Archive for the 'Laws' CategoryPage 2 of 29

New York Criminalizes the Use of GPS for Stalking People

A new law was recently implemented in New York that criminalizes a use of GPS for the purposes of stalking.

GPS stalkingFor the law to apply, the person being followed informs the stalker that such behavior is unwelcome. This requirement conforms to New York’s stalking law, which requires people to let a suspected stalker know that certain kinds of conduct are unwanted.

The Reason for the New Law

The new law, called Jackie’s Law, was implemented in response to the murder of Jackie Wisniewski by her boyfriend two years ago at the Erie County Medical Center. Prior to her demise, Wisniewski discovered a GPS device that her boyfriend had put in her car. However, law enforcement officials were unable to prosecute him for stalking her with a GPS because under the state’s stalking laws, such conduct was not forbidden.

Only if the alleged stalker is told that his or her behavior is unwelcome, and the stalker persists in tracking the victim, are the police then able to charge the person with stalking in the fourth degree. Jackie’s Law is significant in that it removes the burden of filing charges from the victim, and places it upon the police. In so doing, it offers some protection to victims of domestic violence and other types of violence.

Other Uses of GPS Tracking

Not only has GPS technology been used to track victims of domestic violence, but it has also been used by political opponents to discover whether one was residing in a certain political district.

Unfortunately, tracking someone with a GPS device without that person’s knowledge is still legal. And if that person discovers the device, but does not inform the perpetrator that such conduct is unwelcome, then the use of the GPS is still legal.

Potential Changes in the Law

According to recently proposed federal legislation, secretive use of GPS trackers may also soon be criminalized, with the exception of such use by the police, parents of minors, and in certain cases of patients afflicted with dementia or similar illnesses.

Although the new law is an improvement over the previous one, the onus is still on the victim to confront and inform the perpetrator that such behavior is unwelcome. But if the victim is so fearful of the stalker that he or she would prefer to have no contact with him or her, then perhaps the victim could relay those fears to the police, who could then act as the victim’s messenger, and inform the stalker. Then, if the stalker still engages in GPS tracking, the police would be free to press charges.

Mental Health Patients Can Own Guns, Court Rules

It sounds like a crazy idea, but the Sixth Circuit has ruled that people committed to mental institutions may own a gun. Gun control proponents might believe the ruling is insane, but the decision is not as loony as it sounds.

mental health patient gun lawInsanity puns aside, the hero of our story is 73 year old Clifford Charles Tyler, a Michigan resident. In 2011, Tyler attempted to purchase a gun. He was denied after an FBI background check showed that he had been held at Ypsilanti Regional Center in 1985 for depression and suicide watch. Tyler was involuntary held at the Center for a month after his ex-wife of 23 years took all their money and left Tyler for another man.

However, Tyler left the Center completely healthy. He remarried in 1999, maintains good relations with his daughters from his first marriage, and has no criminal history before or after his stay at the Center. In fact, Tyler voluntarily underwent another psychological evaluation in 2012. According to the most recent evaluation, Tyler has not had another depressive episode since his divorce in 1985 and the psychologist reported that she could not find any evidence of mental illness in Tyler.

Why So Serious?

For those uninterested in the administrative jargon, Tyler was denied a firearms license because he was a former mental patient. Federal law gives Tyler the right to expunge that ban, but Congress had defunded the ability to make that appeal and Michigan declined to make such an appeals process itself. So where did that leave Tyler?

Tyler’s attorneys brought a lawsuit and the Sixth Circuit made their groundbreaking decision. The Appeals Court agreed that the government can prevent the mentally ill from obtaining a gun because of the risk of public injury. However, just because an individual was committed to a mental institution does not mean they are mentally ill. There might be overlap, but the fact that federal law prohibits both the mentally ill and people committed to mental institutions from possessing firearms means that Congress itself knew there was a distinction when they wrote the law. Although mentally ill people are outside the scope of the Second Amendment because of public safety concerns, the Court could not find a reason that a former patient like Tyler should be prohibited from being able to exercise his constitutional right.

