Archive for the 'Criminal Law' Category

Ohio Lawyers Face Discipline If They Advise Clients Regarding Marijuana Dispensaries

Any lawyer who wants to do business or advise clients in the marijuana industry must first consider State ethic rules before accepting representation. The Supreme Court of Ohio’s Board of Professional Conduct recently concluded that a lawyer cannot advise a client to engage in conduct that violates federal law.

Marijuana, medical and recreational, is considered illegal under federal law, this new ethics rule means a lawyer can’t provide legal services to any client who wishes to operate a medical marijuana Marijuana 2enterprise or transact business with a person engaged in medical marijuana enterprises.

Ohio is the most recent state to pass such ethical standards. Last year, the Disciplinary Board of Hawaii’s Supreme Court similarly issued an opinion limiting the role lawyers can play in the marijuana dispensary industry. Likewise Pennsylvania’s Rules of Professional Conduct prohibits lawyers from counseling a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.

Federal Controlled Substances Act

The Controlled Substances Act (“CSA”) is the federal drug policy that regulates the manufacture and distribution of controlled substances like stimulants, narcotics, hallucinogens, and depressants. The Act categorizes drugs into five schedules based on their potential for abuse. Marijuana is considered a schedule one controlled substance. Because it is listed as a controlled substance, it is considered illegal under Federal law.

Discrepancy between State and Federal Laws

Medical marijuana is legal in twenty-three states and the District of Colombia. Many of those states have amended their ethics rules. Connecticut, for example, requires that a lawyer must inform his client of the conflict between Connecticut and federal law even though the state of Connecticut legalized medical marijuana. Arizona and Washington have taken a looser approach. In those states, a lawyer who fully advises a client of the Federal law implications and how they differ from State law can still advise a client so long as the counseled conduct is expressly permitted by state law.

Hawaii versus Ohio

Hawaii legalized medical marijuana about sixteen year ago, but only recently enacted a law that would license marijuana dispensaries for patients. The law set up a state-wide dispensary system with a total of up to 16 dispensaries. The law requires potential licensing candidates to have at least $1.2 million in the bank. Nevertheless, lawyers licensed by Hawaii are not permitted to give legal advice or assistance beyond counseling on the validity, scope, and meaning of the law to any individual who wishes to set up a dispensary or marijuana production center.

Hawaii’s Disciplinary Board cited two main reasons for its decision. The first reason is the fact that Congress hasn’t amended federal law since marijuana is still considered illegal. Secondly, Hawaii’s professional code of conduct states that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, and meaning of the law.”

On the other hand, Ohio’s medical marijuana law will take effect September 8, 2016. Under the new marijuana law, people can possess and use the drug without going to jail. However, the law does not specify where these Ohio citizens can obtain marijuana since Ohio marijuana dispensaries are not yet set-up. Lawmakers have stated that their residents can travel to another state and bring the marijuana back.

Just like Hawaii, one of Ohio’s main reasons for prohibiting lawyers from counseling or assisting a client who wishes to associate with the marijuana industry is the illegality of marijuana at the federal level.

Ohio goes one step further and concludes that a lawyer who seeks to use medical marijuana or in any way participate in the medical marijuana business violates federal law, which could adversely reflect on the lawyer’s “honesty, trustworthiness, and fitness to practice law.” In that regard, Ohio lawyers are held to a higher standard and are seemingly prohibited from using medical marijuana themselves.

Rio Games More Than Just Olympics – Also Features Crime and Doping Scandals

Even if you’re not a fan of the Olympics, you’ve probably heard of all the controversy surrounding the Olympic Games in Rio de Janeiro. The concern initially was whether the games should be held in Rio given the Zika virus. The focus then shifted to whether Rio was an appropriate venue given the crime rate and the political unrest. Now that the Olympics are underway, athletes and spectators alike are wondering whether many Russian athletes, who have been caught using illegal performance enhancing drugs in the past, should be allowed to compete in the Olympics at all. Many Russian Olympians have already been banned and those that are competing are getting booed by spectators.

What legal remedies do people traveling abroad have if they’re the victim of crime in Rio, and do the banned athletes have any legal recourse against the Olympic committee?

Crime in Rio

The Olympic Games are well underway and already there have been a number of crimes. Brazil has deployed 85,000 police and soldiers to combat crime and the threat of terrorism specifically for the Olympics. Rio’s Mayor Eduardo Paes promised that Rio would be the safest place to visit in the world given the extra security measures taken. Despite his promises, street crime since the beginning of the Olympics is well-documented.

