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Government Property Seizures Continue in New Mexico Despite Laws Designed to Prevent Seizures

A recent police seizure in the City of Albuquerque has brought national attention to New Mexico’s law restricting civil asset forfeiture. Last summer, New Mexico enacted legislation restricting civil asset forfeiture to post-convictions only. Nevertheless, it appears local police departments may be slow in implementing the new legislation.

What is Civil Asset Forfeiture?

Civil asset forfeiture is government seizure of property that is connected to a crime. For instance, the federal government or a state government may take a vehicle connected to a DWI or money related to a bank robbery.

Civil forfeiture should not be confused with criminal forfeiture. Under criminal forfeiture laws, property may only be seized after a criminal conviction. In other words, the government must prove the crime charged beyond a reasonable doubt before taking property connected to that crime. Civil forfeiture, on the other hand, does not require a criminal conviction prior to the government’s seizure.  The government need only have a reasonable belief that the property has been used in association with criminal activity. Civil Asset

It is the property that is on trial in civil asset forfeiture cases, not the individual who committed the crime. As such, the property’s owner might not be the person who engaged criminal conduct. In civil forfeiture cases, the property’s owner has the burden of proving that the property was not connected to the underlying crime. Civil forfeiture laws present constitutional problems since property may be seized and held until the property’s owners can prove innocence. Some states have provided protections for innocent third-party owners, but many states have not. States like New Mexico have begun enacting laws prohibiting forfeitures until after criminal convictions.

The Martinez Family’s Story

The Martinez’s story demonstrates the effects of forfeiture laws on innocent third-party property owners. In this case, Ashley Martinez had a mechanic friend test drive her family’s car to diagnose a transmission issue. Unbeknown to Ms. Martinez, her friend’s license had been revoked for a DWI. The two were pulled over by the Albuquerque police and the car was seized under a local civil asset forfeiture ordinance.

Since civil asset forfeiture was banned by New Mexico, it appears that there have been several instances of government seizure under a local DWI ordinance. In November 2015, the Institute for Justice challenged the City of Albuquerque’s continued seizure of vehicles.  The Institute for Justice brought suit in district court on behalf of State Senator Lisa Torraco, an outspoken opponent of civil forfeiture. In May 2016, the court dismissed the case based on standing,a technicality that the Senator was not the proper party to sue. The Institute for Justice is considering appealing the decision and is also exploring other methods to enforce the new forfeiture law.

Will the Institute for Justice be Successful in their Challenge?

Vehicle forfeitures, specifically in the case of DWIs, may be difficult to challenge. The City of Albuquerque argues that the new law does not apply to the local DWI forfeiture ordinance. Albuquerque’s city attorney Jessica Hernandez stated that the “program is a narrowly-tailored nuisance abatement law to protect the public from dangerous, repeat DWI offenders and the vehicles they use.”  Since the law is specifically designed for public safety, the court might allow the DWI ordinance to remain.

Continued Enforcement Problems

As the anti-civil forfeiture trend continues, local governments across the United States will likely face similar enforcement issues. Many local governments rely heavily on revenues from civil forfeitures. Local law enforcement agencies generate hundreds of millions of dollars each year from civil forfeitures. The City of Albuquerque alone has generated over $8.3 million from forfeited assets since 2010. The money provides much-needed revenue for underfunded police programs across the country. As in the case of Albuquerque, local governments would likely find legal loopholes to protect this revenue stream.

Mother Abuses 7-Year Old Son & Claims Indiana’s Religious Freedom Law as Defense

The breadth of using religious freedom as a justification for bad behavior has reached a whole new level. An Indianapolis woman abused her 7-year-old son with a coat hanger and is now claiming Indiana’s religious freedom law as a defense.

Kin Park Thaing was arrested and charged with felony child abuse and neglect of her son after his school teacher found red welts on the child’s back. The teacher contacted police and child welfare officials, after which the boy was taken to a local hospital. The examining doctor found 36 bruises and welts across the boy’s back, thigh, and left arm, as well as a curved bruise in the shape of a coat hanger across his cheek.

Thaing claims she was only stopping her son from dangerous behavior he was exhibiting towards his younger sister. According to court documents, her son could have seriously harmed his sister and she was, “worried for my son’s salvation with God after he dies.” Thaing further went on to state, “I decided to punish my son to prevent him from hurting my daughter and to help him learn how to behave as God would want him to.”

Court documents cited scripture, arguing that a parent who “spares the rod, spoils the child.”

The judge, however, wasn’t buying it and refused to dismiss the felony charges against the mother. Thaing is set for trial in October.

What is the RFRA and How in the World Can It Be Use as A Defense?

The Religious Freedom Restoration Act is a law that allows individuals and companies the right to assert their free exercise of religion when it is, or may be, substantially burdened. RFRA gained national attention when many critics argued it was a masked license to discriminate against the LGBT community.

Thaing’s attorney, however, argues that the RFRA gives the mother the right to discipline her children according to her beliefs and that the state shouldn’t interfere with her fundamental right to raise her children as she deems appropriate.

Prosecutors, on the other hand, argue the abuse went beyond religious instruction, went beyond what most parents would consider reasonable, and that, regardless, Indiana has a compelling enough interest to protect a child from abuse to outweigh Thaing’s religious right.

