Law for the Changing Times

Why is the law so complicated?  Because the Normans conquered England.  Something a professor in law school liked to say, almost every day.  He used it to explain why there are so many exceptions to every rule, and exceptions to the exceptions, and so on, all of which seem to contradict and undermine each other.  The Norman conquest of England in 1066 led to the fusion of the Normans’ French legal system with the existing English legal system, which was itself an amalgam of Danish Viking, Germanic Saxon and Roman Briton legal traditions.  It has been tweaked and modified many times over the centuries.  We in the US inherited all that ancient English law after independence; technically through reception statutes, though that is neither here nor there.   And so we arrive at the present, our daily lives governed by a set of laws that are the culmination of 2000 years of patchwork, quick fixes, and fact specific solutions.  I read recently that the oldest statute still in effect in England is the Statute of Marlborough, passed in 1267, which means it was adopted into US law after independence, and could still be considered good law.

The point of all this is that the law is old, it changes very slowly, and often does not respond well when confronted by new technology and situations.  A good example of this in the modern age is teen sexting, and this recent case is the main exhibit.  The facts start out simple enough, but quickly become absurd; the two teens, girlfriend and boyfriend, text each other naughty photos that they took of themselves.  Girlfriend’s mother finds out and files a complaint.  Boyfriend gets charged with manufacturing and distributing child porn, but girlfriend does not – someone else can tackle the gender dynamics issues at play there.  When the police arrested boyfriend, they took photographs of his genitals, which sounds like exactly what they are prosecuting him for doing.

Then the police decided that pictures of the flaccid penis wasn’t good enough, they needed pictures of the erect penis, so they could properly compare it to the original texted photos.  So the cops got a search warrant, authorizing them to take the boy to the hospital, inject him with something to give him an erection against his will, and take new photos of the medically erect penis, all while surrounded by cops.  Because that wouldn’t be at all traumatizing to the boy.

So, just to be clear, the cops working on this case, possibly their supervisors, the prosecutors working on this case, and at least 1 judge all looked at this plan and said “yup, that’s a great idea.”

Of course, the day after the Washington Post article was published, the prosecution announced that they would not actually serve the search warrant.  For some reason they no longer thought it was a good idea when other people were watching them.

Prosecutions are not the way to deal with these situations.  Prosecutions aren’t helping anyone here, and labelling this boy as a sex offender for the rest of his life certainly doesn’t seem like a proportional response.  Consider for a moment how this would have played out without cell phones, if instead of texting each other naughty photos these teenagers had just gotten together and shown each other…each other, in person.  That would not be child porn.  That would be more or less normal teenage sexual exploration.  So why should it be child porn just because it involves technology?

I’m not going to sit here and argue that we shouldn’t be doing something about teen sexting, however not every activity you disapprove of needs to be dealt with using the hammer of criminal prosecution.  Our current response is wildly disproportionate, and ends up treating a teenaged boy who shows his girlfriend his genitals the same as a middle aged person taking naked photos of an 8 year old child.  Those two are not alike, and certainly do not deserve the same response.

What Exactly is the Harm from Video?

The 1st Circuit Court of Appeals recently decided Gericke v. Begin, nominally declaring a 1st amendment right to video record police officers.

This came up recently in the comments.  Citizens have a First Amendment right to film police activity carried out in public.  However, like every other right, this right is not unlimited, though in this case the exceptions are likely so broad as to swallow the right whole.  Specifically the right to film police can be restricted by a “reasonable, contemporaneous order from a police officer.”  So the police officer you’re trying to film misbehaving can order you to stop filming and disperse, and that’s perfectly constitutional.  Kinda defeats the purpose of filming the officer in the first place.  If the officer doesn’t want to be filmed violating someone’s rights, he just has to order you to stop filming him first.

