Archive for the 'Laws' CategoryPage 2 of 96

Can You Refuse To Vaccinate Your Child During a Divorce?

Rebecca Bredow was sentenced to a week in jail after she refused a court order to vaccinate her nine year old son. Bredow and her ex-husband had initially agreed to vaccinate their nine year old son, but Bredow later decided against it. Bredow argues that the parents had initially agreed not to give their child a vaccination and that it was her husband who changed his mind, in order to obtain leverage over their custody dispute. Their son will be in the care of Mr. Bredow until Ms. Bredow is released from jail.

Michigan allows parents of public school children to waive vaccination for their child, but the parents have to attend an education seminar on the benefits of vaccination first.  Health officials are worried that if children are not vaccinated, diseases such as measles will return. The reappearance of diseases that Americans have not been exposed to in a generation would result in a devastating outbreak. On the other hand, the parents want to waive vaccination are worried that the vaccines will give their children autism. However, scientific studies have largely debunked such claims.

vaccinateAlthough the medical benefits outweigh the falsely reported disadvantages of vaccinations, Bredow was not sentenced because of her opinions on vaccines; the legal facts determined her conviction.

Avoiding Confrontation with the Judge

The default in child custody is joint custody for both parents. People often mistake “joint custody” for “50/50%,” but family law judges will discourage parents from thinking about child custody in percentages. Children are not sacks of flour to be divided between disputing parties. Joint custody is the default child custody because the law presumes that it is in the best interests of the children to have both parents in their lives, not because it is fair to the parents. However, judges can deviate from the default joint custody if joint custody stops being in the best interests of the children.

Ms. Bredow made two mistakes that led to her week long jail sentence. First, she told the judge that it was against her beliefs to give her children vaccines. In a child custody case, the beliefs of the parents are not the deciding factor. In fact, asserting a personal belief in a custody battle can be harmful, since the judge might interpret that statement to mean that the parent is more concerned about his or her personal beliefs than the well-being of the children. In a child custody case, it is always preferable to relate the case back to the best interests of the children instead of arguing about other factors. Instead of saying that vaccines are against her beliefs, Bredow should have argued that the vaccines were potentially harmful to the children.

Second, Bredow publicly stated that she would refuse to obey the court order. There are many legal ways to challenge a court order. Bredow could have appealed the order. She could have filed a motion to reconsider the matter. Or Bredow could have chosen not to stipulate to an agreement in the first place. The worst thing to do though would be to agree to certain terms and then violate the court order to enforce the agreement that the parties made.

Understanding Gun Rights and Laws in Light of the Las Vegas Tragedy, Part One: The Second Amendment

The last week has seen an incredible tragedy in Las Vegas. It’s hard to imagine there are many who have not already heard of the incident. However, for those who have not, on October first a gunman opened fire on a music festival in Las Vegas-shooting concert goers from his room on the 32nd floor of the Mandalay Bay Casino and Resort. As of now, reports place the mass shooting as the deadliest in U.S. history with 58 people killed and 489 injured.

The shooter, Steven Paddock, took his own life after the shooting. Mr. Paddock was a 64-year-old white man. A successful accountant who, according to his family and girlfriend, showed no prior signs of a desire to commit violence before this shooting. Law enforcement has been unable to determine a motive for the heinous acts. However, authorities have reported that they suspect he had undiagnosed mental illness-citing standoffishness in his relationships with others and long days of gambling without human contact. Police also found extensive notes in Mr. Paddock’s apartment, mostly of mathematic calculations regarding distance and trajectory of shots from his hotel into the unsuspecting crowd. However, none of these notes have helped determine Mr. Paddock’s motive.

While learning a motive may help unravel the series of events here. It will ultimately do nothing for Paddock’s many victims. People as young as 20 and as old as 67–teachers, fishermen, nurses, and more–all struck down on a whim by somebody with a high-powered arsenal of guns. Paddock had over 20 guns with him in his hotel room. These guns were mostly rifles and were often modified so as to have fully-automatic firing capabilities. He also had over 50 pounds of explosives and over 1.5 thousand rounds of ammunition. With no limit on the number of firearms which can be owned, all these guns-if not the modifications made to them-were perfectly legal. With no issues in his background, there was nothing to stop Mr. Paddock from purchasing the tools he used for his killing spree at shops all around California and Nevada.

second amendmentNot surprisingly, this horrible tragedy has sparked renewed conversation about how we handle firearms in the U.S. It is an undeniable fact that there are more mass shootings in the U.S. than anywhere else in the world. We’re 31st in gun violence of all countries but far and away first in gun violence among the most developed countries in the world. This is at least partly due to the fact that we simply have more citizen-owned guns per person than anywhere else-we’re less than 5% of the world’s population but have about 50% of the world’s citizen owned guns.