The Chief of Security for the Opening Ceremony was mugged at knife point as he left the Olympic Stadium after the ceremony. A Portuguese education minister was assaulted while taking a walk in an upscale neighborhood in Rio. One Greek official was robbed of $11,000 in electronic equipment. One New Zealand jiu-jitsu athlete even claimed he was kidnapped in Rio, and there have been a host of other crimes in Rio during the Olympics. Olympic Flag

What is causing the crime? Mainly the financial crisis that the state government declared in June, which led to police and firefighters protesting lack of pay just weeks ahead of the games. The crisis combined with the worst political crisis Brazil has seen in decades has led to this “perfect storm” of crime coupled with little financial resources to combat against it. This is all happening when Rio is being judged by the rest of the world as the hosts of the Olympic Games. Bad timing.

While there is no doubt a wave of crime is hitting Rio and all of its visitors, there is nothing that these victims of crime can do legally against Rio or the Olympic committee. Why not? Just as people elect to vacation in various places in the world and may be the victim of crime in those countries, Olympians and spectators elect to visit Rio for the purpose of attending the Olympic Games. They knew of the potential for crime in the area and essentially assumed the risk. Even Olympians choose to go to the games, and some even decide not to because of the danger in Rio, most notably basketball superstars Stephen Curry and Lebron James.

This means that any person, Olympian or civilian, who traveled to Rio for the Olympic Games will have to be extra vigilant to ensure they are not robbed, assaulted, or worse.

Doping Scandal

A doping scandal has left the Russian Olympic team sparse. Many Russian athletes are not being allowed to participate in the Rio Games. Russian track and field athletes filed a class action and individual lawsuits with the arbitration court to challenge the International Association of Athletics Federations (IAAF) decision banning them from the 2016 Rio Olympics. The arbitration court ruled against the athletes and banned them nevertheless.

Now, the Russian Paralympic Committee (RPC) is in talks with the International Paralympic Committee (IPC) on speeding up court procedures regarding the blanket ban of Russian Paralympians from their participation in the 2016 Rio Paralympics. Paralympic Games is the major international multi-sport event for people with physical disabilities. It is the Olympics for the disabled. Like their Olympic counterparts, Russian Paralympic athletes are suspected of doping. Given the way things went for the Russian athletes who contested their Rio Olympic ban, the Paralympic athletes will probably be banned as well.

Both the Olympics and Paralympics have very strict rules regarding performance enhancement drugs, which they consider cheating given the unfair advantage they give to athletes. Anyone who takes them suffers the consequences. In this case, that’s a ban against competing.

Texas Sues Austin For Banning Guns in City Hall

Texas Attorney General Ken Paxton, along with others, has filed a lawsuit against the city of Austin for banning guns in City Hall. This suit comes on the heels of recent events involving gun control and the Second Amendment. There are legal grounds by which the Attorney General may proceed with the lawsuit and he is using it to full effect.

Ramifications of Second Amendment

A recently enacted law permits a party to initiate a lawsuit against local governments over their prohibition of gun laws. Paxton jumped on this and is planning to take the issue to court. City Hall has banned guns and this has led to outcry from both the National Rifle Association as well as other gun rights groups who want the full protection of the law in accordance with the Second Amendment.

Under the Second Amendment, every person is entitled the right to gun ownership. This sounds simple enough. However, the entire political spectrum has been upended because of this concept. In light of recent shootings that have been occurring nationwide and overseas, politicians and legislators are taking up a stand for or against these alleged weapons of destruction. Some will go as far as to ban even the most harmless of firearms, such as airsoft guns and the like. On the opposite side of the spectrum, there are hardline conservatives that will do whatever it takes to provide full access to guns and ammunition. Gun

There are strong arguments made on both ends. Texas has gained notoriety for being a rather staunch believer in gun rights, and has gone to great lengths, as shown here, to give the maximum gun rights to the people. Paxton is no newcomer to this issue. He has been fighting for gun rights in his home state of Texas and nationwide for a long time and hopes this new legislation will pave the way for further rulemaking that will enable full gun control across the nation. City Hall does not allow guns to be carried at their facility but with this lawsuit, Paxton hopes to curb gun control by giving people the right to carry firearms on their person even at sensitive locations such as government buildings and courthouses.

Discrepancies in the Law

As I mentioned earlier, the Second Amendment essentially grants the right to gun ownership; however, there are nuances to this very broad area of law. Case law, which acts as valuable precedent, has tweaked the framework when it comes to the Second Amendment ever since its conception. United States v. Miller did not give unlimited gun rights to a gun owner, but limited it accordingly.

