Category: Criminal Law


Affirmative Consent and Burden Shifting

Tamara Rice Lave has a thoughtful post at Prawfsblawg about affirmative consent standards in sexual assault cases. She contends that application of such standards amount to a burden shift to the defendant. From her post:

The case I am referring to is Mock v University of Tennessee at Chattanooga, and it was decided on August 4. Corey Mock was alleged to have had non-consensual sex with a female student. At the hearing, the Administrative Law Judge found that UTC had not carried its burden of proof and dismissed the charges. The complainant then spoke with the Chancellor, who petitioned for reconsideration. Although the ALJ did not change any findings of fact, she changed her overall conclusion. Mock appealed to the Chancellor who upheld the order and expelled Mock. Mock then appealed to the Chancery Court.

In her opinion, Chancellor Carol L. McCoy wrote, “Under the ALJ’s Revised Initial Order, a person accused of violating SOC7 must overcome the presumption inherent in the charge that the violation has been established. Mere denial of the accusation is insufficient. The accused must prove the converse of what is taken as true and credible, i.e., the complainant’s statement that no consent was given. He must come forward with poof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to any activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.”

After finding that the UTC Chancellor “improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation that he forcibly assaulted Ms. Morris,” Chancellor McCoy reinstated the original order of the ALJ and reversed the decision of the UTC Chancellor.

I applaud Chancellor McCoy’s decision and hope that other judges will also see the problem with affirmative consent.

Although have my (policy) doubts about affirmative consent standards, I’m not persuaded by the argument that affirmative consent standards switch the burden of proof to the defendant.

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FAN 58 (First Amendment News) Citizen Recordings of Police in Public Places — First Amendment Protection?

We’ve had incidents where people have videotaped us and it requires unbelievable restraint. Typically during times where things can be a little chaotic. We really have to convey we’re living in a different environment now where police action is scrutinized and a lot of video is surfacing. We simply tell our officers to assume they’re being recorded out in public at all times. — South Gate Police Capt. Darren Arakawa (L.A. Times, April 21, 2015)

We live in technological times, in times when the means of communications are restructuring the relationship between citizen and State. Part of that new technology is the cell phone and its ability to capture reality with video accuracy and then transmit its recorded images to the world within seconds. In the process, citizens have become journalists of sorts as they convey the news of the moment to their fellow citizens and others. From Ferguson to Baltimore, eyes are opening as never before as the conduct of police is cast in bold relief. What was once routinely concealed is now routinely revealed. Predictably, there have been attempts to squelch (by force and by law) these new checks on police power — transparency breeds contempt. By the same token, the new technology can also turn its lens on acts of lawlessness, as the events in Baltimore are revealing. And as you will see below in the item concerning a recent incident at the Albany Airport, sometimes there are videos of police actually defending people’s claims of their First Amendment rights.

UnknownIt is a fact: Visual communication is revolutionizing our world, both in cultural and in constitutional ways. The public forum is becoming public in ways heretofore unimagined. Every street corner, every ally, and every open space is now not only a place wherein to be, but also a place wherein to be watched. True, it may sometimes smack of an Orwellian world, but it is likewise a world in which the acts of Big Brother can be scrutinized like never before. Hence, just as technology can enhance governmental power, so too can it restrain it.

How does the First Amendment figure into all of this? That is the question. Before turning to it, however, it is well to consider what happened recently to a citizen in Southern California as she attempted to record the events in her own neighborhood.

* * * *

Recent scene in South Gate, CA

Ms. Paez & police

A little over a week ago something disturbing happened in South Gate, California — and true to the times, it was captured on cell-phone video. It happened in a neighborhood where a “tactical unit” of police from different departments sough to arrest some members of an alleged bike gang, purportedly on outstanding warrants. As all of this was taking place in open daylight — replete with heavily armed police and what have you — Beatriz Paez was recording portions of it on her cell phone. The woman appeared to be a few houses or more away from where all of this was occurring and did not otherwise seem to be interfering with the police in any way.

