Archive for the ‘law & order’ Category

Overview of U.S. Supreme Court’s Gun Law Case

Wednesday, March 3rd, 2010

The current news cycle is replete with coverage of US Supreme Court oral argument in the handgun ban case, McDonald v. Chicago.  The appeal arises from a Seventh Circuit opinion from June 2009.

Gun enthusiasts and opponents will likely find the actual pleadings and legal arguments less than exciting since the debate circles around whether the Privileges and Immunities (P&I) Clause of the U.S. Constitution applies, wholesale or selectively, to the Bill of Rights (P&I is the “comity” clause which says states cannot discriminate against citizens of other states when it comes to civil rights).

The 7th Circuit declined to apply the P&I clause since prior SCOTUS cases dating back to the late 1800′s (!) indicate otherwise, although the reason in those cases has since been “undermined.”

There’s more in the 7th Circuit decision about constitutional debates, stare decisis vs. whether cases can be “bypassed as fossils,” and other academic legal wranglings which likely will not stir the interest that the public gun debate, uh, musters.

For those interested in the pleadings (including over 30 amici briefs from groups as varied as Jews for the Preservation of Firearms and the Safari Club), visit the website.

If you are interested in scouring the 2008 D.C. gun case, District of Columbia v. Heller, for clues (it cites the 1800 cases in a footnote) or you are interested in seeing the procedural history of the Chicago case in the context of other post-Heller cases, Wikipedia has some fairly good coverage.

The prevailing media opinion is that the SCOTUS will apply the Second Amendment to the states and municipalities but may leave in place the right to regulate.  I’m guessing that the Court will save this opinion for the end of their term, since they often like to drop “big” decisions and then hightail it out of D.C. for the summer.

Florida’s New Seatbelt Law Goes Into Effect June 30

Wednesday, July 1st, 2009

Florida passed a law, effective June  30, that police can pull over and cite a driver for not wearing a seatbelt.  Under the just expired old law, police needed another basis for the stop.  Violators are looking at a $30 fine.

Most vocal safety and consumer groups laud the passage of the law which brings Florida in line with the slight majority of states which have similar laws (29 of 50 states).  According to that News-Press article, 4 out of 5 Florida drivers already use the seaatbelt, although its a few percentage points below the national average.  A local personal injury lawyer gave some pretty clear coverage of the law, here.

Downsides to the law?  There is some concern that the motivation is revenue-generation (easier traffic tickets) rather than safety.  Likewise, there is also some civil rights concerns that this is simply a pretext to pull over someone.  Others might suggest this is further degradation of personal liberties.  That said, a Google search on the new law failed to find anyone who articulately raised a thoughtful dissent to the law; instead, opponents tend to rant, like you find in the commenters to this Miami Herald piece.

Holocaust Museum Shooter Blames Obama

Thursday, June 11th, 2009

Almost every news outlet has covered the Holocaust Museum shooting.

For a first hand source, here is the criminal complaint filed in federal court against the alleged Holocaust Museum shooter.  It’s a federal crime since the museum is federal land.  Reportedly, there is both video of the incident and the recovery of a diary or writings where the elderly man blamed both Jewish people and President Obama.

Fort Lauderdale Judge Leaps Bench to Protect Witness

Friday, March 27th, 2009

The Miami Herald, Sun-Sentinel and even have “jumped” on the story of Broward County Judge Ian Richards who lept to save a witness from being attacked by the criminal defendant who had just been told he was going to jail.  Judge Richards has been on the bench for less than two months.

Media attention came from as far away as England while the headlines ranged from “Super Judge” to “Bad Ass Judge“…

Video is here.  We note one of the Miami Herald comments criticizes the “suits” lawyers for running rather than assisting.  Watch the video and see if that’s how you interpret the lawyers — or anyone’s — reactions.  Remember, of course, the judge too is a lawyer…  Your comments welcome below.

“Legal” Drugs on Internet (salvia divinorum) NOT Legal in Florida

Thursday, February 26th, 2009

There has always been an “underground” interest in unusual or obscure hallucenegenic drugs and plants which somehow escaped the watchful eye of the FDA or state legislatures and are thus “legal.” 

We picked up an interesting news story — from all places, PC World Magazine (March 2009) – about the availability of psychedelic drugs, plants, and supplements online.  Of course, if it exists, its on the internet.  The immediate outcry was the widespread availability of these drugs for teenagers with a paypal or credit card account.  What is more surprising is that Florida legislators are already one step ahead — the “new” drug is already banned in Florida.

Apparently the fad is salvia divinorum, apparently some distant cousin of mint (hence the moniker, “magic mint”).  According to the Salvia Divinorum User’s Guide, this “visionary herb” can be smoked or chewed with auditory and behavioral changes lasting anywhere from 15 minutes to an hour.

Many sites exist which sell this plant, including Bouncing Bear Botanicals, Herbal Fire, andShaman’s Garden.  Most of these sites have warnings about consumption levels and when/where to take the drug; that said, the varieties and quantities sold (from about $9 – $25) appear confusing.  Potentcy was also unclear.  One site, NeuroSoup, gave vague and inaccurate information about the drugs legal status.  Thus, these sites are not giving clear technical information nor are they always giving accurate legal information.

