1.2 ng/mL; Delta-9 Carboxy THC 42 ng/mL; Delta-9 THC 2.9 ng/mL

            The last line are the psychoactive compounds of Marijuana. 4-ANPP is a Fentanyl precursor which becomes a contaminant if the Fentanyl is poorly made — which raises the question of what else it might have been contaminated with.
            And mixing drugs, particularly an opiate (Fentanyl) and a stimulant (Meth) is worse than either one individually, and I doubt that Marijuana helped much.

            Fentanyl can cause hallucinations, Meth is particularly notorious for doing that.

            The full autopsy — at the county’s website:
            https://www.hennepin.us/-/media/hennepinus/residents/public-safety/documents/Autopsy_2020-3700_Floyd.pdf

            1. “Fentanyl can cause hallucinations, Meth is particularly notorious for doing that.”

              So he hallucinated that cop kneeling on him until he died, is your working theory?

        3. Armchair — more interesting is the Pulmonary Edema, aka lungs full of fluid. Remember the “I can’t breathe”? Well, he couldn’t….

        4. Armchair – — more interesting is the Pulmonary Edema, aka lungs full of fluid. Remember the “I can’t breathe”? Well, he couldn’t….

      2. The problem with opiate addictions is that tolerance increases while LD remains constant. Hence the addict gets closer and closer to the LD.

    7. Hopefully a jury will get the chance to make that decision.

    8. The “eggshell skull” rule. It’s still murder.

      1. That only applies with regards to the police actions. This could be argued to be an intervening event.

        Also quite a few people have a strange idea of the likely cause for his high fentanyl levels at death. If this report is true he likely ingested them during the arrest to avoid a drug charge.

        1. What “Strange idea” are you referring to?

          1. That he would have OD’d earlier/right away.

            If he popped them orally when he first saw cops, an OD would happen 10-30 minutes later.

            1. Yep. Possibly even later.

      2. The “eggshell skull” rule. It’s still murder.

        On the other hand there’s also the “crumbling skull” rule, where the victim had a condition that predated the defendant’s action and would have naturally deteriorated or worsened over time (e.g. a crumbling skull). In that case the defendant is not responsible to the degree that the condition or injury would have naturally worsened over time.

        1. That argument usually relies on speculation. Also there’s no stopping point. A 90-year-old man with a heart condition gets run over by a car. “He only had a year to live anyway!” Good luck selling that to a jury.

    9. This decreases the likelihood of a conviction.

      1. I’d agree.

      2. I don’t know if this author is full of shit or not, but his argument is interesting.

        https://spectator.org/george-floyd-police-training-minneapolis/

        He is basically saying that Chauvin et al followed standard procedure for dealing with someone in a state of drug-induced “excited delirium”. When you look at the transcripts, it really doesn’t sound like they were trying to kill him — they even raised the code level on the ambulance call (i.e. requested faster response) when they realized he was under the influence, as opposed to just bleeding from a minor cut.

        1. Fentanyl can cause delusions — Meth is notorious for it.

          1. “Fentanyl can cause delusions — Meth is notorious for it.”

            He didn’t hallucinate that a cop was holding him down. That was real

        2. Obviously the defense lawyers will argue that the alleged ordinariness of the procedure, combined with the victim’s alleged pre-existing conditions/drug consumption, vitiates the similar elements of the third-degree depraved heart murder and second-degree felony murder (special danger to human life).

          1. Likely. Given this past report, they may up it to “He was actively undergoing a drug overdose”

      3. I’d say the likelihood of a conviction is still 100%.

    10. If I were a jury member, I could say that it’s entirely forseeable that putting a knee on someone’s neck for nine minutes may kill them, whether or not there was fentanyl in his system. I could also say that it is absolutely, positively unacceptable for a police officer to keep his knee on the neck of someone who has stopped resisting. And so even if he had high levels of fentanyl in his system, I’m not particularly inclined to give a break to a police officer who engaged in absolutely unacceptable behavior that resulted in someone being dead.

      And it’s amazing to me that anyone would find any of that a difficult concept.

      1. “And it’s amazing to me that anyone would find any of that a difficult concept.”

        We’re talking about jurors.

        1. True. And it only takes one.

      2. I remember reading that the knee on the neck was an authorized restraint by the police department.

        1. Is it authorized even on a person who is claiming that he can’t breath?

          1. This might surprise you, but criminal lie….

            1. If a person in custody says that he can’t breathe are the police justified in ignoring that because people sometimes lie?

            2. Then they get other people to lie for them.

            3. ” I unequivocally condemn Syracuse University for punishing faculty expression of viewpoints that in context are clearly condemnation of a country and its rulers—China and its Communist Party—and not of an ethnic group.”
              “This might surprise you, but criminal lie….”

              But Law Enforcement officers NEVER do.

      3. Ladies and gentlemen of the jury, as you see from this powerpoint slide, this is what these officers were taught to do.

      4. I find the whole fentanyl defense weak, although it may be developed more by experts at trial. We will see.

        But the issue here is not giving the defendant a “break,” no matter what you feel about him. The issue is that the State has to prove all elements of the crime beyond a reasonable doubt. And one undoubted elements of murder (or any homicide) is that the defendant’s actions caused the victim’s death. If there is any reasonable doubt about why he died, then the jury is duty bound to acquit.

        Even if the jury thinks that the victim probably died because of the actions of the defendant, but there is reasonable doubt he did not. They must then acquit.

        1. Jurors contemplating voting to acquit may also be mindful that such an action will be termed an instance of systemic racism by many. They may wonder what will be in store for them and their property if their identities were disclosed to the public, and such thoughts could conceivably impact their evaluation of reasonable doubt.

          1. If that is the case, then we are in deep trouble.

          2. So even a jury verdict is unacceptable in the light of what the usual commenters claim to know.

            IOW, you think what you think, and absolutely nothing would change your mind.

    11. I went and looked at the actual docs (you can find them here: http://www.mncourts.gov/Media/StateofMinnesotavTouThao.aspx )

      A few things worth considering:

      1) The exact phrasing from the interview with the medical examiner was:

      “Fentanyl at 11 ng/ml–this is higher than a chronic pain patient. If he were found dead at home alone and no other apparent causes, this could be acceptable to call an OD. Deaths have been certified with levels of 3.

      I am not saying this killed him.”

      So, importantly–the ME says that it’s enough that it could kill some people, but not that it was the case here.

      2) Ultimately, this same person ruled that the death was a homicide, so did not think that the Fentanyl was the proximate cause of death in this case.

      3) The DOJ also asked the Armed Forces Medical Examiner System to review the autopsy and this was their conclusion:

      “The Office of the Armed Forces Medical Examiner agrees with the autopsy findings and the cause of death certification of George Floyd as determined by the Hennepin County Medical Examiner’s Office. His death was caused by the police subdual and restraint in the setting of severe hypertensive atherosclerotic cardiovascular disease, and methamphetamine and fentanyl intoxication. The subdual and restraint had elements of positional and mechanical asphyxiation. The presence of sickle cell trait is a significant finding in this context.

      We concur with the reported manner of death of homicide.”

      So, to come back to the original question: with multiple experts concluding that it was a homicide and that the cause of death was not a Fentanyl OD, and with the “eggshell skull” rule, I don’t think this information would be likely to change my vote as a juror. It doesn’t really make sense to consider the Fentanyl findings in isolation from the overall medical analysis about cause of death.

      1. Ultimately the ME HAS to rule that it’s a homicide, in order for a case to be brought. And under this situation, with this public pressure, there’s no doubt the ME was going to do it, absent completely 100% evidence to the contrary. They’ll throw it to the jury.

        Now, if the defense gets the ME on the stand, a couple questions are critical here.

        1. Would you call 11 ng/mL of Fentanyl lethal overdose levels of Fentanyl
        2. In your experience, how long to patients with these level of Fentanyl live?
        3. What are the symptoms of this level?
        4. Is it possible that at the time of Floyd’s arrest, he was actively undergoing a lethal drug overdose?

        Now, the “eggshell skull” is really a strawman argument. People live with eggshell skulls all the time.

        The better analogy is someone who just ingested a lethal dose of cyanide. They they get into a fistfight. You punch them in the face, they fall to the ground, and die.

        What caused their death? Your punch? Or the cyanide?

        1. To put this 11 ng/mL in context, here’s a study of 18 OD cases in Florida where the AVERAGE Fentanyl levels in the bloodstream was 52.9 ng/mL. Only one of the 18 people died:

          http://uthscsa.edu/artt/AddictionJC/2020-02-11-Sutter.pdf

          11 ng/mL is not necessarily a fatal dose. The ME did not say that and does not think that. the AFMES does not think that, and the actual experiences of humans with much higher concentrations of Fentanyl does not support it.

          1. You do realize that every subject in your study was almost immediately dosed with naloxone to counter the effects of Fentanyl, right? And that’s the reason they’re alive?

            1. I mean, your argument is like saying “Look Cobra Bites aren’t deadly at all” then only citing a study where every patient was treated with the antivenom.

            2. Incorrect. 17 of 18 did receive nalaxone (and the one that did not is not the one that died), but the “almost immediately claim” is completely spurious. It’s not clear any of these people received nalaxone before reaching the hospital whereas your claim is that Floyd would have necessarily died from a Fentanyl overdose at the scene.

              Obviously, 11 ng/mL is enough Fentanyl to kill some people. (As the ME noted, some people die with blood concentrations as low as 3 ng/mL.). But it does seem like anyone except for people with a political axe to grind think that it’s necessarily a fatal dose and almost certainly wasn’t the thing that actually killed Floyd even if it might have eventually.

              1. The one that did not die wasn’t shown to have any measured levels fentanyl in his system. No sample obtained. So it’s not necessarily surprising he survived without naloxone… Seriously. It’s right there.

                It’s not a political axe to grind… Multiple studies show it’s dead in the range where you see deaths due to overdoses. Over and over and over again. A “political axe to grind” is using a study that shows high fentanyl concentrations to show people survive but ignoring the fact they were all given the antidote. Seriously!?!

                https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6609322/

                1. Once again: I agree it is in the range in which people die. It is also in the range in which people don’t die. The ME and the AFMES don’t think that’s why he died. To get back to the original question, I think most jurors will be persuaded by the conclusions of the ME and that the ME won’t have a hard time helping the jury understand things that COULD cause someone to die versus something that DID cause the person to die.

                  1. “It is also in the range in which people don’t die.”

                    That’s incorrect. You would need to show proof that people regularly attain blood levels of 11 ng/ml fentanyl without death (Or the antidote) in order to prove that it’s the range people “don’t die” at.

                    Do you have that evidence? I’m willing to look if you do.

                    1. Sure, here’s a study that measured postmortem levels of Fentanyl in a bunch of people who were using it for pain management but died from something else:

                      https://academic.oup.com/jat/article-pdf/36/3/182/2641338/bks005.pdf

                      It documents a bunch of cases with concentrations >11 and in one case as high as 78.64.

                    2. You may have overlooked this arguably relevant bit in the abstract of your paper:

                      Basically, blood concentrations in post mortem specimens cannot be directly compared with in vivo serum levels: in our study, we observed that postmortem fentanyl blood concentrations were on average up to nine times higher than in vivo serum levels at the same dose.

                      The study also measured blood levels of people using Fentanyl for pain management who were still alive. Those topped out at less than 4 ng/ml (and about half had undetectable levels):

                      Fentanyl concentrations in vivo
                      For 14 cases, the fentanyl concentration was below LOD (TableV). The concentrations of the remaining 13 cases ranged from 1.06 to 3.64ug/L; more than 80% of the cases had concentrations below 2ug/L.

                    3. Life of Brian points out the relevant data.

                      For patients who were still alive….

                      The study also measured blood levels of people using Fentanyl for pain management who were still alive. Those topped out at less than 4 ng/ml (and about half had undetectable levels):

                      Fentanyl concentrations in vivo
                      For 14 cases, the fentanyl concentration was below LOD (TableV). The concentrations of the remaining 13 cases ranged from 1.06 to 3.64ug/L; more than 80% of the cases had concentrations below 2ug/L.

                    4. https://reason.com/2020/08/27/thursday-open-thread-6/#comment-8427421

                      Immediately after a person dies, the blood concentration of fentanyl increases significantly.

                    5. Life of Brian, I didn’t overlook that. I also didn’t overlook this in the BIG BOLD LETTERS at the start of the paper:

                      “Basically, blood concentrations in postmortem specimens cannot be directly compared with in vivo serum levels: in our study, we observed that postmortem fentanyl blood concentrations were on average up to nine times higher than in vivo serum levels at the same dose.”

                      The relevant comparison cohort is the postmortem samples.

                      Even if they were comparable, what’s your theory? That in addition to the Hennepin County ME getting Floyd’s cause of death wrong, and the AFMES getting the cause of death wrong, that a bunch of doctors in the UK who had no interest in the George Floyd case also got the causes of death wrong with these autopsies and can’t tell the difference between someone ODing on Fentanyl or dying from cancer?

                    6. Oops, those doctors were in Germany not the UK (got briefly confused by the publisher.)

                    7. The relevant comparison cohort is the postmortem samples.

                      Um, ok. The thread speaks for itself, but I’m going to recap it anyway since it’s a Friday:

                      1. AL invited you to provide “proof that people regularly attain blood levels of 11 ng/ml fentanyl without death (Or the antidote) in order to prove that it’s the range people “don’t die” at.”