Many have spoken out about Mr. Paddock’s ability to legally gather such an armory and put it to such awful use. The cries for strengthened gun control have been louder than ever-for limits on the types, numbers, and modifications that can be made to personally owned weapons along with more in-depth reporting requirements. On the other side, gun rights advocates say that such limitations would violate their Second Amendment rights.

There are valid questions of what sort of gun laws are constitutional, as well what sort of gun laws could responsibly have prevented this sort of situation. Many states have different approaches to how guns are handled, from reporting requirements to limiting types of guns such as fully automatic rifles. In order to understand how such laws can be applied, we need to understand the purpose and rights granted by the Second Amendment of the Constitution as well as how gun control laws are handled at a constitutional and state by state level. These are both enormous topics to undertake, so we’re going to have to split them into two separate articles that broadly cover how these topics work. We’ll start by looking at the right to bear arms itself.

The History and Protections of the Second Amendment

The Second Amendment of the U.S. Constitution says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This has long been touted as a right for citizens to own guns or other armaments. However, for the vast majority of U.S. history this has not been the case.

In 1876, the Supreme Court ruled that the Second Amendment didn’t even apply to the states but only to the federal government. The year before, in 1875, the Supreme Court dismissed charges against white men who had killed over sixty black people when they were charged with conspiring to prevent black people from exercising their Second Amendment rights. The Supreme Court said there was no case because the Second Amendment restricted Congress, but granted no rights whatsoever to private individuals.

The Supreme Court has not rendered many decisions about the meaning of the Second Amendment. In 1876, the Court ruled that the Second Amendment only applies to limit the federal government. This means that the rights that are granted by the Second Amendment can be limited by state governments.

Laws restricting the use, sale and public carrying of guns (especially concealed carrying) were consistently upheld for over a century. While this was the case, the exact rights granted by the Second Amendment were a topic of debate in the public but quite consistently not granted to individuals in the courts. In 1939, the Miller case further explained the outlines of the Second Amendment. The Supreme Court clarified that the Second Amendment did not guarantee an individual constitutional right to citizens of the U.S. Instead, the Amendment prevents Congress from taking away a states right to self-defense by limiting their ability to maintain a “well-regulated Militia.” Even then, many restrictions on firearms were allowed as irrelevant to the preservation and efficiency of a well regulated militia.

This was the established limits of the Second Amendment for decades to come until quite recently, in 2008, the Supreme Court changed these contours through a case known as Heller. The Heller ruling-as part of rejecting a DC total ban on handgun ownership-reinterpreted the Second Amendment to grant an individual right to possess firearms-even if that possession wasn’t in connection with service to a militia-for lawful purposes such as self-defense within your home. However, the ruling also made it clear that this right was far from an unlimited right to carry any weapon for any purpose. Concealed weapons prohibitions were specifically described as constitutional; longstanding prohibitions on gun ownership such as for particularly dangerous weapons, restrictions on sale, limitations in regard to felons and mentally ill persons, reporting requirements, and limitations on bringing guns to places like schools and government buildings were also specifically described as constitutional. More broadly, longstanding restrictions were discussed as unaffected by the Heller decision. The individual right was largely hinged on the right of self-defense especially when in the home.

The Second Amendment and Stopping Gun Violence

The truth is, it is very hard to stop a person from getting guns-after all there’s more guns than people in the U.S. We’ve seen that Mr. Paddock purchased all his guns legally and then illegally modified them to make them even more deadly. Background check and registration requirements didn’t stop a man with no criminal record or mental health history from purchasing an enormous amount of guns with which to commit an atrocity. So what steps can we take within the U.S.’ current constitutional framework?

