Archive for May 29th, 2020

What Is Happening In Minneapolis?

posted by Judge_Burke @ 16:52 PM
May 29, 2020

What is happening in Minneapolis is not easy to explain. There is of course the police. The Marshall Project reported

“Chronicle of a disaster foretold. Long before George Floyd died in police custody this week after a violent arrest, police officials in Minneapolis were warned that they needed to implement systemic policing reforms, including changes to their use-of-force standards. Some of these reforms were put into place over the past five years, but many others were not. One of the biggest lapses, critics say, centers around the failure of police officials to discipline line officers who engaged in excessive force and other misconduct. TMP’s Jamiles Lartey and Simone Weichselbaum have our story. THE MARSHALL PROJECT More: Why the Minneapolis police offered such a militarized response to the protests. THE WASHINGTON POST

But there is more than just how the police acted and reacted. The truth is the leaders of the justice system, myself included, knew that there were problems. There was a hurricane coming which we were not prepared for.

Perhaps the reason we are so good about confronting natural disasters is they come upon us so quickly, and they are so ferocious and so graphic.

Our nation has seen the horror that Hurricanes Harvey and Irma caused. What happened was not simply the loss of life, but the ravaging and destruction of communities that at best will take years to rebuild. There is no silver lining in this tragedy. Yes, we came together. Yes, the traditionally broken Congress acted swiftly to fund a response, but if you are a victim it will take a long time to heal. Or, is there a silver lining?

Perhaps we learned that if we act in concert, even the most generational catastrophes can be overcome. Swiftly, every living U.S. president joined to plead for donations and support for the victims. People of faith opened their hearts, and in a nation divided by partisanship to the extreme, there was little of it. People are sending money to charities. They are, occasionally, in private crying about the destruction. Everyone knows this hurt.

Manmade disaster

Hurricanes produce a natural tragedy. This recent experience shows we are a nation resilient and prepared to confront the worst. But, there is a third hurricane we cannot ignore. This one is not a natural disaster. The disaster is the manmade racial division and bigotry that exists in our country. If we do not address this category 5 hurricane, we are doomed to a fate equal to the destruction wrought by Hurricanes Harvey and Irma.

Good parents worry about their children. Worry is one of the joys of being a parent. But there are too many African-American parents of sons who worry about what may happen to them as young black men. Will they be stopped by the police? Will something get out of hand? The hurricane in those African-American parents’ lives is a lifetime of confronting bigotry. How do you explain the Ku Klux Klan to a 6-year-old child? If you are from the South, how do you explain to your child who these Confederate soldiers with statues were?

The need to confront racial inequality and bigotry

We are a nation who believes in American exceptionalism. But, for us to achieve that exceptionalism we need to respond to the imperative of confronting the racial inequality and bigotry that has for too long been part of our nation.

The hurricane that is bearing down on our values is every bit as dangerous as Irma and Harvey. There will not be a 24-hour news cycle about racial division and bigotry, but these issues will surely be as destructive as the hurricanes.

Perhaps the reason we are so good about confronting natural disasters is they come upon us so quickly, and they are so ferocious and so graphic. Almost everyone knows denial is not a safe shelter. Maybe more of us need to be shaken by pictures of the bewildered faces of small children who cannot understand the brutal part of our nation’s racial history. Maybe more of us need to hear the agony of mothers’ fear for the fate of their African-American sons. There are people who are in some sense worn out about the struggle for equality. Like the people who do not respond to “Evacuate Now!,” there are too many people in denial and willing to risk their lives and others’ just to ride out the storm.

Parable of two wolves

Our nation has struggled and been divided about racial inequality and bigotry. There is a parable of a grandfather teaching his grandson about life:

“A fight is going on inside me,” he said to the boy.

“It is a terrible fight and it is between two wolves. One is evil – he is anger, envy, sorrow, regret, greed, arrogance, self-pity, guilt, resentment, inferiority, lies, false pride, superiority, and ego.” He continued, “The other is good – he is joy, peace, love, hope, serenity, humility, kindness, benevolence, empathy, generosity, truth, compassion, and faith. The same fight is going on inside you – and inside every other person, too.”

The grandson thought about it for a minute and then asked his grandfather, “Which wolf will win?”

The grandfather simply replied, “The one you feed.”