But wait!  you say,  Thats not reasonable!  “Reasonable” has become a meaningless term in modern legal parlance.  Reasonable is a completely subjective determination, and effectively means “whatever the judge will let the cops get away with.”  If the officer can come up with any justification for his order better than “I didn’t want them filming me misbehavin,” it will probably be reasonable.  The police get broad judicial deference.  For the system to function, the courts believe officers are telling the truth in the absence of clear evidence to the contrary.  If the courts required as much evidence from the police as they do from defendants, the system would grind to a halt.  This double standard is largely justified by the logical fallacy that defendants are motivated to lie to get a dismissal, whereas officers are not motivated to lie to get a conviction.

This is precisely why we need more video and fewer restrictions on filming police activity.  There is no legitimate justification for an officer to order someone to stop filming them in public in the performance of their duties.  I’m not going to sit here and argue that there can never be any restrictions.  There may possibly be a justification for ordering a crowd, that happens to include a person filming, to disperse.  But disperse does not mean “go home and don’t be within line of sight of the police activity.”  Maybe it means “move back 50 feet.”  There is certainly no justification for a direct order to stop filming, nor is there a justification for ordering a single person filming to disperse.  Any such order should be presumptively unconstitutional, and any associated criminal charges, either from the filming or the activity filmed, should be dismissed.

As I opined in the above linked comments, I think every officer should be required to wear a body camera, which should be filming the entire time they are on duty.  All police action should be filmed, as video is the only unbiased witness to the events.  Human memory is extremely unreliable.  Memories are recorded and recalled through the filters of our experiences, biases and preconceptions.  Even without potential motivations, every witness of an event is going to remember that event differently.  Even viewing that video in court, everyone is going to see something slightly different because of those biases and preconceptions, but video is still a much better starting point than live testimony based on imperfect memories.

All police activity should be recorded on video, and every video should be filed in court with the criminal charges.  Supporting video should be a requirement of probable cause that cannot be waived.  Any charge that doesn’t have the video should be summarily dismissed.  As the police so often say, if they have nothing to hide they have nothing to fear, and the police should not oppose filming of all their activities.  Unless, of course, the police do have something to hide.

The Lost Art of Negotiation

I ended up going furniture shopping yesterday.  We looked around a bit, saw some things we liked, and eventually decided on a piece we wanted to buy.  I waved over the salesman, ready to begin the dance.  He quoted me a price a little lower than the tag as his opening move.  I parried with a price lower than that.  He smiled, looked down and shook his head.  The price was the price.  No haggling.  The dance was over before it had begun.

Haggling and negotiation is a lost art in this country.  So often in our consumer culture haggling is not an option, the price is the price.  This expectation is so widespread that most people don’t negotiate even when they can.  When they do negotiate, most people aren’t very good at it.  Contrast that with foreign cultures where haggling is the norm, and failing to negotiate is an insult.

Criminal practice involves a lot of negotiation.  It is a vital part of the process.  Every conference and hearing is preceded by a closed door negotiation session.  Offers are traded back and forth, and about 80% of the time, a deal is reached.  Dealmaking is expected, and through this process lawyers get pretty good at it.

Traffic tickets are a lot like criminal cases.  You negotiate, and if you can’t reach a deal you have an evidentiary hearing.  Criminal-lite, lets say.  The major difference here in Vermont is that in a traffic ticket case, the cop is the prosecutor.  There is no attorney for the state.  And cops have significantly less tolerance for negotiation.  I’m not entirely sure why that is.  I suspect that it is because out in the field, cops are used to giving orders and telling people what to do.  And, in general, people are expected to do what cops tell them to do.  The end result is that the negotiation inherent in criminal procedure can be unfamiliar to them.

This came up when I was with the State’s Attorneys.  Cops didn’t understand why some of their cases would get dismissed, or the charges reduced.  If a defendant has 10 pending charges, some of those will probably get dismissed to make a grand bargain.  Whether its 5 charges or 10 charges is usually irrelevant to the end result.  Sometimes charges are amended to lesser offenses, like simple assault reduced to disorderly conduct.  Sometimes low level charges are dismissed, as in low test first time DUIs.  And some of the cops couldn’t wrap their brains around this.  If they’re guilty, why dismiss the charge?  Well, that was part of the deal.  But they’re guilty.  And so on.

