Archive for the 'Criminal Law' CategoryPage 2 of 60

Making False Claims of Ebola Is a Felony

Amidst the growing concern surrounding the deadly Ebola virus, there are some who seem to find it amusing to trick the authorities and others into believing that they are infected with the virus. However, it is hardly amusing to play on people’s fears about Ebola by making false statements. If you make such false statements, you will be charged with a felony.

ebola hazmat suitOne such instance was the case of a man who was arrested on a misdemeanor drunken-driving charge in Georgia and upon his arrival at Cobb County Jail, told the paramedic that he recently arrived from Liberia (one of the countries that are most infected with Ebola) and was experiencing symptoms of the virus. He also said he was in Nigeria, Brussels, and Virginia during his recent trip.

As a result of these statements, the man was isolated, the jail was put on lockdown, and the jail refused new inmates. But after testing the man for Ebola, it was discovered that he did not have the virus, and he had not made any trips outside the U.S. since 2005. The man now faces three counts of felony charges.

Another similar incident occurred on a U.S. Airways flight to the Dominican Republic from Philadelphia. A passenger sneezed and made a joke, stating that he had recently travelled to Africa, thereby implying to his fellow passengers that he might have Ebola. As a result of his statements, a hazmat team dressed in blue protective suits with hoods and clear plastic face masks, boarded the plane and removed him. Upon testing the man, it was discovered that he did not have a temperature, and did not have Ebola.

Still another example of false claims of Ebola occurred in a courtroom in Fort Lauderdale, FL, where an arrestee communicated to police that he had Ebola. Shortly afterwards, Fire Rescue hazmat responders donned with protective suits took the man to be tested for the virus at a medical center, where it was determined that he did not have Ebola. Had he actually been infected with Ebola, a minimum of 250 people, including 150 inmates and 100 corrections officers, could have been exposed to the virus.

In light of these and other similar hoaxes, clearly intended to scare people and to create a disturbance, it should be well publicized that anyone making these kinds of false statements will be charged with a felony, and suffer the consequences.

This is a very serious matter that shouldn’t be taken lightly. Making false statements about having a deadly, contagious disease is likely to cause panic, fear, and hysteria in everyone around. In the event that someone near you claims to have the symptoms of Ebola, here are the symptoms: fever greater than 101.5°F, severe headache, muscle pain, weakness, diarrhea, vomiting, pain in the abdomen, and bleeding or bruising without any known cause.

Can a No Trespassing Sign Keep Police Away?

Can No Trespassing Signs Prevent the Police from Entering Your Property for a Search and Seizure?

There are many misconceptions about a person’s right to be free of unreasonable search and seizures, especially when it concerns searches of private residences.

Can a No Trespassing Sign Keep the Cops Away?One common mistaken belief is that no-trespassing signs will keep the police off private property if they don’t have a warrant. Similarly, it is also a common belief that even if the police have a warrant, they must knock before entering a home or even announce themselves as the police. Surprisingly, none of these actions by the police are covered under the protections of the 4th amendment.

So What Does the 4th Amendment Protect Against?

The 4th amendment’s protection against search and seizure is the bedrock of all law concerning the search and seizure of a citizen’s person or property. It was the unfettered discretion and abuse of the police power that led to 4th amendment protection. It is important to be familiar with the exact phrasing, in order to appreciate the limitations of the police’s power to enter a home or search one’s property. The 4th amendment states that:

“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

However, over the last century, it has been the job of state and federal courts to interpret these words and create exceptions. As the challenges to searches make their way through the courts, such as the police entering property despite the presence of no-trespassing signs, the courts consistently rule against the suspect. Below is more explanation to this complicated area of law.

What Can Keep the Police from Searching My Property?

The law states that there is an intrinsic right of people to enjoy an “expectation of privacy.” This means that, generally speaking, the police are not permitted to enter one’s home without a warrant. If they have a proper warrant there is very little one can do to challenge a search.

When it comes to merely entering a person’s property to speak with a suspect, the courts have recently ruled that the police may enter without a warrant. The reasoning is that the general public has an implied license to knock on a door without actually entering and, therefore, the police can as well. Unfortunately, a no trespassing sign is not enough to revoke the right. However, there have been a few successful challenges to the “implied right” to enter the property. The suspect may be able to keep their right to privacy to keep the police from walking on the property at all by:

  • locked gate
  • call box or a sign with a telephone number directing the visitor to police to call first
  • Guard dogs if there is a sign announcing they are present

Finally, the police can actually enter a home or property without a warrant, if certain conditions exist. Exceptions to the 4th amendments warrant requirement include:

  • Open Fields Doctrine – any open or undeveloped property that is not intimately used for dwelling (including curtilage.) An example would be the suspicion that the suspect is growing marijuana in a wooded area. They can enter the area without a warrant.
  • Abandoned Propertywhen the owner does not maintain possession of the property
  • Consent – when the owner or person in possession of the property voluntarily gives their consent. The police do not need to inform the owner of this right. Also, recently the Supreme Court ruled that if a person is arrested and refuses to give their consent, they can ignore that consent and search if the remaining occupant gives consent.
  • Exigent Circumstances – immediate action is necessary. The time it will take to obtain a warrant could lead to the evidence will be destroyed, death or escape.
  • Plain View – the police can seize any item they have probable cause to believe is associated with criminal activity that he sees in plain view. This item can be seized even if it is not named in the warrant and will likely be added to the suspect’s charges.

