Listen to the episode and read the show notes
Topics of Discussion:
- Justice for Daunte Wright
- Police Reform Laws in Maryland
- Sidney Powell – Motion to Strike
- T3BE Question
Thomas: Hello and welcome to Opening Arguments, this is episode 482. I’m Thomas, that’s Andrew, how’re you doing, sir?
Andrew: I am fantastic, Thomas, how are you?
Thomas: I’m doing great. It’s my son Arlo’s birthday today.
Thomas: He turned two. I am just so over the moon. I love that little guy. He’s got so big.
Thomas: I switched around his car seat so he’s front facing now.
Andrew: Oh gosh!
Thomas: I can’t wait to drive around, be able to see him a little better.
Andrew: Two, that means – for me it was like “alright, well, tee ball starts when you’re three.”
Thomas: He is, yeah, he’s gonna be base jumping. He is a daredevil; he just likes jumping off of stuff like crazy. Drives his mom crazy. Anyway, that’s what’s on my mind, but we’ve got a lot to talk about. First up, Andrew Seidel is on next episode. As much as we love Andrew Seidel, that usually means the Supreme Court did something really stupid, so…
Andrew: Indeed, that is what’s happened. A lot of folks asking about Tandon v. Newsom and we’re gonna cover that next week-
Andrew: -with the best in the biz.
Thomas: Yup. It’s such a mixed blessing kind of thing. I’m like oh! Andrew Seidel! Oh, Andrew Seidel…
Thomas: [Laughs] It’s like, that means theocracy. Oh, dang.
Andrew: It does, it does. It’s bad.
Thomas: I see here Ted Cruz wants to cancel the MLB, but I’m surprised there was another baseball law story that I’m sure you saw. Paul Lo Duca defamation suit, did you see that?
Andrew: I did see that. It was initially on the – it was on what is the precursor to my putting it on the whiteboard.
Thomas: Yeah. [Laughs]
Andrew: But it didn’t make it onto the whiteboard because of time. Yeah, you may have seen that Ted Cruz, Josh Hawley’s unhinged rant about a private business, Major League Baseball-
Andrew: -deciding to relocate their private event, the All-Star Game, away from Georgia to protest the voter suppression law enacted by the Georgia State legislature. Ted Cruz has said in retaliation, in unironic retaliation for a perfectly valid exercise of free speech, Ted Cruz wants to bring the powers of the government down on Major League Baseball and revoke its non-statutory antitrust exemption. My irony meter, you know, it was like comic book guy was like [Impersonation] “Oh an irony meter, that’s super useful.” It’s just off the charts. While we may do a baseball episode, I wanted to remind folks, if you’re a patron at any level, I did a 90-minute lecture, it’s pretty good, on the antitrust exemption and the slides are also up. That’s gonna be in the show notes, if you’re wondering how good of a threat is this, is this smart public policy? Hint, it’s very stupid public policy, go check those shows out.
Thomas: It’s amazing that they do not even care about trying, about consistency anymore, you know?
Thomas: It’s like, cancel culture, they’ll be in the same speech, they’ll be like “I can’t believe liberals are cancelling anything, anyway, baseball’s canceled, but also can you believe cancel culture? Oh, also, cancel Hollywood, we’re gonna cancel them because they backed out of Georgia, anyway, can you believe cancel culture – like it’s in the same sentences. They don’t even try. They don’t even try anymore, Andrew!
Andrew: I don’t know, I mean, other than the Republican party has become the party of old man yells at cloud.
Andrew: I just don’t get it.
Thomas: [Sighs] Well, anyway, that Lo Duca lawsuit seems like just straightforward defamation suit.
Thomas: [Laughs] You can teach us it as “here’s the most straightforward defamation suit and what not to do if you don’t want to get sued,” because that seemed pretty bad.
Andrew: Yup. My former law clerk, Rich Gililand, gave me an update from nationals. He was at the ABA Moot Court Nationals and finished in quarter finals. He says, “kind of a bummer, we got knocked out, but not too shabby to finish in the top 8, and our team’s brief,” which, you know, if you’ve listened to this show at all you know the briefs are where the magic happens.
Andrew: Placed second overall behind Texas Tech, who swept the entire thing. Congrats to Rich, great job!
Thomas: Okay. When I saw “nationals update” I thought it was another baseball story.
Thomas: It’s not a baseball story, gotcha.
Andrew: Not a baseball story. An alumnus of the Law Offices of P. Andrew Torrez made good, and as a reminder if you are a first year, you don’t have a job, and you’re looking for an unpaid internship send me an email at my professional address, you can find that on the internet. I’d love to talk to you. There you go! That’s our pre-segment.
Justice for Daunte Wright
[6:11.7] [Segment Intro]
Thomas: Obviously major depressing news, another police killing. This one is definitely legally speaking a bit interesting and we’ve gotten a lot of questions as to what’s going on. First, tell us what happened in the killing of Daunte Wright and then we’ll talk about the legal components of it.
Andrew: This past Sunday, April 11th, Officer Kim Potter pulled over Daunte Wright for driving with expired tags. As minimal an infraction as you can possibly get. Then standard police procedure, you run the tags through your little SCMOD system and it says “oh, by the way, he has an outstanding warrant.” Again, not a great thing to have. This is an outstanding warrant for a misdemeanor, for failure to appear in court on charges that he fled from officers and possessed a gun without a permit during an encounter with the Minneapolis police. Pulled over for a non-moving infraction, discovered to have had a misdemeanor outstanding warrant. Kim Potter then engages in a physical struggle with Wright and shouts “I’ll tase you, I’ll tase you. Taser, taser, taser,” before pulling out her gun and shooting him at point blank range, killing Daunte Wright. That was Sunday.
Three days later, on Wednesday, April 14th, Officer Potter was arrested and I’m going to talk about what the charges – I’ve posted, the charging documents are available in the show notes – and has been charged with second degree manslaughter. I’m gonna tell you here in this segment, I believe at this point that this is drastically undercharging.
