2015.82: More Gaslamp Legal Follies

Email to me from Gaslamp’s lawyer Tim Sutherland, subject “post comments”:


I called your office to discuss the post on your website. If you would, please provide me with a time that you are free.



My response:

Sure, Tim. As soon as you release the full door video.

I have not yet received a response. I’m not holding my breath because my bet is, as I’ve said before, that the full door video will show that Sutherland and his client Gaslamp are lying about what happened on the night of September 11th, 2015.

Meanwhile, the Houston Press reports that Gaslamp owner Ayman Jarrah “wants out, says allegations of racism have ‘hurt me more than anybody else.'”1

In Sutherland’s original video he referred to extortion and criminal charges filed against a former employee. The Houston Press article elucidates:

Tim Sutherland…claims Matte “asked us for $10,000 in order to not go and speak with Brandon Ball and he would say whatever we wanted and put whatever we wanted in writing. We refused, and my understanding is that he’s gone out and is working with them or something like that.”

Sutherland says the club has filed an extortion complaint with the Houston Police Department against the former manager and turned over copies of the text messages to the authorities.

Here are more text messages, allegedly between Jarrah and Matte, which Jarrah provided to the Houston Press:

Houston Press / Ayman Jarrah
Houston Press / Ayman Jarrah

There may be more to this, but I don’t see enough here to prosecute either Matte or Jarrah. At the end Matte says, “You know none of that is legal,” which could mean that he’ s justifying his $10,000 price, or could mean that he was just kidding with Jarrah. The words following “I am” could be important in determining which is the case, as could the words before “tomorrow at noon.”

Did Jarrah provide more to Phaedra Cook, the author of the Houston Press article? If not, what is he hiding? I’m pretty sure the Harris County DA’s Office wouldn’t file charges against Matte without seeing the rest of the text messages. They might file felony charges against Jarrah, though, if this is all he gave them.

How is that? If either Jarrah or Matte is serious, these are clearly negotiations to tamper with a witness:

A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding…to withhold any testimony, information, document, or thing.

Does Jarrah offer, confer, or agree to confer a benefit? I would say so. He’s offering to confer some indeterminate benefit, though the parties don’t seem to be able to agree on the amount. It looks as though Jarrah was perfectly willing to tamper with a witness at the right price, and only went to the police when he couldn’t negotiate a good enough deal.

If Matte solicited a benefit to withhold evidence, he also committed a couple of felonies. But without the context of the emails, it’s hard to tell.

It wouldn’t be a great case against either Matte or Jarrah — before filing charges for witness tampering, you want to know how the discussion started and how it ended — but judging from these messages it’s a better case against Jarrah. In Texas a person (e.g. Matte) can’t be convicted on the uncorroborated testimony of an accomplice (e.g. Jarrah). These text messages are likely not corroboration because only Jarrah (arguably an accomplice to Matte’s acts—he’s not saying “no”) can testify to who was asking for the $10,000.

The accomplice-witness rule doesn’t come into play if the State charges Jarrah with witness tampering because Jarrah has provided the State with his own incriminating words. The State needs Jarrah to prove the case against Matte, but doesn’t need Matte to prove the case against Jarrah.

I doubt that the State will charge anyone here, but putting your client in jeopardy is almost always worse than not putting your client in jeopardy. So today’s protip for aspiring cook / lawyers: there’s a difference between extortion and a conspiracy gone awry. If your client’s real complaint is that his coconspirator wanted too much money to commit the crime with him, he might be better off not getting the government involved.


  1. Boo fucking hoo. 

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2015.81: Campaign to Eliminate Air Hand Dryers

Hot air dryers have the potential for depositing pathogenic bacteria onto the hands and body of users. Bacteria can also be inhaled and distributed into the general environment whenever dryers are running. It is recommended therefore that the use of hot air dryers should be carefully considered on health grounds, especially in sensitive locations such as hospitals, catering establishments and food preparation areas.

Hot air hand dryers do not dry as well as paper towels (leaving hands damp and welcoming to pathogens). When a toilet flushes it sprays a mist of shit-laden water droplets into the air. An air dryer sucks in this air, warms it up (bacteria love that), and blows it out again onto your damp hands. Several studies have found that paper towels do a better job of reducing bacteria on hands than do hot air driers; some find that air dryers increase bacteria on hands. “From a hygiene standpoint, paper towels are superior to air dryers; therefore, paper towels should be recommended for use in locations in which hygiene is paramount, such as hospitals and clinics.” (Interestingly, it appears that rubbing your hands together under the dryer, per instructions, makes things worse.)

