Archive for the 'Criminal Law' Category

Can Marijuana Businesses Survive the Trump Administration?

One of the most notable trends of the most recent election was the explosion of laws legalizing recreational and medical marijuana across the nation. In fact, while only 8 states currently allow recreational use, the majority of states have legalized the use of marijuana in one form or another. This explosion has caused a chain reaction, a matching eruption of businesses prepared to sell marijuana products wherever it is legal.

One of the largest of these companies is Dixie Brands, an enormous Colorado-based business. Dixie Brands, founded in 2010, currently has branches operating in Arizona, Colorado, California in Nevada. They have in the news recently for their desire to spread nationwide with planned expansions to Maryland, Oregon, and Washington.

Marijuana Business

However, operating and expanding as an operation in the business of selling a product that is federally illegal is understandably extremely complicated. Not only does each state have its own notably different set of laws on how a business must operate but federal law bars marijuana companies from a number of things most businesses would consider necessary to operate. In fact, the majority of the growth of the industry is predicated off the hands off approach of the federal government under the Obama administration.

Marijuana Businesses Under President Obama

In August of 2013, the Obama administration issued a memo stating that it would not interfere with legal cannabis business so long as they operated in states with fully fleshed out regulatory regimes for such businesses such as Colorado. In December 2014, President Obama signed a bill into effect which limited how the Justice Department could stop states from putting their own rules into effect when it comes to marijuana.  In a recent interview, President Obama went so far as to say that he believes that marijuana should be treated as a health issue in same vein as cigarettes and alcohol. He went out of his way in the same interview to note that polls show that the majority of people who voted for President-elect Trump feel the same way.

What They Might Face Under President Trump

These comments come after Trump has picked Sen. Jeff Sessions as his top choice for U.S. Attorney General–a particularly controversial pick.  Senator Sessions was nominated for a position as a federal judge by President Reagan in 1986. However, a Republican led Senate Judiciary Committee refused to appoint him after a number of racist comments and opinions came to light. Senator Sessions referred to the NAACP as “un-American,” repeatedly called the African-American Assistant United States Attorney Thomas Figures “boy,” and–perhaps most relevant for the state of marijuana law across the country–said that he thought the KKK were good people “until I learned they smoked pot.” While President-elect Trump has previously supported a hands-off approach to marijuana, his pick of Senator Sessions for U.S. Attorney General certainly points in a different direction–much to the chagrin of companies like Dixie Brands.  Senator Sessions is, as you can probably tell from his statements about the KKK, extremely outspoken in his opposition towards marijuana as a whole. Senator Sessions has stated that “one of [President Obama’s] great failures …is his lax treatment and comments around marijuana.”  He has been quoted as saying “We need grownups in Washington to say, ‘Marijuana is not the kind of thing to be legalized, it ought not to be minimized, and that it’s a real danger.'” He has even gone so far as to say “good people don’t smoke marijuana.”

All of this points to a potential change in stance from the incoming administration; the kind of change in stance that could be catastrophic for a business like Dixie Brands and the entire industry they belong to. So what exactly are the legal obstacles currently facing businesses based around marijuana products and how can a firmer line on marijuana make things even worse for these businesses?

The Legal Roadblocks of Selling Legalized Marijuana

First and foremost, the obvious elephant in the room.  Marijuana is federally illegal. Federal law supersedes state law when the two conflict. Thus, so long as marijuana remains criminal at the federal level the entire business could come crashing down in a matter of months or weeks with just a few changes to enforcement and federal laws. Supreme Court cases have shown that even personal use or cultivation of marijuana within a single state has sufficient impact on the nation as a whole to allow for enforcement of federal laws despite contrary state law. The bill signed by President Obama protecting such state laws from interference could be easily overturned by a conservative Congress with the mind to do it. If the choice of Senator Sessions as U.S. Attorney General signals an administration in line with his way of thinking, action such as this may well be in our future.

