CrimProf Blog

Multipedia Post: Walgreens Security Guard Kills

Since 2009, I have shared multimedia teaching content at the Crimprof Multipedia; going forward, when I post new content there, I’ll try and also make a note of it here.  I will not, however, make an entire duplicate library of the multimedia content.  So, if you are interested in a particular post, you can go and grab it there.

https://crimprof.com/criminal-law/defenses/walgreens-security-guard-kills/

Category

Defenses, Pretrial

Tags

charging decision, common law, deadly force, defense of property, defenses, discretion, firearms, homicide, justification of law enforcement, murder, non-homicide crime, pretrial, prosecution role, self-defense, theft

Post

In April of 2023, amidst strong disagreement over how to handle retail theft in California, 33-year-old private security guard Michael Anthony was on shift at a Walgreens in San Francisco when he saw someone slip an item into a bag. A confrontation ensued, witnessed by bystanders and captured on CCTV, resulting in Anthony shooting (a single time) and killing 24-year-old Banko Brown. Here’s the video:

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Anthony easily satisfies the requirements of some form of criminal homicide, including murder—for example, intending to cause serious bodily injury, he caused the death of another human being. And of course defense of property never permits deadly force. So, it is a case for addressing the defense of law enforcement and self-defense.

As for law enforcement, the common law was of course generous and applied to us all, so the issues include whether and how California has narrowed that doctrine and whether it was reasonable to believe this deadly force necessary to arrest a felon. Petty retail theft would not begin as a felony, but did this become a robbery? If you teach like me, you won’t be as concerned with precisely how California has modified the doctrine, but rather with working through the types of changes commonly made by various states.

As for self-defense, could guard Anthony reasonably fear imminent serious bodily injury or death at the time he shoots? He claims Brown had repeatedly threatened to stab him, and that he thought “I was going to be stabbed.” Bystanders did not hear those threats, and police found no knife.

Beyond the substantive criminal law, it is a case for discussing prosecutorial discretion, with all the questions that naturally raises: Why do we permit prosecutors to make these choices? Is there a realistic better alternative? In this case, the prosecutor both released a written report and sat down for an interview regarding her charging decision:

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As of September 2024, no charges were filed and none were planned.

Another interesting topic might be the different bystander reactions, including a seeming lack thereof. What might these say about things?

Carpenter AI-Generated Podcast

Google has released a rather amazing new generative AI tool, NotebookLM, into which you can upload any documents you’d like to make the subject of an AI-generated podcast.  Carpenter, as a case about technology changing antiquated Fourth Amendment law, seems appropriate fodder; so, here is what NotebookLM generated when I fed it the PDF of the Supreme Court’s opinion.

Carpenter v US by way of Google NotebookLM

You can spot the errors, but impressive still!

S.

 

CrimProf Blog Lives On

Thanks to Kevin for shepherding the blog over the years.  Now that he's turned the page, I've decided to make a go of building out this space—time will tell how it goes!  If you have thoughts regarding content you'd like to see, let me know.  I'll be simultaneously working content here in addition to my longstanding presence over at Crimprof, including its library of multimedia teaching modules.

S.

 

Farewell to CrimProf Blog

Since taking over editorship of CrimProf Blog on August 17, 2009, I’ve enjoyed helping my colleagues in the academy and beyond to keep up to date on news and legal scholarship about criminal law and procedure. Doing so has been a great way for me to stay abreast of the continual evolution of these fields, and I’ve enjoyed hearing from many of you over the years about your forthcoming publications. After 15 years of daily posts, I’ve decided to transition to other projects. This will be my last post on CrimProf Blog. There are no plans to continue the publication.

For those who have come to rely on CrimProf Blog to help them find materials, here are some links you may find helpful as replacements:

*For new SSRN postings about Criminal Procedure, look here.

*For new SSRN posting about Criminal Law, look here.

*For the top-ten recent SSRN downloads about Criminal Procedure, look here.

