"Why Derek Chauvin May Get Off His Murder Charge"

Here are six reasons why Derek Chauvin and the other three police officers involved in George Floyd's death may get off a murder charge:

1. George Floyd was experiencing cardiopulmonary and psychological distress minutes before he was placed on the ground, let alone had a knee to his neck.
2. The Minneapolis Police Department (MPD) allows the use of neck restraint on suspects who actively resist arrest, and George Floyd actively resisted arrest on two occasions, including immediately prior to neck restraint being used.
3. The officers were recorded on their body cams assessing George Floyd as suffering from “excited delirium syndrome” (ExDS), a condition which the MPD considers an extreme threat to both the officers and the suspect. A white paper used by the MPD acknowledges that ExDS suspects may die irrespective of force involved. The officers’ response to this situation was in line with MPD guidelines for ExDS.
4. Restraining the suspect on his or her abdomen (prone restraint) is a common tactic in ExDS situations, and the white paper used by the MPD instructs the officers to control the suspect until paramedics arrive.
5. Floyd’s autopsy revealed a potentially lethal concoction of drugs — not just a potentially lethal dose of fentanyl, but also methamphetamine. Together with his history of drug abuse and two serious heart conditions, Floyd’s condition was exceptionally and unusually fragile.
6. Chauvin’s neck restraint is unlikely to have exerted a dangerous amount of force to Floyd’s neck. Floyd is shown on video able to lift his head and neck, and a robust study on double-knee restraints showed a median force exertion of approximately approximately 105lbs.

Let’s be clear: the actions of Chauvin and the other officers were absolutely wrong. But they were also in line with MPD rules and procedures for the condition which they determined was George Floyd was suffering from. An act that would normally be considered a clear and heinous abuse of force, such as a knee-to-neck restraint on a suspect suffering from pulmonary distress, can be legitimatized if there are overriding concerns not known to bystanders but known to the officers. In the case of George Floyd, the overriding concern was that he was suffering from ExDS, given a number of relevant facts known to the officers. This was not known to the bystanders, who only saw a man with pulmonary distress pinned down with a knee on his neck. While the officers may still be found guilty of manslaughter, the probability of a guilty verdict for the murder charge is low, and the public should be aware of this well in advance of the verdict.

I don't know how reliable these statements are. However, if these statements are true, and Chauvin et al aren't found guilty of murder for one or more of these reasons (though they may be found guilty of manslaughter), then this makes me wonder about something the left often argues. The left often argues it's better for ten guilty persons to go free than it is for one innocent person to be convicted. Will the left argue the same to keep the lynch mobs at bay?

Of course, legally sophisticated leftists may be able to argue against the relevance of Blackstone's ratio in this case, but I'm referring to popular sentiments from the left about Blackstone's ratio. That's primarily because it's typically the sentiments that are used to incite mobs and the like. Yet if leftists incite mobs to protest and even riot (like they already are doing well before a trial has even occurred) if Chauvin et al aren't found guilty of murder, then whatever leftists may think about the theoretical arguments pertaining to Blackstone's ratio, the theoretical evidently doesn't trump the pragmatic.

NB. I myself am not agreeing or disagreeing with Blackstone's ratio. However, in case anyone is interested, Alexander Volokh's piece offers some helpful background information.

2nd degree murder

Looking at the legal descriptions of third-degree and second-degree, elevation of the Floyd killing to second-degree is quite risky. It requires proving intent to kill, rather than depraved indifference to human life. That's a heavy legal burden.

— Ben Shapiro (@benshapiro) June 3, 2020

Omar - illegal immigrant?

My NEW Ilhan Omar article:

Scott Johnson at Powerline -- he, along w/ Preya Samsundar and myself, are the only reporters over the past 3 yrs who felt "vicious anti-Semitic candidate may have committed dozens of felonies" worth investigating -- hosts it:https://t.co/lHHQH0XG9x

— David Steinberg 🧔🏻 (@realDSteinberg) July 18, 2019

Abortion & eugenics

"Abortion & Eugenics" by Associate Justice Clarence Thomas.

