Joe and Chris discuss the Rittenhouse verdict and the limits of self-defense standards. Specifically, at what point can stripping a case of all its context rob it of value. Meanwhile, Sheriffs are refusing to enforce laws — usually vaccine and mask requirements. What are the limits of prosecutorial discretion and, how in the world is it okay for an activist group to offer scholarships to law enforcement for neglecting their duties? Finally, we check in on NYU’s FedSoc chapter where board members resigned after learning that the group is doing… exactly what the Federalist Society is created to do.
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Joe Patrice: Hello and welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. I am joined by Christopher Williams also of Above the Law. We do not have Kathryn Rubino this week. She is off but we’re going to soldier on. How are you doing?
Christopher Williams: Pretty good. I’m appreciating the very white voice you broke off for today’s podcast. It just feels extra silky.
Joe Patrice: Nice, nice, nice. Well, you know it’s weird. I’m reacting to for whatever reason the reverb that I’m getting in my headphones is awkward today. So, my voice maybe a little different because I’m reacting to the sound of it hitting me.
Christopher Williams: Are you telling to everybody listening to this that – are you giving them proof that you don’t even listen to half of the stuff you say? Is that what I’m hearing?
Joe Patrice: No, no, no.
Christopher Williams: This is a new experience.
Joe Patrice: Well, no. I mean it’s just like that sound where its, how do I put this? it hits you like half a second after you say it, right? So, you have to solider on and keep talking even though you’re hearing it awkwardly in your earphones.
Christopher Williams: Hopefully it’s just the headphones and not a strange crockpot recipe side effects you’re dealing with.
Joe Patrice: No, I haven’t done any crockpot recipe-ing. Oh, you know this is technically small talk but Kathryn’s not here so I don’t think we need to do sound effects.
Christopher Williams: Oh.
Joe Patrice: Yeah. Let’s —
Christopher Williams: I was thinking about being annoying in her honor but I’m sure she’ll listen to it at some point later. Hopefully not but you know how life is.
Joe Patrice: Well, anyway this is of course Thanksgiving week so I’m not working on crockpots. I’m working on turkey brining and stuff right now.
Christopher Williams: Okay, okay. Fancy.
Joe Patrice: I moved from wet-brining it to dry-brining it last year and I’m going to stick with that. Allow it to dry out skin crispier that sort of thing.
Christopher Williams: Oh, that’s good. But my thing is whenever somebody is talking about turkey recipe always for Thanksgiving, always get worried that they’re about to mention deep frying it because that’s like the leading the cause of house fires.
Joe Patrice: It is.
Christopher Williams: Deep frying Christmas and Thanksgiving turkeys.
Joe Patrice: I am definitely going to do that one of these days but I’m not there yet.
Christopher Williams: It doesn’t have to be at your house. That’s the weird thing.
Joe Patrice: Yeah.
Christopher Williams: Just make a peace offering to an enemy like a Trojan horse but it’s —
Joe Patrice: I’ve got enough room here that I can set up my right nowhere near the house and hopefully that will avoid any risks but well let’s get right to it then this is Thanksgiving week. So, a short week this week hopefully we will get some bonuses that’s usually what starts ruling in around this time. We don’t have any at this point so I thought we would start off by talking about the Rittenhouse Verdict which obviously was dominating the news last week. So, that happened. Yeah.
Christopher Williams: Short, sweet and to the point. Me personally, I’m glad that it’s done. I expected this verdict. I was not open arms. My response wasn’t “Oh, my god will he provoke,” in my head, I’m like, yes but like the legal mind, I’m like, okay. If I’m thinking about this subjective standard, did this person think that their life was at risk what have you – I could see this being an outcome.
Joe Patrice: Yeah.
Christopher Williams: So, even with a lot of the lead up to the case with the jury and the judge and all that. Even moments where I was like the judge is being a dick. I was still like, I don’t know if this is – I was never at the point where I don’t know if this is enough of him being said dick to be like a mistrial or anything. I was like I don’t like this person but it makes sense. The outcome makes sense. I’ve seen take him a lot of folks were actually familiar with the law. And then like, yeah this makes sense. And I feel like most of the outrage has been from well-meaning people that just don’t have much of a legal background. And they’re like, yes he had all these pro cop content. Medics usually don’t carry AKs around. This is clearly the position he wanted to be in. And in my head, I’m like, yes all that can be true but the way that the law is set up, it’s in that moment what happened. I started to shift toward thinking that maybe this could be a learning opportunity to just teach people who aren’t legally minded. That’s a rule of law looks like things like this happening. Like I don’t think you should’ve got jail time for this. I think that it’s given the way that the law is set up. I think it’s a strong point that like my mentality didn’t go against the face of like self-defense doctrine. I do think the way that we think of self-defense and provocation is dumb but that requires a different change. And the thing that comes to mind is there was Southpark episode years ago where it was Cartman and Token. It was a stand your ground –
Joe Patrice: Stand your ground. Yeah.