Andrew: We’re gonna talk about the other things that apply, but essentially – and look, how this case is going to be adjudicated has not yet been determined. Keith Ellison did a pretty great job in terms of staffing up the Derek Chauvin trial. You know, you and I have talked about that, we’ve given some updates on Cleanup on Aisle 45. Derek Chauvin trial, that appears to be sort of the model of how you ought to conduct these kinds of cases. We’ll see. In other words, whoever becomes the line prosecutor here will have the discretion to add additional charges.
For me, from my perspective, as somebody with zero access to the evidence, having just seen the video, I certainly would want to test the assertion that folks are saying, which is this is a 20-year veteran officer. We’ve all seen the memes of, like, hold a water bottle in one hand and hold seven water bottles in the other hand, that’s the difference between drawing a taser and drawing your firearm. This is an officer who was teaching classes about how to stop potential criminal defendants like literally the same day that this stop occurred. In a non-police officer case, if – suppose somebody had a concealed carry permit for both a taser – I don’t know if you can carry a taser like that. [Laughs] It would be just like our system to have a law that says you can’t carry a taser, but you can walk around with an AR-14 in Walmart.
Thomas: [Laughs] Honestly, it wouldn’t surprise me if that was how it worked.
Andrew: Right, yeah. But suppose somebody, a non-police officer, was carrying both a taser and a firearm and then there was video of them going “I’m going to hit you with my taser. Taser, taser, taser, taser, taser, taser,” and then you pull out the pistol and shoot them. I think most prosecutors would say, well, were you saying all that “taser” stuff for the cameras, but you intended to shoot them? Let’s be very clear, I don’t have any independent evidence that Officer Potter intended to do that, but when you’re a prosecutor you want to at least explore that possibility.
Thomas: This is such a tough thing, because obviously we’re here strongly on the side of police reform and I don’t think police should even have guns, let alone – at least for traffic stops. We don’t need that possibility. All that aside, everything aside, having watched the video it seems really, really far fetched to me to suggest there’s anything other than a really horrible incompetent mistake here. The theory that she shouted “taser, taser, taser” all with the plan of killing a guy and ending her career and getting – that just strikes me as – like, both theories are terrible, both theories involve some weird stuff, but one makes absolutely no sense and one makes slightly more sense. I think – I just know how mistake prone I can be even at things I’ve done for a million years, and I just think, yeah, in a huge country full of a bunch of tense situations – by the way, they shouldn’t be in. She should have never been in that situation. This is not in any way saying she is guiltless. She shouldn’t have been in that situation, and it shouldn’t have even come to that, because we’ve got to get our police officers de-escalating and maybe not even being armed for traffic – you know, stuff like that. But to suggest this was anything other than she made a mistake, it seems hard to believe when you watch the video. For one, it is in the training to shout “taser” because you want to clear away, that’s how they’re trained to do it when they fire taser. Again, the premeditation that would go into, like, trying to fake that she was doing that when she really just meant to kill a guy?
Thomas: I really find that implausible.
Andrew: I’m really glad that we were able to go down that discussion, because of the preface you put on that. Everybody knows where we stand on this show. I appreciate that. Let’s talk about – I wanted to bracket that there is certainly, as a prosecutor, you would not want to lock yourself out of testing the veracity of the witness, but I agree with you, with what you’ve just said. Although there are sort of problems both ways let’s assume where you come out is intended to draw the taser, intended to taser a suspect cowering in their car, what sort of charges would be appropriate here?
Thomas: You said cowering in his car. I think, when you’re talking about prosecution and you say “well he was cowering in his car.” It’s like, yeah, well, he was under arrest and he wouldn’t come out of his car. Was it reasonable to use a taser? I don’t know. This is certainly criminal negligence. That’s why I saw the manslaughter and I thought that seemed appropriate, but what further charge could there be?
Andrew: Let’s talk about that. Second degree manslaughter, the charge for which she has been indicted and subsequently released on bail – put a pin in that – says a person who causes the death of another by that person’s culpable negligence, whereby the person creates an unreasonable risk and consciously takes chances of causing death or great bodily harm to another is guilty of that particular offense. Yes, that seems to fit squarely the facts that we see from the video. Creating an unreasonable risk, taking chances that could cause severe harm or death to somebody, and in fact you have caused the death of somebody.
Andrew: This is also the section, manslaughter two is the offense that you get charged with if you’ve set a deadly trap.
Andrew: It specifies [Laughing] at rather great length in the statute, I don’t know, I guess that must be more of a thing in Minnesota than I’d anticipated. People set bear traps on their property or whatever
Thomas: Oh, yeah.
Andrew: But, yeah, if you set a deadly trap and somebody wanders by and you kill them, this is the statute that comes into play.
Andrew: Under the Minnesota sentencing guidelines this has a severity level of 8. With no criminal history that means a sentencing guideline in the 48-month range. Four years in prison. When you look at whether other offenses apply, it seems to me that there is an argument, at least, that other offenses might apply. For example, first degree manslaughter says that if you have committed an assault, a fifth-degree misdemeanor assault-
Andrew: -and you’ve then caused the death of another in committing or attempting to commit a misdemeanor assault with such force and violence that death or great bodily harm was reasonably foreseeable, and murder in the first or second degree was not committed thereby, then you are guilty of manslaughter in the first degree. That seems also to me to be a reasonable charge. The reason that, again, I want to approach this the way any prosecutor would approach this. If you’re thinking about the fact that most cases settle, maybe you don’t settle this case. The difference between a second-degree manslaughter charge and a first-degree manslaughter charge, a first you might be well, okay, that’s a base 8 versus a base 9 on the table. Is that a huge deal? Well, 9 is double the average of 8.
Andrew: It is an average of 86 months, just about 8 years as opposed to 4 years. That’s also what you get for first degree assault, which is assault causing great bodily harm. Second degree assault is assault with a dangerous weapon. I think certainly both a taser and a gun apply. All of that is a way of saying that I think that probably – again, it’s not uncommon to see the most appropriate charge get charged first and subsequent charges get added in the course of the investigation via superseding indictment. All of that is my way of saying you may see assault or first-degree manslaughter charges added to Officer Potter here. That is really the difference between – and it’s a difference on two things. It’s a difference between a 4-year prison term and a 7 year or greater prison term. Because of that, that’s also the difference between the State definitely going to trial versus the State being able to plead this out.
