Was Leslie Jones Victim of a Hate Crime?

Leslie Jones, the SNL comedienne and star of the “Ghostbusters” reboot, recently had her website hacked and iCloud account compromised, releasing “intimate” photos the actress stored in that space.  Personal data was exposed for public view and images of Harambe the gorilla were plastered across the website.  The FBI and Homeland Security are investigating the hack.  Was the hack a “hate crime?”  Mark Shrayber, a former writer for Jezebel and current staffer of the culture site Uproxx, see the issue as “plain and simple.”

Make no mistake: What happened to Jones wasn’t “trolling.” It was a hate crime. Most importantly, what happened to Jones is a terrifying reminder that in the age of the internet, there’s precious little protection for the people most vulnerable to this type of attack, and plenty of people who’ll happily applaud it while spouting clichés about why people should never expect a right to privacy.

Issues of privacy aside, let’s delve into the issue of whether the offense in question is a “hate crime.” Hacking would be considered hypothetically a federal crime because the use of the Internet to facilitate the breach of Jones’ website, so it would involve a “channel…of interstate or foreign commerce.”  That means we plug in the Federal Hate Crime statute, 18 U.S.C. § 249, to determine if the data breach was a hate crime.  Before we go into the actual statute, let’s discuss what constitutes a “hate crime.”

Hate crimes are actually a means for prosecutors to enhance the sentence of an offender because the crime in question affects a certain group of people with immutable characteristics like race, religion, or sexual orientation.  The “enhancement” applies because our society has realized crimes committed against people with these characteristics don’t just suffer the crime alone.  When the crime is committed against one of the “protected” groups under hate crime statutes, it has a disparate impact on the community as a whole.  The harm committed isn’t just suffered by the individual, it directly affects the group of people as a whole against the group or groups to which the person belongs.

Take, for example, the Pulse shooting in Florida.  Omar Mateen’s decision to shoot up a gay nightclub in Florida would be considered a hate crime, because it was a crime that had a disparate impact on the LGBTQ community as a whole.  The use of firearms to maim or kill individuals in the triple digits solely because they love a member of the same sex counts as a hate crime and would be prosecuted as such if Mateen were still alive, since the remaining members of the community and their family members would be on edge following that offense.  An offense of that magnitude would be worthy of a sentencing enhancement under Federal law.

Now that we’ve framed the issue in that context, let’s look at whether the Federal statute considers the hack of Leslie Jones’ personal data, “intimate photos,” and website would be a hate crime.  Section (a)(1) covers race.

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

The “actual or perceived race” is there.  Leslie Jones is a black woman, but she didn’t suffer “bodily injury” through “the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device.”  That’s just part of the statute, though, (a)(2) covers gender, so we might have something present that would cover Shrayber’s claims that make the hack a hate crime.

Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—

Damn.  There’s that whole “willfully” or “attempts to cause bodily injury” “through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device” again. Looks like from a legal standpoint, the argument of the hack constituting a “hate crime” falls apart.  That’s not good enough for Shrayber, or the experts he cites, who liken the attack as a means of “dehumanizing” Jones because of her status as a successful Hollywood actress of color.  According to San Francisco based therapist Tiffany McClain, the attack was one based out of deep-seated racism.

McLain says the imagery used to assault Jones is a major tell. “The comparison to animals andbeasts,”McLain explains, “was used to justify the practice of slavery. It was used during the civil rights era to explain why people of color should be denied equality.” And it’s being used now to dehumanize Jones, allowing her attackers to not see her as a human being deserving of respect from others.

“If it’s not because she’s black, what is it about? We need to invite that conversation,” McLain says… It may be uncomfortable to consider why Jones is the only star of Ghostbusters to have her physical safety threatened (with Jones’ identifying information published online, it’s not a leap to assume that she must feel unsafe both in public and in her own home). It’s also imperative that we do so in order to make sure that we understand when an attack is based in deep-seated racism.