With the current state of the Second Amendment, gun control laws are harder pressed than ever. However, the truth is that there is quite a bit that can still be constitutionally done. Registration requirements are generally considered part of the constitutional longstanding limitations. A man such as Paddock can purchase legal guns and modify them to be much more deadly than purchased. So how can we stop this sort of thing? More thorough background check requirements-after all we require a license to drive a car-could be extremely useful. Reporting requirements when traveling with firearms, rules on storage, and a serious crackdown or firearm trafficking are all steps which could also have maybe averted this tragedy.

However, in order to understand what legislation could help the U.S.’ gun violence epidemic, it is necessary to fully understand how gun control laws are generally treated both at the federal level and among the states-understanding what the Second Amendment allows is only the first step. Later this week, we’ll take a look at how these laws are treated and think about what steps could be taken towards responsible, effective gun control laws.

Massachusetts Rules Field Sobriety Tests Can’t Prove You’re High While Driving

As marijuana–either medical or recreational–has seen increasing legalization across the country, the implications of that legalization have led to any number of legal concerns. One of the chief among those has been how police officers will be able to establish that somebody is intoxicated for the purposes of a driving while intoxicated (DWI) charge. Out in Massachusetts, there has finally been a ruling on the issue. However, it has made it even more difficult than ever before for Massachusetts police to prosecute somebody for driving while high.

Massachusetts approved the “”possession, use, distribution, and cultivation of marijuana,” recently. The legalization, taking effect January 1, 2018, is conditioned on regulating marijuana in the same vein as alcohol. Stores selling marijuana have been pushed back to June 2018 over concerns over lack of legal preparation to deal with widespread legalized marijuana.

The Massachusetts Supreme Judicial Court made a ruling last week which, in some ways validates these fears.  They have ruled that-for the most part-the usual field sobriety tests can’t be used as evidence that somebody is driving under the influence of marijuana.

sobriety testMr. Gerhardt’s Sticky Situation

The case itself dealt with a man named Thomas Gerhardt. Mr. Gerhardt was pulled over for not having his lights on. However, once he was pulled over the officer reported smelling burned marijuana from his car. When asked if he had marijuana, Mr. Gerhardt responded that he had a couple of marijuana cigarettes in his ashtray-pointing to a couple of mostly consumed marijuana cigarettes. When asked when they were smoked, one passenger said about twenty minutes prior while Mr. Gerhardt said around three hours ago. When asked how much marijuana he had smoked, Mr. Gerhardt replied about a gram.

The officer had Mr. Gerhardt perform several field sobriety tests, standing on one leg, the heel-to-toe walk test, following a finger with his eyes, and reciting the alphabet. For the most part, Mr. Gerhardt had no issues with the tests. However, he was incapable of understanding the instructions of the walk and turn test despite several explanations. In the end, he was incapable of performing the test properly, walking normally instead of heel-to-toe. He was also unable to stay balanced while standing on one leg. The officer took this to imply that that Mr. Gerhardt was impaired by marijuana. This led to charges of driving while under the influence of marijuana-obviously still a crime regardless of legalization.

However, Mr. Gerhardt’s attorneys challenged this evidence. They argued that the tests are fine for establishing that alcohol has impaired a person’s ability to drive but aren’t suited to testing how impaired a person is who has smoked marijuana. After all, a DUI doesn’t happen just because you’ve drank-it’s because you’ve drank to a point of impairment agreed upon to be over .08% BAC after much scientific testing. By the same token, the crime of driving under the influence of marijuana is due to the impairment from the marijuana. But to be guilty, that impairment must be established. The Massachusetts Supreme Judicial Court felt that the research on the correlation between these field tests are being impaired by marijuana just wasn’t there yet.

Scientific Tests as Evidence

There is a strong, well scientifically tested, relationship between these field tests and impairment due to alcohol consumption. That scientific testing simply hasn’t happened when it comes to marijuana. Without diving too deep into the issues of evidentiary law, anything that tends to prove any fact of consequence to a case-or provide a link in a chain towards doing this-is relevant and admissible evidence barring several exceptions.

Scientific tests have the potential to be considered more weighty than they actually are due to a bias towards accepting the validity of such tests. Scientific evidence must be based in sufficient evidence and be a product of reliable principles and methods. This evaluation has largely replaced a previous test requiring the acceptance of a scientific test by the scientific community at large. However, in practice, both tests can be thought of similarly. To be admissible, a test needs to be generally accepted by the scientific community to produce reliable results on an issue. The court didn’t think these field tests had been suitably vetted by the scientific community when it came to marijuana impairment.