Andrew: If you are facing a topline of 8 years you might say “alright, I’m gonna plead to man two with some sentencing recommendations,” and you might thereby be able to arrive at a result that I think would be beneficial for everybody. Again, if you are counsel for Officer Potter they may say nope, you should always, you’re a cop, you should always take “I’m gonna fight this.” That may be from a self-interested standpoint, that may be good advice. I want to be 100% clear with what I’m saying here. When a lawyer represents you, their job is to describe the likelihood of the range of outcomes. If you defend cops who kill Black men, you probably do tell your client “hey, we always got a good shot rolling the dice going to trial.”
Thomas: Yeah, look at how easy my job is, every cop gets off. I mean, I just saw the cop, the Kenosha police officer who shot Jacob Blake, returns to work and will not face discipline.
Thomas: Not even discipline.
Thomas: Yeah, no, this is an uphill climb. I want to ask just about the legal quirks of this, though. I thought the manslaughter one, I mean that does sound more appropriate, maybe, but wasn’t the language there that she had to be committing an assault. Would you be able to say that an officer was committing an assault?
Andrew: That’s a great question, and that’s a question of fact for the jury.
Andrew: An assault is an unwarranted and unjustified touching of another person. It puts at issue, is what Officer Potter did an assault? I certainly would reserve the right to characterize it as such, but there is no – that I know of, feel free, criminal defense lawyers, correct me if I’m wrong on this, but there is nothing in Officer immunity, there’s nothing I’ve been able to find that says exceeding appropriate force is per se not an assault just because you’re a cop.
Thomas: Yeah. [Sighs] I’m just trying to think how the system will fail us, honestly? Let’s say the thing went down how she thought, and she tasered Daunte Wright, that strikes me as that would’ve been kind of a routine, in our terrible country, a routing occurrence that someone got tased and then arrested.
Andrew: I think the answer to that is both.
Andrew: That’s a great segue to the next segment. I think you are correct that has become routine, and I think we are starting to see the public saying “well, maybe it shouldn’t be routine.”
Thomas: Absolutely. Yeah, yeah, yeah. No, I want to make clear, this is not an endorsement.
Thomas: Legally speaking-
Andrew: [Laughing] I think everyone knows where you stand-
Thomas: Legally speaking I would imagine the defense would be look, there’s no – you can’t say she was assaulting anyone because had she actually pulled the trigger on the taser as she thought she was for arguments sake, there’s no assault, that’s just arresting someone who has a warrant. I don’t know, I imagine that would be a hard case to make.
Andrew: And the argument would, in the absence of any additional information, would go back to the Graham v. Connor standard we talked about in episode 480. Is this force excessive, or was it reasonable at the time when seen through the lens of a reasonable police officer-
Andrew: In light of the totality of the circumstances? Again, I don’t think, if you go back to episode 480, I don’t think that’s a slam dunk. Of course, you would get the same testimony of Officer Potter saying yeah, I was totally in fear for my life, he’s in the car and what if he’s got a weapon hidden under the seat or whatever. You get all that standard testimony that we’ve seen in police brutality cases, but I don’t know that it would be enough to get a directed verdict or a motion to dismiss.
Andrew: It seems to me that it’s arguable as a matter of fact. As a matter of prediction, obviously, we see where most of these cases go.
Thomas: We’ll keep an eye on that one when it’s time to talk about police reform in our next segment.
Police Reform Laws in Maryland
Thomas: Andrew, this is a slightly better news segment. Andrew, tell us the slightly better news out of Maryland?
Andrew: Yeah, the Maryland State legislature, heavily Democratic just overrode Republican Governor Larry Hogan’s veto of three crucial pieces of police reform. Spoiler alert, in my view this is model legislation. In many ways, as you will see when we go through it, you and I will say it does not go far enough, and that’s often a great starting place for beginning national movements. Every single aspect of these three bills is something that I would defend. Also, look, Larry Hogan, I’ve spoken good words about Larry Hogan before. He is the frontrunner for the non-crazy Republican nomination in 2024. I wanted to evaluate, in light of somebody with a moderate reputation, with an eye towards national politics, what were the reasons given for vetoing these bills? Do they stand up to scrutiny? Hint, they do not.
Andrew: [Laughs] So, trio of bills, let’s start off with the first one, S.B. 71. Again, I will include the text in the show notes. [Laughing] You’ll include the links in the show notes.
Andrew: So that, you know, you don’t have to take my word for it, you can go read the bills for yourself. S.B. 71 does three things. According to Governor Hogan, two of them were fine, and here are those two things. Number one, mandates body cameras by cops by July of 2023 for the State police and in some counties, and by July of 2025 for everybody else, including in several of the largest counties in Maryland. You know, that’s a healthy long ramp up to phase in use of body cameras. I think I would go for, you know, six months? But no, two years. But, hey, I would rather have mandatory body cameras on all State police in two years than not.
Thomas: Yup. Yup.
Andrew: Good provision. The second thing it does that was not controversial was immediately makes available at no cost to cops an employee assistance program that has counseling, crisis management, stress management, and other best practices for real people who are charged with behaving in a certain way under highly stressful conditions in which they have the ability to use deadly force. Nice to see that, and good to remember cops are human beings and we put them in these hugely stressful situations.
Hogan says he has no problem with that, but he did have problems with the re-definition of the use of force statute. Here’s what Governor Hogan said, he said this would get rid of the presumptive, he calls it the “Graham v. O’Connor” standard, which is kind of funny.
