SJC Marijuana Case

The Supreme Judicial Court recently ruled that the odor of burnt marijuana in a parked car, without more, does not justify the police ordering the occupants from the car.

It's important to recognize the limits of this decision. First, it does not affect the laws relating to operating under the influence of drugs. It remains a crime to drive under the influence of marijuana, and police may search a car if they have probable cause to believe that this is taking place. Second, it does not address the issue of the odor of fresh marijuana, or how this situation plays out if car is pulled over.

What does this mean? Smoking marijuana in a moving vehicle remains a very bad idea! If anything, since decriminalization of marijuana, police have made more arrests for operating under the influence of drugs. Law enforcement agencies are churning out "drug recognition experts," officers they claim can provide expert testimony on whether someone is under the influence of a drug, at a record pace. While the "science" behind their methods may be questionable at best, most courts have allowed this testimony.

It is a victory for privacy that one cannot be bothered for smoking marijuana in a parked car while doing nothing else wrong. However, marijuana prohibition is alive and well, and it can ruin lives and reputations.

How Texting Behind the Wheel Risks Criminal Liability

Not afraid of texting behind the wheel? Read this and you will be!

There has been much in the media recently about a texting ban that recently went into effect in Massachusetts.

http://www.boston.com/news/local/massachusetts/articles/2010/06/23/deal_set_for_ban_of_texting_at_wheel/

While the punishment as of now is only a fine, I am writing on a much more serious side of this issue: What happens if you are messing with your phone, cause an accident, and someone is killed?

Now typically in Massachusetts, drivers in fatal accidents are only charged with motor vehicle homicide. This is a surprisingly minor charge. However, in serious cases, where "wanton or reckless" behavior is involved, a driver can be charged with involuntary manslaughter--an extremely serious charge.

My first exposure to this issue came when I was working for a defender in law school. We were working on a case of kid who was drunk, went up the wrong way of a highway ramp, and killed a 16 year-old girl. Because the court found that his behavior may have been "reckless" and not merely "negligent," he ended up pleading to manslaughter and ended up with 7 years in jail.

So the question is whether texting behind the wheel can be considered manslaughter. This legal term is largely defined by the Worcester Firefighter's case, Commonwealth v. Levesque:

"Involuntary manslaughter is 'an unlawful homicide, unintentionally caused ... by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.'" 436 Mass. 443, 438 (2002)

http://scholar.google.com/scholar_case?case=2336413017799955717&q=Levesque&hl=en&as_sdt=40000002

At first blush, texting may not cover this definition. One could argue that the "harmful consequences," while significant, are not actually probable. That is to say that there is not a 50% +1 chance that texting will lead to a fatal accident. However, the same can be said for drinking and driving. Most people would agree that there is less than a 50-50 chance that a drunk driver will kill someone. Yet courts have upheld the provision of Melanie's Law that establishes the charge of manslaughter by drunk driving.

To understand how this issue could impact you, it is important to understand that juries can take into account their common sense and experience when it comes to determining whether conduct is "wanton or reckless." This means that societal standards come into play. So while 5 years ago, texting and driving may not be considered "wanton or reckless," things may have changed in recent months. There has been so much media, government, and law enforcement attention to this issue, that it is harder and harder to claim ignorance of the "probable harmful consequences." In other words, as society becomes more aware, the criminally accused are held to a higher standard. If one of my loved ones were killed by a texting driver, I would damn sure want the person charged with manslaughter. Likewise, if I were sitting on a jury in a similar case involving a stranger, I would agree that texting behind the wheel--with all the information out there right now--amounts to recklessness.

If your own safety is not enough to deter you from texting behind the wheel, the potential criminal consequences provide another angle. That is to say nothing of the civil liability one might face in what would be a slam-dunk civil suit for gross negligence. But that's a topic for another time. The bottom line is that "accident" is a misnomer for a death caused by texting behind the wheel. Labeling such events as "homicides" far more accurately reflects the current state of the law.

New blog in which I actually defend the Seattle cop shown punching suspect! http://ping.fm/ZkJXv

Seattle Police Brutality (In defense of the cop)

Two recent videos of the Seattle cops subduing suspects provide the perfect contrast between unreasonable and reasonable force. In the latest one involving two teenage women, the cop deserves to be defended.

But before getting into the latest stir, let's take a look at a video from a few months ago that shows an officer kicking a suspect who was already on the ground in handcuffs. He hurls a racial epithet confirming his ill intent.

http://www.youtube.com/watch?v=1-aCVrG-M_0

Clearly in this case there was not reason to engage in this type of violence. The suspect, even if he was mouthing off, no longer posed a threat to the officer or his service weapon.

The more recent video, however, wherein a white cop punches a 17 year-old African American girl in the face, is an example of an officer using only the minimal force necessary to subdue a suspect.

http://www.nydailynews.com/news/national/2010/06/16/2010-06-16_seattle_cop_punches_woman_in_face_over_routine_jaywalking_stop.html

So many of you are probably asking whether I have lost my marbles. After all, this blog is no great friend to law enforcement. The truth is that in the spirit of fairness, the cop in this video actually deserves praise for his handling of the matter.

