Archive for the 'Criminal Law' Category

Minnesota Friends Face Criminal Charges for Attempting to Join ISIS

Six Minnesota men were charged on April 20th for conspiring to provide and attempting to provide material support to the Islamic State of Iraq and Syria (ISIS). The men, ranging in age from 19-21, drove from Minneapolis to San Diego in hopes of reaching Mexico to fly to Syria.

ISISThe multiple arrests were a victory for the FBI after a 10-month long investigation of ISIS recruitment in Minneapolis.

In addition to the six men, another man was caught trying to join ISIS but agreed to work with authorities and stop all efforts in reaching Syria. He worked as an informant, receiving about $13,000 for helping the FBI catch the recruits. The man handed over secretly recorded conversations and meetings of the six other men to authorities.

The men appeared in court Thursday the 23rd, greeted by support from their families and community. But, anger from the community towards the FBI was potent at the courthouse. The community was furious that the informant handed over most of the evidence the FBI needed to arrest them. They believed without this information, the FBI would not have any evidence to charge the men.

An FBI agent testified that the evidence the informant provided proved the men persisted in trying to reach Syria to join ISIS even after they had been stopped from boarding planes en route to the country.

It is common knowledge ISIS is a threatening foreign terrorist group. Terrorist activity and engagement in terrorism by ISIS can easily be proved to the court. Because of these three factors, the six men are facing either a fine, imprisonment not over 15 years, or both for attempting to help a known foreign terrorist organization.

New Mexico Passes Civil Forfeiture Law

The law often uses strange jargon that ordinary people don’t understand, but will significantly harm people if they did comprehend the words’ meaning. Civil forfeiture is an excellent example.

Civil Forfeiture LawCivil forfeiture is far more insidious than its individual words might suggest. Civil forfeiture is a process where law enforcement can seize property – including cash, cars, or even houses – without a conviction or even an arrest.

Police can bring civil forfeiture suits directly against the property itself, with interesting case names like United States of America v. $124,700 in U.S. Currency or United States v. Approximately 64,695 Pounds of Shark Fins. That’s right; the property is on trial, not the property owners!

Most of the properties subject to civil forfeiture typically come from ordinary drivers. Suppose a man wants to move from New Mexico to California to start a business and has $20,000 in cash in the backseat. If the police pull this man over, they can confiscate the $20,000 if they suspect the cash will be used in a crime.

Civil forfeiture was originally created so that police could enforce drug laws without having to prove the drug kingpins were guilty. Like all legal doctrines, civil forfeiture has grown beyond its intended purpose. Today, civil forfeiture has become a pervasion of the Constitution, with property being seized until the innocent can prove they are not guilty.

The fact that police have been using the stolen money to buy alcohol and slush machines only underscores how corrupt civil forfeiture has become.

Reversing the Trend

A few states are taking measures to end abusive civil forfeiture. Two weeks ago, Governor Susana Martinez signed a bill that restricts civil forfeiture actions to convictions. In other words, the police can only seize property if the owner has been found guilty of a crime. North Carolina is the only other state that has passed legislation to curb civil forfeiture actions. In North Carolina, the police can only conduct civil forfeiture if in cooperation with the federal government.

New Mexico and North Carolina are moving in the right direction, but their laws still assume that allowing police to confiscate property is still a good idea. The best reason police would want to hold property from arrestees is that the property can be used as evidence against the defendant. If the owner has already been convicted though, then confiscating property after conviction defeats the purpose of holding property as evidence against the property owner.

The police would want to hold property either to profit off the things they confiscated or to prevent other criminals from using the property. Keeping gang members from using confiscated vehicles might be a reasonable goal for law enforcement, but we should be wary when police are allowed to profit from their jobs. When police talk about protecting and serving, we should ensure that the people they are serving are the general public, not themselves.

Police Use Deadly Force in a Brawl with Christian Musicians

A family of traveling Christian musicians brawled with four cops in a Walmart parking lot on March 21st.  The fight resulted in an officer shooting and killing one of the brothers.

Arizona Walmart Brawl Deadly ForceThe brutal 9-minute long fight was caught on the cop car’s dashboard camera. The fight started when a female employee tried to use the restroom at the Walmart and was shoved by two of the brothers because their mom was using the restroom.

The family immediately started to assault the cops as soon as they arrived at the scene. Punches were thrown and the cops attempted to subdue them by pepper spray and a Taser. The family kept fighting even after pepper sprayed and hit with a Taser, prompting the officers to call for back up.

A struggle for one of the officer’s guns left Enoch Gaver dead, and David Gaver shot in the stomach.

Peter Gaver, Ruth Gaver, Nathan Gaver, and Jeramiah Gaver were all arrested and are facing charges for aggravated assault, resisting arrest, and hindering prosecution.

Was the Police Use of Deadly Force Legal?

Police officers can use deadly force in self-defense. If an officer feels there is imminent threat to his or the public’s safety, he is allowed to and is legally protected if he deems it necessary to use deadly force.

