BAMN — By Any Means Necessary — is no doubt the most aggressively militant group devoted to defending racial preferences. Miranda Massie (along with her brother, Luke) is one of the leaders of BAMN. She represented the student intervenors in Grutter v. Bollinger, the University of Michigan law school racial preference case. I have written about BAMN a number of times — most recently here, and typically here, here, and here.
Although it would be a mistake to judge an organization on the basis of the behavior of one of its leaders acting in another arena, I do think that some sense of BAMN’s willingness to embrace “any” means can be gleaned from an argument that Ms. Massie recently offered in defense of her client, a 16 year old boy who was accused of beating his pregnant girlfriend with a baseball bat.
A 16-year-old Richmond boy could not have assaulted his girlfriend because she consented to being beaten with a miniature baseball bat to induce her miscarriage, his attorney argued Tuesday.
The boy faces a felony charge of intentional conduct against a pregnant individual resulting in miscarriage or stillbirth, which could result in his remaining in custody until age 21.
He is alleged to have struck his 16-year-old Armada Township girlfriend in the stomach over three weeks.
Defense attorney Miranda Massie made arguments to support her request for a dismissal in the case….
“If you consent, there is no assault, plain and simple,” she said, adding, “there is no Michigan law to the contrary.”
By asking her “best friend and boyfriend” to hit her with the bat, Massie argued the girl, now 17, was exercising her right to have an abortion.
This certainly convinces me (as if I needed convincing) that when BAMN says “any means,” it really means any means.
“This certainly convinces me (as if I needed convincing) that when BAMN says “any means,” it really means any means.”
I don’t get it. There is a problem with consent somewhere?
actus, I know it’s a little confusing because Massie has several defenses, each independent and even contradictory of the others (mother consented; dunno how fetus died; right to an abortion). The parallel John sees to BAMN is with the last, in the argument that an abortion is wholly defined as the termination of a fetus, it immaterial whether this was the result of a medical procedure or brought about by a three-week-long beating.
Thanks John.
The beating of the girlfriend (who consented) with a baseball bat to induce an abortion was all over the TV news here several weeks/months ago.
I had no idea the freak had found Miranda Massie to represent him. They fit each other well.
Its too bad from a Defendant Rights perspective – I’m sure he could have done better. Its a good thing though for the prosecutor.
I believe the law in Michigan that he’s being charged under is a finer distinction than “mere assault”, which I believe could be defended by a claim of victim consent. Massie is right – the strawman – an assault charge – would not be justified because assaults imply lack of consent. I believe the law simply forbids any conduct, regardless of consent, that has the intention of causing a miscarriage and actually causes it. They are lucky that the child didn’t take a breath during the miscarriage, otherwise both parties might be
up on murder charges.
The “any means necessary” here is BAMN’s willingness to use legal references and analogies that totally don’t apply – or to build strawmen. Her client wasn’t charged with assault.
Of course, Massie’s argument that the girl has a Constitutional right an abortion (and privacy in such choice) is a more serious argument – but I suspect the most courts, including a greater than 5-4 majority of the Supreme Court (I’d guess 7-2 or 9-0), would find that the State has a right to regulate the illegal practice of medicine, which would include prohibitions against back-alley abortion techniques and practioners (which I wouldn’t even give this that level of dignity). The girl always had the right to an abortion at clinic – and there are numerous financial resources available to her from the left if she had inquired… The state has obvious interests in discouraging this type of behavior in the future – even if you are solidly pro-choice or feminist. I’d put this in the category of stupidly extreme adherence to pro-choice/feminist positions… far more extreme than medically-performed partial birth abortion, which a majority of the populations seems against, and about the same as the opposition to the new laws designed around Lacie and Conner Peterson.
What is the matter? Don
Being a defense lawyer means that sometimes you have to get creative to give your client the best possible representation. In this case she is using a defense that puts some of the blame on the victim, and it seems to be working as there seems to be some confusion in the report as to exactly what happened.
I wouldn’t confuse the lawyer with the defense. Any unusual defense is usually a last ditch attempt that almost always fails. This includes the insanity defense and defenses like this one that are just plain strange.
Perry Mason limited his practice to innocent people. Most defense lawyers don’t have that luxury. For the rest it sometimes means advocating for bad people and sometimes using strange tactics.
Our system guarantees that the accused gets to present the reasons for his actions, even if those reasons are outside the range of the probable. Defense lawyers are there to get the best possible treatment for their client — yes — By Any Means Necessary.
“he parallel John sees to BAMN is with the last, in the argument that an abortion is wholly defined as the termination of a fetus, it immaterial whether this was the result of a medical procedure or brought about by a three-week-long beating.”