So, to say that the marijuana business is on shaky ground is a bit of an understatement. However, businesses such as Dixie Brands are used to operating on shaky grounds. The nature of their business has always involved some level of legal headaches in areas such as intellectual property, forming binding contracts and advertising. However, there are some legal issues that are even more fundamentally problematic for companies selling marijuana products.

Legal Transportation of Marijuana

One of the biggest of these headaches is that federal law makes it illegal to transport marijuana across state lines–interstate commerce is generally the realm of the federal government and the federal government says marijuana is illegal. The federal government can even prosecute people transporting marijuana from one legal state to another. The penalties for a violation of these rules are hefty–up to five years in prison or fines of up to $250,000.

This is especially relevant now that the entire block of states along the west coast all have legalized marijuana. In a normal franchise, standardizing providers and shipping equivalent quality goods to all your branches is standard practice.  However, this is illegal for marijuana companies and requires these companies to find a different legal provider of marijuana in every state they operate in. While some states have made it clear that enforcing these laws at their borders is not high on their priority list for single persons, this doesn’t necessarily apply for a larger business shipping large quantities and doesn’t prevent federal operatives from intervening.

What About Banking for Marijuana Businesses?

Another common issue facing businesses selling marijuana products is banking.  The fact that marijuana is, once again, illegal at a federal level has made most banks very hesitant to accept any money from a marijuana-related business. The problem is that this money is essentially earned through committing a federal crime and banks are fearful they may lose their required FDIC and NCUA insurance as both of these are provided by the federal government. Even worse, by working with a business like Dixie Brands a bank could face a lawsuit brought by the federal government.

Back in February of 2014, a division of the U.S. Department of the Treasury known as the Financial Crimes Enforcement Network (FinCEN) has created guidelines under which a bank may safely work with a marijuana-related company. These rules made it so that banks could work with companies selling marijuana so long as they file frequent Suspicious Activity Reports proving that the people they work with aren’t committing fraud or laundering money. However, while the rules made it technically legal to work with a company marijuana products, they also make it so expensive and time consuming to do so that no bank actually chooses to take FinCEN up on the offer. What’s more, these guidelines are not actually binding law but merely recommendations. This means that a change in position from the federal government, such as the one that looks to be on the horizon, would leave any bank following the FinCEN guidelines hung out to dry in a potential legal crackdown.

This issue has led to two things.  First, the marijuana industry is primarily a cash industry with all the problems that brings with it.  The interstate nature of credit cards, electronic payments, electronic transfers, PayPal and similar services tender all these payment methods unavailable to marijuana-related businesses. There are stories of owners of marijuana-related businesses coming to pay their taxes with sacks and sacks of cash like a Scrooge McDuck cartoon.  Second,  states have been forced to try and design their own internal banking services to help regulate the businesses they seek to tax.  Some of these, such as the newest regulations out of California, will only be taking effect later this year.

Is This the End of Expanding Marijuana-Related Businesses?

There is, unquestionably, an enormous amount of tax revenue to be made and jobs that could be created through legalized and regulated marijuana in the U.S.  However, the stance of those the incoming administration has chosen to represent them is not a friendly one to legalization.  There are certainly arguments in favor of this side of the argument as well–difficulty of enforcement, difficulty in proving current intoxication, etc.  However, as it stands the public opinions of the incoming Trump administration are incongruent.  President-elect Trump himself has been publically supportive of the growing marijuana industry.  The man he has chosen to weigh in most influentially on the current laws of the federal government, however, has a diametrically opposed position.   The marijuana industry is, and has been, an incredibly profitable house of cards–we’ll have to wait and see if the Trump administration chooses to blow it over.

Can the Police Shoot Your Dog For Barking?

A federal court recently issued a ruling that has got the media in a frenzy.  Can police officers now shoot an animal for moving or barking when entering a home?  While the court ruling did order a police shooting of 2 in-home pets as justified, it doesn’t give the police a sweeping authority to shoot your dog.

