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“Contempt of Cop” – The Law of Standing up to Police Officers

“Contempt of cop” is a popular phrase floating around the Internet lately. A play on words created by police officers and civil libertarians, the phrase describes a situation where a citizen disrespects the authority of law enforcement–from the perspective of law enforcement. Despite the connotation, contempt of cop is not actually a crime. In fact, it should probably be encouraged.

contempt of copA good demonstration of this law concept comes in the form of a YouTube video posted in July of 2013. A young man rolls through a DUI checkpoint on the 4th of July, where he encounters several ornery sheriffs. One sheriff wants him to roll his window down further—which, judging by the video, is not necessary—and when the young man refuses, he is ordered over to what is presumably a section where officers order detainees for further screening (which the officer arguably did not have suspicion to do so).

As the video progresses, the officers’ frustration over the young man’s entirely lawful reactions and responses to aggressive police behavior and questionable investigatory techniques ultimately lead them to bringing in a K-9 Unit, which produces a “false trigger,” which gives them cause to search his car. With the camera still rolling, the original sheriff, while conducting what is very arguably an unlawful search (particularly in context of what he will say next), is recorded saying, “He is perfectly innocent. He knows his rights. He knows what the Constitution says.” Then continues to search anyway. Once the officers notice they are being filmed, they turn the camera over. The search expectedly does not turn up anything illegal, and the ordeal ends.

While many of these contempt of cop videos demonstrate that citizens have a slightly misinformed or inaccurate understanding of the particulars of the law, the same lack of knowledge of the law is demonstrated by the officers. Both parties in these videos occasionally just seem to rattle off buzzwords in an attempt to intimidate the other party. Ultimately, however, they inspire an important thought: the more citizens challenge officers, the more citizens and officers should be compelled to educate themselves.

But how far can contempt of cop go? While in law school, I remember hearing of a young San Francisco man who was arrested after a police officer didn’t believe the name he was giving him, so he asked the cop “What if I tell you [my name is] f*** you?” During closing arguments, his lawyer astutely pointed out that “It is not a crime to have a smart mouth.” The young man was ultimately acquitted. While being rude to a cop is never recommended, this case illustrates an important concept—your rights are your rights, and no one, especially not the government, can take them away from you simply because you have insulted them.

It goes without saying that the safety of police officers and their ability to conduct their job without opposition are incredibly important. However, that does not mean that police officers are bestowed an unlimited amount of power and authority. When they are abusing their position in order to cut corners—or violate constitutional rights—citizens absolutely should not be afraid to be in contempt of cop and speak up.

However, I’d like to see this phrase go away, because in essence, this whole concept of contempt of cop is simply citizens exercising their constitutional rights. And unfortunately, as demonstrated by the case of the young San Francisco man, occasionally exercising those rights come with a price. It is not uncommon for those questioning an officer’s authority to be tagged with a citation or perhaps an arrest. While there is some solace that calmer, more legal heads will prevail, and these charges will likely go away, it is a cold comfort.

The simple fact of the matter, however, is that the First Amendment and the Fourth Amendment protect some very important rights, and an increased awareness of what those rights are is ultimately better for everyone—citizens and law enforcement alike.

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Wearable Technologies Push Legal Frontiers

When I was a kid, I remember electric blankets were all the rage. However, after reports of these blankets causing fires, they quickly became a thing of the past. A few years ago, after Google Glass emerged, I couldn’t help but think of the electric blanket—an interesting, novel product, but with a slew of potential legal troubles that may ultimately leave owners getting burned. As it would turn out, Google Glass was merely the tip of the iceberg for the revolution of wearable technology. However, it seems as though concerns over the potential problems of these wearable technologies is entirely warranted. wearable technology

What Is Wearable Technology?

While it may seem like an obvious question, it deserves a bit of an explanation. “Wearable technology” describes clothing or accessories, such as a bracelet or glasses, which utilize computer technology that gives the wear some heightened sense of practicality. An early example of this is a calculator watch. In addition to giving the person the ability to tell time, they could calculate tips or other simple math equations on the fly.

