Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

1193 Posts and Counting

Murder? Really?

Posted by Cliff Tuttle| July 30, 2015 | © 2015

No. 1,193

Image: wcpo.com

Image: wcpo.com

Former University of Cincinnati Police Department Officer Ray Tensing posted bond today after being indicted for murder during a traffic stop on July 19.  The entire exchange was captured on the officer’s body cam.  The prosecutor in the case stated that Tensing “purposefully killed” Samuel DuBose.  But the film from the body cam seems to tell a different story. Tensing is seen repeatedly requesting DuBose to produce a drivers license and DuBose, after a great deal of stalling, was preparing to drive away.  The camera gyrates wildly up and down just as DuBose begins to pull away and the shot is fired.

Does this rise to the level of murder?  Probably not.  Tensing appears to have panicked.  Proving that he deliberately fired the shot with the intent to kill DuBose is a tall order.  The film alone does not provide the answer.  At best, it is ambiguous — too ambiguous to convict beyond a reasonable doubt.

This of course does not justify the shooting.  Mr. Tensing undoubtedly is guilty, but of what?


Attack Upon CFPB Continues in the Courts. Do We really Want No Consumer Protection in the Financial Arena?

Posted by Cliff Tuttle| July 26, 2015 | © 2015

No. 1,192

Image: An imaginative ad for compliance webinars by elliemae.com

Image: An imaginative ad for compliance webinars by elliemae.com

The attack against the Consumer Finance Protection Bureau continues, as the DC Circuit rules that a Texas bank has standing to challenge its creation in the Dodd Frank Act as an unconstitutional delegation of powers to the executive branch.

Before Dodd Frank, consumer protection in the banking realm was the responsibility of bank regulators, such as the Office of Thrift Supervision.  The primary mission of those agencies was to assure the safeness and soundness of the regulated entities.  Compliance with consumer protection statutes and regulations was addressed in examinations and in other activities.  But those agencies were not generally making waves.  And that is what the opposition to CFPB dislikes the most, its activism.

The revision of the forms and procedures utilized in residential real estate closings is the most visible product of the CFPB’s activism.  It is viewed as a nightmare by the people who are charged with compliance.  At the moment, the Bureau is very unpopular in the real estate industry. But maybe that means it is doing its job.

We are all consumers, so its seems logical that we would all wish to have somebody enforcing consumer protection.  But the choice is not between protection and no protection.  It is between vigorous activism and a more passive style.

The role of consumer protection in general and in the financial industries in particular should be discussed in the 2016 Presidential campaign.  We need to determine where we are going and where we want to go in the future.


Connecticut Dems Remove Jefferson, Jackson from Name of Annual Fund Raiser.

Posted by Cliff Tuttle| July 24, 2015 | © 2015

No. 1,191

Image: onedayu.com

Image: onedayu.com

In what may be the latest incident in an apparent trend, the annual Jefferson, Jackson, Bailey Dinner held by the Connecticut Democratic Party will no longer claim the two great Presidents as icons. Bailey, who was a party chairman during the Kennedy era will apparently get to stay.

Great idea.  Lets purge everybody from our history whose ideas we don’t like! Here are a few other suggestions along these lines.

Change the name of Washington, DC.  George Washington, after all, brought along a couple of slaves from Mt. Vernon when he assumed the Presidency. Change the name of the State of Washington for good measure.

Eliminate the names of other State Capitals like Jackson Mississippi, Madison Wisconsin, etc.Is Monroe Louisiana a state capital?  No?  Oh well, eliminate that one, for good measure.

Change the name of military installations like Fort Lee, Fort Jackson, Camps Pickett  and A.P. Hill (or are they forts now too?)

And of course, there will be lots of vacancies to be filled on money. Hamilton opposed slavery, by the way, unless you want to eliminate him as a founder of the banking system and Wall Street in particular.

Of the first eight Presidents, all were Southern landowners and slaveholders except the Adamses.  Face it, they are part of our history and heritage.  And, for better or worse, Jefferson and Jackson were founders of what became the present day Democratic Party. Dropping their names from public monuments will not cause them to be forgotten.  Our public schools are doing that job.

Quit the silliness.  History is what it was. We became what we are today by a sequence of events, mistakes included. Move on.



Ben & Jerry Celebrate Same Sex Marriage With an Old Flavor, New Name.

Posted by Cliff Tuttle| July 21, 2015 | © 2015

No. 1,190

Ben & Jerry

“What was I Thinking?” Quote of the Week.

Posted by Cliff Tuttle| July 21, 2015 | © 2015

No. 1,189

EdisonHere is a segment in a prominent sales newsletter that got past the proof-reader.  The concept, never give up, is a good although the historical reference is about 100 years off.  I won’t embarrass anybody by attribution.