Justice Is Ironic

The Court probably could have decided this case based on Due Process rather than the Second Amendment, but I think this decision reached the proper outcome. Most pundits would probably focus on what this case means for the NRA or for gun owners, but this is an unexpected victory for another group of people: mental health patients.

The Appeals Court didn’t get into why people committed to mental institutions were denied gun ownership. It’s obvious why mentally ill people are denied firearms, but what about regular people who just need mental health assistance? There has long been stereotyping and misunderstanding about people who see psychologists or seek mental health. People who are depressed or who are abusing substances are expected to deal with it, but are often discouraged from seeing experts about it. There is growing recognition that it’s OKAY to seek help for mental health issues. Obamacare requires that insurance companies include mental health services in their insurance coverage, but it’s not enough.

Prohibiting people committed to mental institutions from possessing a gun only made such stereotypes worse. Those stereotypes have prevented people from seeking out professional help before their mental health programs caused greater harm. If we can encourage people to seek professional health before their condition progresses too far, we can stop mass shootings while expanding our right to bear arms.

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San Francisco Man Sues Police for His Arrest over a Baby Helmet Violation

In California, the bicycle helmet law requires anyone less than 18 years of age to wear a helmet while riding a bicycle on a street, public bicycle path or trail, or bikeway. The law applies to children who are in restraining seats as well as those being transported in a trailer behind a bicycle.

san francisco bike laneThe punishment for failing to wear a helmet while riding a bicycle is a fine of no more than $25. If a minor is caught riding a bicycle without wearing a helmet, the parents will be fined. One San Francisco parent was caught riding his bicycle along with his baby in a baby carrier, but somehow, the punishment didn’t seem to fit the crime.

According to the father, as he was riding his bicycle to the grocery store with his 10-month-old son in a baby carrier, he was approached by two police officers who nearly collided with them. When the officers asked him why his baby wasn’t wearing a bicycle helmet, he replied that he was unfamiliar with a baby helmet law, and requested an explanation. At that point, it is alleged that one of the officers said that he didn’t need to explain anything, whereupon the exchange took a turn for the worse.

The officers switched on their flashing lights, exited their vehicle, grabbed the father’s wrists, and informed him that he was going to be arrested and that Child Protective Services (CPS) was going to take his son. The complaint goes on to say that the officers never asked the father to lift the baby out of the carrier, and never inquired if there was another parent in the neighborhood who could take the baby.

Then, the situation became violent as many other officers took the father to the ground, where another officer choked him to the point at which he lost consciousness. Although he eventually regained consciousness, the father claims he was choked two more times as two officers took turns cutting the crying baby out of his carrier in lieu of unsnapping the carrier and lifting the baby out.

The officers then placed handcuffs on the father, and placed a hobble around his legs, while he implored them to call his wife, who was just one block from their location. Two hours later, Family and Children’s Service called his wife, and said that he was drunk and hit a police car while riding his bicycle. The father said that the agency decided that the child neglect complaint was baseless.

As a result of this ordeal, the father suffered injuries to his neck and hand, and spent the night in jail, though he was not charged with any crime. He described his arrest as cruel and without justification, and that the aggressive removal of his son has caused him to suffer anxiety and emotional distress.

He and his wife have filed a lawsuit against the police officers as well as the city and county of San Francisco, and are seeking punitive damages for violations of their constitutional rights, assault and battery, negligence, false imprisonment, and violation of the Ralph Civil Rights Act and the Bane Civil Rights Act.

Under California Civil Code §51.7, the Ralph Civil Rights Act (hate violence) prohibits violence or threats of violence based on an individual’s race, color, religion, ancestry, age, disability, gender, sexual orientation, political affiliation, or position in a labor dispute.