The most talked-about wearable technology is Google Glass. You wear Google Glass just like any other set of glasses, except instead of polarization and UV protection, these glasses offer people the ability to surf the web, check the weather, read text messages, and even make photographs and record video in 720p.

“Smart watches” are also receiving an increasing amount of attention. These devices are similar to calculator watches, in the sense that they keep time in addition to other functions. Where they differ is that rather than just compute numbers (which they can still do), these watches also operate as .mp3 and FM radio players, cameras, GPS navigation systems, and even as a cell phones. Wristband devices can also monitor your heart rate, sleep quality, and how many calories you burned.

Clothing companies have even started entered the wearable technology field. What some of these “clothes”—if you can call them that—can do is astonishing. For instance, BB.Suit has designed a piece of clothing that makes the wearer a walking WiFi hotspot, Studio Roosegaarde has crafted a type of high-fashion dress that becomes ‘see-thru’ as the person’s heart rate increases, and there has even been talk of companies testing prototypes of clothes that can harness solar power.

Why Is Wearable Technology a Legal Concern?

Wearable technologies have the potential for causing serious privacy violations. For example, those equipped with an app called “Winky” could use Google Class trigger the camera mechanism with the blink of an eye. This not only raises concerns over privacy, but also sparks an interesting issue with various wiretapping laws.

Private establishments have every right to maintain some manner of control over the conduct of people entering their premises. Shortly after the first Google Glasses started popping in the San Francisco Bay Area, many establishments began posting signs that asked wearers to remove their glasses before entering due to privacy concerns of other customers. Casinos in Las Vegas have banned them outright.

Law enforcement has been having trouble regulating the use of Google Glass. In October of 2013, a San Diego woman was ticketed for wearing her glass while driving. Ultimately, the case was thrown due to a lack of evidence that the glasses were actually on and in use while the woman was behind the wheel. But the statement was already made: Don’t Google and drive. In other parts of the country, legislatures have made efforts to get the Google Glass put in the same category as a cellular phone.

Smart watches pose many of the same problems as Google Glass. If glasses are causing a ruckus by being able to send texts, access the Internet, and capture images in the wink of an eye, it is not unreasonable to see how the exact same privacy concerns arise over a watch that can do the exact same thing with the flick of a wrist. Similarly, using smart watches to text and talk while driving will force legislatures and law enforcement alike to figure out ways to control the use of these devices, many of which look like normal wrist watches.

Aside from criminal issues, there are also concerns over health and safety. “Fitbit,” who manufacture an athletic wristband, recalled one of its models after users began to complain of skin irritation. As the popularity of wearable technology grows, so will the lawsuits over design defects and harm caused by them.

The Legal Community Should Encourage Innovation

Regardless of the potential legal problems the legal community, it is exciting to see how much technology has grown in the last twenty years. If watches that double as phones and temperature regulated jackets are today’s hot item, it’s mind boggling to think of what type of gadgetry the next twenty years will bring us. When developing laws to regulate new technologies, the legal community should be careful to not impede future innovations.

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Obama’s Marijuana Policy Is Dangerous – He Might Get Sued for It

House Republicans passed a bill to sue Obama for failure to enforce the marijuana ban…

It’s hardly news anymore that Congressmen pass useless bills. The “Enforce the Law Act” (ELA) is another bill in a long line of bills passed as a political stunt. The ELA would allow Congress to sue the President for failure to execute laws. House Republicans insist the law is necessary because President Obama cannot cherry pick which laws he wants to enforce. Republicans claim that Obama’s policy on marijuana is an example of the president’s breach of executive duties.

Marijuana PolicyWhat exactly is Obama’s policy on marijuana?

On one hand, Obama has promised not to interfere with Colorado or Washington as the two states legalize recreational marijuana. The president has also promised that marijuana dispensaries can do business with banks without prosecution by the Justice or Treasury Department.