“Ben Franklin didn’t see his poor results in developing the light bulb as failure….thank GOD! When asked if he was going to try for the 10,000th failure, he answered

 “I didn’t fail. I just discovered another way not to invent the electric light bulb.”

Ben didn’t take it personal. He used his poor results as feedback, tweaked the action again and again, 9,999 different ways until he got the desired results.

The next time you’re ready to throw in the towel, or take a result personally, remember ‘ol Ben Franklin. Are you willing to go for the 10,000th time? Do you have the discipline to dissect a poor result and determine the different actions you can take that will produce the result you want?”

The First Amendment and “Falsely Shouting Fire in a Crowded Theater” .

Posted by Cliff Tuttle| July 19, 2015 | © 2015

No. 1,188

HolmesEverybody knows the aphorism about falsely shouting fire in a crowded theater.  I am pretty sure that I heard it for the first time in class in elementary school and then countless times thereafter.  The concept is universally accepted, or is as close to universal acceptance as any such statement is likely to be.

Its first use is generally credited to Oliver Wendell Holmes in his opinion in the 1919 case of Schenck v. United States, 249 U.S. 247. That case involved the enforcement of the Espionage Act. Defendants had  distributed leaflets to draft-age men urging them to resist induction.  In his opinion, Holmes stated that the First Amendment did not protect speech that was inciting the hearer to commit a crime. As such, it was a criminal attempt.  In asserting that free speech had such limits, he stated:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Recently, law professor Carlton F. W. Larson published a paper titled “‘Shouting Fire in a Theater':The Life and Times of Constitutional Law’s Most Enduring Analogy.” In it, he noted that Holmes probably borrowed the phrase from a federal prosecutor, Edwin Wertz, in his 1918 prosecution of famed Socialist Eugene V. Debs for similar violations of the Espionage Act. Resistance to the draft was viewed by prosecutors under the statute as aiding and abetting the enemy and a crime.

Moreover, Larson points out, there were numerous incidents of panic, sometimes resulting in death, from a rash of false cries of fire in theaters.  The earliest recorded such fatality, interestingly, was a 1911 panic in a theater in Canonsburg.  However, in an era when fires were commonplace due to lighting by gas flames and flammable construction materials, the threat of panic from such a prank was, Professor Larson observes, taken much more serious than it is today.  The thought of such a calamity was fear-inducing.

After Holmes’ Schenk opinion, the phrase caught fire and has been used countless times by judges, prosecutors, lawyers, elementary school teachers and just about everybody else to signify speech that is beyond the protection of the First Amendment.

Interestingly, the holding in Schenk has been under assault ever since but apparently has managed to survive, although subject to qualification.  In the era of terrorist attacks, flaunting a law involving national security is still not protected speech.

On the other hand, outside the national security arena, in Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme  Court held that the government cannot punish inflammatory speech that is directed to incite or is likely to incite imminent lawless action.

If there any reported cases of a defendant who shouted fire in a crowded theater defending on First Amendment grounds, it is not revealed by Professor Larson’s exhaustive review of cases where the maxim was repeated.


TWEETED TODAY:  “Sugar and spice and everything nice, that’s what diabetics are made of.”  — CLT

Judge Kopf Discontinues his Blog “Hercules and the Umpire” but States that the Cruz Statement was not Involved in the Decision.

Posted by Cliff Tuttle| July 12, 2015 | © 2015

No. 1,187

The following headline and photo appeared recently in “Hercules and the Umpire”



U.S. District Judge Richard Kopf announced on July 9 that he has discontinued blogging because employees of his District of Nebraska think that “Hercules and the Umpire” is an embarrassment to the court, according to the ABA Journal. He said that the welfare of District of Nebraska is his primary concern and that if its employees think the blog embarrasses the District, it is not in its best interest. Kopf  says that there are no disciplinary complaints or medical/mental health reasons involved.

In his  final postKopf also stated that the decision had nothing to do with his criticism of Presidential Candidate Senator Ted Cruz. Cruz had suggested a constitutional amendment to require retention elections for Supreme Court Justices. Kopf declare Cruz to be “a right-wing ideologue . . demonstrably unfit to become President.”

Law Professor and blogger Orin Kerr, in a blog post carried  in the Washington Poststated that he is concerned whether there was a violation of Canon 5 of the Code of Conduct for Federal Judges. While a federal judge is free to comment on political proposals, Kerr stated, he crosses the line when he makes a statement endorsing or opposing a candidacy.

