Reverence For The Blue

Wednesday was Big Government night at the Republican National Convention, with speaker after speaker extolling the virtues of public employees. Scott Walker said that government lawyers should not just be respected — they should be revered. Newt Gingrich called for zero tolerance for people who call for the death of IRS employees. Vice-Presidential nominee Mike Pence asked delegates to let EPA regulators and VA administrators know that we will always stand with them.

Well, no. That would be ridiculous. Not even the Democrats indulge in such hagiography of all public employees.

Republicans said those things about one subset of government employees — police officers. So no worries. The party of limited government isn't demanding reverence of all government — just the armed parts.

Flag-waving about cops works on multiple levels. On one level it's symbolic and emotive — it's America, apple pie, baseball, and mom, all wrapped into an idealized view of cops.


But the words work on another level too. They carry messages about the relationship between the citizen and the state, as embodied by its armed officers: armed officers of the state are, by definition, heroes. Armed officers of the state are, by definition, trustworthy and right. It's wrong to question them. They need and deserve special protection.

We already get that from television and movies and other parts of the culture. It's only natural that we get it from our politicians as well. Law and order rhetoric has two parts — you're in danger and I'll protect you. Lionizing cops is part of the I'll protect you phase. It signifies "I support cops, cops are part of my tribe, and together we will keep you safe." At least, it says that for some values of "you."

The Republicans — as they have historically — have deftly manipulated fear about lawlessness and disorder. On the home front, we fear lawlessness and disorder in the form of tragic and despicable ambush murders of police officers in multiple locations. Each represents a world ended, a family destroyed, a grotesque act of hatred. More importantly for politicians, each represents the particular kind of lawlessness we fear.

As a nation, we're rather selective about what kind of lawlessness terrifies us.

What is more terrifying: criminals engaging in a particular type of wanton violence more often than usual, or armed agents of the state breaking it with impunity? The answer to that question might depend on whether you're likely to be the victim of one or the other. In America, maniacs murder cops. And in America, cops shoot unarmed caretakers with their hands in the air as they try to protect autistic patients. They beat surrendered suspects. They perjure themselves. They execute citizens. They manipulate the system to protect cronies. They rape the vulnerable.

Not all cops, of course. We stand behind the law-abiding cops, some politicians claim. But the fact is the American justice system demonstrably stands behind cops even when they're proven liars and lawbreakers, and the system's standard of proof for cops — and the public's — is much different than the standard of proof the rest of us face. The rhetoric of cop-worship is the foundation of that special treatment.

Somehow, as a nation, we're not terrified of this trend of state lawbreaking as we are of other types. At least, most of us aren't. In fact, many of us are miffed when someone brings it up.

That's culture — a culture that already reveres cops, just like Scott Walker says we should. Our reverence is unreflective and mostly unquestioning. Our reverence is shorthand for bundles of other attitudes, some of them about race and class and other ugly things. Our reverence ought to trouble us, and should have no place at the convention of a party that's supposed to stand for conservatism. Reverence for the government is not conservative.

Lawsplainer: Are Milo's Faked Tweets Defamatory?

I'm not going to address the broad subject of Twitter banning the needy, cynical huckster Milo Yiannopoulos. It's been done, you know what I'd say, and I don't have much to add.

I'll address just one small piece of the story. Before he was banned, Yiannopoulos retweeted bigoted tweets fabricated to look like Leslie Jones had uttered them. The tweets were fake, and Yiannopoulos knew they were fake.

Was it defamatory for Yiannopoulos to circulate the faked tweets falsely attributing bigoted statements to Jones?

The answer: probably not, given Yiannopoulos' reputation.

Only false statements of fact can be defamatory. Satire, ridicule, and insults cannot. The faked tweets were intended as trolling and — to use the term extraordinarily generously — "satire", not as a factual claim that Jones had uttered the words. Could some people look at the fake tweets and assume they were real and that Jones actually said those things? Yes. But courts give very broad protection to satire, and protect it even when some people take it seriously. In determining whether a challenged statement should be taken as satire/ridicule/insult/hyperbole or as a statement of fact, courts look at how a reasonable audience familiar with the speaker and the context would take it. In other words, the relevant question is whether the speaker's target audience, informed about the circumstances surrounding the statement, would take the statement as an assertion of fact. I wrote about this in 2013 when I described a D.C. Circuit opinion rejecting a WorldNetDaily lawsuit against Esquire. Esquire's satire of Joseph Farah and Jerome Corsi was protected people readers familiar with Esquire would recognize their story as a parody, not as a news story. Similarly, readers familiar with Popehat would recognize that my accusing Farah and Corsi of sexual molestation of walruses was satire serving as an example of the doctrine, even if someone unfamiliar with Popehat or the case might take it seriously.

