Author Archives: Shawn Stout

The Inverse

It is better that 10 guilty men go free than one innocent suffer.

This is basically Blackstone’s formulation of what should be the priorities of a system of criminal law like ours. One of the worst things that our society ever does is lock up an innocent person.

And it happens a lot. This article concludes that the wrongful conviction rate is something between 3 and 5 percent. Even at the low end, that is a disturbing number, especially given the staggering total number of convictions that flow from the American courts every day.

It seems that the powers that be, especially in places like Virginia, seem to prefer the inverse of Blackstone’s formulation. Attributed to more authoritarian individuals from history, the inverse would see 10 innocents suffer so that one guilty person may be punished.

Which may be exactly what happened in the Bennett Barbour case. A few days ago the RTD reported that a convicted rapist has been charged for the crimes for which Mr. Barbour spent 30-plus years in prison. I have no idea whether the charged individual is guilty of this crime, and I of course will presume his innocence. However, for argument’s sake, I will give the Commonwealth the undeserved benefit of the doubt and count him as the one guilty person in the formulation. Assuming he is guilty and the Commonwealth does not bungle the case, one guilty person will eventually be punished for the terrible crimes of which Barbour was convicted.

In the meantime, unfortunately, it is impossible to know how many people have suffered on account of this injustice. One we can tally for sure is Mr. Barbour. Prison sucks, and I can’t fathom, much less expound upon, his physical and emotional suffering over the last 34 years.

Next, in addition to the wrongfully convicted man himself, we can surely count anyone who ever cared for Mr. Barbour as having suffered in this case. Family and friends watched as their loved one was hauled away for a crime he did not commit and stood powerless as he rotted away in a prison cell.

And while that certainly would get us over the 10-innocent-person mark, there are also the victims who may have suffered at the hands of whoever did commit this crime. That person has been walking free for 34 years. We can’t know for sure if the guilty party has committed crimes in the interim, but the possibility is another frightening aspect of our system of overzealous prosecution and shoddy police work.

Prosecutors and police and those who blindly support their efforts all claim to care about victims. Most of them probably really do. The problem is that they ignore how many extra victims might be created as they ravenously pursue every possible prosecution regardless of the circumstances and the likelihood of guilt or innocence, and in spite of prosecutors’ mythical ethical duty to see that justice is done.



GPS RESULTS ARE IN! Scalia wins big!

Although many out there (who didn’t read this) don’t really understand the SCOTUS decision in U.S. v. Jones, the holding is at least clear enough to have gotten a large number of warrantless GPS trackers off the streets. Well, apparently some didn’t make it off the street yet, but we’ll get to that.

Yesterday, the WSJ blog reported on statements by FBI’s general counsel Andrew Weissman regarding the ramifications of the Jones decision.

Mr. Weissmann, speaking at a University of San Francisco conference called “Big Brother in the 21st Century” on Friday, said that the court ruling prompted the FBI to turn off about 3,000 GPS tracking devices that were in use.

These devices were often stuck underneath cars to track the movements of the car owners. In U.S. v. Jones, the Supreme Court ruled that using a device to track a car owner without a search warrant violated the law.

And we stop there to reiterate that this commentator, like many others, is wrong about the ruling. The Court did not say that tracking a car owner requires a warrant. THE COURT ONLY SAID THAT PLACING THE DEVICE ON A CAR IS A SEARCH. It is true that this will (or should) require a warrant in most circumstances, but courts are not historically shy about finding exceptions to justify warrantless searches. As courts further define the boundaries of this type of search, police forces like the FBI will expand and alter their use to push up against those boundaries. “Mr. Weissmann said that the FBI is now working to develop new guidelines for the use of GPS devices.”

But figuring out how to get back to surveilling us all isn’t the FBI’s only problem:

After the ruling, the FBI had a problem collecting the devices that it had turned off, Mr. Weissmann said. In some cases, he said, the FBI sought court orders to obtain permission to turn the devices on briefly – only in order to locate and retrieve them.

Reminds me of the camera in the pigeon coop in The Wire (and don’t forget good ol’ Fuzzy Dunlop). Um, sorry we illegally placed our equipment there. Can we have it back please? Maybe they should just leave them there until they find out what the legal standard is going to be. Sure, for the ones requiring warrants, they can’t be legally turned back on, but maybe we find out that in certain instances you can get by with just reasonable suspicion or probable cause. In that case, they could just flip the little guys back on in situations where they think the legal standard was met prior to installation. Just a thought. Maybe I should have been a fed.

