Archive for the ‘IANAL’ Category

Annals of law (#12 in a series)

Thursday, March 23rd, 2017

Section 29.03 of the Texas Penal Code defines “aggravated robbery”:

Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:
(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:
(A) 65 years of age or older; or
(B) a disabled person.
(b) An offense under this section is a felony of the first degree.
(c) In this section, "disabled person" means an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm.

Seems mostly clear, right? Except: what constitutes “a deadly weapon”?

Is “a pellet gun” a deadly weapon?

Dustin Clark and two other men are suspected in a string of convenience store robberies in Travis County. They were stopped by the Lakeway PD in December of 2015, shortly after allegedly robbing a store in Spicewood, holding “pellet guns” to the clerk’s head, and threatening to kill him. The police found the pellet guns, money, ski masks, other identifying clothing, and a pack of Starburst allegedly stolen by Clark in the car. (The police also found “two deer rifles” in the trunk. I have seen contradictory reports about whether these were airsoft guns or real rifles. However, the “deer rifles” were not used in the robbery, and were not part of the criminal case as best as I can tell.)

Mr. Clark went on trial this week. There seems to have been little doubt about his guilt: his own attorney conceded that it was his client on the surveillance video from the store. The main legal issue was is it plain old robbery, or aggravated robbery?

The pellet guns were found unloaded and not carrying a C02 cartridge that would have made them operable.

Mr. Clark was offered a plea deal of 40 years before trial. The maximum for plain old robbery is 20 years, and 99 years for aggravated robbery. I don’t know enough about Mr. Clark’s background to be able to estimate what the likely sentences would have been.

Mr. Clark turned down the 40-year deal and chose to go to trial. His attorney moved to include robbery as a lesser charge for the jury to to consider, but the Travis County DA successfully fought that motion. So the only charge the jury was allowed to consider against Mr. Clark was aggravated robbery.

And they acquitted him.

But the jury could consider only one charge — aggravated robbery — and after more than six hours of discussion they finally united and ruled that the pellet guns the men used to scare two employees are not deadly weapons. Therefore, several of them told the American-Statesman, they had to acquit Clark. About half of the 12-person jury granted an interview request saying they wish they had the option to convict Clark of the lesser charge.
They said there was no proof the guns contained pellets or the CO2 cartridges that power them at the time of the robbery.

I personally wonder how the clerk was supposed to know that. I’d also really like to see photos of the pellet guns. And I wonder what else this means, legally? Not that I would, but if take the firing pin and cartridges out of a Smith and go hold up a Stop’N’Rob, is it just robbery? The gun can’t fire, right? So it’s not a deadly weapon, at least if I understand the logic here correctly.

[Travis County Assistant DA Amy] Meredith added she still believes aggravated robbery “was the appropriate charge.” State district Judge David Crain denied the defense’s motion to include the robbery charge after taking a break in chambers to research the law. Prosecutors had made Crain aware of a ruling from a case 11 years ago in which pellet guns had been found to be deadly.

I don’t feel too bad for ADA Meredith. Even though she didn’t get a conviction in this case, she did make an interesting legal point. I don’t think this rises to the level of precedent because Judge Crain’s ruling hasn’t been reviewed by a higher court, but perhaps this is something the Texas legislature could offer some additional guidance on. Also, Mr. Clark is still facing charges in six other robberies, so it isn’t like the TCDA whiffed on their only chance to convict him.

I thought about blogging this when the first story appeared Tuesday, but didn’t get to it (this is a busy week). But RoadRich emailed the print version of the story yesterday, which led to a lively discussion between him, myself, Mike the Musicologist, and Lawrence.

MtM observed that he recalls one of the northern states changing the law some years back so that if you brandish a fake weapon with the intent of making your victims think it is real, you get treated like it was real. Spray paint the end of that airsoft gun black and use it to hold up a liquor store? Big boy rules apply.

I think both MtM and I are on the same side of the divide when it comes to the increased tendency to criminalize everything and sweep up more people in the web. But I also think we’re both in agreement that this is the kind of “play stupid games, win stupid prizes” law that we could get behind.

(On a related side note, I’m halfway tempted to start a podcast with the four of us sitting around eating dinner and talking about legal issues. I even have a name for it: “I’m Not A Lawyer, But…”. I figure it should be easy to get sponsorship from SquareSpace, at least. If it proves popular enough, I might even offer to fly Ken and/or Patrick in as special guests for barbecue. That is, if their heads haven’t already exploded. Episode 1 is going to called “Rule of Parties be damned”.)


Friday, January 29th, 2016

In another life, I used to travel between Austin and Rhode Island regularly (once a year or so).

The first time I went, I stayed downtown, at the Biltmore. This was 1995, I think, and it seemed that downtown was dead.