Air hand dryers are a public-health menace. If you go to a restaurant that uses air hand dryers, you don’t only have to worry about the cleanliness of your own hands; you should be more worried about the cleanliness of the hands of the stafff—the cooks who cook your food, the waiters who serve it, the dishwashers who handle your dishes. If the restaurant has only hand air dryers, these people have bacteria from human feces all over their hands. Add to that bathroom doors that open inward, so that you have to touch the door handle to get out of the bathroom, and you might as well not wash your own hands.

So why do public places—restaurants and bars—have air hand dryers instead of paper towels? Money. Installing air dryers is cheaper (more than 2.3 cents per bathroom-using customer!) than buying and cleaning up paper towels.

Conclusion: Restaurants that use only air hand dryers are selling our health. They’re risking making us sick for a buck.

What can we do about this? I’m glad you asked. If someone is selling your health, make it more expensive for them.

How? Again, I’m glad you ask. The Internet has given us the tools to make air hand dryers prohibitively expensive to restaurants. We can make it more expensive for restaurants to use air hand dryers by reducing the reputation of the restaurants that sell our health. But we have to do it en masse.

Here’s my proposal: when you happen upon a restaurant that has only hand air dryers, leave a one-star review on Yelp. Explain in your review that it is based on the restaurant’s willingness to risk your health for a few pennies. Discuss that risk. Link to this post. Promise to change the review when the restaurant comes clean.

I promise you that it won’t take many one-star reviews to get these restaurants to put our health ahead of a few cents of profit.

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2015.80: #MasculinitySoFragile? Man Up.

Those of you who have not yet been sucked into using Twitter may not be familiar with hashtag activism.1 Someone has some point he wants to make, so he says something and attaches a hooky hashtag—a string of letters following a pound sign: #NotAllMen, for example, to either a) make the point that generalizations of the evils of manhood do not apply to all of us; or b) mock “not all men” as a deflection of discussion of the evils of manhood.

As you can see, the point of the hashtag is not always explicit; sometimes it’s ironic.

There are three types of user of activist hashtags.

  • People who agree with the point that the hashtag explicitly makes. I’ll call these (arbitrarily) the “Earnest Pros.”
  • People who disagree with the point that the hashtag explicitly makes (but who might agree with the intended ironic point). I’ll call these (conformingly) the “Earnest Cons.”
  • People who hijack the hashtag looking for entertainment. I’ll call these (fondly) the “Trolls.”

The Earnest Pros and the Earnest Cons are on the same axis of earnestness, arguing with each other as though it’s serious business. The Trolls are using the hashtag just to get a reaction from the Earnest Pros, the Earnest Cons, or both.

It’s not always possible to tell the difference between the Trolls and the Earnest Pros or Earnest Cons. When you point out to what appears to be an earnest hashtag warrior the silliness of hashtag, he might retreat to “LOL you don’t appreciate good trolling.” Maybe. Roll your eyes and walk away.

Sometimes, though, an Earnest Con really is an Earnest Con:

That’s a guy named Brandon Morse’s surreply to someone’s reply to his response to the #MasculinitySoFragile hashtag. Morse sees the hashtag as “people trashing him,” and thinks he needs to “defend himself” against a hashtag that isn’t even directed at him.

Morse went on to write an article about how #masculinitysofragile is “dumb,” complete with high-school writing ability (“infer” for “imply, “is” for “are,” and so forth).

There’s a bit of self-fulfillment here. Let me take this out of the realm of the gender wars to demonstrate:

#HairSoGreen you look like the Grinch.

“My hair isn’t green. In fact, most men’s hair isn’t green. You’re just hanging out with green-haired beta men.”

“If you weren’t insecure about your hair, you wouldn’t respond.”

“It’s not insecurity to defend myself.” [Writes 1000-word blog post explaining.]

Take it as a given that some people’s hair is green. If your hair isn’t green, you aren’t being “trashed” by #HairSoGreen. If you know that you don’t have green hair, you know that you aren’t being trashed. You don’t have to be offended; you can let the slight slide. #HairSoGreen only hits home if it’s plausible to you.