Here, a reasonable audience familiar with the context (Yiannopoulos trolling and attacking someone for clicks and attention, and playing to his hooting bigoted admirers) and with the speaker (Yiannopoulos as a hack troll, known for hyperbole and insult, whose followers often fake tweets as a means of ridicule) would likely not take the fake tweets as real, particularly when he fairly quickly followed up with a mock-surprised "you mean those aren't real?" wink to his fans.

I'm not saying that no court could find otherwise. I'm saying that's the most likely result, and probably the correct one under the law.

Remember: nobody needs free speech rights to protect admirable speech by people we like. It's designed to protect despised speech by people we hate. Yiannopoulos deserves contempt for monetizing bigotry, and his fans are loathsome, but his speech is protected.

Cynicism And Taking Clients Seriously

Let me tell you a story about taking clients seriously.

Years ago I had a young client who got into a summer program at Big Prestigious University, or BPU. The Client didn't go to BPU — he went to a community college, but was accepted by an on-campus summer program at BPU.

Client got arrested for having a gun and a bag of serious drugs in his dorm room at BPU. He was turned in by his roommate, a full-time BPU student, who found the gun and the drugs. Having a gun on any sort of campus is a very serious crime in California, and the DA was in the middle of a safe-schools kick, and Client was looking at hard time and a bad record.

Client swore to me the gun and drugs found in his dorm-room dresser weren't his. He said that someone — perhaps his roommate? — must have planted them. Sure, I thought. A BPU student acquired a gun and hard drugs and decided to use them to frame some rando — a rando who was, perhaps, not completely unfamiliar with drug culture. That makes perfect sense. Nothing in the evidence the DA turned over suggested any motive for the roommate to do any such thing. I was deeply skeptical, and planning for a very grim set of choices.

But Client's family had money, so I hired an investigator and had the investigator look into the roommate. Would I have found a way to acquire public money for an investigator if the Client hadn't had money? Good question.

Guess what the investigator found?

Turns out the roommate was fresh back at BPU after a stint in state prison. Roommate went to state prison because he had been stealing stuff — laptops, phones, and so forth — from classmates at BPU. When roommate was caught, he attempted to pin the thefts on friends, and when that failed blamed mental illness. He was currently on probation, and was having some trouble with his probation officer — and might be trying to curry favor.

No, BPU didn't warn Client that he was rooming with a recently released felon with a record of falsely implicating others in crimes and a pattern of blaming mental illness for his conduct against fellow students.

By the way, the same mid-sized DA's office that was prosecuting Client had recently prosecuted the roommate — and had withheld any information about the roommate's recent criminal activity, as had BPU in my discussions with them.

I subpoenaed roommate to the preliminary hearing and told the DA I was going to interrogate him. The roommate appeared, looking terrified. General counsel for BPU appeared, looking concerned. The judge looked angry — she felt it was my responsibility to arrange for a criminal defense attorney for the roommate if I knew that my questioning might trigger a Fifth Amendment assertion. Interesting theory, judge.

The DA had a long talk with a supervisor, and a long talk with the roommate, and came back to me with a deal: drop the gun charge and accept deferred entry of judgment on the drug charge. If Client completed probation successfully, the case would be dismissed, with no conviction. Notwithstanding how much Client and I wanted to put roommate on the stand and eviscerate him, or force him to take the Fifth and tank the DA's case, it was impossible to turn down the deal — the risks were too high. Client took the deal, completed probation successfully, and as far as I know has run into no problems since.

I would be lying if I said that I believed the client when he told me the gun and the drugs. But, thank God, I took him seriously — that is to say, I followed up on what he had to say with the resources available to me.

Just as prosecutors are captured by the system and its culture, so are defense attorneys. It is currently fashionable for defense attorneys to say "clients lie" and "most clients are guilty." I wouldn't agree with either proposition. Everybody lies; I don't think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It's just that criminal defense scenarios require a level of precision and accuracy that most human interactions don't.

