Archive for the 'Criminal Law' CategoryPage 9 of 98

Can the Police Shoot Your Dog For Barking?

A federal court recently issued a ruling that has got the media in a frenzy.  Can police officers now shoot an animal for moving or barking when entering a home?  While the court ruling did order a police shooting of 2 in-home pets as justified, it doesn’t give the police a sweeping authority to shoot your dog.

Let’s Break It Down

The facts of this case are important to the ruling because the decision is based on the totality of the circumstances.  A warrant was issued out of a Michigan court that gave the Battle Creek Police Department (BCPD) permission to search a local residence, the owner a known gang affiliate, for drugs.

According to court documents, as officers began to execute the search warrant, officers noticed dogs “…barking aggressively, ‘digging and pawing,’ and ‘jumping’ at the window.”  An officer testified that upon entering the home, a 97-pound pit bull lunged at him and it was then that the officer fired his gun at the dog, only injuring it.   The dog retreated to the basement.

Police Shoots Barking DogThe officer further testified that he could not safely clear the resident’s basement because the already injured pit bull was standing at the bottom of the steps.  It was then the officer fired two fatal shots into the already injured dog.

The same officer additionally testified that the second pit bull was standing across the room and barking at the officers, so he fired shots at the second dog.  The dog ran to the corner of the room and caught the eye of a second officer, who then fired shots at the second dog.  An officer then testified that because the dog had several wounds, he “…‘didn’t want to see it suffer’ so he put her out of her misery and fired the last shot”.

Killing a Pet Constitutes a Seizure under 4th Amendment

Many courts have widely agreed that deadly force against a household pet constitutes a seizure.  We know that seizures are unconstitutional under the 4th Amendment if they’re unreasonable.  It’s also been established that killing a pet is reasonable only if the pet poses an imminent danger and force is unavoidable.

Hindsight is 20/20

Ever heard the expression “hindsight is 20/20”?  It’s easy for a person to see things that seem obvious after-the-fact, but it’s the circumstances before-the-fact that matter most when answering these kinds of questions.  Courts focus on the perspective of the officer on the scene and not the perspective of the perfect vision that hindsight offers.  It all comes down to whether or not the pet poses an imminent threat from the perspective of the officer.

This is important because anyone reading those facts above after-the-fact could easily argue the officers acted unreasonably against the two dogs.  Shooting the first dog when the dog lunged at the officer is one thing, but shooting an injured animal that’s simply barking is another story.  But, again, the courts don’t get the pleasure of making those judgments based on hindsight and they must consider the perspective of the officers in the moment of the situation.

Court Says Fear of Imminent Threat from Dogs Was Reasonable

There’s no argument that executing a search warrant lends to stressed circumstances for police officers and those officers are often forced to make split-second judgements based on unknowns.  The court found that due to the already high nature of the threat against the officers executing the warrant in a home of known gang affiliates, the officers were understandably on high alert.

The shooting of the first dog, according to the court, was warranted because 1) it was aggressively barking, 2) it lunged at the officer, 3) even after the dog had already been shot by the officer, the dog continued to aggressively block the officers entrance into the basement, and 4) the officers could not safely clear the basement while the dog was preventing the officer to do so.  The court found the shooting of the second dog reasonable because both officers testified they could not safely clear the basement with the presence of the barking dog.

Conceptually, I agree with the standard used by the court—if an animal poses an imminent threat, then force is reasonable.  However, I’m not convinced, at least that the second dog, posed an imminent threat to the officers in this situation.  Although the court didn’t actually create a bright line rule giving police the power to shoot any moving or barking animal inside a house, actual application of this ruling could have potential repercussions for abuse.

Can Too Much Caffeine Lead to a DUI?

Has it come to this?  At least 68 million Americans drink coffee every single day.  If those staggering numbers are any indication of the number of people that are consuming caffeine on a daily basis, consider the fact that that number is for coffee consumption and doesn’t even include soda.  Does that mean all of us consuming caffeine need to worry about getting a DUI?

A California man, Joseph Schwab, was pulled over on suspicion of driving under the influence back in 2015.  Schwab was given a breathalyzer test, which he passed with flying colors.  Although the breathalyzer showed 0.00% blood alcohol level, Schwab had his blood taken for a toxicology test after being taken to county jail.  Results, again, came back 100% in favor of Schwab.