Let’s Break It Down

The facts of this case are important to the ruling because the decision is based on the totality of the circumstances.  A warrant was issued out of a Michigan court that gave the Battle Creek Police Department (BCPD) permission to search a local residence, the owner a known gang affiliate, for drugs.

According to court documents, as officers began to execute the search warrant, officers noticed dogs “…barking aggressively, ‘digging and pawing,’ and ‘jumping’ at the window.”  An officer testified that upon entering the home, a 97-pound pit bull lunged at him and it was then that the officer fired his gun at the dog, only injuring it.   The dog retreated to the basement.

Police Shoots Barking DogThe officer further testified that he could not safely clear the resident’s basement because the already injured pit bull was standing at the bottom of the steps.  It was then the officer fired two fatal shots into the already injured dog.

The same officer additionally testified that the second pit bull was standing across the room and barking at the officers, so he fired shots at the second dog.  The dog ran to the corner of the room and caught the eye of a second officer, who then fired shots at the second dog.  An officer then testified that because the dog had several wounds, he “…‘didn’t want to see it suffer’ so he put her out of her misery and fired the last shot”.

Killing a Pet Constitutes a Seizure under 4th Amendment

Many courts have widely agreed that deadly force against a household pet constitutes a seizure.  We know that seizures are unconstitutional under the 4th Amendment if they’re unreasonable.  It’s also been established that killing a pet is reasonable only if the pet poses an imminent danger and force is unavoidable.

Hindsight is 20/20

Ever heard the expression “hindsight is 20/20”?  It’s easy for a person to see things that seem obvious after-the-fact, but it’s the circumstances before-the-fact that matter most when answering these kinds of questions.  Courts focus on the perspective of the officer on the scene and not the perspective of the perfect vision that hindsight offers.  It all comes down to whether or not the pet poses an imminent threat from the perspective of the officer.

This is important because anyone reading those facts above after-the-fact could easily argue the officers acted unreasonably against the two dogs.  Shooting the first dog when the dog lunged at the officer is one thing, but shooting an injured animal that’s simply barking is another story.  But, again, the courts don’t get the pleasure of making those judgments based on hindsight and they must consider the perspective of the officers in the moment of the situation.

Court Says Fear of Imminent Threat from Dogs Was Reasonable

There’s no argument that executing a search warrant lends to stressed circumstances for police officers and those officers are often forced to make split-second judgements based on unknowns.  The court found that due to the already high nature of the threat against the officers executing the warrant in a home of known gang affiliates, the officers were understandably on high alert.

The shooting of the first dog, according to the court, was warranted because 1) it was aggressively barking, 2) it lunged at the officer, 3) even after the dog had already been shot by the officer, the dog continued to aggressively block the officers entrance into the basement, and 4) the officers could not safely clear the basement while the dog was preventing the officer to do so.  The court found the shooting of the second dog reasonable because both officers testified they could not safely clear the basement with the presence of the barking dog.

Conceptually, I agree with the standard used by the court—if an animal poses an imminent threat, then force is reasonable.  However, I’m not convinced, at least that the second dog, posed an imminent threat to the officers in this situation.  Although the court didn’t actually create a bright line rule giving police the power to shoot any moving or barking animal inside a house, actual application of this ruling could have potential repercussions for abuse.

Can Too Much Caffeine Lead to a DUI?

Has it come to this?  At least 68 million Americans drink coffee every single day.  If those staggering numbers are any indication of the number of people that are consuming caffeine on a daily basis, consider the fact that that number is for coffee consumption and doesn’t even include soda.  Does that mean all of us consuming caffeine need to worry about getting a DUI?

A California man, Joseph Schwab, was pulled over on suspicion of driving under the influence back in 2015.  Schwab was given a breathalyzer test, which he passed with flying colors.  Although the breathalyzer showed 0.00% blood alcohol level, Schwab had his blood taken for a toxicology test after being taken to county jail.  Results, again, came back 100% in favor of Schwab.