Being an effective and responsible criminal defense attorney doesn't require believing everything a client says, exactly. The policy could be better described as "trust, but verify." The key isn't to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don't, you're not defending the client — you're defending your stereotype of the client.

China, Part Two

I expected Tiananmen Square to be flooded with nationalist iconography. Unless selfie sticks are the new symbol of the People's Republic of China, it wasn't. The square was flooded with tourists — most of them Chinese — taking pictures of themselves, and taking pictures of each other, and taking pictures of each other taking pictures of themselves, and only occasionally taking pictures of the visage of Mao on the Tiananmen Gate. The most visible flags were the miniature ones a few of the Chinese tourists brandished. These were not treated with any great reverence; I saw an elderly woman swat her husband with one.

Mao's presence was most powerfully felt through the long line to view his body at the Chairman Mao Memorial Hall — "longer than the line for the Matterhorn," as my son put it. Our guide — a thirtyish man of impeccable English and clear affinity for Western culture — said that Mao's resting place is a very popular destination for the Chinese. His parents' generation view Mao "like a god," he said solemnly, while his view Mao as a great leader and national father. Many rural Chinese come to pay their respects to him, like a pilgrimage. Elaina — whose timing and sense of protocol will make her a diplomat in the fourth Trump administration — chose this moment to whip out her guidebook and aggressively display a picture of Mao's body to the group, visibly discomfiting our guide. It's like that, living with her.

I did see a young man wearing the red-starred hat of the People's Liberation Army. But he was wearing it with a Converse t-shirt, so any communist message was somewhat diminished. It occurred to me that we're likely to interpret national symbols worn by other people more seriously than we interpret our own. When someone wears an American flag t-shirt, you don't assume that he's a strong supporter of free speech or due process, or that he supported the Gulf War, or that he has particular views about the War on Terror. It's a cultural symbol as well as a national one. We don't assume that the twerps wearing Che t-shirts on American college campuses support jailing homosexuals or executing dissidents without trail — excepting the twerps at Oberlin, maybe. But we seem to assume that people in other countries wear symbols out of a specific and deliberate support for the policies associated with them. It's not necessarily so.

If nationalist symbols were relatively restrained, signs of the security state were everywhere. The immense square had posts every 50 yards or so, and those posts are covered in cameras.


Their likely purpose isn't to ferret out terrorism, but to allow an instant response to unlawful demonstrations — which is to say, demonstrations.

The square had more fenced-off areas and more soldiers than I remember from 2007. Our guide, too, admitted it had changed — as a boy he flew kites there with his parents, something that wouldn't happen now. But despite the omnipresent cameras, it wasn't a grim place. The tourists were more excited than reverent. A Chinese toddler in split pants rode his grandfather's shoulders, shrieking with laughter, little hands scrabbling at the craggy face for purchase. Stylish girls took selfies in front of soldiers, and frivolously-haired boys ogled the girls. I had heard that the soldiers don't like their pictures being taken, but this was not in evidence. Frankly I found it difficult to be too intimidated by them; they were so uniformly skinny, like a pre-super-serum Steve Rogers. Even the cops were skinny, which is simply unsettling to an American used to meatier law enforcement. The rest of China, though, was well on its way towards American proportions — I was often not the largest guy in the room, and big bellies, bared to the heat by hiked-up t-shirts in that unselfconscious Chinese way, were common.

Next we walked to the adjacent Forbidden City, traditional home of the emperor. The City is gigantic, a feat by any measure, but there's a sameness to it — one huge plaza after another, one large traditional rectangular building after another, all in nearly identical style: plain red walls and incredibly intricate roofs and rooflines.


The colorful rooflines helped conceal the omnipresent cameras:


The most interesting part of the City was probably the realpolitik reflected in its design — 180 acres in service of one dude and his crew and his stuff. The front buildings are devoted to the operation of the vast state; the rear buildings (including an area closed off to everyone but the emperor, women, and eunuchs) were for living. Our guides — perhaps because "politically correct" means something serious and potentially deadline in China, not just linguistic squeamishness — were not discomfited in explaining eunuchs to the nine-to-twelve-year-old-girls in our group. They explained the riot of symbolism spread around the place. There are dragons facing in, to remind the emperor not to spend too much time away, and to return to help lead the state, and dragons facing out, to remind emperors to get out once in a while and not forget the people. Apparently this was an issue; at least one emperor didn't leave the grounds for 20 years. Maybe stop sending in concubines? Just thinking out loud here.