On the other hand, the president is not the proud supporter of marijuana legalization that Republicans portray him as. The Controlled Substances Act (CSA) is the law which criminalizes drug usage at a federal level. The CSA divides drugs into certain categories. For example, Schedule I drugs are substances which have a “high potential for abuse” with “no currently accepted medical use.” Although the CSA is a congressional act, determining which drug is a Schedule I drug is the responsibility of the Drug Enforcement Agency (DEA). If Obama ordered the DEA to remove marijuana from the list of regulated drugs, federal raids on marijuana could end overnight.

If that position is too radical, the president could simply order marijuana to be moved down from Schedule I to Schedule II. Schedule II drugs are substances which have a “high potential for abuse” with “currently accepted medical use with severe restrictions.” Unlike Schedule I drugs, patients can lawfully access Schedule II drugs. Patients who use Schedule II drugs are subject to restrictions, such as mandatory written prescriptions, but the level of prosecution is not the same as Schedule I drugs.

Changing the legal status of marijuana would be a bold political move. I can understand why he would want to avoid taking such a step. However, even if the president doesn’t want to outright decriminalization marijuana, he could support state cultivation of the marijuana industry in other ways. The IRS continues to deny tax breaks to marijuana dispensaries and the US Trustees office makes its almost impossible for dispensaries to file for bankruptcy.

The president promised that the Justice Department wouldn’t interfere with Colorado or Washington, but the Justice Department also released a memo stating it would continue to make raids based on certain criteria. The restrictions aren’t controversial because the memo claims that its targets are dispensaries which sell to children or the black market. However, this gives the DEA a lot of room to maneuver since it’s always possible that some users will resell marijuana to people who shouldn’t have marijuana. A few bad apples are not a reason to completely undermine state policies though.

Allowing dispensaries to access banks is a good start. However, republican fears that the CSA isn’t being enforced are ill founded. President Obama hasn’t changed federal policy regarding marijuana. The policy is simply more subtle than usual.

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Film the Police! – Is It Legal to Film and Photograph Law Enforcement?

When I moved to the San Francisco Bay Area four years ago, I was impressed by all the young people eager to champion social justice causes. Perhaps even more impressive was the number of law enforcement professionals who invariably appeared at demonstrations and protests.

I remember attending a demonstration for the sentencing of Johannes Mehserle, the BART officer who killed Oscar Grant. While walking with the demonstrators, I made good use of my camera. I photographed anyone in plain sight, including police officers. During the course of the event, someone asked me if it was legal to include the police in the pictures. As a law student and avid First Amendment advocate, my initial responses was “duh,” but nonetheless, I felt compelled to explain why.

Can I Film the Police?

film and photograph the policeAs a general matter, the answer is yes. However, it is not the resounding, absolute yes I’d prefer to give. Photography, or videography, is obviously not explicitly protected by the First Amendment. However, your ability to film the police has become a largely protected activity as “expressive conduct.” This means: so long as your film or photographs can communicate a message to a potential audience, your camera and its contents are protected.

Before you get carried away, there are a few things worth noting:

  1. Your ability to photograph as a form of expressive conduct only applies to places traditionally open to the public. If you burst into a home or a crime scene, wielding a camera and saying the First Amendment protects you, you are wrong (and probably a little crazy).
  2. Expressive conduct is subject to reasonable time, place, and manner restrictions. What this means is rather complex, but on a basic level, it means that police officers to ask you to back away or else they may corral you into a “First Amendment Zone.”
  3. Photographing or filming the police does not give you free range to violate the law. You must obey the traffic laws, property laws, and lawful commands of police officers.

Note that, at a protest, commands by the police to disperse likely do not require photographers or the press to cease engaging in newsgathering activities. Not only are they engaging in constitutionally protected behavior, they are likely not the actors engaging in the behavior the police have ordered to cease and disperse.

There is ample federal precedent to support the legality of photographing and filming police. While some federal circuits have punted on the issue, others have explicitly said filming a public officer in the course of their public duty is an essential right and important to preserving a free, educated democracy.

Can the Police Ask Me to Stop Filming or Hand over My Camera?

Yes. Police can ostensibly ask you whatever they feel like asking you. Whether or not you have to listen or respond, however, is another matter.