Charges weren’t initially filed against Schwab, but ten months later misdemeanor driving under the influence of a drug charges were filed.  A second set of test results sent from an outside testing facility showed caffeine was the sole substance in Schwab’s blood.

Chief Deputy District Attorney, Sharon Henry, for Solano County stated, “the charge of driving under the influence is not based upon the presence of caffeine in his system.”  Schwab’s attorney, Stacey Barrett, however, stated she was not provided with any evidence supporting a theory of any other substance within Schwab’s system.  Barrett subsequently filed a motion to dismiss the charges against Schwabb.

Can Caffeine Consumption Really Get You a DUI?

Maybe, but it’s probably not really very likely.  Under California law, a drug is any substance, illegal or legal, that isn’t alcohol that might “impair, to an appreciable degree” a driver’s capabilities behind the wheel to drive like a sober person.  Were you able to drive with caution?  Was your driving that of a sober person of ordinary prudence under similar circumstances?

Caffeine works by stimulating the central nervous system, the heart, muscles, and the centers that control blood pressure.  Theoretically, if enough caffeine is consumed, then it’s possible it could have effects that could impair a driver’s capabilities to drive safely.  Typically, though, side effects of consuming caffeine have much smaller effects such as stomach aches and insomnia.

How, Then, Can Schwab Be Charged?

According to the District Attorney’s office, the State decided to go ahead & charge Schwab because drug tests don’t catch every drug.  The State was convinced that because Schwab was driving so erratically, he must have been on something.  Remember, though, that since this was a criminal charge brought against Schwab, the State has to prove beyond a reasonable doubt that he was driving under the influence of drugs.

Even though caffeine is a substance that can affect the nervous system, brain, or muscles, all things that define a drug under the applicable law, a prosecutor would be hard-pressed to prove to a jury beyond a reasonable doubt that the consumption of caffeine, alone, inhibited Schwab’s abilities to drive enough to pose any danger.  Observations of an arresting officer can be relied upon heavily, but it’s not necessarily enough.

Under California law, driving erratically isn’t necessarily conclusive enough to prove driving under the influence—it’s only a factor a jury can take into consideration.  An arresting officer can testify to 1) the unsafe manner in which you drove, 2) your physical appearance, and 3) your performance on a field sobriety test.  According to the officer, Schwab cut her off and was driving erratically.  In Schwab’s case, this would have been the only evidence, at least that’s been made public, that the State had to go on since blood tests came back negative.

These are the likely reasons the District Attorney’s office conceded and just filed their own motion to dismiss the charges against Schwab, despite the fact they claimed forensic lab experts stated it was “highly likely the defendant was under the influence of a drug.”

 

Who is Responsible for the 36 Victims in Deadly Oakland Fire?

With 36 confirmed dead in an Oakland warehouse fire, many grieving families want answers as to what, and who, is responsible for the deadly fire that trapped so many during an electric dance party in a building with no smoke alarms or sprinkler systems.

The former warehouse was a dilapidated two-story structure that, from the outside, appeared to be abandoned because of the disrepair it was in.  In fact, a citation was issued to the owner sometime in November for hazardous trash and debris outside of the building, but city and state officials have also fielded numerous complaints over the years about dangerous conditions, drugs, all-night dance parties, neglected children, trash, thefts and squabbles at the warehouse.  Zoning officials were also investigating complaints of illegal construction on the property, as well as illegal residential use, but neither were confirmed by inspectors.

Witnesses have described the interior as a maze of man-made studios, workshops and residences with couches, pianos, beds, microwaves, refrigerators, hot plates, music equipment, a man-made staircase made of wooden pallets connecting the ground floor to the second story, and even RVs.  Power sources have been described as just numerous extension cords plugged into each other.