I had a speeding ticket hearing yesterday.  I tried to negotiate with the officer, but he refused to amend the charge from speeding.  Why?  Because its unethical.

Wait, what?  The foundation of all criminal practice is unethical?  I don’t think we’ll be reaching a deal today.


By the way, I won that hearing.

Fatal Escalation

This is the most disturbing video I’ve seen in some time.  Here is the HufPo article.  You can watch the video for the details, but the short story is a “standoff” with James Boyd, a mentally ill homeless man, was about to end peacefully, when the police threw a flash bang at him.  Visibly disoriented, Boyd pulls knives out of his pocket, and the police shoot him.  He died the next day from his wounds.  Apparently he had brandished these knives earlier in the standoff, so the police knew he had them in his pocket, yet they escalated the situation anyways.  It is hard to rationalize an explanation for the cops’ actions here that doesn’t involve a desire and intent to kill Boyd.

The police are claiming that Boyd was “illegally camping.”  Clearly, illegal camping is a very dangerous activity that justifies the police responding with dogs and automatic weapons.  He had mental illness and a criminal record, and apparently had assaulted a police officer in the past.  Maybe that justifies a more cautious approach to dealing with this guy, we don’t really know the details about those previous contacts.  But this was ending peacefully.  The cops had successfully talked him down.  He had put away the knives, he gathered his belongings and was going to walk away with the cops.  It was this close to being a non-violent success.  So why throw the stun grenade?

The situation has escalated in the past two weeks.  Police shot and killed another man last week who may or may not have been armed.  The police claim he had a gun and shot at officers.  His family claims he had a cell phone.  It isn’t really clear from the videos, so the police have more latitude to make claims of justification.  Protests over this excessive use of force have gotten bigger, and this weekend police started arresting protesters and using tear gas against them.  The DOJ is investigating the Albuquerque PD over the incident.  We have yet to see the end of this.

Upskirting Revisited

Last December I wrote about a case pending before the Massachusetts Supreme Judicial Court, Massachusetts v. Robertson.  Robertson was caught taking upskirt photos of women on the train, then argued that the law doesn’t prohibit taking upskirt photos since the women were not nude or partially nude.  Robertson also argued he had a Constitutional right to take upskirt photos, which led to much brouhaha.

I argued against the Constitutional argument, though for different reasons than most.  I thought that the statutory interpretation argument was a winner, and the Constitutional argument, even if technically correct, was not.  The bottom line is that no judge wants to be “the judge who decided there is a constitutional right to take upskirt photos.”  Taking upskirt photos is creepy and disturbing.  Deciding that there is a constitutional right to be creepy and disturbing is not something that a judge wants to be remembered for.  It is far easier to decide that the law in question doesn’t prohibit this activity, both from a legacy perspective and from a cognitive dissonance perspective.

Earlier this month, the Mass SJC decided that I was right.  MSJC held that the woman was not nude or partially nude, and had no reasonable expectation of privacy on the train.  They also hinted at the constitutional argument, which is what all the controversy was about.  “At the core of the Commonwealth’s argument to the contrary is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b) in its current form does not address it.”  They go on to cite laws in two other states that specifically prohibit upskirt photos.  It is pretty clear that if this comes up again, they are not going to hold that this activity is Constitutionally protected.

Here’s a longer article on the decision.  It seems to have angered some people that MSJC won’t expand poorly drafted laws to prohibit conduct they were not intended to prevent.  This may upset those people, but the law can’t just say “all behavior I disapprove of is illegal.”  

The Encroaching Police State

Our Constitutional rights to be free from search and seizure have eroded over the past few decades.  SCOTUS added another nail to that coffin this week with its decision in Fernandez v. California.