If you are lawfully in a public place, and not interfering with the officer’s work, and a police officer asks you to stop filming, you are under no obligation to do so. The officer may have a valid reason to ask you to step away, or to move back, and you will need to use your own judgment (and perhaps videotape the scene, including your feet and the officer’s distance from you, to give validation and perspective to your conduct) as to whether or not that is a lawful request and how you should respond. However, under no circumstances are you required to listen to an officer who is unlawfully commanding you to stop making photographs or videos. Assuming the police officer is professional, they will realize that filming and photographing is not a crime, and return their focus on the real issues they are addressing.

Unfortunately, some police are not professional. Some may even confiscate your camera. Keep in mind, if this occurs, you should never resist an officer. If you strike a bad chord with one, and that officer gets physical, comply. Hopefully, police officers know better than to seize a video or film camera. If they do not, and they do seize that camera, let them know that they cannot search your camera without a warrant. If they proceed to anyway, additionally remind them that absent any good-faith belief that your camera contains specific evidence of a crime, they are violating the Constitution and potentially exposing themselves to civil liability.

As a general rule, listening and being polite with the police goes a long way. But this does not mean you shouldn’t stand up for your rights. After all, it is a police officer’s job to protect and serve.

Any Questions?

If you do, consider talking to a local attorney on the wiretapping laws and treatment of the First Amendment and photography or videography in your state. This will help you to become educated and may also prompt a lawyer to take action against unscrupulous or unclear laws, if it is necessary.

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Death Penalty Cruelty: Why Lethal Injections Are Inhumane

On January 16, 2014, shortly after 10:00 a.m., a man takes his last walk down the narrow corridor toward the execution chamber. As he is strapped to a gurney and the curtains part, he stares into the eyes of both his children and the victim’s family. It is obvious that he is in a state of fear and anxiety. In fact, his lawyers had fought for a stay of execution, arguing that the new lethal injection protocol would result in a painful and excruciating death.

Lethal Injection Death PenaltyPrison personnel struggle for a couple minutes to find his veins and finally insert the needles. At least, he thinks, it didn’t take two hours to find his veins, which happened to a different inmate, in the same chamber several years prior. His mind also turns to the countless other botched executions in recent years. The warden asks if he has any last words. In a short, tearful statement he says “I’d like to say I’m sorry to Joy’s family and thanks for the letter. The kind words mean a lot. To my children, I love you. I’m going to heaven. I’ll see you when you get there.” The warden nods his head and the drugs begin to flow through the tubes and into his veins.

Thoughts run through his mind about the horror he put the victim through many years ago. He knows in his heart that his actions caused her and her unborn child to suffer a terrifying and brutal death. However, he would not go quietly either. Witnesses watch as the drugs are injected; later, they say he experienced “repeated cycles of snorting, gurgling, and arching his back, appearing to writhe in pain…It looked and sounded as though he was suffocating.” McGuire gasped for air for some 25 minutes while the drugs used in the execution slowly took effect and he was finally pronounced dead.

The execution of Dennis McGuire dominated the headlines as it swept across the country in January of 2014. Ohio used a new 2-drug protocol of hydromorphone and midazolam. It has sparked debates among both academics and the general public about the constitutionality of the death penalty. Is this a violation of the 8th Amendment, which bars cruel and unusual punishment? On this issue, the US Supreme Court has ruled that a violation will be found if the execution method causes unnecessary and impermissible suffering.

How States Use the Black Market to Acquire Banned Drugs for Executions

Until 2010, most states used a 3-drug combination for lethal injection. The first drug administered to the inmate was sodium thiopental, which acts as an anesthetic. The second drug was a paralyzing agent called pancuronium bromide, often referred to as Pavulon. The third, and final drug, was potassium chloride which stops the heart and untimely causes death.

