More family stuff.

Last week, little Zora accompanied her mom, our daughter Lisa, on a quick visit to the US. (Actually, Zora was the chaperon.) Lisa came back to attend a wedding and celebrate turning 40 with many of her girlfriends. On the way here, she stopped off to see her sister Marne in New Mexico. Zora and her mom are now back in China after leaving early yesterday.

你好。 Nǐ hǎo. The standard "hello" greeting in Mandarin. Literally means "you good."

你好。 Nǐ hǎo. The standard “hello” greeting in Mandarin. Literally means “you good.”

Zora talks to Lisa, seemingly speaking Mandarin.

Zora talks to Lisa, seemingly speaking Mandarin.

Gramma and Zora debate the taste of a Mandarin orange.

Gramma and Zora debate the taste of a Mandarin orange.

Goofy Grampa. (that can't be translated).

Goofy Grampa. (that can’t be translated).

Some things are more important than others.


Stacey Kopf

It looks like there will be another PhD in the family.

Stacey, Keller’s wife, received her dissertation reviewers comments back. Dr. Robyn Watts, her doctoral supervisor, wrote, “This is fantastic news and you should feel very proud of yourself to have received such good comments from these three researchers.” Unlike the U.S., a doctoral dissertation in Australia (and many other places in the world) is exclusively judged by three independent reviewers. A doctoral candidate succeeds or fails on what they think. Stacey’s reviewers were from Austria, Australia and the U.S. Her dissertation is entitled “Swimming performance and dispersal potential of larval Australian freshwater fish in a regulated riverscape.”

Stacey (middle) celebrating Charles Darwin's 200th birthday with colleagues from the Institute for Land, Water and Society at Charles Sturt University

Stacey (middle) celebrating Charles Darwin’s 200th birthday with colleagues from the Institute for Land, Water and Society at Charles Sturt University

Stacey did this while (1) giving birth to two children; (2) taking all sorts of jobs to supplement the family income; and (3) and supporting Keller as he obtained his Masters degree in New Zealand, his PhD in Australia and began his career in the academy. In short, Stacey is an amazing young woman and we are very happy for her.


Chief Justice Roberts and a crafty “solution” to the gay marriage issue

ph64150_lgAfter listening to the oral arguments in the gay marriage case, I offer the following speculation about a reasonably likely outcome:

1. Chief Justice Roberts writes an opinion on question one finding that a state is not required to allow gay couples to marry within that state. He convinces Kennedy that not enough time has passed to enshrine gay marriage into the pantheon of Constitutional rights, and we don’t want a repeat of Roe.

2. The Chief writes an opinion on question two finding that State X must recognize a gay marriage that was lawfully entered into in State Y. Here the Chief relies upon long-standing conflict of law rules.

“Splitting the difference” in this way can arguably be seen as preserving the Court’s legitimacy in the face of arguments that it is merely another partisan political branch of the government and not a real court. But what do I know?


Rome, Baltimore and the same sex marriage argument

As I have said before, I see connections between things that everyone else sees as disconnected. It is probably a sign of dementia or a mental illness or just plain dumbness. Who knows.

150427212739-ac-beeper-fire-baltimore-riot-00000216-large-169Today, Baltimore burns and the Supreme Court takes up the fractious gay marriage debate. That reminds me of burning, fiddling and the devastation of Rome, circa 64 AD.*rome-burning


*Don’t read into this my legal views on same-sex marriage. While unsophisticated, I am great believer in the idiom “live and let live.” That practice frees a society to concentrate on what is really important.

Even though I still hate it, here are some good tips on Microsoft’s Word

photo (1)

Lisa Solomon is a New York lawyer. She graduated from Brandeis University, B.A. (1990), magna cum laude and Phi Beta Kappa. In 1993, she graduated from the New York University School of Law, obtaining her J.D. degree cum laude. She now does contract legal writing and research.

She recently sent me an e-mail. In it, she passed along a few tips about Word. While you will still have to pry WordPerfect from my cold, dead hands, here are the tips that Lisa graciously allowed me to post (with a few edits by me):

Dear Judge Kopf:
I am an avid reader of your blog, albeit a bit behind on the posts. I have some thoughts to add on your “A Fighting Word” post, but I see that comments are closed. I’ll share them with you; if you think they are sufficiently valuable, I hope you’ll pass them on to your readers by posting them in the comments, or allow me to do so myself by briefly opening comments on the post.
1. SHIFT+F1 works in Word 2013 as well as earlier versions to bring up a formatting panel on the right side of the screen.
2. Word 2008 is an outdated Mac version. The current version is Word 2011 (part of Office for Mac 2011). Word 2016 (part of Office for Mac 2016) is available now in a preview version, with the official (final) release slated for later this year. See https://products.office.com/en-us/mac/mac-preview#faq.
3. Word (along with the other Office programs) is also available for—and works quite well on—the iPad. Corel (which makes WordPerfect) has never developed an iPad app, and the available third-party app, WordPerfect Viewer for the iPad, is poorly rated. This is significant because, even as long ago as 2012, 58% of federal judges were using ipads for their court work (see http://www.geeklawblog.com/2012/06/judges-ipads-perfect-fit.html), and iPads are hugely popular among lawyers as well.*
4. Word skeptics should check out one of these two books about Word 2013 especially for lawyers: The Lawyer’s Guide to Microsoft Word 2013 (260 pages) by Ben Schorr [and] Microsoft Word 2013 for Law Firms (512 pages) by the Payne Group (Schorr also wrote The Lawyers’s Guide to Microsoft Word 2010 [and] The Lawyer’s Guide to Microsoft Word 2007.)
Thanks very much Lisa. While you haven’t convinced me, I am sure many others will find your tips very useful.
*I don’t use an iPad. I prefer a standard laptop. In a similar vein (that is, as a nonconforming ass), I think my staff and I are the remaining holdouts in our district who still use WordPerfect as the primary word processing tool.