But back to the FBI’s legal scholar-ing.  Apparently the FBI guys are at least cognizant of the Jones concurring opinion that “a person has a reasonable expectation of privacy in the totality of their movements, even if those movements are in public.” Mr. Weissmann commented that the FBI is also looking at the concurrence to anticipate how it may affect things “down the road.”

So even the concurrence is getting some play. Not bad. And despite the very limited holding by the majority, Nino wrote an opinion that is already protecting a lot of people from police invasions of privacy. So here’s to you, Justice Scalia, defender of liberty.

For today at least.

So long, Simple Justice

Last week, the criminal law blog Simple Justice went quiet. Its author, Scott Greenfield dropped one final post reflecting a bit on the FOUR THOUSAND SEVEN HUNDRED FORTY FOUR posts he published over the last five years. He noted that new blawgers are starting to write stuff that mirrors stuff he had already written and bowed out with this closing message:

So long and thanks for all the fish.

(Witnesses can attest to that song being STUCK in my head for over a week now. I’ve found myself singing it at completely random times since I read the post.)

When I first read that final post, I was slow in catching on to the finality in its tone. I should have noticed when days passed without a new Simple Justice post (since he averaged over 2 a day every day for five freakin years), but other folks out in the blogosphere had to clue me in.

Anyhow, I just wanted to point out how great his blog was and how much it has affected my own aspirations for this one. I know I can’t match his pace, and I can only hope that I can match his integrity and fearlessness in sharing my own thoughts on the interwebs.

I know I’m not alone in hoping that he can’t resist getting back into it. Hell, maybe he’s just taking a break to give readers a chance to catch up. Regardless, his words remain out there, and I would highly recommend them to anyone interested in justice, criminal law, blawging, or scathing curmudgeonly badassness.

WAR CARS 2 – Who needs original topics?

Last week, not long after publishing my last post about police and their big unnecessary military toys, I came across this article  in the RTD about one such armored vehicle getting into some action, the substance of which I’ve provided to save you a click:

A man was taken into custody this morning after he allegedly shot at a Virginia State Police SWAT team vehicle responding to a domestic disturbance call in Dinwiddie County.

State police Sgt. Thomas J. Molnar said James E. Taylor, 36, of Dinwiddie, was being held without bond at the Dinwiddie County Jail on 12 felony charges.

Taylor was charged with eight counts of attempted capital murder, one count of abduction, one count of manufacturing marijuana, one count of child endangerment, and one count of use of a firearm in the commission of a felony.

A sergeant with the Dinwiddie County Sheriff’s Office who initially responded to the call was slightly injured when he struggled with Taylor, and a woman who was with Taylor also was slightly injured. Both were treated at an area hospital and released. A juvenile male who was in the house throughout the incident was not harmed, Molnar said.

The incident, which began with a domestic disturbance call shortly before 11:30 p.m. Thursday, ended when the state police SWAT team entered the two-story home in the 15000 block of Boydton Plank Road shortly after 5 a.m. and took Taylor into custody without incident.

Boydton Plank Road, which was closed to traffic throughout the incident, reopened about 6 a.m.

Molnar said the Dinwiddie sheriff’s sergeant who was the first on the scene encountered Taylor and a woman outside the house, and the sergeant struggled with Taylor, who retreated inside the home.

At that point, other deputies and state police were called to assist, and when the state police SWAT vehicle arrived about 3 a.m., Taylor fired an undetermined number of shots, striking the vehicle once, Molnar said. Authorities did not return fire, Molnar said.

After the SWAT team entered the house and arrested Taylor, he was taken to the Dinwiddie sheriff’s office to be processed.

The investigation was continuing.

So what came first, the shooter or the SWAT truck? I suppose I can’t really speculate as to the accused’s motivations for firing a gun at the police. But according to the article, the standoff with this man went on for over four hours without him firing a shot, and only when the big armored show of force came into play did he respond with his gun. True the war car, being bulletproof, was probably a safer place for officers to be when the shooting started, but maybe it’s a situation in which no shots would have ever been fired had the police not escalated the situation by rolling up – to what started as a domestic disturbance –  in a machine more properly suited for a war zone.


Today at HuffPo, Radley Balko has a piece about a small New Hampshire town’s fight over whether or not they need a tank.  Well, it’s not exactly a tank, but it’s pretty freakin close. And oddly, many of the residents of this town of less than 25,000 think it an unnecessary addition to their local police force.

It turns out that the DHS has been giving out billions in federal grant monies to help local law enforcement militarize around the country. Why would any police department go without one of these badass toys?