Charges weren’t initially filed against Schwab, but ten months later misdemeanor driving under the influence of a drug charges were filed.  A second set of test results sent from an outside testing facility showed caffeine was the sole substance in Schwab’s blood.

Chief Deputy District Attorney, Sharon Henry, for Solano County stated, “the charge of driving under the influence is not based upon the presence of caffeine in his system.”  Schwab’s attorney, Stacey Barrett, however, stated she was not provided with any evidence supporting a theory of any other substance within Schwab’s system.  Barrett subsequently filed a motion to dismiss the charges against Schwabb.

Can Caffeine Consumption Really Get You a DUI?

Maybe, but it’s probably not really very likely.  Under California law, a drug is any substance, illegal or legal, that isn’t alcohol that might “impair, to an appreciable degree” a driver’s capabilities behind the wheel to drive like a sober person.  Were you able to drive with caution?  Was your driving that of a sober person of ordinary prudence under similar circumstances?

Caffeine works by stimulating the central nervous system, the heart, muscles, and the centers that control blood pressure.  Theoretically, if enough caffeine is consumed, then it’s possible it could have effects that could impair a driver’s capabilities to drive safely.  Typically, though, side effects of consuming caffeine have much smaller effects such as stomach aches and insomnia.

How, Then, Can Schwab Be Charged?

According to the District Attorney’s office, the State decided to go ahead & charge Schwab because drug tests don’t catch every drug.  The State was convinced that because Schwab was driving so erratically, he must have been on something.  Remember, though, that since this was a criminal charge brought against Schwab, the State has to prove beyond a reasonable doubt that he was driving under the influence of drugs.

Even though caffeine is a substance that can affect the nervous system, brain, or muscles, all things that define a drug under the applicable law, a prosecutor would be hard-pressed to prove to a jury beyond a reasonable doubt that the consumption of caffeine, alone, inhibited Schwab’s abilities to drive enough to pose any danger.  Observations of an arresting officer can be relied upon heavily, but it’s not necessarily enough.

Under California law, driving erratically isn’t necessarily conclusive enough to prove driving under the influence—it’s only a factor a jury can take into consideration.  An arresting officer can testify to 1) the unsafe manner in which you drove, 2) your physical appearance, and 3) your performance on a field sobriety test.  According to the officer, Schwab cut her off and was driving erratically.  In Schwab’s case, this would have been the only evidence, at least that’s been made public, that the State had to go on since blood tests came back negative.

These are the likely reasons the District Attorney’s office conceded and just filed their own motion to dismiss the charges against Schwab, despite the fact they claimed forensic lab experts stated it was “highly likely the defendant was under the influence of a drug.”

 

Who is Responsible for the 36 Victims in Deadly Oakland Fire?

With 36 confirmed dead in an Oakland warehouse fire, many grieving families want answers as to what, and who, is responsible for the deadly fire that trapped so many during an electric dance party in a building with no smoke alarms or sprinkler systems.

The former warehouse was a dilapidated two-story structure that, from the outside, appeared to be abandoned because of the disrepair it was in.  In fact, a citation was issued to the owner sometime in November for hazardous trash and debris outside of the building, but city and state officials have also fielded numerous complaints over the years about dangerous conditions, drugs, all-night dance parties, neglected children, trash, thefts and squabbles at the warehouse.  Zoning officials were also investigating complaints of illegal construction on the property, as well as illegal residential use, but neither were confirmed by inspectors.

Witnesses have described the interior as a maze of man-made studios, workshops and residences with couches, pianos, beds, microwaves, refrigerators, hot plates, music equipment, a man-made staircase made of wooden pallets connecting the ground floor to the second story, and even RVs.  Power sources have been described as just numerous extension cords plugged into each other.

With all the speculation surrounding ignored building codes, dangerous conditions and what the building was actually being used for, it begs the question about who’s responsible.  Is it the owner of the building?  The manager?  The host of the party?  Or someone else?