Why the Feds should deny the Fourth Corner Credit Union a “master account.”

Following the decision to legalize marijuana, Colorado weed sellers are awash in cash (and the cartels are selling cheap heroin in response). But they have no place to put their cash because banks worry about federal money laundering prosecutions even though Holder issued a memo saying that DOJ would not prosecute. The banks, rightly, were not mollified. Selling marijuana is a federal crime as is money laundering and someday (like today) Holder will be gone.

So Colorado chartered the Fourth Corner Credit Union to take dope money. The problem for Fourth Corner is that it must get a master account from the Federal Reserve System that would allow it to clear checks and transfer funds within the nation’s money system. So far as I know, the application is still pending and has not been issued, although a Fed representative has recently met with “industry” representatives to hear their sad stories about drowning in cash. There is also the related question of whether Fourth Corner, being a state charted institution, can gain insurance from the Federal Deposit Insurance Corporation. (FDIC)

This seems like a no-brainer to me for the Fed and the FDIC. Deny the application and refuse to issue insurance. Until and unless Congress changes the criminal law, stoner banks will not be federally authorized to help Colorado dealers commit federal crimes.

Reminder to stoners and those who support them: The rule of law only matters when you don’t like the result.


Correction:   Because it is a credit union, Fourth Corner Credit Union cannot get insurance from the FDIC. It might try to get insurance from National Credit Union Administration (NCUA), another federal agency. The same reasoning expressed in the text–federal agencies ought not assist in the commission of federal crimes–would apply to the NCUA.

Ralph Waldo Emerson: When you strike at a king you must kill him.

“In a bombshell diversion from his contempt-of-court proceedings, Maricopa County Sheriff Joe Arpaio testified under oath Thursday that his attorneys had hired a private agent to investigate the wife of the federal judge who ruled that the Sheriff’s Office had engaged in racial profiling.”  Megan Cassidy, Arapio: PI Hired to investigate judge’s wife, The Republic | azcentral.com (April 24, 2015) from How Appealing (April 24, 2015). Sheriff Joe shot at the judge and appears to have missed.

Although somewhat different, this reminds me of the “nuke” dump case where I awarded around $151 million to low level nuclear waste generators against Nebraska because Nebraska had grievously breached the duty of “good faith” under an agreement between states created under the Compact Clause of the Constitution. Entergy Arkansas Nebraska v. Nebraska, 226 F.Supp.2d 1047 (D. Neb. 2002), aff’d 358 F.3d 528 (2004). The decision was wildly unpopular in Nebraska.

During the course of the trial, and pursuant to standard practice, I was informed by the Administrative Office of the United States Courts that a reporter from the Nebraska Public Television and Radio system had requested, and was supplied with copies, of my financial disclosure reports that must be filed annually. Since NETV&Radio is an organ of state government, and the State of Nebraska was a defendant, I immediately advised counsel that a representative of Nebraska (or some one closely related to Nebraska) was investigating my financial disclosure reports and that I was aware of such activity. I received no response from the litigants, and the trial proceeded apace.

Since my financial disclosure reports indicate that I have never owned stocks or bonds in any corporations (I was probably the “poorest” judge nominated by Bush 41 and that situation has not changed much), the reporter evidently found nothing of interest. Ironically, the reporter could have gotten my disclosure reports from our Clerk of Court and would I not have been the wiser as I deposit a copy of that report with Clerk and I have instructed her to make copies available to anyone without notice to me.*

Federal judges know that from time to time litigants investigate their backgrounds to find embarrassing information about the judge. It comes with the territory. My only advice about doing so is captured in the title to this post, particularly if you have any reason to think your investigation will become public. Otherwise, you risk the appearance of being both slimy and ham–handed. Not unlike Sheriff Joe.


*For my most recent financial disclosure report, click here. It is a quick read.

PS. By the way, I love Nebraska Educational TV.  It is my main source of TV viewing, and each year Joan and I contribute a little money to it. That said, and despite rumors to the contrary, we do not watch the Lawrence Welk show when ETV rebroadcasts it.

An experienced plaintiff’s civil trial lawyer’s take on the South Carolina police shooting

In a previous post, I wondered whether Officer Slager might have a defense that he shot the fleeing suspect in the back multiple times because he feared for public safety. Now, Kyle McNew, an experienced plaintiff’s trial lawyer, gives us his thoughts in the context of  a similar case be brought as a civil suit.



