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[Warning: graphic sexual content discussed. No way to avoid it in this diary.]

Pretty clearly I misspoke at various times in the rec-listed diary on the Manassas sexting case for which the authorities allegedly want to photograph the 17-year-old defendant's erect penis.  I had suggested that the defendant filmed himself having sex with his 15-year-old then-girlfriend; the articles to-date say nothing about the content of the videos he sent her. I then went on to state that the sex they were having was itself illegal, and I'm pretty sure now that I misread an "under-15" statutory rape law as including 15-year-olds.  

I further failed to notice where the initial article did clearly state that the authorities would "give him a shot" if necessary to induce an erection. That does affect the constitutional analysis, but not by as much as you think. We'll get to that in a second.

I am sorry that these errors derailed and inflamed the discussion at times.  But you've been wrong too.  The diarist and others claimed that she sent him nude pictures as well; the articles only say she sent "pictures." Others suggested that race may be a factor; the defendant, in fact, is white.  

So with more time to think this through, let me sketch out where I think we are:

What are the charges?

"[T]wo felony charges, for possession of child pornography and manufacturing child pornography, which could lead not only to incarceration until he’s 21, but inclusion on the state sex offender data base for, possibly, the rest of his life."

What else have the police said?

According to a police statement last night, "On January 23, 2014 Manassas City Police was contacted by a parent of a 15 YOA female juvenile who was sent pornographic videos by a 17 YOA male suspect after repeatedly being told to stop."  It goes onto state that "It is not the policy of the Manassas City Police or the Commonwealth Attorney’s Office to authorize invasive search procedures of suspects in cases of this nature and no such procedures have been conducted in this case."

This raises a few questions: who told him to stop -- the girl, her parents, the police, or others? And while it's not the policy of the department to authorize invasive searches, didn't they just do so anyway, but just not conduct it yet?  Because it sure sounds like some warrant has already been obtained.

Remember: we only know about this case because his family and attorneys went to the media. There's a whole lot of spin going on from all sides.

Isn't that inherently bullshit to charge felonies for sexting?

I generally agree. There are states which have have recently specified that it's only a misdemeanor for minors to exchange sexually explicit materials with each other. I think that's a better approach, to the extent this criminalized at all. I don't see the point in using actual prosecutions in cases which don't involve coercion or humiliation -- the sharing of pictures beyond a consenting couple, for example -- but I (more than many here, I'm guessing) recognize there is a value in having law enforcement be involved here to rule that sort of thing out first, and to provide some recognition that sexual exploitation (if that's what's going on) is serious.

We don't have any evidence here, however, to support felony charges and the accompanying punishment. Assuming the photos were consensual, and documented legal behavior, and weren't distributed widely ... I can't justify felony charges on the facts we know.  We don't know what the nature of the relationship was between this 17-year-old football player and a 15-year-old girl, but at least we know we don't know that.

Why do they need this picture, anyway?

That's a damned good question. We don't know, because they already have a picture of him in a flaccid state.  The child pornography statute requires that the images include "an identifiable minor ... who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature," but we don't know why he isn't otherwise already identifiable either through the images themselves or other testimony.

Ok, so, what happened?

There's a lot we don't know. We know she sent him "pictures". We know he responded by sending her an explicit video.

Were the pictures she sent him explicit? We don't know, and we don't know if they involved her, him, both of them, or what. We know he is charged with both manufacturing and possessing child pornography, and these charges (esp. the latter) would be odd to bring if it's only pictures of himself.  

Who's in the video(s) he sent her?  Again, we don't know if it's him, her, both of them, or what. Presumably, his erect penis is in one of them, or the photo request makes no sense.

Was he told to stop sending them?  That's what the police claim. By whom, if anyone, we don't know.

What else don't we know? Were these pictures and videos sent to others?

Get to the constitutional issue, lawyer-boy.