Do I Need Legal Advice?

If your home has been searched and you feel that your expectation of privacy has been violated, you should immediately contact an experienced criminal law attorney. Even if the police try to use one of the exceptions to the requirement of valid warrant, an attorney will help ensure that you put forth the best defense possible.

NFL Domestic Violence Sparks Review of Union Policy

In the wake of a string of instances of alleged domestic violence, it’s clear the NFL has an inconsistent policy for when a player may or may not be disqualified. One player may be suspended for a season, another for several months, another may be suspended for two games, and another may not be suspended at all.

NFL Domestic ViolenceBy contrast, players that have been caught for drinking and driving, or possession of drugs like marijuana, have received specific and occasionally stiffer penalties.

The NFL’s inconsistent response to domestic violence issues hasn’t been very popular among the general public, and understandably so: if a player is suspended for one year due to a legal issue with controlled substances, but a player who is facing domestic violence charges is only suspended for two games, it communicates that domestic violence is inherently less awful than drug abuse offenses.

The NFL and Commissioner Roger Goddell seeks to change the league’s policy on suspension. However, doing so may be problematic. As it stands, the league wields the unilateral power over punishment and appeals.

The biggest hurdle may negotiations with the players unions. For example, policy decisions generally cannot just be made on a whim. The NFL and player’s union has been negotiating for years concerning the leagues drug policies; there is a general concern that similar negotiations may be conducted concerning a new domestic violence policy. This would mean it could be years before an actual policy is in effect.

Which raises one of the biggest questions regarding these unions: what’s the point? When unions were created, they served a purpose of protecting the rights of factory workers and other laborers who may not have had a voice on their own, but found strength in numbers.

These days, and specifically with respect to individuals who are typically making at least six figures, with the prominence of consumer protection and worker’s rights laws, it’s odd to imagine how collective bargaining and unionization protects their rights, as opposed to simply acting as an unnecessary step in an already complicated process.

Behind Texas Court’s Decision to Strike Down “Upskirt” Photography Ban

The recent Texas Court of Criminal Appeals ruling regarding “upskirt” photography – pictures taken covertly under women’s skirts in public and without their consent – has understandably drawn much outrage. The case has been widely described as ruling that it is legal to take these kinds of photos, which has generated a great deal of shock and anger.

texas court upskirt photo banThe court’s ruling did strike down a statute that would have outlawed this practice under the First Amendment’s Free Speech protection. However, a closer examination of the court’s decision and the statute in question demonstrates that this outcome was, more than anything, the result of extremely poor statutory drafting on the part of the legislature.

A law is unconstitutional under the First Amendment when it is overly broad. That is, even if the law aims to achieve a permissible purpose, if the language used encompasses substantially more conduct than intended, the law is unconstitutional.

The portion of Texas Penal Code Section 21.15 (the “improper photography or visual recording” statute) that was called into question was subsection (b)(1), which stated photographing or electronically recording a person is a crime if the photo or recording “is made without that person’s consent” and “made with the intent to arouse or gratify the sexual desire of any person.”

The State Attorney argued that the First Amendment did not apply because the statute did not target the “speech” (the photograph), but rather the “act” (the taking of the photograph). The State Attorney further argued that, even if the First Amendment did apply, the statute was limited by the consent requirement and, thus, not overly broad.

Under the State Attorney’s interpretation, if the photograph is of an area that is not exposed to the public, (such as a photograph taken up a woman’s skirt) the improper-photography statute criminalizes the behavior, if done with the requisite intent (to arouse or gratify sexual desire). However, if the photograph is of an area that was exposed to the public, (such as a photo of a woman wearing a swimsuit) the statute does not apply.

The State Attorney is bending over backwards to make this statute work, essentially asking the court to approve of an entirely different version of the statute than what is “on the books.” The argument that the act of photography (as opposed to the photo itself) is not a form of speech that invokes the First Amendment is nonsensical; and the State’s interpretation of the term “consent” is extremely broad.

