Good Laws Don't Need Lies

I am back home in Tampa Bay. Currently I am in the backyard of my Aunt's home in Crystal Beach in a hammock while catching up on my reading and waiting for my Crim Law grade to come in. That's when I come across this article about incoming Florida Senate Dem leader Chris Smith's concerns about Stand Your Ground.

Stand Your Ground has already been talked about by people smarter than me for months, but what really made me take notice was a quote from incoming Senate President Don Gaetz and his son Rep. Matt Gaetz:

Consider an elderly woman in a dimly lit parking lot or a college girl walking to her dorm at night," they wrote in the May 2 Northwest Florida Daily News in Fort Walton Beach. "If either was attacked, her duty was to turn her back and try to flee, probably be overcome and raped or killed. Prior to Stand Your Ground, that victim didn’t have the choice to defend herself, to meet force with force.

 Now, I am sure that the Gaetz family believe this is accurate. They have probably been told that this was the case either by staff or lobbyists or someone else they trust. Because that is the problem with politics today. There is too much information and nobody can be an expert on all of them so they have to trust their staff or lobbyists for the truth. And sometimes those people have their own agendas that they place before the truth. I am sure that is what happened because, the truth is, that there was not a total duty to flee. Pre-2005 you could not use deadly force if they could retreat without increasing his danger, but the key is "retreat without increasing the danger". It would be up to a prosecutor to decide if the person who used deadly force could have retreated with a jury ultimately deciding what would have been reasonable in the circumstances. However, it is almost impossible to imagine a world where the Gaetz hypothetical would have led to charges. The old lady or young co-ed didn't have to retreat to the wall before shooting. However, if they were already in their secure car and someone outside the car threatened them they would have to drive away instead of getting out of the car and shooting them.

In Florida victims had the ability to meet force with force as long as it was reasonable to do so. The problem with Stand Your Ground is that it switched the burden from the victim having to show that it was reasonable to the Prosecutor needing to show that it wasn't. By taking away the duty to flee if it was safe you took away one of the elements that Prosecutors and law enforcement could use as proof that a killing was in anger instead of fear. If you eliminate retreat it becomes hard to tell the difference between voluntary manslaughter and self-defense.

More importantly, if Stand Your Ground is such a great law that doesn't need to be changed at all, then it doesn't need distortions to succeed. Instead of saying that victims had to retreat, even at the risk of their safety, before using deadly force the truth is that a lack of retreat could be used by law enforcement as proof that a shooting was not in self-defense. Maybe we don't want that as a state. Maybe we think that the right to ones own safety trumps other concerns like reasonableness. If so, let's be honest about it instead of trying to say that without Stand Your Ground women would be in danger.

I'm going to be pointing PolitiFact towards the quote that started this story to see if they agree with my analysis.

Leslie Knope is my Hero

(Spoilers for the latest episode of Parks and Recreation)

A friend and I recently had a discussion (ok, a fight) about what Thursday Night TV show is best, Community or Parks and Recreation. He said Community was the best because it was bold, interesting, and doing things that no other show on television does. He's totally right. But I love Parks because it doesn't reinvent the wheel. It's pretty much just the Mary Tyler Moore show (down to a curmudgeon boss... Lou Grant and Ron Swanson would be great drinking buddies) but with more surrealism in the comedy. I grew up watching Marty Tyler Moore on Nick and Nite and it still remains one of my favorite shows of all time. The fact that Parks and Rec is just an evolved version of it is no insult on my part.

Just as a generation of women were inspired by watching Mary Richards as she made it on her own as a working woman in TV News (Oprah talks lovingly of the series and how it inspired her to be a journalist), I know that many young women look up to Lesley Knope.

Leslie is also shown as being capable and smart. What other tv character is shown that way? Not since Murphy Brown has a comedy allowed its female lead to be something other than goofily bumbling through life. Ally McBeal and the shows that followed it had flawed female characters who seemed to barely be making it through the day. Carrie on Sex in the City couldn't manage money, had an affair with a married man, and seemed to always be in one crisis after another. These characters were an interesting response to the Amazonian Superwomen of 80s television series like The Golden Girls and Designing Women. The message was that even if you didn't have everything figured out you were still a good person.

That's a great message, and one that is currently being shown on HBO's Girls, but when the entire teleision landscape for women became flightly girl-women who represented them it crowded out representations of the strong women who they could one day become. For the longest time the strongest feminist character on television was 8 year old Lisa Simpson. At least until Leslie came along.

Let's be clear, Leslie isn't perfect. She's pretty, but she admits that best friend Ann is the beautiful one. Leslie is a borderline hoarder, she eats a diet mostly made up of waffles, and she is terminally uncool. Her office is decorated with pictures of her heroes like Hillary Clinton and not her boyfriend or some pop culture icon. The first season got a lot of traction out of Leslie's tendency to talk about historical political issues with people the way most would discuss American Idol. Even the most recent show made a joke over the fact that Leslie has about 20 replicas of the Washington Memorial in her office. What is different is that in the early seasons the jokes seemed to be directed at her. Now, we laugh because that is just something Leslie would do. It's the way you chuckle when you're friend who is into gadgets says he has to new iPad on order. Yes, of course he does. It's part of the reason you love him.