Andrew: But the Graham v. Connor standard that we talked about in episode 480. OA listeners can now evaluate this statement and see whether it’s true or, hint, false. Hogan says the Graham v. Connor case (quote) “establishes an objective standard that police officer’s use of force must be objectively reasonable in light of the facts and circumstances confronting them, and that the new standard adopted by Maryland would be (quote) “a vague and undefined test that would expose every officer’s actions to the sort of speculation that the U.S. Supreme Court rejected in fashioning the current standard.” That is the Graham v. Connor standard. “There would be no guidance to courts as to how to adjudicate.”
Well, I’m gonna – that’s a comparative argument and we’re gonna talk about what the statutory standard is in a second, but if you listen to our episode 480, and if you read the Graham v. Connor case, you recognize that line as nonsense!
Andrew: Graham v. Connor said yes, it’s an objective standard when viewed through the lens of a reasonable police officer acting at the time in light of (quote) “the totality of the circumstances.” Remember, the Supreme Court was like so, you want to consider this non-exhaustive list of all of these factors. The Supreme Court specifically said that means every single time you evaluate police brutality it’s going to be on a case-by-case basis. The idea that Graham v. Connor is this bright line “just be 35 and then you can be President.”
Andrew: Yeah, no, that’s not true at all. That should have sent up your warning detectors. Here’s what the new – and this is now the law in Maryland. S.B. 71 replaces that with the following, which, again, cut to the punchline, I think this is much more clear guidance. It’s also more fair, but here we go. It says “A police officer may not use force against a person unless a police officer under similar circumstances,” so, sidebar, it does not even change the “you look at this from the perspective of an-
Andrew: -objective police officer.” It’s not even that radical a change. “Would believe that under the totality of the circumstances,” so it doesn’t change that either, “the force is necessary and proportional to (1) prevent an imminent threat of physical injury to a person; or (2) to effectuate a legitimate law enforcement objective.” Then it contains – and this is what’s missing from the Graham v. Connor–
Thomas: I was just about to ask, what is different between this? [Laughs]
Andrew: Yeah. I’ll get there. Then it says, “A police officer shall cease the use of force-
Andrew: -as soon as the person on whom the force is used is (1) under the police officer’s control; or (2) no longer poses an imminent threat of physical injury or death to the police officer or to another person, or the police officer determines that force will no longer accomplish a legitimate law enforcement directive.”
Thomas: I mean, this is like the “don’t eat” on the Tide Pod container for police officers.
Thomas: This should obviously be how it works. On one hand [Laughs] I’m glad this is now law in Maryland, but oh my god that is some no-nonsense obvious stuff there.
Andrew: Yeah, you would think. This is clearly implicated by – all of these reforms were proposed in light of the epidemic of white cop on Black defendant violence.
Thomas: This feels very George Floyd related, right?
Andrew: Yes, of course it does!
Thomas: Once you are [Laughs] once you have custody of the guy you can go ahead and stop killing him now.
Andrew: Yeah. Take your knee off of his neck.
Andrew: Notice that under the Graham v. Connor standard, and it’s why – we talked about it. It’s why the defense at the Derek Chauvin trial continues to cite the case, because the inquiry is “was it okay for Derek Chauvin to kneel on George Floyd’s neck?” Not, okay, regardless of whether it was ever okay-
Andrew: At what point did you have to stop?
Thomas: No kidding.
Andrew: And the current Supreme Court law gives no guidance as to when you have to stop. The new Maryland law does. As you pointed out, the rest of the change is as minor a change as you can get while still changing police behavior.
Thomas: This is one of those bills, and there are a lot of these, where it should [Laughs] start off with “Whereas we can’t believe we even have to say this!” then it should go on to the rest of the bill, you know? There’s a lot of those.
Thomas: “I can’t believe we’re writing this down right now, but if there’s not longer a threat, stop killing a guy, police.”
Andrew: You know, I think the next frontier of cases that we can move towards that this would help would be like the Potter case in the previous segment, or like the case that just came to light even though it occurred last December in Virginia, the Lieutenant Caron Nazario, that’s the army officer who was pulled over and you’ve got these Virginia cops going “hey boy, you gonna ride the lightening” and was pepper sprayed, again, the way I would describe, while cowering inside his car.
Andrew: Understood, but to me then the question becomes if you’re the police and you have somebody cornered inside their car, is that somebody who is under police control? Does your obligation for the kind of force you can use change? Again, if you want to make the opposite argument, if you want to say well who knows, maybe he’s got a weapon in the car? Maybe he’s gonna turn the car and drive it. Make those arguments. But right now, it’s not even a part of the inquiry. Right now, we don’t have a constitutional standard that says when you have to stop the use of excessive force, and that’s the main thing in my view that this does.
Andrew: It also imposes a proportionality requirement, but again, that proportionality requirement is going to be seen through the lens of a reasonable police officer at the time. It does not change either of those standards from the Graham v. Connor. That’s S.B. 71 and I think the Hogan veto here strikes me as pretextual.
Next up is S.B. 178. Here I don’t think there’s pretext [Laughing] here, Hogan just does not like these kinds of reforms. I’m gonna lay them on you, there are four major reforms in S.B. 178. They strike me as pretty moderate, but you know, who knows? Maybe pro-cop Thomas will disagree here.
Andrew: The first one, and I think this is really, really smart. I can see how it has the potential to be demonized, is that the police can only serve a no-knock warrant between 8:00 am and 7:00 pm.
Andrew: Yeah, obviously that means there’s no more of this Breonna Taylor bullshit. Again, this will be easy for Uncle Frank to parody and be like “oh yeah, I’m just gonna cook meth all night and sleep all day,” or whatever. Exigent circumstances are warrantless. If you hear somebody screaming in a house and it’s midnight, the police can still call in the SWAT team and break out the door knocker and smash open the place and shoot up as much as they want. This just means when you have gone to a judge and you have gotten a no-knock warrant, you obviously have enough time to go to a judge! You obviously have enough time to go get a warrant. This just says you have to execute that during the day because the potential risks of doing so at night are unacceptable in civil society. We know what those risks are, Breonna Taylor is dead. I love that one.