With all the speculation surrounding ignored building codes, dangerous conditions and what the building was actually being used for, it begs the question about who’s responsible.  Is it the owner of the building?  The manager?  The host of the party?  Or someone else?

These Types of Buildings Aren’t Uncommon in Bay Area

With skyrocket rent in the Bay area, these little communities aren’t uncommon.  Derek Ion Almena had signed a lease for the property and apparently subleased space to others in what’s become known as the “Ghost Ship”.  According to the Today show, Almena said he opened the warehouse to artists who couldn’t pay the rent because their dreams were “…bigger than your pocketbook.”

The warehouse owner’s, Chor N. Ng, daughter, Eva Ng, however, told the Los Angeles Times that the warehouse was leased as studio space for an art collective and not as a dwelling.  This will definitely make a difference because zoning standards are stricter for residential uses.  Almena insisted the building was leased to “city standards supposedly”, but the warehouse was permitted only as a one-story warehouse, not for entertainment or residential use.

An official report about the cause of the fire hasn’t been released yet, but there has been speculation that it started with a
refrigerator.

Everyone is Looking for Someone to Blame

What kind of claims should we expect to see here?  Wrongful death suits to start, which would likely name Ng and Almena for liability, but there’s a whole slew of people that could be put up to the plate.  Keep in mind that cioakland firevil tort cases like this only require a preponderance of the evidence, which is a much easier and lower standard to prove than the beyond a reasonable doubt standard in a criminal case.

Let’s take a closer look at potential targets that could get sued for liability.

  • The owner, Chor N. Ng. The first obvious choice for liability, even despite the fact that the owner of the building may have been blind to the fact that people were living within the building.  The owner will still have some liability, though, as landlords have a general responsibility to know what’s going on on their property.
  • The manager, Derek Ion Almena. The second obvious choice.  Did the lease allow him to sublease?  If not, this is definitely an argument Ng could use in her favor.  Landlord tenant law generally puts liability for damages on who is at fault for the fire.  Since this fire involved so many deaths, though, any action, or lack of action on behalf of the owner, that gives even a glimpse of responsibility is going to be scrutinized under a magnifying glass.
  • Promoter of the party. Who threw the electric dance party?  This may not be your first thought, but there’s likely liability here as well.  Almena’s wife and child, who lived in the building, were reportedly staying at a hotel that night, which eludes to the fact that Almena may have at least had knowledge of the party.
  • Contractors, engineers, or architects. Basically, anyone that has worked on the site throughout the years could be targets.
  • Manufacturers. Did an appliance within the building have faulty wiring that sparked or contributed to the fire?  There definitely seems to be some mitigating factors here, though, even if this is the case, especially when you consider the way witnesses described the makeshift and sloppy way power sources were hooked up.
  • The City of Oakland. However, this one seems less likely since they could assert governmental immunity and the city was already doing their part to investigate whether there was illegal use.  Even still, allegations that the warehouse has not been inspected for over 30 years could present issues for the city.

Depending on the outcome of the investigation, criminal liability could be possible for the owner and manager as well.  Arson hasn’t been ruled out yet and the local prosecutor has even said the state hasn’t ruled out the possibility of murder charges.

The History of the First Amendment and Flag Burning

The debate over how the American flag should be treated when it comes to freedom of speech and expression-both in recent days and over the years-is a question of law that brings out the highest passions on both sides of the issue. first amendment and flag burning Just last week, our new President-elect Donald Trump reignited the age-old debate with a tweet suggesting that that burning a United States flag should carry extreme penalties. He went so far as to suggest that it should cost a year of jail time—which would make the act a felony—or even lead to the individual who burned the flag being stripped of citizenship.

While these recommendations are likely some of the most extreme suggestions to come from a politician, their very extremity stems from the undercurrent of anger surrounding the act of flag burning—whether against the government or against the very people who burn the flag.  There are many who consider the act of burning the flag the ultimate act of protest against the acts of the government that represents the ideals of that flag.  At the same time, there are plenty of people who view the flag as a symbol of the United States and burning it an attack on the country itself.