Let's acknowledge that the police now claim it isn't their policy to ask for something invasive, but let's assume they did ask for court permission to inject something into the defendant to force an erection, then photograph it. (The initial article suggests a search warrant was already obtained.)

First off, this isn't a Fifth Amendment (self-incrimination) issue; that's a testimonial privilege, and he's not being required to speak. It's a Fourth Amendment issue -- is this an unreasonable search?

Winston v Lee, a 1985 Supreme Court case, guides the analysis. It involved a request to perform surgery to remove a bullet from a criminal defendant in an armed robbery case, with the prosecutors claiming that the bullet would provide evidence demonstrating his guilt (or innocence). Its analysis started from what the Court had already established for blood draws associated with DUI charges (the Schmerber case), and stated:

The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure. In a given case, the question whether the community's need for evidence outweighs the substantial privacy interests at stake is a delicate one admitting of few categorical answers....

Schmerber's inquiry considered a number of other factors in determining the "reasonableness" of the blood test. A crucial factor in analyzing the magnitude of the intrusion in Schmerber is the extent to which the procedure may threaten the safety or health of the individual. "[F]or most people [a blood test] involves virtually no risk, trauma, or pain." Id., at 771. Moreover, all reasonable medical precautions were taken and no unusual or untested procedures were employed in Schmerber; the procedure was performed "by a physician in a hospital environment according to accepted medical practices." Ibid. Notwithstanding the existence of probable cause, a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect.

Another factor is the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity. Intruding into an individual's living room, see Payton v. New York, 445 U. S. 573 (1980), eavesdropping upon an individual's telephone conversations, see Katz v. United States, 389 U. S., at 361, or forcing an individual to accompany police officers to the police station, see Dunaway v. New York, 442 U. S. 200 (1979), typically do not injure the physical person of the individual. Such intrusions do, however, damage the individual's sense of personal privacy and security and are thus subject to the Fourth Amendment's dictates. In noting that a blood test was "a commonplace in these days of periodic physical examinations," 384 U. S., at 771, Schmerber recognized society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity.

Weighed against these individual interests is the community's interest in fairly and accurately determining guilt or innocence. This interest is of course of great importance. We noted in Schmerber that a blood test is "a highly effective means of determining the degree to which a person is under the influence of alcohol." Id., at 771. Moreover, there was "a clear indication that in fact [desired] evidence [would] be found" if the blood test were undertaken. Id., at 770. Especially given the difficulty of proving drunkenness by other means, these considerations showed that results of the blood test were of vital importance if the State were to enforce its drunken driving laws. In Schmerber, we concluded that this state interest was sufficient to justify the intrusion, and the compelled blood test was thus "reasonable" for Fourth Amendment purposes.

Removing the bullet, however, did not meet that test: "The medical risks of the operation, although apparently not extremely severe, are a subject of considerable dispute; the very uncertainty militates against finding the operation to be 'reasonable.' In addition, the intrusion on respondent's privacy interests entailed by the operation can only be characterized as severe. On the other hand, although the bullet may turn out to be useful to the Commonwealth in prosecuting respondent, the Commonwealth has failed to demonstrate a compelling need for it."

So what about the erection injection? The original diarist noted in the comments that the three drugs known to induce an erection all had to be injected directly into the penis. That certainly raises the dignitary concerns beyond an injection into the arm (or a pill), which might otherwise be closer to a blood draw than an invasive procedure, even beyond the obvious dignitary interests presented by the photography itself.  It may also raise the level of medical risk involved in doing this.  What we don't know is why the prosecutors believe there is a compelling need -- isn't the 15-year-old's testimony going to be enough to corroborate?  (Is there a fear she will lie on the stand to protect him?)  We just don't know.  To be sure, I can imagine circumstances in which this kind of evidence is necessary, but not on the facts presented so far.

Again, I apologize for my errors yesterday.  Hopefully, this discussion will be better.