But I kept going back (this was the business I had chosen) and downtown Providence got better. They built a big new mall within walking distance of the Biltmore. They started Waterfire. The last time I was in Providence, it was a fun, exciting place to be. I miss it.

Buddy Cianci was responsible for a lot of this.


He wasn’t a hero of mine, and I never really “met” him. I did encounter him a couple of times.

It was a running joke among my coworkers (and the folks we worked with in Rhode Island) that you should eat at Joe Marzilli’s Old Canteen at least once; not only was the food good, but if you got lucky, you might see Buddy.

Well, one night I was in there with some of my coworkers and some of our Rhode Island contacts. So was Buddy. He actually came over to our table and commented on how cute and well-behaved the young child who was with us was. (As I recall, he was accompanied by a stunning, and very young, woman.)

Later on that trip, I shared an elevator ride with him. I didn’t say anything to him; didn’t seem like the time or place. I kind of wish I had said something nice to him now.


The Prince of Providence is a swell book about Buddy and Providence politics, though I don’t know if it has been updated since 2003.


Buddy reminds me some of Robert Moses. Both were examples of The Man Who Got Things Done. And it seems that both were also examples of the “rude to the waiter” rule. (I watched him get kind of snippy once with a desk clerk at the Biltmore who didn’t recognize him. To be fair, though, he was actually living in the Biltmore at the time…)

I was always conflicted by him. As a Libertarian, he represented a lot of what I hate about big government. As a connoisseur of politicians, especially crooked ones, he was one of the last examples of a type we probably won’t see again.

And I always thought his second conviction was questionable. He was charged on 27 counts, and was acquitted on 26. The one thing he was found guilty of was “racketeering conspiracy”. What the hell does that even mean? What “racket” was he “conspiring” in, if he wasn’t guilty of the other 26 charges?

Then again, I Am Not A Lawyer, and maybe I’m inclined to make excuses for someone I kind of liked.


He may have been a crook. But he was my crook, damn it.

110 years ago today…

Wednesday, December 30th, 2015

…early in the evening on December 30, 1905, Frank Steunenberg, the former governor of Idaho, returned to his home in Caldwell after a busy day downtown. (Among other tasks, Steunenberg renewed his life insurance policy.) He opened the side gate to his home…

…and set off a massive explosion that gravely wounded him. He was carried into his home by family and neighbors, and lingered for a short period of time before succumbing to his injuries around 7:10 PM.

For days thereafter, passerby were picking “little bits” of the governor out of the debris.


Juggalo law.

Wednesday, January 8th, 2014

The Michigan rap group Insane Clown Posse filed suit on Wednesday against the Justice Department and the Federal Bureau of Investigation, saying that the United States government had made the “unwarranted and unlawful decision” to classify fans of the band as criminal gang members, leading to their harassment by law enforcement and causing them “significant harm.”

This by way of a rather cryptic tweet from Popehat:

(Sorry, Mom.)

Not being a lawyer, I’m not sure what Popehat is referring to here as far as the Federal Rules of Civil Procedure, though I’m hoping it wasn’t just a play on ICP’s most famous quote and we’ll get a fuller explanation later. As a guess, I want to say that Violent J and Shaggy 2 Dope may not have standing to sue, as it isn’t clear to me that they have actually been damaged directly by the government’s actions.

TMQ Watch: October 8, 2013.

Wednesday, October 9th, 2013

Offensenitivity! In this week’s TMQ, after the jump…


Random notes: October 8, 2013.

Tuesday, October 8th, 2013

Why would someone buy a mansion for nearly $350,000, then sell it at a $40,000 loss?

Could it be…Satan?

Nothing matters more — even the horrors that took place — than perception. That’s especially true in the case of Resnick’s mansion, where Bell says no evidence supports stories of ghosts and mob murders.
But people believed what they saw on the TV show, which Resnick says was filmed inside the house without his permission. After the show aired, police calls to the vacant house exploded. Some young troublemakers and trespassers even posted on YouTube their own ghost hunts at the house.

Interesting legal question: if the owner can prove that the TV show was filmed on the property without his permission, and if he can prove that the TV show led to his loss on the property, does he have a course of action against the producers? I’m inclined to say, “Yes, but he’ll have a high bar to prove both those things.” Of course, I Am Not A Lawyer.

Yesterday’s NYT ran an interesting article about the Inverted Jenny re-issue, about which I have written previously. I have actually already received my Inverted Jenny first day cover (it’s very nice – I am tempted to scan it and post it) but I did not order a full sheet of stamps. (Because $2 per stamp x 24 stamps = more than I was willing to spend.)

