Tag Archive for 'due process'

Home Is Where You Park It: The Legality of Living in a Car

It used to be illegal to sleep in your car in Los Angeles. The city’s municipal code outlawed using any vehicle parked on a public street, lot, beach, or harbor as living quarters either overnight, day-by-day, or otherwise.

living in a vehicleIn June 2014, the 9th Circuit handed down a decision invalidating this law. The court unanimously held this language was “overbroad,” meaning quite simply that the municipal code criminalized otherwise innocent, legal conduct. Since it was overbroad, it violated the Due Process Clause of the Fourteenth Amendment.

This may seem like a no-brainer. After all, as written, any activity one would do in a “living quarters” was illegal in a car, meaning eating, talking on a phone, and checking hair in the mirror. More pointedly, a tired surfer couldn’t take a nap before paddling back out, a vacationing family, couldn’t catch a few hours of sleep for the night before hitting the road again, and a struggling software salesman, forced into foreclosure after being hit hard by the recession, couldn’t pull over into a quiet neighborhood to sleep after a hard day’s work.

Of those three examples, the first two typically weren’t the target of law enforcement, but the last one was.

Since the Great Recession, many have taken to sleeping inside of their vehicles. Unsurprisingly, particularly in more wealthy neighborhoods, similar anti-vehicle dwelling ordinances have passed in an effort to give police the ability to eradicate this new type of “homeless” population.

While this opinion only directly invalidates the Los Angeles law, it will also have an impact on any similar law in Arizona, California, Hawaii, Idaho, Montana, Nevada, Utah, Oregon, and Washington. Those states collectively hold about 62 million people, or nearly 20% of the nation’s total population. Thus, this single decision not only potentially impacts a large portion of the country, but asks an important question to all of us: is living in a car really that bad? Perhaps more importantly, now is a good time to change how our country looks at homelessness.

Recent polls and census efforts indicate that upwards of 55-60% of employed homeless individuals reside in a vehicle. Maintaining and running a vehicle isn’t cheap, but it can certainly be less than rent in larger metropolitan areas. Living out of a car is even a preference for many. Business Week has reported on a trend of successful, young professionals opting to live in their vehicle rather than pay for posh apartments.

One example is Foster Huntington, who left a well-paying design job and apartment in New York City to live and do freelance design work out of his Volkswagen van, amassing nearly a million followers on his social media sites, and leading to the recent publication of his photo book on the subject of “van life.” The carefree, anchorless lifestyle embodied by “van life” is demonstrative of how these laws criminalize perfectly legal, if not remarkably practical and utilitarian life choices.

The other side of the token is that homeowners should be free from finding trash or waste strewn about from vagrants. They should also be free from seeing a camper parked on the street in front of their home for days on end. Considering there are already perfectly valid laws against criminal damage to property and littering in place, the former concern can be dispelled. Moreover, there are also laws in many, many cities against leaving in a vehicle parked on the street in one space for more than 24 hours. This leaves the homeowners complaints seemingly solely against having to see vans, campers, or cars filled with possessions or extra storage, and the unnecessary, perhaps misguided shortsighted stigma attached to their occupants. After all, it’s quite likely the occupant of that vehicle is working, paying taxes, and supporting a local economy.

Homeowners should also consider this: having a vehicle parked on your street is preferable to having someone sleeping on the sidewalk. Where vagrancy has been a real issue, spending more time addressing the causes is certainly more desirable than criminalizing looking for a place to find some rest. In the meantime, Los Angeles will have to adjust to the changes in their law, and other cities should be prepared to either stop enforcing anti-vehicle dwelling laws altogether, or spend some of those complaining homeowners hard earned tax dollars on defending the laws in court.

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“Innocence of Muslims” Director Basseley Not Given Criminal Due Process

For citizens who aren’t attorneys or judges, procedural rules are bizarre and alien creatures. As bewildering as rules about reading of Miranda rights and parole are though, procedural due process, or the right to have the correct procedure used against you before being deprived of liberty or property, serves as a necessary safeguard against governments seeking to launch witch hunts or show trials against scapegoats.

The recent terrorist attack on the American embassy in Benghazi triggered a fight over responsibility. Republicans blamed President Obama while the White House blamed filmmaker Mark Basseley for creating “Innocence of Muslims”, an internet video which fueled outrage in the Middle East. As the 2012 elections end, Basseley finds himself arrested and prosecuted – though not for creating the video which supposedly resulted in the death of Ambassador Chris Stevens.