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The skyline of Manhattan is pictured early September 15, 2001 with..smoke billowing from the wreckage of the World Trade Center's twin..towers. The towers collapsed after being struck by two hijacked..jetliners on September 11. REUTERS/Chief Brandon Brewe
The Supreme Court has kept 9/11 victims' hopes for accountability alive.

Since the attacks, a small group of lawyers representing the victims of the 9/11 attacks (a group of which I was a part from 2005-11) has been seeking to hold accountable the nation's so-called "charities," financial institutions and individuals which knowingly financed and provided logistical support to Al-Qaeda in the years before the attacks. It's a hell of a story, which I can spend days discussing.  

But let's jump forward. As part of the litigation, which began in 2003, last December the Second Circuit reinstated claims against the Kingdom itself, which had previously been found immune from suit. The Kingdom sought relief from this order from the Supreme Court, and yesterday, it was denied:

"From our perspective, we are looking forward to having the opportunity to finally conduct an inquiry into the financing of the Sept. 11 attacks," said Sean Carter, a partner at the Center City law firm Cozen O'Connor, one of the firms involved in the litigation against the kingdom.

Saudi Arabia has long denied responsibility for the attacks and pointed to a finding by the 9/11 Commission that it had found no evidence that the Saudi government "as an institution" had involvement.

But the issue has refused to go away...

Carter said he expected that discovery of Saudi government documents and depositions would begin shortly.

Unfortunately, as part of its orders list yesterday, the Court simultaneously declined to hear the appeal of the 9/11 victims of dismissals of claims against some financial institutions and individuals, which had been dismissed from the case on jurisdictional and other grounds (relating to the availability of aiding-and-abetting liability for material support for terrorism). While agreeing that the lower court had gotten it wrong, the USDOJ nonetheless urged the Court not to hear the case.  

[Justices Kagan and Sotomayor recused themselves from the first order; Justice Kagan from the second. I know that Kagan recused because she was involved back in 2009, as solicitor general, the first time these claims reached the Court. I am unsure of Justice Sotomayor's reasons.]

In addition to the Kingdom itself, claims remain against a variety of so-called charities which plaintiffs allege were used to funnel money to Al-Qaeda in the decade before the Attacks, as well as certain individuals. The bipartisan Justice Against Sponsors of Terrorism Act (JASTA) provides additional opportunities for relief. I'll keep you posted.

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The Supreme Court building in Washington DC
It has become an annual tradition like the returning of the swallows to the Old Mission in San Juan Capistrano and the Mummer's Day Parade. If it's June, a conservative pro-business majority of the Supreme Court of the United States has just rendered a 5-4 decision that will hurt working families.

The holding in today's case is simple: Illinois can't require home care aides who refuse to join the public union (SEIU-HII) to pay a fair share of the cost that the union incurs when negotiating on their behalf for better terms of employment, even though they benefit from said negotiations. This decision in Harris v Quinn only directly affects such workers, and not public employees' unions in general, but it may represent future chippings-away at workers' rights in cases to come. Still, it's not nearly as bad as it could have been. Let me explain below the fold.

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U.S. Supreme Court Justice Samuel Alito
In a widely-awaited-but-still-85 percent-as-sucky-as-you-feared 5-4 decision this morning, the Supreme Court of the United States has held that for-profit corporations are "persons" for purposes of the Religious Freedom Restoration Act, and that their religious rights were unduly burdened by the contraceptive mandate provisions of the Affordable Care Act. Because the contraceptive mandate was not the least restrictive means available for the government to provide such coverage—in the Court's mind, the Government could just assume the costs itself, and already provided an opt-out for religious non-profit employers—the mandate on private employers violates the law.

The Court was careful to limit its opinion (in theory) to these facts. It applies only to closely held corporations, and not publicly traded ones. It applies to the contraceptive mandate and not religious objections to all laws in general, believing that the “compelling interest” struck a sensible balance between religious liberty and competing prior governmental interests. But ... we'll see about that.

Justice Ginsburg, writing for the four dissenting Justices, refers to the decision thusly:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab....