The facts are uncomplicated.  L.A. police were looking for a male suspect in an assault and robbery, and had legitimate reasons to think he was in a specific apartment.  Police knocked on the door, and a woman answered who had “blood on her shirt and hand from what appeared to be a fresh injury.”  Police asked Rojas for consent to search the apartment.  At that point, Fernandez came out from the back of the apartment and clearly stated that the police did not have consent to search the apartment.  Police promptly arrested Fernandez for assaulting the woman.  Police took Fernandez to the station, then returned to the apartment and ‘obtained’ consent to search from the woman.

There was some suggestion that Rojas’ consent to search was coerced by the police – ‘some suggestion’ in this case being Rojas’ testimony in court that her consent was coerced.  The trial judge didn’t believe her, so that entire possibility was disregarded.

The pre-existing law was that if the police want to search a home, they only need the consent of one tenant.  However, if any tenant objects to a search, the police do not have consent to search.  They can still go get a warrant, of course, but they can’t rely on the consent end run around the Constitution.

SCOTUS held that the tenant’s refusal of consent is only valid as long as the person is present and objecting.  As soon as the person is no longer present, their objection is no longer valid and police can search the home.

So to recap: Police want to search a home.  Person 1 says yes.  Person 2 says no.  Police arrest person 2.  Police can now search the home.

The complication here is that Fernandez was clearly guilty.  But the question becomes why didn’t the police just get a warrant?  They had plenty of evidence against Fernandez.  There is no question that it would have been granted, and a warrant would have prevented this whole argument.

The Constitution requires police to get warrants before searching a home.  Courts often repeat the mantra that the police must get warrants, with very limited exceptions.  But here, SCOTUS decides that getting a warrant is too much of a burden on the police, and would be too much of a delay.  Getting a warrant is just too hard, so lets dispense with that.

Of course it’s hard.  Getting official sanction to invade someone’s home and tear apart their possessions shouldn’t be easy.  The whole point of the warrant requirement is that it forces some measure of judicial oversight into police investigations.

The dissent includes an interesting quote from a 1948 SCOTUS decision, undoubtedly written against the backdrop of the recently fallen Nazi Germany and the growing rivalry with the USSR: ‘The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”  If our police officers no longer must follow the law, what does that make us?


On the Importance of Locking Your Car

Here’s a case out of St. Albans last weekend.  Apparently the St. Albans police found Roger Patenaude Sunday night, who had an active arrest warrant.  Unsurprisingly, Patenaude ran away, and the officers chased after him.  Patenaude then “located an unlocked running St. Albans police cruiser.”  The press release doesn’t say, but presumably the cruiser belonged to one of the officers chasing Patenaude.  He got in the cruiser, and proceeded to drive it into an officer standing in front of the cruiser (Pro tip: don’t stand in front of a car driven by a fleeing suspect).  The officers chased Patenaude around St. Albans for 2 miles until he crashed the cruiser into a telephone pole.

In the first instance, why would the officer possibly think that standing in front of the cruiser was a good idea?  The press release states that he stood in front of the cruiser and ordered Patenaude to stop.  He was already fleeing on foot, why would the officer think he would stop running once he stole a police cruiser?  Other officers I’ve talked to won’t even step in front of a car during a standard traffic stop.  Standing in front of the cruiser in this instance is just asking to get hurt.

The Free Press and others are reporting that Patenaude has been charged with aggravated assault for hitting the officer with the car.  In all likelihood, the specific statute is 1024(a)(4): causes physical injury to an person with intent to prevent a LEO from performing a lawful duty.  Here that means Patenaude hit the officer with the car, causing injury, in order to prevent the officer from arresting Patenaude.  The logic is a bit circular, and has the effect of making any assault on a LEO an aggravated assault carrying a much higher penalty.  Since the officer does not seem to have been seriously injured, this would normally be a simple assault.  Aggravated assault normally requires “serious bodily injury” or a weapon; think broken bones and knife wounds.