For example, an AR-15 might be exempt because an AR-15 might not fulfill the intention of the Second Amendment, which was to equip individuals with a defense that was in line with a well-regulated militia (as required by the Second Amendment). This is but one case that has discussed the Second Amendment and built on it in some way. There are many more and it is still an ongoing debate.

Furthermore, every state has its own set of rules when it comes to gun control. For instance, in California, it is a conceal carry system, meaning that for someone to go around publicly holding a firearm on their person, they will need some form of permit. In other states such as Florida, it is an open carry system, and this permits the gun holder to publicly carry their firearm. Texas has a similar approach.

The point of all this is that the Second Amendment by itself does not govern the issue. It is an intertwined system that is controlled by many different judicial layers and there are political underpinnings to it that make it that much more difficult to understand. It will come down to the legislators to change the system into a more functioning and uniform entity that will not continue to polarize the major political parties and will hold true to the values embedded in the Constitution.

Old v. New

One of the inherent problems with this gun rights debate is interpretation. The U.S. Constitution was conceived during an era when the open landscape allowed for gun use. Today, we live in an entirely different era. How should the Constitution be altered to fit with this new way of life? The late Supreme Court Justice Scalia strictly adhered to the language of the Constitution and this left little room for interpretation.

On the other hand, there are others who will allow for more interpretation. And even further along the spectrum, there are jurists who will mold the interpretation so that it is reflective of the times. Zeitgeist, or the spirit of the times, is the real deal, and the Constitution needs to be interpreted according to the frame of mind that exists at the time. Today, we live in a world where terrorist attacks are rampant and security measures are not where they need to be. None of the founding fathers were plagued with an international threat such as this, so they couldn’t possible have had this in mind when they put together the Constitution.

There needs to be change. The text of the Constitution is important, but adjustments have to be made. The reason why the gun rights debate is so polarizing is because one side adheres so strongly to the Second Amendment while the other side wants to change the old by injecting a new model that does not necessarily change the old but places it in a new and relevant context. There is a reason why close to thirty constitutional amendments have been made over the last couple centuries.

Are Three-Strikes Laws Outdated and Unfair?

Donald J. Trump proclaimed himself the “law and order candidate” in his speech at the Republican national convention, announcing that violent crime is through the roof in major cities across America. Mr. Trump seemed to imply that criminals should face even harsher penalties for their wrongdoing. After all, shouldn’t we do whatever we can to keep “bad guys” off the streets? So why then are some states deciding to scale back on strict laws that send three-time offenders to jail for life?

What are Three-Strikes Laws?

28 states have laws in place that give alleged offenders harsh, mandatory penalties (generally a life sentence) for their third felony. Similarly, other states have what are known as habitual offender laws, in which an offender can face an enhanced penalty for a crime committed after a certain number of felonies. Three-strikes and habitual offender laws varies state by state and can depend on factors such as the seriousness of the felonies, the length of time between felonies, and the discretion of the judges.

Recently, New Mexico passed their own three-strikes legislation, adding 16 felonies to the list of crimes that make repeat offenders eligible for life sentences. The bill passed 47-15 in the House of Representatives, even after Democratic lawmakers protested, calling the law too broad and outdated.

Delaware Does Away with Its Three-Strikes Law

Some states have decided to take a very different attitude towards repeat offenders. Delaware decided to amend their three-strikes law after the House of Representatives approved a bill on June 21st. Delaware’s defeated Habitual Offender law mandated a life sentence for offenders who had committed three violent felonies. Additionally, people who were found guilty of three nonviolent felonies and one violent felony used to be required to serve the felony conviction’s maximum sentence. Prison

Under Delaware’s new sentencing law, there will be no mandatory life sentences handed down to habitual offenders— although judges will still be able to give life sentences at their discretion. Additionally, the new law permits offenders who are currently serving time under the old three-strikes law to enter into a review process to appeal their sentence.

The repeal of Delaware’s Habitual Offender law sparked outrage from some lawmakers, who argued that the new legislation ignored the victims of violent crime and posed a risk to public safety with dangerous criminals allowed back on the street. However, those in favor of the new law pointed out that the Habitual Offender law caused offenders to be saddled with disproportionate and unfair sentences. For example, under the Habitual Offender law, someone convicted of burglarizing a house could be given the same sentence as someone convicted of murder. Critics charged that the Habitual Offender law gave prosecutors all the power in sending offenders away for life, leaving judges with no discretion.