“The ethics canons allow judges to publicly oppose a reform proposal but do not allow them to publicly oppose a candidate for public office,” Kerr stated.  “The two may be related from the perspective of voters, as presumably they would want to vote against a candidate with bad ideas. Or at least they would weigh a bad idea against a candidate when they decide who among the candidates in the race they should support. But I don’t think the two are intertwined for the judges who have to follow the ethics canons.”

On July 8, Kerr followed up with another post citing the Calabresi decision of the Judicial Counsel of the Second Circuit. Judge Guido Calabresi had stated to an audience during the 2004 Presidential Campaign that the 2000 election of Bush raised structural issues because Bush had come to office “in an illegitimate way.” He likened the election of Bush in 2000 to the rise of Hitler and Mussolini. Judge Calabresi defended his statement as a comment of an academic nature, but also made written apologies.

After reading the second Kerr post and the Calabresi opinion, Judge Kopf published his own apology: “Professor Kerr is Correct on Canon 5 and for that I Apologize.”  He pointed out that the Calabresi ruling is probably not a binding precedent in his circuit and that it involved certain outrageous statements, such as a Hitler and Mussolini comparison, not present in his case.  Nevertheless, if the Calabresi decision were applied to his remarks, he observed,  he is in violation of Canon 5.

The message here appears to be that a judge can criticize anything and everything a candidate says but must not express an opinion regarding the candidacy. While such a distinction may appear to be clear, it would be extremely easy to circumvent.

Suppose, for example, a judge wrote a blog piece systematically destroying a candidate’s signature campaign proposal.  Would anyone interpret such an attack as neutral regarding the candidacy?  Or suppose that Judge Kopf had simply eliminated the sentence where he described Senator Cruz as unfit for the Presidency.  Would this cure any violation of Canon 5?

In other words, can Canon 5, as applied to Judge Kopf’s statement that Senator Cruz is unfit for the Presidency, pass First Amendment scrutiny?  I suggest that when the criticism is based upon a candidate’s expression of ideas (not personal characteristics such as leadership ability) the First Amendment trumps Canon 5. Such is the case with the Cruz comments by Judge Kopf.  But is not the case with the Calabresi comments.  Those involved comment upon the presidential election itself.

Too bad Judge Kopf won’t be around to blog on the First Amendment issue.  Someone else will have to take up  the banner.  Let it be known that Pittsburgh Legal Back Talk is prepared to answer the call.



It’s Happening Somewhere — You Can Bet On It!

Posted by Cliff Tuttle| July 9, 2015 | © 2015

No. 1,186

Somewhere someone has written computer algorithms that can be used to play fantasy sports.   And whoever this person is (or group of people are), you and I won’t know their names, if ever, until they have carried off a lot of loot.  Maybe we will never know, because he/she/they may be too smart for us.

Fantasy sports, which has been the realm of start ups, took a big leap when Yahoo joined the club.  According to the New York Times, this is “the boldest step yet to bring what amounts to legalized betting into the mainstream.”

Strangely,  fantasy games are legal in most states and on the Internet.  It is not considered to be illegal gambling because fantasy picking is regarded as a skill.  And so it apparently is.  

It will make a great miniseries some day. Moneyball meets Ocean’s Eleven.  



Posted by Cliff Tuttle| July 8, 2015 | © 2015

“Most men lead lives of quiet desperation . . .

No. 1,185

. . . And go to their grave with their song still in them.”

For some reason, the first half of this famous quote from Thoreau is more famous and frequently quoted without the second half.  But the second half is more important.

If you and I went to the grave too soon, would our songs still be in us?

That would be the real tragedy — not the quiet desperation. 

When survival occupies all of our time and energy, we take but don’t give.  Even in survival mode, we have to find a way to contribute something to the community of mankind.  It’s simple.


Fireworks on Independence Day is a Great Tradition. Music During Fireworks is a Really Dumb Idea.

Posted by Cliff Tuttle| July 5, 2015 | © 2015

No. 1,184

Why are we too often subjected to pop music blared over a loud speaker during the Independence Day  fireworks display?  The answer is that somebody thought it enhanced the entertainment value of the experience.  But how could it  be anything but annoyance? The music is randomly disrupted by explosions.  Or, from the opposite perspective, the coordinated sight and sound of the fireworks is being confounded by noises that distort and distract.

This is the age of personal entertainment.  If I want to listen to soundtracks of the 1812 Overture or  anything else during fireworks, I can pump it into my brain by way of earphones.  The same is true in the workplace, a restaurant or even an elevator.  Your auditory stimulus is my annoyance and distraction. In the extreme case, it can be an assault.  


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CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.


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