                      2. You said “sure” and posted your paper, noting that “[i]t documents a bunch of cases with concentrations >11.”

                      If you now want to say the paper proves a different point, have at it. But it doesn’t at all say what you assured us it did.

                    8. Life of Brian–The paper clearly shows that people regularly reach levels of >11 ng/mL without dying FROM A FENTANYL OVERDOSE which is the only thing that matters here.

                      Like you say, people can draw whatever conclusions they want from the thread at this point, but I think it’s plenty clear that while some people will die from the level of Fentanyl in Floyd’s system, others will not. Further, none of the actual experts who have looked at this particular case think that’s what killed him. I see no reason to mistrust those findings based on this discussion, and I suspect a jury will not either.

                    9. The paper clearly shows that people regularly reach levels of >11 ng/mL without dying FROM A FENTANYL OVERDOSE which is the only thing that matters here.

                      I quoted directly from the paper where it gave actual numbers for the in vivo cohort, and 80% had less than 2ng/ml — nearly an order of magnitude below what you’re saying.

                      If you feel there are dramatically different numbers elsewhere, post ’em up so we can all read them, and we can take it from there. But your characterizations of the paper have been dead wrong so far.

                    10. This back and forth is pretty pointless by now, so this will be my last post on the topic.

                      Yes, you quoted directly from the paper while completely ignoring that the authors of that paper clearly stated that you can’t compare in vivo and postmortem levels of Fentanyl in the blood. I guess you think they didn’t really mean that and that the comparison is somehow meaningful, but I’m going to defer to their scientific expertise, especially since Sacrast0 has also posted a link that explains WHY the comparison isn’t meaningful.

                      Even if the comparison was meaningful, all that you’re showing is that people that have lower levels of Fentanyl in their blood don’t die. It doesn’t tell us anything about whether or not they would live with higher Fentantyl concentrations in the blood.

                      What we do know is that lots of people who had similar postmortem levels of Fentanyl in their blood to Floyd did not die from the Fentanyl and therefore the level of Fentanyl in the bloodstream does not in any way contradict the ME’s finding that it was a homicide caused by Chauvin holding him prone and kneeling on his kneck.

        2. Or suffocating — the Pulmonary Edema is not insignificant — and I am not familiar with it being a consequence of an OD, but apparently it is. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6474474/

          He also was recovering from COVID — that may have been a factor.

        3. “1. Would you call 11 ng/mL of Fentanyl lethal overdose levels of Fentanyl”

          In a dead guy? Maybe. In a guy talking the police? Probably not.

          “2. In your experience, how long to patients with these level of Fentanyl live?”

          With a cop asphyxiating them? Maybe nine minutes or so.

          “3. What are the symptoms of this level?”

          YMMV.

          “4. Is it possible that at the time of Floyd’s arrest, he was actively undergoing a lethal drug overdose?”

          No. A lethal overdose causes death. Mr. Floyd was not dying at the time of arrest. He was sufficiently alive that forcibly restraining him seemed like a good idea.

      2. I read that the sickle cell was only after death, and a common thing.

        1. According to the Armed Forces Medical Examiner, “The presence of sickle cell trait is a significant finding in this context.”

        2. It’s a common thing in people with sickle cell anemia, IIRC: It’s not like all your red blood cells are in that state all the time. But I seem to recall that hypoxia will convert them to it. Kind of a nasty cycle, since the sickling itself induces hypoxia.

          You won’t find sickling in people without sickle cell anemia, even with hypoxia.

          Since dying generally does involve hypoxia at some point, if you’ve got sickle cell anemia you’re going to see a lot of sickled cells in your blood after death.

          I don’t recall how fast it happens, but I’m pretty sure that any hypoxia inducing hold is going to cause it in somebody with the disorder. The guy was predisposed to die if he got that hold applied.

    12. “it turns out George Floyd had a lethal level of fentanyl in his system when he died.”

      any level of fentanyl, including zero fentanyl, is fatal when you die.

    13. I assume Minn has something similar to Tex Penal Code 6.04 discussing causation and result: “A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” Question for the trier of fact.

      1. Sounds about right. Thank you for the cite.

        1. It would, however, be enough to rule out murder 1. (which is what they charged the officer with.) Good chance he gets acquitted, though a manslaughter charge would probably have resulted in a conviction.

          Overcharging him will probably set him free.

          1. Chauvin is charged with the following crimes:
            – Third degree murder
            – Second degree manslaughter
            – Second degree unintentional felony murder
            – Third degree assault

            So not only is he not charged with first degree murder, but the jury will have the option to convict on manslaughter if they think that’s appropriate. They could also just theoretically convict on the assault charge and then go with felony murder.

            1. Thanks for the clarification. Given the public information I might go as far as unintentional felony murder, myself. I can’t see how you get to an assault charge given that he was apparently following training, and as a cop actually is legally entitled to restrain people under appropriate circumstances.

              1. You need the assault charge to get to the felony murder charge. (If there’s no felony there’s no felony murder.) I agree that the assault charge is a bit odd, but it’s probably just a backdoor to get a murder charge to stick versus manslaughter if the jury thinks that Chauvin did something wrong but didn’t actually mean to kill him.

                It will be interesting to see how the prosecution ends up arguing it when the trial comes around.

    14. Yes, no one can hold his breath for 9 minutes.

    15. Morally, Chauvin killed Floyd. He should have gotten him upright (to assist his breathing) and cops are trained to recognize opiate overdose and many carry narcan.

      But, the neck hold that Chauvin used was taught to members of the MSP at the academy, was authorized by the MSP in their operations manual, and so charging Chauvin with murder? Nope.

      Floyd had an entire life’s worth of very, incredibly, horribly not very good bad life choices…. And those life choices led to China killing him.

      1. Yeah, there are some people going deep into some silly factual stuff.

        But my concern – and the concern of BLM – is reform of the system more than the individual officer. Though the officer has become symbolic so things are a bit tricky.

        1. Silly counterfactual stuff that is.

  2. I’ll repost from the Charles Evans Hughes thread…

    What does US History look like if he defeats Wilson in 1916?

    1. I’m not sure much different.

      The big question there is the US entrance into WWI. But Hughes supported the US entrance in, and basically demanded that the US enter the war. So, that likely would’ve happened regardless.

      As for the League of Nations, it ended up not working. So if it never existed, would there be a big difference? And the US never entered regardless

      1. One question is the extent to which Germany would have been punished in the way it was or if a policy of reconciliation would have been sought, which might possibly have avoided Hitler and WWII. Perhaps it would have been, perhaps not. One can speculate.

        1. A lot of that punishment was coming out of the UK and France. Wilson thought the Treaty of Versailles was too harsh already, and tried to moderate it. I don’t think Hughes could have moderated the treaty any better than Wilson did.

    2. 1. The U.S. still enters WW 1.
      2. Because Hughes was not as well versed in European affairs as Wilson, he would have let the others control the Versailles conference. The other Powers at the conference would have pressed on him the League of Nations idea and he would have gone along with it.
      3. Republicans would have gone along with the League of Nations simply because it was a Republican President proposing it (sound familiar?).
      4. With the U.S. in the League, Hitler gets contained. They might let him get his “Greater Germany” (ending with the seizure of Memel in 1939) but not an inch further.
      5. No WW 2. The League similarly contains Japan.
      6. Hitler’s dictatorship is unsustaintable and he either gets overthrown or reduced to a figurehead. Jews are let back into the Reich, and the League of Nations cooperates in developing nuclear power.
      7. Due to astute lobbying, Lyndon Johnson gets the world’s nuclear power program complex put in south Texas.
      8. Due to huge local endowments the South Texas College of Law attracts politicians and think tanks from all over and becomes as visible as Yale or Harvard.
      7. Josh Blackman gets appointed to the Supreme Court in 2035.

      1. And what about me getting a pink pony? I mean, so long as we are fantasizing.

      2. The only “League” that would have been able to contain Imperial Japan was the Justice League.

        1. With Germany on its side, the western powers would have had little trouble reclaiming China.

    3. The 17th amendment would not have passed.

      1. And Rand Paul would then still be a Kentucky eye doctor. The other 99 Senators would be the same people as now.

  3. Can we talk about the Sandmann case, because as far as I can tell no one talked about the opinion that led up to the settlement. To review what happened in that case:

    1. In July 2019, the judge dismissed the complaint, inter alia, because Phillips’s statement that he felt Sandmann was blocking him was opinion. I can’t post links but you can find the opinion online and it was well-reasoned and not surprising at all. Everyone talked about this opinion. What they didn’t talk about is what happened next.

    2. Then, Sandmann asked to amend his complaint. There was an oral argument on 10/16/19, and the judge allowed the amendment. In the very short 10/28/19 opinion allowing the amendment, the judge added verbiage implying that Phillips’s statement that he felt Sandmann was blocking could have been defamatory, and that discovery would be required to see if it was, because e.g. of Phillips’s history. Again, I can’t post links but you can find them on PACER. Case 19-cv-00019-WOB-CJS E.D.Kentucky.

    I don’t understand that second opinion at all. I read the entire 50+ page oral argument, and my impression was that basically, the judge kept saying over and over again that thinking someone is blocking you is an opinion, and Sandmann’s lawyer would come back by restating the same thing over and over. I guess he just wore the judge down.

    Why didn’t that 10/28/19 opinion, which was essentially treated as the judge’s denial of Washington Post’s motion to dismiss – reversing his prior grant of that motion to dismiss — why wasn’t that given any discussion here, or really anywhere as far as I can tell? I think it should have been criticized.

    My impression of whole Sandmann case is that it is the perfect example of white privilege. If you’re a young white kid, you get to sue a newspaper for reporting that someone thought you were blocking them. That’s the status white people have in certain parts of the country, including apparently in Kentucky where this case occurred.

    1. Let me try to post the three links

      1. Original dismissal: www dot reason dot com/2019/07/27/judge-rejects-nicholas-sandmanns-claim-against-washington-post/

      2. 10/16/19 oral argument: www dot bit dot ly/3lmtNBZ

      3. 10/28/19 opinion: www dot bit dot ly/31CQvOx

      (replace “dot” with a period)

      1. Okay lets do a switch. The Left gets to sue in similar situations where conservative outlets clearly are out to egg on and target violence toward completely innocent people and the Right gets to riot and destroy and commit any crimes they want in any situation regardless of circumstances, even a supposedly world ending pandemic and the media worships them for it.

        Deal?

        1. This is the state of current conservative discourse in a nutshell.

          Someone: “Hmm, this legal decision involving a conservative kid seems questionable to me. What do other people think?”
          Conservatives: “Something about the media and riots!”

          1. I don’t mind the kid getting some redemption, and I’m guessing that’s why everyone settled. He was just a kid and didn’t deserve all that, but I don’t see how that opinion can be good law.

            1. His real complaint is that he looked goofy in the one still image that circulated near-endlessly on the Internet. “Hey this kid looks goofy” is not defamation.

              1. But weeks of “this goofy looking kid was a bigot who did X and Y” are, if X and Y are false.

                IMO, the WaPo’s mistake was waiting weeks before issuing a correction, (And then it wasn’t very comprehensive.) even though they’d have had the evidence that their story was materially wrong within hours. It’s that unconscionable wait that screwed up their defense.

                1. That had nothing to do with anything. I linked the opinions but I’ll excerpt here.

                  In his original opinion dismissing the case, the judge wrote:

                  “The court accepts Sandmann’s statement that, when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation and not impede or block anyone,” the judge wrote in July.

                  “However, Phillips did not see it that way. He concluded that he was being ‘blocked’ and not allowed to ‘retreat.’ He passed these conclusions on to The Post. They may have been erroneous, but . . . they are opinion protected by the First Amendment. And The Post is not liable for publishing these opinions.”

                  * * *

                  Then there was the oral argument that I described above, and the worn down judge wrote a very brief opinion — that cited to no case law — concluding “‘justice requires’ that discovery be had regarding these statements and their context,”

                  I don’t follow it but again — if you’re a reporter reporting on a white kid from Kentucky, don’t just report what a person like Phillips said about the kid. They have a special white privileged form of first amendment law (that only applies when you talk about them, not when they talk about others) under which when their feelings are hurt because you factually reported what someone said, they get to sue you for defamation. It’s mind boggling and I really wish first amendment scholars would have analyzed the opinion.

    2. Or it is an example of how so-called “white privilege” is a figment of the left’s imaginations. In a society where you supposed have privilege because of your race you don’t get trashed in the media with unfair and complete inaccurate accusations of racism, by every major network, in a lynch mob style mentality.

      And just a reminder, the only reason media outlets got sued by Sandmann (and are presumably willing to settle) is that they are 100% responsible for creating the positions which exposed them to the liability. Had they either fairly reported or bothered to investigate the full incident it probably would have just been a blip on the national news circuit.

      1. OK. Got it. When white people in Kentucky sue, their subjective, privileged and entitled feeling of being unjustly treated must override all else, including settled case law IMHO.

        Got that newspapers? You have a very heightened standard of defamation law when reporting on white kids from Kentucky. The first amendment be damned.

        1. ” When white people in Kentucky sue, their subjective, privileged and entitled feeling of being unjustly treated must override all else, including settled case law IMHO.”

          Just like black rioters, murderers, and looters!

          Equality!

        2. “Got that newspapers? ”

          One of the whitest men in America owns the WaPo. His “privilege” outweighs some kid’s.

