Author Archive for Jonathan Lurie

Narcos: Pablo Escobar’s Brother Threatening to Sue Netflix for $1B

The brother of infamous drug kingpin Pablo Escobar–the 71-year-old Roberto de Jesus Escobar–has been in an ongoing legal battle with Netflix for almost a year now. Roberto Escobar took issue with Netflix’s semi-biographical show about his brother’s operations Narcos and claimed unspecified intellectual property violations to the tune of an incredible $1B. What’s more, Mr. Escobar demanded that Netflix allow him to review all future episodes of Narcos for accuracy and give a yes or no on the episode. Since the initial demands, Mr. Escobar’s claims have been refined a bit to mostly cover copyright and trademark issues.

This dispute has been catapulted back into the public eye in the last few weeks for two reasons. First, the lawyers for Narcos Productions, LLC–part of Netflix in charge of the show–have challenged a number of trademarks filed by Mr. Escobar on both “Narcos” and “Cartel Wars.” These challenges aren’t particularly surprising given the success of the show and the spin-off mobile game “Cartel Wars;” as well as how weak Mr. Escobar’s claims are. Second, the murder of a location scout for Narcos while in Mexico a few weeks back.

Escobar has been extremely critical of the Narcos show, saying that the show is apparently riddled with inaccuracies and lies. He expressed extreme anger over the show, saying “They are playing me without paying. I am not a monkey in a circus, I don’t work for pennies.” Since the murder of the Narco’s location scout Carlos Portal, Escobar has been coy about the topic. He described filming without authorization of Escobar, Inc. as “very dangerous…especially without our blessing. This is my country.” He has also said that he will “close their little show” if Netflix does not pay him the money he asked for. However, despite these veiled threats, when Escobar’s attorneys were asked about the situation they only said that they had no comment except “Escobar Inc. cooperates with all law enforcement.”

While Escobar’s approach to the situation might be a bit intimidating, it has not cause lawyers for Narcos Productions, LLC to back down much at all. After his initial $1B demands, Escobar went out and applied for trademarks on “Narcos” and “Cartel Wars” on a laundry list of goods and services. Downloadable ringtones, sunglasses, temporary tattoos, sheet music, sunglasses, yoyos, websites, video games (online and offline), board games, Christmas tree ornaments, snow globes, protective pads for skateboarding, basically everything under the sun. This list just scratches the surface of the immense list of uses Escobar claims to have made on the phrases “Narcos” and “Cartel Wars” prior to the show coming out. Netflix has responded in a letter and they are not impressed.

narcosA few months back, Netflix sent a letter to Escobar demanding that he cease use of and abandon his trademark applications for “Narcos” and “Cartel Wars.” This letter has been more recently accompanied by filing an objection to Escobar’s trademark applications a few weeks back, part of an official process of opposing trademark applications going through the U.S. Patent and Trademark Office. While the opposition is not currently readily available to read, one must imagine that it mirrors at least some of the objections they raised in their original letter to Escobar–primarily fraud. With so many goods and services claimed Netflix argues that many of them are simply untrue, fabrications by Escobar. For example, Escobar claims that he first began operating Narcos websites and offering online game services on January 31st of 1986–before the internet was readily available for consumer use and long before online gaming existed in any shape or form. The letter also points out that the specimen used in Escobar’s registration (a word used for the example of the mark provided with a trademark application) is nearly identical to the logo Netflix uses for its show–so much so as to imply copying.

Escobar himself seems to believe that he will still come out on top in his fight with Netflix. His attorneys have indicated that Netflix may be able to reach some settlement and Escobar himself has said that this means that they accept that he rightfully owns the trademarks he has filed for. This is simply not the case, settlements can come for any number of reasons, including simply avoiding the costs of challenging Escobar’s marks. This is especially true because almost no case in law is a guaranteed slam dunk victory. Let’s take a look at how copyright and trademark law would apply to Mr. Escobar’s claims and see just what kind of case he is likely to have against Netflix

Understanding Escobar’s Copyright and Trademark Cases

To start with, let’s look at the copyright claims here because they are by far the weaker of two weak cases. In order to be valid, a would-be copyright must be original and fixed in a tangible medium.  Originality is fairly low standard, requiring only minimum creativity.  For example, a creative arrangement of phone numbers in a telephone book would be enough to qualify. Fixation only requires you to store your work in a medium that can be perceived, reproduced, or otherwise communicated.

