Archive for the 'Criminal Law' Category

Legal Use of Marijuana Jeopardizes Parental Rights

Are you a parent who has a medical marijuana card? You might want to rethink before you get your marijuana treatment. Unbeknownst to you, you may be taking a risk of losing your child. That’s a warning parents who smoke pot should be aware of, but is nowhere in the statute to be found. There is no bright line rule on whether a legal use of marijuana makes a parent unfit. Nevertheless, your state can suddenly take your child away. Now, you must choose either your treatment or your child.

That’s the dilemma Raymond Schwab, an honorary veteran, is facing. Raymond suffers from PTSD and is a Colorado-registered medical marijuana user who resides in Kansas with his wife Amelia and their six children. Raymond and Amelia decided to move to Colorado so Raymond could continue his marijuana treatment. They were completely oblivious that they were going to lose custody of their children if they remained in Kansas.  Medical Cannabis

On the day they were packing to leave, Raymond’s mother-in-law took their five children to a police station and reported that the children had been abandoned, of which she now regrets, according to Denver Post. Since then, the Kansas law enforcement investigated the report of abuse but dismissed the case concluding as “unsubstantiated finding.” Simply put, they found no child abuse.

Nevertheless, Kansas child welfare agency did not return the kids to their parents and have been holding the custody of the children. According to Kansas Child Protective Services when CPS determines that a child is unsafe, CPS makes a recommendation to the court for removal of a child from the home. Presumably, CPS must have determined that those five children were unsafe and removal was necessary because CPS has been holding onto the custody of the five children over nine months. The Kansas court is now demanding Raymond to give up cannabis, to comply with four months of drug free urinalysis tests including a drug legal in Colorado for therapeutic uses.

Kansas Law Empowers Child Protective Services to Take Kids Away From Home

Kansas’s decision to remove Raymond’s children from their home seems overreaching and drastic. Overreaching, because Raymond’s marijuana use did not occur in Kansas, the home state, but in Colorado, where such use is legal. Taking families apart because of his simple use of marijuana as a medication is drastic and traumatic for both children and parents. It just seems unfair for someone like Raymond, who did not violate Kansas marijuana law.

One reason for such extreme consequences may be the mixed standards of marijuana laws among the states. Currently, 23 states and D.C. have legalized medical marijuana. In Colorado, possession of marijuana for medical and recreational use is legal whereas Kansas prohibits marijuana for any reasons. These mixed standards create a case such as Raymond’s. Does out-of-state medical marijuana use by a parent make the parent unfit in a state that absolutely prohibits marijuana?

Not only does Kansas law prohibit marijuana for any reason, but it also treats

marijuana as one of the most dangerous and addictive drugs. The federal government and many states classify drugs as Schedule I, most dangerous level, to Schedule V, the least dangerous drugs. In Kansas, marijuana is classified as a Schedule I substance with such drugs as heroin and meth, which means that it has a high potential for abuse and no recognized medical value. This limits how it can be studied or used medically. The strict prohibition and overgeneralization of marijuana treatment of Kansas law seem to empower the state’s child welfare agency’s decision to take families apart based on a mere speculative and obscure danger.

Raymond did not violate the Kansas marijuana prohibition statute. The state, however, claims that Raymond’s retroactive or prospective legal use of marijuana in Colorado was or is going to be unsafe to his children.

The CPS’s balancing test underestimates the degree of harm that the children might experience when they are taken away from their natural home. Removal from the home and replacement in the home can lead to feelings of instability, loss of status, and a loss of control as children may always expect and fear that they can be removed and replaced at any time without explanation. Lack of understanding of the foster care system and the process may lead to feelings of loss and/or rejection for children grappling to understand the separation from their biological families.

