Archive for the 'Court' Category

So How About that Wall?

President-elect Donald Trump made building a wall on the US-Mexico border a pillar of his campaign. Post-election interviews reveal he intends to keep and act upon this campaign promise. No matter one’s opinion on whether building such a wall is right course of action, there are many practical concerns to be addressed.

How Big and How Expensive will it be?

The US-Mexico border is 1,989 miles long and the President-elect has proposed 35-foot-tall walls. As far as cost, some good estimates can be made as US Customs and Border Protection already began building some fences in 2007 and the Government Accountability Office released a report on the costs and issues faced. The GAO reported that the amount of fence constructed already has cost up to $5 million per mile. Basic math then tells us that this could cost $10 billion just for a fence along the entirety of the border. However, the President-elect has promised a “wall”, this may prove to be even more expensive. Furthermore, the current work was done to tackle areas of public land first to avoid dealing with private land owners. Eventually, the government must either get permission to build across private land or take the land through a process called eminent domain.

How will the Government Get the Land?

TrumpCan the government really take land from private land owners? Yes, it can, both state governments and the federal government may do so. The Constitution specifically allows the government to do so as long as they pay fair market value for the land. That is, if the government wishes to seize the land and the owner refuses to sell it willingly the government may seize it against the owner’s wishes as long as the government pays fair market value.

Another requirement is the seized land must be used for some public purpose. This mean that eminent domain cannot be used to seize land for purely private purposes. For example, a state governor could not use eminent domain to seize land for their friend to build a private home on the land. On the other side, clearly public uses are easily approved, such as seizing land for public utility purposes like electricity poles and telephone cables. Many projects fall in the middle of this spectrum so the legitimacy of eminent domain is questionable in these areas. However, Supreme Court cases on this issue though have found this to be almost a non-issue. In particular, the Supreme Court case of Kelo v. City of New London rendered this issue almost unimportant. In Kelo, the city of New London, Connecticut wished to seize Ms. Susette Kelo’s home so that the headquarters of a private company could be built on the land. While Ms. Kelo asserted that this was a private use, the Supreme Court disagreed. The ruling in Kelo has set precedent that questionable eminent domain takings will usually be upheld by US courts.

Overall, a border wall would likely not encounter any issues with eminent domain. It’s clearly for a public purpose, national security and immigration. With this hurdle passed, the only issue would be fair market value for the land. US Customs and Border Protection has already estimated this cost to be about $800,000 per mile.

Is This Already Happening?

Yes, it is already happening. When US Customs and Border Protection began building these border fences in 2007 they needed some private land that is on the US-Mexico border. Many land owners willingly sold their land, while others chose to fight the taking in court. Unfortunately for the land owners, courts consistently ruled for the federal government. This very thing happened when US Customs and Border Protection needed Dr. Eloisa G. Tamez’s ancestral land to build a border fence. Dr. Tamez took the federal government to court. In 2013 a US court ruled that US Customs and Border Protection could take Dr. Tamez’s land that had been inhabited by her family since 1767. Dr, Tamez’s case is not unusual and similar incidents are very likely to occur if the President-elect carries out his campaign promise.

Is This Really Going to Happen?

It looks like the President-elect’s plan is entirely possible and plausible. The federal government would likely be able to acquire any border land it needs for the wall through eminent domain. The only hurdle would be the cost, which would have to be set aside by Congress. However, this likely will not be an issue either as Congress has consistently approved funding for border fencing and border patrols. Overall, if the President-elect decides the act upon this campaign promise there will be very little to stop him.

The Unexpected Oregon Militia Ruling and Understanding Criminal Conspiracy

Most have probably heard by now of the armed militia which occupied a federal building in Oregon. For those who have not, the cliff notes version is that a group of armed militia forced their way into the Malheur National Wildlife Refuge and stayed in the building, preventing all others from entering, for 41 days in a standoff with police. The militia stated that the occupation was in protest of the imprisonment of two ranchers for arson and the federal government’s mismanagement of land. The militia members were ultimately arrested on Jan 26th in a confrontation in which one member of the militia was shot to death.

Following their extremely public armed takeover of a federal building, it seemed certain that this militia would face—and be found guilty of—several criminal charges including conspiracy to prevent federal employees from performing their jobs through intimidation, threats or force, and firearms charges.  Of the 26 militia members arrested, 11 pled guilty to charges brought against them immediately.  However, in a shocking recent decision, the leaders of the armed Oregon militants were, all seven including the masterminds Ammon and Ryan Bundy, found not guilty of all charges—including conspiracy charges—against them. One defendant was even found not guilty of stealing federal property after he admitted in court that he took and used a government vehicle. The ruling was surprising even to the militants’ own defense lawyer, who said in interviews after the ruling that he had already been telling his clients to expect to be found guilty.