Next up, hutongs and Chinese housing policy.

China, Part One

Blue. That was my first impression of the landscape as our plane made its approach to the improbably gigantic Bejing Capital International Airport, which shortly before the 2008 Olympics turned a bucolic suburb into one of the busiest places in the world. Blue roofs. You don't see a lot of blue roofs in America, but there, splashed across the countryside, they were — baby, cerulean, baboon-ass, and every other shade you can imagine. They caught the eye from factories and warehouses and shacks and from the clusters of apartment towers, identical and symmetrical and eerily neat, islands in a sea of green. I've seen a half-dozen explanations online — that they categorize industrial buildings, that they hint at a resurgence of faith, that they are remnants of central-planned design, and so forth. I've yet to find anything authoritative; maybe some clever reader knows.

Green — that was the next thing. Flying into Los Angeles I'm used to a concrete-colored Gibsonesque sprawl farther than I can see, but Beijing — for all of its 13 million people — is still surrounded by vast swaths of green, the exurbs dotting it instead of dominating it.

Clean came next. We were last in Beijing in 2007, when we picked up our daughter Elaina. Then the city was struggling to prepare for the 2008 Olympics, and ramshackle scaffolding and heaps of construction equipment were everywhere. It was not memorably clean. But 2016 Beijing — at least the parts we've seen so far — is unsettlingly clean, Disney-clean, clean in a way that invites dark speculation into how such cleanliness is maintained. It's difficult to spot trash. I don't know if this is a result of a vast infrastructure devoted to picking it up, or cultural distaste for dropping it, or both. Even the cars seemed clean and neat. I couldn't put my finger on what seemed off about the roads until I realized how few old or beat-up or filthy cars seemed to be on Beijing's main streets. There were hardly any beaters to be seen.

The buildings that were encrusted with scaffolding in 2007 are now long-built or repaired. Certainly Beijing still has rows of boxy apartment buildings, identically grim, and its fair share of brutalist concrete. But it also has pleasant modern-looking apartment blocks and shining new office buildings with juts and curves and swoops and whimsical skybridges. Ancient and modern and beautiful and ugly rub shoulders. For all the stereotypes about communist architecture I saw very little as dystopian as FBI headquarters or downtown LA's criminal courthouse.

Speaking of communism and dystopian government, it wasn't much in evidence, at least in the parts of Beijing we've seen so far. We saw numerous Russian flags along the highway from the airport, raised to salute a visiting Vladimir Putin, but the Chinese flag wasn't omnipresent. To the contrary, it was rarer by an order of magnitude than the American flag in a typical American city. Nor did I see overt propaganda of the sort that still lingered in 2007 — the closest was a huge sign with the English translation CONGRATULATIONS TO POSTAL SERVICE ON SUCCESSFUL INTRODUCTION OF NEW INVESTORS, which is somewhat less than communist in content. Armed soldiers ("Look, they have machine guns," said my mother-in-law. "Those aren't . . . never mind.") guarded some edifices along the main boulevard, but unobtrusively. People wandered about and started at their phones and ate and drank and lived like they do anywhere else. The most prominent sign that we were someplace politically different was the fact that we had to use a VPN to visit Facebook or Twitter.

And the traffic! In 2007, the fabled Beijing traffic lived up to every stereotype. Cars hurled themselves like berserkers at our tour bus's fenders, and weaved about like a chase in a Michael Bay movie. Now? Well, I would hesitate to drive myself, but it was comparatively placid, not much worse than someplace like Boston. I saw a family serenely bike between the lanes, parents masked and baby sandwiched impassively between them.

In short, what seemed most alien about Beijing was how it failed to live up to expectations or stereotypes. It seemed thoroughly westernized, with only glimpses of its former life — a trio of old men fishing in the river as SUVs whizzed across a bridge over their heads, a glimpse of hutongs, an occasional conical hat. I'm looking forward to seeing more of the city this week, and to visiting other cities over the next two weeks to see how they compare.