The cyber attack on Leslie Jones may have been based in “deep-seated racism.”  And it’s understandable one could make a leap that Jones, a public figure with personal information posted for the world to see, could feel unsafe in her home or in public.  It wouldn’t be unreasonable to think Jones, the subject of relentless hate-fueled tweets, might think someone would act on what would normally be considered “trolling” after gaining access to her real-world location.  And whoever hacked Jones’ website could very well be motivated by hate.  Regardless, the cyber-attack itself isn’t a hate crime, no matter how much one might think otherwise.  She suffered no bodily injury through any of the instruments listed in the statute, even though she is a person of color and a woman.  That won’t be enough for folks like Shrayber and McClain, who would prefer their feelings to the actual application of the law.

Many who delve into the law are outraged when they find their experience and feelings doesn’t correlate to actual application of the law.  They feel marginalized, hurt, or oppressed.  It’s at those times we must remember the law is narrowly tailored to fit certain specific circumstances, especially when it comes to protecting the rights of those charged with a crime.  No matter how despicable a crime may be, or how much people hate the defendants, the law is tailored ostensibly to make the burden of proving “hate crime” status to enhance a sentence  harder on the government.  Our feelings don’t make it any easier, and don’t need to come into the equation.  Especially when the target of the public’s hate is you, and you’re standing before a judge answering the question “How do you plead?”

Birdcloud and Artist Politics

Birdcloud is a satirical country music band that plays music for the purpose of riling up crowds.  According to the reaction they’re getting from at least one hater, they’re pretty good at their job.  Knoxville artist Daniel Blaine McBride is conducting a one-man smear campaign against the duo in an attempt to have bookers pull them from dates, according to a Nashville Scene article.

Apparently McBride took offense to the Birdcloud song “Black Guys,” which you can listen to below if you are so inclined.  It’s not my bag, but it’s kind of funny.

I can see where people would enjoy the humor, and it’s apparently something that gives them a strong enough fan base to where they can pull $500 in a night at a merchandise table at the Pilot Light, which is a tough place to draw money in the Scruffy City.  If you’re an independent artist, that’s a heck of a night in a very small venue, and deserves congratulations.  McBride didn’t just think the song bad, or in bad taste. He used it as an excuse to try and have promoters shun Birdcloud from upcoming tour dates and venues.  Here’s an example of the Facebook posts he’s slung at promoters.


The problem with this is it’s not just a false statement, it could constitute grounds for false light invasion of privacy should Birdcloud choose to pursue further action in the legal sphere.  McBride’s actions aren’t anything new to the special snowflake crowd.  It’s easy enough to denounce that which you find offensive racist, sexist, homophobic, or whatever denigratory term you wish to use.  When you make statements that cause harm to a person’s image, and that person suffers from it in a monetary capacity, that can lead to legal action.  Fortunately, it looks like that won’t be necessary for Birdcloud, as the promoters McBride continues to message seem to get Birdcloud’s antics more than McBride’s irritation.


It looks like McBride went on a copy and paste spree with his antics, as the above is a screen shot of an exchange between McBride and a venue in Chattanooga, Tennessee called “JJ’s Bohemia.”  Apparently JJ’s caught onto the act and didn’t really care too much for what he had to say.  Just in case you can’t read their response, I repost it in full below:

Daniel, you must have mistaken us for someone who gives a shit about the opinions of a self appointed dishonest social justice warrior.  Birdcloud has been friends of ours for over 5 years and will continue to perform whenever the fuck they want at JJ’s.

Bravo to JJ’s for not falling prey to McBride’s attempts at shaming Birdcloud out of business.  As an aside, this just smacks of sheer jealousy.  McBride’s a musician as well, and he’s attempting to have another performing group lose out on business just because he doesn’t like their work.  That’s fine, but what happens when people decide they don’t like McBride’s music for whatever reason and attempt to have him shamed into silence and driven from venues?  Why not spend time creating music you care about,  building up your own work, marketing and playing your own music, and enjoying your craft instead of trying to shut others down?

As a bizarre oddity to all this, it now appears McBride’s attempts at shutting Birdcloud down only served to amplify the duo’s work.  It’s odd how that happens when someone tries to silence the voice of another with whom they disagree.  It’s also managed to tarnish McBride’s own personal work, as people won’t associate him with the quality of his music following the debacle.  They’ll remember his attempts at taking business away from another band in an attempt to look virtuous.  Something tells me that doesn’t bode well for him.