Second, I love Hogan’s objection to this because this is exactly – these two are exactly the kind of bright line rules that Hogan said he wanted in the previous bill. You don’t get more bright line than “oh, is it 8 o’clock? Okay, you can execute the warrant. Ope, sorry, it’s 7:54, hang out like Jules and Vincent for a couple of minutes before going in.” Similarly, on a knock warrant, that’s one where you do not believe that there is sufficient risk of injury or death to the police officers as to merit telling a judge that we need a no-knock warrant. If you’re about to raid the drug dealer’s den and you know that they have automatic rifles, you’re gonna get your no-knock warrant, that’s why you do that. Knock warrant is what you do when you’re raiding Michael Cohen’s office.
This second reform says you’ve got to wait 20 seconds after knocking and announcing before entering the premises.
Andrew: 20 whole seconds. Then, as a corollary to that, it says oh and by the way if you’re there on a regular warrant you can’t use flashbang grenades when you then come in. That’s it. That is literally all it says. For Uncle Frank, this doesn’t apply on a no-knock warrant, it doesn’t apply if your presumed target is armed and any potential danger to the police. It doesn’t apply under exigent circumstances. It’s just yeah, no, if you’re gonna go, if you’ve gotten the warrant, you have probable cause to search someone’s property, you can’t knock and then storm the door. You’ve got to give them 20 seconds.
If you’re saying “oh, they’re gonna run and flush the drugs.” You know what cops are really good at? Hearing-
Andrew: Yeah. I knocked on the door, I said “we’ve got a warrant,” and then you hear [Toilet flushing] whoosh!
Andrew: That’s real hard for them to come in 30 seconds later and unscrew the pipe. They do that kind of stuff all the time.
Thomas: Yeah. I’m just amazed, there’s gotta be so much stuff they’re gonna put in. Do we need to say no rocket launchers? Do we need to say no swinging from a helicopter throwing grenades down on a thing? What didn’t make it into this bill but almost did?
Andrew: Well, it’s funny that you say that, because that’s gonna be number four. Number three has to do with how records can be produced in accordance with the State’s public information act request. It says the U.S. Attorney, Attorney General, State prosecutor, or State’s Attorney for the jurisdiction in which the cop presides, or in which the cop is employed, can request records relating to the administrative r criminal investigation of misconduct by a police officer. That’s literally all that says.
The final one requires police departments to track the kind of data you just described. Stuff like how many no-knock warrants did you execute? How many times did you call out the SWAT team? That’s a real column you’ve gotta fill out. How many times was a person or a domestic animal injured or killed by the cops in executing your police warrants?
Andrew: How many times were firearms discharged, that sort of thing. Maintaining accurate data at the County level, at the police department level, is really crucial. You look at it and you’re like, oh, look, X department sends out the SWAT team every single time, at a rate ten times higher than the rest of the State. Well, that helps us. Gathering data helps us know, maybe we’ve got a problem in X police department. That’s it for S.B. 178. I don’t see anything that is super hugely objectionable in that, but I’m a crazy leftist, so…
Thomas: I was gonna say, this sounds like a political, “okay, the right-wing governor’s gonna veto and make them overrule it just to say he did.” Is that essentially what’s happening?
Andrew: It is. I will tell you that the first bill, S.B. 71 was bipartisan when it was sponsored. It had two Republican co-sponsors, Michael Hough and Chris West.
Andrew: But once Hogan vetoed they flipped. [Laughs]
Andrew: And so, despite the fact that they’re listed as co-sponsors on the bill, they voted against final passage.
Thomas: Wow! God.
Andrew: Which was entirely along party lines. Yeah. Read that-
Thomas: But this was overridden, I guess is the word?
Andrew: They have the 2/3 in Maryland.
Thomas: This is law.
Andrew: Finally, H.B. 670, this is getting some traction because it repealed the Law Enforcement Officer’s Bill of Rights and so I want to correct some misperceptions about that. Again, that was the base, Hogan said this repeals the Law Officer’s Bill of Rights and also would (quote) “create a patchwork of locally devised processes which are subject to arbitrary and capricious disciplinary procedures.” That is 100% a lie coming from the Republican side that always favors federalism, empowering local authorities. The reason for empowering local authorities in H.B. 670 is because Maryland has the panhandle, we have conservative rural counties and the idea was we’re not going to impose on you the exact same requirements that we impose on the Baltimore city police department.
Andrew: In an urban area that’s densely packed, I agree that you don’t need to have-
Thomas: Yeah, that’s sort of different.
Andrew: Yeah, right. In the far western counties, you know, that’s 99% white. There’s less concern. Not zero concern of racially biased police brutality, but less of a concern. Yeah, have differing standards. That was requested by rural Democrats and Republicans and is then being demonized by the Republican governor.
First thing is it imposes some modest requirements at traffic stops, which, again, I think are a really good idea. At a traffic stop, absent exigent circumstances (guy’s got a gun) police must display ID, badge number, what agency, they’ve got to announce the reasons for the stop. No more of this, like, “you know why I pulled you over?” They’ve got to come over and tell you, “hi, I’m Officer Torrez, my badge number is X, I am with the Maryland State Police-
Thomas: Oh, thank god.
Andrew: “I pulled you over for exceeding the speed limit.”
Thomas: Good. Another no-nonsense thing. They just say “hey, I pulled you over,” I don’t need you to be my teacher from 2nd grade or something.
Thomas: Be like “do you know why?” Aright, man, yeah, I was probably going 7 miles over the speed limit, whatever. White people problems. [Laughs]
Thomas: But a good reform nonetheless.
Andrew: That part is noncontroversial. The Police Officer’s Bill of Rights largely pertains to how police officers get disciplined in the State of Maryland, and let me tell you, the existing procedures were a joke.
Andrew: The old hearing board was comprised of three police officers chosen from law enforcement officers within that agency.
Andrew: Or from another agency if there was permission to loan them over, at least one of which was the same rank as the officer against whom the complaint was filed. Let that one sink in for a minute. Yes, you could and often did have a situation when you were bringing a disciplinary matter against a high-level police officer that 2/3 of the panel could be that person’s subordinates.
