Shouting Fire in a Crowded Theater

Sarah and David tackle the events of last week: the verdict in the Alex Jones ...

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Sarah and David tackle the events of last week: the verdict in the Alex Jones case, and the story of Breonna Taylor and the court’s surprising indictments of several police officers. Should there be monetary limits on punitive damages? And why, in this day and age, does everything need to be entertaining? Plus: Our hosts explore what court precedent actually lurks behind the concept of shouting “Fire!” in a crowded theater.

Show Notes:

–New York Times: What To Know About Breonna Taylor’s Death

–French Press: Supreme Court Precedent Killed Breonna Taylor

–U.S. v. Perez

–Schenck v. United States

–New York Times: I Didn’t Want It to be True, But the Medium Really is the Message

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Comments (58)
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  1. David Keating

    I don't see the HEB COVID licking Facebook post as a true threat of bioterrorism. Extremely dumb, yes.

    I don't recall you noting the obvious markers that the post wasn't serious:

    The post starts out with a typical "not believable" phrase: “my homeboy's cousin…”

    The post has four laughing so hard I’m crying emojis.

    Seven exclamation points.

    A winky “emoji” at the end.

    And he licked everything in the store? C'mon.

    Obviously, at least to me, this is not believable so it isn't a true theat.

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      Sarah Isgur vertical-nib Author

      Interesting! I remember it in real time and absolutely thought it was serious. Remember there actually were people videoing themselves licking blue bell ice cream in Texas grocery stores. So this wasn’t out of the blue.

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      1. David Keating

        Obviously the judges on the panel don't use that Facebook thing. Or the guy's lawyer didn't do such a great job. Or both.

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  2. Jesseplace

    Interesting that Perez's argument in the COVID/licking/groceries case relied on Bond v US, arguing the local crimes exception. There's a great episode covering Bond on the "Dissed" podcast, "License to Mildly Burn" (5/25/22), that I found helpful in understanding this:
    https://podcasts.apple.com/us/podcast/license-to-mildly-burn/id1533869725?i=1000563752823

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    Sarah D.

    A few things re: self-driving cars.
    I hadn’t thought too much about them until my oldest kid (age 16) got diagnosed with epilepsy, which affects her ability to get her drivers license. (She has to be 6 months seizure free in our state.) With that in mind, my eyes have been opened to the possibilities that self-driving cars would open up for the disabled community. For someone like my daughter, were she to have a seizure while driving, a self-driving car could save her life. Or enable driving for a disabled person who might otherwise never be able to drive. The possibilities are endless and amazing.
    There are already so many driving-related injuries and deaths in our country. I would hope that even if self-driving technology isn’t “perfect”, that the number of injuries and deaths that might result would still be only a fraction of what currently occur with human drivers.

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  4. Michael.Mcchesney

    I remember once as a young lawyer looking at my mail and noticing that the plaintiff's service copy of a motion that was on for the next day had been returned to me. I looked at the address on the label and saw it was 350 Madison even though the plaintiff's counsel was located in the Empire State Building (350 5th Ave). My initial reaction was panic and wondering how I made that mistake. In retrospect, it wasn't a big deal. It wasn't anything like turning over confidential attorney client information and certainly not like turning over material I had claimed didn't exist. I called opposing counsel, explained what happened then called the court to reschedule the motion. Problem solved. It turned out the mistake wasn't mine. I checked the motion and saw I had the right address and then looked at the envelope and saw the address label had been typed on a typewriter. One of the secretaries had just made a mistake. I found the secretary that had made the mistake and showed her what happened so that she could try not to make that mistake again. She told me she was really surprised I wasn't angry about it. Part of that was I was just so relieved it hadn't been my mistake. But I've always been harder on myself than people I supervised. My attitude was that if a mistake happens, first you deal with it as best you can and then maybe look at whose fault it was. But everyone makes mistakes from time to time. It's one thing if someone makes lots of careless mistakes or makes the same mistake over and over again. But screaming at a subordinate the first time you notice a mistake is hardly the actions of a good supervisor. In my opinion screaming is rarely justified.

    I do have a question though. What kind of sanctions are Alex Jones and/or his attorney's looking at? If the information that was turned over proves that Jones committed perjury and/or the attorneys knowingly signed false document productions, it seems to me that some people should be looking at prison sentences and/or license suspensions/disbarment. As a law student, I worked for the Alderson Legal Assistance Program assisting federal inmates with legal issues. I remember 2 sisters from Cleveland that were in prison for lying about chickens in a civil deposition. When people would say that no one is ever prosecuted for perjury in a civil deposition, I would bring up their case. But if they were sent to prison for that, how long a sentence do you think a scumbag like Alex Jones might get for Bankruptcy fraud? I have a feeling the relevant US attorney might feel it was worth prosecuting him.