Under California Civil Code §52.1, the Bane Act provides protection from interference by threats, intimidation, or coercion or for attempts to interfere with someone’s state or federal statutory or constitutional rights (these include association, assembly, due process, education, employment, equal protection, expression, formation and enforcement of contracts, holding of public office, housing, privacy, speech, travel, use of public facilities, voting, worship, and protection from bodily restraint or harm, from personal insult, from defamation, and from injury to personal relations).

The treatment that this father endured was especially harsh given that he committed a seemingly minor violation of failing to place a helmet on his baby while riding his bicycle. Not only was he emotionally damaged as a result of the forceful arrest and removal of his child, but imagine the effect on the baby upon seeing his father choked and handled in such a violent manner. Hopefully, they will prevail in their lawsuit, and obtain the damages they are seeking.

New Illinois Law Makes It a Felony to Record Police

Thanks to Illinois, we have a clear winner for the honor of “Worst Law Made in 2014.” It takes real nerve to write a law that claims to protect citizens’ rights while actually violating two rights in the Constitution.

illinois record police new lawI’m talking about Senate Bill 1342. This is a law that makes it a felony to secretly record private conversations. The bill passed the State House and Senate and is awaiting Governor Quinn’s signature.

A previous law had been overturned by state and federal courts in 2012. That law was considered too broad as it would have criminalized recordings of sports games as well as police conduct. SB 1342 attempts to “fix” the problem by limiting criminalization to recording of “private” conversations where at least one person in the conversation has a reasonable expectation of privacy recognized by law. That provision doesn’t sound too bad, even if it is super vague.

However, SB 1342 has two big problems. First, the bill contains a laundry list of exemptions for police officers. A police officer can record private conversations during an investigation of child pornography or sexual exploration of a child if the officer has the approval of a state attorney. This is highly worrisome considering that the Constitution requires police to obtain a warrant from a judge to conduct a search. The police could say that recording a private conversation is not a search, but police wouldn’t be listening in on a conversation if they weren’t looking for evidence of a crime. SB 1342 looks like a power grab by police trying to circumvent the courts.

The second problem with SB 1342 can be found in the sentencing guidelines of the bill. If an individual is found guilty of recording a private conversation between ordinary citizens, then it’s considered a class 4 felony for first time offenders and a class 3 felony for repeaters. However, recording a “private conversation” involving a police officer, state attorney, attorney general, or a judge during the performance of their official duties results in a class 3 felony or a class 2 felony for repeat offenders. In other words, it is a worst crime to record the private conversations of police or government officials than it is to record ordinary citizens.

Proponents of the bill claim that the purpose is to protect the right of privacy. The language of the bill indicates that the real purpose is to expand the powers of state police. The list of exemptions is mostly for police officers.

Under the bill, it is perfectly legal for police to record private conversations if the police suspect there is exploration of a child. Also under the bill, it is perfectly legal for police to record traffic stops or to record when emergency sirens are on. And yet, when ordinary citizens try to record the police, the ordinary citizen is punished more severely.

Police can legally record ordinary individuals but the bill attempts to make it a crime if ordinary citizens attempt to record the police.

This one-way street is fundamentally unconstitutional. The 7th Circuit, the circuit that oversees Illinois, has made it very clear that audiovisual recordings are part of free speech and that infringement of audiovisual technology violates the right to free speech. More importantly, the 7th Circuit also held that the purpose of the First amendment is to protect the “gathering and dissemination of information about government officials performing their duties in public.” It is the right of citizens to record police officers during their official duties and to share that information with the greater public.

SB 1342 proponents will point out that the bill only criminalizes the recording of private conversations. If a police officer is interviewing a witness at a police station, it would be illegal for a private citizen to record that conversation without the consent of the officer and the witness (the officer needs the consent of the witness). Recordings like the death of Eric Garner would not be considered a “private” conversation and would not prosecutable under this bill.

The problem is that the definition of “private” under the bill is extremely vague. The “expectation of privacy” has to be recognized by law, but laws change all the time. Who can say whether “privacy” won’t expand to include areas we normally think of as public? If Europe can expand privacy to include the Internet, it’s hard to tell where the privacy line will expand to.