Christopher Williams: And it was like, standing my ground. I’m standing my ground. And then Cartman had like a – I think it was a red spray can.
Joe Patrice: A little circle. Yeah.
Christopher Williams: Yeah, he drew a circle and then he like lured Token in with like a fist bump and like, oh, you threaten me. Boom. Everybody saw that? They saw that, right? You threatened me and I think that was feels like happened here.
Joe Patrice: Yeah.
Christopher Williams: And like the scheme of things but I say that my frustration was as me looking at the event as a person tension rhetoric and like whistle blowing and signaling. Like the fact that he did this and then he’s getting politicians rushing at the – forming at the mouth to give him an internship.
Joe Patrice: Right.
Christopher Williams: As soon as this happen, I got notifications for adverse to buy rifles or like as soon as this happens, there was a video that went viral of a guy saying “Be free. Be armed. Be dangerous. Be moral.” Like he wasn’t saying to me. I just happened to see the video. Like I get who the audience is.
Joe Patrice: Right.
Christopher Williams: But these are all things that have been risen to being of legal significance but they’re so asymptomatic of a culture or happening, right? So, I think that this a good opportunity for people to talk about excitement and provocation but as far as the way the law is now, it shouldn’t have been surprising.
Joe Patrice: Yeah. I mean I wasn’t surprised but I did feel like the law is the law but I don’t know. I think that jury instructions can be grafted that don’t write off a lot of that provocation and the significance of it. And one point that I made and I saw some other people making similar points as southpaw did on Twitter too. This really goes back to I wrote an article way back on stand your ground stuff about how functionally it’s trial by combat. At a certain point, we have morphed this law to become if you get into an altercation where both of you were afraid which one would assume that both people are armed, you would be. It just becomes who wins. That’s who get to claim the defense which is problematic and somewhat medieval.
Christopher Williams: Yeah.
Joe Patrice: Something we should be concerned about. And I felt like this case was just another step on that stand your ground was obviously it’s own kind of procedural thing but this is moving into more traditional self-defense doctrine and really making it to the victor goes the acquittal which is problematic and I think people need to be concerned about that because as you say we’re having these instances where folks are coming over in a provocative way. It’s going to lead more altercations and we have a self-defense law that basically allows you to point guns at people and if you win that fight, you get to get off. It undermines a lot of what the basic fabric of rule of law is supposed to be and becomes kind of medieval I’ve already said but I think that’s an apt term.
Christopher Williams: When I think about what self-defense law is structurally, it’s like if there’s – because the reason violence is bad, it’s not because people don’t want people to get hurt like so much of our everyday lives is based off of violence being the norm. The reason batteries will have your criminals because the state has a monarch – has a monopoly on violence.
Joe Patrice: Right.
Christopher Williams: It’s the state’s authority to enact harm upon the body politic and self-defense is —
Joe Patrice: In fairness, they don’t have a monopoly anymore because if you’re 17 and say that you’re a medic, you actually are deputized.
Christopher Williams: No, that will – well, yes. What I was saying is like the way that like self-defense law is set up is like a rule of exception that’s carved out in the state’s monopoly on violence. It’s like even in like everybody knows for the people that do note, consumer jury duties. He’s dead now. Like he’s no one as the categorical imperative guy, ethical, actions you need to ask if you could do this thing to everyone else barely if so cool. That’s like a short summary of it. But even he has an exception for dueling, right? He’s also like he has a set of slavery but that’s another discussion. Even the guy that’s like categorical imperative, he even has a dueling exception, right? So, I think that – because you’re talking about in terms of being elective to return to medieval practice. I do think there is something fundamental on how we think about what violence is and who is allowed to enact it that we have to get the root of if we really want to have discussions about the right to self-defense whatever that means in provocation.
Joe Patrice: And obviously, there’s – It’s a doctrine that is not consistently applied because people are in the wake of this pointing to other cases like this woman from Wisconsin who apparently allegedly killed someone who kidnapped her and sexually abused her and the prosecutor just went ahead and said, no self-defense here. We’re going for first degree which that failure to consistently apply this is I think what burns a lot people more because the rule of law really only works when it’s consistent.