What's done can't be undone

Many of those opposed to the death penalty argue it's wrong to wrongfully execute an innocent person, because death would be an injustice which could never be undone. Short of a miracle, it's not as if the innocent person can be raised from the dead.

Of course, I trust most if not all of those on the opposing side would entirely agree it's wrong to wrongfully execute an innocent person. I take it we'd be agreed here.

However, is the fact that death is an injustice which cannot be undone when carried out against an innocent person (or any person) a good reason to oppose the death penalty?

If it is, then why not oppose lesser punishments in our legal system as well? After all, surely there are many wrongful punishments meted out against innocent persons in our legal system, and surely many if not most of these punishments cannot be undone once they've been administered.

Indeed, wouldn't it be generally wrong to wrongfully punish an innocent person, even if the punishment is less than death? Say someone has been wrongfully imprisoned for a year. Financial or perhaps other restitution might be given to the wrongfully imprisoned person. But it's still a year of freedom he or she can never get back. This, too, cannot be undone.

But let's say the person who is against capital punishment bites the bullet and argues we should do away with lesser punishments for this reason. If so, then what sort of a legal and penal system would we have left? There wouldn't seem to be much of one left, for it would seem to rule out punishing many if not most crimes.

Finally, I think there might be some tension (albeit perhaps a tension which could be relieved) for those who are against capital punishment for this reason but in favor of euthanasia, for it's possible the person who euthanizes themselves may come to regret the decision in the future if it were somehow possible for them to choose again. But, of course, it wouldn't be possible.

Greater than, equal to, less than

Jason Engwer and I recently got into a debate with self-described "Christian Fundamentalist," "Socialist," and same-sex marriage proponent Curt Day. Here's my latest response.

Curt said:

Please understand that I am only arguing for the society's acceptance of same-sex marriage, not the Church's.

Hm, okay, but this contradicts what you said above: "Same sex marriage is an evangelical issue, not a legal one."

What's more, it's duplicitous because you've already argued: "if we have religious liberty, the [sic] Christianity's definition of marriage cannot necessarily prohibit same sex marriages."

Plus in your current comments, which I'll now respond to you, it becomes quite clear you are in fact "arguing for" the church's "acceptance" of "same-sex marriage" given how you keep chastizing Christians like us for not subscribing to your "arguments" for "equality" and the like.

Though the Declaration of Independence has no 'legal' authority...

I don't know why you put "legal" in scare quotes since it's not as if there's a special meaning to the word you're attempting to highlight, is there?

But in any case thank you for conceding the point.

the equality that is emphasized in the Declaration are presupposed, however imperfectly, in the Constitution

This is pretty vague! One could easy say a lot of things are "presupposed, however imperfectly, in the Constitution." God is "presupposed, however imperfectly, in the Constitution." So according to you would there be recourse to argue for a theocracy?

This is indicated by the Supreme Court decisions that undid the systematic inequality that existed in many of the discriminatory laws from our past.

1. While we're on the topic, Jefferson wrote at length about judicial tyranny. Likewise Lincoln (who, as I'm sure you know, is the person most credited with ending slavery) had some choice words to say about judicial tyranny (e.g. check out his first inaugural address). And of course a lot of people today including conservative scholars have said or written quite a bit about judicial tyranny.

2. Are you referring to "the systematic inequality" as far as African-Americans and other ethnicities? How is what you're arguing for analogous to racism?

3. Are you referring to "the systematic inequality" as far as gender inequalities? How is what you're arguing for analogous to sexism?

4. How are homosexuals discriminated against in our society? Homosexual citizens have all the rights every other citizen has within the same bounds every other citizen has. It's not as if homosexuals don't have the right to free speech, free assembly, the right to bear arms, due process, etc.

5. Also, to my knowledge, there's no law disallowing homosexuals to marry. They can marry any man or woman they please so long as their spouse-to-be is of marriageable age, so long as it isn't an illicit consanguineous relationship, so long as they aren't married to more than one partner at the same time, and so long as they are of the opposite sex or gender. These are the same laws for every citizen.