Meanwhile, an officer directed an armed U.S. Marshall towards the woman with the cell phone. The marshall approached Ms. Paez, who continued to record the events. Suddenly, he lunged towards her, grabbed her cell phone, and then threw it to the ground and kicked it.

You’re making me feel unsafe. I have a right to be here. — Beatriz Paez

Fate being what it is, the scene was captured on video, apparently by another citizen with a cell phone camera.

See also, March 7, 2015 video-recorded incident in Santa Barbara, California, and March 24, 2015 video-recorded incident in Dillon, Montana.

Ms. Beatriz Paez

Ms. Beatriz Paez

What to make of this? “The officer’s conduct is a blatant and deliberate violation of the Constitution and his duties as an officer to abide by the law,” is what Hector Villagra, executive director of the American Civil Liberties Union of Southern California, told a Los Angeles Times reporter.

A “blatant . . . violation of the Constitution”? While I agree that blanket prohibitions and the like on citizen recordings of police actions in public violate the free speech provisions of the federal and many state constitutions, among other laws, I nonetheless thought I would look into the matter. Here is what I found:

Summary of Federal Case Law

  • 5 federal cases out of four different circuits have sustained a First Amendment claim to record police activities occurring in public
  • 3 federal cases out of two different circuits have denied a First Amendment claim to record police activities occurring in public, though two of those cases involved unpublished opinions.
  • 8 federal district courts out of four different federal circuits have denied a First Amendment claim to record police activities occurring in public.
  • (see cases listed below)

When police officers seize materials in order to suppress the distribution of information critical of their actions, “the seizure clearly contravene[s] the most elemental tenets of First Amendment law.” Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003) (source: here)

Limitations on Citizens’ Videoing Police: Legitimate & Otherwise   

(credit: City Watch)

(credit: City Watch)

In all of this certain limitations might come into play, limitations that could confine the reach of an right, constitutional, statutory, or otherwise. Such limitations would include the following:

  1. Time, place and manner restrictions (see e.g., Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010), but “peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties” is conduct “not reasonably subject to limitation.” Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011);
  2. Any behavior that might reasonably be viewed as interfering with the lawful activity of police officials;
  3. And then there are certain consent laws requiring individuals to obtain consent before recording anyone, even police engaged in public activities (such laws as applied to police officials raise First Amendment issues as evidenced by the 7th Circuit Alvarez ruling listed below). Moreover, state wiretap statutes are often used when citizens secretly record;
  4. Application of the fighting words doctrine (but see: Lewis v. City of New Orleans415 U.S. 130, 135 (1974) (Powell, J. concurring): “a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.'”), and R.A.V. v. City of St. Paul, 505 U.S. 377, 428 (1992) (Stevens, J., concurring) (“we have consistently construed the ‘fighting words’ exception … narrowly”).
  5. Disorderly conduct (but seeGregory v. City of Chicago, 394 U.S. 111, 120 (1969) (“To let a policeman’s command become equivalent to a criminal statute comes dangerously near making our government one of men rather than of laws.”);
  6. Securing the area rationale;
  7. Suspicious behavior rationale (but see: A person “whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets,” and may not be arrested “‘at the whim of any police officer.’” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1965)).

Recording Case Now Being Litigated in Maryland

Note: Many of the above issues are currently being litigated in Garcia v. Montgomery County (Case 8:12-cv-03592-TDC, U.S. Dist. Ct., MD), and Statement of Interest of Department of Justice supporting First Amendment claims.  See here re the complaint filed by Robert Corn-Revere.

Unknown→ See also May 14, 2012 Statement by Department of Justice re Sharp v. Baltimore City Police Department, et. al. (“[Police] policies should affirmatively set forth the contours of individuals’ First Amendment right to observe and record police officers engaged in the public discharge of their duties. Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”).

State law ought to make clear that it is illegal for an officer to confiscate a camera or phone — and certainly to destroy it — or to arrest people simply for recording police action in public places.Editorial, L.A. Times,  April 23, 2015

Statutory LawIt would, of course, be short-sighted to limit one’s focus to constitutional limitations. That is, the legality of police conduct in this area could also depend on:

  1. The precise scope of statutory authorization of police conduct in this area, and
  2.  The character and extent of statutory limitations on police conduct in this area

See here re proposed California legislation creating a public right to record.