          1. ” His ‘privilege’ outweighs some kid’s.”

            Freedom of the press is listed right in the first amendment. You’re free to launch your own.

        3. AMG you don’t get it. The commentary section to this ostensible legal blog never discusses actual legal issues. It is all about shoehorning whatever topic is brought up into the commenter’s preconceived narrative. And a lot of ad hominem attacks and personal insults thrown in.

      2. “Or it is an example of how so-called “white privilege” is a figment of the left’s imaginations.”

        Why is it about this blog that attracts so many old-timey bigots?

        (Other than being a remarkably white, strikingly male, movement conservative blog that is a mouthpiece for the current iteration of the Republican-conservative electoral coalition.)

        Hiring committees at strong law schools are likely smart enough to understand.

        1. This does little to dispell the notion that it is impossible to argue someone has “white privilege” when they are routinely targeted (sometimes fairly and others time not) primarily because of their race and suffer negative consequences for exposed actions.

      3. “Or it is an example of how so-called ‘white privilege’ is a figment of the left’s imaginations.”

        No, it’s real. “Driving while white” isn’t a thing, but DWB sure is.

        1. You can’t reason with bigotry, superstition, or belligerent ignorance, James.

          You can — and should — continue to win the battle for America’s future with reason, inclusiveness, education, and science. This means shaping our progress against the preferences and efforts of conservatives.

        2. You should try that DWW thing in certain parts of Chicago or some other Democrat progressive shithole.

          1. A lot of black cops needlessly pulling over white drivers in certain parts of Chicago?

            1. The bigots are reduced to flailing.

              Maybe it’s time for their betters to stop being so lenient.

            2. Hahahahaha. What in the world?

  4. Here’s a fun extracurricular activity for you kids…

    Go to Google ngram viewer. Set it to…say 1980 to 2019. And enter in the follow words or phrases. You may or may not need to surround phrases with quotes to get them to work.

    cisgender
    white fragility
    latinx
    white supremacist
    hate speech
    LGBT
    LGBTQ
    trigger warning
    toxic masculinity
    safe space
    misogyny
    cultural appropriation

    Continue entering in similarly themed words and phrases to see the interesting patterns that emerge.

    for control words and phrases you can use for example
    dog
    computer
    information superhighway
    harry potter
    etc etc

    1. Why is this a fun activity and what is it you think is interesting about this?

      1. Guys like AmosArch miss the days when gays were smacked around in alleys — often by police — and nobody wrote much about the bigotry.

        Guys like AmosArch are upset because neighbors and society no longer look the other way when men use their hands to correct a woman who forgets her place.

        Guys like AmosArch — Republicans — remember fondly the days when a black man knew to lower his gaze in the company of a white woman.

        Our vestigial bigots no longer are comfortable being known and labeled as bigots, at least not in public. This element of our nation’s liberal-libertarian progress angers conservatives.

        1. Being required to remain civil by current standards causes them rage, (RAGE!) and is not to be tolerated. They’ll murder over it.

          1. Mostly, they’ll get relegated to cultural and political irrelevance by better people.

      1. Cool, now do “ISP” and “broadband”.

  5. So I have 2 questions about the orders of Governor Cuomo (and other governors) staying eviction proceedings.
    1. How can the governor interfere with private contracts? I understand he can extend statutory deadlines, etc., but what gives the executive the right to nullify a duly executed contract between parties?
    2. Are these orders a violation of the Takings Clause?

    1. I suppose ‘the law’ doesn’t allow a property owner to compel a tenant to vacate, only ask nicely, and so you need a Sheriff or some other government actor to do an eviction of a tenant unwilling to voluntarily vacate.

      The Governor orders didn’t say ‘property owners cannot evict tenants’ but rather is forbidding government actors from participating in evictions, effectively preventing them.

      The usual legal sophistry for government bad actors to do whatever the **** they want to do while getting to claim “see the law says I can”

      1. Hmmmm, but you can pretty easily change the locks or hire private security to move trespassers off your private property.

    2. What these extended eviction bans are doing is creating a dangerous situation (which might be the point.) Many tenants have just stopped pay rent even if they still have jobs and can pay it in full without a problem. In fact, some legal services attorneys are now advising their clients to not pay rent as landlords are going to be forced to negotiate.

      In the short term, landlords can take the loss. Most actually build that into their business plans and expect to not collect a few months of rent every few years. But you can’t just keep on extending the eviction bans without having that economic impact resonate throughout the system.

      Around here, landlords are delaying maintenance and cutting costs. That means properties are starting to show wear. Lawns and yards are not being maintained. Necessary repairs are also being deferred. Private landlords are now skipping mortgage payments so the banks are going to start feeling it. The build up is basically getting close to 2008 again. This could get really bad.

      1. The solution may be that Trump’s bungling of the pandemic — with the consequent economic devastation — ends in January.

        1. Kirkland, out of sheer morbid curiosity, what, exactly, would you have Joe BiteMe do here?

          1. Biden will fix everything because he is not Trump. It is that simple. We all know that. Elect Biden and ALL problems will be magically fixed.

            1. the national mask mandate will save us all. even though the California mask mandate still left California leading the nation in cases.

              1. Yeah, because they have the highest population. When expressed as cases per 100,000 people, they are 21st. Let’s hear it for masks.

        2. “Trump’s bungling of the pandemic”, as demonstrated by the choices of state and local Democratic leaders.

          1. The remarkable part of these expressions of support for Trump isn’t the content — it’s that these folks can speak or write at all with their tongues so firmly affixed to Trump’s scrotum.

            1. Does as much raw sewage spew from your mouth as spews from your fingers?

        3. But the Democrats wanted Trump to crush the economy even more, with strong national action. We’re lucky it survived at all.

      2. “Many tenants have just stopped pay rent even if they still have jobs and can pay it in full without a problem.”

        But they won’t be able to pay it as one lump sum.

        And then there’s going to be Mafia evictions — the use of extra-legal violence to encourage tenant departure.

        1. That is the problem. These tenants, even the ones fully able to pay rent, are not putting this money into their savings account. Many are adding it to their discretionary spending or using it to service other debts. If the time comes where a lump sum is demanded they won’t have the cash to actually pay it.

          Also, adding to the problem is that many tenants are simply overstaying their leases at this point. When the sheriff eventually comes they will just move out probably to another apartment rented at a much lower rate (since the rental markets in most areas is tanking) leaving no leverage for the landlord to ever collect.

          This is going to create a gross amount of bad debt in the system and no one is going to want to be liable for it. Then what happens is the banks have to write it down and that is how you get 2008 again.

        2. As the son of parents who were landlords, some of which was downscale, what you do is turn off their hot water. If they know what they are doing, and can relite the pilot light, then a tiny piece of paper in the gas line prevents this. When they move out, and almost all do when there is no hot water, you remove the tiny scrap of paper.

          1. That’s actually a serious criminal offense in Massachusetts.

            1. Chances of getting caught? Virtually nil. I wouldn’t do it to somebody, say, who worked in the construction business. Note, they don’t call to complain about no hot water when they are 4 months behind on the rent. If they are smart, they talk to a neighbor who is caught up and who has hot water, and they figure something is going down.

              Note, this is in extreme cases, because they are liable to trash the place before they leave and not give a shit about a good reference. It’s usually easier to take them to court for an eviction.

              1. No, they sleep with some guy who claims to be a plumber or electrician and he makes a big mess. I’ve seen it done — you don’t want to know how one guy wired a drier, I still cringe.

                I was a Sect 8 Inspector and saw a lot of this…

                I’m not exactly sure where you put the paper, but do you really want someone who doesn’t know what he is doing screwing around with gas fittings? That often doesn’t end well…

                1. Or you have a fire and the Fire Marshal takes apart the whole assembly and finds your piece of paper. I’d want a good lawyer….

                  1. You put in the thermalcouple.

                    Your parade of horribles are remarkably stupid. You worry about mafia style evictions, and I comment about a quite easy way to take care of someone who is going to extraordinary lengths to not get served with an eviction notice that, trust me, others have done before my parents did, and you’re panties are in a bunch. Lighten up.

                    And there is a reason, after just a few bad experiences, we never took Section 8.

    3. Normally you are correct.

      However, SCOTUS has held that in emergency situations the legislature can suspend enforcement of contracts if the state can demonstrate it is an emergency. See Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934). In that case, Minnesota suspended foreclosures on farm mortgages during the depression. First, the legislature was worried about equity in light of the Depression. Second, more importantly, the State was worried about farms going fallow and sitting on bank books doing essentially nothing. Meanwhile, since refrigeration etc was in its infancy, there may well have been a famine if enough farms were repossessed. Naturally, it has been abused since then. See Richard Epstein’s’ work on the matter.

      With that said, the key difference to my mind is that the Minnesota legislature suspended the foreclosuries. *Not* the governor by fiat. That strikes me as the most worrisome aspect of the current man-made crisis– judicial and executive fiats essentially going unchallenged.

      1. And what about takings? Didn’t the governor just “take” the property of the landlord?

        1. Even if it is a taking, some emergency (maybe not this one) would justify non-compensation. For a long discussion on emergency takings, see here.

          1. No, takings only apply if the value of the property has been destroyed completely, not diminished.

            1. While I agree that is what the law is, the denominator problem will end that aspect of takings law in the next 5-10 years, in my view.

              1. Interesting theory. Say more.

                1. I think there are probably four votes to turn around Penn Central (Roberts, Thomas, Alito, and probably Gorsuch). I think bad facts could pick up a fifth. But even if you can’t get there, the “parcel as a whole” and denominator analysis is doctrinally weak, confusing, etc. As the Supreme Court recently noted, it can’t be decided “by any simple test.” Murr v. Wisconsin. I think with one vote shy of support for partial takings, and a doctrinally confusing set up to address the denominator problem (for purposes of partial takings), is a recipe for reversal.

          2. cool. thanks.

    4. “1. How can the governor interfere with private contracts?”

      By not taking part in enforcement.

      What the property owner wants is the government to side with them in the dispute over who is entitled to possession of property, and staying eviction proceedings says “nope, the state isn’t taking a side at this time.”

  6. So I just heard about the Lancashire Cotton Famine. It’s pretty interesting.

    The pro-abolitionist sentiment up and down workers, management, and politicians in Lancashire, and the pro-Confederate sentiment in Liverpool. And London was torn between the two, at least until Gettysburg.

    And there was a letter from Lincoln himself to the workers, which seems pretty extraordinary.

    The public works projects really struck me; almost like a proto-New Deal. Apparently some of those parks buildings stand to this day.

  7. The media is making a dog’s dinner over the shooting in Kenosha. I guess they really need to move the attention away from the looters and rioters basically burning down half the town. But I think they are going to regret this move.

    The amount of research time they are dumping into the shooter must be at least into the hundreds of hours at this point. They found some grainy photos of him at a Trump rally. Unless those photos of the rally were linked directly to a social media account making it easier for him to be identified they must have actually went through endless photo archives of Trump rally crowds to try to find the guy so they could try to frame him within their narrative.

    Also what is starting to disappear are the videos before the shooting which show him be hunted down by a mob and assaulted multiple times. The video of one rioter threatening him with a pistol is was widely available up until yesterday. Download them now before those end up in the memory hole.

    1. bonus points for them since it gives them something to talk about besides the RNC convention and speakers like Jack Brewer

      1. LOL no one talks about conventions.

        1. To your point, did the libertarian party even have theirs yet? I don’t know. I only know these are happening in that they get referenced here or there.

          1. Does it matter? Is their candidate at least sane? Or maybe Libertarian, unlike that clown from Massachusetts?

        2. The media did plenty of salivating over the DNC for about three days…

          1. Then you are terminally politically online. I’m pretty politically online, and didn’t see much.

            1. I heard a bit about the Hatch Act on Monday…but the bigger news was Trump saying he’d pardon anyone who broke the law to screw over immigrants.

              That’s pretty blatant impeachable abuse of the pardon power.

            2. I saw an article on Infowars that talked about how the DNC was covered by all the mainstream liberal news outlets….Are you telling me that wasn’t true?

              1. Covered != talked about afterwards. Maybe Michelle Obama doing well as always.

                Do you even remember the 2016 conventions?

                No one talks about the conventions. I stand by that.

                1. We are still talking about 1968.

                  1. Oh yes! And ’72, for that matter.

                    2004 had Obama’s speech, which people still talk about.

                    I myself still talk about Clinton’s 2012 speech. I’m not really a connoisseur of the medium, but it is my favorite. Blows Obama away IMO.
                    If you’ve got 45 mins: https://www.youtube.com/watch?v=i5knEXDsrL4

                    But while I can dork out, that does not contradict the fact that in this day and age no one is going to remember this year’s conventions.
                    These pageant conventions seem more ritual than political utility.
                    The media was not worrying about what else they would talk about than the RNC convention.

      2. They’re back to speakers instead of shouters?

    2. In fairness, *someone* shot some White protester in the side of the head, there was a video of him bleeding but alive, and I believe he died. The 17-year-old is accused of having shot him.

      If that had been a direct rifle shot, he wouldn’t have been talking — think JFK. That’s why I’m thinking ricochet.

      1. Kennedy was shot with a 6.5×52mm Carcano. Kenosha was 5.56x45mm NATO. The Carcano has 3 times the mass and 150% the energy.

    3. “Im ba l’hargekha, hashkem l’hargo”?