[T]he Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9 Cranch 43, 49 (1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].”  

Much more, including the purple-est of Justice Kennedy's beloved purple prose, below the fold.
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Supreme Court Associate Justice Stephen Breyer
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

--U.S. Constitution, Art. II, sec 2, cl. 3

In its long-awaited decision this morning in NLRB v. Noel Canning, the Supreme Court of the United States unanimously held that the president's recess appointments to the National Labor Relations Board were unconstitutional because the Senate remained in pro forma session during its 2011-12 winter break, thus preventing the "recess" from ever occurring. The ruling therefore invalidates all the decisions made by the NLRB while recess-appointed members were sitting, because the board effectively lacked a true quorum during that period.

Justice Scalia, writing for himself, Chief Justice Roberts and Justices Thomas and Alito, would have gone further, and denied the recess appointment power except in cases in which the Senate was in full recess between sessions, and for which the vacancy in question was created during that intermission.

The ruling effectively gives a road map to future Senates to blocking a president from the other party from ever employing the recess power, holding that the Senate is in session whenever it claims to be, and retains its basic powers to transact business. Two hundred years after it made practical sense during the horse-and-buggy era, the Recess Appointments Clause today is effectively dead.

More below the fold.

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The Supreme Court building in Washington DC
In a pretty universally awesome decision authored by Chief Justice John Roberts issued Wednesday—and yes, I'm as surprised to be typing those words as you are to read them—the Supreme Court has effectively prevented police officers from seizing and searching your smartphones upon arresting you, unless they have obtained a search warrant from a magistrate. As the Chief Justice concludes, in what is functionally a unanimous decision:
We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost....

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.

The decision is the latest in a series of decisions over the last few terms seeking to clarify what the right to privacy means in this new technological area. What the Court did today, and how they did it, below the fold.
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US Supreme Court Chief Justice John G. Roberts participates in the courts official photo session on October 8, 2010 at the Supreme Court in Washington, DC.   AFP PHOTO / TIM SLOAN (Photo credit should read TIM SLOAN/AFP/Getty Images)
(TIM SLOAN/AFP/Getty Images)
Remember how upset you were back in 2000, when Bush v Gore was handed down, because not only did the Court reach the wrong result but it also expressly limited the reach of its holding to that one case?
Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.
In other words, the equal protection "principle" announced in that case was a ticket good for one day only, here today and gone tomorrow. Such holdings offend, and undermine, the rule of law. As Richard Re has written, "A legal principle, if sound, is expected to survive the day it was decided and to last far into the future—perhaps even forever."

And again, in the realm of election law, the Roberts Court has issued another such ticket, only much more quietly. Remember Shelby County, the case last year in which the Court gutted the preclearance provisions of the Voting Rights Act? In that case, the Court proclaimed:

Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” At the same time, as we made clear [four years ago], the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.
A fundamental principle, or one only applicable when Southern states' ability to screw over minority voters is implicated?

Because this term, Gov. Chris Christie and others sought the Court's review of the constitutionality of the Professional and Amateur Sports Protection Act, which allows only Nevada and a few grandfathered-in states to conduct legalized sports betting. New Jersey wanted in on the action, and with lawyers including Ted Olsen filed a cert petition calling on the Court to end this discrimination, arguing that "States’ ability to enact regulatory measures in response to the expressed preferences of their citizens is no less central to their 'broad autonomy in structuring their governments and pursuing legislative objectives,' than is their ability to regulate elections."

Without comment, the Court Monday declined to review the lower court decision thwarting New Jersey's efforts. That "fundamental principle" which the Court applied to Shelby County, Alabama, in excusing it and countless (mostly Southern) jurisdictions from having to justify their changes in voting and elections? Apparently, not so "fundamental," after all. Big surprise.

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The Supreme Court building in Washington DC
When do online threats of violence go too far? More to the point, is the test for evaluating a criminal threat whether a reasonable person would have regarded the communication as a threat, or do prosecutors also need to prove that the speaker intended to threaten someone?