Today, copyright protection attaches as soon as you place an original work in a fixed medium—allowing you to stop people from using your work without permission and sue them for actual lost profits based on their actions. Registration provides you with a presumption of validity for your copyright and the ability to sue for statutory damages—which nearly always exceed your actual loss.  However, there is no copyright available for facts. This is for the obvious reason that it would be an absolute mess if one party could own the rights to publish the truth.

With this in mind, Escobar has very nearly no claim for copyright. Not only has he presented absolutely no work which Narcos might have infringed. Narcos is ostensibly a biopic based on the factual life of Pablo Escobar.

Escobar’s trademark claims have slightly more potential. Trademark law is designed to protect the public from confusion as to the source of a good by providing a protected indicator of the source of a good. While trademarking the name of a show with only a few seasons based only on the show is often not available, you better believe merchandise and paraphernalia can be protected by trademark. Generally, trademark protection is gained through registration. However, if somebody used a mark in commerce before you registered your mark, they’ll still have superior rights to yours in the geographic locations they can prove they used their mark prior to you. This will also be limited to the types of goods and services they actually used in commerce prior to your registration. Damages in a trademark infringement case can include profits attributable to infringement (in particularly bad cases of infringement), actual loss of sales or goodwill due to the infringement, and the reasonable rate for a license to the plaintiffs trademark (calculated via the value of the mark when infringement began and presuming both parties agreed the defendant was infringing). These damages can be tripled in cases of willful infringement-situations where the infringer knew of the mark and still violated it.

It’s unlikely Escobar has really used the phrase in all the ways he says he has. However, if he has used them and can establish that use he will have some rights as a prior user–rights he could assert against Netflix.

What are Escobar’s Chances?

Is Escobar going to get a billion dollars from Netflix? No, he’s not, that’s silly. Frankly the number seems pulled from the air and has essentially no basis besides being a nice round number. However, a settlement is far from out of the question. It’s very common for companies to cheaply settle a lawsuit that has even a small chance of success instead of dealing with the risk and expense of pursuing the suit to its completion. However, it might be a little early to expect a settlement at this point.

While Escobar’s trademark applications are still live for now, Netflix is still in the process of an initial challenge to the marks. The opposition itself is quite recent and is unlikely to be resolved for a month or two at the least and a year or more at the most. Until this gets resolved, it seems unlikely there will be a settlement unless it is quite favorable to Netflix. Any copyright claim from Escobar is essentially D.O.A. and even his trademark applications, while not completely without potential, seem riddled with issues that would prevent his registration.

While it hasn’t been brought up by either side, if brought in the right place a right of publicity claim may have some traction for Mr. Escobar if brought on behalf of his brother’s estate. Right of publicity is the right to your own name and image. However, it would have to be the right place because almost everywhere except for California offers no right of publicity after death.

No matter the cause of action, Escobar’s claims here are very thin despite his threats and bravado. While Netflix may yet settle, it won’t be because Escobar has a strong chance of winning any lawsuit against them.

Big Pharma Penalized, U.S. District Courts Rules in Favor of Maryland’s Price-Gouging Law

Pharmaceuticals have not been enjoying the greatest couple years when it comes to the court of public opinion. From Martin Shkreli’s infamous price jacking to recent price fixing convictions against Heritage Pharamaceuticals CEO Jeffrey Glazer, the hits have kept on coming as pharmaceutical scandals come out of the woodwork. Now, pharmaceutical companies have taken a hit in District Court as a judge has handed the first round victory to an anti-price gouging law out of Maryland targeting generic pharmaceuticals.

Despite the many instances of abuses on the part of pharmaceutical companies in the last few years, Congress has been slow to take any meaningful action on the issue. This has left the states to take action on their own and Maryland’s law–taking effect on October 1st just a few weeks back–is the first successful law of its kind.  However, pharmaceutical interests were very keen to see that was not the case. After the law was passed back in May, the Association for Accessible Medicines (AAM)–a group of generic pharmaceutical companies–quickly challenged the law as unconstitutional and sought a preliminary injunction to prevent the law from taking effect while their lawsuit was ongoing.

