Archive for the 'Criminal Law' Category

Martin Shkreli Sentenced to Prison for the Wrong Offenses

Former U.S. drug executive Martin Shkreli has finally received his just desserts. U.S. District Judge Kiyo Matsumoto sentenced Shkreli to 7 years in federal prison after a jury found him guilty of securities fraud in August 2017. As part of his sentence, the federal government will also seize $7.36 million in assets from Shkreli through civil asset forfeiture, including the $2 million Wu-Tang Clan album Shkreli had purchased in 2015.

Shkreli became infamous as Turning Pharmaceuticals when he raised the price of Daraprim, an anti-infection drug needed by HIV patients, by 5,000%. Shkreli was not arrested for his actions at Turning Pharmaceuticals, because raising prices is not illegal. Instead, prosecutors charged Shkreli with securities fraud for stealing $10.4 million from investors. Shkreli’s attorneys argued that his client had not caused any losses because Shkreli’s investors eventually made more money than Shkreli had stolen. The jury found him guilty anyway.

Prosecutors demanded 15 years in prison. The defense requested 12-18 months with community service. Judge Matsumoto settled for a median of 7 years with a $7,500 fine and a civil asset forfeiture order of $7.36. Shkreli’s attorneys argued that their client was a changed man who was remorseful of his actions. Shrekli’s behavior during trial showed the opposite: Shrekli bragged online about avoiding jail after the jury handed him his guilty verdict in August 2017 but before his sentencing in March 2018.

shkreliThe Al Capone Treatment?

On its face, it seems like Martin Shkreli was brought down in the same manner as Al Capone. Al Capone was an infamous Chicago crime boss who avoided prison for multiple murders, but was ultimately prosecuted for tax evasion. Shkreli’s decision to raise the price of Daraprim from $13 to $750 brought down the ire of Congress and major political figures. However, raising prices, even to extraordinary levels, is not illegal. This isn’t to say that Shkreli wasn’t guilty of securities fraud, but District Attorneys probably wouldn’t have been as interested in prosecuting Shkreli if Shkreli hadn’t gone out of his way to put a target on his own back.

The Shkreli highlights two issues with the U.S. justice system. First, there is no penalty for abusing vulnerable peoples. Daraprim is not a new drug – it has been used as medication since 1953. Patients who use Daraprim often rely on it to treat life-threatening diseases, including HIV. Prices can be raised to extraordinary levels, but patients must still purchase it. America has been criticized for prioritizing profits over people, but the fact that putting the supply of medication out of reach of most patients is not illegal is one of the most blatant examples possible.

The second issue is how political prosecutions are. Shkreli could have defrauded tens of thousands of investors, but prosecutors might have looked the other way if Shkreli hadn’t gained the notoriety he did. Although laws punish abuse defrauding wealthy investors more than poor medical patients, those wealthy investors would not have had their time in court without the attention that ripping off HIV patients got. The crux of the problem is that the law should prosecute people regardless of other immoral acts they might have committed.

Arrogance of the Wealthy

One of the most interesting things about this case is how arrogant Shkreli was. Shkreli flouted the fact that he could raise prices without regard for human life. Shkreli’s bail was revoked because he put out a $5,000 bounty for a piece of Hillary Clinton’s hair. Even after a jury found Shkreli guilty of three out of seven charges, Shkreli believed he wouldn’t serve much prison time. His own attorney admitted at sentencing that at times he wanted to punch his client in the face.

It is easy to attack Shkreli for being an insufferable douche, but America is full of Shkreli like characters. Men like Bill O’Reilly, Bill Cosby, and Harvey Weinstein think they can abuse women with less power and get away with it. Prosperity theology takes these douches and turns them into holy figures and political martyrs. Even worse, we reward men like Bill Clinton and Donald Trump with power even after their real character comes out. If we are outraged that one man can raise the price of Daraprim from $13 to $750 and that is legal, we have to stop putting men like Shkreli into positions of power. They will always write the rules so that their outrageous and abusive behavior becomes legal.