6. If you're referring to changing gender restrictions in the law for homosexuals, why should homosexuals be given special, preferential treatment, different from everyone else in our society, such that we have to redefine marriage to accommodate homosexuals?

7. If we give homosexuals special, preferential treatment when it comes to marriage, then it's potential grounds to give others in society special, preferential treatment when it comes to marriage too. Say if the polysexual wish to marry both a man and a woman at the same time. Or say if the polyamorous wish to marry multiple partners all with their explicit consent.

8. Besides, if this is what you're arguing for, then what you're really arguing for is a redefinition of what constitutes marriage. If so, then it's not just a purely legal matter alone.

Of course, if you want to argue that gays cannot practice same-sex marriage because heterosexuals are superior and thus are the only ones who deserve the right to marry, be my guest.

Nope, sorry, that's not what I'm arguing.

Just remember what you are associating with the Gospel when you do that.

The same could be said of you. You're associating the gospel with your social values.

So why should Christians accept the moral argument of equality? Again, don't and see what you are associating with the Gospel. Do you really want people to think of Christian domination of society when they hear the Gospel?

Why are you more concerned with what society thinks of you than what God thinks of you?

Of course, there is another problem. That problem is that us Christians have difficulty in distinguishing what morals should be binding in the Church alone from those that should be binding in society as well. The cause of that inability to distinguish may not be religious or philosophical but psychological. Those who engage in too much all-or-nothing thinking struggle to make necessary distinctions.

Oh, dear. I guess you're speaking for yourself in this little psychoanalysis, and/or perhaps attempting to turn this into a didactic therapy session as if what grates your conscience is or should also be what grates other Christians as well. Ho hum.

We have a society whose laws are based on equality and respect. That means that none of us should be treated with preference before the law. Likewise, the law should not favor any group.

So why are you arguing for preferential treatment of homosexuals with regard to marriage, per what I've written above?

What some fellow Christians don't know what they are advocating when they want Christianity to determine the laws of the land is that they are asking for a place of preference in society. When a religious or ethnic group does that, they are not asking for democracy, which is the rule of all people, they are asking for an ethnocracy where one group has a position of advantage in making and living before the law over other groups.

Once again, how is this analogous to racial/ethnic discrimination? Perhaps it is, perhaps it isn't. But you still haven't made an argument for it.

As I asked earlier, "equal" in what respect? Under the law of the land? But homosexuals are equal under the law of the land.

Or, for example, one could say, in order for x to be equal y, there needs to be a commonality z shared between x and y. So what is z with regard to your argument about "equality"? Is it that they're both minorities? But how is being a minority inherently deserving of special rights with regard to marriage? Should we allow male Muslim minorities polygyny, up to four wives?

I was pointing out the similarities between Luther's treatment of the Jews later in his career with our treatment of gays. Certainly we are not as severe with gays as Luther was with the Jews. But the justification for society acting against a specific group is the same.

1. If you're attempting to draw a this is to that as that is to this sort of parallel, as in Luther:antisemitism::modern Christians:our purported anti-homosexuality, then for starters you'll have to explain rather than simply assume or assert how modern Christians are discriminating against homosexuals in terms of marriage (which would include you addressing our aforementioned questions such as the ones about "equality") as well as how antisemitism is analogous to compelling Christians to accept a redefinition of marriage to include same-sex marriages.

2. As far as I'm aware, there are no laws against being homosexual, and in fact laws protecting homosexuals. Likewise there are no laws against being of a certain race or ethnicity, and in fact laws protecting minority ethnicities or races. However, whereas there are no moral or immoral consequences directly due to the color of a person's skin, there can be moral or immoral consequences directly due to a person's sexual behavior.

3. And, of course, what you say here cuts against what you said at the very beginning of your comment: "Please understand that I am only arguing for the society's acceptance of same-sex marriage, not the Church's."