While the recent district court ruling shot down the potential of an injunction, the lawsuit is still far from over. Let’s take a look at the details of the statute out of Maryland, the AAM’s challenges to the law, the ruling of the court, and the trends of similar laws across the country.

big pharmaUnderstanding the Maryland’s Statute

The price gouging law, passed with a substantial bipartisan majority, is focused exclusively on off-patent and generic medications. It does not apply whatsoever to name brand drugs under patent protection.

It’s primary provision allows for Maryland to look into claims of unconscionable increases in the prices of generic medication. Where such an increase is found by the attorney general of Maryland, a fine of up to $10,000 can be levied against the manufacturer or distributor for each violation. The attorney general can also require companies to return money to consumers lost as a result of price gouging, order a stop to price gouging activities, an require a drug manufacturer to make a drug available to Medicaid participants at the pre-gouging price for up to a year.

In pursuing these investigations, the law allows the attorney general to require the accused company to produce records and justify their price changes. An opportunity to explain their increases is generally required under the law before levying fines. The information given in these explanations is held confidential by the attorney general where necessary.

The exact amount or percentage increase that would constitute “unconscionable” is not precisely defined in the law. However, “unconscionable” is far from a new legal concept and is often brought  up in the context of contract law as a situation where terms are so egregiously unjust in the favor of a party with greater bargaining power that a reasonable person would never agree to them. For example, where a life saving medicine is made incredibly expensive-beyond all market forces-but a purchaser has an option of either paying that price or suffering extreme consequences. This ambiguity when it came to the term unconscionable was central to AAM’s challenge to the law.

What are the AAM’s Arguments for Unconstitutionality?

AAM, as generic drug manufacturers, obviously didn’t care much for the law. Their challenges, however, were not frivolous attempts to slow down its progress. They made two primary arguments. First, the law overreached Maryland’s bounds by effecting potential pricing in states beyond just Maryland. Second, that the law itself was unconstitutionally vague.

The first argument hinged on a fairly uncommon argument in this day and age-the dormant commerce clause. The commerce clause is the power of the federal government to regulate commerce involving multiple states. However, in its current interpretation, the dormant commerce clause is a product of this power which prevents states from passing legislation which favors one state over the other. The dormant commerce clause also requires a balancing test where a law places a burden on commerce between states. However, it is exceedingly rare to see a law struck down on this basis in recent history. What’s more, merely burdening interstate commerce faces a much less rigorous test for constitutionality than favoring one state over another in a law.

The second argument, that the law was void for vagueness, pointed at the lack of concrete definition to the term “unconscionable” and said that the law was unconstitutional because manufacturers couldn’t know when they were violating it. In general, a law is unconstitutional were it doesn’t give the public notice of when they are violating it, impinging on their constitutional due process rights.

What was the District Court Ruling?

In deciding on the case, the District Court did several things which amount to handing a rousing victory to Maryland. First, it denied all injunctions and allowed the law to go forward as planned. Preliminary injunctions require, among other things, a showing that the plaintiff is particularly likely to succeed. The court just didn’t think that likelihood was here for AAM.

Second, the court outright dismissed AAM’s claims regarding the dormant commerce clause. They ruled that the law applies neutrally to all interstate commerce and thus the argument held no weight.

However, it wasn’t a clean sweep for Maryland here. The court didn’t rule in favor of AAM’s vagueness argument, but they did allow litigation on the issue to go forward. The judge felt the arguments were reasonable enough to bear fully exploring. Even then, the judge went out of his way in his ruling to note he didn’t think the arguments were necessarily winning ones.

This case is far from over. Even with the vagueness argument making its way through the ruling, AAM have already made it clear that they look to appeal and believe their case will succeed in the higher courts. For now though, it’s a victory for Maryland and the price gouging law will continue as planned.