*For the top-ten recent SSRN downloads about Criminal Law, look here.

*For U.S. Supreme Court cert grants, look here; upcoming oral arguments and links to papers in pending cases can be found at that link by clicking on the “cases” tab at the top of the page.

*For news about the criminal justice system, you can find NACDL’s “News of Interest” page here.

Best wishes to all in the continuing search to understand and improve one of our most important institutions.

--KC

Merchant on Judicial Discretion in Sentencing Under Plea Agreements

Sam J. Merchant (University of Oklahoma College of Law) has posted Plea Agreements and Suspending Disbelief on SSRN. Here is the abstract:

 

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker. Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range. Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence. The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged. Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

"The Seemingly Endless Cycle of Reforms in Juvenile Justice"

From The Marshall Project, via NACDL's news update:

On Tuesday, Ohio Gov. Mike DeWine announced that the state will try to shut down its three large youth correctional facilities in favor of building smaller and less centralized units. DeWine cited findings that young people “do not respond well to adult-style incarceration,” Crain’s Cleveland Business reported.

. . . .

Los Angeles County may serve as a cautionary tale for Ohio. Four years ago, the county’s own juvenile justice working group made similar proposals in a plan called “Youth Justice Reimagined.” Like in Ohio, one of the centerpieces of the reform was to decentralize the county’s juvenile halls and replace them with “smaller, more homelike ‘safe and secure healing centers,’” according to the Pasadena Star-News.

Then last year the county reopened the previously shuttered Los Padrinos Juvenile Hall, reasoning that consolidating youths into the facility would let the county system operate more efficiently. Officials are still trying to lower the number of young people at the hall, but violence and drugs have proliferated, youths report feeling unsafe and the threat of another shutdown looms constantly.

Noorda on Prison Labor in the Netherlands

Hadassa Noorda (University of Amsterdam) has posted 'Voluntary' Prison Labour in the Netherlands (forthcoming, European Labour Law Journal) on SSRN. Here is the abstract:

 

As of 2021, work in prisons in the Netherlands is voluntary, at least to some extent. In this article, I examine the protection of working prisoners' labour rights after the shift to a voluntary work scheme for prisoners in the Netherlands. Work in Dutch prisons may be freely chosen to some extent, but the Dutch scheme for work in prison raises questions about offenders' rehabilitation. Having work opportunities while in prison is said to contribute to the learning of skills, promote rehabilitation and societal reintegration and provide prisoners with income. However, prisoners in the Dutch prison perform their work for low pay and have limited meaningful options for the work they perform. This has a profound impact on their time in prison and on their reintegration into the labour market after having served their sentences. I argue that these issues demand an in-depth examination if prisoners' rights are to be protected. I describe working prisoners' labour rights in the Netherlands and address the normative question of the rights that working prisoners should have based on the principle that imprisonment itself is the punishment and that extensions of prison sentences in society are illegitimate. My proposal for considering the amendment of the approach to prison labour in the Netherlands aims to be useful for the analysis of prison labour in general.

Crocker on Social Cost and The Fourth Amendment

Thomas P. Crocker (University of South Carolina School of Law) has posted The Fourth Amendment And The Problem Of Social Cost on SSRN. Here is the abstract:

 