Is the charge abortion or assault? If the woman consented, I don’t think there is a crime. It looks like a legally fine defense. Whether the fact of consent is a long shot or not might make it a laughable stretch. But I don’t know about the case to tell.
And here we get to the heart of the matter: did the child consent?
I’m sure that in order to perform abortions one must be a licensed physician. So according to this defense, perhaps the perp should be charged with practicing medicine without a license.
And what about statutory rape?
I think there is the serious question of whether or not a minor can consent to assault with a deadly weapon — though we find ourselves led back to the absurdity of Roe and its bastard progeny, which are so concerned about guaranteeing any female the right to “reproductive choice” that the judges involved grant to mere children a virtually unfettered right to consent to a life-taking procedure while at the same time they are left without the legal capacity to independently give or withhold consent from a lifesaving medical treatment
QUERY: If a person (minor?) can consent to an assault, making it not an assault, can a person consent to be enslaved, making such enslavement not slavery?
P.S. I’m not talking about the feminist view of marriage here.
“can a person consent to be enslaved, making such enslavement not slavery?”
what does consenting to slavery mean? isn’t it a condition of bondage?
Note to the real actus,
Some crazy person is obviously impersonating you in the comments section of this weblog in order to totally discredit you.
actus,
what does consenting to slavery mean? isn’t it a condition of bondage?
No, John’s question is actually on point. There are any number of hypothetical situations in which someone “consents” to enslavement; I’ve seen them in the more abstract, shall we say, “metalegal” literature. Suppose, for example, that you are very poor and have a sick child whose only hope of health is an extremely expensive course of treatment, and a rich man offers to pay for the treatment if you consent to become his slave. Can you do this? Can you, in effect, sell your own liberty? (The founders thought not; that’s why they talked about “inalienable rights,” meaning precisely rights that you can’t cede even if you want to.)
But hey, here’s a hypothetical that isn’t even hypothetical, because it happened a year or so ago in Germany: If a man advertises for someone willing to be killed and then eaten by him, and you answer the ad, and are duly killed and devoured with your own full consent, did a murder take place? (Leave aside for the moment whether the killer could possibly be held to be sane enough to stand trial.)
I tend to agree with the posters above who say that this dude was obviously practicing medicine without a license, and in a manner that would constitute gross malpractice if he did have a license. This woman could easily have been badly hurt or killed by this “procedure,” and I don’t give a damn whether she consented to it or not; so did every woman who went to a back-alley abortionist and ended up bleeding to death with a uterus full of holes. The guy deserves jail time, and I rather think he’ll get it.
“Can you do this? Can you, in effect, sell your own liberty?”
We have labor laws right? But you can consent to lose a lot of your freedoms in many parts of america. You can be fired for having incorrect (according to the boss) political opinions, for example.
“If a man advertises for someone willing to be killed and then eaten by him, and you answer the ad, and are duly killed and devoured with your own full consent, did a murder take place?”
I don’t think that murder is limited to unconsented killings.
actus,
You can be fired for having incorrect (according to the boss) political opinions, for example.
Really? Details, please.
Michelle,
There is a nugget of truth here, grossly misinterpreted.
When I first joined my current firm, the leftists wouldn’t shut up. It was a free for all over who was most oppressed (blacks, gays or women) and, therefor, most entitled to promotion and perks.
I went to management and demanded that they shut up. My firm is run by very competent HR professionals. Their position is that political conversation of any sort is pretty much unwanted, if not prohibited, at work.
I’m pretty satisfied with that. Everybody has shut up.
“Really? Details, please. ”
What do you mean details? Ever worked at-will? Do you really think you have a right to your job besides what you have contracted to — and with certain exceptions for discrimination?
Were would you get the idea that you have a legal (well, not contracted for) right to not be fired for having a political opinion your boss doesn’t like?
The solution, as I pointed out actus, is to keep your mouth shut about politics while on the job.
It works wonders.
If you pontificate on the job the way you do on this weblog, you will get canned and you will deserve it.
Good Lord, actus, I’ve spent most of my working life working at-will, with the exception of a few contracted playing gigs and my TA-ships in grad school.
Sorry, I was under the impression that you had something specific in mind. Yes, of course, if you’re working at-will, your boss can dismiss you in a moment if she dislikes your politics. (NB: she will have to find out your politics first, so technically you wouldn’t be fired for “having” opinions, but for expressing them.) She could do the same if she took a dislike to your hairstyle, or your shoes, or what you eat for lunch, or your taste in television as revealed in your break-time conversation.