“We thought, wouldn’t it be funny if some of the inverts came out wrong, and actually got printed right side up?” the postmaster general, Patrick R. Donahoe, said in an interview. “And we started thinking, what a great way to recreate the excitement Robey must have felt when he found that first sheet.”
As a result, 100 of the new sheets actually show the airplane flying upright. Each sheet is individually wrapped, so no one can see the stamps before they are bought. A note is included with the right-side-up rarities, alerting buyers to their true nature. Lucky finders can obtain a certificate signed by the postmaster general.

So, wait. The original stamps were valuable because the plane was printed upside down. So they’re making new rare stamps by…printing them correctly in the first place? Excuse me while I go take some headache medication.

The uncharted scale of Detroit’s bankruptcy — it is the largest municipal bankruptcy filing in the nation’s history in terms of both the city’s population and its debt — suggests that it may also become the costliest, experts say. City officials offer no estimate for a final tab, but some bankruptcy experts say the collapse could ultimately cost Detroit taxpayers as much as $100 million. As of last week, 15 firms had contracts with the city that could total as much as $60.6 million, city records show.

Banana republicans followup: December 12, 2012.

Wednesday, December 12th, 2012

Christmas is coming, so let me give you a gift that keeps on giving.

A while back, I noted the case of San Fernando councilman Mario Hernandez and councilwoman Maribel de la Torre. In brief, the two were involved in an extra-marital affair that went sour, there were accusations of domestic violence by both parties, Hernandez later asked that his charges against de la Torre be withdrawn, and the DA refused.

Ms. de la Torre (who, along with Mr. Hernandez, is no longer a councilperson) went on trial today.

The charges were dismissed “after Deputy Dist. Atty. Ruby Arias announced that she would not be able to proceed”.

Why couldn’t she proceed?

…the alleged victim, former San Fernando Mayor Mario Hernandez, failed to appear despite a bench warrant issued for his arrest.

It seems pretty clear that this was a deliberate act on the part of Hernandez. The thing I wonder about (because I am not a lawyer) is: what now? With the charges dismissed, is there still an active bench warrant for Hernandez? Can he still be hauled before a judge? If so, could he face contempt charges? Can the charges be re-filed if Hernandez is found? The dismissal was “without prejudice” so I think the answer to that last question is “yes”, but, again, I Am Not A Lawyer.

I also wonder if this is really worth pursuing any more. It appears that Hernandez doesn’t want it pursued, I’m sure de la Torre is delighted by this turn of events, and both of them (along with the mayor) are no longer in office. Should the DA just call it an unfortunate series of events and move on?

Marc Randazza, and some thoughts about the First Amendment.

Thursday, March 15th, 2012

Ken over at Popehat has a post up about his friend Marc Randazza. I’m not part of Ken or Marc’s group. I’m not a lawyer, I’ve never met Marc Randazza, and I wouldn’t know him if he walked up to me and punched me in the face while using the word “f–k” repeatedly.

But I wanted to pull together some thoughts on the Hon. Marc Randazaa, and why I’d like to shake his hand and buy him a beer.

I think part of the reason for that is one of the small regrets I have in my life. When I was younger, I was inspired by the work of Nat Hentoff: not as a jazz critic, but as a First Amendment activist. My school libraries had books like The First Freedom and, later on, “The Village Voice” (a week or two behind, but…). For those who don’t remember, the VV ran Hentoff’s column on the First Amendment up until 2008.

I thought seriously about becoming a lawyer. But I didn’t want to be just any kind of lawyer: I wanted to be a First Amendment lawyer. I wanted to fight the good fight for little kids like me who were fighting high school newspaper censorship, and big newspapers and magazines who were fighting the government.

In the end, though, I gave up that idea because I didn’t think I could make any money at it. Don’t get me wrong: I didn’t want to get rich, but I wanted to be able to pay off my loans for law school and buy a new car every few years. Just being a First Amendment lawyer didn’t seem like it would lead down that path.

Many years later, I became aquatinted with Mike Godwin. Yeah, that Mike Godwin. I would recognize Mike if he walked up to me and punched me in the face, though it has been about…greeez, 15 years? since I last saw him in person. (He didn’t punch me in the face then, for what that may be worth.) The thing that strikes me about him, thinking back on that time, is that he did something interesting that I didn’t have the knowledge or ability to do: Mike Godwin was one of the people – perhaps the person – who pioneered Internet law. Literally, Mike pretty much invented a whole brand new field of law from scratch as the first general counsel of EFF.

And then there’s Marc Randazza. Why do I think he belongs in the company of people who make me wish I went to law school? Why do I praise a man I’ve never met? “Because that’s just the kind of hairball you are,” say some of my friends. They’re probably right about that. But:

I’ve been thinking about this since last night, and it seems to me that Marc Randazza is a modern day exemplar of the kind of people Melville Davisson Post was talking about:

And I saw that law and order and all the structure that civilization had builded up, rested on the sense of justice that certain men carried in their breasts, and that those who possessed it not, in the crisis of necessity, did not count.