Regardless of belief, however, it is a legal fact that the act of burning a flag is constitutionally protected first amendment expression—symbolic speech.  The Supreme Court has ruled as much not once, but twice, in the cases of Texas v. Johnson and U.S. v. Eichman.

Texas v. Johnson

Texas v. Johnson dealt with the acts of Gregory Lee Johnson.  At a protest outside the 1984 Republican National Convention, Johnson burned an American flag stolen by another from a nearby flagpole.  The act drew international media coverage, although nobody was actually injured.

At the time, Johnson’s act was a crime under Texas law and a court sentenced him to a year in prison and a fine of $2,000 for his actions.  However, the Texas Criminal Court of Appeal reversed this ruling saying that “the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol.”

The case went from there all the way to the Supreme Court of the United States, presenting the first case ever before them where they needed to decide whether a non-speech act such a burning the flag was protected by the First Amendment.  In 1989, the Court ruled that while an act is not always protected simply by its intent to communicate a message, an act is protected where the is both 1) and intent to convey a particular message through an act and 2) whether the message was understood by the majority of those who viewed the act.  They decided that Johnson’s act of burning the flag sent a clear message that was easily understood, and thus deserved First Amendment protection.

They also decided that, while speech can be outside the protection of the First Amendment where it incites others to immediate acts of violence, this was not the case here.

This decision had an enormous impact on the laws of the United States—making flag burning statutes in forty-eight different states unconstitutional.

U.S v. Eichman

The response to the ruling in Texas v. Johnson was swift.  In the same year of the ruling, Congress passed the Flag Protection Act.  This act made it a federal crime to burn or desecrate the flag of the United States.  The very next year, in 1990, the Flag Protection Act was before the Supreme Court in the case of U.S. v. Eichman.

In two different states, flag burning at protests by the anti-war group the Vietnam Veterans Against the War Anti-Imperialist led to charges against protesters.  In both cases, the charges against the protesters were dismissed followed by an appeal to the Supreme Court challenging the constitutionality of the Flag Protection Act.  These two cases were combined and became U.S. v. Eichman.

This time, the Supreme Court was crystal clear.  It outright ruled that any statute that barred desecrating the flag, state or federal, was unconstitutional.  The decision argued that, while some may be incredibly offended by the act of burning a flag, the government may not prohibit speech simply because society finds it offensive. What’s more, the government certainly may not ban speech with the intent of suppressing the ideas behind that speech.

The Legal Debate Still Rages On

Despite these rulings, there has been no shortage of attempts to introduce a constitutional amendment to make the desecration of the American Flag illegal.  Since 1991, there have been 41 different proposals for such a constitutional amendment.  Some of the votes on these proposals have been extremely close, in 2006 a proposal for a constitutional amendment failed by only a single vote.

There are also, despite the unconstitutionality of statutes barring flag burning, situations where burning a flag can be illegal.  For instance, if there is another crime involved—for instance if somebody besides the one doing the burning was the owner the of the burned flag—the person burning the flag can still be charged with that crime.  What’s more, where a statute is neutral as to the content of speech—instead regulating the time, place, or manner of speech, it is constitutional.  Thus, a statute making it illegal to burn anything outside of a fire pit in a National Park could be constitutional but still make it illegal to burn a flag while in the National Park—unless you did it in a fire pit.

Flag burning is, and likely will always be, a topic distinguished by the extremely high passions on both sides of the issue.  However, barring a constitutional amendment, any law making it a crime to burn the flag—never mind the unheard-of punishment of stripping a person citizenship—will be patently unconstitutional.  The act of burning a flag communicates a deep discontent with the U.S. government and what the flag represents.  This can be offensive to some.  However, it is because it communicates such a clear, controversial, political message that the act receives the protection it does. No matter the form it takes, do we really want the government to have the power to censor speech criticizing it?



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