In fact, there is quite a bit of disagreement in the scientific community over how effective tests like this are when it comes to detecting marijuana impairment. This is partially because marijuana’s effects vary enormously from person to person. Marijuana also operates very differently from alcohol, so the same tests may not produce as concrete results. Either way, the potential for a jury to look at these tests and weigh them too heavily made their use to prove impairment inadmissible.

How These Tests Can Be Used

This doesn’t mean these field tests can’t be admitted. It just means they can’t be relied on as evidence of actual impairment. They can still be used to show balance, coordination, mental acuity, etc. What’s more, the court ruled that a jury can still use their common sense to translate this into whether somebody was impaired. An officer could testify to appearance (red eyes, etc.), behavior or demeanor, but they couldn’t say somebody was impaired or “high.”

What’s more, under the ruling, no officer or expert could testify that somebody passed or failed such a test as that would imply the test had scientifically conclusive results. Similarly, a witness could not say somebody was or was not impaired based on the results of a field test. In fact, a witness couldn’t even call the field tests a “test” in the first place as this would imply scientific credibility.  Essentially, the ruling says that, no matter what, it must be crystal clear that field tests have no ability to directly test for marijuana impairment.

A Complicated Practical Issue

This ruling makes sense, the scientific research isn’t there to support using field tests to determine marijuana impairment. However, the ruling also highlights a serious issue. State marijuana legalization is becoming more widespread as more and more states vote for medical or recreational legalization. Along with this will come a greater need for law enforcement to be prepared to deal with situations such as pulling somebody over for driving under the influence of marijuana. We’ll need tests sooner rather than later to judge impairment where we can’t use a breathalyzer or similar device to reliably establish how impaired somebody is. Even then, such a device assumes that each person is equally impaired while studies show widely varied effects of marijuana on different people. The law and the technology of the law has some catching up to do–and it needs to do it fast.

Can “No Trespass” Signs Keep You Out of Jail?

An upcoming Supreme Court may render “No Trespass” signs useful. Normally, signs forbidding trespassing are useless because the Jehovah’s Witness or salesperson will ignore the sign and knock on your door anyway. In the future though, hanging a “No Trespass” sign outside could keep you out of jail.

In 2013, James Christensen Jr. of Tennessee encountered a pair of local officers in civilian clothing. The officers had just seen James’s girlfriend, because they had received a tip that someone in the neighborhood was creating methamphetamine. James has two “No Trespass” signs, one on his driveway and another outside his house. A third “Private Property” sign lived next to the second “No Trespass” sign. When James saw the officers, he stepped onto his front porch to confront them. James locked the door behind him as he did so. As James spoke with the officers, one of them noticed the smell of meth.

police searchWhen the officers asked for permission to search the house, James told them to leave. Instead of leaving, the officers arrested him and then kicked down the locked front door. After a search revealed several meth labs in his house, James was arrest and charged with resisting arrest, promoting meth manufacturing, and possession of firearms while committing felonies. James was convicted by the trial court and lost his appeal to the Supreme Court of Tennessee. His lawyers have appealed to the U.S. Supreme Court because other states have ruled that “No Trespass” signs are enough to protect a right of privacy against warrantless searches.

The World at Arm’s Length

The 4th amendment prohibits the government from searching a home without a warrant. However, the government can still search a property if the owner gives his or her consent. Courts were divided on exactly how that consent should be given. The Supreme Court ruled in previous cases that police could enter private property and knock on the door to speak with the residents, in the same manner a private citizen could. This “knock and talk” doctrine effectively became an implied consent, whereby the police could assume that they had the owner’s consent to walk up to their front door. In cases like this one though, police have used this implied consent to find probable cause to conduct a search without a warrant. The implied consent to walk up to the door often results in the police finding reasons to break down the door.

This kind of “search” by police destroys the 4th amendment. Police should not be able to legally walk up to a door and then illegally smash it down based on the flimsiest evidence.  Since police can always pursue extrinsic evidence to conduct a search, the best way to prevent this kind of abuse would be to tell ALL visitors to stay away. If a private citizen cannot legally knock on your door, neither can a police officer. This would effectively remove the officer’s implied consent. How can an average American tell the whole world to keep all her lawn?