Likewise with fragile masculinity. Take it as a given that some people’s masculinity is fragile: they harbor secret doubts about whether they are “masculine enough.”2 If your masculinity isn’t fragile, you aren’t being “trashed.” If you people can trash your masculinity by suggesting that masculinity is fragile, your masculinity is fragile.3

“Taking offense” is an active verb.4 If Morse didn’t choose to take offense at #MasculinitySoFragile he wouldn’t. “Taking offense at the words of women” is not traditionally a component of masculinity (else the species would have self-destructed long ago). Morse wants a strong masculinity … that can be trashed by words.

Sorry, Brandon. Pick one. Be secure in your masculinity, or choose to feel that it is threatened by #MasculinitySoFragile. The two are mutually exclusive. All over the world men are going about their archetypally masculine business—providing for their loved ones, protecting the weak, making the world better however they can. #MasculinitySoFragile doesn’t affect masculinity in the least.


Later Morse wrote:

Morse is fighting the wrong war. The #MasculinitySoWeak folks don’t care about femininity any more than they care about masculinity. It’s all a social construct to them. To the current wave of feminists gender is fiction, which each of us can write and rewrite freely. It’s not just fragile, it’s insubstantial.

Masculinity isn’t entirely a social construct, though. Men and women are biologically different. Evolution has put us together to do different jobs. Woman got the uterus and the nurturing. Man got the upper-body strength and the violence. Together we made an unstoppable team for tens of millennia when the short-term survival of the species was iffy. Now that we’re living in civilization—about the last 10,000 years of our species’ 150,000-year history—we’ve had to make allowances to allow us to live together without being in a constant state of war with the next block over.

So masculinity isn’t entirely biological, either. Modern masculinity is biological masculinity covered with a veneer of civilization: wolves in nice suits. Survival is easy enough for homo sapiens that we can take roles that their ancestors 600 generations ago weren’t free to explore. Men can be stay-at-home dads, and women can provide for them. We can celebrate that without forgetting that there’s no guarantee that survival will continue to be easy.

The veneer of civilization could plausibly be erased in a single generation. It’s not masculinity that’s fragile; it’s the constraints that society puts on masculinity. And when survival of the individual or the group is doubtful, we’ll all count ourselves lucky that underneath the nice suit, the wolf abides.

  1. Do they do that on Facebook too? 

  2. Answer, for whatever it’s worth: screw the archetypes and just be yourself. You can’t do more than that. 

  3. The hashtag is not a kafkatrap for several reasons. Most importantly, because there’s a win/win: don’t respond to it, and it doesn’t affect you. “#BrandonsFragileMasculinity” would arguably be a different story. If someone announces to the world at large that your hair is green, you might reasonably correct the facts. 

  4. We call this “giving up your power.” 

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2015.79: Cook / Lawyer Tim Sutherland’s Attempts to Cover Up Gaslamp Racism

Ayman Jarrah runs into the kitchen of his Gaslamp gastropub, waving a Houston Press. “Oh, shit. They’re saying we’re racist. I need a lawyer on the fly.”

Tim, working the fry station, finishes a batch of onion rings, plates them next to a cheeseburger, wipes a spot of grease from the plate with a terrycloth, and puts the plate in the passthrough. He wipes the sweat from his face with the same terrycloth, unties his apron, lets it drop to the kitchen floor. Beneath it he wears a red-and-green plaid shirt and a black tie.

I’m a lawyer, boss. Got a video camera?”

An hour later, this is on Youtube:

When I saw the video, first I thought, “that’s pretty clever PR at the end, suggesting that if people don’t like Gaslamp’s discrimination they ought to get a law passed to forbid it” But then I took a look at the Civil Rights Act, and discovered that—contrary to Sutherland’s bald-faced assertion—federal antidiscrimination law covers nightclubs. It doesn’t cover “private clubs,” but there really isn’t an argument that Gaslamp is a private club. It doesn’t cover bars, but Gaslamp serves food, and serving food makes it a “public accommodation” that can’t discriminate on the basis of race.

Federal antidiscrimination law applies no less to Gaslamp than to Kung Fu Saloon, and if Sutherland couldn’t be bothered to read the Civil Rights Act, at least he could be expected (as a self-professed “food and hospitality” lawyer) to know about Kung Fu Saloon’s consent judgment for doing what Gaslamp was accused of doing.

(Today I learned from Tamara Tabo that Houston already has the city ordinance that Sutherland calls for in the video. So not only does he misstate federal law, but he misstates municipal law as well.)