Never Again: Florida Gun Laws After the Parkland Shooting

Of all the states expected to act, Florida has certainly seen the most scrutiny seeing as the actual shooting took place there. However, despite protests and support from the Florida governor, Florida lawmakers recently rejected a law to ban assault rifles. To be more accurate, Florida passed the law for 15 minutes before calling for a roll call vote in which several representatives got cold feet when they realized they would be recorded as supporting the law. This led to a reversal of position on the banned. However, Florida’s newly passed laws do take several steps in changing how guns can be owned and sold in Florida.

New Florida law has extended the usual waiting periods on handguns to all firearms and required a complete background check before the waiting period can end regardless of how long it takes. There is an exception to this rule for law enforcement officers, members of the military, those with concealed carry permits, and those who have completed a 16-hour hunter safety course.

The new law also raised the minimum ownership age for rifles and shotguns to 21 years old as well as bans use, possession, and sale of bump stocks (an accessory which can turn a gun from semi-automatic to fully automatic).

The law also makes a Public Safety Commission to make recommendations on school safety, creates a safety officer for each district and school, provides funds for mental health treatment, and a few other logistic steps to help with safety.

parklandThe most publicized of these steps has likely been Florida’s new marshal program, which allows teachers to undergo training to carry a gun and apparently respond to active shooter situations. This approach has been a common suggestion recently, but frankly has many issues that make implementation problematic.

There are logistical problems such as the increased insurance costs that will certainly be associated with having armed teachers. What’s more, it is likely a matter of time before a teacher makes a judgment call to shoot a student and the school will be left to decide whether they made the right decision or overreacted.

This is even more problematic in Florida as the stand your ground laws would allow an armed teacher to avoid liability for shooting any student they believe poses a serious threat to cause death or grievous bodily harm–active shooter or no.

Even beyond these complications, the idea of arming teachers and requiring them to fight off an active shooter is questionable at its core. The armed deputy sheriff on duty during Parkland chose not to go in and confront Cruz, is it reasonable to ask that of a teacher we already don’t give enough funding for school supplies?

Not only have some of the laws that were passed by Florida enough to raise an eyebrow or two, the things they chose not to pass also bear mentioning. The Florida Senate rejected dozens of proposed changes including: allowing police to seize weapons from somebody under a domestic violence injunction, gun registry rules, allowing local governments to pass stronger gun laws than the state, background checks for out of state gun purchases, banning large capacity magazines, requiring trigger locks and lockboxes for guns, mental health examinations for a concealed carry permit, assault rifle bans around schools, and many more.

What Have Other States Done in Response to Parkland?

While Florida’s changes have certainly received the most media attention, Parkland has inspired changes in gun law across the nation. Here are just some of the moves made in the last month.

In Michigan, lawmakers have been considering provisions such as arming teachers and confiscating guns from people suffering from mental illness. California has proposed 10 different gun control laws including background checks on parts used to assemble assault rifles, create an Armed Prohibited Persons list for those who may be a danger to themselves or others, a law which takes guns from those hospitalized for suicide attempts twice in one year, and more.

Oregon is one of the few states who have already taken concrete action by barring those convicted of stalking and domestic violence (as well as those under restraining orders) from buying or owning guns or ammunition. Rhode Island’s Governor signed an executive order taking guns from those who pose a danger to themselves or others.

In Vermont, Gov. Phil Scott changed positions on gun laws after initially saying that he felt there was no need for change after Parkland. A recent near miss where a student was caught planning a school shooting has led the Republican governor to start considering new legislation.

Vermont is considering several new measures and their Senate Judiciary Committee has already passed a bill allowing law enforcement to remove guns from people considered at extreme risk of harming themselves or others. Illinois and a few other states are considering similar moves.

Other states, such as Ohio, are still considering how to move forward. Indiana has made moves in the opposite direction since Parkland, removing restrictions on gun ownership in the last few weeks. Kansas is thinking about lowering the age restriction on concealed carry permits from 21 to 18, a measure which would have allowed the Parkland shooter himself to get a concealed carry permit.

South Dakota has decided to go the route of outright allowing guns on school grounds and churches as a so called “self-defense” measure. They are also considering doing away with the concealed carry permit altogether and just allowing any gun owner to carry a gun however they like.

Texas has taken an informational route, ordering that safety information be distributed to all schools as well as planning safety audits for Texas schools requiring clear emergency plans.

What Can We Do?