Enoch Gaver reached for and struggled to grab the officer’s gun. Therefore, the “reasonable choice” the officer had in the situation was to immediately kill him. Deadly force may be used when no other action is believed to succeed. In this case, the officer either needed to kill, or be killed. The shooting was completely justified.

San Francisco’s Police Texting Scandal Leads to Extensive Investigation

In San Francisco, 14 police officers are currently under investigation after racist and homophobic text messages have come to light. Seven officers and former Sargent Ian Furminger are currently suspended while the commission decides if they should be fired. Furminger has been convicted of public corruption charges.

SF Text ScandalThe text messages involve content of lynching African-Americans and burning crosses, along with extremely racist banter between the officers. Texts also include homophobic messages, which is especially surprising given that San Francisco is a city famous for its acceptance of the LGBT community.

An attorney for one of the officers claims they cannot be fired because the statute of limitations has passed. The attorney also claims the department knew about the text messages in 2012, but did not open an investigation until recently. The police chief disagrees with this claim.

Lawyers for the officers also claim the texts do not represent their views, and should be considered just a way of blowing off steam within their intensely stressful jobs.

Sargent Ian Furminger

The texts were discovered during an investigation against Sargent Ian Furminger, who sent many of the texts. Furminger was undergoing a federal corruption case. Convicted of stealing money and property from suspects, he was sentenced to 41 months in prison.

Racism and Homophobia Cannot Be Tolerated in a Police Department

Due to the hateful nature of the texts, the police department found it necessary to investigate cases involving officers dating back 10 years, to ensure no bias or unfair treatment was imposed on racial minorities or LBGT people. Currently, 1,000 cases are set to be reviewed.

Should Rapists Have Parental Rights?

The Daily Show did a segment on rapists and parental rights last week. Samantha Bee hugged adorable animals while dealing with the reality that women cannot terminate their rapist’s parental rights. Even though proposed laws terminating rapist’s parental rights have bipartisan support, about twenty states have yet to pass any laws regarding the parental rights of rapists.

RapeDisturbingly, many of these rapists will use child custody battles in family court as a means to drop the rape charges against them in criminal court. Many mothers will elect not to testify against the rapists rather than go through a soul-numbing child custody battle. As a result, many rapists walk out of criminal court free. The rapists don’t leave because they’re innocent though; they’re free because they used the family court to blackmail the victim.

This isn’t a small issue. According to Shauna Prewitt, an attorney who personally experienced this vicious system, about 32,000 women each year become pregnant after being raped. At least a third of them give birth and raise the child.

The Child’s Best Interest Are Not Served by Rush of Judgment

The parental rights of rapists are one of the toughest issues a family law court will face. It’s important that we have this debate. But this debate is ending in the wrong direction. The focus of a child custody dispute is, and always should be, about the child.

All press is focused on the mother. Congresswoman Schultz’s description of a nightmare scenario placed the listener in the mother’s head. “Every other weekend, you have to meet your rapist in a Denny’s parking lot and hand over your child? No, that can’t be real.” Congresswoman Schultz believed the solution was obvious. “If you’re the victim of rape, and you conceive a child, then you should be able to terminate your rapist’s parental rights.” Once again, the focus is on what the woman should be able to do, rather than what the child’s prospects could be.

Congresswoman Schultz means well, but “conception by rapist” is an emotional rallying cry for women’s rights rather than a real thoughtful assert of a child’s future. If we give a kneejerk reaction, we may miss certain problems.

The most obvious problem is that we are assuming the father is guilty. Unless the father pleads guilty or is convicted of rape, the father is not a rapist. In rape cases, one of the strongest defenses is that the woman consented to sex. Evidence is hard to come by in those cases, so it comes down to a “he said, she said” battle. In child custody cases, the parents may be so focused on fighting each other that they cannot make good decisions for the child.

Family courts use the child’s best interest standard because parents often need reminders that their fight is about their child, not each other. There are plenty of child custody cases where the mother falsely accuses the father of hitting her or stealing from her or abusing her, in the hopes that the court will give her sole custody. Family law judges and lawyers wouldn’t be surprised if a mother lies about being raped in order to gain sole custody.

I’m not saying that all women who accuse the father of rape are lying. I’m certainly not suggesting that fathers should use child custody as leverage to get out of criminal court. But rape and child custody are highly emotional topics where evidence may be hard to come by. If the mother is lying about the rape and the state terminates the father’s parental rights, it is the child who will suffer.

Instead of a unilateral termination of parental rights if the mother accuses the father of raping her, states could enact a law prohibiting parents from dropping criminal charges in exchange for child custody. It would not be in a child’s best interest to have a parent sacrifice the child so that the parent can remain out of prison. Prohibiting child custody settlements from dropping criminal charges is a solution that would protect the defendant’s criminal rights, the mother’s rights, and the child’s best interests.