Gavel

The acquittals have led many to note the stark contrast between the treatment of those who staged an armed invasion in Oregon—cleared of all charges and allowed by authorities to leave for Chinese food and return again to the refuge—and the unarmed, peaceful Dakota Pipeline protesters—mass arrested, set on by dogs and sonic guns, horses shot by police, sprayed with water cannons on below freezing nights, tents bulldozed, and more.

Dakota Pipeline protesters have themselves said that they had considered arming, but not only believed that a peaceful protest was more effective but were certain they would all be killed if they chose to arm themselves. With this in mind, the ruling has been a source of frustration and anger for many who feel that it shows a gap between the treatment of white people and persons of color in the justice system. However, while the contrast between the treatment of the two groups is indeed notable, jurors on the Oregon militant case have come forward and said that source of their ruling was not their approval or belief in the militants’ actions but instead the failure of the prosecution to prove the elements of conspiracy

Conspiracy is Complicated.

Conspiracy is, without question, one of the most complicated subjects that exists in criminal law.  It is not hard to believe that a jury was unconvinced of all the elements of this extremely complex crime.  At its base, a criminal conspiracy is the agreement between two or more people to commit a crime.  However, the evidence required to prove that an actual conspiracy occurred goes further than this simple explanation would lead one to believe.

The most basic evidence required is the evidence that the conspiracy actually occurred; that two or more people made an agreement to commit a commit a crime. However, from this point the evidence moves to determine the state of mind of the parties when they made this agreement—a much more difficult thing to prove.

Conspiracy is a specific intent crime. This means that it must be done with the knowledge of what you are doing and the objective of completing an unlawful activity. In order to prove this, the prosecution must establish several things. First, they must show that the defendant intended to agree to commit a crime at the time the agreement was entered. Second, the prosecution must prove that the defendant intended to accomplish the criminal objective of the would-be conspiracy when they entered the agreement. If for instance, somebody agreed to rob a bank but in their own mind they actually planned to skip town the next day they would not be guilty.

To say that this can be extremely difficult to establish would be an understatement. After all, the only direct evidence of this intent would be in the mind of the defendant themselves unless they decided to write down or record that state of mind as they made the agreement.  As you might imagine, situations with direct evidence are extremely uncommon. So it is far more common to see intent proven through circumstantial evidence such as a defendant’s actions after the agreement and what the defendant stood to gain if the conspiracy was carried out

In this case, where the militants were accused of conspiracy to prevent federal employees from performing their duties, there would need to be evidence of an agreement to achieve this goal and specific intent to follow through with it. The militants argued that, while they did discuss occupying the buildings, they never actually discussed stopping any individuals from working.  Instead, they argued that they only wanted the lands and buildings themselves. While preventing employees from working seems like a near certain outcome of armed occupation of the lands, if this argument were bought it would mean they the militants never formed an agreement with the intent to commit the crime they are accused of conspiring and not guilty.

While this was likely the lynchpin of any legal determination of innocence by the jury in this case, it only touches the tip of the iceberg when it comes to the complexity of proving criminal conspiracy.  Defendants must also be established to have knowledge of the existence of the conspiracy and the illegal object of the conspiracy. In most states, they must also have been shown to have taken a substantial step towards or an overt act in furtherance of the crime that is the goal of the conspiracy. Exactly what can constitute such an act or step can vary from state to state—and a discussion of what exactly is the minimum that can constitute such an act or step could be the subject of a book—but an example might be purchasing a gun to be used in a conspiracy to rob a bank.

This may seem like a lot hoops to have to jump through to prove conspiracy, but the punishment for conspiracy requires a rigorous evidentiary standard. In a conspiracy, each conspirator is on the hook for the criminal acts of every other conspirator so long as the crimes were committed in furtherance of their conspiracy—whether they knew about them or not. There are some states where a person found guilty of conspiracy is sentenced to penalties related to, but less than, the punishment for the crime they conspired to commit.  However, in the majority of states—including Oregon—a person found guilty of a conspiracy to commit a crime will receive the same sentencing as if they had committed the actual crime.

What This Case Means for the Future.