Today, Sunday, was our first full day. It was hot, and the air quality was quickly searing my lungs, producing an ache that reminded me of growing up in Los Angeles in the 1970s and early 80s. So we visited the aquarium at the zoo, which was indoors and sufficiently diverting for the kids, and for me.

Let's play "fish or garage metal band?"

Let's play "fish or garage metal band?"

This sign brought to you by the Society for Having Absolutely No Idea How Kids Work

This sign brought to you by the Society for Having Absolutely No Idea How Kids Work

Honestly I can't keep up with all the HBO shows these days

Honestly I can't keep up with all the HBO shows these days

Later I took my son Evan and daughter Elaina to the hotel pool. Nominally Elaina — who has completed four years in a Mandarin immersion program — is our translator. Practically she's mostly waiting, quivering in anticipation, to translate Thrice-Peppered Squid Taint In Mungbean Oil as "sweet and sour chicken." I quickly discovered she did not know the word for "towel" and was disinclined to get there through description. Nor was it a word that the hotel believed pool employees needed to know in English. I was left to wander from pool attendant to pool attendant, patomiming. We do not have whatever it is you wish to rub or wrap yourself with, American, their expressions said in a very courteous and non-judgmental way. I found the towels eventually, and returned to the pool to soak away the travel and the heat, clad in the required black bathing cap, which makes me look like a condemned manatee.

More to come.

Get The Popehat T-Shirt

Do you want to virtue signal that you believe in liberty, are prone to making abrupt taint-related invitations, and may possibly erupt into an angry rant about some obscure point of law at any moment? Now you don't have to say a word! The first Popehat t-shirt is available at Cotton Bureau — one design for now, men and women, all sizes, three colors.

This is a test run. If there's interest, we'll be offering more designs. Requests and suggestions for designs are welcome (you can always email me at ken at popehat dot com).

We're not getting any money off of this initial run. I don't plan on using T-shirts as a revenue generator — right now our single ad and Amazon Associates (remember to order from Amazon using the link to your right!) generate enough revenue to cover hosting and such. If we do ever set prices to make a profit, that profit will be going to an announced charity.

Have fun!

In Support Of A Total Ban on Civilians Owning Firearms

I support the argument that the United States should enact a total ban on civilians owning firearms.

Oh, I don't support the ban. I support the argument.

I support the argument because it's honest and specific. It doesn't hide the ball, it doesn't refuse to define terms, it doesn't tell rely on telling people they are paranoid or stupid in their concerns about the scope of the ban. The argument proposes a particular solution and will require the advocate to defend it openly.

That elevates it above most gun control dialogue.

I've argued before that gun control debates would be improved if people avoided culture-bundling and cared about the meaning of words. Most don't. Too much looks like this:


There's a very good reason to care about what you mean when you argue that "assault weapons" should be banned: the term is infinitely flexible. If you think it inherently means something specific, you haven't bothered to inform yourself about the issue. "Assault weapon" means whatever the definers decide it should mean. Banning "assault weapons" is the gun version of banning "hate speech" or "disruptive protest" or "dangerous persons" or "interfering with a police officer" — it's a blank check. And I don't like handing out blank checks to the government to ban things and jail people.

I'm not making an argument that it's impossible to define assault weapons.1 I'm not even making an argument that banning "assault weapons," defined with reasonable specificity, would violate the Second Amendment. There's an argument to be made about that — an argument that's still in its jurisprudential infancy, given the recency of Heller — but it's not my point. My point is that if you won't even try to define what you want to regulate, and how, the argument about practicality and constitutionality is both abstract and premature. It's the same with defining automatic and semi-automatic. I don't want gun control advocates to acquire some vague grasp of what those mean because I'm eager to have my neighbor own a machine gun. I want advocates to learn the difference so I can have some level of confidence that I know what kind of proposed government power we're debating. Right now the debate seems choked with people who don't know, are proud of not knowing, and think you're a redneck gun-nut asshole if you want them to know because they feel very strongly about this. I decline to take that seriously.

Gun control advocates may argue that it's pointless to define terms because gun control opponents will oppose gun control laws no matter how they are crafted. That's a fair description of the behavior of some — perhaps even most — gun control opponents. But it's not a logical or moral excuse for not trying. Urging vague and unconstrained government power is not how responsible citizens of a free society ought to act. It's a bad habit and it's dangerous and irresponsible to promote it.

