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Scott Greenfield on the $1 million award Gura, et al, received for their litigation on the Heller case.

 This is an incentive to lawyers to stay clear of big cases, hard arguments, the overarching constitutional issues that need a champion.  What Judge Sullivan tacitly told Gura is champions go hungry.

For all the zealots who find it simple to spill a few thousand words on how clear and easy it is the scream about constitutional rights, somebody, some lawyer, has to be the grunt who actually makes it happen.  The risk he takes to secure your rights is enormous, enough to crush a person in spirit as well as financially.  You make silly noise about it.  The lawyer puts in the hard work, long hours, personal risk, that actually accomplishes something.

Yet Alan Gura, for better or worse, accepted the responsibility of defending your rights.  For his efforts, he was taught an expensive lesson by Judge Sullivan.  For those of you who delight at his accomplishment, rather than send him a love note and your undying appreciation, send him a check, and send another one to the nonprofits who stood beside him.  This may be your entitlement, but its Gura’s work.  If you love your constitutional rights, show it by your willingness to pay the people who defended them for you.

Disclosure, I was a research assistant for Gura and the team on Heller way-back-when. I received and will receive no compensation.

The social costs of crime are hard to quantify when the police knowingly refuse to report crime.

Crime victims in New York sometimes struggle to persuade the police to write down what happened on an official report. The reasons are varied. Police officers are often busy, and few relish paperwork. But in interviews, more than half a dozen police officers, detectives and commanders also cited departmental pressure to keep crime statistics low.

While it is difficult to say how often crime complaints are not officially recorded, the Police Department is conscious of the potential problem, trying to ferret out unreported crimes through audits of emergency calls and of any resulting paperwork.

As concerns grew about the integrity of the data, the police commissioner, Raymond W. Kelly, appointed a panel of former federal prosecutors in January to study the crime-reporting system. The move was unusual for Mr. Kelly, who is normally reluctant to invite outside scrutiny.

The panel, which has not yet released its findings, was expected to focus on the downgrading of crimes, in which officers improperly classify felonies as misdemeanors.

But of nearly as much concern to people in law enforcement are crimes that officers simply failed to record, which one high-ranking police commander in Manhattan suggested was “the newest evolution in this numbers game.”

Quantifying social cost is very difficult when a perverse incentive exists for the state not to quantify social costs.

Detective Louis A. Molina, president of the National Latino Officers Association, said that for some officers, the desire of supervisors to keep recorded crime levels low was “going to be on your mind,” and that it “can play a role in your decision making.”

“For police officers,” he added, “it’s gotten to the point of what’s the most diplomatic way to discourage a crime report from being taken.”

…

However, some commanders said, officers sometimes bend to pressure by supervisors to eschew report-taking. “Cops don’t want a bad reputation, and stigma,” one commander said. “They know they have to please the sergeants.” Like several other officers and supervisors, he spoke only on the condition of anonymity for fear of retribution.

The sergeants, in turn, are acting on the wishes of higher-ups to keep crime statistics down, a desire that is usually communicated stealthily, the commander said. As an era of low crime continues, and as 2011 draws to a close with felony numbers running virtually even with last year’s figures, any new felony is a significant event in a precinct and a source of consternation to commanders.

Never forget what is unseen.

The state loves creating a false sense of security, and failing to report that crimes occurred is a very easy, and undetectable way of doing so.

 

The Times writes about a texting program, ICYC (In Case You’re Curious), run by Planned Parenthood, which lets kids send sexual questions via text messages. Planned Parenthood provides answers. For example:

While heading to class last year, Stephanie Cisneros, a Denver-area high school junior, was arguing with a friend about ways thatsexually transmitted diseases might be passed along.

Ms. Cisneros knew she could resolve the dispute in class — but not by raising her hand. While her biology teacher lectured about fruit flies, Ms. Cisneros hid her phone underneath her lab table and typed a message toICYC (In Case You’re Curious), a text-chat program run by Planned Parenthood of the Rocky Mountains.

Soon, her phone buzzed. “There are some STDs you can get from kissing but they are spread more easily during sex,” the reply read. “You can get a STD from oral sex. You should use a condom whenever you have sex.”

Ms. Cisneros said she liked ICYC for its immediacy and confidentiality. “You can ask a random question about sex and you don’t feel it was stupid,” said Ms. Cisneros, now a senior. “Even if it was, they can’t judge you because they don’t know it’s you. And it’s too gross to ask my parents.”

Orin Kerr blogs about a District of New Mexico opinion that held that carrying a concealed weapon in a state that permits concealed carry does create reasonable suspicion?

When the officers arrived at the convenience store, through their own observations, they saw the gun concealed under Rodriguez’ shirt and tucked into his waistband. While it is true, as Rodriguez has argued, that he may have been able to possess the handgun under N.M.S.A.1978, § 30–7–2(A)(1), the Tenth Circuit and the Supreme Court have recognized that, even when conduct may have been legal under state law, such possibility does not automatically preclude reasonable suspicion to conduct an investigatory stop. See United States v. King, 990 F.2d at 1556 (“[W]holly lawful conduct might justify the suspicion that criminal activity was afoot.” (alteration in original)(quoting Reid v. Georgia, 448 U.S. at 442)). More specifically, the Tenth Circuit has recognized this principle in the context of New Mexico laws on carrying concealed weapons. See United States v. King, 990 F.2d at 1556.