Officer Protects Assertion of 1-A Rights  

Obviously this is your constituional right.” — Deputy Sheriff Stan Lenic

When an airport authority at Albany International Airport tried repeatedly to prevent a young woman from InfoWars from distributing flyers informing passengers of their right to opt out of body scanning screening, a local sheriff’s officer came to their  defense. It is all captured on video by documentary filmmaker Jason Bermas — it’s a must see!

Compare International Society for Krishna Consciousness v. Lee (1992) (no 1-A right to solicit for money in public airports)

Police Policies & Training Programs 

  1. Boston Police Department training video re what citizens are allowed to record under Massachusetts’ wiretap statute.
  2. Luke Broadwater, “New city police policy says public has right to film officers,” Baltimore Sun, March 12, 2014 (Baltimore Police Policy here)
  3. Montgomery County, MD, Police Policy, “Citizen Videotaping Interactions

I am calling on incoming Atty. Gen. Loretta Lynch to order a Justice Department investigation of the incident and to make sure that all law enforcement officers are trained to respect the right of citizens to videotape them. — Congresswoman Janice Hahn (April 26, 2015)

Lawsuits Against Municipalities: Damages and/or Attorneys’ Fees  

  • Danielle Keeton-Olsen, “Recent settlement in suit over arrest for recording police follows growing trend,” Reporters Committee for Freedom of the Press, June 16, 2014: “The town of Weare, New Hampshire, settled a lawsuit last week for $57,500 with a woman arrested for videotaping a police officer, adding to the growing list of settlements stemming from police officers’ restriction of video and audio recordings in public places. In Gericke v. Begin, the U.S. Court of Appeals in Boston (1st Cir.) upheld a lower court opinion that Carla Gericke was within her First Amendment rights to record a police officer at a traffic stop.Following that opinion, instead of choosing to continue with the trial, Weare settled the case with Gericke.”
  • “Other courts have reached similar conclusions. In a U.S. district court case in Maryland, Sharp v. Baltimore City Police Department, police arrested a man taking video, deleted his recordings, and subpoenaed his medical and cell phone records.The court affirmed the plaintiff had a right to make the recording. The court quashed the subpoena and awarded him $25,000 in damages in addition to covering his approximately $220,000 in legal fees.”
  • “Most recently, in ACLU v. Alvarez, the Seventh Circuit addressed the constitutionality of Illinois’ eavesdropping offense law after the ACLU of Illinois filed a pre-enforcement action against Illinois’ attorney general so its videographers would not be arrested for audio recording police officers in public places.Following that decision, the district court awarded $645,000 to the ACLU, covering attorney fees.”
  • See Datz v. Suffolk County Police (story here: “On June 8, 2014, the NYCLU announced a settlement approved by Suffolk County Legislature. The settlement required the County Police Department (SCPD) to pay Datz $200,000 and create a Police-Media Relations Committee to address problems between the press and the police department.”) (see settlement here)

Appellate Cases Sustaining a First Amendment Claim Read More


UCLA Law Review Vol. 62, Issue 3

Volume 62, Issue 3 (March 2015)

Fixing Public Sector Finances: The Accounting and Reporting Lever James Naughton & Holger Spamann 572
Less Enforcement, More Compliance: Rethinking Unauthorized Migration Emily Ryo 622
Decriminalization, Police Authority, and Routine Traffic Stops Jordan Blair Woods 672



Not Whether Machines Think, But Whether Men Do Jane Stack 760
Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification Hannah Weinstein 794

Prosecuting Prosecutors for Perjury? 9th Circuit panel comes down hard on lying prosecutors issue

Screen Shot 2015-01-28 at 10.09.37 AM

Updated: 1-28-15: 2:10 PM, ET

Writing in the New York Observer, Sidney Powell began her column this way: “What will it take to produce honest and ethical conduct from our state and federal prosecutors? The Ninth Circuit has a suggestion. Perhaps a perjury prosecution will do it. In fact, that is exactly what should happen when prosecutors affirmatively lie. This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue, which holds that prosecutors cannot put on perjured testimony, much less lie themselves. Unfortunately, as I’ve documented elsewhere, it happens far too often, when it should never happen at all.” I urge readers to take a look at Sidney Powell’s column, which is both informative and powerful.