These Types of Buildings Aren’t Uncommon in Bay Area

With skyrocket rent in the Bay area, these little communities aren’t uncommon.  Derek Ion Almena had signed a lease for the property and apparently subleased space to others in what’s become known as the “Ghost Ship”.  According to the Today show, Almena said he opened the warehouse to artists who couldn’t pay the rent because their dreams were “…bigger than your pocketbook.”

The warehouse owner’s, Chor N. Ng, daughter, Eva Ng, however, told the Los Angeles Times that the warehouse was leased as studio space for an art collective and not as a dwelling.  This will definitely make a difference because zoning standards are stricter for residential uses.  Almena insisted the building was leased to “city standards supposedly”, but the warehouse was permitted only as a one-story warehouse, not for entertainment or residential use.

An official report about the cause of the fire hasn’t been released yet, but there has been speculation that it started with a
refrigerator.

Everyone is Looking for Someone to Blame

What kind of claims should we expect to see here?  Wrongful death suits to start, which would likely name Ng and Almena for liability, but there’s a whole slew of people that could be put up to the plate.  Keep in mind that cioakland firevil tort cases like this only require a preponderance of the evidence, which is a much easier and lower standard to prove than the beyond a reasonable doubt standard in a criminal case.

Let’s take a closer look at potential targets that could get sued for liability.

  • The owner, Chor N. Ng. The first obvious choice for liability, even despite the fact that the owner of the building may have been blind to the fact that people were living within the building.  The owner will still have some liability, though, as landlords have a general responsibility to know what’s going on on their property.
  • The manager, Derek Ion Almena. The second obvious choice.  Did the lease allow him to sublease?  If not, this is definitely an argument Ng could use in her favor.  Landlord tenant law generally puts liability for damages on who is at fault for the fire.  Since this fire involved so many deaths, though, any action, or lack of action on behalf of the owner, that gives even a glimpse of responsibility is going to be scrutinized under a magnifying glass.
  • Promoter of the party. Who threw the electric dance party?  This may not be your first thought, but there’s likely liability here as well.  Almena’s wife and child, who lived in the building, were reportedly staying at a hotel that night, which eludes to the fact that Almena may have at least had knowledge of the party.
  • Contractors, engineers, or architects. Basically, anyone that has worked on the site throughout the years could be targets.
  • Manufacturers. Did an appliance within the building have faulty wiring that sparked or contributed to the fire?  There definitely seems to be some mitigating factors here, though, even if this is the case, especially when you consider the way witnesses described the makeshift and sloppy way power sources were hooked up.
  • The City of Oakland. However, this one seems less likely since they could assert governmental immunity and the city was already doing their part to investigate whether there was illegal use.  Even still, allegations that the warehouse has not been inspected for over 30 years could present issues for the city.

Depending on the outcome of the investigation, criminal liability could be possible for the owner and manager as well.  Arson hasn’t been ruled out yet and the local prosecutor has even said the state hasn’t ruled out the possibility of murder charges.

The History of the First Amendment and Flag Burning

The debate over how the American flag should be treated when it comes to freedom of speech and expression-both in recent days and over the years-is a question of law that brings out the highest passions on both sides of the issue. first amendment and flag burning Just last week, our new President-elect Donald Trump reignited the age-old debate with a tweet suggesting that that burning a United States flag should carry extreme penalties. He went so far as to suggest that it should cost a year of jail time—which would make the act a felony—or even lead to the individual who burned the flag being stripped of citizenship.

While these recommendations are likely some of the most extreme suggestions to come from a politician, their very extremity stems from the undercurrent of anger surrounding the act of flag burning—whether against the government or against the very people who burn the flag.  There are many who consider the act of burning the flag the ultimate act of protest against the acts of the government that represents the ideals of that flag.  At the same time, there are plenty of people who view the flag as a symbol of the United States and burning it an attack on the country itself.

Regardless of belief, however, it is a legal fact that the act of burning a flag is constitutionally protected first amendment expression—symbolic speech.  The Supreme Court has ruled as much not once, but twice, in the cases of Texas v. Johnson and U.S. v. Eichman.

Texas v. Johnson

Texas v. Johnson dealt with the acts of Gregory Lee Johnson.  At a protest outside the 1984 Republican National Convention, Johnson burned an American flag stolen by another from a nearby flagpole.  The act drew international media coverage, although nobody was actually injured.