Instability in foster care is a serious problem for child development. We hear more and more problems in foster care system. In 2014, a two-year-old Alex Hill was taken away from her home because her parents used marijuana. After placed in a foster home, the toddler girl was physically abused and eventually killed by her foster mother. The Texas child welfare agency took the child away from her home simply because her parents smoked pot while their baby was sleeping in bed upstairs. The child was then placed in a “safe environment,” namely, foster care. That safe environment is where she died.

Best Interest of Child

The different standards of marijuana law among the states render a parent who is legally entitled to smoke pot in one state to become unfit parent in another. That is arbitrary. Furthermore, by taking the kids away, Kansas demands that Raymond forfeit his right to use medical marijuana as a patient in Colorado. The stigma against marijuana allows the state to dictate a decision without carefully considering whether it would be in the children’s’ best interests. As a result, the removal produces traumatic experiences for the children, rather than providing safe and temporary environment for the children’s well-being. According to the Denver Post, Raymond and Amelia have only seen their children three times since their separation in April 2015

The essence of child welfare decision should be made based on the best interest of child. Arguably, parents who abuse illegal drugs can put their children at incredible risk. Parents who use addictive drugs may be incapable of caring for children and the children would become susceptible to drug use themselves.

However, Raymond was in compliance with both Kansas and Colorado law. Also, marijuana is not addictive. Given the degree of resulting trauma the children may go through, compared to the degree of potential harm by having a father who uses marijuana for his illness, Kansas’s decision to take the kids away is erroneous. Holding onto the custody of the children over nine months based on overblown concerns is not for the best interests of the children.

California Requires Warrants to Search Emails

There’s no denying that we live in a digital era, a time where people prefer email and text messaging to telephone and in-person communication.

In the past, government agents were able to search people’s text messages, emails, and GPS data without a warrant. That all changed on October 8, 2015, when Governor Jerry Brown signed the Electronic Communications Privacy Act (S.B. 178), which requires law enforcement to obtain a search warrant before looking at private emails, text messages and GPS data stored in smartphones, laptops and the cloud. It also requires that whenever a warrant is executed, notice must be served upon the targets of the warrant.

California is the only state in the nation that requires warrants to access this type of information.

What is the Basis of Search Warrants?

The Fourth Amendment guarantees people’s right to be free from unreasonable searches and seizures. This often means that government agents must have a warrant to search and seize your person and property. Search warrants may be issued where a person has a reasonable expectation of privacy.

So where does one have a reasonable expectation of privacy? The Supreme Court established that law enforcement must obtain a search warrant to search a suspect’s home where one has the greatest and most reasonable expectation of privacy. Conversely, one does not have an expectation of privacy over things left out in public, like trash in the garbage. Email

The California Constitution gives each citizen an “inalienable right” to pursue and obtain privacy. A judge can only issue a search warrant if there is probable cause.

Is Requiring Search Warrants a Good Idea?

People depend on technology like they never did before. A recent study showed that 86% of people aged 18 to 29 and 84% of individuals between the ages of 30 and 49 have a smartphone. Smartphones equip consumers with access to emails and text messages at all hours of the day with just the click of a button. People nowadays prefer to email or text personal, private messages to one another because of the convenience. With the invention of the smartphone, people believe all their emails, text messages, and GPS data will remain private so long as their phone remains in their possession. Most businesses also use emails and text messages to sustain their business.

Because so much private information is transmitted electronically and people reasonably believe such information will remain private, law enforcement should not be able a search it without first obtaining a warrant. With the accessibility of emails and text messaging to the average person and its increased use over the past several years, search warrants for such information is necessary to protect Californian’s heightened right to privacy.

Will Search Warrants Make it Harder to Combat Child Exploitation and Human Trafficking?

The Electronic Communications Privacy Act has its fair share of critics. The National Association to Protect Children contends that requiring government agents to notify targets of criminal investigation when they obtain warrants could put children in danger or result in destruction of evidence. Their main concern is child sexual exploitation and human trafficking.