Good News: Maryland’s Law is a Growing Trend

Maryland’s price gouging law may be the first to be passed, but it looks to be part of a concerted effort by the states to address this issue where the federal government has not. 36 states have introduced, if not passed, nearly 200 bills related to pharmaceutical pricing in the last year. Nevada passed a law in June, a month after Maryland, which requires drug manufacturers to release price and profits on insulin every year. Ohio has an upcoming vote on a law which would make it illegal for the state and its agents to buy drugs at a higher price than the U.S. Department of Veteran Affairs.

At least for Maryland’s law, AAM and a few others have criticized it for targeting generic drugs. They say that generic drugs are driving down medical costs and going them doesn’t make sense. However, this argument is a bit tone deaf in the of the off-patent Daraprim being the very drug at the center of Martin Shkreli’s infamous price hikes.

Regardless of how you feel about Maryland’s law, there’s little question that price gouging on necessary medications is an issue to be addressed. Living with an illness such as diabetes in difficult enough without wondering whether your insulin may suddenly skyrocket in price. For now, Maryland has won this round. However, this is a trend to keep an eye on–both out of the states and the federal government.

Understanding Gun Rights and Laws in Light of the Las Vegas Tragedy, Part 2: Gun Control Laws

The recent shootings in Las Vegas were the deadliest mass shooting in U.S. history. Mass shootings are not always well defined, some definitions require deaths, some injuries. Regardless of how you define them, the U.S. has more mass shootings than anywhere else in the world. When defined as incidents where more than four persons are shot and/or killed in a single incident, there have been over 270 incidents in the U.S. in 2017 alone–close to one per day. Statistics like these, in the face of such a devastating tragedy, have naturally given rise to questions about gun laws in the U.S.

Earlier this week, we’ve discussed the rights granted by the Second Amendment-and especially how the last few years of Supreme Court rulings have drastically expanded the individual right to bear arms. Essentially completely reinventing the constitutional right from an extremely limited one–basically just limiting the federal government–into something that applies to both individual citizens and the separate states.

Gun violence is a serious problem in the U.S. However, these recent changes have had an enormous impact on the type of gun control laws deemed constitutional. Steven Paddock, the perpetrator of the Las Vegas shootings, had dozens of legally purchased guns in the hotel room from which he opened fire on concert-goers. He tried to buy tracer ammo–pyrotechnic ammunition which leaves an illuminated trace of its path–at a gun show just a few weeks before the shooting. Mr. Paddock was prevented from using this ammo for his massacre not by gun control laws, but because the vendor he attempted to purchase the ammunition from had already sold out.

gun controlAuthorities have no motive for the shootings, but believe Paddock had serious undiagnosed mental issues. However, with no documented mental health issues and no criminal history, the gun laws of California and Nevada allowed Paddock to purchase all of these guns, over one and a half thousand rounds of ammunition, and fifty pounds of explosives. With this in mind, it’s no surprise gun control laws have been in the spotlight. Let’s take a look at how gun control laws are currently handled across the U.S., newer developments in gun control, and steps that might help prevent another Paddock.

Common Gun Control Laws

First and foremost, how gun control is handled will often vary substantially from state to state. Federal laws cover a fair bit–limiting the sale of some types of firearms as well as how firearms can be sold. For example, there are federal limitations on sales across borders and through the mail. There are also federal limitations on sale of firearms to people with mental illness, felons, non-citizens, and minors. These laws can also punish somebody for a sale where they have reason believe the purchaser falls into one of these categories. However, every state except for California, Iowa, Maryland, Minnesota, New Jersey, and New York have an independent right to bear arms in their state constitution and their own set of laws that effect the sale, ownership, and carrying of guns–often even expanding on the federal restrictions discussed above. That being said, despite the variations in gun control laws, there are some common rules that a large portion of the states have in force.

Permit and registration requirements are one of the most common limitations placed on gun purchase and ownership. Some states even require gun safety classes prior to purchase and ownership. Waiting periods, a delay between purchase and picking up a gun, are another common restriction with the goal of avoiding heat of the moment crimes. Some states also require a background check before allowing somebody to purchase or own a gun. While federal laws limit sale and ownership of assault weapons–generally defined as semi-automatic weapons capable of holding more than 10 rounds–state laws have also commonly limited some types of assault weapons along with sawed-off shotguns and silencers.