Parkland has led to a flurry of activity at all level of government when it comes to guns and gun control. The approach has been wildly different from state to state and even at a federal level. The truth is Parkland has shocked the nation, but it is one of many mass shootings just like it across the nation–with almost one mass shooting a day in the U.S. this year. The conversation on how to best deal with this will continue, however there is still a lot of discussion to be had if we want to find a true solution.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Parkland Shooting and Gun Control Leading Up to It

The February 14th school shooting in Parkland, Florida sent shockwaves around the nation as one of the most horrifying of the 52 mass shootings that have occurred in U.S. so far in 2018. The enormous attention the horrifying shooting has brought in the media, there has been an accompanying increased scrutiny on gun control laws and debate over how the tragedy might have been prevented.

The news has covered the actual events of the Parkland shooting in detail; most people already know the specifics of what occurred that day. However, for those who have not, the shooting was committed by a 19-year old Junior Reserve Officers Training Corps student by the name of Nikolas Jacob Cruz. He killed 17 people and wounded at least 15 more.

At the day of the shooting itself, Parkland came to school with an AR-15 semi-automatic rifle. He attempted to create a snipers nest, but after he was unable to shatter a hurricane proof window in a stairwell with 16 shots he changed his plans. His gun ultimately jammed while he still had 150 bullets in his possession, allowing his capture.

parklandHe was arrested alive after his shootings and has charged with 17 counts of premeditated murder. In the wake of the shooting, more information about Cruz has come forward, painting him as an individual with mental disabilities and social media accounts with extremely frequent posts containing anti-black, anti-immigrant, anti-Semitic and anti-Muslim slurs and comments.

His posts even go so far as to advocate the killing of Mexicans, blacks, and homosexuals. He is also seen with many firearms in his social media accounts–including posts accompanied  by threats to commit a mass shooting just like the one in Parkland.

The events of the shooting have led to nationwide boycotts, companies cutting ties with the NRA, and more. Dick’s Sporting Goods recently announced that they would stop selling assault rifles after they realized they had sold Cruz himself a gun just a few months before the Parkland shooting occurred. They determined it wasn’t the same weapon used, but still decided to take the step.

The Parkland has also given rise to enormous scrutiny to gun control laws; scrutiny which has led both the federal government and the states to take a close look at their current gun laws and decide how they want to move forward. With this in mind, let’s take a look at the moves on gun laws out of White House–before and after the shooting. We’ll also examine the moves Florida, along with other states, have made since the shooting.

White House Action on Gun Control Before and After Parkland

After Parkland, it is safe to say that gun laws have become the most discussed topic out of the White House and Congress for the last few weeks. Similarly, President Trump’s actions on gun law–before and after Parkland–have become a frequent topic of media discussion.

For instance, there has been media critiquing President Trump for signing legislation which repealed Obama era rules which made it harder for a person with mental disabilities–such as the Parkland shooter–to get access to a gun. This is true, if a bit of an incomplete story.

The regulation the media is referring to is a rule, passed in the last several months of Obama’s presidency which would have given the National Instant Criminal Background Check System–the commonly used background check system for gun sales–access to Social Security Administration data.

This includes a substantial amount of information on federal mental health benefits which could have limited sales of firearms to those with mental health issues. In fact it is estimated that it would have blocked the sales of upwards of 75,000 weapons to people with documented mental health issues.

However, while Trump did sign the repeal of the rule, the rule itself never actually managed to take effect. Instead, it was repealed under the Congressional Review Act (CRA). The CRA, not particularly commonly used prior to the Trump administration, allows Congress to repeal regulations from the end of the previous administration by a majority vote during the first 60 days of a new administration. Congress did so and Trump signed the repeal nearly a year to a day before the Parkland shooting on February 28th, 2017.

Regardless of the action taken before Parkland, the White House’s position on gun law since the shooting has been inconsistent. First, President Trump came out in a position in line with his highly pro-gun stance during his campaign–calling for arming teachers in the classroom and making little to no comment on any gun control methods besides expressing the need to make sure those with mental health issues are not allowed to own guns–comments which led the media to discuss the record on that topic mentioned above.

However, more recently, President Trump has come out with comments which appear more supportive of gun control laws. Suggesting strengthened background checks at gun shows and, on the internet, restricting sales to younger people, allowing police to take guns away from those with mental illness without a court order and even a potential assault rifle ban. He’s gone so far as to say, “I like taking the guns early…take the guns first, go through due process second.”