The arts (writing, music, painting, acting, etc.) are areas open for critique.  People are allowed their opinions on each. Daniel McBride is free to call Birdcloud racist as he chooses, and boycott them at his will.  Sinking to the lows of spreading false statements about their shows and their work in an attempt to drive other musicians out of business is an entirely different level of sleazy.  It’s time to cut the garbage and let Birdcloud be as foul as they please.

Shuttle Diplomacy: Garbage Mediation

Ask someone who’s been through a mediation what the process was like and they’ll probably describe it as follows:

“It was a long day.  We started off in the same room, the mediator said some stuff, our lawyers said some stuff, then we went into separate rooms.  The mediator came in and spoke with me, then said he’d go speak to my husband/wife. Then I waited until the mediator came back in with an offer.  This went on for several hours until we finally got an agreement in writing that I signed.  We left at separate times because we didn’t want to see each other.”

This is called “shuttle diplomacy,” and it is not mediation.  It is the bane of every sane mediator’s existence, and a practice that poisons what is left of mediation as a whole.  It’s lazy, it lacks the art of attention management real mediation requires, and leaves both sides with a bad taste in their mouths with regards to the process as a whole.  Most people who go through mediation training know this, and yet it still continues to exist as a widely practiced form of alternative dispute resolution.  This is the default to which many mediators gravitate because attorneys demand it, and one of the worst mistakes a mediator can make is marketing and tailoring a mediation practice to family law attorneys.

Shuttle diplomacy is lazy because you don’t have to work actively with conflict in one room.  Many mediators justify the practice because the “alternative” in their heads is having both parties continually focused on the anger they feel towards the other side, instead of on the issues requiring resolution.  These mediators more than likely don’t use any sort of attention management device like a whiteboard or flip chart to keep attention drawn to the issues.  It’s also safe to guess they’ve not learned how to control parties in high-conflict situations.  Finally, it’s a safe bet the mediator might be prone to capitulation when it comes to attorney demands.  All of these are problematic when it comes to ensuring a positive resolution of your dispute.

Attention management devices are key because they keep people from thinking ill of the other party and focused on the issues requiring a resolution.  No one likes staring across the table at a person that’s done them harm, physically or emotionally.  The easiest way to fix this is to have parties simply looking at something other than the other aggrieved party who they can’t stand for whatever reason, like a portable white board or flip chart.  Keeping the mediator in a position where both parties have their attention directed on the mediator and concentrated on the issues in play for resolution is a crucial way to command the room and defuse any sort of tension that might be present among the parties.

When you were in school, attention focused on the teacher, did you spend your time thinking about someone who you had issues with, or were you focused on the teacher at the front of the room and the blackboard on which he or she wrote?  If you were interested in learning the material you paid attention to the teacher and not to the guy you wanted to fight after school ended for the day.  The same holds true for mediations.  If you want to resolve your dispute with another person and “get it done,” you’re more likely to focus on the issues at hand requiring a settlement than how much you hate the other person if your attention is directed away from looking at that party.  If the mediation is taking place at the mediator’s office, some of the more high-end mediators will even use large computer monitors and case management software.  The technology adds a certain “wow” factor parties don’t normally expect and defuses tensions even more than just the white board or flip chart.

De-escalation of high conflict scenarios requires a high emotional intelligence level, an ability to read people, learn when tensions are ready to engage the irrational centers of the brain, and how to deflect or defuse those moments.  These are all art forms not readily taught in the short amount of training required to become a mediator in most states.  Becoming an exceptional mediator requires active engagement in these areas and continued commitment to learning more high-functioning levels of your craft.

If you start in “caucus,” or in separate rooms with your counsel, from the beginning then there’s a good chance your mediator is capitulating to attorney demands that parties stay in separate rooms.  If you start in the same room and caucus sessions break out immediately after opening statements, it’s a good sign the lawyers have more control over the mediation session than the mediator, or you.  This is a problem.  Allowing the mediation to break into caucus and remain there gives the lawyers more control of the mediation than you have.  If you’re a party involved in a mediation, that isn’t in your best interest.  The lawyers don’t have an issue with getting more power in the sessions, because it gives them more control and it’s another means of them justifying outlandish demands in the interest of zealous representation.

It’s not about the lawyer, though.  It’s your case and your mediation session.  You as the party can and should be the person in charge, and remain the person with the most at stake.  The best thing is for you to remain at the table with the other party in conflict, work with your mediator and the attorneys in the room, and head towards closure of your dispute.