It is a fascinating and informative read, and Kyle was kind enough to allow me to reprint it. Here it is:

I just read your post about the police shooting in South Carolina and whether Officer Slager could have a defense of having probable cause to believe that there was a threat of serious harm to others under Tennessee v. Garner.

A couple years back I handled the civil side of a police shooting case where my decedent was in a car with one of those windshield screens up. She was just sitting in her car in a parking lot, and apparently someone called in a report of a suspicious vehicle. A police officer approached her and there was some kind of exchange or argument. She started driving away and he started shooting. He claimed that his arm was caught in the window and that she was dragging him through the parking lot. We, unfortunately, did not have video of the incident, but we did have two eyewitnesses who said no, his arm was not caught in the window when he fired, he was just running alongside the car yelling at her to stop. She eventually pulled away from him and got out onto a street. He ran out onto the street and fired several more shots as she drove away from him. Several shots hit home, with one going through the back glass, through the chair, and killing her.

The Officer’s defense was essentially that the first shots were to protect himself from being dragged down the road with his arm caught in her window, and the second set of shots was to protect the public from this woman driving down the road with a screen blocking her windshield.

He was prosecuted criminally and convicted of manslaughter. We then sued the Officer and others in state court (not a snowball’s chance we were letting some qualified immunity happy federal judge anywhere near the case). The criminal case received a fair amount of publicity in the northern Virginia, DC suburb area, but it did not have any of the racial or class issues that are present in these more recent cases.

There were a ton of issues in our case that are outside the scope of the reason I am replying to your post about Officer Slager’s possible defense. But, as to that specific question, I always felt that the Officer in my case could have had had a solid point about the second set of shots. For reasons that remain unclear, my decedent was driving down a road in the middle of downtown with no ability to see where she was driving. The problem is that the Officer’s credibility was so destroyed by his lies about having his arm caught in the window when he fired the first shots that no one would have believed that he was truly concerned about the public when he fired the fatal shots. Instead, my opinion was always that this was simply a guy who got ticked that someone had the audacity to disobey his commands and started blim blamming away.

We conducted some informal focus groups on the case, and that’s what we consistently got. People weren’t terribly pleased with our decedent for disobeying a police officer, which might have factored into the damages award had the case gone to trial. But, on the liability question, people consistently indicated that they did not believe that this Officer was shooting because he was actually concerned about public safety.

We never got to trial, so I do not have any jury instructions or opinions on the question of whether a Tennessee v. Garner defense is objective or subjective. But my sense was always that it is probably technically objective because it flows from the concept of probable cause, which asks whether a reasonable officer under the circumstances would have believed X to be true. Here, X would be a threat of serious harm to others.

BUT, I think in practice it also has a subjective component. If the jurors believe that the officer’s claim of being in fear for his safety or the safety of others is just post hoc malarky, they will not accept the defense EVEN IF a reasonable officer could, in fact, have harbored such a fear under the circumstances.

So, in the Slager case, I don’t really buy that a reasonable officer could have legitimately feared for public safety because I assume that the object Slager retrieved and then dropped by Scott’s body was the taser, meaning Scott did not have the taser, and there was nothing to suggest Scott was otherwise armed or posed any more threat to the public than anyone else running down the street. But even if a reasonable officer could have feared for public safety under these circumstances, I don’t think a jury would buy it here because Slager’s credibility is so destroyed by the difference between what Slager said happened and what the video shows. No juror will believe that he was actually shooting out of fear for public safety instead of just being one of that small but, unfortunately, influential minority of police officers who cannot accept that sometimes people are jerks and disobey your commands, but that that does not justify shooting them.

In short, I’ve watched the video probably 15 times and I cannot for the life of me come up with a defense for this officer. Or, to put it another way, as a Plaintiff’s lawyer, I’d like my side of the case better than the other guy’s.

Thanks Kyle. By the way, I ignore the dig about qualified immunity and the federal courts only because you are right.


A bittersweet evening

Last night, my chambers, and our significant others, got together for a “going away” dinner with Ryan Cooper. Patti Vannoy, Ryan’s fiancée, accompanied him.



Ryan has worked with us for seven years. He first served as a paid intern when he was in law school, and then as a pro se law clerk and later as a chambers’ law clerk. Because of a silly Washington rule driven by overwrought budget concerns, Ryan’s last day with us will be tomorrow.

I have written and raved about Ryan and how much I think of him before. So, I will simply say Ryan is one of brightest and nicest young lawyers I know. His fiancée, Patti, is also an incredibly accomplished young lawyer. By the way, Patti is one my favorite people, and Ryan is lucky to have her at his side.



I can’t say enough good thinks about Ryan. So, I will simply conclude by saying all of us will mightily miss Ryan. The place won’t be the same without him.*


*One of Ryan’s jobs was to warn me when active shooters entered the building, but if I explained the details I would have to kill you! That said, and unlike Ryan, I am absolutely certain that none of my other staff would take a bullet for me.


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