In light of Sutherland’s misstatements of the law (I’m not sure which would be more charitable: assuming that he lied, or assuming that he’s just incompetent, but Hanlon’s Razor dictates the latter) the PR didn’t look so clever.

In light of those misstatements, the video looks more like a “fuck you” to people who wouldn’t voluntarily do business with a racist business, and a nudge-and-wink to Gaslamp’s preferred clientele: white people who would rather do business with a racist business.

At this point Gaslamp’s stories have been: 1) that the three black lawyers were trying to get onto the rooftop, where everyone must pay a cover; and 2) that the three black lawyers didn’t have any women with them, so they were asked to pay a cover. The lawyers didn’t even know about the rooftop, so they couldn’t have been trying to go there. And lest you believe that they were charged a cover because they didn’t bring any women, check this out:

The hispanic deputy who is standing idly by while Gaslamp requires a cover charge from the black women but not from their white friend is Jojo Flores. The Sheriff’s Office has since decided that it won’t allow our public servants to work at Gaslamp. There’s no indication that Flores has been reprimanded or otherwise disciplined yet.

In his first video, you may have noticed Sutherland opening the door for the gastropub to throw its bouncers under the bus by citing “too much discretion.” That’s probably a strategic choice. About a week ago this popped up:

Blog Ayman Jarrah 1

as well as this:

Blog Ayman Jarrah 2

Those are text messages posted to Facebook by Ryan Matte, purporting to be communications between Ayman Jarrah (a/k/a David Yurman) and him. Matte writes:

I am former management and can testify, and have proof, stating that both Ayman, as well as management gave direct orders to the door staff to not let minorities in, except he used much more vulgar terms. And to Mike Ross and Jacob and Neil. Here is a screen shot of messages of Ayman trying to throw y’all under the bus.

Matte admits having another bone to pick with Jarrah: he says that Jarrah stole his and other employees’ wages. But unless the video and the text messages are fabricated, this is just Ayman Jarrah’s and Gaslamp’s racist hens coming home to roost.

Speaking of fabricated, Tim Sutherland has released another video “on behalf of” his “client”; now the story is that the three lawyers were trying to get in through the VIP entrance instead of waiting in line:

In case you’re not the type who pays attention to cinematography, what you’re seeing there is a video that’s been cropped in three dimensions. Not only is Chef Tim showing you only the time that he wants you to see (not before the three guys walk up, nor after) but he is also showing you only the frame that he wants you to see. It looks like the camera moves from one shot to another, but what’s really happening is that the video has been edited to show only a bit of the recorded frame, so that Gaslamp is showing you only part of the screen at a time.

My bet is that when the whole video comes out, we’ll see that when the three guys walk up to Gaslamp, there is nobody in line. The people who appear to be in line at the end of the snippet are the overserved-looking white folk you see crossing the street before. We’ll see, in other words, that Tim Sutherland is a liar.

The coverup is always worse than the crime.

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2015.77: Texas’s Hoax-Bomb Law

Free your mind from the false notion that the Texas Legislature knows what it is doing.

(13) “Hoax bomb” means a device that:

(B) by its design causes … reaction of any type by an official of a public safety agency ….

Yes, reaction of any type. So this device, which might by its design causes a reaction by a police officer (it’s intended to do so, in fact), could be a hoax bomb. (Image from goodmenproject.com.)

Picture of Hoax Bomb
A Hoax Bomb

As could this:

Another Hoax Bomb
Another Hoax Bomb

And this:

Yet Another Hoax Bomb
Yet Another Hoax Bomb


And even this:

Still Another Hoax Bomb
Still Another Hoax Bomb

Whether something is a hoax bomb depends on whether it “by design causes … reaction of any type by an official of a public safety agency.” So you don’t know what a hoax bomb is until a cop or firefighter sees it. If the wrong cop sees it, anything could be a hoax bomb. There might be a cop who loves cars; to that cop, a car is a hoax bomb because it causes a reaction.

A telephone is not a hoax bomb until it is used to call a cop.

Just possessing a hoax bomb is not a crime, though. It is only a crime to possess a hoax bomb with the intent to use it to “cause … reaction of any type by an official of a public safety agency ….”

Yes, reaction of any type.

So if a person uses any of those hoax bombs pictured above with the intent to get a reaction from some cop, and succeeds, he has committed a Class A Misdemeanor.

I sometimes think about writing dystopian legal fiction, but we all might confuse it with the news.