About a year ago attorneys at a Continuing Legal Education seminar on “next level” mediation techniques admitted keeping both parties at the table was “harder,” but acknowledged the agreements reached tended to maintain a level of stability “shuttle diplomacy” agreements didn’t have.  That’s because mediation, practiced in its purest form, is extremely hard.  It’s not something you can achieve at a high level of competence with just basic training or even cursory experience.  When you do, however, and you remain committed to avoiding the “shuttle diplomacy” approach, you gain lasting results.

Shuttle diplomacy is easy, but practicing it is another reason Mediation is Dead.

Mediation Tip: Leave Your Support At Home

If you are involved in a mediation, you may be tempted to bring someone with you for “emotional support.”  This is most common in family law cases, where feelings are at an all time high and conflict is at a maximum.  When the day and time comes for your mediation, leave that person at home.  The only “support person” you need in the room is your attorney, because your “emotional support” will cost you time and money, and have you leaving with no settlement and a trial date.

“Emotional support” is a good thing when you’re going through a divorce.  You’re in a vulnerable position, and you need a good network of friends and family to make sure you get through one of the most stressful life experiences a person can undergo.  A mediation isn’t time for therapy.  It’s time for resolution of your case and an attempt to reach an agreement between you and the other party.  Bringing an “emotional support” person into the mix will tank the entire session because they’ll never think you’re getting the best deal possible and always push for you to make the other side pay for some egregious sin of the past.  You, in your raw, vulnerable state, will be highly prone to suggestion and feed off the anger your “support” person is expressing.  This will lead to the rejection of an offer, and make everyone’s life more difficult as a whole.

The best support personnel you can have is a good attorney who understands the true nature of the alternative dispute resolution process, prepares you for the mediation by discussing the best and worst alternatives to a negotiated agreement, and guides you through the mediation session with tact and a strategic approach.  By the time you are finished with the session, and an agreement reached, you will be signing an agreement that will become a binding court order.  It’s crucial you have a lawyer actually look it over and advise you if any portion of the document won’t fly before the court.

If you’re a mediator reading this and allow parties to come as “emotional support,” and those people are allowed in your lobby, or worse yet inside the mediation rooms, cease the practice immediately.  An even better practice is to discourage parties seeking your services from bringing anyone other than an attorney in writing.  Place language into your Agreement to Mediate that has the parties expressly agreeing to not bring others into the mediation rooms.  If you’re actually practicing mediation and attempting in good faith to keep both parties at the same table, instead of breaking the parties and their lawyers into caucus for a game of “shuttle diplomacy” then keeping “emotional support” parties away from the mediation is going to stop the session from devolving into a shouting match.  If you can’t be bothered to conduct the session at one table, removing the “support” personnel will still help tremendously because while you’re working with parties in one room the other side won’t have someone continually in their ear rumbling angry thoughts about how “that bitch/bastard has it coming to him/her” and “make them pay.  That’s not good enough.  You deserve better.”

Divorce is a hard process.  It’s one where people experience very real pain and grief, so it’s good they have a network of support on which they can rely in the days, weeks, and months to come following the dissolution of their marriage.  The day(s) on which mediation takes place is not a time to have those parties available to tank the resolution of a dispute.  The availability of “emotional support” persons during the mediation, and mediator permissiveness in allowing these parties in to potentially shift the power dynamics of a mediation, is one more reason why I hang my head at the current state of mediation.

Mediation is Dead.

One Year In The Blawgosphere

About a year ago Scott Greenfield put the call out for new talent at this website he’d co founded with Lee Pacchia called “Fault Lines.”  The thing that made Fault Lines so unique, so different from all the other blawgs and websites was that its contributors came from all walks of the criminal justice system, and were active participants in it.  I’ve always been a writer at heart, and I loved Scott’s blawg Simple Justice, so I thought I’d reach out to him and see if he was interested in taking on a “baby lawyer” to his new team.

“Maybe.  Send me something.  I might say no” was the response I got back.

That evening I dashed off a piece on the A.J. Johnson rape case, Stephen Ross Johnson’s trial strategy, and how it all framed against the Christian/Newsom murders in Knoxville.  Scott’s response was quick back:

“I want you to write for me.  You have two days a week.  Get your pieces in by 5 PM the day before.  Don’t miss deadlines.”