Many states also don’t allow people to carry concealed weapons in public, although that’s far from a hard and fast rule. What is a rule in almost every state, however, is a ban on use and possession of guns in and around schools and government buildings. Some states ban guns in areas that serve alcohol.

It is also common for states to have laws which make it a crime to purchase a gun for somebody else–usually known as straw purchase laws.

These are common laws, but it really only scratches the surface-each state has its own complicated set of laws. What’s more, the changes in the Second Amendment have led to an unprecedented number of constitutional challenges to gun control laws. The Supreme Court expanded the rights of the Second Amendment to individuals and applied them to the states as well as the fed just in the last few years. This has seen a good number of changes in established gun control laws.

Gun Control After Recent Supreme Court Rulings

In the wake of the Supreme Court’s changes D.C., the area whose laws first got overturned by the Supreme Court, has revisited many of their gun control laws. While they found that registration procedures, bans on assault weapons and high capacity magazines, required safety training courses, as well as fingerprinting and photo id requirements did not violate the Second Amendment, they knocked out a slew of other requirements–making guns available for inspection once every three years and making gun owners pass tests on firearms laws among other things. Just a few months ago, D.C. ruled unconstitutional its requirement that limited concealed carry permits for handguns to those who could demonstrate a good reason to the chief of police.

This sort of limitation on concealed carry has been a fairly common target for constitutional challenge in the last several years. For instance, the Seventh Circuit has fairly recently ruled that the Second Amendment protects individual citizens right to bear arms in public as an extension of the right to self defense–ruling a concealed carry ban in Illinois was unconstitutional. On the other hand, the Second Circuit and the Fourth Circuit have both upheld permit-only concealed carry laws.

Other gun control rules that have been upheld in the face of constitutional challenge include prohibitions on minors owning or receiving guns, restrictions on guns in schools or government buildings, straw purchase laws, and restrictions on felons owning guns.

On the other hand, courts have overturned convictions for possessing a firearm after a conviction of misdemeanor domestic violence–challenging long-held limitations on owning guns after felonies and violent misdemeanors. The Ninth Circuit has also extended the new Second Amendment rights to the ability to buy and sell firearms–ruling unconstitutional limits on opening gun stores within 500 feet of residentially zoned districts, schools, day cares, liquor stores, or other gun stores.

There has also been some debate over exactly how strong the new Second Amendment right is. In constitutional law, laws facing constitutional challenge are held up to different levels of scrutiny. Where basically no constitutional right exists rational basis–an extremely low bar–applies. More powerful rights face intermediate or strict scrutiny–requiring narrow tailoring and important government purpose behind a law. Courts have been split over exactly which level of scrutiny to apply, intermediate or strict scrutiny. Regardless of the level of scrutiny the courts ultimately decide on, the changes over the last few years have seen specific targeting of provisions that limit the sale of guns as well as background check and permitting requirements–the sort of limitations that could potentially slowed down somebody like Mr. Paddock.

Limiting Gun Control in the Face of Gun Violence

The changes in how the Second Amendment works in recent years have given rise to an enormous number of challenges to gun control laws across the nation, while the vast majority have not succeeded the challenges that have succeeded call into question limitations on sale and ownership beyond the most well established such as mental disability. This is unfortunate, because these are potentially the most effective types of gun control in the face of a situation such as the shootings in Las Vegas. With a shooter with no recorded mental disability or criminal record, you have to rely on background checks, safety tests, licensing requirements, reporting and registration requirements, etc to help identify potentially dangerous patterns of purchasing firearms and identify people who might be dangerous with a firearm in their hands. Even the restrictions on types of guns, while important, wouldn’t have helped in this case as Paddock modified otherwise legal guns with illegal modifications which made his guns fully automatic.

The obvious flip side to the importance of reporting and permitting requirements is that, given the existence of an individual Second Amendment right which applies to the states, putting this sort of yes or no power in the hands of the government has serious constitutional concerns. That being said, the U.S. has a gun violence problem–period. We need to consider the steps that can be taken to avoid another Las Vegas. We need to focus on what will be most effective at encouraging responsible gun sales and ownership, as well as cracking down on illegal gun running and modification.