Their fears are well founded. S.B. 178 requires that notice must be served upon or delivered to the targets of the warrant whenever a warrant is issued. The notice must be provided to the target at the same time the warrant is issued. For example, police must notify child pornography suspects they are coming and will conduct a search. The notification requirement may be delayed if law enforcement proves destruction of evidence is likely, but it is not assumed and must be demonstrated through additional court proceedings.

In special emergency cases, notice can be postponed until three days after the data is collected. A situation is considered an emergency if law enforcement can prove a child is in danger of death or “serious physical injury.” The problem is that California distinguishes between rape or sexual abuse and serious physical injury, as rape or sexual abuse rarely cause “serious physical injury.” If law enforcement cannot prove the child was in danger of serious physical injury after obtaining digital data without first notifying the target, all evidence obtained therefrom may be destroyed, essentially ending the case.

Although S.B. 178 is a major advance for privacy, it must be amended to help California combat child sexual exploitation.

Seeking Legal Help

If you believe you been searched illegally, a qualified criminal lawyer can help evaluate the legality of the search.

How Is Sexual Orientation Becoming A Protected Class?

Before the Civil Rights Act (CRA) became law, individuals faced discrimination based on race, sex, religion, and national origin. At first, the word “sex” was added to focus on discrimination against women.

Yet over the years, sex discrimination extended to gender discrimination. However, with the recent progression in LGBT rights, some courts interpret the protection to cover discrimination based on sexual orientation. Now, the courts are beginning to place LGBT individuals in a protected class.

But what if the CRA is not amended to prohibit sexual orientation discrimination? What basis can the courts use to extend protection? Can the courts extend protections in a state that does not enact protections for sexual orientation?

Why Is It Important To Be Considered A Protected Class and How Do You Become Protected?

A protected class is a group of individuals that have stronger legal protection against discrimination or retaliation. The right was hard earned over many years with violence and discourse.   Supreme Court

In the beginning, race and color were the only protected classes. Over time, women, the elderly, individuals with disabilities, and a slew of other classes gained protected. But, they were not all protected through the CRA. Groups such veterans, pregnant individuals, and disability became protected through other types of legislation without amending the CRA.

So, do you really need to amend the CRA?

There Is No Need For An Explicit Law. But To Begin, the First Step Was Basis Extend the Protection for Transgender Individuals.

The Equal Employment Opportunity Commission (EEOC) established Title VII of the CRA. It prohibits discrimination because of the individual’s sex. To discriminate because someone identifies as a gender other than assigned at birth, is to discriminate because of their sex. Discrimination against a transgender is gender identity discrimination and so is prohibited under Title VII.

The EEOC focuses on the precise wording of Title VII. The law “prohibits employers from discriminating against employees on the basis of sex….”. The conditional words are what the EEOC and the courts focus on for the basis of extending protection.

The courts applied the same reasoning used in sex discrimination cases involving heterosexual women. The courts found a demand for a female employee to “dress more femininely” to be “sex stereotyping.” The act of stereotyping because of sex violates Title VII.

Extending protection to transgender individuals was a first step in protecting sexual orientation as a class. Soon the courts applied “because of” and “sex stereotyping” to their reasoning.

Applying “Sex Stereotype” And “Because Of” Reasoning to Sexual Orientation Discrimination.

Due to the evolving and growing understanding of sex and gender, the courts apply the concept of “non-conforming gender behavior.” Describing situations like a heterosexual female employee who dresses in a masculine way to a male employee who exclusively dates other men.

Our understanding of sex and gender are evolving. Now, some courts apply the concept of “non-conforming gender behavior.” Like situations like a heterosexual female employee who dresses in a masculine way.  A male employee who exclusively dates other men.

If the employee faced discrimination because of the sex stereotype that women should wear feminine clothing and men should only date women, then they were discriminated because of their sex. If the female employee was male, then she would not have faced discrimination. The same logic applies to the male employee.