Christopher Williams: And another thing that I see that and again is my go-to questions of provocation, I think it goes – it definitely goes outgoing down the hill saying, it also goes the question of provocation. I could say there’s a woman or a person, abusive relationship and then like one night they decide to –they’re like I can’t take this anymore. I need to get out of this and they decide to kill their abuse like while they’re sleeping or would have you like one of the things about the way that most self-defense laws work is that there needs to be an immediate threat and usually people who are sleeping are an immediate threat, right? And you get similar arguments that now legal folks are saying about Rittenhouse. Yes, but if I you look at the context of what was happening, this was clearly a defense in the same way if they look at Rittenhouse and they say you can look at the contents, context of what has happening which was clearly provocation. But the way that we think about immediacy is a challenge here.
Joe Patrice: Yeah.
Christopher Williams: And I was like if I look at it, it’s like in that moment is what the jury was asked to look at which is why talking about well his Facebook posts. It was irrelevant.
Joe Patrice: Well, that was I mean I haven’t dealt with self-defense in a long time. it’s not something that’s come up for me in my practice and so there’s —
Christopher Williams: And also can be different elsewhere. So, I’m not speaking categorically like everywhere in 50 states and also this isn’t a blank flag. This is a legal advice. I’m not an attorney in all that. All those —
Joe Patrice: Yes.
Christopher Williams: But yeah.
Joe Patrice: But I just was saying like I haven’t really dealt with any of this since law school. So, it was good that you’re here having dealt with it more recently because you went to law school. You went to school to be lawyer not an accountant. Take advantage of Nota and no cost IOLTA Management Tool that helps soloing small law firms track client funds down to the penny. Enjoy peace of mind with one click reconciliation, automated transaction alerts and real time bank data. Visit trustnota.com/legal to learn more terms and conditions may apply. So, let’s —
Christopher Williams: That was a good one.
Joe Patrice: I mean hey this is most of my job. I really don’t feel like – most of this show is just getting to and from the ad reads. Everything else is what you and Kathryn do.
Christopher Williams: Oh.
Joe Patrice: Let’s talk about some sheriffs. You came upon interesting troubling legal story.
Christopher Williams: Yeah. Again, rule of law things. So, you know the people that like whenever some black father gets shot for jaywalking and the immediate response is well he should’ve followed the law. Because jaywalking is illegal and even if it’s arbitrating law, it’s on the books. It’s probably worth enforcing but unless you’re a sheriff because that’s where it gets wicked. I think they were maybe like – I think the number is like six or eight sheriffs that got picked up by some far right think tank given a scholarship to come to the final batch of Right Wing Politics California oddly enough.
Joe Patrice: It’s the Clairemont Institute, right?
Christopher Williams: The Clairemont Institute yeah.
Joe Patrice: Yup.
Christopher Williams: Well, it’s interesting like these are sheriffs who are straight up like I’m not a fan of the vaccine mandates, I’m not going to enforce this and they’re just opting out of things to – they’re opting out of the rule of law functionally. Because like the weird thing is we’re talking about judicial politics and what have you but that leads like – let’s say for example, Clarencetown, he plays the role of yes, even though is say I don’t like it. I’m also passing laws at the bench but you know you cry, you hang your head in chain later but you do your job and you go home but there is sheriffs that was like no I’m good. Constitutional interpretation? That’s not just a juridical thing. It’s the job for the sheriffs as well. And my first thought when I hear about sheriffs is deciding when and when not to enforce the law is toilsome. And just the wild range of instances where sometimes 17-year old medics might feel like they’ve been deputized because sometimes they actually are.
Joe Patrice: Yeah.
Christopher Williams: And I do think when I read these things, it’s important to think that this might just not be – not just that it’s newsworthy but that it is indicative of the time we’re in because like for the folks that don’t recognize you in the middle of the rule of law crisis.
We’re in the middle of a rule of law crisis and for the people that do realize that this is the case, we should pay extra attention to times where actions that cut against the rule of law are being incentivized. And this is one of them.