  8. I realize that this comment is a bit late, but by the time I read the article and researched the matter, several days had passed. I felt it unlikely that Mr. Volokh would see my comment if I posted to the original article, so I post it here in the hope that he will see it and respond.

    Mr. Volokh wrote:

    “and in U.S. v. Wong Kim Ark (1898), the Court interpreted the 14th Amendment as reaffirming that people born in the U.S. are indeed natural-born citizens, regardless of their parents’ citizenship.”

    Mr. Volokh, you are wrong. One need not even read the case to know that this is utterly incorrect. To suggest that the Supreme Court has already decided that “people born in the U.S. are indeed natural-born citizens, regardless of their parents’ citizenship” is beyond bizarre. If that is true, and the matter has been decided, what’s everybody arguing about? The court, of course, held no such thing. The court held that Wong Kim Ark was a citizen at birth, but made no determination whatsoever that natural born citizenship applied to Mr. Ark.

    By your reasoning, and that of many other ‘experts’, natural born citizenship under Article 2, Section 1 of the Constitution is exactly the same as 14th Amendment citizenship, and thus Article 2, Section 1’s natural born citizen clause is superfluous – null, void, and of no effect. This is a ridiculous assertion.

    It’s also very unlikely that the Supreme Court will agree. If the Supreme Court is forced to decide the issue, they will assuredly apply the rules of statutory construction to determine the meaning of the term ‘natural born.’

    Under the rules of statutory construction, the text must be construed as a whole. In addition, the rule ‘verba cum effectu sunt accipienda’ (words are to be interpreted so as to give them effect) means that each word is to be given effect. No word or phrase should be interpreted so as to cause it to duplicate another provision or to be of no consequence.

    In other words, one cannot pretend that the words ‘natural born’ are meaningless, and that the ‘natural born citizenship’ clause of Article 2, Section 1 of the Constitution is therefore null and void.

    The rule ‘generalia specialibus non derogant’ (the general does not detract from the specific) means that if there is a conflict between a general provision (i.e., citizen) and a specific provision (i.e., ‘natural born’ citizen), the specific provision prevails.

    A ‘natural born citizen’ therefore is, BY DEFINITION, different from a 14th Amendment ‘citizen.’

    If my analysis is incorrect, please explain how it is incorrect.

    Another common assertion that I keep seeing is that our citizenship laws are based on English common law – supposedly we merely replace the word ‘subject’ with ‘citizen’ and go on about our way. This makes no sense. Subjection is compelled and inclusive – citizenship is voluntary and exclusive. To pretend that they, and the legal regimes supporting them, are comparable seems silly.

    For instance, Mr. Volokh states “The Framers, when they were writing the Constitution, likely mentally linked the “natural-born citizens” phrase to the “natural-born subject” in Blackstone’s very familiar explanation of the common law, rather than to “natives, or indigenes” in Vattel’s somewhat less familiar discussion of the civil law.”

    Less familiar to whom? The general public, perhaps, but certainly not less familiar to the founders. And, certainly not less familiar to the Supreme Court.

    For instance, in an 1814 case, The Venus, the Chief Justice of the Supreme Court, John Marshall, states specifically that our citizenship laws and ‘decisions applicable to this subject’ are based on the law of nations – not on English common law. Although written in dissent, Marshall’s opinion is instructive as to the Courts’ approach to such matters. The subject Chief Justice Marshall is writing about below is ‘citizenship.’

    The Venus, 12 U.S. 8 Cranch 253 (1814)

    12 U.S. 289

    “The whole system of decisions applicable to this subject rests on the law of nations as its base. It is therefore of some importance to inquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character of the nation in which they reside.

    Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says

    “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.”

    “The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state while they reside there, and they are obliged to defend it because it grants

    12 U.S. 290

    them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the laws or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages.””

    I am therefore obliged to disagree with the many legal ‘scholars’ in their unsupported assertions that English common law is controlling in questions of citizenship. It is, in fact, not even relevant.

    Mr. Volokh, you owe the readers of Newsweek, and any other publication that printed your erroneous assertion re: Wong Kim Ark, a rewrite explaining your mistake. You have spread disinformation to potentionally millions of readers on a very important matter.

    RPL

    1. “If my analysis is incorrect, please explain how it is incorrect.”

      Natural born citizen means a person who acquired citizenship at the time of his/her birth, as opposed to being naturalized some time later. It really is that simple.

    2. The 14th Amendment did not render “natural-born” from Article 2 meaningless because the 14th Amendment did not address what natural-born means. The 14th Amendment merely specified who is a citizen at birth, including Wong. It takes a separate analysis of Article 2, independent of the 14th Amendment, to determine if Wong is a natural-born citizen.

      Moreover, it is most likely that the class of natural-born citizens include more people than those identified in the 14th Amendment, such as Ted Cruz who is a citizen at birth by statute.

      1. I’m inclined to agree with this, but the quote from EV is that the application of 14th in Wong directly decided the issue of natural-born citizenship. As you say, it should be a separate issue.

        1. I’m guessing Eugene was just being sloppy.

    3. “The court held that Wong Kim Ark was a citizen at birth, but made no determination whatsoever that natural born citizenship applied to Mr. Ark.”

      A citizen at birth is a natural born citizen. What else did you have in mind? The 14A expanded the class of people who were citizens at the time of their birth (to those people “born … in the United States and subject to the jurisdiction thereof.” In Wong Kim, the Court held that the 14A affirmed the rule of birth within territory.

      1. I think he said what he has in mind – see Vattel and the Law of Nations.

      2. Clearly, a person must be borne of woman, via the vaginal canal – not a c-section, to be a ‘natural born’ citizen….

        /sarc

    4. “A ‘natural born citizen’ therefore is, BY DEFINITION, different from a 14th Amendment ‘citizen.’
      If my analysis is incorrect, please explain how it is incorrect. ”

      If a natural-born citizen means one who obtains citizenship by birthright, as opposed to a legal proceeding (ie, naturalization) then determining that they are a citizen by reason of the 14th amendment, as with Wong Kim Ark, establishes that person as a “natural born citizen”.

  9. Why is originalism so influential, when it has a basic problem: a law’s legitimacy today comes from voluntary assent of people who read the law today, not of the people who wrote the law originally. Rather than ask “what the law’s authors thought”, shouldn’t we ask “what the law’s readers think”? Besides being more relevant, the latter is also more reliably knowable.

    1. You’re conflating two issues. If the legitimacy of the law is based on the “voluntary assent of people who read the law today” you’re talking about the public. But originalism is a theory of interpretation, and the laws are interpreted by judges. The judges are not the “people”.

      If we don’t care “what the law’s authors thought” why do we even care about the laws in the first place? We should just abandon interpretation entirely, and have judges decide every controversy based on what they “think”. As you said, that’s more reliably knowable.

      One downside to that approach, however, is that the law no longer has any legitimacy. Because when you talk about “voluntary assent of the people” you’re really talking about agreement in the present on what the law is and should be by a legislative body. But if the judicial body that interprets legislation disregards the intent of the legislative body, there can never be reliable “voluntary assent of [the] people” since the legislature no longer has the power to enact popular, voluntary assent. They enact words that judges disregard later and decide on grounds unrelated to the original legislative act.

      Put differently, if the only thing we care about is “what [Justice Alito] think[s]”, and his subjective understanding of the original intent is irrelevant, the original legislature no longer has any power at all. No judicial opinion would have “legitimacy” by virtue of any “voluntary assent” of the public, since the public never agreed to be ruled by Justice Alito. This is why even the paragons of alleged living constitutionalism (like Brennan, as an example) are avowed originalists. Their legitimacy depends on at least pretending to interpret the intent of another body politic. If you don’t believe me, check these cites: 354 US 476, 376 US 254, 457 US 596, 456 US 45, 468 US 364, 479 US 238, 486 US 750, 491 US 397, 498 US 411.

      1. But isn’t that definition so extremely broad to the point that there’s no point in asking about originalism or no?

        You’ve just switched the debate to what the Founders intended as a method of interpretation, and then we’re back at Brennan versus Scalia versus Breyer, just with some different semantics.

        1. “But isn’t that definition so extremely broad…”

          I don’t know to which definition you are referring.

          “You’ve just switched the debate to what the Founders intended as a method of interpretation…”

          I didn’t see Ilya Shlyakhter limit his argument to constitutional interpretation. But this is certainly not a semantic discussion. The point I was trying to make is that there has never been a judge who said “I think the law was intended to be X but I am ruling that it is not X because I think not X is a better policy.” The reason, I posit, is that judges have internalized that the legitimacy of their rulings depends on them at least pretending to interpret law as opposed to enact law. Since originalism is the only theory of interpretation, demanding that they abandon that pretense would require judges to enact law. In context, it would also result in them enacting laws that were contrary to the voluntary assent of the people’s representatives, which would really ding their legitimacy.

          1. OK. I was just thinking that any originalism that includes Brennan is including everyone. You seem to agree.

            So surely judges sometimes are interpreting the law. So how can you demand they distinguish between interpretation and enactment, if as you said their incentives and indeed self-image require them to not distinguish?

            1. I think Brennan, like every Supreme Court Justice, claimed to be an originalist, and in practice was often an originalist. Sometimes he had opinions that were not justifiable on originalist grounds, but he was careful to be a nominal originalist. Alternatively he was an originalist in full force, just not very good at it. (This seems unlikely, given how incredibly smart he was.)

              “So surely judges sometimes are interpreting the law. So how can you demand they distinguish between interpretation and enactment, if as you said their incentives and indeed self-image require them to not distinguish?”

              I am confused by the question. Judges interpret laws. Sometimes they enact common law, if statutes are silent. I was just talking about the interpretive role judges play. I think their incentives and self-image require them to distinguish. Every judge I know makes the distinction. They wouldn’t be able to avoid accidentally enacting (when you were supposed to be interpreting) if they didn’t distinguish between the two.

              1. OK. I think I misunderstood your initial discussion of ‘The reason, I posit, is that judges have internalized that the legitimacy of their rulings depends on them at least pretending to interpret law as opposed to enact law.’

                I think I understand now.

                But then where are you in these debates about modern textual meaning versus original intent versus original public meaning etc? Do those debates even matter to you?

                1. I’m original intent. The debates do matter to me. I think textualism is great. I think original public meaning is great. I don’t think either is perfect in every case. Fundamentally the decision is still about original intent. I have internalized some criticisms of collective intent, that lead people to textualism and original public meaning, and so I’m somewhat (but not entirely) skeptical of legislative materials. I lean textualist in statutes. But I’m not a radical. I’m willing to engage in some theorizing about intent that goes beyond the text. To borrow a phrase from Texas S.C. Chief Justice Hecht, I don’t worship at “the Temple of Textualism”. I think overly picky textualists are subject to the same injection of their own views into legislation, as are the non-textualists they criticize for the same reason.

                  For the Constitution, I think original intent (“irreconcilable variance” from Federalist 78), the burden of proof (which is incorporated into our American constitutional jurisprudence), and humility all require extreme judicial restraint.

                  1. That all sounds terribly reasonable and nuanced.

                    I tend a bit more purposivist than for the Constitution, but nowhere near purely so, so we likely are pretty close. And I’ve come around to judicial minimalism in my old age.
                    Except for the political question doctrine. I still have a hard time believing that one operates as intended.

                    Even closer with statutes. I’m about like you. Text first, but text creates a presumption, and may be rebutted by clear evidence of intent or just an absurd result.

                    1. The political question test should be broadened!

                    2. The other way. I do not believe that the two political branches are able to solve their disputes between each other, as the doctrine posits. And the Courts have more power to mediate between the two than Goldwater v. Carter believes.

                      I don’t know if I think it should be eliminated, but maybe folded into standing or something.

                    3. The original idea was that States should be free to nullify, ignore, and declare void any “opinion” of the federal judiciary that they disagree with.

                    4. “The original idea was that States should be free to nullify, ignore, and declare void any “opinion” of the federal judiciary that they disagree with.”

                      Then we replaced the Articles of Confederation with the Constitution.

                    5. @Sarcastro,

                      “And the Courts have more power to mediate between the two than Goldwater v. Carter believes.

                      I think it’s the opposite. The political question doctrine is a prudential doctrine growing out of the Court’s unease with exercising a right where it has no power. As was often the case, I think Scalia put it best, in this case in his dissent with Alito on Alito’s broad theory of congressional standing in the U.S. v. Windsor case. The problem with SCOTUS resolving disputes between coordinate branches is that all the branches have an independent duty to follow the Constitution. Every dispute involving Congress versus the President involves one branch saying that another has breached a constitutional duty. And if the President is willing to defy the Constitution in conflict with Congress, why wouldn’t the President do the same with respect to the judiciary? They are just another coordinate branch.

                      “To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition … counteract[ing] ambition,” is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit–from refusing to confirm the Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “…or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And, by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by … what do you think? Yes: a direct confrontation with the President.”

                    6. I get the reasoning, but I don’t think the relationship between the three branches shakes out that way.

                      Congress has a very hard time caring to confront the executive for reasons of personal cowardice. This has not been a good thing for our republic.

                      The Court’s political cover could give Congress something approaching balls.

                    7. @Sarcastro,

                      “Congress has a very hard time caring to confront the executive for reasons of personal cowardice. This has not been a good thing for our republic.”