Satan v. Olson

    Satan

    Pandemonium

    Attorney for: Melvin Belli

    

    SUPERIOR COURT OF THE STATE OF TEXAS

    COUNTY OF MCLENNAN

    

    Satan                                         

    Plaintiff,

    

    v.

    

    Roger Olson

    Defendant

    

    

    CASE NO: 666

    

    COMPLAINT FOR DAMAGES

    (Defamation of Character)

    Plaintiff complains and for causes of action alleges as follows:

1. Plaintiff is an individual and is now, and at all times mentioned in this complaint was, a resident of Pandemonium. Plaintiff has worked as the Archfiend. Plaintiff has during all this time enjoyed a reputation for unrivaled perfidy, infamy, and iniquity, both generally and in his official occupation.

2. Defendant Roger Olson, is an individual and is now, and at all time mentioned in this complaint was, a resident of McLennan County, Texas.

3. On or about 2011, defendant published Against Calvinism, stating that God was even worse than the Devil.

4. The entire statement “The Calvinist God is worse than the Devil!” is false as it pertains to plaintiff. Plaintiff is a being than which no wickeder can be conceived. Plaintiff prides himself on his unspeakable evil.

5. The invidious comparison is defamatory on its face. It clearly exposes plaintiff to diminished contempt, ill-will, and obloquy.

6. As a proximate result of the above-described publication, plaintiff has suffered irreparable loss of professional ill-repute, and injury to his self-esteem. Plaintiff seeks punitive damages to the tune of hourly disemboweling defendant in ninth circle of hell.

    WHEREFORE, plaintiff demands judgment against defendant,

    and each of them, for:

    1. Compensatory damages according to proof;

    2. Punitive damages;

    3. Interest as allowed by law;

    4. Costs of suit; and

    5. Such other and further relief as this court may deem

    cruel and unusual.

Drones and privacy

(Posted on behalf of Steve Hays on behalf of David Gadbois.)

Here are a few of my thoughts on the recent criticisms of the increasing operations of unmanned aircraft conducting surveillance in U.S. airspace. I came across this article. That's a photo of a Predator B UAV in the Department of Homeland Security/Border Patrol's livery at the top of the article. Other conservative and libertarian pundits that I respect, such as Charles Krauthammer, have made similar criticisms as Mr. Cooke. And I notice that a lot of folks outside of my work have expressed their concerns to me personally on this issue in the past few weeks. I don't know where your political sympathies lie on privacy issues, but here is my take.

All of the information I mention here is public knowledge.

1. While I do work for an unmanned aircraft manufacturer, at this time sales to domestic law enforcement make up a very small fraction of the UAV market. The U.S. and foreign militaries are still the biggest customers in the market by far. I'm not particularly worried that this issue would affect my livelihood one way or another.

2. I think I have fairly good street cred (amongst those who know me) as a small-government guy, residing in a political orbit somewhere between National Review (conservative) and Reason (libertarian) magazine. I'm generally wary of government overreach, especially by the federal government in breach of its constitutional limitations.

3. Technical issues

   That being said, I'm not sure why people consider unmanned aircraft to be fundamentally more intrusive than manned aircraft that routinely fly and surveil in national airspace. Most current UAV systems are operated by a pilot and sensor operator in a ground station, connected either via line-of-sight or satellite wireless data links. The police-operated helicopters and fixed-wing aircraft that have been around for decades likewise require a pilot and camera/spotlight operator for the routine law enforcement operations that most don't object to. Very few UAV systems are autonomous (i.e. don't require pilots in the loop).

   The main driver behind law enforcement's adoption of unmanned systems is cost. It is simply cheaper to have unmanned aircraft as your eyes in the sky per hour vs. a manned aircraft. The only relevant operational advantage of UAVs (that I can think of) is the fact that they tend to be harder to detect audibly or visually (especially when compared to conventional helicopters), but this is not an inherent advantage. For aircraft that share roughly the same gross weight and flight envelope, one can design a manned aircraft to operate as silently as, say, a Predator UAV, and with a similar visual footprint.