At the time, Johnson’s act was a crime under Texas law and a court sentenced him to a year in prison and a fine of $2,000 for his actions.  However, the Texas Criminal Court of Appeal reversed this ruling saying that “the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol.”

The case went from there all the way to the Supreme Court of the United States, presenting the first case ever before them where they needed to decide whether a non-speech act such a burning the flag was protected by the First Amendment.  In 1989, the Court ruled that while an act is not always protected simply by its intent to communicate a message, an act is protected where the is both 1) and intent to convey a particular message through an act and 2) whether the message was understood by the majority of those who viewed the act.  They decided that Johnson’s act of burning the flag sent a clear message that was easily understood, and thus deserved First Amendment protection.

They also decided that, while speech can be outside the protection of the First Amendment where it incites others to immediate acts of violence, this was not the case here.

This decision had an enormous impact on the laws of the United States—making flag burning statutes in forty-eight different states unconstitutional.

U.S v. Eichman

The response to the ruling in Texas v. Johnson was swift.  In the same year of the ruling, Congress passed the Flag Protection Act.  This act made it a federal crime to burn or desecrate the flag of the United States.  The very next year, in 1990, the Flag Protection Act was before the Supreme Court in the case of U.S. v. Eichman.

In two different states, flag burning at protests by the anti-war group the Vietnam Veterans Against the War Anti-Imperialist led to charges against protesters.  In both cases, the charges against the protesters were dismissed followed by an appeal to the Supreme Court challenging the constitutionality of the Flag Protection Act.  These two cases were combined and became U.S. v. Eichman.

This time, the Supreme Court was crystal clear.  It outright ruled that any statute that barred desecrating the flag, state or federal, was unconstitutional.  The decision argued that, while some may be incredibly offended by the act of burning a flag, the government may not prohibit speech simply because society finds it offensive. What’s more, the government certainly may not ban speech with the intent of suppressing the ideas behind that speech.

The Legal Debate Still Rages On

Despite these rulings, there has been no shortage of attempts to introduce a constitutional amendment to make the desecration of the American Flag illegal.  Since 1991, there have been 41 different proposals for such a constitutional amendment.  Some of the votes on these proposals have been extremely close, in 2006 a proposal for a constitutional amendment failed by only a single vote.

There are also, despite the unconstitutionality of statutes barring flag burning, situations where burning a flag can be illegal.  For instance, if there is another crime involved—for instance if somebody besides the one doing the burning was the owner the of the burned flag—the person burning the flag can still be charged with that crime.  What’s more, where a statute is neutral as to the content of speech—instead regulating the time, place, or manner of speech, it is constitutional.  Thus, a statute making it illegal to burn anything outside of a fire pit in a National Park could be constitutional but still make it illegal to burn a flag while in the National Park—unless you did it in a fire pit.

Flag burning is, and likely will always be, a topic distinguished by the extremely high passions on both sides of the issue.  However, barring a constitutional amendment, any law making it a crime to burn the flag—never mind the unheard-of punishment of stripping a person citizenship—will be patently unconstitutional.  The act of burning a flag communicates a deep discontent with the U.S. government and what the flag represents.  This can be offensive to some.  However, it is because it communicates such a clear, controversial, political message that the act receives the protection it does. No matter the form it takes, do we really want the government to have the power to censor speech criticizing it?

Movement to “Ban the Box” Surges Across the Nation

An estimated 70 to 100 million people in the U.S. currently have some sort criminal background.  That’s between one in three and one in four people in the whole United States.  These criminal records, no matter how minor the offense, can be a real hurdle when looking for a job.  There is a real potential that an employer, seeing a prospective employee checked a box on their application indicating criminal history, would reject that application on that basis alone.

If the goal of our criminal justice system is to rehabilitate, barring ex-criminals from gainful employment out of hand is obviously far from ideal.  With this in mind, a movement to “Ban the Box” has swept across the nation.  24 states, many passing laws just this year, have passed laws barring public employers, private employers, or both from inquiring about criminal background on a job application.  To make matters even more complicated, more than 150 individual cities and counties have passed similar laws that apply just in those smaller jurisdictions.