Thomas: I just don’t even – this should entirely be citizen review.
Andrew: Of course!
Thomas: Just the culture in this country is maddening. Going back – sorry, kinda going back to the other thing, as you say, Daunte Wright had a bench warrant because he missed a court thing. Okay, then send him a letter saying he missed a court thing.
Andrew: That is what happens when you and I miss court things.
Andrew: Well, not me because I’m a lawyer.
Thomas: [Laughs] I was gonna say, you better not be missing court things, Andrew! Yeah.
Andrew: Yeah. The average layperson that misses a court things gets a nastygram.
Thomas: This idea that the police – god, the conservative mindset around the police, it’s toxic and weird and gross. They work for us. They’re a thing we have in this society that we need to a certain extent. Certainly, don’t need to the extent, the power they seem to have, but we need them to a certain extent and they should work for us. If they do something wrong, you know who should judge if they did something wrong? Us. Not a group of their buddies.
Thomas: That all work in the same department. That’s ludicrous!
Andrew: The old procedure was ridiculous. The new procedure replaces that board with three individuals. First, a police officer of rank equal to the charged officer appointed by the head of the law enforcement agency. It’s not like – this doesn’t even do what you have just proposed. This still gives cops a voice on the panel.
Andrew: To be able to say, and-
Thomas: Yeah, sure, a voice on the panel, that’s fine.
Andrew: I can make that argument.
Thomas: Yeah, yeah.
Andrew: You don’t know what it’s like when somebody’s in a car. Okay, fair. One is a cop. One is an active or retired judge appointed by the county executive, and the third is a civilian appointed by the local Police Accountability Board, which by the way, this also creates. That Police Accountability Board, in return, has certain requirements to be on it. You can’t be a cop-
Andrew: -it’s got to reflect the diversity of the community, that sort of thing. Yeah, one representative that knows the law, that’s a judge; and again, [Laughs] if anything this seems to incline in the direction of a very incremental reform. Judges are not, as a matter, that anti-blue.
Andrew: But you’ve got an active or retired judge, you’ve got a member of law enforcement, and you have a member of the community.
Thomas: It’s certainly an improvement.
Andrew: Of course, it’s an improvement.
Thomas: It sounds much better.
Andrew: Without line-by-lining through the bill of rights, there are eleven items on the bill of rights and it probably will not shock you that of those eleven, seven are basically preserved or, in one case, actually strengthened in this bill. Four of them are jettisoned, and the four that are jettisoned are ones that … I think in any reasonable view, go too far in protecting the cops.
The old rule said that complaints had to be brought within a year, which, by the way, still a one-year statute of limitations on ruling in connection with any investigation, but it used to run from the date of the incident. Now it is from the date the complaint is filed. You had to inform the officer of everyone involved, it had to be supported in writing by an affidavit from the victim. It was designed to discourage bringing investigations against cops. That one’s gone.
Cops used to be able to go to a court to get a show-cause order at any point before the formal investigation. The court would intervene and prevent the police department from proceeding to a formal inquiry. That has been gotten rid of.
The biggest one that’s gone, but thankfully, is the rule on expungement. The old rule was that if you were found not guilty, again in this sham process-
Andrew: By three of your fellow officers, and then three years pass, you could expunge the evidence that any investigation ever took place.
Andrew: And that any evidence of a formal complaint was ever filed. That evidence was explicitly not admissible in an administrative or judicial proceeding.
Thomas: Holy crap.
Andrew: Yeah. What happened in 2019 in Maryland, there was a young Black man named Anton Black on the eastern shore who was forced to the ground and asphyxiated – a very George Floyd-like maneuver – by a police officer named Officer Thomas Webster IV, and then it came to light when he was hired on the police force in Maryland he failed to disclose almost 30 prior incidents-
Andrew: Of use of force reports from his prior career in Dover, Delaware; one of which involved him kicking a Black man in the face during a traffic stop.
Thomas: [Exhales] Hoo. Wow. Police went to the Catholic church school of shielding horrible people.
Andrew: Look, in the abstract if you wanted to say we’re going from it’s super easy to expunge your records to – the new bill says “you may not expunge a record of a police investigation.” Ten years from now if you want to come back and go “okay, this has gone too far and people are filing false complaints and it’s really hurting people” I could listen to that argument. There is an argument in the abstract about the role of expungement, but it is very clear where the pendulum is right now.
Thomas: Mm-hmm. And I don’t know you need, if we entered into a new paradigm where you didn’t have any of these expungements you’d be able to judge, okay, your average officer has such and such complaints that, you know, maybe some percentage of them are BS, you’d be able to use that as comparison. You wouldn’t necessarily have to expunge them if they’re BS, I imagine.
Andrew: That’s right, that’s right. Yeah.
Thomas: You’d have some verdict in there being “eh, there’s really nothing to this,” if it genuinely were just a fake complaint.
Andrew: That’s right, that’s the issue of is this admissible in a court? That is, you are a defense attorney cross-examining a police witness on the stand. Right now, you cannot ask the question “isn’t it true that you have 7 prior open investigations-
Andrew: Into you for excessive force? You should be able to do that. Now, thanks to the passage of this bill, you can.
Thomas: In Maryland, right?
Andrew: In Maryland.
Thomas: [Laughs] I was gonna say…
Andrew: That’s why I think this is a good – you heard this, there is so much more you could do. You could accelerate the time table for body cameras. But this strikes me as the kind of thing if you’re not already on team blue lives matter you look at this and go “this seems like a reasonable starting place.”
Sidney Powell – Motion to Strike
[52:30.5] [Segment Intro]
Thomas: Alright, you made me promise we would have enough time for Sidney Powell.
Thomas: We barely do, so you’d better hurry.
Andrew: I’ll go quick, I’ll go quick, I promise! Oh gosh, we missed this by hours on Tuesday’s – our immediately prior OA, 481. Here’s why I didn’t expect this. On March 31st Governor Tony Evers filed the 30-page Motion for Sanctions and Attorney’s Fees that we covered on the past episode. Under the federal rules that meant Sidney Powell’s reply wasn’t due until April 21st. Put a pin in that.