                      Maybe it has maybe it hasn’t. The voters don’t seem to mind. But if you think Congress holding the President accountable is important for the Republic, the political question doctrine should be broadened. Nothing will embolden more cowardice than Congress being able to shift its obligation to confront the President to SCOTUS. The Court isn’t intended to have the power to provide “political cover”.

                    8. This gets into some neat sociological stuff!

                      1) The voters don’t seem to mind executive expansion, in as much as it’s not an issue they vote on. But there are plenty of things that are bad for the republic that the voters don’t much care about, but are fenced off nonetheless.

                      2) But the more interesting question is between our two methods of incentivizing behavior.
                      You think that removing the Court as an excuse will force Congress to put action to words when they don’t like Presidential action.
                      I do not believe this is true; Congress’ has proven time and time again that they prefer words to action, even to the determent of their own institution.

                      On the other hand, the Court only has words, but words and a reputation that Congress does not have. Just as the Constitution is just words. As the hired and followed experts, the Court’s job is to have a take on Constitutional matters, including the balance of powers it creates.
                      Explicating the separation of powers in an explicit and well-organized way seems better than insisting power flows only as it operates has a structural bias towards the President, versus the a deliberative body like Congress.

          2. “originalism is the only theory of interpretation” — what??
            “result in them enacting laws that were contrary to the voluntary assent of the people’s representatives” — but Founders were not representatives of today’s citizens, who never voted for them. What matters is voluntary assent of today’s people’s representatives not to amend the law’s words, after reading the words using today’s public meaning.

            1. ““originalism is the only theory of interpretation” — what??”

              You come across hieroglyphics. Someone asks you to “interpret” them. What are you being asked to do, besides discern the original intended message? When we’re talking about interpreting legal texts, we aren’t talking about interpretive dance.

              “…but Founders were not representatives of today’s citizens, who never voted for them.”

              Absolutely correct. That’s a great reason for us not to follow the Constitution. It has nothing to do with this discussion, which is about interpretation.

              “What matters is voluntary assent of today’s people’s representatives not to amend the law’s words, after reading the words using today’s public meaning.”

              Again, not related to what we’re discussing. The people who interpret the Constitution are not the “people’s representatives”. They’re unelected federal judges. And there’s no indication that the public today wants the Constitution interpreted “using today’s public meaning”. You’re not suggesting an alternative to legal interpretation. Instead you’re advocating for a new system of rule whereby the past is irrelevant.

              It’s worse than that, actually. For some reason you think the text of the laws should remain in effect, but that we interpret them “using today’s public meaning”. Why even stop there? If the Founders were not representative of today’s citizens, and we never voted for them, why do we care what words they wrote down on a piece of paper and signed? And what’s true of the Founders is also true of the ancestors of the language, manifesting now in “today’s public meaning”. We didn’t vote for the lexicographers either. You’ve just substituted rule by one unelected group (founders) with rule by another unelected group (Merriam-Webster?). What’s the point?

              1. “You come across hieroglyphics. Someone asks you to “interpret” them. What are you being asked to do, besides discern the original intended message?” — a judge asked to interpret a law written in hieroglyphics should say that the law lacks legitimacy, because it doesn’t give men of common intelligence fair notice of what the law is. That trained Egyptologists could “discern the original intended message” wouldn’t matter. So yes, judges interpret the law, but they can’t ignore what the law’s words mean to people on the street.

                “why do we care what words [Founders] wrote down on a piece of paper and signed” — we care about these words not because Founders wrote them, but because today’s people (through their elected representatives) read these words and chose to accept them as written (i.e. not to amend them).

      2. “laws are interpreted by judges. The judges are not the “people”” — but the reason laws apply to people, is that people assented to the laws as written, showing their assent by choosing to live here & to not amend the laws. Their assent is based on _their_ reading of the laws’ text. So it’s not “what Justice Alito thinks”, it’s “what the average guy on the street thinks the words mean” — i.e. “public meaning” but today’s, not original. Look to the same places originalists do — dictionaries, public usage — but from today. Or commission a survey; more reliable than mind-reading long-dead people.

        1. So we should interpret “Corruption of Blood” in the Constitution based on the “public usage” today? Please enlighten me as to what “average guy on the street thinks the words mean” and why you could discern that from reading a dictionary?

          1. If much of the Constitution was written in phrases like that which have _no_ “public usage” today at all, it would lack legitimacy (see above re: hieroglyphs). If such archaic phrases are the exception, the “average guy” seeing one would know to consult old dictionaries. But when he sees “cruel and unusual punishments” he can reasonably expect that to refer to today’s standards of decency.

    2. Maybe looking to the original meaning first is a good way to keep the law in line with first principles?

      1. Maybe, assuming there _were_ “first principles” motivating the law, and these principles are truly “first” i.e. timeless. But later decisions to not repeal or amend the law were also based on some principles, so isn’t the public meaning when these later decisions were made equally relevant?

        Following Founders’ principles is a good heuristic, because Founders were wise, but it’s not our raison d’etre (unlike it is e.g. for religious people to follow God’s principles is a goal in itself). So looking to original sources for Founders’ wisdom is a good starting point, but should not be the end. Our understanding of “first principles” is better than Founders’ in one key way: it’s informed by years of actual practice.

    3. That’s all well and good on paper and I really do want to discuss this, but can you answer a couple of clarifying questions for me:

      1) Re: “what the law’s readers think” – Who are the ‘readers’ in that question? This is important, because it establishes a lot of details that are not really present in the question.

      2) Re: “a law’s legitimacy today comes from voluntary assent of people who read the law today” – Could you expand on this idea of a law’s legitimacy coming from the “voluntary assent” of the people? I usually see the term ‘legitimacy’ used in political science discussions to describe government as a whole, not individual laws. I am not saying you are wrong, but I can’t really examine the rest of the statement without some clarification on the logic behind the statement.

      3) Re: “the latter is also more reliably knowable” – Typically, I’ve seen that originalist rulings utilize contemporaneous sources to establish a clear interpretation of individual words and phrases. On the other hand, my wife and I often disagree about what we said an hour prior, and I’ve been in countless situations (personal and professional) where an individual’s interpretation of a given word or phrase (even written) implies a drastically different message than the speaker intended. Ultimately, those situations come down to the fact that people interpret situations through the lens of their own biases and experience, so communication will always be imperfect. So, the question: is a communique’s interpretation more likely to be accurate when [a] the interpreter utilizes only the primary source and their own ‘lens’, or [b] the interpreter utilizes not only the primary source but also further sources from either the original author or their contemporaries to establish a greater understanding of the way the author intended to use those words?

      1. ““what the law’s readers think” – Who are the ‘readers’ in that question” — people who voluntarily decided to subject themselves to the law, by choosing to live within its jurisdiction and to not amend the law. That decision was based on them reading the law based on today’s public meaning of words.

        1. Well that can’t be right, because I “voluntarily decided to subject [myself] to the law, by choosing to live within its jurisdiction and to not amend the law.” But that was based on my understanding that the laws mean what they said at the time they were written. How do you hand-waive me away?

      2. ” originalist rulings utilize contemporaneous sources to establish a clear interpretation of individual words and phrases” — what stops judges from using today’s sources to do the same for today’s public meaning of words and phrases?

        1. Fear of losing power. The same reason they don’t decide cases based on coin flips. No one would listen to them.

    4. We should ask what people reading the law today think, if only to correct those people when their understanding of what the law means is incorrect.

      Originalism is the proposition that the meaning of the Constitution does not change until it is properly amended.

      1. “meaning of the Constitution does not change until it is properly amended” — but decision not to amend is made by today’s people reading the words and deciding change isn’t needed. They make that decision based on what the words mean to _them_, i.e. on _today’s_ public meaning.

        1. What evidence do you have to support this theory?

        2. It’s an insane theory, actually. Say I live on the street and believe that access to abortion is not constitutionally required under the 4th Amendment. The Supreme Court disagrees, and so access to abortion receives some minimum protection. I read the 4th Amendment and decide the words sufficiently communicate, under today’s public meaning, my position. The fact that SCOTUS disagrees is irrelevant, under your theory, because I’m only assenting to live here and choosing not to amend the 4A, because I believe my interpretation is correct. SCOTUS be damned!

          1. In questions already directly addressed by the courts, the courts’ decisions control. But new court decisions, by definition, address questions not yet interpreted by the courts, and at that point it should matter how people on the street would interpret the words.

    5. Why is originalism so influential, when it has a basic problem: a law’s legitimacy today comes from voluntary assent of people who read the law today, not of the people who wrote the law originally.

      There’s a much bigger, far nastier problem it is trying to address: power creep by those in power at their own impetus.

      Government only gets the powers The People granted it, and no others, as prophylactic against loss of freedom. They put in place a process to increase the power government has, gating it behind various supermajority requirements.

      If you can’t get most people to agree government should have a new power, it probably shouldn’t. This amendment process guarantees buy in from most, not just a bare majority, and also takes time. A simple majority for instant power increase is a foolish thing because it puts power growth in government into the hands of a charismatic good at manipulating transient winds of passion.

      If it’s a good idea, most will think so, and will think so a few years down the road after passions have cooled down.

      “We don’t want to be bound by old dead men!” has no other meaning than to give dictator wannabees an end run around convincing people beyond a transient and simple majority stirred up by a recent event.

      This is the primary method of collapse into dictatorship.

      1. I’d add that, in practice, the transient and simple majority tends to be 5 people in black robes, and maybe a bare majority in Congress.

        The amendment process, I tell people, is HOW we demonstrate that the public actually supports a change. Don’t use it, the default assumption is that they don’t support it, and you avoided the amendment process to deny them any opportunity to tell you “No!”.

  10. I’m a bit surprised Blackman missed this decision by the Fourth Circuit which agreed with an Eleventh Circuit panel that a public school denying a transgender person use of the bathroom that matches their gender identity violates the Equal Protection clause and Title IX, the latter in part because of Bostock.

    1. A theme in 80’s high school movies was boys seeking to become voyeurs in the girls locker room, going through all kinds of hijinks to just be able to grab a peek. Now all a high school boy has to do is say they are a woman and they can walk right in as a matter of policy and the law says you can’t stop him/her/it/zem/whatever. Now that is progress of a “progressive” nature.

      1. Such a boy would have to live their entire life as a girl. If they were ever seen living as a boy, the school could deny them use of the girls bathroom based on them not being transgender. I seriously doubt boys are willing to go that far just to get a peek.

        1. There is no requirement that someone who claims to be a boy or girl have some history of identifying with that gender. In fact, “gender fluidity” is cited as being “normal” for many trans people who “explore” their gender before deciding that they were “misgendered.” I am not aware of any serious argument one could make, other then just pure farce, that a boy could not simply announce one day he thinks he is a girl and wants to explore that sexuality in part by using restrooms dedicated to humans who identify as that particular gender.

          1. Whether or not the boy is faking it is something the school can assess with the help of medical professionals. At the very least, the boy is going to have to go public with his new-found gender fluidity, something that is not likely to make him popular unless he is faking it.

            1. But what if all the “cool kids” are doing it so there is no moral-suasion aspect of it? in fact, in that situation it would be acceptable to the majority. Or are you suggesting that in order to be able to access a restroom they will need some type of medical certification and denying them access because, in the opinion of a medical professional, they are “faking it” would be legit?

              1. Yes, the school can insist on the opinion of a medical professional if it suspects fraud. And, all the “cool kids” doing it raises that suspicion because very few kids are genuinely transgender or gender fluid.

                1. Maybe they all are collectively questioning their gender assignments. Who is to suggest that is wrong? How can an “expert” denote which boys are legit and which ones just want to see boobies? (And that is the problem when you venture down moral relativity…)

                  1. Professionals have clinical and/or research experience to base their opinions on. There is no moral relativity.

                    1. Do they really? Seems to me the standard is pretty much “I say I am a certain gender so you have to believe me…”

            2. No one can observe or verify a belief held in one person’s head.

              Its not possible.

        2. No Josh — he could become an “X” which is both, or something.

      2. But see Starship Troopers.

        1. In many European countries that is what locker room showers look like, or at least they did years ago when I used to travel frequently there.

      3. “Now all a high school boy has to do is say they are a woman”

        Of course, you start calling a high-school boy a woman if you want to insult them. At least, that would work on the ones that just want to get into the ladies’ locker room to get a peek.

  11. I am curious about everyone’s opinion on the Kyle Rittenhouse incident. It seems pretty clear cut self defense. The citizens arrest argument seems interesting in regards to the second shooting. Any Criminal Defense attorneys here care to comment ?

    1. Will the boy (he is only 17) even be given a fair trial, or will it be like the Scottsboro Boys?

      1. Self defense is an affirmative defense in most jurisdictions. And usually the use of force to effect a citizens arrest is also viewed as a similar defense (not quite the same, but close enough for internet comment purposes.) The question is if the people who attacked the kid were actually trying to effect a citizens arrest and if so if the use of force was reasonable. And then another question will be was the use of force lawful self defense. There is some case law that suggests both uses of force are lawful even when conflicted as one does not have a duty to submit to a citizens arrest as they have to submit to a lawful arrest effected by law enforcement.

    2. This case is going to be a mess, even if its 100% self defense — Eugene I’d love to hear what, if any, implications there are in culpability by a person being present/potential catalyst.

      On the one hand, Rittenhouse seems like he was attacked first?

      On the other, if there are no other shootings in the event — does he have any legal responsibility for putting himself in the scene as a vigilante in the first place?