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  5. Erik Keller

    For "no-knock" warrants is there a possibility of getting a politically accountable leader to sign off in addition to a judge? This would help reinforce that these warrants should be rare and create a more accessible and hopefully transparent process. Mayor Adams in New York, Mayor Lightfoot in Chicago, Mayor Kenney in Philadelphia have competing needs of keeping crime low but also serving the community and this seems like a good way to get that

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  6. Alex Winkleman

    What professional duty do lawyers have to the truth? Shouldn’t Alex Jones’ lawyer be in trouble for trying to help him commit perjury? I don’t have a better idea myself but it disturbs me that there are so many rules that say “he deserves to get away with it”

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  7. Michael Clardy (@mcp627)

    Texas plaintiff's side attorney here (tenant-side landlord tenant attorney)! I'm not sure what code the Jones exemplary damages judgment uses, but the one I run into most is Texas Civil Practice & Remedies Code Section 41.008 which limits exemplary damages to *the greater of* double the economic damages of the claim being pleaded or $200,000. The $200,000 number got lowered recently from $250,000. I think the chapter limits exemplary damages to non-nominal damages, but this statute arguably allows recovery of $200,000 for economic injuries of as little as $1,000ish. For those playing at home, that ratio is 200:1. SCOTUS has said that your ratio for punitive damages should be (read: not a requirement yet) a single digit ratio, so 10:1 is generally recognized as excessive, but as far as I know, there's been no case ruling what ratio is constitutional and which is not.

    Edit: Here's the link to the statute (https://statutes.capitol.texas.gov/Docs/CP/htm/CP.41.htm). The reason I don't deal with the $750,000 provision is our cases are typically before a judge and not jury trials since we are in county and justice court as opposed to district court.

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  8. Lynn

    There is a second aspect of the Taylor shooting that gets brushed aside. As David pointed out, this was an actual gunfight. Shots going in both directions. How many were misses? This a characteristic of actual gunfights, threatening situations, and fear. Lots of misses. Adrenalin flowing, fear, anxious urge to shoot quickly lead to misses. Even by trained officers and military personnel. Several years back there was a shootout with an active shooter in New York City. The police officers wounded some 9 bystanders. No Dirty Harry here. Think about that the next time you hear about an officer shooting an unarmed individual. How many times did they miss? That is an indication of how threaten they were.

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    ecislaghi

    David, as the owner of a Chevy Colorado I fully endorse your recent purchase. Mine hauls around camping and baseball gear all the time - and still fits in the garage. Enjoy!

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  10. TD

    A couple things on Breonna Taylor.
    1. there are two civil cases that have made some progress and are worth reading. See Napper v. Hankinson, No. 3:20-CV-764-BJB, 2022 WL 3008809, at *5 (W.D. Ky. July 28, 2022); Kenneth Walker v. Louisville/Jefferson County Metro Gov't, No. 3:21-cv-161, 2022 WL 301687 (W.D. Ky. Feb. 1, 2022). There are some serious causation problems and issues with Mendez to go after the officers. The only way to argue this is to say the warrant was faulty and the violation of rights was the search itself, not the shooting.
    But 2. there was a lot of evidence that the real target had recently been using her apartment. In fact, a rental car registered to her was used by him and a murdered body and drugs were found in it. https://heavy.com/news/breonna-taylor-rental-car/. Moreover, he had numerous things registered to and sent her address. https://www.wkyt.com/2020/08/26/warrants-issued-for-arrest-of-breonna-taylors-ex-boyfriend-amid-leaked-new-documents/. That would be more than enough for a warrant. So the only real argument would be that the warrant was just premised on this package, which was false (postal service denies providing info on it), and that violated their rights with the search. But the shooting would be separate due to the boyfriends shots under mendez. That is a hard case. And all of this makes the race narrative a hard one to paint. Initially, Walker even said Taylor was shooting too, though he retracted that.
    3. I do not see a causal connection between her tragic death and issues in the law. Yes they messed up the no knock application here but then they knocked. And there are good policy reasons for the occasional no-knock. As Napper argued, it is more likely to avoid a shootout because the suspect wont be alerted in time to get a weapon. And it can avoid evidence destruction. Also, I dont see the issue with this being a justified shooting. Castle doctrine makes sense and he cannot be blamed if he really didn't know they were officers. But officers also cant be blamed for returning fire while serving a warrant. This is a rare occurrence but hard to say anyone is really at fault. Humans constantly wish to (1) find fault in a tragedy and (2) find a way to fix it (the do something mentality). But we live in a fallen world and tragedies often happen. sometimes no one is at fault. and sometimes there is no solution or the cure is worse than the disease. I think these issues are things worth ruminating on more since this is such a politicized and mischaracterized case that led to the literal destruction of much of Louisville. And worth questioning DOJs motives for doing this now.....

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