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2015.76: Citron’s Baby is Unconstitutionally Ugly, Says Koppelman

In Revenge Pornography and First Amendment Exceptions, to be published in the Emory Law Journal, Northwestern law prof Andrew M. Koppelman says (PDF) what I’ve been saying all along: revenge-porn statutes

restrict speech on the basis of its content. Content-based restrictions (unless they fall within one of the categories of unprotected speech) are invalid unless necessary to a compelling state interest. The state’s interest in prohibiting revenge pornography, so far from being compelling, may not even be one that the state is permitted to pursue.

While praising Danielle Citron’s model revenge-porn statute and negging Mary Anne Franks’s (“I worry,” Koppelman writes, “that Franks’s statute may be overbroad”;1 this will be the harshest criticism Franks has received from within academic circles), and noting that revenge porn does not fit into any recognized category of unprotected speech, Koppelman writes that “There is, and should be, a presumption that such a statute is unconstitutional”2 before launching himself from scholarship to editorial:

Free speech law goes wrong when it declares that the presumption cannot be overcome.

Koppelman’s philosophical thesis is that the Court should add a new category of unprotected speech. He supports his thesis with his reading of John Stuart Mill.

Koppelman’s philosophical argument is unexceptional. I have no quibbles with it, but Koppelman’s prescription is light on the law.

First, Koppelman’s proposes a thinly-disguised balancing test of the sort explicitly rejected in Stevens. He says “it misdescribes the problem to say that these harms are to be balanced against the imperatives of the liberal political order.” But that’s a straw man: the Stevens court did not reject as “startling and dangerous” the proposition that the value of speech should be balanced against the imperatives of the liberal political order. Rather, the Court rejected the proposition that

Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.

It is inescapable that Koppelman’s philosophical judgment — that we ought to be able to protect people from the unwanted disclosure of intimate photos that they have privately shared — is based on the low value of the speech against its societal costs. His philosophical argument is a legal nullity.

Forbye, decent people might agree that revenge porn is bad, and decent people who are also authoritarians3 might agree that the state oughta do something. But the judgment of whether the Supreme Court should recognize another category of unprotected speech depends — this really should go without saying — on what the category is. If the proposed category of unprotected speech is “nude pictures,” so that all nude pictures will be unprotected, then the Court should not recognize that category.

The problem of advocating for a new category of unprotected speech is one of unforeseen consequences. If you have no idea what the category is, you have no idea what else it’s going to render unprotected.

Koppelman recognizes the problem:

That leads us to a lawyer’s question: can the category of unprotected speech be crafted with sufficient precision that clear notice is given as to which speech is protected and which is unprotected? Categories of low value speech must be “well-defined and narrowly limited.” That responds to familiar concerns of “chilling effect” and “slippery slope.” If, however, a category of unprotected speech can be crafted with enough precision, then exceptions to ordinary free speech principles, even the prohibition of viewpoint discrimination, can be consistent with the broader purposes of the system of freedom of expression.

Even explicitly recognizing that he is unable to answer the question ((Yes, it’s a lawyer’s question. Leave the answering of it to the lawyers, okay?)) of whether a narrow-enough category could be crafted,  Koppelman blithely recommends that something be done.4 Why does Koppelman go to the trouble of finding a philosophical reason that revenge porn is bad — I mean really bad — and that the Supreme Court oughta recognize a categorical exception, without proposing a category?5 Easy: he’s gertruding.6 Having called Franks’s and Citron’s revenge-porn babies unconstitutionally ugly, he throws them a little bone of philosophy with no legal meat on it because he doesn’t want to be called a misogynist.

The takeaway for practitioners, legislators, and judges from Koppelman’s article is that revenge-porn statutes — like Texas Penal Code section 21.16 — are unconstitutional under current First Amendment law, which is what I’ve been saying here, Cassandra-like, for years.

  1. By “overbroad” Koppelman presumably means “even broader than I would allow,” rather than “overbroad under current First Amendment law, which he concedes both Citron’s and Franks’s model statutes to be. 

  2. None of Koppelman’s legal conclusions will surprise readers of this blog, and this is how things should end in every court but the highest. 

  3. Bear with me here. 

  4. Maybe in response to Koppelman’s article Franks and Citron will propose some exception, but until now they’ve been so busy pretending that some already-recognized exception will save their baby that they haven’t even tried. 