      1. The videos seem to show him being attacked and at one point threatened with a firearm. It also appears he tried to retreat but it is unclear if that was after already shooting on individual. I would say based off of the video he objectively feared for his life. (I know I would if a mob was coming at me with fists and feet like that.) But the sequence of events isn’t all that clear at least at this time.

        1. Historically, the law has been pretty clear that using justification as a defense for violence has been entirely at the risk of the person who chooses to use violence. If you choose to point a gun at somebody, you better be damn sure you have a reason to do so because if it turns out you don’t, you owe them money. And if you actually shot them the price just went up.
          Alas, the pro-gun lobby has successfully lobbied some states to substantially tilt the scales of justice in favor of the right to point guns at people because you wanted to and then calling it justification. This has caused a net increase in violence.

      2. Particularly in regard to the fact that he came all the way from out of state, and inserted himself into the scene he wouldn’t have been otherwise, with likely some motive (agreeable or not)

        1. Just driving a long time to go somewhere in of itself is not enough to build some kind of intent. If there is video of him saying “I am going to get my rifle and drive to another town to cause problems in the hope someone attacks me so I can justify killing them” then that is one thing. If he drove some distance to engage in otherwise legal activity and circumstances evolved independent of that then there is probably nothing there.

        2. Without some prior statement to the contrary (regarding a possible motive), the place was publicly accessible and questioning his ‘right’ to be there just because he didn’t live there is a red herring.

          If it is a publicly available space, then anyone has the right to be there. Otherwise the same question must be applied to everyone who was in the area.

        3. His home is 30 minutes from Kenosha.

      3. I believe he was being attacked because he had shot someone in the head.

        1. The video shows someone being struck in the head. It is unclear if the round was discharged from his rifle. And even if he was the primary aggressor firing that shot it does not give license to a mob to beat him within an inch of his life (which looked to be their intent.) The subsequent shootings might very well be self defense even if the first was a straight up homicide.

          1. “The subsequent shootings might very well be self defense even if the first was a straight up homicide.”

            This seems like an unlikely rule. If it were true, I could shoot your wife, and then when you came after me I’d shoot you, and that would be justified since of course you were going to hurt me, I just murdered your wife.

            1. Well there are some legal exceptions which I will just put into the category of “fit of rage” in that if I personally witness you murdering my wife the law recognizes that I might engage in uncontrolled actions such as using deadly force against you. But that usually goes to intent meaning that the prosecution isn’t murder but something less like involuntary manslaughter. Not that you get off scott free.

              So yes if I murder your wife, then you go at me with deadly force and murder me, you are criminally liable.

              1. I think it’s harder to prove “with deadly force” when the people on the other end are saying they were trying to make a citizen’s arrest after the person shot someone else in the head. A person subduing you, while you have a gun, is a necessary predicate to even a lawful citizen’s arrests under those circumstances. If you can use the excuse “they were really mad, I just murdered somebody” then there could be no lawful citizen’s arrest of a murderer.

                1. I seem to recall initial aggressors cannot avail themselves of self defense arguments under the model penal code.

                  1. That’s generally the rule, yes. A huge amount of this will depend on the initial confrontation (e.g., if the first shot was also in self-defense, it might continue) and also how much time elapsed in between that first confrontation and the second shootings (e.g., even if the first shot was not justified, committing a murder does not strip you of self-defense forever and ever, so what happened in between?)

                    Neither obviously self-defense nor murder at the moment. With the video alone I’d lean toward self-defense but not conclusively. Knowing there’s an earlier confrontation to reckon with makes it unreasonable to reach a conclusion without knowing more.

                    1. See below, and 939.48(2)(a). In Wisconsin the initial aggressor can defend against deadly force with deadly force, but with a duty to retreat.

          2. Once you shoot someone in the head, I legit don’t know the legality of claiming self-defense against people who are coming at you in self defense.

            But certainly *morally* I’m not going to let someone off the hook. It’s like killing your parents and telling the court you’re an orphan.

            1. Even committing murder does not give people the license to then use deadly force against you.

              You seem to be defending the mob justice that it appears they wanted to hand out. We used to call that something – a lynch mob. Are you seriously suggesting that was OK?

              1. “Even committing murder does not give people the license to then use deadly force against you.”

                That would be relevant if someone had used deadly force against him. And they could be prosecuted. The issue is whether he can use his own shooting of another person to justify being in fear for his life (sufficient for self-defense).

                1. You don’t actually have to use deadly force, it just has to be threatened deadly force. You don’t actually have to die.

                  The crux of the “citizen’s arrest argument” rests on they were using a reasonable amount of force to effect the arrest. That is fact sensitive and I’m not willing to say IF that is a legitimately legal argument that the video is conclusive enough either way. A jury is going to have to sort all that out and it will be messy.

                  Was the mob planning on beating the guy to an inch of his life? Did the guy have an objectively reasonable belief that they were going to do so? Or were the actions reasonable enough taking into account that the guy had a firearm and might have used it to seriously injury someone? The answers to these questions are going to have to be hashed out in court.

                  1. I agree that the defendant is entitled have these questions resolved by a jury, if he so desires.

                2. “That would be relevant if someone had used deadly force against him”

                  “ABDW — Shod Foot”

              2. Shoot one person, it’s reasonable that other people are in fear you will shoot others, including them, and act accordingly.

                What the hell are you talking about lynch mob? When you have numbers like that, I’d hope that lethal force wouldn’t be needed to end the threat. But legally, that’s up to a jury.

                I’m absolutely against street justice; I’m against the death penalty generally, and think even if you mow down a bunch of people you should go to jail not be killed.

                Back at you – what are your thoughts about vigilantism? What do you think about some right-wingers getting some guns and going to stop some riots? Because I get the impression you’re pretty cool with that.

                1. When you rely upon professional law enforcement then remove that from the equation, what do you have left to enforce law and order? The answer is simple – a citizen with a firearm. You can couch them as “vigilantes” which you do in the case of a guy trying to protect property. Or at legit actions of people trying to effect a citizens arrest and using extreme amounts of force to do it. Guess how private citizens choose to maintain law and order and the legitimacy of those actions is open to interpretation though.

                  1. legit actions of people trying to effect a citizens arrest and using extreme amounts of force to do it.

                    Thought so.

                    1. I merely said that the legitimacy of private law enforcement functions rests in the eye of the beholder.

                      You seem to be making (the rather disingenuous argument because it is necessary to enforce your narrative) that a mob descending upon the guy was just alright and that there is no legitimate argument that the guy could have used deadly force as self defense because he was fearing for his life.

                    2. See below. Your argument of self defense without context is immoral, and as it turns out the law recognizes that.

                    3. “except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm.”

                      You mean like when a mob is coming after you and looks like it is their attention to beat you within an inch of your life? I think that would qualify as great bodily harm in which self defense is authorized. Maybe you think it is more “moral” to lay down your life to a mob that wants to beat you to death, but the law doesn’t seem to agree with you nor would many other people.

                    4. Ignoring the duty to escape in such cases, I see.

                      Yeah, the rest of the right is doing the same thing.

                    5. Again you continue to ignore the fact that I acknowledged it *could* appear that he was attempting to retreat. I stated that repeatedly. Maybe he wasn’t. I don’t know. Let the court figure that out. But from the videos he is definitely running away from the mob. Is that enough for “retreat”? Maybe? He doesn’t fire until he falls to the ground (either on his own or is tripped, unclear) and then only when someone tries to hit him in the head with a skateboard and land a flying kick. There is enough there though to suggest that yes he tried to retreat.

          3. Here’s what seems to be the relevant bit of Wisconsin law:

            “A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.”

            It seems like even if he provoked a response he’s entitled to use deadly force in self defense if he was in imminent danger of death or great bodily harm, BUT now has to exhaust every other reasonable means to escape. (So now there would be a very strong duty to retreat.)

            1. At least from the video it looked like he was attempting to withdraw and retreat. He didn’t fire until he was either tripped or fell from running and the mob descended upon him. One guy tries to hit him with a flying kick and another guy is trying to hit him in the head with a skateboard. I don’t think it is a far cry to say he feared for great bodily harm although maybe the question of retreat is a little bit more dicey. Again a court is going to have to hash this all out and it is going to be messy.

            2. jb, where’s that quote from?

            3. Ok it’s Wis. Stat. 939.48(2)(a). I think my earlier statement is wrong, then. This appears to say it doesn’t matter if you straight up murdered somebody, if somebody else puts you in reasonable fear for your life in response, you get to defend yourself, although you can only use lethal force if you’ve exhausted your duty to retreat.

              1. Yes, I think that’s a correct summary of the law.

                I’m curious whether prosecuting for felony murder might get around the self-defense claim. Wiscon’s felony murder statute requires that the initial crime be on an enumerated list, but one of them is battery and causing a death while fleeing from the scene of the initial crime has been held to be felony murder under that law.

                1. Kind of tough to make the case he was fleeing the scene, when he’d called 911 to report himself, and walked over to turn himself into the police.

                  1. I think you can replace “leaving the scene” with “fleeing the scene”. Wisconsin case law looks to have a fairly expansive view of the chain of causality leading from the original felony to subsequent deaths to add up to felony murder.

                    (This theory requires that the first shooting also not be self defense. Having seen the NY Times timeline footage, I think there’s a decent chance that at least one member of any jury is going to find all of these shootings to be self defense.)

          4. ” even if he was the primary aggressor firing that shot it does not give license to a mob to beat him within an inch of his life”

            Unless it does. “use of force” laws vary state-to-state, and fearing for your life is often one of the justifications for using violence against another person.

            1. It does seem weird that people are saying that he acted in self defense but not acknowledging that having a gun and starting to shoot people could put other people around you in fear of their own lives.

          5. The judiciously-edited videos show two events.

            1. The kid is on the ground, the skateboard kid hits him with the skate board, gets shot. Then the arm-blast guy, who had a gun, too, runs up almost the same time and is shot as well.

            2. In the other, the kid runs between two parked cars with the third guy in hot pursuit, catches him, is shot.

            Based on only that, it could be self defense, but we need to see more on what leads up to it. Maybe he was being a dangerous maniac.

            1. The sequence of events is important as well. The commentary in the videos as well as articles about the videos is in order of ‘guy chasing him between cars gets shot’ then, ‘skateboard and gun guy get shot.’

              The order of events plays more to a mindset of self defense because he easily could have shot a lot more people and didn’t.

              He did a lot of other things wrong though.

            2. “Based on only that, it could be self defense, but we need to see more on what leads up to it. Maybe he was being a dangerous maniac.”

              We have a dozen different video and some pictures of everything else. So, it seems likely any other videos showing Rittenhouse being a maniac would have already been shown.

              However, in the original chase and shooting the 2nd guy chasing him was carrying his phone out, presumably videoing. He’s the same guy that pulled off his shirt and started first aid. That video might show something different.

              None of you have mention the earlier video of the first shooter victim though. That video shows him being extremely aggressive and screaming at a crowd of the militia.

              https://www.youtube.com/watch?v=ZlUcPJSxS1M&t=2s

        2. If he was being attacked for shooting someone in the head we go back to that portion of the video.

          He appeared to be running from someone, they both disappear between or behind vehicles.

          It is likely that he shot the guy in the head. It is also likely the guy was chasing him (as the video shows) which would imply self defense in THAT situation as well.

          So your assumption is that he shot the guy in the head not in defense but in aggression. But you have no facts to back up that assumption and the video shows a different story.

          1. See below – self defense after you shoot someone in the head becomes possible, but a substantially more narrow proposition.

            Morally, I’d argue that if shooting one person necessitates shooting others, they’re all on him.

            1. Morally they’re all on him because he chose to shoot them rather than suffer the consequences of whatever actions they may have taken.

              But we’re not discussing subjective morality, we’re discussing the legality of his actions. If he felt grave harm or death was a real threat then self defense is a legally acceptable reaction. The video very much tells that story because he ONLY shot at someone who attacked him, not indiscriminately.

              It is also quite possible that the ones who approached him in the street were under the impression they were attempting to stop a felon or preventing him from shooting more people. Which would also justify their actions. Although that isn’t how I would have done it for the exact reasons of the results achieved in doing so.

        3. “he had shot someone in the head”

          Yes, someone who was chasing him and throwing things at him.
          Someone who was also a convicted sex offender.
          From Arizona, if I am not mistaken — just a short trip away…

          Sarcastr0, that was self defense as well…

          1. He crossed state lines to do this, willingly brought a gun to “defend” things that weren’t his.
            Shot a protestor in the face, when someone tried to stop him shot another.

            1. Because he traveled 30 minutes from his home that means he couldn’t have been defending himself from the “shoot me nigga” guy that was chasing him?

            2. “Shot a protestor in the face”

              No, a rioter.

              1. Someone who did not deserve to die.

                1. None of them deserved to die.

                  At what point does he have a right to defend himself?

                  1. That’s a question for an expert in Wisconsin criminal law. Self defense law is jurisdictionally idiosyncratic.
                    ==

                    1. Even if someone was attacking him doesn’t mean they deserved to die. Going that direction justifies a lot of killing and that’s just going to be a no for me.

                      Justified, legal, ?? Sure those are options. Deserved? Nah, I may not like rioters but death isn’t going to be something I think they deserve.

                    2. We are on the same page on this one!

                    3. “Even if someone was attacking him doesn’t mean they deserved to die.”