No one of them believed in what the other taught; but they all believed in justice, and when the line was drawn, there was but one side for them all.

He was a just man, and honorable and unafraid.

“a just man, and honorable and unafraid”. I like that phrase very much. I believe there is a shortage of people in the world about whom that could be said, but I think it fits the honorable Mr. Randazza well.

Skippy the Therapy Kangaroo.

Wednesday, February 29th, 2012

This one goes out to Mike the Musicologist, who was a big fan of Skippy when he was younger.

So there’s a family in the Spring area (near Houston) that has a special needs child. (According to the press coverage, the child is 16 years old; the nature of her special needs is unspecified.)

In order to assist the child, the family got a service animal for her.

A service kangaroo.

And now the family’s HOA wants the kangaroo gone, asserting it is “not a household pet.”

I have a hard time deciding who to side with here. I don’t have a high opinion of most HOAs, but I figure they’re a choice you make when you buy a home. However, I question whether this is an enforceable requirement; what defines a “household pet”, and does Federal law trump the HOA restrictions when it comes to “service animals”?

On the other hand, getting your special needs child a vicious Australian animal (yes, I realize “vicious Australian animal” is redundant) as a “service animal” doesn’t exactly strike me as being the smartest thing in the world, either.

(Here’s the opening of “Skippy the Bush Kangaroo”. Apparently, you can get the first season on DVD, at least in some parts of the world.)

Edited to add: Actually, you can get the entire series on DVD, but it won’t do you much good unless you live in Australia or have a region-free DVD player.

Legal update.

Wednesday, January 11th, 2012

We previously noted the Supreme Court taking arguments in the case of Juan Smith. Mr. Smith was convicted of five murders, but the prosecution failed to turn over exculpatory evidence to his lawyers.

Yesterday, the Court overturned Mr. Smith’s conviction on an 8-1 vote, with Clarence Thomas dissenting.

All your GPS are belong to the State.

Monday, November 7th, 2011

Tomorrow, the Supreme Court takes up the case of United States vs. Jones. The key issue in Jones is: did the use of a vehicle-mounted GPS device, without a warrant, to track the movements of a suspected drug dealer, violate the 4th Amendment?

This may very well be one of the most significant 4th Amendment cases in years. The Ninth Circuit has already ruled, in a different case, that the subject

…couldn’t expect to have privacy in his driveway because it had no gate, no sign against trespassing and was regularly used by letter carriers, delivery services and visitors. Furthermore, the judge noted from an earlier 9th Circuit ruling, “a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”

The LAT has an overview of the case, and the issues involved. We’re pretty biased in favor of Jones, and in favor of our hero Judge Alex “Big Al” Kozinski, who wrote:

“The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory.”

There is nothing about GPS tracking that rises to the level of “exigent circumstances” that would justify giving law enforcement a pass on the requirement for a search warrant. We hope that the Supreme Court feels the same way.

(Bonus points to Carol J. Williams for opening with the story of Katz vs. United States, which we have covered previously in this space.)

All apologies.

Wednesday, July 27th, 2011

I feel bad about this, especially since some folks like South Texas Pistolero apparently think I’m worth reading. (Thank you, sir.) But there’s just not a lot going on right now that’s worth blogging about. I blame the heat. And the vertical integration of the broiler industry.

I guess I could point to yet another reason to carry your damn guns, people!

Or yet another example of the police being indistinguishable from armed thugs.

Or I could put up a nifty photo of myself in one of Sean Sorrentino’s “Project Gunwalker” shirts, which he’s reopened orders for (and which you can now get with a pocket, even) but I haven’t picked up mine from the PO Box yet.

I could also ask what kind of fascist country we’re living in, when a judge expresses doubts about the credibility of an accused murderer.

I suppose I could also ask if it’s actually legal for mariachi bands to collude over the fees they charge; doesn’t that strike folks as being a violation of anti-trust law?

I’ve got a post I’m working on about the egg roll problem, but I’m still doing research on that.

The good news is, we’re only a week away from DEFCON 19, which I do plan on blogging. In that vein, if anyone has recommendations for places to eat in Las Vegas, please drop me an email or leave them in the comments. A trip to Lotus of Siam is required, of course, but I’m looking for something to eat on the other four nights I’ll be there.

Edited to add: Hey, while I’m thinking of it, I do want to point folks to this discussion at Battleswarm. I haven’t had a lot to say about Breivik, mostly because other smarter bloggers are saying it all. But for some reason I’m awfully darn curious about his weaponry; I think maybe because the gun in that photo is so blinged up I wouldn’t be shocked to find out that it’s identical to the ones carried by Food Court Team Six.