Moreover, police prosecutions are not the point of the controversy. As the Eric Gardner indictment, or lack thereof, showed, not even video recording is a guarantee that police will be held accountable if they go overboard. The real point of recording police is so that the larger public will be informed. The protests that sprang out of Ferguson and New York might be frustrating, annoying, and lack a clear goal, but the protests are the point. The people have the right to know and the right to be outraged by what the police do in their name.

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Did Congress Just Block Marijuana Legalization in DC?

People often complain that Congress doesn’t do anything. The naysayers believe that partisanship has created a gridlock in the legislative branch, preventing any laws from being passed. Well, with less than a month before the new Republican controlled Congress replaces the old divided Congress, senators and representatives are lining up to show that they can get things done. The first item on their list was the No Social Security for Nazis Act (the name speaks for itself). The second item on the agenda is a federal spending bill for 2015.

dc marijuana lawsThat might not sound very interesting, but federal spending bills usually hide all kinds of controversial provisions. Politicians often use these bills to fund organizations they support and defund organizations they oppose. Exhibit A is recreational marijuana in Washington D.C. Last election, voters in the District of Columbia voted to decriminalize and legalize cannabis. That’s hardly surprising. Before November, the local penalty for marijuana possession was a mere $25 fine. Traffic tickets are more expensive than D.C. marijuana fines. So it was hardly a shock when D.C. voters approved Initiative-71, an initiative to decriminalize marijuana, by a solid majority of 70%.

If D.C. was a state, the initiative would have been become law. Under the Constitution though, Congress has final control over Washington D.C. If D.C. passes a law that the federal government doesn’t like, Congress has a month to overturn it. Congress often meddles in D.C.’s politics, blocking nationally controversial laws such as abortion and medical marijuana. Congress is expected to do it again.

The federal spending bill has a provision that would prohibit federal and local D.C. funds from being used to implement an initiative legalizing marijuana. Although the White House had warned Congress against interfering with the marijuana initiative, President Obama will likely sign the bill since vetoing the federal spending bill could result in another government shutdown.

Drug Policy and Progressive Ideals

The most disappointing aspect of this bill is that Congress really didn’t have to take this step. Indeed, both parties could benefit from a change in drug policy.

Democratic leaders in Congress will attempt to portray the bill as a compromise to save the initiative. The D.C. provision would theoretically prevent local D.C. government from creating regulation to sell and grow marijuana, but decriminalization would be preserved. Given the recent racial tensions in Ferguson and New York though, fully defending the D.C. marijuana initiative should be more than justified. Eric Garner died after a police confrontation over cigarettes. Democrats understand that drug enforcement is often arbitrary and minorities are incarcerated more because of drug traffic laws. This was an opportunity to change our archaic drug laws in a tense political climate and Democratic leadership squandered it.

Drug Policy and Conservative Ideals

Republican policy on drugs is even more perplexing. While Democrats understand that drugs lead to more minority arrests, current drug laws are contrary to the principles that Republicans stand for. Republican congressman cannot claim to be the party of limited government and local governance while simultaneously using federal power to block a popular local initiative approved by voters.

Reversing the War on Drugs is more beneficial to Republicans on other political fronts. Illegal immigrants from Central and South America come to the United States because their countries have been turned into cesspools by large drug cartels. These drug cartels are multi-national empires built on the black markets created by our drug laws. We can put up as many walls as want and deport as many illegal aliens as we can, but the long-term solution will be to shut off the drug cartels that are driving illegal immigrants into this country. Republicans cannot stop illegal immigration without changing our drug laws.

It’s amazing how many political issues are connected to our drug policy. Illegal immigration, racial equality, police militarization, and prison overcrowding are all tied into the massive drug system we’ve built. The D.C. initiative was the perfect symbol of change. Instead, Congress has decided to keep a broken status quo. We don’t need Congress to pass more laws. We need Congress to have better vision.

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