Tomorrow’s piece is my one year anniversary at Fault Lines.  Below you’ll find some links to some of the favorite stories I’ve worked on over the last year.  Before I get to that, a bit of thanks are in order.

First, to Scott Greenfield:  Thank you for giving me a shot, thank you for letting me write as much as I wanted, and thank you for kicking my ass repeatedly to make me a better writer.  The difference between that first post and the drafts I send in now are night and day.

To Lee Pacchia:  Thank you for helping give Fault Lines some web space.  Thank you for putting me on podcasts and video spots on the YouTube channel.  The stuff you’ve done has made a difference in our world.

To all my co-contributors, past and present: Thank you for your contributions to Fault Lines.  Without you I wouldn’t have as much fun as I do on a regular basis with the site.

And finally, to you, the readers: Thank you each and every week for your comments and contributions to what we do.  Our work is there to make sure that you walk away a little smarter at Fault Lines.

Here’s to another great years’ worth of work pointing out the cracks in the criminal justice system.  Let’s do another anniversary post in a year to see how far it goes.

Some of my favorite posts:

Inquiry Launched After Massive 6th Amendment Violation By Kansas US Attorney

In Tennessee, A Child Abuse Registry Without A Crime

A Judge’s Simple Request Meets A Cop-Friendly Mayor

Don’t forget my spat with the Indigent Defense Task Force:

An Open Letter To The Tennessee Indigent Representation Task Force

Tennessee Indigent Defense Task Force Responds (and So Do I)

Tennessee’s Indigent Defense Task Force Does Nothing

Tennessee Task Force On Lying To The Poor

There was the first ever co-post at Fault Lines with Andrew Fleischman:

Just As The Founders Intended, The Right To Rape Reasonably

And my favorite “joke post” at Fault Lines:

Pokemon Go Must Go

Let’s do this again in August 2017.


Let’s Talk Supplements, Folks.

So I’m a big believer in using the tools science gives you to make you stronger.  After all, iron sharpens iron, and if you have the tools to give yourself an advantage why not use them?  It just works for those of us who want an advantage over life.

The problem is finding the right supplements and stack that will make your body work for you, instead of against you. If you’ve followed me for a while, you know that I’ve battled and won a fight against a degenerative muscle disease called Ocular Myasthenia Gravis.  It’s a condition where your white blood cells think your musculature is a disease and attacks it.  I’ve been in remission for some time now, but that doesn’t mean I can’t go back at some point and be forced to take medication that has me hugging the porcelain god every morning.

So when I pick a stack of supplements to work with my life, I make sure I look to the best.  I have several issues with “traditional” supplements, the most of which are absolute crap.  If you go to your local GNC for example, the people there will try to pawn off absolute garbage to you unless you know what you’re looking for and can speak their language.  Then you MIGHT, and I stress MIGHT get what you want out of something, be it a test booster, PCT, or otherwise.

The biggest area that I’ve been interested in since I started experimenting with what Dave Asprey calls “Biohacking” is nootropics.  Since I write, argue, and read for a living, I need to be on peak focus and mental energy for everything I do.  As one of my spirit animals, Spider Jerusalem, once said:

“I do not want your cheap brainburning drugs.  They are useless for work.  And I am a working man today.  I want Vasopressin, Washed Caffeine, Jumpstart, Gingko Biloba, Guarana, and any Intelligence Enhancer introduced in the last five years…Now jump to it, pusher sperm.”

So I have been taking a stack recommended by Mike Cernovich of Gorilla Mindset fame for about a month or so now.  This is the way my cycle works:

Week 1:

(Empty Stomach)





(First Meal)






Caffeine (if fatigued)


(Before Bed)


Because I pull some weird hours, the next phase of the cycle goes like this: I sub out the Piracetam with Modanfil, 200 MG. I half the pill and take 100 MG on an empty stomach in the morning and 100 MG in the afternoon, approximately 7 hours after the first dosage.  The Modanfil has to be cycled on a weekly basis to avoid any sort of tolerance buildup.