“Because it’s wasteful and prone to abuse,” my older, more practical, freedom-loving self might say. And my younger, Texan-American boy side might respond, “but it’s pretty badass.” I can’t seem to agree with myself, even knowing that one of these beasts rests somewhere in my backyard in the hands of an oppressive overzealous police organization.

A while back, this admittedly-awesome-looking piece of $285,000 machinery was sitting by the volunteer fire station near my house, opened-up and on-display for the neighborhood passers by.

I haven’t posted about it until now, partially because of obvious internal conflict. On one side you have the inner child whose response to this machine can be summed up in one word: AWESOME! On the other side, there is the grown-up who can’t help but worry about the many unnecessary ways in which this thing might be put to use by the APD.

Here is a short excerpt from the conversation I continue to have with myself on the issue:

Grown-up Shawn: There is no way that Arlington PD needs this thing. When they first proposed buying it, the budget allocation listed the fuel expense as negligible since the vehicle would so be used so infrequently. Even the excited-looking fatigue-garbed young man who was showing it off at the fire department said it is extremely rare for it to be deployed.

Shawn’s Inner Child: It’s SO AWESOME! And the feds paid for it, including yearly maintenance, so it was, like, FREE.

Grown-up Shawn: I pay federal taxes, too, idiot. And “It’s AWESOME” is not really an argument. Jeremy Lin is also awesome, but I don’t want local police using him against me either.  For every ounce of awesome in that machine, there is a pound of terrifying. The enemy in America’s war on drugs, or at least those most subject to becoming collateral damage, is us, American citizens just minding our business when the police crash this giant death machine through our door because someone mixed up a couple of numbers on a warrant or because we like to wind down with a little crack now and then. Either way, it’s unnecessary and dangerous.

Shawn’s Inner Child: It’s BIG and BULLETPROOF! And you can shoot GUNS out of it! What’s to argue about?

Grown-up Shawn: Ok I admit I would totally like to take it for a test drive. But again, I don’t think that means it should be sitting around waiting for some bored police to decide it doesn’t get used enough and take it out to punish litterers and answer noise complaints. I’ve heard of a time long ago when police talked to citizens and knew something about the communities they served. We should strive to return to that rather than reinforce local police’s misplaced notion of soldierhood by giving them giant scary war toys to complement their unsettling amount of mostly unchecked authority. Also, there are already plenty of soldiers in the Arlington area. I think they’re called . . .um, what is it? . . . OH YEAH! They’re called soldiers. There is no shortage of real military around if the shit ever really hits the fan.

Shawn’s Inner Child: Did I mention that it’s AWESOME?!?

I’ll stop there, but the internal dialogue goes on and on. There are obviously good points being made on both sides. But since I can’t take the thing for a test drive, I am declaring grown-up me the winner (at least as of the time of this post.) These things are unnecessary and downright scary in the hands of people who are known to abuse power like it was an innocent citizen loitering in a “high crime” neighborhood.

But I’d still like to drive one.

I’M BACK . . .

. . . by popular demand (this one guy asked about it a few times. . . Really.) I won’t make excuses for the months of radio silence here, but I will note that what they say about blogging is true: posting consistently is the toughest part. It’s not really that tough to write this stuff, but the real truth is that doing nothing requires less effort than almost any alternative, and it is easy to slip into the habit of not writing.

But I am back, and I fully intend to be more consistent this time. I might even be able to get the other great legal minds of Blitz Legal (aka the Blitz Boyz ™(???)) to start sharing some more of their thoughts with the interwebs.

Anyhow, down to business. Quite a lot happened since I last wrote.

On a personal note, I am licensed (as of today) and will very soon be a full-blown member of the Virginia State Bar. I am contemplating writing more about the Character and Fitness process through which I plodded to get here, but for now, suffice to say that I was once a bad boy and the Character and Fitness Committee deferred my licensing decision for a year to give me time to show that I am now a good boy. I did so and have now been deemed fit to practice law, and I can’t wait to get started.

As for the rest of the legal world, I suppose most relevant to this blog is the fairly uninteresting and anticlimactic end to the first round of GPS tracking litigation. In the Jones case, previously discussed here and here and here and here, SCOTUS ruled a few weeks ago that placing a GPS tracker on a car is a Fourth Amendment search. No more. No less.

There is a vast body of internet commentary by this point that tries to get something more from the case. Google it if you’d like to waste your time. But the gist of Scalia’s prevailing opinion is that it’s a search. I suppose I am happy with this decision since it technically expands our Fourth Amendment protections. But it certainly left something to be desired.