  5. I discuss the problem of defining such a category here. Scroll down to “So how would we….” 

  6. Please upvote the Urban Dictionary entry. 

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2015.75: Phil Grant’s Ethics, or Lack Thereof

Montgomery County First Assistant DA Phil Grant is running for judge. Which means that he has to follow the Texas Code of Judicial Conduct, which says:

A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge’s court in a manner which suggests to a reasonable person the judge’s probable decision on any particular case. This prohibition applies to any candidate for judicial office, with respect to judicial proceedings pending or impending in the court on which the candidate would serve if elected.

Which means that Phil Grant cannot ethically say the things that he says here. ((Yes, that’s my case. It’s a First Amendment case in Texas; the odds of my having a hand in it are good. Steve Jackson had the good sense to bring me aboard as his Law Lawyer for this issue. Unlike Phil, Steve has a handle on the First Amendment issue: it’s not about what that defendant did. As he says, “The statue does snare the guilty. But it also snares the innocent.”))

Phil and I have always gotten along just fine. We’ve never butted heads. He has commented here. But in 2012 I gave Kelly Case hell for dishonestly pandering to Scared White Republican Voters, and I’m not going to cut Phil any more slack than I’d cut Kelly.

Phil, is it too much to ask that you read the ethical rules that you have to follow as a judicial candidate?

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2015.74: Kim Davis is a Greedy Bureaucrat

Hier stehe ich, ich kann nicht anders. Gott helfe mir. Amen.

That’s Martin Luther, who’d had it up to here with the Church, defaced its doors, and been declared a heretic, excommunicated, and declared an outlaw.

Here I stand. I can do no other. God help me. Amen.

Martin Luther had a choice, with two options:

  1. Act in accordance with his principles.
  2. Remain a member of church and under the protection of the state.

Kim Davis, the Rowan County Clerk jailed for contempt of court in Kentucky, also has a choice, but she has three options:

  1. Act in accordance with her principles.
  2. Keep getting paid at her government job.
  3. Stay out of jail.

Davis cannot do all three. There is nothing in the Bible, the Constitution, or the Uniform Commercial Code1 that says she gets to have it all. But she does get to pick any two.

  • If Davis keeps her government job and continues refusing to issue marriage licenses2  — the job that she is getting paid for and that a U.S. District Judge has ordered her to do  — she stays in jail.
  • If Davis gives up her government paycheck, she can refuse to participate in gay marriage and get out of jail.
  • If Davis sacrifices her principles at the office, and issues marriage licenses to all comers, she gets paid and gets out of jail.

I wouldn’t criticize any of these choices. How Davis values these three goods — principle, money, and freedom — is a personal matter. I wouldn’t judge her for making accommodations at work to stay out of jail. I wouldn’t judge her for giving up a paycheck to live her principles. And I don’t judge her for giving up her freedom to live her principles and get a paycheck.

But while the calculus that led Davis to choose jail over freedom is a personal matter, neither these variables3 nor the result are private matters. We know the options that she had, and we know her choice.

A digression that may well end up devouring this post:

Davis’s lawyer now says, discussing marriage licenses issued to same-sex couples today:

… that they are “void,” because they did not come under Davis’ authority.

“They are not worth the paper that they are written on,” Staver said.

Exploring that idea, he said the county clerk has the authority to distribute marriage licenses — and Davis hasn’t ceded that authority to her deputies who issued licenses Friday.

Lest you think — as Davis’s lawyer seems to think — that Davis can gum up the sodomy works by remaining in jail so that marriage licenses can’t be issued: under Kentucky law, a county judge executive can issue licenses when the county clerk is absent.

The lawyer’s statements today might suggest that Davis seeks to stop gay people from getting licensed, but that appears to be his agenda rather than his client’s. Davis’s pre-incarceration arguments suggest that she is interested only in avoiding participation herself: she argued that her religious scruples rendered her “absent” so that the county judge executive could issue marriage licenses in her county. The judge rejected that argument.

Well, she’s certainly absent (“not present at a place, job, etc.,” according to the dictionary definition the U.S. District Judge quoted) now, so the county judge executive can issue licenses in her county. Can he delegate that duty to Davis’s deputies? Mere details.

End digression.

We see three variables to Davis’s decision, and we see the decision. Rationally, she should choose the combination of two options with the highest value to her.

People have been known to swap freedom, money, and principle for each other. Just taking a job is giving up a bit of freedom for money. I make a living because people give up money for a bit of freedom.