The Defendant argued that, while the legislature has a legitimate interest in prohibiting “upskirt” photography, the statutory language used “fails to distinguish those situations from merely photographing a girl in a skirt walking down the street.” The court seemed to agree.

It is possible for a court to “save” an overly broad statute by utilizing a narrow interpretation. However, the Texas court felt that the “narrow interpretation” offered by the State Attorney – narrowing the statute, ironically, by using a broad definition of “consent” – was not possible in this case.

The court had previously construed “consent” as meaning “an actual or real agreement after thoughtful consideration,” and felt that the idea that a person consents to be photographed by merely appearing in a public place ran completely counter to this definition.

The court was concerned that imposing a definition of consent as broad as the one proposed by the State Attorney, when no such definition was provided in the statute, invaded the legislative domain and diminished the incentive for the legislature to draft narrowly tailored statutes in the first place. The court was also concerned that a very broad definition of “consent” might be a dangerous concept that, if utilized in this case, might be expanded to apply in other scenarios.

The court concluded by agreeing that a person being photographed in an area not exposed to the public, such as up a skirt, did violate the State’s legitimate interest in privacy, but pointed out that the statute in question was overly broad and did not even contain language addressing privacy concerns.

The court used the next subsection of the statute – Section 21.15(b)(2) – as an example of a provision narrowly tailored to address privacy interests: It is a crime to photograph or record a person in a bathroom or private dressing room. The court also offered some examples of ways that the legislature could have tailored the statute to make it less broad; such as requiring a person’s privacy interest to be invaded or prohibiting specific activities, such as “upskirt” photography.

These suggestions raise the question: Why did the legislature choose to focus on the sexual gratification of the perpetrator, rather than the privacy interest of the victim? What if the intent of the photography was not sexual gratification, but instead to mock or humiliate the victim? Should that victim be entitled to any less legal protection?

The court repeatedly refers to the statute as “protecting an individual from being the subject of someone else’s sexual desires,” stating that this is an unattainable goal. In fact, the statute was actually intended to protect individuals from dissemination of invasive photographs of their body parts by strangers. Clearly, the “sexual gratification” language in the statute confuses this purpose.

Thus, after a closer look, this case seems to illustrate the importance of a carefully drawn statute more than it does the ambivalence of the court towards privacy. It does not appear that the court is declaring “upskirt” photography legal or in any way condoning the behavior. The problem is that the legislature drafted a statute that was overly broad, while simultaneously failing to encompass situations in which personal privacy is invaded with non-sexual motives.

What is needed is a statute that encompass the entirety of the behavior the legislature is seeking to prevent, without also encompassing a wide variety of other behaviors.

Incoming search terms for the article:

Statutory Rape – Everyone Loses

Statutory rape laws are supposed to protect underage girls from predatory men. Ironically, statutory rape puts all the focus on the men. If society punishes men for engaging in sex with minors, then there won’t be underage pregnancies. From the state’s point of view, it makes complete sense. If only it were that simple.

statutory rapeStatistics appear to bolster the idea that statutory rape discourages adolescent pregnancy. In 2012, the teen birth rate in the United States was 29% of all births in the country. This is a drop from the 1990s, when the teen birth rate was 60% of all births. But what about the 29% of single mothers—girls under the age of 18—who do get pregnant? Abortion is permitted in some states, but abortion is controversial at best.

If a teenage girl does give birth, society wants to punish the father. But here’s the catch 22. If we send the father to jail for statutory rape, then he won’t be able to make money to pay for child support. While trying to protect teenage girls in general, statutory rape laws harm young mothers and their infants.

It is really difficult for a man to make money for his child if he is in jail for creating that child. Even when the father gets out of jail, he might be considered a sex offender. Registered sex offenders aren’t popular with employers, landlords, or the public in general.

This means that the adolescent mother is stuck raising her son or daughter on her own. In the modern United States, a single income household can’t support a child—especially if the single income had to drop out of high school to have the child. Chances are the child will grow up to be part of the same cycle that their parents found themselves in.

Is There An Alternative?

First, statutory rape laws aren’t going anywhere. Statistics support the idea that they keep teenage pregnancy down. Even without statistical support, too many voters would be worried about child molesters for statutory rape laws to be abandoned.

The question is whether men convicted of statutory rape should be able to share custody of their children. The way I phrased that question probably lends itself to a certain answer (“Yes they should!”). However, the truth of the matter is that this type of case is best handled on a case by case basis. Obviously, child molesters who are willing to lure young girls to bed might do the same to their daughters. On the other hand, if the father is a twenty-something year old who is just in over his head, society might want to set aside its own judgments for the best interests of the child.

Statutory rape often looks like it’s designed to make society feel better about the sexual nature of adolescence, even though that comfort comes at the expense of infants who need a mother and a father. The father might be naive, but a naïve father is better than no father.