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept's meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their "substantial social costs." According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. Police illegality-the precondition for exclusion or damagesitself produces substantial social costs, especially when one considers the systemic effects of minor illegality on a community-wide scale. The Court does not currently take account of these social costs, raising the question: why not? Taking a cue from Professor Ronald Coase's famous analysis of the problem of social cost, this Article analyzes why it is necessary for the Court to refocus its social cost inquiry to include pervasive and corrosive social costs external to its present doctrinal focus. Surprisingly, given its analytic centrality, neither the Court nor commentators have clarified what "social cost" entails or how to calculate it. This Article takes up this task and charts the unexpected implications that would follow if the Court were to take its own commitment to minimize "social cost" seriously.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Stopping Scams Against Consumers: Roadmap for a National Strategy Nick Bourke Independent Date Posted: 24 Jul 2024	215
2.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	195
3.	Abolish Conspiracy Evan D. Bernick Northern Illinois University - College of Law Date Posted: 07 Aug 2024	158
4.	Rights, Reasons, and Culpability in Tort Law and Criminal Law Gregory Antill Columbia Law School Date Posted: 27 Jun 2024	141
5.	Rethinking the Role of Intentional Wrongdoing in Criminal Law Gregory Antill Columbia Law School Date Posted: 31 Jul 2024 [6th last week]	93
6.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024 [5th last week]	89
7.	MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT W. David Ball Santa Clara School of Law Date Posted: 08 Aug 2024 [8th last week]	81
8.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [7th last week]	76
9.	From Visibility to Shadows: The Impact of Police Discretion on Prostitution in Response to Legal Changes Yutian An, Yingjie Fan, Xuancheng Qian and Leo Yang Yang Harvard University - Harvard Law School, Princeton University, Princeton University and Stanford University - Centre on China’s Economy and Institutions Date Posted: 28 Jun 2024 [10th last week]	70
10.	A Specious Form of Judicial Restraint Nelson Lund George Mason University - Antonin Scalia Law School Date Posted: 02 Jul 2024 [9th last week]	69

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	AI-Assisted Police Reports and the Challenge of Generative Suspicion Andrew Guthrie Ferguson American University Washington College of Law Date Posted: 20 Aug 2024	489
2.	Loper Bright and the Great Writ: Will the New Constitutionalists End "Treason to the Constitution," Restore the Judicial Power, and Make the Law of the Land Supreme Again? [Forthcoming in Columbia Human Rights Law Review, 2024] James S. Liebman and Anthony Amsterdam Columbia University - Law School and New York University School of Law Date Posted: 11 Jul 2024	323
3.	Prosecutor Transparency Project: Racial Disparities Study (Washtenaw County, Michigan) Grady Bridges and J.J. Prescott Independent and University of Michigan Law School Date Posted: 31 Dec 2023	308
4.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	195
5.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024	89
6.	MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT W. David Ball Santa Clara School of Law Date Posted: 08 Aug 2024 [7th last week]	77
7.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [6th last week]	76
8.	Urgent Issues and Prospects on Investigative Interviews with Children and Adolescents Victoria Talwar, Angela Crossman, Stephanie Block, Sonja Brubacher, Rachel Dianiska, Ana Karen Espinosa Becerra, Gail S. Goodman, Michael Lamb, Kamala London, David La Rooy, more... McGill University, City University of New York (CUNY) - John Jay College, University of Massachusetts Lowell, Griffith University, University of California, Irvine, University of Ottawa, University of California, Davis, University of Cambridge, University of Toledo, University of Otago Date Posted: 06 Aug 2024	68
9.	The Victims' Rights Mismatch Lee Kovarsky University of Texas at Austin, School of Law Date Posted: 12 Aug 2024	53
10.	A Lifeline During Custodial Interrogations? The Right to Counsel and Reflections on R. v. Dussault and R. v. Lafrance Amar Khoday University of Manitoba - Faculty of Law Date Posted: 03 Jul 2024	52

Byars on Recidivist Organizational Offenders

Kaleb Byars (Mercer University School of Law) has posted Recidivist Organizational Offenders and the Organizational Sentencing Guidelines on SSRN. Here is the abstract:

 

Despite recent Congressional hearings and public attention, the question of how to fairly and efficiently punish recidivist organizational offenders remains unresolved. Any discussion regarding the most optimal legal response to recidivist organizational crime is incomplete without a solution accounting for the use of organizational deferred prosecution agreements ("DPAs") and non-prosecution agreements ("NPAs"). These tools allow criminal defendants to resolve charges without sustaining convictions that attach to the defendants' criminal records, and they are used often in the organizational context.