We can infer from Davis’s choice that at the moment she values principle over freedom. P>F. We can also infer that at the moment she values her sweet government job over freedom. J>F. If her freedom were more valuable to her than her job, she could resign (or take a leave of absence) and be out of jail Tuesday.4

So we know that Davis values principle over freedom, which might make her hero material if we didn’t know something else about her, which is that she also values her government job over freedom. We don’t know whether there is a price at which Kim Davis would sell her principles, but we know that she has sold her freedom cheaply.

If valuing principle over freedom makes you a hero, valuing a government paycheck over freedom makes you just another greedy bureaucrat.

  1. PBUI. 

  2. Davis is refusing to issue any marriage licenses; she argued that her refusal to issue licenses caused only an incidental burden on the (gay and straight) plaintiffs’ right to marry because they could go to one of the surrounding counties for a license 

  3. There may be other factors of which we are not aware — for example, someone may be promising her some benefit for staying in jail, or threatening some detriment for not doing so. But these are just parts of the three major variables: P, J, and F. 

  4. The injunction was against Davis in her official capacity; when she is no longer the Rowan County Clerk, the injunction no longer applies to her. 

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2015.73: Opportunist Dan Patrick and the Goforth Murder

Yesterday, as those of you who follow me on The Twitter Machine know, I had jury duty. I didn’t get picked, of course—in fact, didn’t even make it to the courtroom. But I did learn some things, about which I will blog later, and I ran into an old friend, whom I’ll call “Frank.”

I met Frank in martial arts class. Frank, who lives in Cypress, Texas, is a a Harris County Deputy. Many times he has filled his patrol car with gas, while in uniform, at West Road and Telge in Cypress. I know Frank’s oldest kid. Good kid. Frank is five years from retirement, and has a couple of businesses he’s building in anticipation. We’re not close, but we like each other and we always take a few minutes to catch up when we run into each other at the courthouse.

It appears that the murder of Deputy Darren Goforth was not motivated by any relationship between him and his killer. If that is true, then it’s just dumb luck that Goforth got killed, and not Frank. It’s just luck that I didn’t lose a friend. Some guy who knew Darren Goforth like I know Frank — not well, but well enough to take personally the wound of his passing — is grieving today instead of me. Frank’s kids aren’t fatherless, his wife isn’t husbandless. Just dumb luck. And if Fortune had frowned on Frank instead of Darren Goforth, Frank’s wife and kids and friends wouldn’t be grieving because Frank was a cop, but because Frank was their own. Just as Darren Goforth’s wife and kids and friends (including Frank) are grieving because Darren Goforth was their own.

But you can expect politicians to make political hay of this personal tragedy.

Our brains try to make sense of things. If Darren Goforth had been murdered out of uniform and had his private car stolen, we might have explained his killing to ourselves as a robbery gone overboard. If he had been murdered in uniform by a white man, we might have explained his killing to ourselves as an act of madness. But because he was murdered in uniform, we explain his killing as being because of his uniform, and because he was murdered by a black man, we explain his killing to ourselves as racially motivated. Because, in the part of our brain that is trying to make sense of the senseless, correlation might as well be causation.

If you combine “motiveless murder of cop” with “black-on-white crime,” it’s natural to think that the murder was a political assassination, retaliation for something that white cops have done to black men. It could have been that. Or it could have been an act of madness — the killer might have seen the Deputy sprout wings and horns, and might have acted to save humanity from the vanguard of the demonic invasion. Or the truth could be somewhere in between — for example, the killer might have confused the deputy with someone else against whom he had a real grievance. Smart money always says that the truth is somewhere in between, but sometimes smart money is wrong. We don’t know what motivated the killer. The accused man has a history of petty offenses1 and some mental-health diagnoses.

So why does the first explanation — political assassination — seem like the best one? And why would the political-assassination theory not seem like the best explanation if, ceteris paribus, the killer had been a white man? Because white people aren’t perceived as having a grievance against the (white-dominated) government, and black people are.2 “Guilty conscience” isn’t the right phrase, because the government is sociopathic and feels no guilt, and anyway those who serve the government would deny with every fiber of their being that the grievances are legitimate. But the government and those who serve it recognize the grievance.

And, recognizing the grievance, they do something about it: they take advantage of it. Here’s Texas Lieutenant Governor Dan Patrick’s prescription to “put an end to this violence against law enforcement – now!”:

As more details of the tragic death of Harris County Sheriff Deputy Darren Goforth unfold, a morbid reality is unveiled about America’s negative attitude toward our law enforcement officers. It must end now or we run the risk of fewer men and women willing to go into the profession and families insisting their spouses change careers.