Joe Patrice: I mean the incentivization is really disturbing. Now, Clairemont Institute has also been in the news a lot for legal stuff because that’s the home of Eastman who wrote the “How to coup in six easy steps” memo. So, that’s the same organization. Yeah, there is something to be said for prosecutorial discretion, law enforcement discretion. There are laws that exist that probably don’t need to be enforced to the hilt and so it’s good that we allow people in those sorts of positions to choose not to do certain things. You don’t want it to be arbitrary and capricious but if you wanted to say, look I’ve decided it’s not in the benefit of our use of resources or the society as a whole for me to be running around arresting everybody for marijuana possession. That’s fine. But that is a decision being made about how do you best use the resources that I think is within one’s power. This however especially with the way in which other organizations are giving incentives to law enforcement to choose not to obey the edicts of the state legislatures is that’s more disturbing because that takes it outside of the government.
Christopher Williams: I think it’s state. I think it’s federal. So this should also just be a clear federalism issue.
Joe Patrice: Well, I mean but there’s no federal – we did a show on this early in the pandemic. So, the federal question is very iffy like there’s not a lot to suggest that the federal government can have these sorts of mandates which is why you have this kind of genius but screwy OSHA thing where the Biden administration is trying to push a vaccine mandate not on the grounds of “hey, you have to get for public health reasons get this vaccine” but to say it’s a workplace safety issue and companies need to guarantee themselves that their other employees are vaccines for the safety of everyone in the workplace because that’s really the only in the feds get to have. But state governments have broad police power in this area.
Christopher Williams: They’re describing themselves as being constitutional sheriffs and —
Joe Patrice: Well, right.
Christopher Williams: And they’re saying like, in their own records, there is at least one guy. He was like, we will refuse any state or federal vaccine mandates and there was even a point where they’re like hey, we’re also thinking about not acknowledging election results. So, I was like even if it is the case – so, even if there is case that there won’t be some federal law that they will actually challenge the fact that this can be said in public is a concern.
Joe Patrice: Oh, yeah. And then they are definitely ignoring state edicts because that’s where the state police power is in. They call themselves constitutional sheriffs or whatever but like hillbillies want to be sons of the soil. It’s just not going to happen for them either. That’s an old Simpsons I think if I recall that line.
Christopher Williams: There probably was a way to render gifts in audio form because I’m pretty such that’ll be a good reference.
Joe Patrice: Yeah. I think. I’m trying to think. I think that might have been one of the Treehouse of Horror Halloween episodes but whatever. Yeah, no. like it’s going to become a problem if we have these kind of yahoo local officials who consistently believe that they can take the law into their own hands. It’s not great.
Christopher Williams: But I will say – you’re lucky I don’t have a laugh track round of applause to whatever think tank people are coming up with the names because constitutional sheriffs sound cool as hell like I just. It’s a lot quicker than no angel, right? Because both of them should carry across the impulse that they’re not law abiding but to not be law abiding as a way to uphold some higher standard. That’s really cool. Really cool if there’s a reaction, just turning that on and off whenever I want to.
Joe Patrice: Yeah. Well, let’s hear from Lexicon now and then come back and talk a little bit about law school.
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Joe Patrice: So, back. The Federalist Society has been in the news lately because there was the whole Trap House controversy at Yale which we’ve talked about I was on a webinar with the original author of that article where he was trying to talk about how it some grave free speech violation as opposed to not that all but point is, Federalist Society has been all over the place. New development over the weekend that we learned about was that at NYU, there were two women who were on the board of the Federal Society chapter there and they have resigned and they wrote a letter explaining their decision and their decision was that they really felt that the rest of the board was disturbingly trying to turn the organization into a very conservative activist group to which I don’t understand what group these people thought they were a part of.
Christopher Williams: Maybe they just thought it was a Chick-fil-A offshoot because like when I think of the Federalist Society, it’s like reactive traditional values and free chicken. And it might show some biases on my part but I’m sure they also have salads but still it’s like this all seems on a 10. It should’ve been expected.
Joe Patrice: Yeah. Well, it gets me. And frankly, the Chick-fil-A thing is a perfect example of it, right? Because in my day, they gave out free pizza because Chick-fil-A had not made a performative move to say that they are anti-gay rights. As soon as Chick-fil-A did that, I don’t think a Federalist Society event in the country has served anything but Chick-fil-A since then which that right there put aside any other thing. That is your red flag that this organization is clearly an activist group.
Christopher Williams: Yeah. Okay. So, I don’t know if this is true but the first thought I had when you said that, I was – I wonder if they decided to switch to Papa John’s when it was found out that Mr. Papa John said the N-word more than Paul Mooney because that would’ve been very hilarious.
Joe Patrice: That would’ve been.
Christopher Williams: And also —
Joe Patrice: Yeah.
Christopher Williams: That would’ve been a great time to serve pizza at your Trap House.