The result of this case has shaken many to the core—from those who argue it reveals a two-tiered justice system to the Oregon federal workers who have stated that they are left in fear after what they worry could be taken as a tacit approval of the militants’ actions—encouraging further action in the same vein.

The Bundy’s, who led the militia, aren’t totally off the hook.  Even though they are acquitted, they still will not go free just yet as they also need to stand trial in Nevada for an armed standoff with authorities over unpaid grazing fees. Although, this is unlikely to do much to assuage concerns as five other militia members walk free.

The legal reality is that conspiracy is a very complicated and difficult to prove area of criminal law, it is very possible that there simply was not enough evidence to mount a fully effective case on this issue. It is even possible that the evidence was lacking when it came to firearms charges and stolen federal vehicles. That may be the legal reality, but it is unlikely to combat the perception of injustice created by the contrast between the result of this case and the treatment of protesters such as those at the Dakota Pipeline.

Arkansas Court’s Issue 7 Ballot Ban Lead to Another Lawsuit

Election Day is when new leaders are chosen and new laws are made by voters. That is why it is imperative that various government entities afford voters an opportunity to be well-informed on the matters and candidates that they are voting on. However, three voters in Arkansas have felt that they were not properly informed when they cast their ballots and filed a lawsuit in response.

When Jim and Cynde Watson voted in Marion County, they were not informed that a provision that still appeared on the printed ballot was no longer available for people to vote on. That provision was Issue 7, a controversial state law measure better known as the Medical Cannabis Act. The Arkansas Supreme Court barred Issue 7 from being a matter to be voted on when it was determined that over 12,000 signatures were obtained improperly. However, by the time that the Arkansas Supreme Court made the decision, the ballots had already been printed and were available for people to vote. So it was up to the pollworkers to inform voters that they could no longer vote on Issue 7.

Ms. Watson had heard about the lawsuit involving Issue 7. However, when Ms. Watson inquired about whether she and her husband could still vote on Issue 7, the pollworker she asked wrongly informed her that Issue 7 could still be voted on. A small sign notifying voters that Issue 7 could not be voted on was present in the polling place, but Mr. and Ms. Watson are arguing that the sign was placed in a location where it did not grab their attention. The Watsons and their fellow voter who joined them in the lawsuit over the lack of information regarding Issue 7 state that their misunderstanding over whether they could vote for Issue 7 impacted how they voted on another issue on the ballot.
Supreme Court

What Are the States Required to Tell Voters?

States are required by federal law to inform local voters about everything that they are voting on. The Help America Vote Act of 2002 (HAVA) requires states to have a formal plan for voter education to ensure that all voters have access to all of the information that they need to vote, especially with regard to measures that could become laws. As a basic part of providing voter education, states need to ensure that voters know what measures they can vote on and what measures they cannot vote on, even though the measures are still on the ballot. Informing voters about what cannot be considered on the ballot is especially important as this information can influence how a voter chooses to vote, which is what allegedly happened in Arkansas.

When the Watsons were misinformed by the pollworker as to whether Issue 7 could still be voted on, they voted in a manner that was different than if they had known for sure that their vote for Issue 7 would not count. On the original ballots for the 2016 Arkansas state and national elections, there were two measures that would lead to the legalization of medical marijuana. In addition to Issue 7, Arkansas voters were also able to legalize medical marijuana through Issue 6. However, Issue 6 did not contain a provision that would permit certain patients to grow marijuana on their own, making Issue 7 the more popular choice between the two measures. The Watsons chose to vote for Issue 7 because they preferred Issue 7 to Issue 6, and they were under the impression that they could still vote for Issue 7. If the Watsons knew that they could not vote for Issue 7, and that their only choice for legalizing medical marijuana was Issue 6, then they would have voted for Issue 6.

After the Watsons had voted, choosing to vote for Issue 7 and vote against Issue 6, they realized that the pollworker was wrong about the validity of their vote for Issue 7.  However, it was too late for the Watsons to change their votes and vote for Issue 6 instead. Out of concern that there were other voters like them who thought that their vote for Issue 7 would count when that vote was cast, the Watsons decided to file a lawsuit asking that everyone who voted for Issue 7 to be able to recast their vote with regard to Issue 6. The lawsuit also sought to change the manner in which pollworkers inform voters about the change in the ballot. Instead of merely having a small sign tucked away in amongst several other signs where it may not be seen, the plaintiffs wanted three signs clearly notifying voters that Issue 7 could no longer be voted on placed in prominent locations in each polling place. This would likely be sufficient to inform voters that, despite Issue 7’s appearance on the ballot, they could not vote on the matter.