Before I had a Modanfil prescription, I took Onnit’s “Alpha Brain” for a bit of a jump-start to my day with regards to brain function and cognitive abilities.  It was my go-to source for getting ready for the day, and gave me a jump on the tasks I needed to focus on.  Now things are a bit different, but I do want to outline what effects the Cernovich nootropic stack had for me.

It hulks your brain up to unforeseen levels.  Your productivity will maximize to levels you haven’t seen before.  You will be able to focus like nobody’s business, and you will be able to up your productivity and creative flow like you’ve never seen before.  I’ve pulled some 20 hour days recently, with 4 hours’ sleep being a normal day, and the Cernovich nootropic stack has saved my ass on numerous occasions, making my entire family happy and helping me grow my business online and in my law practice.

Mike, if you’re reading this, thank you for another great piece of advice that’s helped enrich my life.  There’s a reason I’m glad to call myself part of the Cerno Club, and this is one small shred of it.

Eventually, I had to test out something different.  Something that would cause me to cut down on the amount of supplements I bought and ingested.  I couldn’t go back to Onnit, because their formulas were good but not working at the levels I wanted them to.  That’s when I decided to take the jump to RED Supplements, and I’m so glad I did.  I’ve ordered a couple of times from RED, and I’m not going back anytime soon.  In fact, RED Supplements are my go-to for making sure I stay at optimal function.

Right now, I’m currently using RED-PCT and RED Monkey on weekends and when I need a pick-me-up. Recently, I started taking RED-Burner, and I can tell you it’s the best Thermo/Fat Burner/Energy Pill/Whatever You Call it on the market.  Current stack is as follows:

(Empty Stomach)




(With Food)






(Before Bed)



This will get changed when I cycle off the RED-PCT and back onto a test booster (hopefully the new RED MK-Growth Ultra when that happens), but you get the picture.  The biggest takeaways are as follows:

  1. RED-PCT is the first Post Cycle Therapy I’ve tried that works.  No bullshit, no false snake oil promises, the gains that I get during a test cycle stay where they are with RED-PCT.
  2. RED-Burner is the only stimulant/energy/thermogenic/fat burner I’ve found that works for me.  I’m incredibly stimulant sensitive to the point where stuff that has immense amounts of caffeine and other, traditional stimulant formulas just leave me jittery and with a nervous feeling.  RED-Burner does none of this; it actually provides clean energy and a great feeling while giving you the drive to move forward in your day.
  3. Less pills to swallow during a day.  With RED Supplements, you get stuff that works, so you don’t have to go to GNC or the Vitamin Shoppe and worry about what you’re getting with regards to potency and whether it works.  You know it will be a solid product, because Victor Pride and Chris Deoudes don’t sell shit they haven’t tried and used themselves.

So there you go.  When stuff that I’d been using decided to fail on me, or I was pulling hours that didn’t give me a major boost with the stack I was on, I looked to RED Supplements and it came through like a madman for making sure I stayed on track with my goals.  That’s why I’d tell you in a heartbeat if you’re looking for some sort of supplement to keep you on track to reach your mental, heath, and physical goals you need to look to RED Supplements.  They’re good people and their products work.

You can buy RED Supplements here.


Bob, Katherine, Eric, Let’s Talk Rockwood (Update)

It’s no secret to anyone who knows me that I’m a big fan of the show “Howell & Yarbrough” on NewsTalk 98.7 here in Knoxville.  They’ve been kind enough to give me a chance to appear on their show a couple of times to discuss issues regarding a number of legal matters, my favorite being Representative Andy Holt’s pissing contest with Knoxville’s Chief of Police over red light traffic tickets.  In a world where journalistic integrity is falling short, Bob and Katherine are two that actually get what news is like.

Today, Katherine brought up the body cam footage of Rockwood, Tennessee Officer Chris Kennedy pepper spraying former Roane State Basketball player Xavier Howard.  As can happen, the discussion of this “use of force” spiraled into a full blown discussion over whether Xavier Howard actually “complied” with officer demands, whether using pepper spray in a situation like this was appropriate, and where the line is drawn when law enforcement officers escalate the use of force.  Sometimes I’d call in for a discussion on the merits of a case like this.  Today, I wanted to listen and hear what the community had to say.