A lot of people will contribute money to the victims of the hurricanes. It is the right thing to do, particularly when it is a charitable gift to victims they will never meet. Those gifts are from the good wolf in each of us who believes in generosity and compassion. That same wolf in each of us that must rise up and do something which contributes to the dramatic change this nation must make in how we see all of our neighbors.

Change like this starts within the soul. Want to know what implicit biases you have? Take the Harvard Implicit Bias test. If you are a parent or grandparent, have a conversation with a child about the wolves within each of us. And the next time you hear someone say they can ride out the storm of injustice, tell them how dangerous that is.

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Who Would Have Thought To Consult With The Dictionary

posted by Judge_Burke @ 13:30 PM
May 29, 2020

Eleventh Circuit Finds Judges Can Take Judicial Notice of Dictionary Definitions

By Evidence ProfBlogger

Federal Rule of Evidence 201  covers judicial notice, and subsections (a) and (b) state the following:

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

So, can a judge take judicial notice of dictionary definitions? That was the question addressed by the Eleventh Circuit in its recent opinion in Robinson v. Liberty Mutual Insurance Company, 2020 WL 2315763 (11th Cir. 2020).

In Robinson, after the Robinsons moved into their home, they discovered an infestation of the highly venomous brown recluse spider. Following an attempt to eradicate the infestation, the Robinsons obtained a homeowners policy from Liberty Mutual. That policy “insure[d] against risk of direct loss to property…only if that loss is a physical loss to property.” But the policy excluded from coverage any loss “[c]aused by… [b]irds, vermin, rodents, or insects.” Liberty Mutual cited that exclusion in its letter denying coverage for a claim the Robinsons filed for damage to their home after further attempts to eradicate the infestation failed.

After the Robinsons sued Liberty Mutual for breach of contract, the district court dismissed their complaint, finding that brown recluse spiders are both insects and vermin, with the Eleventh Circuit later affirming. Both courts took judicial notice of dictionary definitions, noting, inter aliathat

All dictionaries we have reviewed, both modern and old, list spiders as an example of an “insect.” See, e.g.Insect, Oxford English Dictionary Online (last visited May 9, 2020), https://www.oed.com/view/Entry/96686Insect (in American English), Collins Dictionary Online (last visited May 9, 2020), https://www.collinsdictionary.com/us/dictionary/english/insectInsectMerriam-Webster’s Collegiate Dictionary (11th ed. 2007); InsectWebster’s Third New International Dictionary(1993); InsectWebster’s New International Dictionary (2d ed. 1961); InsectWebster’s New International Dictionary (1st ed. 1920); and

Brown recluse spiders are also “vermin” under the ordinary meaning of that term. Vermin include “small common harmful or objectionable animals (as lice or fleas) that are difficult to control.” VerminMerriam-Webster’s Collegiate Dictionarysupra. The term refers to “noxious or objectionable” creatures and includes “creeping or wingless insects (and other minute animals) of a loathsome or offensive appearance or character, esp. those which infest.” Vermin, Oxford English Dictionary Online (last visited May 9, 2020), https://www.oed.com/view/Entry/222579see also Vermin, American Heritage Dictionary of the English Language Online (last visited May 9, 2020), https://www.ahdictionary.com/word/search.html?q=verminVerminWebster’s Third New International Dictionarysupra.

The Eleventh Circuit reject[ed] the Robinsons’ argument that the district court could not take “judicial notice” of dictionary definitions without first affording them a hearing. See Fed. R. Evid. 201. Rule 201 permits courts to take notice of “an adjudicative fact” that is “generally known” and “whose accuracy cannot reasonably be questioned,” so long as it affords the parties an opportunity to be heard on the propriety of doing so if requested. Fed. R. Evid. 201(a)-(b), (e). But Rule 201 “governs judicial notice of an adjudicative fact only, not a legislative fact.” Fed. R. Evid. 201(a). “[A]djudicative facts are those developed in a particular case,” while “[l]egislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally.” W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1316 (11th Cir. 2018) (internal quotation marks omitted); see also Fed. R. Evid. 201(a) advisory committee’s note to 1972 proposed rule (“Adjudicative facts are simply the facts of the particular case.”). Dictionary definitions establish legislative facts when used to answer a question of law, such as how to interpret contractual terms. See Fed. R. Evid. 201(a) advisory committee’s note to 1972 proposed rule (“Legislative facts … are those which have relevance to legal reasoning and the lawmaking process … in the formulation of a legal principle or ruling by a judge or court….”) (emphasis added).

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