Even more so is the video of the exchange between Judges Alex Kozinski, Kim McLane Wardlaw, William Fletcher and  California Supervising Deputy Attorney General Kevin Vienna.

Early on in his opening remarks (16 minutes into video), Mr, Vienna stated: “A number of things happened that should have not happened, and we’re not here to defend them.” But he defend them he did, albeit guardedly. It was downhill from there. Things got even worse when Judge Kozinski and his colleagues weighed on the matter of prosecutorial perjury.

The clip is too extraordinary to quote — you really must see it. So, click on the video and watch how Mr. Vienna attempted to make the case for the State as the Judges dug deeper into the issue of proctorial perjury.

Over at Hercules and the Umpire, Judge Richard G. Kopf adds a few comments.

UPDATE: This from John Roemer writing in the Daily Journal (Jan. 27, 2015):

“Misconduct by Riverside County prosecutors has forced the reversal of a 1998 murder­for­hire conviction in a case that raised the ire of Circuit Judge Alex Kozinski and led to his demand that Attorney General Kamala D. Harris fix the situation.”

“Riverside County’s new district attorney, Mike Hestrin, said Monday in a media statement, ‘While we do not concede the prosecutorial misconduct was intentional or malicious … I am requesting that Mr. Baca’s murder case be returned to Riverside County to allow a retrial unmarred by even the appearance of impropriety or unfairness.'”

“. . . [Judge] Kozinski sought to pressure the state officials to resolve the case without having a federal court decide Baca’s appeal. ‘It will look terrible when we write it up and name names,’ he predicted.”


Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.


Jeannie Suk on Teaching Rape

In this week’s New Yorker, Jeannie Suk laments what she perceives as the increasing difficulty in teaching rape to today’s law students. I was a bit surprised in reading Suk’s article because her descriptive account of today’s law school classroom environment regarding rape is at completely at odds with my own. A few years ago, I attended SEALS where there was a panel discussing teaching rape in the classroom. I asked the panelists whether the reluctance to teach rape, most famously described in James Tomkovicz‘s 1992 Yale Law Journal article on the subject, was simply outdated. Almost everyone else was teaching rape and students were reacting positively to that choice. And that is why Suk’s article struck me as particularly strange – teaching rape has become the majority rule in 1L Criminal Law.

Of course, the reluctance to teach rape articulated by Tomkovicz was somewhat different than the one now described by Suk. Tomkovicz was primarily focused on classroom controversy, potential professional consequences, and students being marginalized because of classroom discussions. In contrast, Suk focuses on trauma of rape victims in the classroom. She is concerned that students seem to want trigger warnings or no discussion of rape in the classroom.

I don’t want to entirely discount Suk’s assessment of modern criminal law teaching, but my experience has been radically different.  Since I started teaching in the Fall of 2007, I have taught twelve sections of Criminal Law and seven semesters of a Sex Crimes elective I have designed. I have probably taught 750 1L students in Criminal Law  and about 150 in Sex Crimes. In Criminal Law, I have never had a single complaint from a rape victim or person otherwise affected by sexual violence. In fact, I have received numerous anonymous reviews, emails, and comments in person from students thanking me for teaching about rape. This has been true at Kansas, in Chicago at John Marshall, and during my semester visiting at Iowa. After class discussions, students have often come to my office to share their personal experiences with sexual violence. Sometimes, they tell me stories that have just happened in the past couple of months. I am certain that if I didn’t teach rape in the classroom, those students wouldn’t feel comfortable coming to talk to me in private. A major theme of my classroom discussions of rape is that the dysfunction of America’s sex crime laws is due our failure to discuss the subject. And while I do my best to create a healthy learning environment, we do not shy away from the tough legal and social dimensions of sexual violence.