First of all, it’s imperative you understand the First Rule of Policing before you get anywhere else in discussing situations like this.  That rule is simple: “get home in time for dinner.”  As Fault Lines Managing Editor Scott Greenfield repeatedly points out, this seems trivial to those who don’t wear a badge, but it’s the first thing that a cop thinks about before strapping on his or her service belt.  No amount of money from a pension, no gold shield, nothing makes up for the loss of a husband, son, father, mother, daughter, or wife.  That’s why force escalates so quickly in situations like this.

Second, police are increasingly trained to view interactions with civilians through the lens of “warrior vs. enemy combatant” instead of the “protect and serve” approach to community policing.  For further reading, please see Radley Balko’s seminal work Rise of the Warrior Cop. Posts at Fault Lines are littered with issues concerning escalation of force.  Do check out Greg Prickett’s work when you have a moment, especially his analyses of cop shootings.

And there’s the “just comply and you won’t get hurt” argument.  That argument holds absolutely no weight among members of the defense bar.  It certainly didn’t help Charles Kinsey, who laid on the ground, hands up, explaining to cops he was attempting to help one of his special needs patients from a weapon “discharging” into Kinsey’s leg.  Compliance doesn’t always equal walking away with your life or liberty intact.

Now that we’re past all that, let’s take a look at the video.

First, Officer Kennedy responds once Harris opens the door with “Where’s he at?  I heard him in there, where’s he at?” while shining a high intensity flashlight in her eyes.  When she attempts to tell Officer Kennedy the two were just having an argument, he responds with “I heard y’all fighting.”  That’s when Howard enters the frame, hands up, denying he’s touched Harris.  The two attempt to assure Officer Kennedy there’s no reason for cop intervention, but he insists “We got called here…we’re going to figure this out.”

Shortly after Howard asks “You want to search me?” he turns his back to the officer and drops his hands.  Kennedy then responds with “Get your hands away from that knife!”  Howard protests he didn’t see a knife, but Kennedy assures Howard it’s there and then orders him to come forward.

At the 3 minute mark Kennedy orders Harris in an elevated tone to “get over there” and radios “Sarge, step it up.”  His tone of voice escalates heavily as he yells at Harris and Howard.

Pepper spray is deployed around the 3:17 mark in the video, when Howard places his hands in front of his face, allegedly shielding his eyes from the flashlight Officer Kennedy continues to use.  Kennedy justifies deploying pepper spray by telling Howard he shouldn’t have come at him, when it’s clear there was no forward motion towards Kennedy.

Around 3:30 you can hear Kennedy say “I sprayed him, Sarge,” and another officer runs in while Howard is on his knees to cuff the former Roane State Community College player.  Howard’s coughs and pleas for help are ignored as the cops lead him out of the apartment.  Howard says around the 4:19 mark that he can’t see. By 4:35 Howard is begging for something to wipe his face off.  The cops respond “not right now.”  By 5:30 Howard is complaining he can’t breathe, and Kennedy responds with “You’re breathing.  You’re talking.”

Around the six minute mark Howard loses his cool, refers to the collar as “bullshit” and continues to call Kennedy a liar for the repeated assertions Howard charged at the officer.  By 6:54 Kennedy is justifying his actions to other officers on scene, saying “He wouldn’t comply with my commands, he kept coming at me.”  It’s almost as if Kennedy is framing the narrative for his eventual after-action report, even though the body camera tells otherwise.

By eight minutes, Howard’s face still hasn’t been cleaned off.  He’s not told the reason for his arrest.  Kennedy simply replies to repeated requests of why Howard’s arrested with “I’m going to figure this whole thing out.” Howard’s left in the car, potentially suffering from a severe allergic reaction to the pepper spray, while Kennedy discusses the events with “Sarge.”  Every statement is refuted by the body cam footage, especially the “I told him to step back but he wouldn’t.” (The command was “Stay right there,” which Howard lawfully obeyed)

Was the use of force necessary in this situation?  I’m not a cop, nor have I stayed at a Holiday Inn Express recently, but I’m going to land on the side of “no” here.  Everything Officer Kennedy did from start to finish was indicative of a “warrior cop” mentality, one trained to view Howard as an enemy rather than a person who needed to be investigated.  And the pepper spray, despite many listeners’ comments about how it’s “not that big of a deal,” wasn’t justified in use.  The entire matter stinks from beginning to end.