Mark Basseley had previously been convicted of bank fraud (and identity theft) in 2010. He was shortly paroled though, on condition that he not use any aliases or access the internet without the express permission of his parole officer.  A few months later though, Basseley contacted Minister Cindy Garcia and others about making a movie about Egypt called “Desert Warriors.” Basseley, now calling himself Sam Nakoula, purchased a California driver’s license to register himself with the Screen Actors guild to gain creditability. However, after the film was done, Basseley dubbed new lines into the movie and uploaded it onto YouTube as “Innocence of Muslims.”

Cindy Garcia attempted to sue Basseley, but Basseley had gone into hiding, allegedly from Muslims looking to execute him. After the White House spent weeks denouncing the video though, federal agents found Basseley hiding in L.A. After being denied bail, Basseley plead guilty to four counts of using fake names and fraudulently obtaining a state driver’s license in violation of his parole. He was sentenced to a year in prison. Despite prosecution and Judge Snyder’s assurance that the internet video had nothing to do with the proceedings, Basseley still asserts that President Obama was responsible for his arrest.

Basseley is plainly guilty of violating his parole. He used aliases in violation of parole and even obtained a fake driver’s license in order to do so. The terms of his parole were very reasonable given that Basseley’s prior crime was identity thief. His subsequent denial of bail after arrest is arguably justified given his use of fake names and his attempt to hide. Basseley might claim he was hiding from terrorists, but the fact law enforcement had to track him meant he was also hiding from the law.

Basseley is a despicable character, but as an American citizen, he is entitled to his rights under the Constitution.  I’m not talking about his freedom of speech, although Basseley is entitled to that. No, the overlooked right at stake is Basseley’s right to criminal due process. It is not unusual for criminals to break their parole terms and the criminal justice system foresees this possibility. If a criminal violates his parole terms, the parole officer is supposed to report the violation to the Parole Commission for additional punishment.

It was unnecessary for the federal judiciary to start a new trial for Basseley’s probation violation when a pre-existing procedure was already in place.  The Justice Department will argue that a new trial is necessary of the fact that the breach of parole caused harm to many. However, the government cannot argue about the magnitude of Basseley’s breach if they also deny that the internet video was not an issue at trial. Any harm Basseley caused to Cindy Garcia and other actors in the film can be settled by civil law, not criminal.

The fact politics trumps constitutional rights here is a disservice and an insult to Ambassador Stevens. The ambassador was not only a representative of America, but also America’s ideal that principles come before political clout. In putting Mark Basseley through this show trial, Obama has allowed Ambassador Stevens to die in vain.

You Can Be Prosecuted for a Fake Facebook Profile

I’ve spilled a lot of virtual ink about criminal charges arising from bad behavior on the Internet. Much of the time, these cases have involved conduct that should be criminalized, such as making threats or committing fraud. Essentially, these are things that have always been illegal in the “real” world, transferred onto the Internet, where they’re still illegal.

I’ve also written about crimes that can only be committed online, some of which clearly should be criminalized, such as breaking into computer systems to steal sensitive information. On the other hand, there have been several high-profile cases of criminal law being applied to online conduct in a way that seems to make little sense. For example, there have been cases of people being prosecuted for “unauthorized access” to a computer system for logging into their work computer after quitting or being fired, or setting up fake MySpace pages.

Last week brought another case of a person being prosecuted for setting up a fake online presence.

A woman set up a fake Facebook profile about her ex-boyfriend, and posted inflammatory statements under his name. She is now being prosecuted for identity theft.

Now, I’m not condoning this woman’s conduct. At the very least, I think she should be subject to civil liability for defamation and invasion of privacy. In this case, I’m pretty much on the fence about whether or not this type of conduct, deplorable as it may be, should expose a person to criminal charges.

On one hand, identity theft is a serious problem, and can ruin people’s lives. However, laws against identity theft are primarily meant to guard against the financial harm caused by fraudulent use of another’s identity. While it’s true that any identity theft can also damage its victim’s reputation, that doesn’t seem to be the main motivation for laws banning it. A couple states, including California and New York, do have laws specifically outlawing online impersonation. New Jersey, where this took place, does not.