The first drug in executions, sodium thiopental, was only produced by one U.S. manufacturer, Hospira, Inc. They made the radical decision that their goal was to save lives, not to end them! They banned their drugs from U.S. prisons for use in executions, but since the prisons failed to comply, they ceased all production including medicinal use. The prisons expanded their search for a new distributor abroad. However, German, Swiss, and British companies also refused to sell their drugs for use in executions. What next? Well the obvious – states resorted to obtaining the drugs on the black market (in addition to writing fictitious prescriptions!) The problem is, the drugs do not meet the minimum purity standards and their ingredients are questionable and, often times, unknown.

For example, in 2011, Tennessee obtained enough sodium thiopental to execute 6 prisoners. Tennessee refused to reveal their source, which was later found to be an unauthorized foreign producer. In the spirit of southern hospitality, they shared their booty with Alabama. However, before Alabama could execute prisoners, the sodium thiopental was seized by the DEA. The DEA went on to seize several other state’s supplies including Tennessee, Georgia, and Kentucky. They then initiated a formal investigation into where the states were getting their drugs.

Next, inmates contended in the lawsuit that “unapproved foreign thiopental will fail to anesthetize plaintiffs properly during execution, causing conscious suffocation, pain, and cardiac arrest. On March 27, 2012, a federal District Court held that foreign-manufactured sodium thiopental was improperly approved by the Food and Drug Administration for use in executions. The FDA was ordered to recall drugs from Arizona, Arkansas, California, Georgia, Nebraska, South Carolina, South Dakota, and Tennessee.” According to Judge Leon’s opinion, the foreign sodium thiopental “is a misbranded drug and an unapproved new drug” and “the FDA neither approved nor reviewed thiopental for safety and effectiveness.” The Judge continued saying “the FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner’s needle.”

Pavulon, the second drug used in the 3-drug protocol, has been the most controversial. In fact, it has been banned from use in animal euthanasia in 42 states. Nonetheless, many of those same states use the drug as a paralyzing agent in their executions. The main criticism is that, if prison personnel misuse the first drug as discussed above, the inmate would be unable to express the excruciating pain they are experiencing because they are paralyzed but alert. Death row inmates in Kentucky filed a suit urging the state to switch to a more humane 1-drug protocol. Federal judges in California, Missouri, and Tennessee had already ruled that using Pavulon and the 3-drug protocol in executions is unconstitutional.

Since the shortage, states have been scrambling to revise their lethal injection protocols and discover new drugs to use in executions. Several states have either started using or plan to start using a 1-drug protocol which include propofol (the same drug that killed Michael Jackson) and pentobarbital. Again, the problem is these drugs have never been used in executions, and will have unforeseen consequences (including many more botched executions).

Is It Time to Abandon the Death Penalty?

Although I am an unwavering opponent of the death penalty, I will not go into a discussion about the 140 people who narrowly escaped the death penalty through absolute exoneration or the numerous moratoriums passed by states. Nor will I discuss the study commissions on the fact that the death penalty is more expensive than life imprisonment and that it has never been a deterrent to crime. These arguments do little to sway proponents of the death penalty. I would like to, instead, quickly mention the experience of Bob Welsh. Bob’s daughter Julie was killed in the Oklahoma City bombing. He was a strong opponent of the death penalty until the day she died, at which point, his views changed. He was not hesitant to express his opinion that “I didn’t even want a trial. I wanted him fried.” However, after years of reflecting, he realized that executing Timothy McVeigh was not going to bring his daughter back. In fact, unlike McVeigh, he is not a murderer and witnessing an execution often leaves the victim’s family feeling depressed and burdened with an unexplainable guilt. Bob is now an avid anti-death penalty activist and travels around the country sharing his experience.

Finally, take McGuire’s victim Joy Stewart, who was 22 years old and pregnant at the time of her murder. She was kidnapped, raped repeatedly, tortured and stabbed to death. Did McGuire deserve to die for this crime? Probably. However, is it wise to give the government the power to stoop to his level and use illegal tactics and torture to do so? According to the constitution that this country holds so dear, this method is a clear violation of the 8th amendment. More importantly, in my opinion, an answer in the affirmative will undoubtedly take us down a very dangerous road of unfettered government discretion on the value of one’s life.

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