Category: Criminal Law

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UCLA Law Review Vol. 63, Issue 4

Volume 63, Issue 4 (May 2016)
Articles

Accidents of Federalism: Ratemaking and Policy Innovation in Public Utility Law William Boyd & Ann E. Carlson 810
Protecting Disfavored Minorities: Toward Institutional Realism Joy Milligan 894
Insider Trading and Market Structure Yesha Yadav 968

 

Comments

Defending Criminal(ized) “Aliens” After Padilla: Towards a More Holistic Public Immigration Defense in the Era of Crimmigration Andrés Dae Keun Kwon 1035
Public-Private Divide in Parker State-Action Immunity Sina Safvati 1110
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UCLA Law Review Vol. 63, Issue 3

Volume 63, Issue 3 (March 2016)
Articles

The System of Equitable Remedies Samuel L. Bray 530
Challenging the “Criminal Alien” Paradigm Angélica Cházaro 594
Plenary Power, Political Questions, and Sovereignty in Indian Affairs Michalyn Steele 666

 

Comments

Calibrating the Eighth Amendment: Graham, Miller, and the Right to Mental Healthcare in Juvenile Prison Sara McDermott 712
Mute and Moot: How Class Action Mootness Procedure Silences Inmates Michele C. Nielsen 760
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UCLA Law Review Vol. 63, Issue 1

Volume 63, Issue 1 (January 2016)
Articles

Navigating Paroline‘s Wake Isra Bhatty 2
Regional Federal Administration Dave Owen 58
Exhausting Patents Wentong Zheng 122

 

Comments

Post-Deportation Remedy and Windsor‘s Promise Kate Shoemaker 168
Forget Congress: Reforming Campaign Finance Through Mutually Assured Destruction Nick Warshaw 208
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Journal of Legal Ed Symposium: Ferguson & Its Impact on Legal Education

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The latest issue of the Journal of Legal Education (vol. 65, #2) is out. And here is the table of contents. (Go to this link for PDF files of each article). Beyond the Ferguson symposium, there is an essay on modern criminal procedure along with three book reviews.

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Reverse Broken Windows by  Christopher R. Green

At the Lectern

A Reader’s Guide to Pre-Modern Procedure by David L. Noll

Book Reviews

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AALS, Professor Dan Markel, and the Scholarly Tradition

This week is the annual law professor conference in New York City. The AALS conference is always a wonderful ritual of learning, discussion, and friendship. Indeed, it was the one time of the year that guaranteed a lunch, dinner, or chat with brilliant criminal law theorist and incredible friend Dan Markel. When Dan was murdered in the summer of 2014, I wrote this post for Forbes about his life’s lessons. For colleagues who are going to AALS this year, CoOp will be having a Markelfest in his honor tomorrow night. I wish that I could be there to celebrate Dan and his passion for scholarship and the world of ideas. We miss you, Dan.

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MLAT – Not a Muscle Group Nonetheless Potentially Powerful

MLAT. I encountered this somewhat obscure thing (Mutual Legal Assistance Treaty) when I was in practice and needed to serve someone in Europe. I recall it was a cumbersome process and thinking that I was happy we did not seem to have to use it often (in fact the one time). Today, however, as my colleagues Peter Swire and Justin Hemmings argue in their paper, Stakeholders in Reform of the Global System for Mutual Legal Assistance, the MLAT process is quite important.

In simplest terms, if a criminal investigation in say France needs an email and it is stored in the U.S.A., the French authorities ask the U.S. ones for aid. If the U.S. agency that processes the request agrees there is a legal basis for the request, it and other groups seek a court order. If that is granted, the order would be presented to the company. Once records are obtained, there is further review to ensure “compliance U.S. law.” Then the records would go to France. As Swire and Hemmings note, the process averages 10 months. For a civil case that is long, but for criminal cases that is not workable. And as the authors put it, “the once-unusual need for an MLAT request becomes routine for records that are stored in the cloud and are encrypted in transit.”

Believe it or not, this issue touches on major Internet governance issues. The slowness and the new needs are fueling calls for having the ITU govern the Internet and access to evidence issues (a model according to the paper favored by Russia and others). Simpler but important ideas such as increased calls for data localization also flow from the difficulties the paper identifies. As the paper details, the players–non-U.S. governments, the U.S. government, tech companies, and civil society groups–each have goals and perspectives on the issue.

So for those interested in Internet governance, privacy, law enforcement, and multi-stakeholder processes, the MLAT process and this paper on it offer a great high-level view of the many factors at play in those issues for both a specific topic and larger, related ones as well.

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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.

Read More

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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.

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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

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UCLA Law Review Vol. 62, Issue 3

Volume 62, Issue 3 (March 2015)
Articles

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

 

Comments

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

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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.”