Understanding Gun Rights and Laws in Light of the Las Vegas Tragedy, Part One: The Second Amendment

The last week has seen an incredible tragedy in Las Vegas. It’s hard to imagine there are many who have not already heard of the incident. However, for those who have not, on October first a gunman opened fire on a music festival in Las Vegas-shooting concert goers from his room on the 32nd floor of the Mandalay Bay Casino and Resort. As of now, reports place the mass shooting as the deadliest in U.S. history with 58 people killed and 489 injured.

The shooter, Steven Paddock, took his own life after the shooting. Mr. Paddock was a 64-year-old white man. A successful accountant who, according to his family and girlfriend, showed no prior signs of a desire to commit violence before this shooting. Law enforcement has been unable to determine a motive for the heinous acts. However, authorities have reported that they suspect he had undiagnosed mental illness-citing standoffishness in his relationships with others and long days of gambling without human contact. Police also found extensive notes in Mr. Paddock’s apartment, mostly of mathematic calculations regarding distance and trajectory of shots from his hotel into the unsuspecting crowd. However, none of these notes have helped determine Mr. Paddock’s motive.

While learning a motive may help unravel the series of events here. It will ultimately do nothing for Paddock’s many victims. People as young as 20 and as old as 67–teachers, fishermen, nurses, and more–all struck down on a whim by somebody with a high-powered arsenal of guns. Paddock had over 20 guns with him in his hotel room. These guns were mostly rifles and were often modified so as to have fully-automatic firing capabilities. He also had over 50 pounds of explosives and over 1.5 thousand rounds of ammunition. With no limit on the number of firearms which can be owned, all these guns-if not the modifications made to them-were perfectly legal. With no issues in his background, there was nothing to stop Mr. Paddock from purchasing the tools he used for his killing spree at shops all around California and Nevada.

second amendmentNot surprisingly, this horrible tragedy has sparked renewed conversation about how we handle firearms in the U.S. It is an undeniable fact that there are more mass shootings in the U.S. than anywhere else in the world. We’re 31st in gun violence of all countries but far and away first in gun violence among the most developed countries in the world. This is at least partly due to the fact that we simply have more citizen-owned guns per person than anywhere else-we’re less than 5% of the world’s population but have about 50% of the world’s citizen owned guns.

Many have spoken out about Mr. Paddock’s ability to legally gather such an armory and put it to such awful use. The cries for strengthened gun control have been louder than ever-for limits on the types, numbers, and modifications that can be made to personally owned weapons along with more in-depth reporting requirements. On the other side, gun rights advocates say that such limitations would violate their Second Amendment rights.

There are valid questions of what sort of gun laws are constitutional, as well what sort of gun laws could responsibly have prevented this sort of situation. Many states have different approaches to how guns are handled, from reporting requirements to limiting types of guns such as fully automatic rifles. In order to understand how such laws can be applied, we need to understand the purpose and rights granted by the Second Amendment of the Constitution as well as how gun control laws are handled at a constitutional and state by state level. These are both enormous topics to undertake, so we’re going to have to split them into two separate articles that broadly cover how these topics work. We’ll start by looking at the right to bear arms itself.

The History and Protections of the Second Amendment

The Second Amendment of the U.S. Constitution says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This has long been touted as a right for citizens to own guns or other armaments. However, for the vast majority of U.S. history this has not been the case.

In 1876, the Supreme Court ruled that the Second Amendment didn’t even apply to the states but only to the federal government. The year before, in 1875, the Supreme Court dismissed charges against white men who had killed over sixty black people when they were charged with conspiring to prevent black people from exercising their Second Amendment rights. The Supreme Court said there was no case because the Second Amendment restricted Congress, but granted no rights whatsoever to private individuals.

The Supreme Court has not rendered many decisions about the meaning of the Second Amendment. In 1876, the Court ruled that the Second Amendment only applies to limit the federal government. This means that the rights that are granted by the Second Amendment can be limited by state governments.