This is quite an extreme turnaround, so it is unclear where the White House will settle on this issue. At the very least, this change has certainly not led to a change in positions in Congress.

Federal Law on Gun Sales to Those with Mental Illness

Without changes in Congress, no matter what the President says, there is unlikely to be much movement at a federal level on this issue. When asked about making moves on gun law, Speaker of the House Paul Ryan was recently quoted saying that federal law already prevented sales to those with mental health issues. This is true to an extent, but mostly a substantial exaggeration of the state of the law.

The law Ryan was referring to was the 1968 Federal Gun Control Act. The law does indeed include provisions regarding mental health issues. However, they are extremely narrow and only prevent possession of a firearm by people who have been adjudicated as a mental defective or have been committed to any mental institution. This is a very small portion of those with mental illnesses, even more so because of how narrow these definitions are under the law.

A person is only adjudicated mentally defective if a court or other authority determines their mental illness renders them a danger to themselves or others, or they lack the capacity to manage their own affairs. It can also include situations where somebody is ruled insane in a criminal court case. Committed to a mental institution includes situations where a court or other authority involuntarily commits a person to a mental institution.

This is a quite narrow definition, it’s certainly too narrow to have applied to the Parkland shooter. Cruz himself was not even diagnosed with mental illness, although it’s being argued in his court case. Even had he been diagnosed, it is extremely unlikely that diagnosis would have led to a situation that would have qualified under federal law. The truth is that the federal law covers only a very limited number of situations. This means that it’s down to the states to pass laws if they want laws to help avoid situations such as Parkland.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Charges Brought by Mueller Investigation against Defendants at Home and Abroad

The ongoing investigation into Russian involvement and potential corruption in the 2016 election has been a constant source of news and debate ever since Robert Mueller was appointed to run it. There’s been dramatics, threats from President Trump to fire Mueller, guilty pleas from several associated with the Trump administration such as Michael Flynn and George Papadoupolis, and charges brought against people associated with the Trump campaign such as his former campaign manager Paul Manafort and Manafort’s attorney Rick Gates.

The last week has seen a flurry of activity in the Mueller investigation. First, a little over a week ago, we saw a grand jury indictment (a formal accusation of criminal activity) brought against several Russian nationals and a few businesses. These charges related to the operation of a widespread misinformation campaign to undermine the 2016 presidential campaign.

More recently, just in the last few days, we’ve seen further charges brought by the special investigation. Separate charges were leveled against Paul Manafort and Rick Gates having to do with working for Ukrainian government interests and the efforts they allegedly took to conceal the millions of dollars the Ukrainian government and Ukrainian politicians gave them.

On top of these allegations we’ve learned of a guilty plea from Rick Gates which involves an agreement under which, although the exact details of the deal are not available, it appears which he will cooperate with the Mueller investigation in exchange for at least partial clemency.

MuellerAs of now, all these cases are in very early stages. However, they likely represent the most substantial moves by the Mueller investigation so far. Let’s look at the charges brought over the last week or so as well as what this may mean going forward.

Charges Against Russian Individuals and Corporations

On February 16th of this year, the special counsel brought the first of these two new indictments. Those named in the indictment include the Internet Research Agency LLC, Concord Catering, Concord Management and Consulting, and several Russian nationals who allegedly posed as U.S. citizens as part of a misinformation campaign with a general goal of spreading mistrust for the political system of the U.S. and toward specific political candidates. Also, the indictment also includes Yevgeniy Prighozin–an individual quite close to Vladamir Putin–as the partial financier behind the activities.

The charges brought here include conspiracy to defraud the United States including destruction of evidence and stolen identity elements, as well as conspiracy to commit wire and bank fraud, and aggravated identity theft. The charges related to defrauding the United States are over impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit to interfere with the U.S. political and electoral processes, including the presidential election of 2016.Conspiracy to defraud the U.S. is certainly an uncommon charge to see. However, to break down how it works into its constituent parts, it is essentially an effort by two or more people working together with the goal of damaging the lawful function of any department of the U.S. government. This can be done by cheating them out of money or property or interfering with the functions of government by deceit or trickery.