Scalia said that the “reasonable expectation of privacy” test from Katz upon which the D.C. Circuit based its mosaic theory is not the only measure of what the Fourth Amendment protects. Scalia wrote about the historical connection between trespass and property law and our protection against search and seizure. On that basis, he declared the physical trespass of placing the device on the car to be a Fourth Amendment search. He did not say whether it would require a warrant or whether it was reasonable. Just that it’s a search

For more structured and in depth analysis, I suggest looking to Orin Kerr’s stuff at Volokh. This piece on Jones in the context of the automobile exception is a good place to start. But if you just want the short version: Placing a GPS tracker on a car is a search. So now the courts just have to spend the next many years filling in the blanks.

As for other legal news, drugs are still illegal, cops are still dirty and just plain mean, and prosecutors still get away with mind-blowing feats of injustice. More on that stuff to come. . .

A post without a bad cop or prosecutor . . . pure fantasy?


I just realized that it’s been almost a month since I’ve posted anything here. It’s good to be busy, I suppose.

One activity that occupied a decent portion of my spare time for the past 14-ish weeks also happens to be one of the greatest inventions of our time. That’s right; I’m talking about fantasy football. I play in a few leagues, and for most of my teams, along with most of the fantasy football world, this week begins the playoffs.

For some of you out there, this means all that remains is the shame of the consolation bracket and the emptiness of the long months until next year’s draft. Stop crying. It makes you look ugly. And as losers have tended throughout history to remind themselves at the end of the season, there’s always next year.

For the rest of us, it’s time for the final push toward glory, bragging rights, and maybe a little cash as well. And although glory and bragging rights are the greater prizes, the cash involved raises an interesting and important question:

Is fantasy football illegal?

Over at The Legal Blitz (no relation), they recently posed a similar question: Is your fantasy league a federal crime? (h/t Adam Aft). Specifically, the article looks at whether fantasy football leagues are subject to the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA). It points out the test for exemption from UIGEA and issues some leagues/websites might have with that law. However, even exempt leagues still may be illegal under state or other federal laws, which the article does not address.

The article does point out that most states apply a predominance test of skill v. chance to determine what is illegal gambling. (It also has a great section about how the NFL stopped calling fantasy football gambling when they figured out they could make money off of it.)

I thought I would help fill in some state specific information for certain readers out there who might be, for academic or other reasons, interested in this question.

The short story is that in most states, commissioners of ordinary season-long leagues have nothing to worry about. Although there is no case law from any state regarding the legality of fantasy football, most state codes have exceptions for games of skill as well as for purely social gambling.

As I mentioned before, most states apply a predominance test to determine whether a game is one of skill or chance. In Virginia, Texas, and Jersey (places where I happen to know commissioners), a game that is predominantly one of skill would be excepted from the criminal gambling laws, as long as there is no person or house taking a cut as something other than a participant. At a glance, it seems that this is the situation throughout most of the country, and there are strong arguments (some based on my own consistent success) to be made for the proposition that fantasy sports are predominantly a game of skill. And regardless, as evidenced by the dearth of case law on the subject, prosecutors (generally a fairly zealous bunch) don’t seem to be going after fantasy sports at all.

If you would like a quick glance, or perhaps a longer more detailed look, at the various American gambling laws, visit Their convenient state law summary answers five basic questions about the gambling laws in each of the fifty states, and the site as a whole contains tons of information on the subject.

But now that we know that this is one of the few fun things for which we probably can’t be (justifiably) arrested, I’m going to call it good and get back to looking for late-season moves that might help me solidify my place in fantasy history.

Play on, players.

GPS Update – A little future oldthink about this week’s arguments

First, I would like to apologize for my lack of dedication. I am not one of the people who camped out on Monday night/Tuesday morning to see the SCOTUS arguments in U.S. v. Jones, so I do not have a firsthand account of what went down. I am currently reading through the transcripts, but I realized that this late in the game, I probably have very little to add to the interweb conversation.

Thus, to supplement my 2 cents with some real cash, I present in no particular order a variety of links to other writers’ extensive commentary and predictions based on what happened at the Court on Tuesday.

Grits for Breakfast (contains even more links)


Volokh Conspiracy

More Volokh Conspiracy


Above the Law


My personal favorite comment was actually the FB status of a former law school colleague William Jones:

Regarding the GPS case, Scalia sarcastically retorted “well if it’s scary, then it must be unconstitutional.” But maybe his statement was more accurate than he chooses to admit. The fourth amendment prohibits searches and seizures that are “unreasonable”. So a sufficiently scary warrantless search- guess what- might be unreasonable and thus violate the text of the fourth amendment.