Laws restricting the use, sale and public carrying of guns (especially concealed carrying) were consistently upheld for over a century. While this was the case, the exact rights granted by the Second Amendment were a topic of debate in the public but quite consistently not granted to individuals in the courts. In 1939, the Miller case further explained the outlines of the Second Amendment. The Supreme Court clarified that the Second Amendment did not guarantee an individual constitutional right to citizens of the U.S. Instead, the Amendment prevents Congress from taking away a states right to self-defense by limiting their ability to maintain a “well-regulated Militia.” Even then, many restrictions on firearms were allowed as irrelevant to the preservation and efficiency of a well regulated militia.

This was the established limits of the Second Amendment for decades to come until quite recently, in 2008, the Supreme Court changed these contours through a case known as Heller. The Heller ruling-as part of rejecting a DC total ban on handgun ownership-reinterpreted the Second Amendment to grant an individual right to possess firearms-even if that possession wasn’t in connection with service to a militia-for lawful purposes such as self-defense within your home. However, the ruling also made it clear that this right was far from an unlimited right to carry any weapon for any purpose. Concealed weapons prohibitions were specifically described as constitutional; longstanding prohibitions on gun ownership such as for particularly dangerous weapons, restrictions on sale, limitations in regard to felons and mentally ill persons, reporting requirements, and limitations on bringing guns to places like schools and government buildings were also specifically described as constitutional. More broadly, longstanding restrictions were discussed as unaffected by the Heller decision. The individual right was largely hinged on the right of self-defense especially when in the home.

The Second Amendment and Stopping Gun Violence

The truth is, it is very hard to stop a person from getting guns-after all there’s more guns than people in the U.S. We’ve seen that Mr. Paddock purchased all his guns legally and then illegally modified them to make them even more deadly. Background check and registration requirements didn’t stop a man with no criminal record or mental health history from purchasing an enormous amount of guns with which to commit an atrocity. So what steps can we take within the U.S.’ current constitutional framework?

With the current state of the Second Amendment, gun control laws are harder pressed than ever. However, the truth is that there is quite a bit that can still be constitutionally done. Registration requirements are generally considered part of the constitutional longstanding limitations. A man such as Paddock can purchase legal guns and modify them to be much more deadly than purchased. So how can we stop this sort of thing? More thorough background check requirements-after all we require a license to drive a car-could be extremely useful. Reporting requirements when traveling with firearms, rules on storage, and a serious crackdown or firearm trafficking are all steps which could also have maybe averted this tragedy.

However, in order to understand what legislation could help the U.S.’ gun violence epidemic, it is necessary to fully understand how gun control laws are generally treated both at the federal level and among the states-understanding what the Second Amendment allows is only the first step. Later this week, we’ll take a look at how these laws are treated and think about what steps could be taken towards responsible, effective gun control laws.

Massachusetts Rules Field Sobriety Tests Can’t Prove You’re High While Driving

As marijuana–either medical or recreational–has seen increasing legalization across the country, the implications of that legalization have led to any number of legal concerns. One of the chief among those has been how police officers will be able to establish that somebody is intoxicated for the purposes of a driving while intoxicated (DWI) charge. Out in Massachusetts, there has finally been a ruling on the issue. However, it has made it even more difficult than ever before for Massachusetts police to prosecute somebody for driving while high.

Massachusetts approved the “”possession, use, distribution, and cultivation of marijuana,” recently. The legalization, taking effect January 1, 2018, is conditioned on regulating marijuana in the same vein as alcohol. Stores selling marijuana have been pushed back to June 2018 over concerns over lack of legal preparation to deal with widespread legalized marijuana.

The Massachusetts Supreme Judicial Court made a ruling last week which, in some ways validates these fears.  They have ruled that-for the most part-the usual field sobriety tests can’t be used as evidence that somebody is driving under the influence of marijuana.

sobriety testMr. Gerhardt’s Sticky Situation

The case itself dealt with a man named Thomas Gerhardt. Mr. Gerhardt was pulled over for not having his lights on. However, once he was pulled over the officer reported smelling burned marijuana from his car. When asked if he had marijuana, Mr. Gerhardt responded that he had a couple of marijuana cigarettes in his ashtray-pointing to a couple of mostly consumed marijuana cigarettes. When asked when they were smoked, one passenger said about twenty minutes prior while Mr. Gerhardt said around three hours ago. When asked how much marijuana he had smoked, Mr. Gerhardt replied about a gram.

