Posted by: Patrick Allen Foster | November 10, 2013

Sunday Criminal Law Links

1. In Knox County, Tennessee, errors by the Office of the Criminal Court Clerk have led to dozens of wrongful arrests and to prisoners being kept in custody “for days, sometimes weeks, past their scheduled release dates.” The problems appear to go back at least to July 2012.

2. In order to calculate a sentencing range under the guidelines, a federal judge in Kansas must determine the market value of illegally hunted deer.

3. If you have not yet heard the story of David Eckert and the law enforcement authorities of Deming, New Mexico, start with this post at Techdirt, and then read Orin Kerr, Ken White, Scott Greenfield, and Mark Bennett. A question: after the first x-ray and the first two manual exams, were the police (and their all-too-compliant doctors) really expecting to find drugs with additional searching? (The question is mostly rhetorical.)

4. In late October, the Third Circuit US Court of Appeals decided an important Fourth Amendment case, United States v. Katzin, which decided, among other things, when the installation of a GPS device requires a warrant. Orin Kerr at the Volokh Conspiracy and Ken White at Popehat have posts on the case. Ken highlights one particular passage from the court’s opinion:

The Government contends that requiring a warrant prior to GPS searches would “seriously impede the government’s ability to investigate drug trafficking, terrorism, and other crimes.” (Appellant Br. at 27.) We fail to see how such a conclusory assertion suffices to except GPS searches from the requirements of the Fourth Amendment’s Warrant Clause. Doubtless, we are aware of the dangers posed by terrorism and comparably reprehensible criminal activity. However, we would work a great disservice by permitting the word “terrorism” (in the absence of any other information or circumstance) to act as a skeleton key to the liberties guaranteed under the Constitution.

Amen.

5. The Third Circuit is also in the process of hearing the appeal in United States v. Auernheimer, aka the Weev case — an appeal that may establish precedents for how other courts interpret the Computer Fraud and Abuse Act (CFAA). In Wired, Hanni Fakhoury has a piece (“You May Not Like Weev, But Your Online Freedom Depends on His Appeal”) nicely detailing what’s at stake. Crucially, the CFAA makes it a crime to obtain information from a computer “without authorization,” but the term “without authorization” is not defined in the statute — meaning that it’s definition is effectively left to federal judges, who tend to be an older lot and many of whom are, shall we say, not as computer-savvy as their grandchildren. Orin Kerr, who is assisting Auernheimer pro bono on the appeal, has links to the briefs filed with the appellate court.

6. Sarah Jeong has this piece in Wired. A taste (emphasis in original): “Discussions of internet law seem like an endless cycle of ‘but what about the women/children?’ pitted against ‘but what about my free speech?’ We’re back on the merry-go-round again… The exploitation of women and children has always been the Trojan horse of internet regulation… The point is that a new criminal statute paves another way to put a human life on hold and a human body in prison — and yes, a paparazzo still counts as human. There are unintended consequences to overbroad laws, and failing to take that into consideration when advocating for increased criminal liability is irresponsible. … We do not need to choose between the internet and women, or between free speech and feminism. These are false and unnecessary dichotomies.” (Do read the whole thing.) See also this piece by Cathy Reisenwitz at Talking Points Memo.

7. Alabama Circuit Judge Neilson to issued a preliminary injunction prohibiting a defendant in a defamation case from saying or publishing certain things about the defamation plaintiff. Preliminary injunctions in defamation cases are exceedingly rare and constitutionally suspect because our country’s First Amendment jurisprudence strongly disfavors prior restraints on speech. Now, the defendant has been arrested for violating the preliminary injunction. Ken White and Aaron Walker have the details. Ken looks at Judge Neilson’s order granting the plaintiff’s motion for a preliminary injunction (emphasis in original):

Judge Neilson…utterly failed to cite or distinguish any of the wall of authority discussing how preliminary injunctions are strongly disfavored in both equity and First Amendment law. Judge Neilson didn’t cite the “only in the most extraordinary circumstances” rule, let alone apply it. He only cited two Alabama cases — one 1947 case about defamation of a business that had no First Amendment analysis, and one appeal of a criminal harassment conviction that doesn’t even mention prior restraint or injunctions. In a footnote, Judge Neilson cited a melange of state and federal cases from California, Ohio, Michigan, and Illinois with no explanation or analysis. Those cases actually undermine his authority to issue the injunction, because they support the proposition that an injunction against defamation is almost always inappropriate before a finding on the merits at trial or if the plaintiff wins a summary judgment motion. It appears that the drafter of this order simply scoured the nation for the handful of outlier cases saying something positive about injunctions against defamation — plus the tiny number of cases approving them pretrial — while completely ignoring the authority (including from the United States Supreme Court) that such injunctions are inappropriate.