The majority of cases deciding that sexual orientation discrimination violates Title VII came in recent years. It was a long awaited step towards equality for individuals who have lived as second class citizens based upon who they love or what they feel.

In the End, the Courts Applied the Same Logic To Sexual Orientation Discrimination.

In 2015, the Supreme Court held that same-sex marriage is a constitutional right. The legal system filled with cases of individuals seeking protection from sexual orientation discrimination.

Since the Supreme Court found legal and statutory basis for same-sex marriage, the lower courts could find a basis for sexual orientation discrimination in Title VII. However, there is no federal statutory law that explicitly states there is a protected right for same-sex marriage. Due to the slow legislative process in Congress, it will may take years, or decades, before it becomes law.

Many argue that the CRA must be amended to make sexual orientation a protected class. But many accepted protected classes only reached that level after social acceptance. In the end, it is only a matter of time before sexual orientation becomes a protected class.

Is Forcing a Defendant to Read about WWII Creative or Cruel?

As my colleague Jason Cheung discussed in a 2012 blog, you wouldn’t think the legal system was a creative place. The only real creativity we’ve seen from the legal system comes from fictional dramas or reality shows. However, more and more judges have been handing out creative sentencing to punish criminals. Creative sentences are a type of alternative sentence, given instead of fines or jail time. Examples of creative sentencing include wearing a sign in front of a store a criminal stole from, letting everyone know he or she was punished for stealing.

There’s a hidden question underneath all the creative ways to punish criminals. Does a creative sentence violate a defendant’s Eighth Amendment right against cruel and unusual punishment?

Let’s look at the case of Frank Peluso, 59, and Thomas M. Martin, 59. The two men were accused of stealing money from a local Veterans of Foreign Wars Post. They used a key to access the VFW’s machines. The thefts happened while they were playing games at the Post in July 2015. The men allegedly took more than $6,000. As one man blocked the surveillance camera, the other stole the money. The co-defendants pleaded guilty to:

  • One count of theft, a fifth degree felony
  • Three counts of possessing criminal tools, a fifth degree felonies
  • Tampering with coin machines, a misdemeanor

Theft is the trespassory taking of property of another without consent and intent to permanently deprive.

The theft and criminal tools charges each carried about six to 12 months in prison. The tampering count carried about 180 days in county jail.

They plead guilty to the charges. At their Dec. 7 plea hearing last year, Judge Frank Forchione asked Peluso and Martin about the significance of that day.

4.2.7

Martin didn’t know. Peluso said it was the anniversary of D-Day.

Wrong.

Unfortunately for them, their answers got them a creative sentence. For those were never into history, their plea hearing fell on the same day as the Japanese attack on Pearl Harbor.

State law prevented the judge from sentencing Peluso to prison. Instead, Peluso was sentenced to jail time and ordered to read two books. Both books, “Pearl Harbor: FDR Lead the Nation into War” and “D-Day,” were paid for by the judge. Peluso was ordered to write a five-page paper on the importance of veterans. He was also sentenced to three years of probation, restitution, and 200 hours of community service.

Martin was hospitalized and couldn’t be sentenced the same day as Peluso.

The Eighth Amendment Prevents Creative Sentences from Being Cruel

The Eighth Amendment is often associated with the death penalty. The Amendment prohibits cruel and unusual punishments, excessive fines, and bail. Opponents argue that creative sentencing can be cruel. Looking at Peluso’s case, he was sentenced to read two books because he didn’t know that his hearing fell on a veteran holiday. He was punished because of his ignorance, not because of his crime against veterans. Some would probably argue the creative sentence didn’t go far enough. The men could have been sentenced to something harsher than reading books.

Proponents of creative sentencing argue it puts an important twist on the legal system. It stops people from reoffending or committing a harsher crime. Sometimes a stint behind bars is just that—doing time. Creative sentencing may cause them to think twice about reoffending.