The officer had Mr. Gerhardt perform several field sobriety tests, standing on one leg, the heel-to-toe walk test, following a finger with his eyes, and reciting the alphabet. For the most part, Mr. Gerhardt had no issues with the tests. However, he was incapable of understanding the instructions of the walk and turn test despite several explanations. In the end, he was incapable of performing the test properly, walking normally instead of heel-to-toe. He was also unable to stay balanced while standing on one leg. The officer took this to imply that that Mr. Gerhardt was impaired by marijuana. This led to charges of driving while under the influence of marijuana-obviously still a crime regardless of legalization.

However, Mr. Gerhardt’s attorneys challenged this evidence. They argued that the tests are fine for establishing that alcohol has impaired a person’s ability to drive but aren’t suited to testing how impaired a person is who has smoked marijuana. After all, a DUI doesn’t happen just because you’ve drank-it’s because you’ve drank to a point of impairment agreed upon to be over .08% BAC after much scientific testing. By the same token, the crime of driving under the influence of marijuana is due to the impairment from the marijuana. But to be guilty, that impairment must be established. The Massachusetts Supreme Judicial Court felt that the research on the correlation between these field tests are being impaired by marijuana just wasn’t there yet.

Scientific Tests as Evidence

There is a strong, well scientifically tested, relationship between these field tests and impairment due to alcohol consumption. That scientific testing simply hasn’t happened when it comes to marijuana. Without diving too deep into the issues of evidentiary law, anything that tends to prove any fact of consequence to a case-or provide a link in a chain towards doing this-is relevant and admissible evidence barring several exceptions.

Scientific tests have the potential to be considered more weighty than they actually are due to a bias towards accepting the validity of such tests. Scientific evidence must be based in sufficient evidence and be a product of reliable principles and methods. This evaluation has largely replaced a previous test requiring the acceptance of a scientific test by the scientific community at large. However, in practice, both tests can be thought of similarly. To be admissible, a test needs to be generally accepted by the scientific community to produce reliable results on an issue. The court didn’t think these field tests had been suitably vetted by the scientific community when it came to marijuana impairment.

In fact, there is quite a bit of disagreement in the scientific community over how effective tests like this are when it comes to detecting marijuana impairment. This is partially because marijuana’s effects vary enormously from person to person. Marijuana also operates very differently from alcohol, so the same tests may not produce as concrete results. Either way, the potential for a jury to look at these tests and weigh them too heavily made their use to prove impairment inadmissible.

How These Tests Can Be Used

This doesn’t mean these field tests can’t be admitted. It just means they can’t be relied on as evidence of actual impairment. They can still be used to show balance, coordination, mental acuity, etc. What’s more, the court ruled that a jury can still use their common sense to translate this into whether somebody was impaired. An officer could testify to appearance (red eyes, etc.), behavior or demeanor, but they couldn’t say somebody was impaired or “high.”

What’s more, under the ruling, no officer or expert could testify that somebody passed or failed such a test as that would imply the test had scientifically conclusive results. Similarly, a witness could not say somebody was or was not impaired based on the results of a field test. In fact, a witness couldn’t even call the field tests a “test” in the first place as this would imply scientific credibility.  Essentially, the ruling says that, no matter what, it must be crystal clear that field tests have no ability to directly test for marijuana impairment.

A Complicated Practical Issue

This ruling makes sense, the scientific research isn’t there to support using field tests to determine marijuana impairment. However, the ruling also highlights a serious issue. State marijuana legalization is becoming more widespread as more and more states vote for medical or recreational legalization. Along with this will come a greater need for law enforcement to be prepared to deal with situations such as pulling somebody over for driving under the influence of marijuana. We’ll need tests sooner rather than later to judge impairment where we can’t use a breathalyzer or similar device to reliably establish how impaired somebody is. Even then, such a device assumes that each person is equally impaired while studies show widely varied effects of marijuana on different people. The law and the technology of the law has some catching up to do–and it needs to do it fast.