In my experience, it has been a net positive learning and personal experience for victims I have spoken with to have rape as part of the 1L Criminal Law curriculum. It has been beneficial much like when I had a student in a class who had experienced unfathomable trauma with a family murder. A few years previous to being in my 1L Criminal Law class, this student’s mother had killed his father. She was found guilty and sentenced to lengthy period of incarceration. He came and talked to me about it after we started our section on homicide, became my best RA, and I still keep in touch with him. I can’t speak with certainty as to Harvard students, but my experience has been that 1L Criminal Law has helped traumatized students deal with the violence and difficulty in their past. And, in doing so, many have found greater purpose and direction in their law studies. Some have harnessed that purpose to dedicate their legal careers to addressing the social ill that had previously plagued their lives. If Suk’s concern is with the victims of sexual violence, I hope she doesn’t give up teaching about it.

Of course, my experience might be atypical or I might be overstating the positives that have come from my classes. So, I welcome comments from other professors and will forward this post to some KU students to see if they want to chime in anonymously.


Worst Modern Court Opinion in Criminal Rape Case?

For the coming semester, I have decided to try teaching without a casebook. Instead, I have been putting together materials with an emphasis on more recent cases embodying prominent issues in substantive criminal law. Regarding rape and sexual assault, in particular, I feel that the cases used in the major casebooks are too dated and less relevant to students today. So, in my search for new cases, I stumbled across an appellate court opinion out of Louisiana in 2005, State v. Wilbert Touchet, Jr., 897 So. 2d 900 (La. Ct. App. 2005). I think this is has to be the worst reasoned opinion regarding rape I have seen by an American court in the last thirty years. The basic facts, as described by the appellate court were: “The State of Louisiana alleges that the Defendant struck the victim with his fists, forced her to remove her clothing at knife point, and had sexual intercourse with the victim against her will.” Yet, despite a guilty verdict at a bench trial, the appellate court reversed the aggravated rape conviction and found insufficient evidence for the lesser included offense of forcible rape (The court’s reasoning after the jump).

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What is a Prosecutor’s Duty?

The Brown and Garner cases lead me to ask this question:  Suppose I am a prosecutor and I conclude that a police officer is guilty of a crime, but I also conclude that no jury will convict given the evidence.  What should I do?  The most straightforward thought is that I should not bring a charge.  It would be irresponsible to charge someone when you feel sure that you cannot win a conviction (I’m equally sure that prosecutors do this all the time and hope to get a plea, but leave that aside).

On the other hand, can public opinion on these issues be changed without some trials of police officers?  In other words, could a prosecutor say something in private like, “I know that a jury probably will not convict, but we need to bring a charge to express the view of a minority of the community that this sort of conduct is intolerable.”  Is that an appropriate action?  Would that just be grandstanding?


The Garner Case

I’m not a criminal law expert, of course, but I thought I would start what amounts to an open thread on the Garner case.  Here is my question:  Can the decision by the grand jury not to indict be defended?  If so, how?

I’ll add one qualification.  A perfectly fine answer to my question is that the grand jury had before it exculpatory evidence that we don’t know anything about.  Since there is no way to disprove that assertion (given that these grand jury proceedings are still secret), let’s assume for the sake of argument that what is in the public record is all of the relevant evidence.  Discuss.


Police Killing Unarmed Minority Men on Video with Impunity is not New

The grand jury’s decision to not indict a police officer in the death of Eric Garner despite video of the incident, in the wake of the failure to indict Darren Wilson, further illustrates the apparent immunity of police officers in cases where officers have killed ethnic minority Americans. The Garner case is a reminder that the interpretation of (crime) videos is filtered through pre-existing cultural lenses, but it also speaks to a more fundamental problem. The case provides more evidence that video has not been a panacea in addressing lethal violence by police officers, a fact which is relevant in discussing the likely efficacy of cop cams. I have posted other similar disturbing videos of lethal force being used against unarmed ethnic minority men (after the jump) wherein there has been no accountability in the criminal justice system for the officers involved.

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