Alternatively, the State’s Attorney could be arguing that the cruiser itself was a deadly weapon, but that logic also has some flaws.  Specifically, Patenaude did not cause SBI, and arguably did not intend to.  After hitting and knocking down the officer, Patenaude backed the cruiser away from the officer before driving off.  Patenaude could have just run the officer over if he really intended to cause serious injury.  The act of backing away first indicates he had no intention of seriously injuring the officer, and was only trying to run away.

Of course, much of this could have been prevented if the officers didn’t leave their cars unlocked and running.  Entrapment, anyone?

We’ll see if any of this gets hashed out in court.  In all likelihood, Patenaude will plead out before any of these legal issues get a full airing.

Cop Baiting

A friend recently told me about this video, asking for my analysis.  Not sure how I missed this story over the summer.  In short, a kid going through a DUI checkpoint with a video camera rolling acts like a jerk to bait the cops.  The Tennessee Highway Patrol posted the dash cam video of the entire stop.  It is interesting to note that the kid edits out all the parts of the stop where he’s not being obstinate.

This video involves a DUI checkpoint.  SCOTUS has decided that DUI checkpoints are constitutional, as long as they comply with a list of requirements, none of which involve reasonable suspicion or probable cause.  This may seem strange when every other level of detention by the state requires some degree of suspicion.  However, SCOTUS has decided that we are wrong, that it is perfectly constitutional to detain people without suspicion at DUI checkpoints.  We can debate this until we are all blue in the face, and perhaps I will another time, but for this post, it suffices that police can detain motorists without suspicion at DUI checkpoints.

As the stop begins, the kid refuses to roll down his window, gives evasive answers to the cop’s questions, and doesn’t follow the cop’s orders.  Yes, you have a right to not answer questions, but you do not have a right to be a jerk without any repercussions.  As I discuss in my DUI advice, there are magic words to asserting your constitutional rights.  At no point does the kid say “I’m exercising my right to not answer your question.”  If you don’t use those magic words, you’re not exercising your rights, you’re just being difficult in an attempt to get yourself detained.  You cannot expect the cops to respect the greatest extent of your rights on their own; you need to exercise them.

The cop orders him to pull over and then to get out of the car.  When a cop orders you to pull over or exit the car, you need to comply even if the order is illegal.  You might have a remedy later through a 1983 lawsuit, but in the moment you are required to follow the officer’s order.  Additionally, if they do uncover evidence of a crime, such as DUI, any evidence obtained after the illegal order will be suppressed and the criminal charges dismissed.

Once out of the car, the kid objects to providing his drivers license to the officers.  In general, you are not required to furnish ID to an officer.  However, as is often stated, driving is a privilege, not a right, at least as it pertains to public roads.  Part of the drivers license bargain is if you are operating a vehicle, you are required to present your license to an officer on request.  In order to legally operate a vehicle on public highways, it must also be registered and insured, and you are also required to present proof of registration and insurance to an officer on request.

Finally we get to the drug dog.  Drug dogs and DUI checkpoints are the two biggest legal fictions in criminal law.  There is lots of evidence of the unreliability of drug dog sniffs and the ease with which they can be manipulated.  But much like DUI checkpoints, drug dogs have been anointed with the judicial seal of approval, and are routinely used to justify searches.  That, of course, is also an argument for another day.  In general, the police are not allowed to detain you solely in order to do a drug sniff.  In normal stops, that means that the police can detain you long enough to write the speeding ticket.  If they can get a drug dog there before the ticket is written, then they can do the drug sniff.  The police are not allowed to detain you without reasonable suspicion solely to wait for the drug dog to arrive.  I’ve never personally witnessed an officer take 20 minutes to write a ticket, but apparently it happens all the time when the drug dog is en route.  That being said, this video was a DUI checkpoint so the justified length of the stop is already an arbitrary legal fiction.