                      The standard response to that, is that the aggressor should be the one deciding if their aggression is worth dying over. The defender isn’t trying to kill, they’re trying to save their own life.

    3. Chased by at least three adults, with a variety of felony convictions (child molestation, gun, drug violations), those felons armed with deadly weapons including a firearm (which he was barred from possessing in any way under federal law) and a skateboard deck (why carry a skateboard deck? It’s not functional….)….

      And the child with an AR (how did he get it? Too young to buy one….) was knocked down on the ground and shot the assailants… Not sure if he intended to shoot – the head wound that killed one of the assailants was a head wound that might have been a ricochet) and being knocked to the ground may have been a factor…

      I think the kid should get a medal from the City..And I’d be happy to give him some firearms proficiency and tactics tips.

      1. ” (why carry a skateboard deck? It’s not functional….)….”

        It was the whole skateboard.

  12. “Im ba l’hargekha, hashkem l’hargo” — Brachot 58a, 62b, citing Exodus 22.2

    If the Bitchy Little Marxists are threatening to kill us, do we have the right to kill them first?

    1. Sounds like you’re threatening to kill them. Do they have the right to kill *you* first?

    2. The modern American mainstream is not going to kill you, Dr. Ed 2.

      We are going to continue to shove progress — and education, and science, and inclusiveness, and decency, and modernity — down the throat of every clinger, including you.

      You can whine about it, as most commenters here do. You can argue about it legal and academic debates, as the Conspirators do.

      But the culture war has been settled. Compliance will occur.

      1. “Compliance will occur.”

        Compliance is all well and good, but will complaints still be allowed?

        1. Sure!

          Culture war casualties get to mutter and sputter, and whine and whimper, and rant and cry about it all they wish.

          Just so long as they toe the line established by better Americans.

          1. haha yeah they also get bullets in the head of you are a five year old whiteboy

            1. That wasn’t political, it was a mentally ill neighbor. Quit with that.

        2. “Compliance” when it comes to cultural issues usually is enforced with an executioner’s axe, at least historically…

          1. Look at all the people who were executing for complaining that same-sex marriages aren’t really marriages.

          2. We seem to have tamed our racists, our gay-bashers, our wife-beaters and other misogynists, our religious kooks, our drunken drivers, our gun nuts, our authoritarian prudes, and the rest of our stale-thinking misfits well enough so far. Why would this change?

      2. Oh, so you support authoritarianism? That’s good to know.

        1. I’m a libertarian.

          1. “I’m a libertarian.”

            I’m Barack Obama.

        2. “Oh, so you support authoritarianism? That’s good to know.”

          The Rev. delights in authoritarianism. He’s an oppressive sneering bigot.

  13. Well these discussion threads have really devolved.

    Anyway, I started getting into the show Suits … and I know there are a bunch of lawyers here who would condemn the lack of realism (total abandonment of it really) with law, I’ve got to say, it’s a really fun premise and a really fun show. Even when the plot sucks Harvey and Mike ripping off each other is really fun to watch.

    And yeah, even I at moments am like, oh come on it doesn’t actually work like that (maybe if it stuck with the hiring a guy who didn’t go to law school but kept everything else by the book) but overall its a great show.

    I guess its like, most legal dramas to me anyway aren’t fun, so you have to bend the rules to make it fun and throwing the rulebook out the window seems to do the trick.

    Also, it is really weird seeing Megan Markle as an actor before the whole British royalty thing.

    1. Absolutely agree. I really liked the early Suits. Turn your brain off and enjoy broad characters bouncing off one another in fancy clothing. It’s to the legal system what sci-fi is to science; let the legal system jargon wash over you.

      Those USA shows often have a quick half-life for me. One or two seasons of enjoying the premise/asthetic and it gets old. Burn Notice had be for a good 4 seasons, Royal Pains and White Collar for 2.
      Suits had me for 7 seasons till the main couple left and the dynamic died with it.

      In a similar vein, I liked American Gods, but only once I switched mindset to the USA show just let the aesthetic wash over me, and did not worry about the plot episode-to-episode.

    2. The Suits premise was so stupid that its not even good popcorn trash.

      No lawyer would risk everything to knowingly let a non-lawyer pretend to be a lawyer.

      1. You missed the boxing match between opposing lawyers to determine which side would settle!

        1. How will I live.

          My Mother the Car was more realistic than Suits.

          1. I forgot to mention the blackmailing the judge in an ex-parte meeting.

          2. What would a guy — even a lawyer — from backwater Ohio know about suits? Other than suits featuring short sleeves, string ties, and clamp-on suspenders, I mean.

    3. “Even I at moments am like, oh come on it doesn’t actually work like that.”

      I don’t watch Suits, but do sometimes watch other legal shows. My wife gets annoyed when I yell out objections to the legal proceedings (“that’s hearsay” or “why didn’t they read him his rights” or “hey, just shut up and ask for a lawyer”).

      The more basic problem is that most of the practice of law is tedious and boring, and would not make good television.

      1. One the one hand, most Americans can rattle off their Miranda rights because of how often they get repeated on cop TV shows. On the other hand, most of those think cops have to give Miranda warnings when they arrest someone or the arrest is invalid.

        there’s danger involved in trying to learn about the real world by watching television shows.

      2. I’m the same with medical shows…

  14. The show UnWell on Netflix is entertaining.

  15. Anyone have thoughts about the Lower Decks Star Trek show? I come for the inside jokes, but can take-or-leave the two main characters.

    1. It’s entertaining more as a concept than in actual execution. 🙂 I wish they stuck more to the concept of just showing the lower decks and not making the command crew such an active part of it.

      1. Also true. Telling they can’t stick to their premise.

  16. I have a question about systemic racism – Barr pointed to the public school system (particularly inner city) as being potentially systemically racist. The current protests point to the police being potentially systemically racist. Without having a big discussion about if either is right – it would appear that both systems are controlled by public employee unions. Rather than dismantle the police departments and the schools why are we not seriously discussing getting rid of the two unions and the associated system (particularly for employee rewards/discipline/dismissal) that society is saddled with? In this case the unions are the system

    1. Unions are not responsible for the system, nor are they the system. The union is responding to the incentives set up by the system.

      The idea that labor deserves equal representation when negotiating with management is not a racist one.

      1. “The idea that labor deserves equal representation when negotiating with management is not a racist one.”

        I think the counterargument would be systematic racism can occur even in the absence of racist intentions. While I suppose there are racist people who support anti-drug laws for racist reasons, there may be non-racists who support anti-drug laws, but the enforcement of anti-drug laws leads to systematic racism, or something.

        More generally, labor had “equal representation when negotiating with management” even before unions. The purpose of unions is simply to strengthen the bargaining power of labor relative to management (not to make them “equal”, however defined). That’s a policy decision to improve the lot of labor. Public unions don’t make sense because there’s no reason for the public to improve the lot of public labor indirectly, when it has the means to do so directly (because the labor are public employees, and the public decides how they are compensated). If we (the public) want public employees to have something, we don’t have to appoint negotiators for them. We just give them the thing they want, through policy, legislation, etc.

        1. Systemic racism is definitionally devoid of intent. At least by the time the system is instantiated.

          Operationally, the public does not end up deciding how government employees are compensated, though. There’s enough of a disconnect that it’s hard to argue that there isn’t an arms-length relationship there.
          Or, conversely, we’ve chosen to not directly set the pay of public employees but rather allow it to be negotiated. That allows representatives to do the negotiation without redundancy.

          Systemic racism shows up in disparate impact on disadvantaged groups. Unions do tend to be agents against radical systemic change (though arguable strong agents of incremental change). As such, one could argue that the current incarnation of both police and teachers’ unions are indeed part of systemic racism, as they lock such systems in. But not that the existence of such unions as a general notion is systematically racist.

          1. I guess it depends on what we mean by “arms-length”. Almost every public employee job is entered into at arms-length (maybe with the exception of conscription) even in the absence of a union. This includes negotiation as to “pay of public employees”. I am married to a public employee who negotiated her salary without a union (because her job does not have a legislatively mandated union).

            While true that there is a lot of distance between the legislature and any given public employee negotiation, it’s simple for the legislature to mandate the things unions negotiate (minimum pay, healthcare, etc.) to all public employees. (Some of my spouse’s compensation benefits are so mandated.)

            I agree with you that the existence of public unions is probably not intended as a systemic racist scheme. I am willing to take pro-union people at their word that they are merely trying to improve the power of labor relative to management.

            1. Both FDR and George Meaney opposed public sector unions.

          2. I agree that  the existence of such unions as a general notion is NOT systematically racist. However, pretty much every employee (including the management) of both the police department or public schools is a member or started out as a member of the union. Isn’t that the point – Even though unintentional, the result of their thinking, decisions and negotiations is a systemically racist product
            Additionally, as far as schools go – at least in my state – there is no elected official who can fire anyone in the school system including the superintendent.. It is a closed system.

            1. As I said, the current incarnations may have to die for change to occur.

          3. “Operationally, the public does not end up deciding how government employees are compensated, though.”

            Yes and no. For example, I have voted for school levies that were earmarked for teacher pay raises.

            1. Fair enough. And good for you! I am all for the West Wing teachers paradigm.

              I could be wrong, but it feels like there’s a lot of supply and demand in teacher’s pay. Which means there’s a lot of room to negotiate.

              1. “but it feels like there’s a lot of supply and demand in teacher’s pay. Which means there’s a lot of room to negotiate.”

                Not sure what you are saying.

                My opinion, based on being married to a teacher for 30 some years, is that teaching has a bimodal distribution: there is a large number of dedicated teachers who work very hard, and a large number who don’t, and they are all paid the same. The hard workers are underpaid and the slackers are overpaid.

                1. I was indeed aggregating.

                  Yeah, once you drill down it’s clearly badly distributed. Mostly seniority, IIRC. Even in private school.

                  The problem is it’s hard to find metrics about whose dedicated and who isn’t.

        2. I think it’s more than just unions (which I would say probably just took advantage of the system, at least in the case of the police unions).

          It’s a combination of elected officials and their power to deal with unions, the need for the unions, and the apathy of the voters to remove corruption when it happens.

          We see the corruption in any location where one party has been in power for great lengths of time. Both parties, though areas in which they ‘rule’ are different.

          1. With such a pessimistic view, what agents for change do you see?

            We’ve managed to progress a decent amount even in the modern era, so some must exist. Unless you think we’ve reached some calcification critical mass in like 2008. Which is not unreasonable.

            1. Vote all the incumbent lifetime “servocrats” out, stop voting only one party. Ensure that votes are earned instead of a given. Wreck the two party system.

              Sadly, I’m betting many who demand change will go out and do the exact same thing at the booth and expect different results.

        3. ” The purpose of unions is simply to strengthen the bargaining power of labor relative to management (not to make them “equal”, however defined)”

          The challenge is the management has power over the individual employees, but the individual employees do not have any power over management. There are exceptions, but the power to take someone’s job away does not have the same strength as the ability to quit and walk away. What can effect management is if everyone walks away at the same time. For the individual employees, their income comes from their labor. For management, income comes from everyone’s labor, and having to replace one worker only affects a small part of management’s income.

      2. If you think unions are not responsible for the education system, at least in a large part, then you are delusional.

        1. See how NToJ had an argument, and you just yelled?

          Ever thought that might be a nice way to be?

          1. I mean, you’re full of snark – sometimes funny, sometimes mean – instead of arguments at times yourself.

            1. You’re not wrong, and I could do better.

              But I like to think I’m meeting no effort with no effort most of the time.

              Versus this which is meeting effort with not even snark, but denial and name-calling.

      3. I think it’s highly possible that in both cases the unions are reinforcing racist outcomes, even if the idea of labor representation or the unions themselves are not racist.

        In both cases, it seems like the problem is that the unions have a tendency to shield bad performers from accountability. In the case of police unions, this means that cops who engage in unnecessary violence or fake evidence are more likely to get away with it. In the case of teachers unions, it means that bad teachers can hold onto their jobs resulting in either poor instruction or (in the case of “rubber rooms” a drain on resource where school districts are paying teachers not to do anything). Since police violence tends to be concentrated against communities of color and schools with lots of non-white students tend to struggle to attract quality teachers in the first place, protecting these bad employees amplifies these effects.

        Obviously, this isn’t the totality of the problem in either case. And if there wasn’t already systemic racism in both cases it’s unlikely the unions would be the cause (i.e., white people would get brutalized by the cops just as much as black people, and white students would suffer from the same bad teachers and drains on resources as minority students). But existing patterns of systemic racism tend to amplify the effects of these bad employees, and unions in their current form make it harder to address these problems.

        Personally, it seems counterproductive to me that unions work so hard to protect bad employees. It seems like over both the short and the long run most of their members would be better off by removing the “bad apples”, but I think that the inherently adverserial set up of US labor unions leads to an approach where they just don’t want to give at all to management. Germany and Switzerland’s labor unions seem to have figured out a way to have a much more constructive relationship with management in general.

  17. I’d be interested in a discussion of the First Amendment aspects of the judges gag order in Voice Tech Corporation vs Mycroft AI.
    U.S. District Judge Roseann Ketchmark of the Western District of Missouri ordered Mycroft to delete portions of a blog post and ordered Mycroft to stop reaching out to its own open source community for support. Mycroft was specifically told to delete the request that “everyone in our community who believes that patent trolls are bad for open source” re-post and spread the news.

    Seems an overreach to me.