It doesn’t require the government to suffer any real loss, just the effort itself is enough to commit the crime.The other charges–wire fraud, bank fraud, and aggravated identity theft–are much more common and simple. They work much the way they sound–respectively they are fraud using telecommunications technology, defrauding a bank, and knowingly transferring, possessing, or owning the identification of another without lawful authority. The allegations say there was an enormous amount of subterfuge through social media platforms including Twitter, Facebook (through fabricated news stories, purchased advertisements, and even simple emails accounts. This activity targeted nearly all candidates except Trump and Bernie Sanders.

However, it largely focused on supporting Trump and attacking Hillary Clinton. This all came together into what the allegations describe as information warfare against the United States. The core of the charges of conspiracy to defraud the United States are these attempts is an alleged stated goal on the part of those indicted to spread distrust towards some of the candidates of the 2016 election and the U.S. political system.

Those accused worked largely at the behest of a couple of companies, primarily one known as the Internet Research Agency. Besides the false social media pages and personas, the efforts included fake emails, fake personalities, travel from Russia to the U.S. to gather intelligence for their operations, and more. The evidence even includes memos from the Internet Research Agency telling those accused to use social media sites to “use any opportunity to criticize Hillary and the rest (except Sanders and Trump — we support them).”

These Russian allegations have very little in the way of connection to the actual Trump campaign. The closest the existing evidence comes to this is a couple of requests for aid by Russian nationals in putting mocked up demonstrations which were sent to Trump campaign officials in Florida. However, there’s no indication as to whether these officials even responded.

Charges Against Paul Manafort and Rick Gates

While these initial charges have very little link to the Trump campaign, the more recent charges hit much closer to home. Although it is important to note that the allegations as of now do not include much of anything that could be called a smoking gun linking the actions of Manafort and Gates to President Trump himself.

However, in addition to the previous charges of conspiracy against the U.S., money laundering, and more  brought against Trump’s former campaign manager Manafort and his lawyer Rick Gates last November, we’ve now seen 32 additional counts leveled against the pair in a February 22nd filing. These new charges are primarily allegations of bank and tax fraud associated with efforts to hide funds obtained from Ukraine.

Just before these charges came out, Gates apparently pled guilty to conspiracy to defraud the United States and lying to the FBI and the special counsel. This plea deal has apparently been in the works since January, so it’s unclear whether the plea is because of the new charges or just comes from ongoing negotiations. Either way, it is very likely it will result in Rick Gates testifying as a witness to the deeds of Paul Manafort.

According to the allegations, and those of the previous charges brought against the pair, the two made tens of millions of dollars through work with Ukraine. Funds they allegedly worked to hide from the U.S. by funneling the earnings into front bank accounts abroad. They also allegedly repeatedly lied to banks about their financial situation and source of income to create greater liquidity for funds from Ukraine they otherwise tied up primarily in real estate.

The recent indictments against Manafort and Gates go into quite a bit of detail as to how they allegedly lied to banks to launder money received from Ukraine as well as alleging that they repeatedly outright lied on their taxes about the existence of the funds.

Much of the charges revolve around the provisions of the Bank Secrecy Act. This is a statute which, among other things, requires United States citizens to report to the Treasury any financial interest in, or signatory authority over, any bank account or other financial account held in foreign countries, for every calendar year in which the combined totals of all these foreign accounts exceeds $10,000 at any point during the year. Manafort and Gates apparently had enormous amounts offshore from their dealings with Ukraine which they never reported.

Other allegations in the new indictments include charges that Manafort recruited and paid for former European politicians–recruiting them to lobby for Ukraine within the United States with payments in the realm of 2 million Euros.

These charges are related to the original allegations against Manafort and Gates of acting as undeclared Ukrainian lobbyists as well as a larger money laundering conspiracy. However, it seems they are more likely part of a strategy to turn up the heat on the pair.

What Does All This Mean?

Gates is the third person with connections to the Trump administration to plead guilty to some sort of collaboration with Russia and its allies–following similar pleas by Michael Flynn and George Papadoupolis. What happens with Manafort moving forward, especially now that his lawyer and business partner Rick Gates has agreed to testify, will be interesting to see. Manafort himself was fired as campaign manager by Trump, but kept on as an advisor throughout Trump’s campaign–instead traveling with Trump and working as a liaison between the campaign and the Republican National Committee.