So, could the state’s existing law against identity theft be stretched to cover the conduct at issue in this case? According to at least one judge, it can.

If New Jersey had a law specifically prohibiting online impersonation, this prosecution would probably be uncontroversial. But, as a matter of due process, I have a problem with prosecutors stretching criminal statutes to be applied to conduct that the actor may not have reasonably expected to be criminal in nature.

This is because due process of law requires that, among other things, that people have notice of what conduct is illegal. Obviously, if there were “secret” laws, it wouldn’t be fair to punish someone for breaking them, when they had no way of knowing that they existed in the first place.

The best way to mitigate the problem of extremely bad conduct which we haven’t thought to criminalize is, unfortunately, to simply learn from our mistakes. In this case, the proper response would be to lobby the state legislature to change the law, not to stretch existing law to accommodate it.

This is unfortunate because this approach generally requires that the first person to commit a bad act that we decide needs to be criminalized would have to go free, since criminal laws cannot be applied retroactively.

But, as I’ve said before, the price we pay for living in a free society with a fair criminal justice system is that some guilty people will go free.

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Florida Considering Constitutionality of Harsh Drug Law

Back in 2002, Florida passed a law that makes finding a person criminally liable for a drug-related offense easier than just about any other state.

While every state prohibits possession and sale of certain drugs, an essential element of those crimes is “mens rea,” or “guilty mind.” Essentially, it means that to convict someone of virtually any crime, the prosecution most prove that the defendant acted with some type of criminal intent. In drug cases, this requires a showing that the defendant knew that the substance he possessed or sold was, in fact, an illegal drug. Note, this usually means they only need to know that they possessed a specific drug. It does not require that they know the drug was, in fact, illegal. So, if somebody believes, for whatever reason, that cocaine is legal, and happens to be in possession of cocaine (and knows that the substance in their possession is cocaine), they are criminally liable, despite the fact that they believed it was legal.

On the other hand, if the defendant possessed a drug, and reasonably believed that it was something else, they will not be liable. For example, suppose that cocaine is being smuggled into the country in boxes of baking soda. One of the boxes inadvertently finds its way onto a grocery store shelf. A customer at the store buys the box containing the cocaine, intending only to buy baking soda, and believing that that’s what the box contained, which is a perfectly reasonable assumption, under the circumstances.

If they were arrested for cocaine possession later on, they would probably not be held liable, assuming the never found out that the box contained cocaine.

Under this Florida law, however, the rules would be changed: anyone in possession of an illegal drug can be found guilty of drug possession, even if they did not know or believe that they were in possession of an illegal drug. So, the person who innocently buys a box of cocaine at the grocery store, thinking its baking soda, could theoretically be found guilty of cocaine possession, despite the fact that they had absolutely no intention of breaking the law. This effectively makes drug possession in Florida a strict liability crime.

This would be a radical change, and, as one might expect, it’s hardly without controversy. In fact, it’s so controversial that a Florida appellate court has asked the state’s supreme court to take up the case, to resolve the issue of the law’s constitutionality. This is something that rarely happens, as it’s usually the losing party in a lawsuit or appeal who asks a higher court to hear the case.

The key issue is whether or not the law violates a person’s right to due process of law. A person cannot be deprived of life, liberty, or property without due process. And one essential element of due process is that defendants have notice of the fact that the conduct they’re engaging in is illegal. Imagine of your state legislature passed a bill that prohibited, say, wearing blue shirts, but kept this law a secret – they didn’t tell anyone that the law had passed, and didn’t even publish it. Obviously, it would be incredibly unfair to punish a person for breaking this law when no member of the general public had any way of knowing that the law existed.

Here, we aren’t dealing with a secret law. But we are dealing with a law that can punish people who have no knowledge that they’re doing anything illegal, and no intent to break any laws. Most people would view this as incredibly unfair.

I would agree with them.

More importantly, however, I think that laws like this are symptomatic of how completely off-the-rails the “war on drugs” has gone, and how getting “tough on crime” has superseded any consideration of whether or not a law is actually good policy.

Personally, I think the best way to deal with drugs is not to punish the hypothetical baking soda buyer, but to actually evaluate our policies in a rational, objective manner, to see what has worked and what hasn’t. This might even require studying what (*gasp*) other countries have done to address their drug problems, and assessing their effectiveness, and the feasibility of implementing some of those ideas at home.