Andrew: I thought we would have a couple of weeks for this to marinate and we’d be able to come back.
Thomas: Did she burn the midnight oil? Got it done, put in a little overtime, get a good- [Laughs]
Andrew: So, no.
Andrew: Instead of answering, you’d file an opposition, Sidney Powell moved to strike the sanctions motion.
Andrew: And she moved to strike that on the 8th, just a couple of days ago. Her Motion to Strike is 3 pages long, so 3 versus 30, and it raises the one argument that we anticipated, which is oh, this is untimely.”
Andrew: Talking about the merits of that. It doesn’t otherwise answer any of the other serious charges that are in the Motion for Sanctions, it just says get this motion out of here, and is drawing attention because at the end of page 3 in footnote 3 it says that – it quotes Buzz Lightyear and was like “well if you don’t enforce the time limits you could have motion in courts to infinity and beyond.”
Andrew: And you’re like … that’s not clever, you idiot, you’re just saying I want to enforce time limits, but whatever. Yesterday Governor Evers filed his opposition to the Motion to Strike and Thomas, I have to tell you, this has been nothing but a legal smackdown since the beginning.
Andrew: This is the best legal smackdown of those.
Andrew: Yeah, it is so fantastic, and to explain how fantastic it is, I first have to tell you a little bit of a secret. I know you know this because you saw, for example, in the filing of our amicus brief, it’s the difference between an actual motion and the brief supporting it. Usually when I say “I’m gonna upload the Motion for Sanctions” what I’m really uploading is the Memorandum Supporting the Motion for Sanctions.
Andrew: Because the Motion for Sanctions is just a one-page legalese thing that is gonna say “Whereas pursuant to 19 U.S.C. § 7432, Petitioner hereby requests that Respondent pay attorneys fees in the amount of $102,000.00.” That’s it. The reasons why are what’s set out in the accompanying memorandum, and that’s what’s interesting. We call that on the show “the Motion” rather than “the Memorandum,” because you don’t care. [Laughs]
Andrew: Except in this case.
Andrew: I’m going to include both the actual motion that Sidney Powell filed as the Motion to Strike, as well as the Memorandum in Support, because the actual motion begins – I’ve told you these people are cargo cult lawyers all the time. It looks like a pleading but isn’t. It says “Plaintiff William Feehan, by and through undersigned counsel, respectfully requests that this Honorable Court enter an order pursuant to Civil L. R. 7(a), striking Defendant’s Motion for Sanctions.” Now if I read that to you, that doesn’t seem strange, right?
Andrew: That’s just like standard legalese.
Andrew: Except that [Laughs] Local Civil Rule 7(a) is not authority. Local Rule 7(a) is what says, (quote) “every motion must state the statute or rule pursuant to which it is made.”
Andrew: Yeah. They cited the rule that they’re violating in support of-
Andrew: -sanctions to which they are not entitled.
Andrew: It gets better than that. Then Tony Evers says “look, you cited to 7(a) relying” (quote) this is direct from the brief, “relying solely on this rule as the basis for a motion seeking relief is nonsensical. By doing that, Plaintiff has contravened the rule’s directive. This failure is itself sanctionable by the Court.” [Laughs]
Thomas: I was gonna say! It’s like she filed more evidence for the sanctions herself, kinda. Like “here’s some more for ya!”
Andrew: Remember their original brief, we spent a half an hour on this in the last episode. It was not just Spyder’s and Terpsichore’s. It was also “these guys are super bad at being lawyers,” and to come out of the box with, yet again-
Andrew: -screwing up being lawyers is just amazing to me. But it gets better. Okay, 7(a) is not authority. The actual authority would be Rule 12(f) of the Rules of Civil Procedure, but that doesn’t apply because the original sanctions motion is not a Pleading, it’s a Motion. 12(f) says “a Motion to Strike may be directed only towards the Pleadings” that is, the Complaint and the Answer, “and not towards Motions, Affidavits, Briefs, or other documents.” Alright, so we didn’t cite a rule. The rule that we could cite doesn’t apply.
Next, even if it did apply you can’t use a Motion to Strike to get rid of something in its entirety, which is 100% true, by the way. I have litigated a Motion to Strike a couple of times very briefly in my legal career, and what you do is you use a Motion to Strike when the other side has put in salacious and irrelevant allegations in their complaint. I sue you for trespass and then I also put in 150 paragraphs about what a terrible human being you are.
Andrew: This happens a lot.
Thomas: Which would be hard to not do if you’re sanctioning Sidney Powell.
Andrew: Right, yeah. [Laughs] You could then move to strike and if it is truly just salacious and not relevant the court would say yeah, we’re gonna grant the motion to strike, paragraph 17 is stricken from the Complaint. But you may not use 12(f) to strike – here’s the exact authority (quote) “a motion to strike is neither an authorized nor a proper way to procure the dismissal of all or part of a complaint.” In other words, you haven’t cited the right authority; the right authority wouldn’t let you do this; even if it did it wouldn’t grant you the relief that you’re asking for.
Andrew: It gets better. Even if it could, your argument is terrible, and the reason we know the argument is terrible is from what we covered on the last episode. The timing thing only applies to the statutory claim for sanctions and attorney’s fees, that’s the 28 U.S.C. § 1927, and not the court’s inherent sanctions power, which, you know, the brief spends 22 pages on and they literally pretend does not exist. Then it ends with the very, very best which is oh, by the way Sidney Powell, since you’re an idiot and you don’t realize this, filing a Motion to Strike does not toll the time required to respond to a pleading, and you haven’t asked us for an extension of time, and you haven’t asked the court for an extension of time, so your reply is still due on April 21st. That’s a week away, good luck, enjoy working the weekend, buddy!
Thomas: How could she be so bad of a lawyer?