The easiest way of keeping out any and all visitors is to throw up “no trespass” signs. Most courts agree that this is some evidence that the homeowner doesn’t want to be disturbed, but there is significant disagreement about whether “no trespass” signs alone are enough to withdraw implied consent. Some judges believe a sign is enough to keep the world away; other judges believe that there must be more.

The Ability to Knock On Front Doors Does Not Give Police the Power to Kick Them Down

“Knock and Talk” is entirely built on two assumptions. First, that the public can knock on each other’s door. Second, the police have the same right to knock on doors and talk with people as other private citizens. This doctrine is fine, since police work may often rely on speaking with those who live in the area.

What is not fine though, is if the police take this license to speak with the neighbor to bypass the 4th amendment altogether. The right of the people to be secure in their houses against unreasonable warrantless searches would be irreverent if the police could just walk up to a door and find any reason to tear open the door.  Judges should always ask officers conducting these types of searches: “why couldn’t you just get a warrant and come back?” It is the officer who must respect the citizen’s right to privacy; the citizen has no responsibility to lay out a welcome mat for the police. If we are really “secure in our houses,” the police cannot break down the door just because they think something is wrong while speaking with someone on the front door. The Constitution requires a warrant.

The only exception that should exist is if there is a real emergency. Danger to human life must be a priority. If the officer hears a scream or a plea for help from inside the house that would be sufficient cause to charge the door and search the building. However, the smell of drugs cannot be considered an emergency. Even if the officer fears the suspect could destroy the evidence, he can always radio his department and wait for another officer to obtain the warrant while he watches the house from outside.  Christensen’s case is another example of how the war on drugs is eroding our constitutional rights and the line must be drawn to ensure that “knock and talk” doesn’t become more than that.

Big Brother Can Arrest Robbers by Tracking Their Locations

What if I told you the government had the ability to obtain all your smartphone records and use them to track your every location? Probably nothing, since it doesn’t personally affect you. You might even applaud it, since government prosecutors can use the information to put robbers in prison. But is it worth the risk to our civil rights?

Between December 2010 and December 2012, Timothy Carpenter and about fourteen other conspirators robbed a series of RadioShack’s and T-Mobiles throughout Ohio and Michigan. Carpenter allegedly served as organizer and lookout for the group. In April 2011, police arrested four of the conspirators and one of them confessed to the entire scheme. The conspirator who confessed gave the FBI his cellphone and the cellphones of the other members of the group. The FBI demanded Sprint and MetroPCS, the phone service providers, turn over a list of all cell sites that the phones had been in proximity to for the previous 127 days. The FBI used the list to track the defendants’ every location during the time of the alleged robberies. Since the data revealed that the robbers had been in the stores during the robberies, the defendants were found guilty.

trackingOn appeal to the Sixth Circuit, Carpenter argued that his 4th amendment rights had been violated because the FBI and the government had obtained private information without a warrant. The Sixth Circuit affirmed the guilty verdict, though the judges disagreed on whether new technology automatically raised 4th amendment questions. The case is now pending before the Supreme Court.

Does Cell Phone Number Privacy Exist?

Carpenter’s defense is mostly based on the existence of cell phone number privacy.  Does the government need a warrant if they want to view your contacts list on your cell phone? With traditional landline phones, the court had ruled that people lacked a reasonable expectation of privacy in dialed telephone numbers because the information was conveyed to third parties.

Arguably, that same conveyance of information to third parties exists with cell phones. I can’t expect my call to my parents to be private if Sprint or MetroPC have records I made the call. The contents of the phone might be private, as I wouldn’t expect Sprint or MetroPC to be listening in while I’m talking with them. However, Sprint or MetroPC would have records that I called them, so the mere fact that I called them would not be private information unless obtained with a warrant.

The issue is that this information is being used a way that reasonable Americans probably wouldn’t be able to anticipate. If the FBI only wanted the information to show that Carpenter knew the other fourteen other conspirators, this would not be a Supreme Court worthy case. Instead, the FBI is using the cell phone data to create map whereby they can determine exactly where the defendants were or had been. This is less like the FBI seeing who I called recently and more like an FBI agent following me around everywhere for 127 days. The only question is whether the FBI agent needs a warrant to follow me around. If the answer is “YES!”, then the FBI should also have a warrant before generating their map tracking wherever defendants go.