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"Can the city of Savannah fine or jail people for leaving guns in unlocked cars? A judge weighs in"

From AP, via NACDL's news update:

Savannah’s mayor and city council voted unanimously in April to outlaw keeping firearms in unlocked vehicles, with maximum penalties of a $1,000 fine and 30 days in jail. They said the law would make it harder for criminals to steal guns, and cited local police statistics showing more than 200 guns reported stolen last year from vehicles that weren’t locked.

. . . .

Chatham County Superior Court Judge Benjamin Karpf didn’t rule Wednesday on Belt’s motion to halt enforcement of the Savannah ordinance while considering his underlying lawsuit that seeks to have it thrown out permanently.

Monroe said Savannah’s ordinance should be voided because it violates a state law prohibiting local governments from regulating “the possession, ownership, transport, (or) carrying” of firearms.

Leshem on The Informational Role of Elevated Standards of Proof

Shmuel Leshem has posted The Informational Role of an Elevated Standard of Proof on SSRN. Here is the abstract:

This paper shows that an exacting standard of proof in criminal proceedings aligns prosecutors'information-gathering incentives with society's preferences. A conviction-oriented prosecutor must collect a random evidentiary signal before deciding whether to press charges against a suspect. Elevating the standard of proof above society's ex post optimal standard induces the prosecutor to collect a more informative signal, which reduces society's ex ante expected costs of errors. A higher standard of proof not only reduces the incidence of wrongful convictions, but may also increase the rate of rightful convictions.

Franks on Non-consensual Pornography

Mary Anne Franks (George Washington University - Law School) has posted an abstract of The Criminalization of Non-consensual Pornography in the United States on SSRN. Here is the abstract:

 

The legal, technological, and social landscape of nonconsensual pornography in the United States has changed dramatically over the last decade. The number of U.S. states criminalizing the abuse as increased from three to 48; major social media and internet companies have banned nonconsensual pornography from their platforms and services; and nonconsensual pornography, now also commonly referred to ‘nonconsensual intimate imagery’ or ‘image-based sexual abuse’, is widely recognized as a form of abuse. This transformation is largely attributable to the efforts of courageous victims of this abuse and the civil society advocacy organizations that support them, in particular Dr. Holly Jacobs and the organization she founded in 2013, the Cyber Civil Rights Initiative (CCRI). But challenges remain. Because no federal law prohibiting this abuse has been enacted, and the definition and classification of nonconsensual pornography varies by jurisdiction, victims are left with an inconsistent and ineffective legal patchwork for this devastating and frequently multijurisdictional crime.

Bland & Brooks on Criminalization of Sex Work

Sean E. Bland and Ben Brooks (Santa Clara University School of Law and Whitman-Walker Health) have posted Improving Laws and Policies to Protect Sex Workers and Promote Health and Wellbeing: A Report on Criminalization of Sex Work in the District of Columbia on SSRN. Here is the abstract:

The District of Columbia has made significant investments in reducing violence and improving community health. DC implemented violence interruption programs and accountability mechanisms, reformed policing and trained in cultural competency, and increased access to health insurance for vulnerable communities of immigrants and homeless people. Despite their continued prioritization, violence and infectious disease continue to be major public health challenges, especially for DC’s Black and LGBTQ communities. There is considerable evidence from public health researchers that criminalization of sex work contributes to community violence, propagates crime, blocks access to public health resources, is an ineffective deterrent to participation in sex work, and is deeply harmful to sex workers.

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"California Voters Have Some Choices on Crime in November"

Michael Rushford has this post at Crime & Consequences. In part:

An initiative addressing theft and drug abuse has qualified for California’s November 5 ballot, along with a ballot measure passed by the Legislature which increases the rights of prison inmates.