On Monday, the Supreme Court agreed to review the conviction of Anthony Elonis for posting threats on Facebook against his ex-wife and others under 18 U.S.C. §875(c), which counts as a criminal offense anyone who "transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another." Elonis testified that his communications were merely a form of artistic expression, that he was influenced by Eminem songs such as "Guilty Conscience," "Kill You," "Criminal," and "97 Bonnie and Clyde" where the rapper fantasizes about violence against his ex-wife.

[The decision below is here. Because Elonis' threats themselves are quite violent, I'll put them below the fold. Be warned.]

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Ron Wyden at a September 2012 hearing of the Senate Energy Committee
This guy helped keep the Internet free. Even for the bad stuff.
If it weren't for Section 230 of the Communications Decency Act, this site would not be what it is today. Introduced in the House by then-members Ron Wyden (D-OR) and Christopher Cox (R-CA), it says that the owner of a website isn't considered the "publisher" of user-generated content for legal purposes, except in the areas of federal criminal liability and intellectual property law.  

The intent at the time was to free up website owners to clean out pornography from their sites without having to worry whether taking on such editorial responsibilities made them the publishers of everything else on the site. In practice, what it means (among other things) is that whenever one of y'all says something potentially defamatory on this site, that's your problem, not ours, and we don't need to spend our hours policing everything pre-publication or fretting about whether to take it down once it's up. That's on you, except for content for which we are "responsible, in whole or in part, for [its] creation or development."

Well, for us here at Daily Kos, that's pretty awesome, but much less so for former Cincinnati Bengals cheerleader Sarah Jones, who was targeted by the tabloid site TheDirty.com with some really vile stuff, sued and won, and today had a six-figure judgment in her favor reversed. Here's one example of what was submitted by the site's users about Jones, and published by the owners:

THE DIRTY ARMY: Nik, this is Sara J, Cincinnati Bengal Cheerleader. She’s been spotted around town lately with the infamous Shayne Graham. She has also slept with every other Bengal Football player. This girl is a teacher too!! You would think with Graham’s paycheck he could attract something a little easier on the eyes.
She claimed that such posts humiliated her, undermined her position as an educator, and damaged her membership in the Cincinnati BenGals and her personal life. She sued the site and won on the district court level, with the jury awarding her $38,000 in compensatory damages and $300,000 in punitive damages. Today, she lost that victory before the Sixth Circuit because TheDirty was not deemed to have sufficiently "developed" the information it chose to post.

Basically, this is the court's reasoning: It's one thing for a website to specifically and directly solicit "bad stuff," like a roommate-finding website that required users to provide their race, religion and gender then allowed them to search by each factor, enabling discrimination. It's another to hold a site liable for a catch-all solicitation, even when it got to pick and choose what actually was published, not fact-checking at all but only removing "nudity, obscenity, threats of violence, profanity, and racial slurs." And as the court explained, allowing websites to be sued merely for what they encouraged would go too far:

An encouragement test would inflate the meaning of “development” to the point of eclipsing the immunity from publisher-liability that Congress established. Many websites not only allow but also actively invite and encourage users to post particular types of content. Some of this content will be unwelcome to others—e.g., unfavorable reviews of consumer products and services, allegations of price gouging, complaints of fraud on consumers, reports of bed bugs, collections of cease-and-desist notices relating to online speech. And much of this content is commented upon by the website operators who make the forum available. Indeed, much of it is “adopted” by website operators, gathered into reports, and republished online. Under an encouragement test of development, these websites would lose the immunity under the CDA and be subject to hecklers’ suits aimed at the publisher....Accordingly, other courts have declined to hold that websites were not entitled to the immunity furnished by the CDA because they selected and edited content for display, thereby encouraging the posting of similar content.
What's more, as Prof. Eugene Volokh notes, the panel makes clear that decisions on Section 230 immunity are subject to interlocutory appeal—in other words, TheDirty could have appealed the immunity decision before trial, and not only thereafter.