Police officers are judged 24/7, 365 days a year for their entire career. One mistake can get them sued, fired or killed. I want to remind Texans and the rest of our country that these brave souls are the thin line between a country of law and order and a society of total lawlessness where no one is safe.

I challenge all Texans to think about how underappreciated our officers must feel, how dangerous their jobs are, how they leave their families everyday not knowing if they are coming home and more importantly, if there is anything you can do to help make their job a little easier.

Join me in changing this negative attitude toward those that protect us, by practicing the following:

Start calling our officers sir and ma’am all of the time. It’s a show of respect they deserve.

Every time you see an officer anywhere, let them know you appreciate their service to our community and you stand with them.

If you are financially able, when you see them in a restaurant on duty pick up their lunch check, send over a dessert, or simply stop by their table briefly and say thank you for their service.

Put their charities on your giving list.
If your local law enforcement has volunteer-citizen job opportunities, sign up.

Join me in a special prayer service to honor our fallen law enforcement heroes on Wednesday, September 2nd at the First Baptist Church of Conroe, 600 N Main St. Conroe, TX 77301 at 5:15pm.

All lives matter and we need to put an end to this violence against law enforcement – now!

This is ripe for fisking — to begin with, “fewer cops” would not be a problem if we also had fewer criminal laws. Legalize drugs, fire two thirds of the cops, judges, prosecutors, and defense lawyers, and we’ll have less crime. Laws require more cops and cops require more laws and pretty soon the prison-industrial complex has eaten our world.

But I won’t fisk Patrick’s statement today.

Instead I’ll note that he is singing to the choir, the majority of Texas voters, who don’t have a problem with law enforcement. In fact they adulate it, because they are scared. Patrick’s base of Scared White Republican Voters kisses law enforcement butt already; their doing so a little more passionately at his instruction is not going to change anyone’s negative attitude toward police officers.

Actually, that’s not true. SWRVs kissing law enforcement butt will change negative attitudes toward cops. It will make those attitudes worse by increasing the gulf between the police and the people who are not Patrick’s base. Patrick’s statement is for his voters, and for the praetorian class.

You know what will improve the negative attitude toward police officers? If they stop shooting innocent people and their dogs. What kind of man shoots someone else’s dog? The most common internal investigation I see in Harris County Sheriff’s Office personnel files is the discharge of a firearm in the direction of a dog. White people bribing cops with pie is going to save neither an unarmed person nor a dog.

What kind of man buys pie for a dog murderer?

If Darren Goforth had been a black logger (doing the most dangerous job in America, compared to police work, which is not in the top ten3) gunned down at a gas station, it would have been no less of a tragedy, but I would wager a great deal that Dan Patrick would not have piped up.

One of my Twitter friends, a firefighter, commented on Dan Patrick’s statement:

The answer is obvious: Patrick is of the political class, which  relies on the praetorian class to maintain power. Firefighters (and loggers) are not of the praetorian class.

The value of the praetorian class — and its good will — to the political class is obvious. Patrick is seizing the opportunity to remind the praetorian class that he is on their side, and to remind his voters to fear the bogeyman (“a society of total lawlessness where no one is safe”) so that they will increase their support for the praetorian class.

At the same time Patrick’s statement is a reminder to the aggrieved that he doesn’t give a damn about their grievances: You say black lives matter? That’s cute. Hey, waitress, more pie!

Patrick can take this attitude because he doesn’t really want to improve attitudes toward police officers. There is no benefit to him in it. The more police officers get murdered, the more the SWRVs will fear the barbarians, the more police they will demand to keep them safe, and the more liberty they will be willing to give up. Libertarians know that the murder of a police officer will be used as an excuse to curtail liberty.

Curtailing liberty is the agenda of both the left and the right; there is no political downside to a right-winger like Patrick in the death of a cop.

  1. These, when I saw them, screamed “mentally ill!” The explanation-seeking part of my brain didn’t even need to hear that he’d been found incompetent in the past to jump to that particular conclusion. 

  2. Frankly, I think both white and black people should hold a a laundry list of grudges against the government, but blacks indubitably get the worst of it. 

  3. The murder rate amongst cops — that is, how many cops are murdered every year per 100,000, is about 3. That compares favorably to the baseline murder rate for just living somewhere like Houston (9.8). 

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