The Peluso case wouldn’t violate the Eighth Amendment. He’s forced to read about a day he should know about anyway. The problem with creative sentencing though, is it opens the door for the possibility of going too far. What is creative and what isn’t? Maybe it’s forcing a defendant to read a book about veterans today. Maybe tomorrow it’s being locked in a room without food and water to react what a prisoner of war went through after being captured. There should be more limits to the types of creative sentences a judge can impose.

Can Donald Trump Actually Take Care of “the Muslim Problem” and Make America Great Again?

Donald Trump. A man so American that bald eagles attack him in fits of jealous rage. Lately, he has also become the political poster boy for the Islamophobia that seems to be gripping certain constituents in the United States. However, what exactly are his proposed plans to resolve “the Muslim problem” in the United States, and are these plans even legally feasible?

1. Shut Down Mosques

Trump declared that select mosques within the United States should be shut down. This alone appears to be a systematic denial of religious freedom, which is protected by the First Amendment. Many of the original colonists in this country came here to avoid religious persecution. The most popular secular holiday in the United States, Thanksgiving, involves a celebration of the religious freedom achieved by the Puritans by coming to the new world. That is not to say that there has never been any effort to suppress certain religious practices by the government.

However, laws designed to prohibit certain religious practices, even Hileah’s attempt to ban the Santeria practice of animal sacrifice, have been declared to be unconstitutional as a violation of religious freedom. Any ban on religious worship in buildings specifically designated for religious worship will likely be declared to be unconstitutional under the First Amendment because while the interest of keeping American safe from “homegrown” terrorists is a compelling government interest, any law that permits the shutting down of mosques could not possibly be deemed to be narrowly tailored enough to truly advance that interest.  Trump

Most likely, if such a law were enacted and then challenged in court, it would be seen as unconstitutional pursuant to Cutter v. Wilkinson, which was a challenge by prisoners in Ohio against the prison’s refusal provide them with an adequate space to worship within the confines of the prison. Just as the prison could not force the prisoners to restrict the practice of their religion to their cells, so the federal government cannot force Muslims to restrict the practice of Islam to their homes.

2. Bar All Non-Citizen Muslims from Entering the United States

If Donald Trump were to become president, he would not be able to actually enact his own ban on the immigration of Muslims, even under his power of commander in chief during wartime. Any ban by presidential order would be determined to be in violation of the United Nations’ International Covenant on Civil and Political Rights, which prohibits all participating countries, including the US, from banning immigration solely on religion.

Congress is the only government entity that can pass laws superseding any international treaties made through the United Nations, since Congress is responsible for the United States’ participation in that organization. Thus, Donald Trump would need to convince Congress to enact a ban on Muslim immigration. Although a mass ban on immigration based on religion is practically unheard of, Congress has enacted mass bans on ideological principles before, most notably against foreign Communists. These bans have been held as constitutional, despite the unconstitutionality of laws placing restrictions on Americans who hold the same views as the banned foreigners. Ergo, Congress could enact a ban on all Muslim immigration that may be held to be constitutional by the courts.

If Donald Trump wanted to avoid having to rely on Congress, he could ban all foreign Muslims on an individual basis. Congress has given the president the power to bar the immigration of anyone whose entry into the United States could have “potentially serious adverse foreign policy consequences” for the US under 8 U.S. Code § 1182. In the broadest sense, any president could make an argument that any foreign Muslim’s presence in this country could have adverse foreign policy consequences. Also, the president has the power to bar the immigration of anyone who fails to be “attached to the principles of the Constitution” in accordance with 8 U.S.C. § 1427(a). Thus, the president can deny immigration to anyone who professes to support Sharia law, or any other religion-based set of law, to the detriment of the enforcement of the Constitution. However, this would not necessarily work to bar all Muslims from immigrating to the United States.