The Nationwide Fallout of Three Strikes Laws

The first three-strike law in the nation was passed in Washington State in 1993. The law categorizes a number of violent crimes as “strikes,” including second-degree robbery. Someone can be charged with second-degree robbery even if they weren’t armed at the time of the crime and didn’t physically harm anyone.

If that second-degree robbery is your third strike, you could get sent to prison for life in Washington. Skyrocketing prison populations, the failure of three-strikes laws to take offenders’ individual circumstances into account, and the lack of judicial discretion in three-strikes cases are common shortcomings of three-strikes laws.

Over the years, some have tried to modify the three-strikes law in Washington. Such efforts included requests to remove crimes like second-degree robbery from the list of strike offenses. Additionally, legislation has been proposed to allow certain three-strike offenders convicted of lesser felony crimes to have their sentences reviewed after 15 years of jail time by the Indeterminate Sentence Review Board.

However, there are still those who oppose changes to the law. These people argue that voters have made it very clear that they want habitual offenders off the streets, by whatever means necessary.

Transgender Teen Can’t Use Boys’ Bathroom Right Now, Supreme Court Rules

A transgender teens landmark win over his school’s refusal to let him use the bathroom he associates with has been blocked by the U.S. Supreme Court, at least temporarily.

Gavin Grimm, a transgender student who associates as a male, attends a Gloucester County School in Virginia. The school originally accommodated Grimm, allowing him to use the boys’ bathroom. After complaints from other parents though, the school board later barred the school from making any accommodations.

They allowed Grimm to use a unisex bathroom, but that only caused Grimm further stress; he became so distraught about not being allowed to use the boys’ restroom that he began avoiding it all together at school, which ultimately led to health concerns for the young teen. He ultimately filed suit against the school alleging civil rights violations. Gavin Grimm

In April earlier this year, a federal appeals court ruled in favor of Grimm declaring that schools must allow transgender students to use the bathrooms that match their gender identity. The decision was based on a regulation issued by the Department of Education, which declared that Title IX prohibits schools receiving federal funds from discriminating based on upon a student’s sex.

The school requested to stay the preliminary injunction requiring the school to accommodate Grimm as they prepared for an appeal to the U.S. Supreme Court. The high court granted the schools’ request, staying the decision. Grimm, in the meantime, will not be allowed to use the boys’ bathroom while the appeal is pending.

Is This Discrimination?

That’s obviously the hot topic issue right now. Title IX states:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

According to the U.S. Department of Education, this includes 16,500 local school districts, 7,000 postsecondary institutions, charter schools, for-profit schools, libraries, and museums. So, if you want their money, you need to comply with their rules.

Refusing to allow a child to go in the bathroom designated for the gender in which they associate is in itself discriminating based on sex. Forcing a transgender student to go into a separate designated bathroom is also a no go.  The Supreme Court decided long ago in Plessy v. Ferguson “separate but equal is inherently unequal.”  The school has privacy interests to protect, but it also has to protect the rights of transgender as well.

One major issue that seems impossible to overcome is the fact that if schools want to enforce the rule that you have to use the bathroom corresponding with the sex you were born with, someone has to be policing and actually enforcing these rules. Put another way, schools cannot practically check what a student’s gender is before letting them use the bathroom. What policies could the school possible put in place to monitor compliance with their rules that wouldn’t violate students’ privacy on another level? Under Title IX, the school cannot require a student to provide legal or medical evidence in order to have their gender respected.

So, What’s Next?

The school is in the process of appealing the decision to the Supreme Court. In the meantime, Grimm will be required, according to the school’s policy, to use the girls’ bathroom.  If the Supreme Court refuses to hear the case, the 4th Circuit decision will stand.  Because the 4th Circuit decision is a federal appeals court, the original decision is binding on all five states within the Fourth Circuit—Maryland, North and South Carolina, Virginia, and West Virginia.

California, Colorado, Connecticut, Massachusetts, New York, and Washington have all already enacted policies requiring schools to permit transgender students to use the bathrooms of the gender they associate with. Others are not so keen on the idea and a Supreme Court ruling on the matter could mean law changes.

While North Carolina has passed legislation requiring students to use the bathroom corresponding with the sex they were born with, whether the 4th Circuit decision is upheld will have a huge impact on that legislation and any other state wanting to ban transgender from using the bathroom they associate their identity with.

With such a controversy on the topic, just like they did with gay marriage and most recently workplace discrimination based upon sex, the Supreme Court will likely hear the case, if not now, than at some point in the near future.