This is not an abstract or hypothetical point. We live in a country in which arbitrary power is routinely abused, usually to the detriment of the least powerful and the most abused among us. We live in a country in which we have been panicked into giving the government more and more power to protect us from harm, and that power is most often not used for the things we were told, but to solidify and expand previously existing government power. We live in a country where the government uses the power we've already given it as a rationale for giving it more: "how can we not ban x when we've already banned y?" We live in a country where vague laws are used arbitrarily and capriciously. We live in a country that is about to nominate Donald Trump as the Republican candidate for President of the United States: a man who wants to limit free speech, ban people based on religion, and generally jackboot around. We live in a country where his opponent is a long-time advocate of the security state who got famous helping label young black men "superpredators."

Maybe gun control advocates won't define terms because they know that the defined terms they want won't sell. That's not unusual; it's typical politics. That doesn't make it right. You have no moral or rational claim to your fellow citizens' support for a deliberately vague law. Cowboy up. Define what you want and argue for it. Anything else is either silly and self-indulgent, or deliberately deceitful.

Lawsplainer: IT'S NOT RICO, DAMMIT

I have a question.

Angels and ministers of grace defend me.

Would it be RICO if . . .



. . . .


But how do you know? I haven't even described the case yet.

It's never RICO!

I mean, not literally never. But I can say with a very high level of confidence that if you're asking me, it's not RICO.

But it's an important case! And the facts are terrible! This defendant did really bad things.

That's not what RICO means. RICO is not a fucking frown emoji. It's not an exclamation point. It's not a rhetorical tool to convey you are upset about something. It's not a petulant foot-stomp.

RICO is a really complicated racketeering law that has elaborate requirements that are difficult to meet. It's overused by idiot plaintiff lawyers, and it's ludicrously overused by a hundred million jackasses on the internet with an opinion and a mood disorder.

You have a really big vein throbbing on your head and I am concerned it is going to burst and it will be really gross.

I'm going to need a minute here.

Calm. Peaceful. Go to your happy place.


Okay. I'm good. Proceed.

So what is RICO, anyway?

RICO is the Racketeer Influenced and Corrupt Organizations Act, because goddamn Congress likes acronyms like your great-aunt likes porcelain cats.

Congress passed it in 1970 to address organized crime. It was specifically designed to help with some of the difficulty that prosecutors traditionally had in cracking big organized crime rings — mafia families, drug trafficking organizations, that sort of thing.

What sort of problems?

The stuff that crime bosses did was already illegal. But it could be very hard to attack the whole enterprise instead of one act after another. You could take down some mook for one street assault, but you couldn't take down the mook's boss's boss. You had to nibble at the edges, and meanwhile the crime family or drug ring or whatever kept making money.

RICO was designed as a way to describe, legally, the whole criminal enterprise based on some of its acts, go after people who supported it, and take its assets.

Why not just charge a conspiracy?

Good question. A RICO claim is really just an elaborate over-complicated conspiracy claim. The answer, in part, was that it was 1970, crime was way up, Nixonian "law and order" was popular, and everyone wanted to be seen as doing something.

Wait. I thought RICO let you sue people. It's a criminal law?

It's both.

And even though it was passed to deal with large-scale organized crime, now it's vastly overused — not so much by the government, but definitely by plaintiff attorneys.

So you can't sue people for RICO?

Oh you can. It's just that almost all of the time you'll be wrong to do so. A RICO claim doesn't mean "these are bad people." It doesn't mean "they did bad things." It doesn't mean "they did lots of bad things" or "they did bad things over state lines" or "they did bad things and some of them were crimes" or "they did bad things and we need to take them really seriously."

But that's how people use RICO — as an idiotic rhetorical device. Like this:


Wow. I'm only an abstract imaginary foil written to sound like an idiot and even I know that's really stupid.

I know, right? But I hear his books are good.

So people on the Internet use "RICO" to sound tough. Do lawyers overuse it too?

Oh hell yes. And judges hate it. It's overcomplicated and most of the time it adds nothing to the case.

It's so overused — especially by crazy pro se plaintiffs — and so needless that a lot of federal judges have special RICO orders they issue in RICO cases demanding that the plaintiff explain, in painful detail, why they think they have a RICO claim. Like this one, for instance. Judges issue them automatically as soon as a RICO case hits their docket to gather information to dismiss the case because it's not fucking RICO you idiot.