   There are, however, classes of UAVs that are smaller than classes of aircraft that would be sizeable enough to conceivably carry humans. These are usually referred to as micro-UAVs. Even smaller craft exist (think hummingbird size), and are known as nano-UAVs. However, the performance and utility of optical sensors diminishes as you scale down to sizes that can be flown on these platforms. The level of capability varies wildly given different sizes and classes of aircraft and corresponding payloads, and I'm not sure what specifically most people picture as being an insidious threat to their freedom.

   Mr. Cooke is concerned that UAVs can provide footage with similar detail as the CCTV cameras that are prevalent in Britain, but that surely isn't right. A UAV loitering at several thousand feet in altitude simply cannot provide this kind of resolution. I haven't seen any classified or proprietary footage, but all of the video I have seen from Predators is only clear enough to identify the presence and general behavior of men on the ground. You could discern that someone is planting an IED, for instance, but you would never get a facial recognition. One could more plausibly raise a constitutional objection to certain uses of infrared sensors (that can image the thermal signatures of humans and provide a general, silhouetted shape), as those are capable of seeing through the walls and ceilings of homes and other buildings. But again, law enforcement has had that capability on manned platforms for many years, so it is hard to see how the situation with unmanned aircraft is fundamentally different. Who cares if this is being done from a Cessna as opposed to a Predator?

   One could rightly point out that some UAV platforms, in the micro or nano class, can and do operate at altitudes of dozens or hundreds of feet rather than thousands, but these become easy to detect at such close ranges, and as mentioned their smaller sizes limit the performance of their optical payloads. There are fundamental limitations in play- the laws of physics as pertains to optics give an upper bound of the performance of any optical device of a given, fixed size.

4. Moral and constitutional issues

   I think some of my civil libertarian friends are seeing "emanations", "penumbras", and other hallucinagenic artifacts in the Bill of Rights that simply aren't there when they assert that the 4th Amendment provides a general right of privacy. The idea that there are restrictions and requirements on how the government may conduct search and seizure is conceptually much more narrow. Perhaps there is a moral case to be made that there ought to be a legal right to privacy, but that ought to be debated in a democratic society and established either by amendment to the constitution or else via conventional legislation passed in Congress. Any amount of serious reflection on the issue would reveal that it would be very difficult to define the nature of (and limits of) a general right to privacy with sufficient philosophical and legal precision and rigor. Also, as a Christian, I cannot think of a biblical principle that would necessarily underwrite an individual right to privacy in relation to the government, so if this right exists I would have to put it into a subservient category of rights (such as "no taxation without representation"), in other words, it would not be a fundamental moral right, even if important.

   Concerning the 4th Amendment, even the most restrictive reading of the text would certainly not prohibit the operation of an unmanned aircraft for the purpose of surveillance per se, it would only require that a warrant be obtained on the basis of probable cause to authorize its use. This seems to be the aim of Rand Paul's bill that requires a warrant prior to the deployment of a UAV, qualified by a handful of exceptions (and, sadly, employing the morally ludicrous exclusionary rule).

   I'm no lawyer, but it seems to me that mere observation and photographic documentation of a person in a public place does not constitute a "search" of his person or intimate possessions, and as such aerial surveillance does not inherently constitute a search that is subject to the amendment at all. The situation gets a little stickier if the person being observed is on his own (or someone else's) private property, but if the person is in an "open field" (i.e. not in a home structure or, perhaps, the curtilage) then they are subject to search under the Open Fields doctrine. I don't know enough to say how legitimate this principle is constitutionally speaking, but it was codified by the Supreme Court's interpretation of the 4th Amendment in 1924 (Hester v. U.S.).