But she probably won’t, because if you’re doing your work well, she won’t care much.
I should have added that the other side of the at-will coin is that you can take off with no notice whenever you want, however much harm it may do to the business. In a small business one employee suddenly vanishing can cause a lot of harm.
“The solution, as I pointed out actus, is to keep your mouth shut about politics while on the job.”
That doesn’t solve the fact that you can be fired for opinions that you have outside of work. Say, in a blog.
“Sorry, I was under the impression that you had something specific in mind.”
You mean like an actual example of it happening?
actus,
You mean like an actual example of it happening?
Why, yes, actually, that’s exactly what I meant.
And I don’t mean people fired for trying to organize unions, or for running petition drives for their own pet causes at the checkout line, or some such. (The former is a real problem, and in general management interfering with workers organizing is, I think, illegal, though sometimes difficult to prove. The latter is just common sense: to the extent that propagating your political views while on the job is taking your time and attention away from the work, you’re doing poor work.) No, I mean a case where the boss discovered that the worker was a Communist or a pro-lifer or something else she didn’t like, and fired the worker for that reason. I’ve never run across one myself.
“No, I mean a case where the boss discovered that the worker was a Communist or a pro-lifer or something else she didn’t like, and fired the worker for that reason”
The editor of playgirl magazine was fired for being a republican. There was a woman during the campaign that was fired for having a sticker on her car — I remember it because it briefly made national as she was given a job by the campaign after her firing. The san fran chronicle fired a journalist that was arrested in an anti-war demonstration.
I would imagine that in an at-will situation, you wouldn’t even give a reason, in fear that it would be protected — ie, firing a pro-lifer might be religious discrimination. At least enough to get into litigation.
googling “fired anti-war” gives me some more. Some of them look like they are only on email lists, so it looks like this is the sort of thing that is usually below a radar.
Maybe the outrage industry could get into the business of drumming this stuff up.
actus,
I remember the SF Chron case. People were split about that here. Does a journalist (not an Op-Ed writer, but a journalist — I think it was a sportswriter, actually, so the reaction seemed to me a major overreaction) have a duty to keep his or her politics reasonably private? I am curious what the Chron would have done had one of its writers been arrested protesting outside an abortion clinic.
I wouldn’t have thought that the editorship of Playgirl was “at-will.” Even if you’re ostensibly producing pr0n for straight women, knowing full well that almost your entire readership consists of gay men, surely you’d have enough in the way of ethical cojones to draw up contracts for senior staff. (I don’t mean “you” as in you, actus, obviously.)
But as long as we’re going out on tangents (sorry, John!), what happens if you write for an editorial page with a pronounced ideological slant, and your politics change? Do you get to keep your job? Should you? I thought long and hard about this several years ago on reading John Shelby Spong’s Why Christianity Must Change Or Die, which was basically Bishop Spong explaining why everything in the Anglican Creed is a lot of hooey. (He dissects the Lord’s Prayer in the first chapter, and throws out all of it.) And all I could think was, “Why on earth does this guy think he’s morally justified in drawing a salary as an Anglican bishop?”
I’d feel the same about someone who had a right-wing conversion while writing for The Nation and wanted to keep publishing there despite hating the magazine and everything it stood for (though liking the paycheck).
actus,
I assume you are either very young or ill-educated. So here goes: in the 17th century, it was not unusual for people (white people) to sell themselves into slavery for a period of years. This was called, “indentured servitude.” It was often the price of the passage to the New World.
Hope this clears things up for you.
Michele, I don’t know why you’re setting up all these specific hypotheticals when we’ve already decided what rule applies in the general case. Or even hypotheticals that are specifically contradictory to a person’s job duties.
“This was called, “indentured servitude.” It was often the price of the passage to the New World.”
Thanks dude. Now its called wal-mart though. Like I said, we have labor laws. Which I hear some of the bush nominees don’t like, but I may be recalling that wrong.
actus,
Michel[l]e, I don’t know why you’re setting up all these specific hypotheticals when we’ve already decided what rule applies in the general case. Or even hypotheticals that are specifically contradictory to a person’s job duties.
Have we decided “what rule applies in the general case”? I thought we hadn’t. If you mean “at-will” employment, sure, but, as I said, I’d be very surprised if the editorship of Playgirl didn’t have a contract attached. What happened here? Enquiring minds want to know!
[DBL:] This was called “indentured servitude.” It was often the price of the passage to the New World.
[actus:] Thanks dude. Now its called wal-mart though. Like I said, we have labor laws. Which I hear some of the bush nominees don’t like, but I may be recalling that wrong.
actus, the difference between “indentured servitude” and Wal-Mart is that if you don’t want to work any more at Wal-Mart you can quit. A distinction without a difference, you’ll say. I doubt you would if you were a slave.