Why This Matters, Now and In the Long Run.

Issue 6 did pass in Arkansas, thereby negating the need for anyone who voted for Issue 7 and against Issue 6 to change their vote. However, the larger issue of the misinformation shared by the pollworker and the need to improve voter education remains. By filing the lawsuit, the voters highlighted the blatant inadequacies of the current voter education system in Arkansas. Lawsuits such as this are important, as they can be the only way that impactful change is made. Regardless of the official outcome of the lawsuit, Arkansas will likely change how it informs voters about any changes made to the ballot and about any issues that can no longer be voted on.

Providing access to voter education materials and ensuring that registered voters know about what they are voting on are important duties of every state government. If you feel that you are being denied access to voter education or that your right to vote is otherwise being impeded by your state’s government, contact a government lawyer.

Nude Recordings of Minors Showering Not Lascivious Enough to Constitute Child Pornography

A Tennessee man’s sexual exploitation convictions have been overturned by the state’s highest court because his nude recordings of minors weren’t lascivious enough to be considered child pornography. Tennessee’s sexual exploitation laws are basically a reworded version of other production of child pornography laws, but unlike other states, Tennessee doesn’t consider the viewer’s intent of sexual arousal an element of the crime. Because of this distinction, a man’s recordings for his own perverse satisfaction ended up landing him a conviction for mere spying.

Thomas Whited was arrested for hiding a camera phone in the bathroom and bedroom used by his 12-year-old daughter. The phone was positioned in the bathroom to record his daughter as she prepared for a shower and after-shower bathroom activities.  The phone in the bedroom was planted just before Whited’s daughter and her 14-year-old friend entered the bedroom to change out of their bikini swimsuits into dry clothes.  The phone was eventually found by Whited’s wife, who reported her husband to the police after finding several videos of the young girls on the phone. Restroom

Whited was convicted of nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit that offense, 13 counts of observation without consent, and one count of attempt to commit that offense. Whited appealed his case to the Tennessee Supreme Court, mainly on the fact that the videos didn’t include sexual activity and, because of that, couldn’t be considered sexual exploitation under the state’s statute, nor could they be considered lascivious.

If you have an image/video of a naked individual, at what point does that photo become obscene and considered child pornography?

Many Laws Require the Presence of Sexual Activity

Typically, images are considered child pornography when there is a visual depiction of sexually explicit conduct involving a minor. That’s a pretty broad definition though, so the question comes down to how sexually explicit conduct is defined.

The federal legal definition of sexually explicit conduct, in which the Tennessee court applied their own similar definition, doesn’t require images to depict sexual activity in order to be considered sexually explicit, but rather the federal code only requires a “lascivious exhibition of the genitals or pubic area of any person.”

What does lascivious exhibition even mean, then? Certainly, a word that’s meaning is, in a way, subjective. Black’s Law Dictionary defines lascivious as,

“tending to excite lust; lewd; indecent; obscene; relating to sexual impurity; tending to deprave the morals in respect to sexual relations.”

Despite the fact that what tends to excite an individual is subjective to each person, there are general ideas of what pornography looks like. In fact, Justice Potter Stewart so famously described his threshold for obscenity as not definable, but rather,

“…I know it when I see it…”

Mere Nudity Isn’t Enough

Mere nudity isn’t enough to establish lascivious exhibition of private body areas. If you have a hard time wrapping your head around this, case law has previously pointed out the example of innocent photographs of naked children in the bathtub.  How do you know it when you see it here?  It would be hard to distinguish one from the other when you’re looking at merely a naked person.

Courts developed what they called the Dost factors, which take many things into consideration when determining whether there’s lascivious exhibition, but the Tennessee Supreme Court rejected those standards and instead they looked at comparative cases and found these considerations significant in the case at hand:

  • The level and nature of the nudity in the videos,
  • The emphasis on the minor victim’s private body areas,
  • The fact that the victims were engaged in everyday activities ordinarily performed nude,
  • The defendant’s audible comments and interactions with the victims recorded on the videos, and
  • the defendants’ recorded actions depicting his voyeurism in setting up the camera.

What did the court say? The nude recordings of the daughter showering were “everyday activities ordinarily performed nude” and because the videos didn’t appear to be focused solely on the children’s private body parts, they weren’t necessarily lascivious exhibition.