Argues Religious Freedom Allows Her the Right to Discipline How She Pleases

Discipline, yes. Abuse, no.  This is definitely a tricky area because, yes, parents should be allowed to discipline their children without interference. At the same time though, where do you draw the line between discipline and abuse?  It’s a slippery slope and one Indiana has already partially answered.

In 2008, the Indiana Supreme Court gave wide latitude to parents in Willis v. State of Indiana to discipline their kids when they overturned a felony conviction of a mother who used a belt or electrical cord to discipline her 11-year-old son.  Unlike Thaing’s case, no religious defense was claimed.  Instead, the court ruled that the child was struck in areas where corporal punishment was usually inflicted and, since it left no permanent damage, this particular form of discipline met the “reasonable” standard.

So, permanent damage appears to be the standard, at least in Indiana, and that leaves a lot of wiggle room for pushing the envelope between discipline and abuse. Bruises and welts certainly don’t leave permanent damage but, again, at what point do we draw the line?  Pictures of the boy’s back have been released and it’s not pretty.

Religious and Cultural Differences Once Again Make Their Way into Our Courts

Thaing’s attorneys are arguing that, as a Burmese refugee, Thaing’s failure to understand the law is merely a cultural difference and many are hoping the court will consider these differences on parenting. However, this isn’t the first time we’ve seen religion cited as a reason for actions that we would consider criminal.

In 2010, although eventually overturned, a New Jersey judge refused to grant a woman who was raped and sexually abused by her husband a restraining order because the husband’s actions aligned with his Muslim beliefs.

A good number of states are, however, against recognizing any kind of foreign or religious law into our legal system. Several states have passed legislation banning foreign and religious laws, regardless of whether or not it would permit something already legal.

In 2012, a jury refused to recognize a mahr agreement made between a woman and her husband, which entitled her to $677,000, simply because a Kansas law prohibited the application of foreign law.

Cultural and religious beliefs should be taken into consideration when determining whether there’s any malicious intent, but it shouldn’t outweigh or negate what our laws consider criminal, which leads us back to the standard that were set in the 2008 Willis decision.  If the punishment is reasonable and there’s no malicious intent, then a parent is probably within their rights.

That’s ultimately what a jury will be left to consider—a reasonableness standard. Spanking is one thing, but 36 severe bruises and welts?

AZ Supreme Court Clears Path for Recreational Marijuana Initiative

Arizona will be joining California, Maine, and Nevada in having a recreational marijuana measure on the ballot in November. The Arizona Supreme Court ruled on August 31 that a measure to make recreational use of marijuana will be permitted to be on the ballot in the fall. The ballot measure, better known as Proposition 205, aims to make recreational use of marijuana legal for Arizona residents who are 21 years of age or older.

While Proposition 205 will permit anyone who is at least 21 to possess and use marijuana without requiring them to also have a medical marijuana card, it still contains limits on the use and possession of marijuana. Arizonans who would be able to possess marijuana can only have 1 ounce in their possession at any given time. If a person possesses more than an ounce, they would be guilty of a misdemeanor. Possession of 2.5 ounces or more will still be a felony in Arizona.

This may prove to be a problem for many Arizona residents who intend to take advantage of the law if it passes, as the initiative also permits for people who are of age to cultivate 6 plants and consume everything produced by those plants. If a person cultivates a total of 6 plants but does not consume everything that all of the plants produce in a timely fashion, it may result in the person being in possession of more than 1 ounce accidentally and being in violation of the law. marijuana court gavel

A group called Arizonans for Responsible Drug Policy had filed a challenge to Proposition 205 with the intent to block it from appearing on the ballot. The complaint alleged that the supporters of the initiative used tactics to get it on the ballot that were unconstitutional. Also, the group asserted that the actual initiative violated Arizona state law in three separate ways.

First, the 100-word summary describing the proposition that was presented to voters to obtain signatures was allegedly fraudulent and misleading in its wording, meaning that people who signed the petition intended to get the measure on the ballot did not fully understand what they were signing in support for. Second, the summary failed to inform people about changes to different pre-existing laws that the initiative would enact if it passed, such as changes to employment and child custody laws. Third, the summary failed to identify a financial source to support the agency that will be created for the sole purpose of enforcing the regulations attached to the initiative.

However, the Arizona Superior Court judge who was assigned to the case ruled against the plaintiffs. First, the judge found that the Arizonans for Responsible Drug Policy did not have standing to bring the lawsuit. This was due to alterations made to the law by the Arizona legislature in 2015 that severely limited a citizen’s right to challenge any ballot initiative. The judge also took the time to address and rule against the actual claims in the lawsuit. In doing so, the judge determined that the supporters were allowed to put as much or as little information into the summary as they wanted, and that the summary was clear enough, in the judge’s opinion, that the signers of the petition knew what they were signing in support of.

The organization bringing the lawsuit did appeal the superior court’s ruling, but, as previously mentioned, the Arizona Supreme Court also ruled against the organization. Unlike the lower court, the Arizona Supreme Court did not state that the Arizonans for Responsible Drug Policy lacked standing. Instead, the Arizona Supreme Court focused only on the actual issues listed in the complaint when it issued its ruling. Thus, it is uncertain how this case may affect other lawsuits brought with the intention of blocking ballot initiatives. One thing is for certain, though, Arizona residents will be granted the opportunity to vote on whether or not they would like to have recreational use of marijuana legalized in their state.

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.