Proposition 36, is sponsored by the California District Attorneys Association and is supported by retailers, victims’ groups and most state law enforcement professionals. The measure changes several provisions of California Proposition 47, which converted thefts of $950 or less to misdemeanors, along with drug sales or possession, even if the offender has multiple priors. If adopted, Proposition 36 would strengthen penalties for habitual shoplifters and thieves, allowing an offender convicted of a third theft valued at less than $950 to be charged with a felony and sentenced to up to three years in state prison, depending on his criminal record.

 

"Should police be able to interrogate kids alone? A growing number of states say no"

From NPR, via NADCL's news update:

That day, he didn’t ask for a lawyer, and he did talk. Studies show nearly all juveniles make the same choice: As many as 90 percent waive their Miranda rights. Yet legal experts say children and teenagers don’t understand the consequences of doing so.

Now, some states are working to fix that. In the last three years, at least four states — including California, Maryland, New Jersey and Washington — have passed laws banning police from interrogating children until that child has spoken to a lawyer. Illinois has introduced a bill broadening its protections for juveniles questioned by police, and other states – including New York and Minnesota – have introduced similar bills.

Geistfeld on Scarce Compensatory Resources and the Tort/Crime Relationship

Mark Geistfeld (New York University School of Law) has posted Tort Law in a World of Scarce Compensatory Resources (123 MICHIGAN LAW REVIEW (forthcoming 2025)) on SSRN. Here is the abstract:

 

A number of large corporations facing extensive tort liabilities have gone into bankruptcy, forcing tort claimants to accept pennies on the dollar in satisfaction of their claims. Bankruptcy painfully illustrates the social fact that the compensatory properties of tort law depend on the availability of compensatory resources. Although this feature of tort law is self-evident, no one has adequately analyzed whether it matters for substantive tort doctrine, and if so, how.

. . . . 

 

Accounting for the availability of compensatory resources reveals normative properties of substantive tort law that are often quite different from the ones modern tort theories depict, including the relation between tort law and criminal law and the vital role of deterrence in a rights-based tort system. An adequate account of tort law must comprehend how the scarcity of compensatory resources alters substantive tort doctrine in principled ways.

"Police in a suburban New York county have made their first arrest under a new law banning face masks"

From AP, via NACDL's news update:

Police in the suburbs of New York City made the first arrest under a new local law banning face masks, officials announced Tuesday.

. . . .

The New York Civil Liberties Union, which has criticized the new law, repeated its warning that the mask ban is “ripe for selective enforcement by a police department with a history of aggression and discrimination.”

Disability Rights of New York, a group that advocates for people with disabilities, filed a legal challenge last week arguing that the mask law is unconstitutional and discriminates against people with disabilities.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Stopping Scams Against Consumers: Roadmap for a National Strategy Nick Bourke Independent Date Posted: 24 Jul 2024	213
2.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	188
3.	Abolish Conspiracy Evan D. Bernick Northern Illinois University - College of Law Date Posted: 07 Aug 2024	148
4.	Rights, Reasons, and Culpability in Tort Law and Criminal Law Gregory Antill Columbia Law School Date Posted: 27 Jun 2024	139
5.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024	88
6.	Rethinking the Role of Intentional Wrongdoing in Criminal Law Gregory Antill Columbia Law School Date Posted: 31 Jul 2024 [8th last week]	85
7.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [6th last week]	76
8.	MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT W. David Ball Santa Clara School of Law Date Posted: 08 Aug 2024 [new to top ten]	71
9.	A Specious Form of Judicial Restraint Nelson Lund George Mason University - Antonin Scalia Law School Date Posted: 02 Jul 2024	68
10.	From Visibility to Shadows: The Impact of Police Discretion on Prostitution in Response to Legal Changes Yutian An, Yingjie Fan, Xuancheng Qian and Leo Yang Yang Harvard University - Harvard Law School, Princeton University, Princeton University and Stanford University - Centre on China’s Economy and Institutions Date Posted: 28 Jun 2024	65