For clarity, because it is very clear (someone said the public record on this wasn’t clear) for those of us inundated with this story in Michigan.
The defendant was NOT CHARGED WITH ASSAULT, indeed, probably because the prosecutor realized assault requires an element of non-consent from the alleged victim. The defendant WAS CHARGED WITH A SPECIAL LEGISLATIVELY DEFINED FELONY whose only element is doing physical harm to a woman that later causes a miscarriage or stillbirth (if a live birth occurs and the child then dies, one could get first degree murder through the felony act).
Massie’s arguments are all appropriate for a “vigorous defense,” and even though they don’t “clash” with the legal charges and I think aren’t all that vigorous or creative, she’s making them probably to set up a jury nullification possibility (consenting victims engender less rage from juries and she’s hoping for one radically-pro-choice juror to completly nullify). As long as it’s subtle, I don’t see a huge problem with engendering jury sympathy or reducing jury rage. What is fitting of the BAMN name here isn’t the nature of the defense – its the nature of crime and the irony that a BAMN attorney represents the guy (that raises a whole host of linkage questions) – I don’t think Massie’s defense has exceeded professional ethics (although the name BAMN suggests a willingness to).
The argument that the defendant and alleged victims were poor and couldn’t afford an abortion is perhaps the best in this vein – however, I suspect that any woman that feels they can’t afford an abortion can find a ton of charitable resources on the left that would finance it. Regardless, there a ton of legitimate laws that make the exercise of certain rights more costly.
Buckland says attorneys are supposed to us any means necessary. The state bar’s of each state wouldn’t agree – nor does the law. There are limits – even though “vigorous” representation is also a requirement.
One of the justifications of the moderate left for Roe and pro-choice rights is that it prevents non-medically performed abortions and save lives. You’d think that the mainstream left would strongly favor prosecution of this kind of act – I think this is why an attorney from an extreme group like BAMN has been given the task in this case.
Compare this to “animal rights” laws. Even if the woman has an absolute right to a medically-approved abortion and in this case the woman was choosing that (unlike a Laci Peterson case where the woman was choosing to carry the child) and the fetus doesn’t qualify for “personhood” protections under the law, no human would be allowed to beat a dog with a baseball bat. Even the “owner” of a dog (like the “owner” of a fetus) can’t legally willfully kill or even neglect the dog (although he could take it to a vet and euthanise it solely because he choose not to care for it). Does the fetus have fewer legal protections than a dog – both are animal life forms allegedly not worthy of the status of personhood? If there is a moral grounds for regulating treatment of animals – there must be the same moral grounds for the humane treatment and disposition of fetuses (note, that logically, the converse is not automatic — that is, if one defines a fetus as a person, their moral rights may not imply identical rights to other animals because we afford persons more rights than non-person animals). I raise these contrasts because they are interesting, and in this analysis, I think these contrasts prove that there is an intellectual territory where pro-choice and pro-life individuals can agree and that this particular case is one of them — I am not taking a position here on when personhood actually begins.
Can a person consent away inalienable rights – consent to murder or slavery? I don’t think so… with the latter, the consent is almost always coerced. The former, given assisted suicide questions, is much thornier — so let me focus on slavery. I’d argue that slavery is a more extreme example of the “unenforcable contract” than even gambling – something I’ve used as a tool of analysis for governmental laws against discrimination (or refusing to enforce discriminatory covenants). The same is true of slave relationship – the government recognizes the right of the slave to always leave and in modern days we would never conceive of enforcing such a contract against the slave -in fact, given the nature of slavery, we empower government to do everything it can to uproot it. Where a murderer pays for the privelege of killing and eating an individual, the moral grounds for government intervention would be the quite similar (I think the moral grounds have to be more nuanced in the opposite situation – here the dying party pays someone for their expertise in lethal methods when it is for the alleged benefit of the dying party), although the victim could not reverse the contract since it is rather permanent if executed (no pun intended).
My experience with BAMN indicated to me that they’ll do just about anything to defend racial/gender preferences.
I was in Washington during the 2003 Grutter/Gratz v. U. Michigan affirmative action battle. Members of BAMN were chanting “No Justice, No Peace” in front of the Supreme Court.
In my view, this was a thinly-veiled threat basically indicating rioting if the Supreme Court had struck down preference-based affirmative action. Do you think this may have been somewhat intimidating to a justice or two (Sandra Day O’Connor, for instance)?
None of this was reported by the various media covering the event.