  18. With all the Floyd comments, I’m curious about one thing; why hasn’t there been any public discussion about the actual force used as well as the purpose of prone-restraints? All the coverage seems to divide into two camps: fentanyl Floyd vs. omg you can’t put your knee on someone’s neck this is disgusting the officers were so cold and they don’t care about his life.

    I guess this is why we have trials, but there’s a lot of factual discussion missing about the most important subjects.

    1. Existing literature on Minneapolis Police Department procedures authorizes the use of prone-restraints and neck restraints. They specifically authorize senior officers, like Chauvin, to utilize this in certain situations, namely suspects they believe are experiencing Excited Delirium Syndrome, or ExDS. The officers acknowledge this, as seen and heard in the full bodycam + audio that was released.

    2. Existing literature on ExDS strongly suggests that restraining someone to calm them physically is the best thing you can do for their health. That’s because someone is basically panicking and ODing at the same time. They’re in an agitated state and moving agitates them further. This is important because we’re all told to be outraged by a video and call it wrong, but most of us are lay people. What if the tactics used were, factually speaking, the most optimal attempt to save Floyd’s life? Keep in mind that they utilized this tactic long after the first time he said he couldn’t breathe. He started saying that while he was still standing upright and sitting upright.

    3. Existing literature on knee restraints suggests that, on average, you can apply 2/3 of your body weight in force. Based on Chauvin’s height and weight, he is estimated to be exerting about 90 lbs of force. Again, as lay people that might sound horrifying, but have you ever had someone exert that much force on your neck? Scientific literature is pretty clear that 90 lbs is nowhere near enough force to obstruct your airway.

    4. If the officers were so indifferent to Floyd’s health, why did they call an ambulance early on, long before Floyd started to resist more actively?

    5. If the facts don’t support the public outrage that is to be expected with lay people watching police tactics and everything Chauvin and co did was factually by the book, how can you possibly convict them of any crime?

    6. If the tactics they used were by the book, what would the consequences been if they had used unauthorized tactics or taken no action at all? It really bothers me that nobody asks this question because we don’t want officers in a catch 22 situation where the act of responding to a call can result in dismissal or jailing.

    1. Thanks for posting, although the progressives here will still be outraged, no matter the facts.

      1. They haven’t learned to just ignore facts the way conservatives do.

        1. “just ignore facts”

          Yeah, lefties don’t just ignore facts, they redefine words and create their own facts out of whole cloth. And then scream ‘racist’ at anyone who doesn’t play along with their new make believe.

    2. Not my area of expertise, but the consensus opinions I heard from veteran cops right after the incident was:

      1)There isn’t anything wrong with neck restraints, and the knee on the neck shown had nothing to do with closing his airway or anything.

      2)That leaving handcuffed people prone was a known risk for positional asphyxia, and competent officers should know that as soon as a suspect stops struggling you set them up or put them in the ‘rescue position’ (on their side, one leg bent). In their view, this has been common knowledge for several years, and should be known by every officer by now.

      3)That whatever you thought about the first part, not doing anything after not finding a pulse was unconscionable.

      In general, they agreed that firing was appropriate, and probably jail time as well.

      Again, not my area of expertise, just passing on observations from the experts.

      1. “1)There isn’t anything wrong with neck restraints, and the knee on the neck shown had nothing to do with closing his airway or anything.”

        Compressing the lungs has a known effect on breathing. That effect isn’t “makes it better”.

      2. “2)That leaving handcuffed people prone was a known risk for positional asphyxia, and competent officers should know that as soon as a suspect stops struggling you set them up or put them in the ‘rescue position’ (on their side, one leg bent). In their view, this has been common knowledge for several years, and should be known by every officer by now.”

        Alternatively, when someone you’re lying on top of tells you they can’t breathe, the best approach might not be to continue to lie on them for several more minutes, and maybe check to see if they’re still breathing at a shorter interval than 9 minutes later.

      3. Experts are very divided on positional asphyxia. I cited a study below where several experts call it a myth perpetuated by attorneys.

        Also, I misstated something about the amount of force being applied. The 90 lb estimate is the total amount of force being applied to Floyd’s neck and back. It isn’t 90 lbs straight to the neck.

        With regards to the notion about taking a pulse, what exactly would the point of this be? Keep in mind that the officers suspect ExDS and an OD well in advance of Floyd becoming unresponsive. It’s not like he was out cold for 9 minutes. He became unresponsive towards the end and the ambulance arrives shortly thereafter and they administer medical treatment. That’s exactly what police are supposed to do. If they were authorized to administer treatment themselves, they probably would have injected him with ketamine. This is a hotly contested subject; there have been police custody deaths in the past where officers incorrectly administered ketamine and ended up killing ExDS patients, like the case of Willard Truckenmiller. You probably never heard about this guy because he’s white AND a police officer, but he started showing symptoms of ExDS at a birthday party. His fellow officers were already there, no handcuffs, gentle service that we all expect from police…but they botched the ketamine and it may have contributed to his death.

        On that subject, one of the reform debates we should be having is whether police should dedicate more time towards medical training so that they can administer better first aid while waiting for EMS. I don’t know how it would work logistically, but I’ve also floated the idea that EMS should be responding to certain types of calls at the same time as police. The moment dispatchers hear key words about someone seeming under the influence, don’t make them wait 10-20 minutes for help to arrive after the police get there. Send them together.

        I encourage you to look into more ExDS cases to get a better idea of just how complicated they can be for police and how restraints have NOTHING to do with whether or not the person dies.

        Here’s an interesting case study of one such person. They’re in jail, literally zero restraints, not using drugs at the time, yet sudden death. Moral of the story is don’t use hard drugs especially if you have mental health issues, but still.

        https://journals.sagepub.com/doi/abs/10.1177/1078345817726085?journalCode=jcxa

    3. “Scientific literature is pretty clear that 90 lbs is nowhere near enough force to obstruct your airway.”

      This is nonsense, as any parent whose ever had their 90 pound kid on their back getting a “piggy back” ride by wrapping an arm around the throat can readily tell you. and that’s a 90 pound person who isn’t trying to hurt you.

      1. This is why such discussion are always a disappointment. There are countless scientific studies by use of force experts and medical doctors who do not agree with you in any way, yet our response to such evidence is to personalize it instead of asking further questions. You could have at least asked for links to the studies, but instead of listening to experts, you try to apply common sense and rhetoric to an intricate subject. Some other people here have echoed the same myth of positional asphyxia. You just assume something based on high school science; why don’t you engage in the scientific method and question your own beliefs more? Prior to reading more about this, I thought the same exact thing that you did. The only reason I started digging further is because I noticed a coordinated media assault against police that substituted facts for narratives and that is a massive a red flag as you can find. I was also caught off guard by a moment of candor from AG Keith Ellison who admitted that this will be a hard case to win and hired a very powerful team of attorneys to assist him with the prosecution.

        Here’s a study about how much force is actually applied.

        https://journals.lww.com/amjforensicmedicine/Abstract/2019/03000/Applied_Force_During_Prone_Restraint__Is_Officer.1.aspx

        Most of us know the phrase “if something is too good to be true, it probably is.” I think we need to start teaching the corollary. If something is too bad to be true, it probably is.

        1. awildseeking – just wanted to say thanks for the informative posts

    4. “What if the tactics used were, factually speaking, the most optimal attempt to save Floyd’s life?”

      Bigots gonna bigot.

      And they’re gonna do it here.

  19. Quick VC poll: Does Mr. Biden decline to debate POTUS Trump?

    Yes or No

    1. No. It’s a free opportunity to provoke him into lying on camera.

    2. No.

      Biden is in fact not mentally impaired; there is no reason to decline the debate.

    3. All debates will happen. Even if trump has to threaten to go to Wilmington and debate in a local gym should Vice President Biden be concerned about traveling during these Walking Dead-esqu Covid times.

    4. No. Making fun of Biden’s age will be a loser for Trump, considering the age ranges of his constituency. Guessing Trump’s main line of attack will again be Hilary. It’s going to be fun to watch.

      1. Trump going after Biden’s age? Biden’s life expectancy likely is better because he isn’t an undisciplined bag of fat.

  20. FWIW, some NYT reporters have assembled a pretty good summary of what is known about the Kenosha shootings:

    Kenosha timeline.

    Early days al all, but this is the best overall summary I have seen to date.

    1. Looks like a good case for self defense.

      Here’s a better version of that first shooting video. twitter (dot) com/AntiCommieRuski/status/1298580433915883520 Guy was chasing the shooter, threw something at him (comments say molotov cocktail but I don’t think so), then caught up with him and lunged/attacked as the NYT article says. The fact that another gunshot went off right before the shooter shot also bolsters his reasonable apprehension if he didn’t know who was shooting and figured it could have been his attacker.

      Feast your eyes on this footage of the preceding scenery. https://twitter.com/CommiesLmao/status/1298491392252157952 You will immediately notice that one person stands out in the crowd, a short white bald dude coming forward with a menacing swagger. Reminds me of guys I knew high school who later went to prison. Anyway, he repeatedly says “Shoot me, nigga!” That’s the guy who was shot in the head, name Joseph Rosenbaum. (Side Note: criminal record as a sex offender). His eerily foreshadowing premortem statements remind me of Garrett Foster.

      1. So, a good case for self defense, and yet he is being charged apparently. Also, his father started a gofundme to pay legal costs, but gofundme banned/removed it. Yet gofundme leaves up pages for the violent criminals who were shot.

        1. This guy is being represented by Lin Wood, the QAnon guy.

          A pudgy white teenage dropout whose mommy went to court because the other kids were calling him names is probably going to do great in prison.

          1. To be clear, I don’t know all the facts. The video evidence thus far seems to support self defense, assuming the events are as they appear.

  21. Love hyperbole from news.

    Hurricane Laura storm surge not survivable! oh my goddddd!!

    Oh, wait. 4 died, from trees hitting their houses.

    1. That language comes from National Hurricane Center Director Ken Graham.

      1. And boy was he wrong! Predicted 15-20 feet of storm surge, actual was about 4. This inablilty to predict accurately is not good news to those of us living 6 ft. above sea level and about 100 yards from the ocean.

        1. He’s not alone. It’s been a year of missed predictions.

          My confidence in public officials – including health – has dropped significantly during this pandemic. Not impressed.

    2. Well, how many people went out swimming etc. in the storm surge? The idea wasn’t that everyone in Texas and Louisiana was going to die, just that the surge was very dangerous and you should make sure not to get stuck in it.

  22. Interested in the legal idea that was given to me by a friend.

    Because it was illegal for Kyle to have the fire arm, every action he took with said fire arm is illegal even if the fire arm was used in self defense. Is this accurate, inaccurate or debatable?

    Yes this is about Wisconsin, and yes this is also assuming the last portion of the sentence. I’m not interested in arguing about whether or not it actually was or was not self defense. I’m interested in the part that A is illegal there for BCD are also illegal even if BCD would normally be legal.

    1. If he acted in self defense, then he cannot be convicted for murder or intentional homicide or whatever, regardless of what gun laws he broke. He may face charges for breaking gun control laws, but that should be much less serious than murder.

    2. I don’t think this is correct–I quoted the relevant portion of the Wisconsin self-defense statute above. It allows for the use of deadly force in self defense even if you’ve previously committed an illegal act that causes you to need to defend yourself. You do have a very strong duty to retreat in this scenario, though.

      1. Hard to retreat when you’re flat on your back.

        1. Details don’t matter to woke folks….

          See above. Plenty of people fine with a lynch mob having their way with the kid suggesting he had no right to defend himself from threats of serious bodily injury and even a few suggesting he had a moral duty to just give in to the beating that was coming his way.

        2. He actually did retreat. The first attacker was upon him and he shot him in the head. In the video, he immediately places a phone call and runs from the scene. However, he was then pursued and you saw the rest. I believe the NYT said the second shots were only 90 seconds after the first.

    3. As I understand it, he was too young for Wisconsin’s open carry law to apply to him. However, there’s a specific exemption for 16-17 year olds to open carry rifles. It’s intended for carrying them for hunting purposes, but is not explicitly limited to that. So there’s a good chance he was, in face, able to legally carry the rifle.

    4. No that is not how the law works. One thing does not automatically make everything else in a chain of events illegal.

  23. Gods are the virtue-signaling sports “folx” really fucking stupid. Let’s postpone all events on the final night of the Republican suck-off. Watching more Trump is pretty painful, but it’ll probably beat another “Law and Order” rerun.

    Don’t these fools have highly paid PR departments who could explain, in small words, that this crap will have the exact opposite result than they want?

    1. I suspect LeBron James has a much better sense of the way the American public (and NBA fans in particular) reacts than you do.

      1. He sure understands how to bend a knee for China. I’ll give you that.

      2. Yes I’m sure he has the pulse of the American people as he decides what house to spend the night in and how to spend his stacks of money….

      3. No doubt why he’s not scurrying to pull manufacturing of his shoes back out of China, who’s expanding their million-person Muslim prison as we speak.

        1. “their million-person Muslim prison”

          I think you misspelled “shoe factory”

  24. Remember how the media loves to blare headlines claiming, without evidence, that right-leaning demonstrators shouted racial epithets at this or that event?

    When the left does it on video, they don’t even cover it.
    https://www.breitbart.com/law-and-order/2020/08/27/watch-black-lives-matter-protesters-accost-vernon-jones-outside-white-house/

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