   More interesting is the school of thought that contends that searches are permissible without a warrant as long as they are "reasonable". No less a light than Judge Scalia has advocated this view, thus placing more emphasis on the first clause of the Amendment. Others put more weight on the second clause (the Warrant Clause), insisting that warrants are always required barring only a few exceptions. Interestingly, I consulted the Heritage Guide to the Constitution, and it mentions both views without explicitly endorsing either:

   Until recently the Supreme Court said that warrants were required for all searches and seizures, save those that fell within some exception to that requirement....Today, the Court uses different language, emphasizing not the second half of the Fourth Amendment's text, but the first (the ban on "unreasonable searches and seizures"). See Indianapolis v. Edmond (2000)

   Even Richard Epstein remarks:

   The amendment speaks with a forked tongue. On the one hand, it is clear that the right of all people to be "secure in their persons" looks as though it is "violated" by either pat-downs or body scanners. On the other hand, the use of the law’s most indispensable weasel word, "unreasonable," suggests that only some searches are "unreasonable," leaving it to the fine art of constitutional interpretation to decide which ones those are....That pesky word "unreasonable" has worked its way into our constitutional heritage through the text of the Fourth Amendment. We are thus duty-bound to make sense of it by asking what kinds of searches the government can properly undertake.

   In my view, the grammar and syntax of the Amendment establish a prima facie reading of the text that understands the first clause as having independent meaning from the second clause. In other words, I would side with Scalia's view that there is such a thing as a "reasonable search" that would not require a warrant (as opposed to the view that the first clause is merely a preamble that justifies second clause [the Warrant Clause]). It might be that the language of the 4th Amendment underdetermines the issue, and ought to be amended and clarified one way or the other.

5. In saying these things I do not deny that unmanned aircraft can be potential tools to facilitate government overreach, abuse, Big Brotherism, anti-constitutional encroachments, or outright tyranny. And yes, if there is a drone hovering ten feet outside of your house, peering into your bathroom window with its camera, I would consider it morally to be intrusive, reprehensible, as well as an abridgement of the 4th Amendment's protections. You can make a slippery slope argument if you wish, but this is simply not the situation we are in at present by merely allowing UAVs to aid in domestic law enforcement operations. The existence of a tool, that can admittedly be used for good or evil, does not automatically plunge us in to Orwell's 1984. And if the tool is not intrinsically evil, on what basis can we impose a blanket prohibition?

The Outsider Test for Faith Muse: Where Are My Royalties!?

John Loftus has turned his humble Outsider Test for Faith into a major merchandise industry that sells some of the hottest product around today (news from WSJ is that it's going public early 2012). Some of the most fashionable and beautiful people in the world are wearing OTF gear. The T-blog paparazzi team, headed by Patrick Chan, have captured these photos:



















But here's my question for our lawyer readers, since Loftus has credited me with being the creative inspiration behind developing the OTF, can I get any royalties off of the massive sales Loftus Inc. is pulling in from his OTF merchandise line? If so, I'll give you a cut if you draft a lawsuit and send it to Loftus' law team.

Where to aim

From John Yoo:

The majority of the credit for the operation that killed Osama bin Laden goes to the Obama administration. But it is also a vindication of the Bush administration’s terrorism policies and shows that success comes from continuing those policies, not rejecting them (as Obama has tried to do for the last two years). According to anonymous government sources quoted in the press today, it was the interrogation of al-Qaeda leaders that led to the identification of the courier, who led us to bin Laden’s hiding place. Reports suggest that Khalid Sheikh Mohammed himself may have given up the identity of the courier.

Imagine what would have happened if the Obama administration had been running things back in 2002–2008. It would have given Miranda warnings and lawyers to KSM and other al-Qaeda leaders. There would have been no Gitmo, no military commissions — instead civilian trials on U.S. soil with all of the Bill of Rights benefits for terrorist defendants. There would have been no enhanced-interrogation program, no terrorist-surveillance program, and hence no intelligence mosaic that could have given us the information that produced this success. In the War on Terror, it is comparatively easy to pull the trigger — the truly hard task is to figure out where to aim. President Obama can take credit, rightfully, for the success today, but he owes it to the tough decisions taken by the Bush administration.

Montgomery on China and Greece

Two articles from John Warwick Montgomery:

1. "A Critique of Chinese Religious Options"
   
2. "Greek Opposition to Evangelism"

Obamanation: mainstreaming euthanasia

"Obama Makes Lawyer for Terri Schiavo's Husband Third-Ranking Justice Official"