Bob, Katherine, Eric, if you’re reading this, I’m going to run the incident by Greg Prickett, Fault Lines’ ex-cop turned lawyer, to see if he’s got different eyes on this, but right now I’m calling this definitely a use of excessive force.  Katherine was right to question this, and kudos to her for bringing this to the audience’s attention.


I reached out to Greg Prickett and asked him to review the body cam footage from Officer Kennedy.  He’s an absolute treasure trove of information when it comes to reviewing officer-related shoots, and getting his analysis on this was worth the extra effort.  Here’s his response.

Jesus, where do you find these? That’s major f’ed up. I did not see any reason for the officer to spray Howard, and there damn sure wasn’t an arrestable offense that I saw. What are you going to arrest him for? You are forcing your way into the apartment, which is arguably legal if checking on the welfare of the parties. Of course, here you have both sides telling you to go away, everything is fine.
Then, after you tell him to move away from a knife that I never saw, you spray him because he’s not kowtowing to your insane demands? Howard never charged the officer. Then the sergeant kept saying to arrest him for domestic violence without any complainant or evidence of DV that I can see. Unless the state allows arrest for speech only (and not threatening speech, which there wasn’t any evidence of either), it’s a BS charge without a scintilla of evidence to support it.
Both the officer and the sergeant should be fired and charged criminally for violating Howard’s rights.


Cathars, Cops, And Personal Reflection

Over at Fault Lines, David Meyer Lindenberg recently posted an incredibly well-written piece called “The Persecution of Cathars and Cops.”  It’s an excellent reminder of how history has a tendency to repeat itself, and made me stop and examine some of the statements I’ve made concerning police misconduct in the past.  Am I really anti-cop, and is the message I send one against law enforcement, working in the trenches as an attorney?  While at times I’ve definitely taken what could be perceived as an anti-cop stance, I think it’s safe to answer that question as “no.”

First off, you’d be hard pressed to find a criminal defense attorney that hates cops.  No one hates cops, unless you’re an idiot.  What we hate is the continued culture of thuggish brutality, the warrior mindset embraced by those who should view us as part of the community, and the continual lack of accountability that seems to justify every single jack-booted reaction.  We work tirelessly to make sure those without a badge have just as much of a voice in the process that ostensibly flags everyone as “innocent until proven guilty.”

Another major issue is the public’s continued embrace of the cop as the “guardian and protector” of the community, automatically granting those with a shield a special status as an “authority figure” whose every demand must be obeyed on pain of death.  If someone doesn’t wrestle their son to the door for cops to arrest, they’re obstructing justice.  If you don’t take two steps to the left with your hands raised, you’re not complying with the law and deserve a good pepper spraying.  The continued shoulder-shrugging of those who say “Just comply and you won’t get hurt” is infuriating to those of us with our eyes open.

Yet we do have a voice, and there is a debate currently going on in our modern society over the role of police and their continued use of force in situations that otherwise might warrant a different approach.  The temptation is to pile on the negative side, and continually roll our eyes at every cop who claim they were in fear for their lives when they shoot a young black man in a heartbeat.  It’s something that leads the public down the path of “police are no longer deserving of our respect.”  That’s a scary place to be, especially when the cops are the ones out there every day ostensibly ensuring our streets are safe.

So where does this fit in with David’s post?  It’s easy to escape to our own realms that allow us unfettered access to confirmation bias.  With every “anti-cop” article or post you read on the Internet, it’s more likely to enforce your belief in that worldview.,  With every “Blue Lives Matter” statement you endorse the more pro-police you’re going to become.  Either way, it’s terrible, as David points out, to endorse a solution that’s “clear, simple, and wrong.”

So where does this fit in with me and my own ideas on how the police/misconduct angles work?  I think it’s best to say my views are more nuanced than originally seen.  I’ve spoken with family in law enforcement, and they can’t believe guys like Tyrel “The Tennessee Imbecile” Lorenz still have a job.  I know cops who’ve exercised incredible amounts of discretion on the job; some even going as far as driving publicly intoxicated folks home and getting them in the house. That doesn’t mean I can’t boost the signal of those who take the public’s trust and abuse it.

And I’ll continue to fight the good fight, and I’ll keep telling the cops that are out their doing their jobs the right way that I respect them for actually being the good ones.  That’s the only intellectually responsible thing to do.