3. Require All Muslim Americans to Carry Special Identification Cards and Be Registered on a National Database

Donald Trump has yet to clarify if his mandatory database for Muslims would involve self-registration or if it would be compiled in the same manner that the no-fly list is assembled, through the suggestion of others based on information gathered about the people on the list. The government has enacted self-registration policies before, where people register with the government for a certain purpose. The most infamous of these registrations have been the Communist registration during the “Red Scare” and the registration that preceded the American internment camps of the 1940s.

However, only mandatory self-registration policies based on race, national origin, familial status, and economic status have been held to be legal. Conversely, the Supreme Court of the United States held in United States v. Robel that mandatory self-registration for ideological purposes is a violation of freedom of association. Thus, mandatory self-registration for religion would likely also be found to be illegal.

Although the ACLU is currently challenging certain aspects of the no-fly list and other, similar databases, this type of surveillance database is legal. Thus, Donald Trump could choose to focus efforts on compiling a list of all Americans who attend Islamic religious services and/or profess to be a Muslim. However, there would not be any actual registration involved.

Requiring all Muslims to carry special identification cards would likely be unconstitutional under United States v. Robel. The issuance of such cards would likely require self-registration, which is unconstitutional.

4. Expand the New York Police Department’s Muslim Surveillance Program to the Whole Country, and Permit Warrantless Searches of Mosques

Donald Trump has expressed his desire to expand the surveillance tactics used by the New York Police Department (NYPD) on Muslims living in New York and New Jersey to be used on all Muslim Americans. These tactics included having plainclothes cops monitoring buildings at all hours of the day and infiltrating student organizations for the sole purpose of gathering information on all members of those organizations. The exact tactics appear to be perfectly legal, and even commonplace, on the surface. However, the legality of the NYPD’s extensive surveillance of people just based on their faith is currently being challenged in the federal courts. Until that case is determined, it is unknown whether or not Donald Trump would be able to legally expand their tactics to the whole of the United States.

Warrantless searches of buildings are only permitted in two instances: in the case of exigent circumstances and in order to secure the area in which the police are attempting to arrest a suspect. Exigent circumstances prompting a warrantless search only exist when evidence may be easily destroyed by the time a search warrant is issued. It is unforeseeable that exigent circumstances would be commonplace in mosques to allow for the warrantless searches that Donald Trump seems to want.

As for a search of the area while arresting someone, this is a very limited search that would not permit for a thorough search of a whole building, which is what Donald Trump appears to be after when he refers to searching a mosque. Any other kind of warrantless search is prohibited by the Fourth Amendment. That is not to say that such a search will never be permitted, as the ban on such searches may be ignored if the political climate is right. After all, Congress famously suspended habeas corpus, which is the right to challenge unlawful imprisonment, during the Civil War.

5. Deporting Syrian Refugees Who Have Entered under Obama’s Presidency

As president, Donald Trump may be able to seek the deportation of some of the Syrian refugees under the Smith Act, which permits the deportation of immigrants who are or have been affiliated with organizations that advocate the overthrow of the American government. Thus, so long as a Syrian refugee had actually belonged to Daesh, also known as IS or ISIS, or provided support to Daesh at some point prior to fleeing Syria, they could be deported in accordance with the Smith Act. However, such a deportation scheme would involve a lot of work, as the government would need to provide evidence showing that the involvement was more than just merely cooperating with Daesh in an effort just to survive or being sympathetic to Daesh’s cause.

Alternatively, Donald Trump’s administration could refuse to grant permanent resident status to Syrian refugees, deny renewal for any visas that were granted to the refugees, and then deport them for overstaying expired visas. However, as some Syrian refugees have been here for more than a year and are already able to apply for permanent residency, this plan may not work for all of the refugees.

As one can see, not all of Donald Trump’s presidential goals could actually be achieved. However, there are a surprising number of ways that some of his plans could actually be deemed to be completely legal, supported by both the Constitution and judicial decisions. It certainly serves as food for thought going into the 2016 presidential race.

 



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