Did Whited luck out on a technicality? It’s not an issue of whether the court got it wrong, but rather a question of whether Tennessee lawmakers will be redrafting their statutes to have a more inclusive definition of what constitutes child pornography.  I imagine they will after this case.  Had the Tennessee statute been inclusive of language defining sexual exploitation or pornography to include an element of intent of sexual arousal/gratification, the issue of lasciviousness would have been moot at that point.

Marijuana is Legal for Recreational Use in Four More States; Now What?

On November 8th, California, Maine, Massachusetts, and Nevada joined the current four states and DC in the legalization of marijuana for recreational use. Some herald this as success, others decry it as a tragedy. What is beyond question is that those who do choose to use marijuana should keep in mind the limitations of the legalization measures and the continuing risks.

Possession Limits

As a baseline, all the passed measures require that you be at least 21 years old to possess marijuana. Under the new measures, there are limits to how much an individual may possess and grow for personal use. Possessing or growing more than allowed is still illegal, even under state law. California allows a person over 21 to possess 28.5 grams of marijuana, Maine allows two and a half ounces, and Massachusetts and Nevada allow one ounce. All four states allow a person over 21 to grow up to 6 marijuana plants and to keep the harvested marijuana for their personal use.

Growing Restrictions

In addition to the possession limits, there are requirements upon how you must go about growing marijuana. First, the marijuana must be for your own personal use or given in limited quantities to dc marijuana lawsothers over 21. You may not accept payment for marijuana grown for personal consumption and can only give away a limited amount. The four measures vary slightly on location requirements for growing. Overall, all four require any marijuana be grown in a place where it is kept safely out of the reach of children.

Sale and Giving Away

Both selling and giving away marijuana are addressed in the new measures. In all four states, under the new measures, you may give away, without any sort of payment, up to one ounce of marijuana. Sale is absolutely forbidden unless you follow new state licensing and regulatory procedures to become a marijuana business.

Where and When?

All four measures also limit where and when marijuana may be used. The measures all prohibit marijuana use in public, including public establishments like bars. They also prohibit marijuana use in or near premises frequented by children such as community centers and schools. None of the measures change DUI laws so driving under the influence of marijuana is still a criminal act in these 4 states.

Effective Date

Each of these measures has their own effective dates. That is, the day that the measures become law. California’s measure was quickest, it was effective the day after the election, November 9, 2016. Massachusetts’ measure will take effect on December 15, 2016. Nevada’s measure will take effect on January 1, 2017. Maine has yet to establish a clear effective date due to a battle currently raging in Augusta.

The Maine Problem

The marijuana legalization measure in Maine prescribed that it would take effect 30 days after Governor LePage signs it. However, LePage has been a vocal opponent of the measure ever since it was allowed onto the ballot. Currently, LePage is making statements that the measure violates federal law and will require legislative tinkering to even be viable. The opponents of the measure are currently demanding a recount, as the measure passed on a margin of 4,000 votes. Needless to say, with the recount demands and his personal opposition, LePage is currently refusing to sign the measure. This leaves Maine law on the subject in limbo.

Still Illegal

Even with these measures passed, marijuana is still illegal across the US. Federal law still designates marijuana as a schedule one drug. This means, even if you follow all the rules set forth in the new measures, federal law enforcement such as the Drug Enforcement Agency, Bureau of Alcohol, Tobacco, and Firearms, Federal Bureau of Investigation, and Federal Marshalls may still arrest and prosecute you for possession, growing, or giving away marijuana. This comes from the fact that the United State’s federal system gives federal law supremacy over state law as explained here. To summarize, the new measures communicate to state, county, and city level police that they cannot arrest or prosecute anyone following the rules outlined in the measures but do not hold any sway over federal law enforcement.

Federal law enforcement trends on prosecuting marijuana possession have not been consistent. In this area, the President holds a lot of sway. Under the administrations of Presidents George W. Bush and Barack Obama, federal investigators and prosecutors have prosecuted those using or growing marijuana even in states that have legalized medical or recreational use. President-elect Donald Trump has not been clear in his views on marijuana. Years ago, he asserted that all drugs should be legalized. However, on the campaign trail, he proclaimed that he is ok with medicinal marijuana but not with recreational use. It is difficult to predict how a Trump administration will handle marijuana prosecution.

Overall, marijuana laws are changing. Marijuana is still not legal in the US, even for medicinal use. State laws, like the recreational marijuana measures, only protect marijuana users from state law enforcement. If you do choose to use marijuana under a state recreational marijuana measure, keep in mind the limits placed by the measure and the risks of federal prosecution.



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