“Have we decided “what rule applies in the general case”? I thought we hadn’t”
That you have a right to not get fired for your political opinion to the extent that you bargain for it, not by guarantee of any law. A special case of that bargaining is at-will employment.
“actus, the difference between “indentured servitude” and Wal-Mart is that if you don’t want to work any more at Wal-Mart you can quit. A distinction without a difference, you’ll say.”
No. We’ve made much progress.
actus,
That you have a right to not get fired for your political opinion to the extent that you bargain for it, not by guarantee of any law.
Sure. Or for the color of your nail polish, if your employer happens to take exception to that. Really, exactly how long do you want a contract to be? Exactly how long do you want a state or federal labor statute to be?
Let’s play hypotheticals, shall we?
(1) Man in your employ lets slip that, in his opinion, sexual relations between men and boys should be legalized.
If you have hired this man “at will” and now dismiss him, are you a bigot persecuting political opinions you dislike? (FWIW, I would keep an eye on this person, but if his work didn’t involve direct contact with children I wouldn’t fire him. Even pedophiles ought to be able to earn a living.)
(2) Same man starts conversing with customers about NAMBLA. OK to fire him now? I think so.
” Really, exactly how long do you want a contract to be?’
Instead of at will it could just read for good cause.
actus,
Instead of at will it could just read for good cause.
Oh, what a vast field of potential litigation that would open up. Imagine legions of judges trying to work out what’s “good cause” and what is not. And I suppose you want to retain the employee’s right to quit without notice for any reason, but drop the employer’s right to dismiss without notice for any reason. There is a certain symmetry in the at-will setup that is not only appealing aesthetically but helpful to the employees: If someone quits without notice, the employer may have a major mess on her hands, which is a good reason to keep employees reasonably happy.
Would you say that an employee should be allowed to quit only for “good cause”? I thought not.
“And I suppose you want to retain the employee’s right to quit without notice for any reason, but drop the employer’s right to dismiss without notice for any reason.”
If I were the employee I would certainly want to maximize what I got out of the contract.
Good cause already exists, and isn’t that hard to come up with. Also, there really won’t be that much litigation if all you’re fighting over is back pay or even pay differentials (given that the fired employee has a duty to cure by getting a new job).
But good cause is just one example. Another way to give political rights without making laws or contracts long would be to have states extend their versions of the 1st amendment (most states have one in their constitutions) to bind employers also. No long legislation needed.
actus,
Another way to give political rights without making laws or contracts long would be to have states extend their versions of the 1st amendment (most states have one in their constitutions) to bind employers also. No long legislation needed.
Oh, and wouldn’t that be great. You can wear a jacket emblazoned with “F*ck the Draft” into a courtroom; now you can also wear one to your elementary-school-teaching job, or your bookstore job, or your Wal-Mart greeter’s job, and any reprimand would be a First Amendment infraction.
(Yes, I realize that there’s no draft now; I was referring to a famous case that’s nearly as old as I am. Please feel free to substitute “F*ck Bush.”)
“Oh, and wouldn’t that be great.”
whether its great or not is a different question of whether it requires long legislation or not.
actus,
whether its great or not is a different question of whether it requires long legislation or not.
If we’re to avoid “long legislation” only by getting into endless litigation, I really don’t see the benefit.
But if you weren’t seriously proposing it, I don’t see why you didn’t say so; and if you were, I’d think you would have to deal with the problems I mentioned. Also a number I didn’t bother to mention, but never mind.
“If we’re to avoid “long legislation” only by getting into endless litigation, I really don’t see the benefit. ”
Why endless litigation? “good cause” exists already. And I don’t see employment problems reaching damages necessary to afford endless litigation.
What would I propose? In general, going back to the beggining, I’d rather have people not be consenting to lose their freedoms.
actus,
We weren’t talking just now about “good cause,” but about your interesting proposal to hold every private employer to the same First Amendment standards as the Federal and State Governments. If you don’t think that that is a recipe for massive lawsuit-production, I don’t know what to say.
Are there massive first amendment lawsuits against government employers?
actus,
Are there massive first amendment lawsuits against government employers?
Well, there most certainly have been. But the point is that government employers are an awfully small subset of all employers. You really have no idea what you’re proposing to unleash here. I do not think it would be pretty.
I see that I failed to respond to this:
In general, going back to the beggining, I’d rather have people not be consenting to lose their freedoms.
Well, since one of your early posts on this thread was to the effect that no one could possibly think of selling their freedoms, and it was I who pointed out that some rights were specifically called “inalienable” precisely to prevent that, I suppose we are in agreement here, belatedly. ;-)