Jones can still subpoena identifying user information from the site and sue the people who actually wrote those things; she cannot, however, sue the site or its owner. Her attorney has promised to appeal.

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In a 5-4 decision today authored by Justice Kagan, the Supreme Court of the United States approved the constitutionality of a federal prosecution of a man who acted as a straw purchaser for a Glock handgun for his uncle, even though the uncle himself could have legally purchased the weapon, under a federal firearms statute imposing criminal penalties on any person who makes false statements about “any fact material to the lawfulness of the sale.”

Abramski checked "yes" to the background check question asking if he was the “actual transferee/buyer,” and signed the requisite certification, acknowledging his understanding that a false answer to that question was a federal crime. He cleared the background check, and deposited the $400 his uncle had given him for the purchase. (His intent, he claims, was that he thought he could use his former police ID to get a discount on the sale.)

Abramski offered two principal defenses for this actions: that his lie was not material to the sale, because his uncle would have passed the background check; and moreover that even if he were lying, the federal government never intended to penalize straw buyers in the first place. Join me below the gnocchi to see how the Court addressed these questions.

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Tue May 27, 2014 at 05:47 PM PDT

Mad Men 7.7 - 'Waterloo'

by Adam B

July 20, 1969
It is humbling to try to write about an episode of tv like Sunday's midseason finale of Mad Men, one which redeemed an occasionally scattered run of episodes with an hour of satisfactions both quiet and triumphant. It felt much like a series finale, and with a message not too different from that of the final hours of Lost: what matters is who we spend our time with, and how we treat them. The work matters more than the context, whether it's at SCDP or SC&P or McCann Erickson, just like it ultimately didn't much matter to Jack, Kate, Sawyer, and Juliette who the Smoke Monster was or where The Numbers came from or who was on the second outrigger.

It takes maturity to recognize that we may be the supporting characters in someone else's narrative rather than protagonists in our own, which is why Don Draper's moves this episode were so gratifying to watch, while for Peggy Olson, the satisfaction came from seeing her do what we all knew she could. (For Roger and Sally, the joy came from their upending our expectations.)

So, please, take off your shoes, peer into the night sky, and let's see what people smarter than me had to say about it all, below the fold.

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The Supreme Court as of 2010
I have written this diary before (2007), and today's more-or-less unanimous Supreme Court decision affirms the principle: When you decide to lead the police on a high-speed chase, they have a lot of leeway in deciding how much force it takes to end it. Including deadly force.

In short: Donald Rickard was pulled over because had a headlight out and a basketball-sized dent in his front windshield. He told the police he wasn't drunk, but when asked to step out of the car he sped off instead, swerving through highway traffic at over 100 mph. Finally off the highway and cornered in a parking lot, Rickard kept on going, bumping the police cars surrounding him. Police fired three shots into his car; he reversed and started getting away again; two officers fired 12 more shots toward Rickard’s car and he lost control and crashed into a building. Rickard and his passenger died from some combination of gunshot wounds and injuries suffered in the crash that ended the chase. Rickard's daughter sued. [Some video of the chase is online here.]

The U.S. Court of Appeals for the Sixth Circuit had found against the officers, that the use of force was unreasonable because "the fleeing vehicle was essentially stopped and surrounded by police officers and police cars although some effort to elude capture was still being made." Moreover, the lower court had found the use of force unreasonable because "the police here fired fifteen shots at close range, all but two of which apparently hit the subjects and twelve of which hit the driver.... when deciding to use lethal force, the police knew there was a passenger in the fleeing vehicle thus doubling the risk of death. The police make much of the fact that they felt they were in personal danger, but the degree to which that was true is not resolved by the video recordings."

Today's Supreme Court reversed that decision. Eight justices found the first three shots to be constitutionally permissible, seven approved the next twelve, and all nine agreed that even if this was excessive force, it wasn't so excessive that you could sue these officers over it. I'll explain more below the fold.

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