The officers could have concluded, based on their observations, that Rodriguez would require a license to lawfully carry a concealed firearm. See N.M.S.A.1978, § 30–7–2(A)(5) (providing as an exception to the law that “carrying of a deadly weapon” is an offense when the person is “in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act”). Additionally, New Mexico law expressly permits officers to inquire of persons carrying a concealed handgun whether they have a license to do so. See N.M.Code R. § 10.8.2.16 (“A licensee carrying a concealed handgun on or about his person in public shall, upon demand by a peace officer, display his license to carry a concealed handgun.”). The officers observed Rodriguez’ concealed firearm before interacting with him or communicating with him. . . . Other facts that support the existence of reasonable suspicion are that Munoz was aware that the convenience store was in a high crime area in town, and he had been to this particular gas station in the past numerous times to investigate reports of criminal conduct. See United States v. Arvizu, 534 U.S. 266 (2002)(recognizing that officers are “entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.”); Ornelas v. United States, 517 U.S. 690, 699 (1996)(“[A] police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference.”). Under these facts, the most important fact being the officers’ firsthand observation of the firearm, the officers had reasonable suspicion that Rodriguez was carrying a firearm in violation of New Mexico law.

These facts make this case similar to the Fourth Circuit’s United States v. Black decision. The Fourth Circuit in that case found that reasonable suspicion existed to detain a defendant for carrying a concealed firearm in violation of state law based on the following facts: (i) the officer knew that the area was a high crime area in which the officer had made numerous arrests; (ii) while the officers were talking to the defendant, he had his “right hand awkwardly inserted halfway in his right-hand pocket, ‘cupped’ as if ‘grasping an object’ “; (iii) the defendant hesitated to remove his hand from his pocket when requested to do so; (iv) after the defendant removed his hand, the officer observed a bulge in the defendant’s pocket; (v) the defendant lied about what was in his pocket, saying he had nothing in there other than his money and his identification; and (vi) after the defendant realized that the officers thought he was lying, he put his hand back in his pocket. See United States v. Black, 525 F.3d at 361–62. Notably, the officers in United States v. Black had reasonable suspicion even though they never observed the firearm before the investigatory detention began. In this case, the officers observed Rodriguez’ firearm tucked into his waistband. . . .

Rodriguez may object that the practical end result of the Court’s decision is that, in New Mexico, a police officer’s observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances.

Orin doesn’t agree with the court’s opinion.

The court’s analysis seems wrong to me. The officers saw a guy with a gun. A crime would be afoot only if the man lacked a proper permit. But the officers had no idea if the man had a permit to carry the gun at the time they made the stop: They didn’t inquire, and instead initiated the stop only upon seeing the gun. Obviously, if the officers had asked Rodriguez if he had a license before the stop, and he had said no, the officers would have had both reasonable suspicion and even probable cause to make the arrest. But I think they have to ask first and get evidence of the crime before the stop, not stop first and then get evidence to justify it. And the fact that this occurred in a high-crime neighborhood doesn’t make a difference: The suspect was an employee of a convenience store who was working in the store at the time, so it’s not like the nature of the neighborhood suggests he was more likely to be involved in crime himself.

But due to inevitable discovery, the gun would be inadmissible regardless.

I would think the best argument for reasonable suspicion would be based on the fact that the gun was just tucked in the waistband of the guy’s pants rather than safely holstered, but the court does not address this possibility; I’ll leave to others whether the argument has any merit. Finally, I should note that even if the court’s analysis is wrong, which I think it is, that doesn’t mean the motion to suppress should have been granted. The court did not reach the government’s argument that the “inevitable discovery” exception to the exclusionary rule applied, and it sounds like it would fit neatly here: If the officers had not conducted a Terry stop, they would have asked the same questions and presumably received the same answers.

How can evidence of lawful activity create reasonable suspicion that criminal activity is afoot? That troubles me. Oh no! Those people are reading books! Maybe they’re planning a revolution, let’s stop and frisk!

I’m glad to see the courts are finally joining the 21st century.

Several U.S. bankruptcy courts are inviting people with questions to join them in online chats. The bankruptcy court in Arizona was the first offer information via online chat, prompting court officials in New Mexico and Nevada to follow suit, according to an article released this week by the Administrative Office of the U.S. Courts.

In the article, posted on the AO’s Web site, Arizona Bankruptcy Clerk of Court Brian Karth said: “The court started live chat several years ago, as a result of a strategic plan initiative to better inform and educate the public.”

“I was surprised at the number of attorneys who use our live chat to ask questions,” said Karth. “This has been particularly true in the past two years as many real estate lawyers expand into the field of bankruptcy law and have questions as inexperienced practitioners. They said it was more convenient than waiting on the phone for someone to answer a question—they could work while they waited for a reply.”

According to the article, the Arizona bankruptcy court last month averaged 12 live chats per day, with a high per day of 25. And the average chat lasts nearly nine minutes.