Unfortunately, the war on drugs seems to have become an entity unto itself. It exists primarily to perpetuate its own existence. The role of private, for-profit prisons in incarcerating drug offenders certainly isn’t helping the matter.

However, politicians seem to be engaging in the “sunk cost fallacy.” This is the belief that you can’t stop an unsuccessful project because you’ve already spent a huge amount of time and money on it, and quitting now would mean that it’s all been wasted. But here’s the thing: at some point, we’ll have to acknowledge that our current approach to the drug problem is untenable, and attempting to eradicate recreational drug use is futile. Continuing down this course will simply mean sinking more cost into an effort that is incredibly unlikely to succeed. Basically, if you’re going to fail, it’s best to fail quickly, so that you can move on to something that’s more likely to succeed. This is especially good advice with respect to the war on drugs. There’s no doubt that we need policies in place that address the drug problem, and minimize the negative effects of illegal drugs on society.

This might mean taking a less punitive approach to drug addicts, and instead treating them as people who suffer from an illness, and need medical help, as opposed to treating them as criminals in the same class as murderers. Unfortunately, I don’t expect this to happen anytime soon.

Red-Light Cameras Do Not Violate the Constitution

I came across an article discussing something that most people dread—that little camera above the traffic light that tickets you!  Apparently a dozen cities and nine states have banned traffic cameras for financial and political reasons.  Although these little devices successfully catch more speeders and produce more tickets, which in turn brings in more revenue, they are expensive.  With the economy being the way it is, it is hard for many states to spend money on such devices.  Further, a lot of voters just hate the device.

What is interesting is that opponents of these small cameras have used the United States Constitution to substantiate their point.  Opponents claim that these cameras violate due process rights and invade one’s privacy.

After the mention of the due process violation, the article goes on to state that opponents feel there is a violation of due process because the cameras “don’t capture images of those who actually are behind the wheel.”  I completely disagree with this statement.  I have gotten a ticket in the mail before because I was caught speeding by a camera.  As I opened the envelope and took out my ticket, the next page displayed a large picture of me in the car, driving.  I was actually shocked to see how focused and clear the picture was.  My face was clearly shown and pictured from a very close angle.  This is why I do not believe the claim that the cameras do not capture the image of the driver.  The close angle and clarity at which those cameras take pictures leave no room for any mistakes as to who the driver is.

Even if the picture was not the best, does this camera really infringe upon our due process rights?  A violation of one’s due process rights would be when a person was deprived of life, liberty or property without going through some sort of legal proceeding.  In our situation, when a person receives a citation, they have the opportunity to go to court and contest it.  A citation by a camera is no different than a citation personally given by a cop on the side of the road.  Both allow individuals the opportunity to have their day in court.  Therefore, I see no violation of due process rights even if the picture was not completely clear.

Additionally, these cameras do not invade one’s privacy.  Now, for an invasion to occur, a person first needs to be in a place where they can reasonably expect privacy.  When you are on the road in your car, you are in a public area.  Photos taken of people in public areas are not seen as intruding upon people’s privacy because people are out and about, not isolated in a private area.

Now, opponents may argue that one has a reasonable expectation of privacy in their own car.  Sure, I can see that point.  However, our individual car is on a public road.  Our individual car has windows where people can see into them.  Our individual car is amongst many other cars.  Overall, our individual car does not constitute a small private world of our own.  Rather, we are just beings in our car, which is on a public road amongst other cars.  There is no privacy on the road.  Therefore, the claim that these cameras violate people’s privacy is without merit.

Even though I am not a fan of these cameras because I have been a victim to them, I do think they are a great idea.  They instill fear in people because people can get caught speeding even if a cop car is not nearby.  Whenever people see these cameras, they tend to slow down.  Drivers who drive cautiously are less likely to get into accidents.  Overall, the roads become safer.  The other side to this is to just implement small measures, like making the time for the yellow light longer so people slow down and have ample time control their speed.  This can have an adverse effect.  With longer yellow lights, more people can attempt to rush though the light by increasing their speed.  This is very risk and likely to result in an increase in accidents.  Rather than people using the extra time to slow down and stop, they will likely speed up and try to beat the light, overall endangering the lives of those around them.

With so many other issues in our world, such as our rising unemployment rates or increase in home foreclosures, I say we leave the little camera alone and let it do its job.  We, as citizens, can the focus on more important issues.