 As mentioned above, Florida law seems on top of the issue despite the fact that the plant does not appear to be indigenous to the state.  Florida State 893.03(1)(c)(35) says salvia is a schedule I drug with a high potential for abuse and no accepted medical use (which seems strange since, for salvia, the statute prohibits Salvia divinorum, except for any drug product approved by the United States Food and Drug Administration which contains Salvia divinorum”).

Ybor City Batman Arrested Under Anti-Ku Klux Klan “Mask” Law

Thursday, February 26th, 2009

Who knew Tampa had a crime-fighting version of the Naked Cowboy?  Apparently Walsh Nichols, a Tampa-area college student, began dressing as Batman and frequenting Ybor City… complete with a black motor scooter with the batman emblem.  One night in October, police arrested Nichols under Florida Statute 876.12 for wearing a mask in public (a charge, we note, under a “criminal anarchy” statute).  According to Nichols, he was wearing the suit but was simply eating sushi at the time; however, he had been warned to take off the mask earlier in the evening. 

Tampa Bay Online broke the story – which we agree had to be reported —  yet succumbed to the urge to use every Batman cliche.  We’ll tastefully avoid that here and even regret that initial reference to the Naked Cowboy above.  Of course the legal issues got lost in the pow-zap-bam silliness.  Also lost in the story was the citation that Batman apparently did not have the license endorsement to ride the bike.

Does the story end there?  Not when local Tampa news can get video for a human interest segment which they entitle, “Batman Seeks Justice.”  

Indeed Batman, er, Nichols hired attorney Kevin Hayslett of Carlson & Meissner who filed a Motion to Dismiss and Motion to Suppress, pointing out that the 1951 no-mask-in-public law has a 1981 companion, Florida Statute 876.155, which requires that the masked-person have certain criminal “intent” before it is a crime.  The Motion cites a 1980 Florida Supreme Court case which held that the old anti-Ku Klux Klan law could be overbroad; that case apparently inspired the 1981 statute.  

As a seedling which could give rise to an appeal to the U.S. Supreme Court, the Motion also cites the Fourth Amendment prohibition against unlawful search and seizure (a federal law involving a U.S. Constitutional right, hence the potential road to the High Court).  The defense claims the police had no basis for the arrest since the sushi-eating Batman exhibited no criminal intent. 

Nichols primed the news with some campy comments, such as the fact that he and his friend do not go to Ybor anymore since they can’t wear their masks.  His friend who dresses like Robin, of course.  Both dutifully have their own Myspace pages, so you can see Batman and Ybor Robin.  A (soon-to-be well circulated) Myspace page has an arrest photo with Batman in full attire.

U.S. Supreme Court: Police Can Mistakenly Arrest Someone and Still Convict on Evidence Obtained

Thursday, February 26th, 2009

The United States Supreme Court affirmed an Eleventh Circuit Court opinion today finding that police negligence which lead to the arrest of a person without probable cause or a valid warrant was not grounds to exclude the discovered gun and drugs.  In short, a person with a prior record who was mistakenly arrested will face felony charges based upon what he was carrying when wrongly arrested.

The Fourth Amendment to the Constitution protects people from unreasonable searches and seizures.  The Constitution does not provide any protection against the use of the improper search/seizure.  A judicially-created “exclusionary” rule, however, does exist — favoring both criminals and tv crime show writers.

In this case, an astute investigator learned that a known criminal was coming to the police station and asked the clerk to check if there were any warrants out for the known criminal’s arrest.  None were found in the county but the clerked called the neighboring county, which reported there was a felony warrant.  The defendant was arrested on that information.  Within minutes, it was established that the other county had a clerical error and there was no warrant.  But the police had already found a gun (our known criminal was a felon) and meth.  Criminal defense counsel sought to suppress/exclude the evidence since it was improperly obtained.

The High Court played a bit of a cat and mouse game as to whether there was a 4th Amendment violation; nonetheless, since the parties had agreed there was a violation, the question was whether the exclusionary rule applied.  If you watch a lot of tv, you would think it was automatically excluded.

Yanking us back to reality, Chief Justice Roberts wrote in  Bennie Dean Herring v. United States that the exclusionary rule “has been our last resort, not our first impulse.”  It is not an individual right and, instead, only applies when it results in some appreciable detterence of constitutional violations by the police.  The Court used the “objectively reasonable” standard (a good faith/knew or should have known approach) in evaluating the conduct here — which, admittedly, does seem free of any intentional misdoing by the police.

The dissent complained that there was not a sufficient rule in place to determine where/when exclusion would apply.

I’m not a criminal lawyer but the facts of this particular case seem extreme in terms of showing this was “simple negligence” in otherwise good faith law enforcement.  That said, this was a 5-4 decision.  As such, while the wording of the Opinion is quite strong, one might guess that muddier facts in future cases may yield the opposite outcome.

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