So what would be a righteous civil RICO claim, as opposed to all the bogus ones?

Let me answer that by telling you the elements of civil RICO — that is, the list of things a plaintiff would have to prove to win a RICO case.

To win, a plaintiff would have to prove (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity called "predicate acts," (5) causing injury to the plaintiff’s "business or property."

Each of those terms means something complicated — each term is a gateway to a whole bunch of other issues.

Okay. What's "conduct"?

That just means that you have to prove that the particular defendant has a role in the operation or management of the enterprise.

Wait. Isn't the defendant the enterprise?

No. In fact the defendant can't be the same as the enterprise.

An enterprise is a legal entity or group of people. So, for instance, the Gambino Crime Family can be an enterprise, or Prenda Law. But the enterprise has to be different than the defendant for a RICO claim. Instead, the defendants have to be people and entities who run the enterprise. So if you filed a crazy pro se complaint saying that General Motors is a criminal enterprise and named General Motors as the defendant, your claim would be legally insufficient.

That sounds convoluted.

It is. But remember — RICO wasn't supposed to be an everyday tool. It's supposed to be a way to take down slippery crime families.

Okay. So what's a pattern?

A pattern is at least two acts of racketeering activity — which we'll get back to later — over a ten year period. The activity has to be both "related" and "continuous."

"Related" means that it's part of the same effort — so if your crime family does drugs, prostitution, and extortion, all of those could be related. "Continuous" means you have to show either a series of acts over a substantial period of time, or past conduct that by its nature suggests it will continue.

Again, RICO's supposed to be about organized crime. So if you and I decide to knock over a bank, that's not RICO — it's not part of a pattern of conduct, even if the FBI can find more than two charges to apply to it. The idea of RICO is "these people are in the crime business, and as part of the crime business they committed a crime against me."

So what's "racketeering activity"?

Racketeering activity is the commission of a whole bunch of very specific federal crimes. But it's not just any crime. It's only the ones on the list.

That's one of the reasons that the "[advocacy organization I don't like] should be sued for RICO!" arguments are so infuriating. Where's the underlying federal crime? And how is it harming the plaintiff's business or property? RICO doesn't mean "this organization advocates things that are bad for society."

So that's it, right?

No, remember the last element — you have to show that all of the foregoing causes injury to the plaintiff's business or property. It can't be a harm to society at large.

Also, you can sue someone for conspiring to commit RICO — meaning you have to show they agreed to do all that.

Is criminal RICO the same?

Mostly. It's more complicated. It can include a RICO conspiracy or acquiring a share in a RICO enterprise or to use a RICO enterprise to collect debt.

This sounds hard to allege and prove.

It is. It's really difficult even to allege it right in a complaint. RICO claims usually generate a series of motions to dismiss. That's why judges often have standing orders requiring plaintiffs to explain how and why they are claiming RICO — that's something judges don't do for almost any other cause of action. Most of the time, if a civil plaintiff can prove RICO, they can much more easily prove fraud or other more straightforward claims.

So why bring a civil RICO claim?

Well, if you win, you can get attorney fees, and possibly even triple your actual damages.

But mostly I think it's a scare tactic and a propaganda tool, as its idiotic rhetorical misuse suggests. Lawyers bring RICO claims so they can say "the defendant's behavior is so criminal that we sued them for RICO!" Dupes play along by describing RICO claims as "charges," and generally by acting like a RICO claim suggests that there's already been a finding that someone did something wrong.

It doesn't mean that. A RICO claim just means someone wrote down a RICO claim and filed it. Even if the RICO claim survives a motion to dismiss, that just means that a plaintiff was able to allege a complex set of facts in a convoluted way. It doesn't mean those facts are true.

So why do we still have civil RICO?

Mostly because Congress is more scared of being called soft on crime than they are interested in reforming time-wasting abusive statutes.

There have been some reforms. One Congressional amendment prevented plaintiffs from using securities fraud as a racketeering act under the statute, probably because investment banks donate enough to members of Congress. And every now and again someone proposes reform. But it's dry, boring, and complicated, so it never goes anywhere. For now, we're stuck with it: a convoluted statute used by twits and crazies to make litigation more expensive, and waved around by morons like a big foam finger at a ball game.

Well that's a little pessimistic.

Everything is shit.

Would you like a cookie?

. . . yes.