Either way, at this point it’s very early in the proceedings on all fronts–both against the newly indicted Russian nationals and Manafort. While the proceedings have not been the exoneration that President Trump has claimed them to be on social media, there is at least no immediate smoking gun linking the President’s campaign or the President himself to these events at this point.

There is certainly substantial evidence of Russian interference in the campaign, often on President Trump’s behalf or attacking Hillary Clinton. This is along with evidence of larger efforts to undermine the U.S. political system. Where all this evidence will lead remains to be seen. However, it will certainly be interesting to see what happens as the case against Manafort moves forwards.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Is It Protected Speech: Can You Legally Flip Off a Cop?

On August 21, 2017 Indiana State Police trooper Matt Ames pursued a driver along U.S. 41. Ames cut off another driver, Mark May, in order to catch the driver. As Ames cut off May, May “gave the finger” to Ames. When Ames saw the gesture, Ames pursued May and ticketed him for “provocation.” Indiana Criminal Code charges an individual for $500 if the person “recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery commits provocation.”

Mark May challenged his ticket at Terre Haute City Court. The traffic judge found May guilty. May appealed his ticket and won, whereby the conviction was dismissed. The District Attorney’s office declined to proceed further with the case.

Mr. May is now suing the state of Indiana, with assistance from the ACLU, for violating his First and Fourth Amendment rights. The ACLU of Indiana alleges that May’s gesture was expressive conduct protected by the U.S. Constitution. The lawsuit also argues that the state trooper engaged in an unconstitutional search and seizure because Ames lacked probable cause to stop May. May seeks damages, including lost income for his two days from work for his court appearances.

protected speechConstitutional Speech or Provocative Conduct?

The ACLU has made two claims, but the Fourth Amendment claim is dependent on the First Amendment argument. If flipping off a police officer is constitutionally protected speech, then the officer would need another probable cause to stop the vehicle.  If it is not, then Trooper Ames would have witnessed a crime in progress (provocation) and would have probable cause to stop May.

The Supreme Court has ruled that speech can be more than mere words. Conduct can also be a means of communicating ideas. The Court is especially protective of political speech, especially speech meant to change government policy or to protest government conduct. Flag burnings are protected speech under these rules. If “giving the finger” to a government figure is a means of protesting the government, then it would also be protected speech. Suppose that a President of the United States walked down the street and everyone on the street gave him a middle finger salute as he passed by. The First Amendment would protect anyone who pointed their finger at the President.

On the other hand, there might be situations where engaging in provocative behavior would endanger not only the defendant, but the general public as well. Suppose that a gang member was driving down the highway when a member of a rival gang cut in front of him. When the gang member gave the other driver the finger, the rival gang member responds by shooting at him. The other driver misses his target and ends up shooting a nine-year old girl in another car.  Clearly, the middle finger would be a proximate cause for the murder in that case. This example is slightly exaggerated, but road rage in a gun happy culture is a bad idea.

Between these two extremes, we can derive a few ideas where this kind of law might be acceptable. First, government officials should not be able to abuse provocation to protect themselves from citizens. Second, the law should be narrowly tailored so that it protects the public from people who might injury others because of a fight.

How Will This Case Play Out?

The anti-provocation law, as written, is constitutional. Application to this case is a little harder. The fact that Trooper Ames was acting as a representative of the state at the time is central here. Normally, a court would ask whether giving another driver the figure would reasonably cause the other driver to commit battery. If we assume everyone is an adult capable of controlling their emotions, the answer is probably no. So we must ask if Trooper Ames gave the ticket because he was offended or because he thought other drivers would be offended if they were in his situation.

The state would lose if Ames pulled May over because he was personally offended by the gesture. Ames would be abusing his power by punishing a citizen for a personal grudge instead of enforcing the law as an agent of the state. Likewise, the state would lose if May gave Ames the finger because May thought that a police chase would be unsafe or that the person Ames was trying to catch should not have been targeted.

The only way that Ames could lawfully ticket May for giving him the finger is if May was angry that a car, regardless if it was a cop or not, had cut him off and if Ames thought May’s reaction would likely cause any other driver to react poorly. If this exact situation sounds too farfetched, then Mr. May should be able to legally flip off Trooper Ames.