Thomas: I need the Homer Simpson, like “well if you’re gonna sanction me every time I do a stupid thing, maybe I’ll just stop doing stupid things!”
Thomas: Then we all sit there silently, yeah. Yeah, do that.
Andrew: It is – I just cannot – again, you know.
Thomas: But she is the kraken, Andrew! You know, there’s a smackdown, this is all part of her plan. She has ‘em right where she wants ‘em.
Andrew: … okay. [Laughs]
Thomas: [Laughs] You disagree. Okay, alright, we’ll see. [Laughs]
Andrew: I slightly disagree-
Thomas: Oh, wow, that’s a terrible, terrible lawyer. Wow.
Andrew: It is delightful. Next Wednesday we will get – if Sidney Powell files a response we will know by the time we record this show, and I for one cannot wait. [Laughs]
[1:01:20.3] [Patron Shout Outs]
[1:03:06.6] [Segment Intro]
Thomas: And now it’s time for T3BE, impossible winning streak. One in a row. They said it couldn’t be done, Andrew, but I’ve done it, I’ve gotten one in a row. Can I do two in a row?
Andrew: Well, that would be twice as impossible.
Thomas: I’m gonna say no, but I’m still gonna try.
Andrew: I like that spirit. Alright, Thomas, a daughter was appointed guardian of her elderly father following an adjudication of his mental incompetence. The father had experienced periods of dementia during which he did not fully understand what he was doing.
Andrew: The father later contracted to purchase an automobile at a fair price from a seller who was unaware of the guardianship.
Andrew: At the time of the purchase, the father was lucid and fully understood the nature and purpose of the transaction. What is the legal status of the transaction?
Thomas: Oh wow. Huh.
Andrew: (A) The contract is enforceable, because a reasonable person in the situation of the seller would have thought that the father had the capacity to make the contract.
Andrew: (B) The contract is enforceable, because it was made on fair terms and the seller had no knowledge of the father’s guardianship. (C) The contract is void, because the father was under guardianship at the time it was made.
Andrew: Or (D) The contract is voidable at the option of the father.
Thomas: Oh. Wow, this is tricky. Okay. These terms, I don’t know these terms, because there’s power of attorney, there’s all these other things. The question says “a daughter was appointed guardian.” Guardian. Interesting. Guardian of her father following adjudication of his mental incompetence. I could imagine, this is a tough question, feels fair right now, feels not porked but it also feels tough. I feel like I’ll try to reason by way to it.
You’ve got, obviously, the interest of the elderly father. If being (quote, unquote) “guardian” of someone means they cannot enter into any contracts, which, seems plausible. It says following an adjudication of his mental incompetence, seems plausible you wouldn’t be able to enter into any contracts, however they may also be the interest of the seller who doesn’t seem to have done anything wrong. It’s a fair price, they didn’t know. You’re trying to balance those two things. This is classic bar exam question.
Will it be nope, sorry, signatures are magic and guardianship is – could be, could be one of those hard and fast rules, now it’s just void. Void ab initio. I don’t remember what that means, but you say that sometimes. [Laughs] Or is it the kind of thing where it’s like well, we can look at this transaction and say yeah, shouldn’t have really happened but since it’s a fair price and the seller did nothing wrong, the other person in the transaction did nothing wrong, it’s okay to leave it be. Let’s see.
A, the contract is enforceable, because a reasonable person in the situation of the seller would have thought that the father had the capacity to make the contract. This is interesting because these two, the A and B answers are both plausible and I’m gonna have to see which one I like better if I want to go with a yes answer, an enforceable answer.
B, the contract is enforceable, because it was made on fair terms and the seller had no knowledge of the father’s guardianship. I actually think I like B a little better, I’ll get back to that. Let’s see if we’re second chancing A and B or we’re gonna go with another thing.
C, the contract is void, because the father was under guardianship at the time it was made. I mean, that’s the simple it’s just void, sorry, no can do, it’s just void. Which, you know, that does happen in these questions but not that often. Usually it’s like “yeah, if it’s a reasonable thingy.” I’m kind of leaning away from C. I still think C should be in the Thomas’ Second Chance because it is the no nonsense, no, guardianship, can’t do it.
D, the contract is voidable at the option of the father. That doesn’t make sense to me. [Laughs] If the father is not capable of making a contract to begin with you wouldn’t like “okay, the remedy for that is we’ll allow it to void it under his option.” Again, if it’s extreme porkage, maybe that’s the answer, but that seems absolutely – if it said the contract is voidable at the option of the daughter, that would be, that would maybe be answer. That would be like oh, okay, she gets the option as the guardian. I’m gonna eliminate D.
Okay, let’s look at A and B. [Sighs] The difference between A – A says the contract is enforceable because a reasonable person in the situation of the seller would have thought that the father had the capacity to make the contract. Here’s why I like B better, because B mentions the fair terms, and I sort of think that makes more sense. With A you can imagine a situation where it’s like “well, I had no reason to suspect that the father didn’t have the capacity,” but then the father still negotiates a terrible price or he thinks it’s 1932 so he sells his car for $5 dollars or something. I think that leaves open that possibility that it’s still a rip off but as long as the seller thought the father had the capacity to make the contract then it’s okay? I think A is too broad and it doesn’t work.
I’m gonna say it’s between B and C. B once again was the contract is enforceable, because it was made on fair terms and the seller had no knowledge of the father’s guardianship. I mean, that feels really reasonable to me. If this guy, who again, is under guardianship but goes out in the world, makes a deal with somebody who acts in a fair way and they have no idea? I don’t know, I feel like that’s – I lean toward B. I think C is certainly possible, it could just be guardianship, sorry, no contracts, but between B and C I think I’m gonna go B, contract is enforceable because it was made on fair terms and the seller had no knowledge of the father’s guardianship, final answer.
Andrew: Alright, and if you wanna play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag #T3BE; include your guess, your reasons therefore. We will pick a winner and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Alright, thanks so much for listening! That’s our show, we’ll see you for some theocracy and Andrew Seidel on Tuesday.
Andrew: On Tuesday.