Joe Patrice: Yeah, jeez. Oh, man. Anyway but yeah, like it’s all about performative trolling and has been for years. I don’t understand what – like I don’t want to belittle the concerns that these women have because it did sound like they were trying to make changes on the board and they felt excluded but I mean it’s the club you joined. It’s been that way for years. It’s not like a surprise. I mean I’m older, I can do what Fed Soc was.
Christopher Williams: And it’s been that way for years because they’re traditionalists.
Joe Patrice: Well, yeah. If anything there’s an argument to be had that the organization has gotten more – much like conservatism as a whole has shifted from having kind of minor libertarian streak to being much more make America great. As the whole conservative movement went large has had that evolution so maybe you could say that’s been the change but I mean it was always on the fringe of where the right was and because it’s supposed to be. That’s by design. That’s not a bug. That’s feature because the goal of the organization is cultivate and nurture Right Wing Law students and get them networking connections with other powerful members of that movement and that will always gravitate to the more fringe because that is going to be who’s best suited to be their connections. It’s the people who are filing eight million lawsuits for one of those like the “blah blah blah” fund that like only files lawsuits about how gay bakers are destroying the world. I know that’s the opposite actually but the point is those organizations are always the big movers and shakers and they are the ones who everyone’s trying to meet and that’s just going to drive more and more to the fringe and so yeah I don’t get it. I don’t get why they – how they didn’t see this coming.
Christopher Williams: Yeah. My only comment to that was that was a very kind description to Fed Soc. I would’ve just called it the White Supremacies Recruiting Group of the legal field because I don’t’ know – here’s a weird thing about Cancel Culture is the way that we think about who gets cancelled and what gets enabled is so skewed right, right?
Like if we were to think about like the culture surrounding enabling racism, it would look like I don’t know somebody shooting people at a Black Lives Matter rally and getting an internship not from anything that he’s done prior to that but because that happened or like professors repeatedly saying slurs and still having their jobs. Like I get 10 years of thing but the fact – but like that – I think it’s still worth mentioning. Or like say, what is that some law student still got like a prestigious federal internship after like recently saying racist thing.
Joe Patrice: Well, this is the clan thing that we talked about last week. Yeah.
Christopher Williams: Yeah. The fact that these things aren’t big “no no’s” but I’ve had conversations where friends ask me if a hairstyle was professional enough like the metric people use to gauge employability skew so right leaning.
Joe Patrice: Yeah.
Christopher Williams: It is wild like there are some jobs where you can’t work there if you’re wearing the wrong shoe. The thing that I don’t get – the person that do this like Yale, they’re going to have a job and it’s going to be —
Joe Patrice: Oh, yeah.
Christopher Williams: Like this just be a thing that they laugh about when they’re throwing back beers with their friends because for whatever reason I don’t know people make six figures and still like beers. I don’t know. Is it weird? I’m not a fan of weep water. I feel like once you reach a certain bracket like have some wine like it’s not the culture thing. I don’t know I just feel like it’s better on the palette but —
Joe Patrice: Fair enough. I think that’s very true. It does push very right on that front and yeah. I think that’s it. I think that’s all we have for today. So, with that said, thanks everyone for listening. You should subscribe to the show. You should give it reviews, stars, write something. Show some engagement. That’s always good for algorithms which then will suggest this show to more people and get it out there. Check out Above the Law as always so you can read these stories and more not just the ones that we talk about every week but the whole range of coverage. You should be listening to The Jabot which is Kathryn’s other podcast. I’m also a recurring panelist on the Legal Tech Week Journalist Roundtable which is it Legal Tech Week or Legal Tech, whatever. I think it’s Legal Tech Week.
Christopher Williams: You are lucky she is not here. You are so lucky she’s not here.
Joe Patrice: So, actually you know it’s interesting on the last episode of that, the host of the show introduced it and got the name wrong and I was like see it’s not me. It’s just a name that doesn’t quite roll off the tongue. Yeah, anyway.
Christopher Williams: Sure.
Joe Patrice: But know that did happen. Anyway, so all of that you should be checking us out on social media. I’m @josephpatrice. He’s @rightsforrent. Thanks to Nota powered by M&T Bank and Lexicon and I think that’s everything.
Christopher Williams: You should be having a good week.
Joe Patrice: What? Yes.
Christopher Williams: You should be having a good week.
Joe Patrice: Have a good week, have good turkey, we’ll see – unless you’re a vegetarian. Then have good whatever you eat. And then, we’ll catch up next week.
Podcast transcription by Tech-Synergy.com