Well said, Mr. Jones.

Given the references to Orwell and 1984 by the Court during argument, I am hopeful that at least five of them see that book as a sufficiently scary and cautionary tale. The Chief acknowledged that even they, the mighty nine, could be subjected to constant police tracking if the government gets its way. It’s not every day that the Court explicitly considers the possibility that even big shot Supreme Court justices could be victims of the terrible shit that police do to normal people all the time, so I am cautiously optimistic about where they will come down on this issue (even though the Nine can clearly all afford one of these if they go the other way.)

Despite my hopefulness, we all might want to start learning our next language and practicing our doublethink.

You know, just in case.

My New Show Idea: The Wire – Northern Virginia

For those who are sitting in front of your computers anxiously awaiting my recap of the GPS oral arguments at SCOTUS today, this is not it. (Also, you should find more productive stuff to do with your time.) I didn’t go to argument this morning, but I will give them a listen when they post on Friday and share some thoughts with you then.

For today, to make it up to you, I bring you a fascinating tale of suburban crime-fighting that took a hardened criminal off the streets.

From the Washington Examiner:

A Fairfax woman has been charged with selling synthetic marijuana to George Mason University students.

Fairfax County police said 59-year-old Un Lahr was arrested after authorities received an anonymous tip that she was selling the synthetic pot, commonly known as K2 or spice, to George Mason University students at Lee’s Market.

Virginia Gov. Bob McDonnell signed a bill in March outlawing the manufacture, possession and distribution of synthetic marijuana products.

Police said Lahr would only sell the substances to those who presented a college identification card. An undercover officer made several purchases, police said.

Police said search warrants executed at the market and her two homes yielded $20,000 worth of synthetic marijuana.

"I want my corners."

I don’t know about you, but I’ll certainly feel safer in Fairfax now that college students are no longer being sold dangerous intoxicants. (Except of course for the one that causes this. But the Fairfax police are totally solving that problem, too, with another genius law enforcement solution, highly effective DUI checkpoints. Having 18 officers violate the rights of 893 drivers to arrest one person for DUI is efficient, right? But I digress.)

Kudos to McDonnell for his “emergency” legislation that began prohibiting fake pot in March of this year. Also, props to the Fairfax police for this daring undercover operation that busted a woman selling stuff over the counter from her retail establishment — a feat of law enforcement that no doubt rivaled in badassness the operation that took down Avon Barksdale.

If only this guy had been slashing asses from his own retail shop, a similarly masterminded operation might have taken him down. But you can’t expect to catch ‘em all I suppose.

At least the gov and the Fairfax police kept this particular evildoer from distributing massive amounts of a substance that you can assume is dangerous because they say it is.

I am sure Fairfaxians will all sleep a little better now.

News alert: It is no longer legal to beat your wife in Topeka!

I often complain about the rampant criminalization of basically all behavior as well as the subsequent abuses for which enforcement of said criminalization provides the rationalization. I am one of those outlying few who believe that there are way too many criminal laws that in turn give way too much power to police and prosecutors (who, like other humanoids, are prone to abusing power.) Even Scalia agrees to some small degree (and for less compelling/scary reasons) that some of our criminal laws are problematic.

But today, I will take what could seem at first glance to be an inconsistent, but equally controversial stance:

Beating your wife (or husband or child or other family member) is bad.

Stepping past that intensive lesson on right and wrong, we jump to Topeka, Kansas, where (according to Gawker and NYT) budget cuts recently had city and county prosecutors fighting over who had to prosecute some of Topeka’s misdemeanors. This, like most political standoffs, resulted in a perfectly logical solution: they stopped prosecuting domestic violence for a couple of weeks. Only after the story attracted the attention of basically everyone in the country who writes news about this kind of stuff did they decide to get back to going after wife beaters (the persons, not their attire, which should also be illegal, but probably only if exposed to the public.)

Now, my understanding of economics is somewhat limited, and I in no way believe that I can solve anyone’s budget problems. But I am willing to bet that Topeka spends quite a bit of law enforcement/prosecution money on shit they don’t need (like this) and on crimes that, unlike domestic violence, do not by their very definition involve a victim (see drug possession, etc.). Call me crazy, but I would think about selling my war toy or letting that stuff slide before I legalized domestic violence. I certainly would not need national media attention to bring me around to those realizations.

Which leads me out onto my final limb (for this post): That was dumb.

Sorry if I blew your mind.