Moreover, the injunction has a key problem that courts have repeatedly identified: it doesn’t just prohibit Shuler [the defendant] from saying a list of specified things, but also forbids “any defamatory statement about Petitioners, including, but not limited to” the specified statements. Courts strike down such language because it leaves a defendant like Shuler to guess at what he is or isn’t allowed to say. Such vague language chills speech because it requires the injunction’s target to risk jail over his belief about what is or isn’t defamatory.

8. Grits for Breakfast: Federal prison population growth is unsustainable.

9. Michael Saffioti was busted for a possession of pot and charged with a misdemeanor offense. He failed to appear for his court date, and a warrant issued for his arrest. So far, nothing unusual. Mr. Saffioti, aged 22, surrendered himself to the authorities and began to enjoy the hospitality of the county jail of Snohomish County, Washington. Come time for breakfast, Saffioti attempted to determine whether his oatmeal was dairy-free, as his dairy allergy meant that dairy products in the oatmeal could kill him. After taking a few bites of the oatmeal, Saffioti told a guard that he did not feel and needed immediate medical help; the guard blew him off. Then Saffioti died in his cell. Then, when an attorney for Saffioti’s mother requested the jail’s video of the incident, the jail lied and stonewalled before finally releasing unedited video.

Scott Greenfield has a post on this story, and so does Jess Remington at Reason. Greenfield notes that, four months after Saffioti’s death, the voters of Washington State voted in a November 2012 referendum to legalize the use and sale of marijuana.

10. Doug Berman of Sentencing Law & Policy points to a piece in the New Republic (“Marijuana is America’s Next Political Wedge Issue Pot politics, in 2016 and beyond”), which begins with this:

We’ve reached the point where there should be no surprise if a major national politician embraces marijuana legalization. Without any large-scale campaign on its behalf, surveys show that approximately half of Americans now support marijuana legalization, including 58 percent in a recent, but potentially outlying, Gallup poll. Regardless of the exact support today, marijuana is all but assured to emerge as an issue in national elections — it’s only a question of how and when.

So far, neither party wants to touch the issue. The Democratic governors of Washington and Colorado didn’t even support initiatives to legalize the possession, distribution, and consumption of marijuana, even though the initiatives ultimately prevailed by clear margins. It took the administration ten months to announce — in the middle of the Syria debate — that the Department of Justice wouldn’t pursue legal action against Washington and Colorado. And on the other hand, Republicans weren’t exactly screaming about hippies and gateway drugs, either.

Despite their apparent reservation to engage the issue, it’s hard to imagine Democrats staying on the sidelines for too many more election cycles. The party’s base is already on board, with polls showing a clear majority of self-described Democrats in support.

Prof. Berman adds these thoughts:

I think this commentary may be missing one key reality that I am certain will impact dramatically the politics of pot over the next few election cycles: the reality and perceptions of what ends up happening, good or bad, in Colorado and Washington as recreational pot goes mainstream in these two distinct states. If legalization is seen as a huge success inside and outside these states over the next 12 months, especially in swing-state Colorado, we should expect marijuana reform supporters to see positive political possibilities as early as 2014 and I suspect it will become especially difficult for either party to be vocal opponents of marijuana liberalization and legalization realities. But if things go poorly in these states, the modern reform politics neccesarily will take on a much different character.

Meanwhile, Thoreau notes that Grover Norquist “has issued a permission slip for any Republican lawmaker who wishes to vote for the ‘tax’ part of ‘tax and regulate marijuana.'” Also, in last week’s elections, legalization or decriminalization ballot measures were successful in Portland, Maine and in three Michigan cities.

As Eugene Debs said at his sentencing, “the cross is bending, midnight is passing, and joy cometh with the morning.”


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