Leslie's dedication to her town, her love of her city, and her desire to be in politics to help others aren't funny anymore. They are things that we respect about Leslie. They are things we admire about her and, hopefully, traits that we want in our own lives. Watching Leslie winning her election gave me such a thrill. My interest isn't in political office (oh, god, no... I am pretty much unelectable) but I do want to work in the law or government in a way that helps people. And it's nice seeing that sentiment being shown on television.

The fact is that Leslie is my hero. I also hope that she's a hero for other women out there who will feel free to talk about politics without being embarrassed or having to play dumb in the process. It's going to be interesting to see who will end up taking her place in the Parks Department (April? Tom? Damnit, not Jerry!) but I'll be tuning in to see more of Leslie Knope being herself without any apologies. 

Because Judges are Illiterate

The title of this post comes from an inside joke (although since I suspect only 4 people will read this I guess maybe you'll all get it) involving something that someone in my study group had written in his notes for Leg Reg about why agencies were better at making decisions in some areas than judges. Of course, what he meant was that some judges are technologically illiterate, especially concerning some of the more specialized areas of regulation that administrative agencies cover. We shouldn't expect a judge to be an expert on the mating habits of the spotted owl or the air quality of classic car emissions, which is good because they usually aren't. In a post-Chevron world we've worked around this problem by limiting the concerns of judicial review of agency actions but that doesn't mean we still don't run into problems of technologically illiterate judges.

I want to take a brief moment to make clear that I'm not talking about all judges. Some judges are amazingly savvy when it comes to technology. When the Supreme Court looked at the issue free speech protections for video games in 2011, some justices clearly knew their stuff. Chief Justice Roberts commented about the ease with which children can bypass parental controls, Justice Sotomayor discussed how the law would treat games featuring the deaths of Vulcans different from humans, and Justice Kagan talked about Mortal Kombat. Justice Scalia, on the other hand, said "I don't know what she's talk about" in response to Kagan's discussion of the game. A lack of knowledge doesn't necessarily result in bad decisions making. Justice Scalia may not have even put a finishing move on an opponant but he still wrote the majority opinion that gave first amendment protections to video games. Scalia got it right in that case, but sometimes a lack of technical knowledge leads to a bad result.

Which brings us to U.S. District Judge Richard Seeborg who recently dismissed a class action lawsuit against Activision and Sony over claims that the Call of Duty games caused first generation Playstation 3 gaming systems to overheat and break. You can read the entire complaint  for yourself but this passage highlghts the problem.

The only misrepresentations identified by the SAC [ed. note Sony America Corportation] on the game itself areSony’s logos – “PS3,” “PlayStation Network,” and “Only On PlayStation.” Plaintiff evidently ascribes a great deal of significance to these phrases, as the SAC contains no other allegations about the videogame’s packaging or the documentation that may have accompanied it. Given that the SAC acknowledges that the PS3 line includes numerous models released over a number of years, it is difficult to accept Garcia’s allegation that the mere presence of PS3 logos on the front of the game’s box, without reference to other disclosures that may have appeared on it, constitutes an affirmative misrepresentation that would deceive a reasonable consumer into believing that all such branded games must be compatible with all PS3 models in perpetuity, or at least for some unspecified number of years.

 As any gamer knows, yes, that is exactly what that logo means. Judge Seeborg may be thinking of a situation common with PC ownership, where a windows XP logo on a piece of software doesn't mean it will work with your XP computer because of other issues with memory or storage or the video card. That isn't the case with gaming consoles. As a friend of mine who works in the video game industry pointed out, "Consoles don't change their min specs like PCs. That's the whole point of them."

The same friend observeed that it's unlikely that any game could cause this type of problem with the console (especially because of the massive quality control process devlopers and Sony puts on games before they reach store shelves) but that it an issue of fact for the trial. To dismiss on failure to state a claim in this situation, for this reason, doesn't seem right. 


It does serve as a good lesson for us (hopefully one day) practicing attorneys that you can never assume a certain level of background knowledge in the judge. As someone who grew up with during the Video Game generation (I remember PONG) I would have assumed that everyone knew that newer games made for a console are still expected to play on that console. If it didn't that it would be expected to have a notice on the box saying that.  I just expect it, the way I expect a new CD to work in my cars CD player even though it's seven years old. I probably would have made the same mistake as this lawyer and not written in some workding about how all games made for the PS3 are expected to work on the PS3,including those made for the first generation. And clearly, that would be a mistake. 


Sure, this was an error on the part of the judge. It was a bigger error on the part of the lawyer for assuming that the judge would know this. Justices Kagan and Sotomayor may have allowed this suit, but they weren't the ones on the bench.