The spread of these laws is still on the rise, just around a week ago Los Angeles County passed their own Ban the Box ordinance.  Connecticut has recently passed a Ban the Box law that will take effect January 1, 2017.  On November 30th, the federal government and the Obama administration even finalized regulations preventing the federal government from asking about an applicants’ criminal background before a job has been offered.  With the upsurge in “Ban the Box” laws, the question becomes fairly simple.  What do these laws mean for employers and employees?

Ban the Box Explained

While the details of any given Ban the Box law vary slightly from law to law, they all have the same basic goal.  They make it illegal for the type of employers named by the law to include questions or check-boxes on employment applications asking about the criminal background of an applicant.  They don’t, by themselves, prevent an employer from asking about criminal history altogether.  However, an employer must raise these questions later in the hiring process.  While violations of Ban the Box rules don’t generally allow for private lawsuits from applicants, applicants can report violations to the state who will then follow up with fines or a lawsuit of their own.

As mentioned above, with so many different places creating their own Ban the Box rules the exact boundaries of those rules can vary from place to place.  Depending on where an employer operates, there can be exceptions "Ban the Box"to Ban the Box rules for certain types of jobs—usually positions that are especially safety sensitive.  However, exactly what positions are considered “safety sensitive” is in and of itself a complicated legal concept that varies from state to state.  Employers seeking to avoid the legal troubles of a Ban the Box violation should speak to an employment law attorney to learn whether there is a Ban the Box law in effect where they operate and if there are any exceptions for the type of positions they are offering.

Beyond the Box: Other Employer Restrictions Regarding Criminal Backgrounds

Ban the box is the tip of the iceberg for state to state differences in how employers must approach an employee’s, or potential employee’s, criminal background.  Different states, and even cities and counties within those states, have their own wildly varying laws placing restrictions on either private employers, public employers, or both when it comes to approaching a job applicant or employee’s criminal background.

Depending on where they are an employer may be restricted as to asking about arrests that did not result in a conviction, criminal records which have been sealed or expunged, older criminal records (usually allowing for records no more than five to seven years old), certain types of crimes, or criminal convictions unrelated to the actual position sought.  While these laws have not seen the same rapid spread in recent years as Ban the Box, they continue to be passed nationwide.

In fact, earlier this year, Pennsylvania passed one of the most sweeping laws on the issue to date—albeit with a slightly different approach.  Pennsylvania’s new law requires law enforcement to remove records of arrests after three years have passed without a conviction.  It also allows individuals to petition to limit access to most non-felonies—with an exception for misdemeanors such as sex offenses, child abuse, or witness intimidation—on their criminal records after ten yeas free from arrest or imprisonment.  This law, coupled with the fact the Pennsylvania already bars all employers from inquiring about arrests that don’t lead to convictions, have left Pennsylvania with some of the nation’s strongest employment protections for former criminal offenders.

Are These Laws for the Best?

Ultimately, these laws are put in place to prevent returning criminal offenders from being shut out of employment opportunities before they get a chance to show their merits.  Those opposed to the spread of Ban the Box argue that employers are best suited to knowing their own employment needs and these sorts of restrictions needlessly increase the costs associated with hiring.  They argue that, especially in light of other restrictions on accessing criminal backgrounds, these laws can leave employers in situations where they are left without information they would consider crucial to a hiring or employment decision.

However, despite these objections, it seems more likely that the only way this would truly save costs when hiring for any position that wouldn’t be subject to the common exceptions is if the employer used criminal background as a quick way to disqualify candidates.  Where an employer uses criminal history in this way, it creates a serious roadblock to the rehabilitation and reintegration into society of former criminal offenders.

There is nowhere that employers are totally banned from inquiring into criminal history.  Ban the Box rules are exclusively a timing related restriction, preventing applications asking about criminal history.  Although there are limitations on how background checks can be used a check made as a contingency to employment will likely reveal any criminal history that could be an issue.  However, as seen in Pennsylvania, the limitations on criminal background checks are becoming further reaching.  There is a real push and pull between the interests of an employer in making informed employment decisions and the interests of a former criminal offender—and society as a whole—in a system that provides the best possible chance for rehabilitation.  That being said, a system where an offender is denied that chance outright before the word go is almost certainly not the right one.