The bottom line is its hard to analyze a situation where the kid is intentionally baiting the cops.  This kid isn’t exercising his rights, he’s being a jerk to make a point.  Civil disobedience is important, but don’t be surprised when it has the desired effect and you’re detained.  While I tend to agree with his point, that the balance between civil liberties and police power has shifted too far in the direction of the police state, this demonstration isn’t that useful as a practical teaching moment.


On Peeping Toms, the First Amendment, and Zealous Advocacy

Much ink has already been spilt over this story on the constitutionality of upskirt photos.  Here is the original news story.  Hat tip to Simple Justice.

The facts: a Massachusetts statute prohibits taking photos of people who are nude or partially nude without their knowledge, when they have a reasonable expectation of privacy.  The Defendant took an upskirt photo of a woman on the train, and was prosecuted under this law.  D’s lawyer argued to the MA Supreme Court that the law does not prohibit photographing people who are fully clothed, and extending the law to prohibit upskirt photos would run afoul of the first amendment.

Not surprisingly, this created a stir in the criminal law blogosphere, some arguing that the constitutional argument exceeds the bounds of decency, while others claiming the lawyer had a duty to the client to make the argument.  As usual, I’m late jumping in on this one.

Admittedly, I have not read the briefs, I have not read the transcripts of oral arguments.  I did skim the relevant part of Defendant’s brief.  D’s lawyer doesn’t really argue that D had a first amendment right to take upskirt photos, though that is how it has been interpreted and argued over on the interwebs.  Her argument is basically an overbreadth argument, that prohibiting this upskirt photo would prohibit constitutionally protected speech.  She bolsters this with several examples of ostensibly “protected” upskirting.

No constitutional right is unlimited; every right is subject to some degree of restriction.  Mark Bennet lays out a persuasive argument (better than the brief does, though who knows what she actually said) that the statute is unconstitutional, but it is not as iron clad as he suggests.  First, his analysis asserts that the restriction is content based, but thats not necessarily a foregone conclusion.  To spin his example, photographing butts is not pre se restricted, the time, place, and manner in which butts are photographed is.  You can photograph all the butts you want, so long as there is no reasonable expectation of privacy or you have consent.  Furthermore, he asserts that this upskirting is not “historically unprotected speech.”  There is at least a colorable argument that upskirt photos are obscenity, which is not protected speech.

More interesting is this debate over whether the argument should have been made.  The first amendment argument seems like a red herring to me.  This case is really about statutory interpretation: whether this conduct is actually prohibited by this statute, regardless of whether it can be prohibited.  This focus is clear from the brief, which is mostly about statutory interpretation.

Furthermore, even if the constitutional argument is the “correct” argument, it is distasteful.  Granted, as Scott and others opine, that doesn’t justify the attorney deciding from that point “the argument offends me so I won’t make it.”  However, it is reasonable to decide “this argument will offend the judges and distract them from my better arguments, so I won’t make it.”  And as I have already noted, there are much more persuasive arguments to be made here.  The statutory interpretation argument is a winning argument.  There is no reason to get bogged down arguing for a constitutional right to engage in behavior that is creepy and disturbing.

The First Amendment argument is at best a sideshow.  It merely serves to distract from the real issues in the case.

No Crime Too Small

I read this story on Ars Technica today.  Here is the original news story.  A man plugged his electric car into an outlet outside his son’s school, and is now being prosecuted for theft of the electricity.

I could understand if he had been doing this on a daily basis over a period of months or years, racking up hundreds of dollars in electric bills.  He was plugged in for 20 minutes, drawing maybe 3 cents in power.  As noted in the article, many people use publicly accessible outlets to charge devices all the time.  Under the logic applied here, every single one of those people are criminals.

The other thing to note here, this isn’t just one cop going overboard.  This guy is being charged with a crime, so a prosecutor looked at this and decided it was worth the time and money to prosecute, and then a judge looked at it and decided there was probable cause.  All over 3 cents in electricity.