From the very outset you can see and hear that the woman he is ticketing is using abusive language and threatening gestures that would justify arrest. Then in the midst of the lawful arrest of the woman in black, the other woman comes and initiates hostile physical contact with the officer.

So at this point in the video there are two hostile women who are physically challenging the officer while hurling angry abusive language. The officer reacts to the aggression of the second woman by punching her in the face with his fist. He did not use a baton, he did not draw his weapon, and he did not continue punching her after the first blow. This is an example of using the minimal force necessary to subdue a suspect. Anything less would have only emboldened the suspect who had already shown a willingness to fight.

Once the intervening suspect (who continues to resist) is subdued, the officer turns back to the woman in black. He does not punch, kick or abuse her in any way. He is simply trying to place the handcuffs on her. I can see at least five possible charges she could be facing at this point: disorderly conduct, assault, assault and battery on a police officer, disobeying a lawful police command and resisting arrest.

At a certain point the officer pins her against the driver seat door and we see the common sense good judgment that we desire and expect from police officers: He eases his grip and repeatedly pleads with her to stop resisting. A hostile crowd is converging, which is only raising the threat to his safety. Yet amidst this, rather than drawing his pistol, baton, or pepper spray, he actually starts pleading with the suspect to lower tensions. (She continues flailing her arms.)

I am all for civil liberties, tough restraints on use of force by police, and the rule of law covering everyone, including law enforcement. In this blog I have repeatedly complained about the courts showing way too much deference to police officers in their street-stop investigations. But these two women from the outset are clearly the aggressors. After initiating the situation by jaywalking, THEY are the ones who try to solve the problem through the assertion of physical dominance. THEY are the ones who demonstrate that they prefer solving problems through violence rather than the courts.

Even if the women were correct in a belief that the officer was making a false arrest, they had no right to get physical with him. They should have recognized that there were plenty of witnesses, and taken their complaints to court.

The person behind the camera keeps saying "Are you serious? Are you serious?" in response to the punch in the face. Obviously police work is deadly serious. The punch was a very reasonable reaction to a two-on-one physical threat. At every turn the officer had to consider the possibility that someone in the hostile crowd would attempt to take his pistol. So yes, Mr. Cameraman, the officer is serious--just as society expects him to be. Also serious are the are the criminal charges that both these women should face. Any lawyer who takes an honest look at the video should say the same.

Say It Aint So, Mr. President. Say it Aint So.

I am disappointed and disgusted that our former constitutional law professor President would seek overturn 44 years of jurisprudence, Miranda v. Arizona 384 U.S. 436 (1966), after a single unsuccessful bomb attempt. While the administration will claim that they are letting Miranda stand, and that they are only altering subsequent cases involving the public safety exception, make no mistake: This move is a dangerous chipping-away at our Fifth, Sixth, and Fourteenth Amendment rights that could have come right out of David Addington's birthday wish list.

It's obvious what's going on. President Obama is thinking to himself, "I don't have the luxury of the ivory tower now. If we are attacked by terrorists, everyone will hold me responsible." Under this logic, pushing for this law could act as a little insurance policy on his anti-terror credentials, should we suffer attack. I understand why he is tempted to go this route, but I am shocked that he would so brazenly sacrifice such an important legal principal in the heated aftermath of a boneheaded unsuccessful terrorism attempt. I'm terrified to think what this administration will try to do following an actual attack. When I heard A.G. Holder announce that they are seeking to rewrite Miranda on Meet the Press this morning, I nearly got sick and vomited. I did literally start crying.

Mr. Obama:

This move is not only cynical and politically motivated, but it is downright cowardly. You are taking steps to weaken a linchpin of American jurisprudence because you are scared of becoming one-term President in the aftermath of an attack. Don't think that the American won't figure out what you are doing. This is not only amoral but it is politically stupid and transparent.

Many of us who helped elect you have been disheartened in recent decades by the Supreme Court's ongoing erosion of civil liberties. We looked to the political process--in the person of you--to help reverse this trend. We civil libertarians knew that Justice Sotomayor was no enthusiastic protector of the Bill of Rights, but we supported her nomination anyway as a measure of good faith in your judgment. As far as I'm concerned, with this latest move, that reservoir of good faith has run out. The last thing we thought was even on the table was the altercation of Miranda, given your scholarly background.

Mr. President, before you took an oath to defend the Constitution, you took an oath to uphold it. I know you did not practice much law, but speaking as someone who actually works in a courtroom, I promise you that this proposal will have far-reaching consequences, even for those who are accused of crimes having nothing to do with terrorism. I have simply seen too many people intimidated into confession--within the bounds of current law--to sit by and watch Miranda further weakened by one ounce.

As a supporter, fellow lawyer, and person of conscience, I beg you to reconsider. Say it aint so, Mr. President. Say it aint so.

BREAKING NEWS: Obama administration seeking to alter Miranda v. AZ by legislation. Haven't read statute yet, but WTF Const. Law Prof. Obama?

In the next few wks I'll profile Sup. Ct. picks outside the "big three." Harold Koh is brilliant, pro human rights, and from Boston. http://ping.fm/i9NKQ