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Tuesday, December 23, 2014

Iowa Department of Public Safety Releases Report on Drones

Iowa's Department of Public Safety recently released a report on drones. The full text of the report is available here. A bill passed back in May called for this report, which would survey whether Iowa's laws should be modified to account for drones and to develop guidelines for drone use.

I think that the report's position on private drone use is sensible. The report notes that drone safety regulations are covered by Federal Aviation Administration (FAA) regulations. The report continues, pointing out that existing laws against trespass and invasion of privacy can restrict invasive drone use by private parties. The report also notes that it may be best to restrict drones "as regulation is needed rather than in a preemptive matter." This sort of approach will help drone technology develop without complicated or repetitive laws that may hinder the free use of drone technology.

I do think that the report misstates Iowa's legislative restrictions on government drone use. Iowa's law governing drones is a bit strange, since it is a mix of restriction and deregulation of government drone use. Section 321.492B of the Iowa Code prohibits the government from using drones in "traffic enforcement" situations. As I have previously argued, it is unclear how far this prohibition extends. While officers may not use drones to spot traffic violations, are they prohibited from using drones to document the scene of a traffic collision or hit and run after the collision has taken place?

In non-traffic enforcement situations, agencies can use evidence obtained through drones whenever an exception to the Fourth Amendment search warrant requirement exists. As I have pointed out several times on this blog, this sort of exception essentially permits law enforcement agencies to use drones without any meaningful restrictions, since drones can still be used to observe people's public movements and the exterior of their homes.

The report, however, claims that this law "contemplates that a search warrant must be obtained, or that evidence that the government has gathered with an unmanned aircraft would be suppressed." While Iowa's law calls for a warrant when the government uses drones, the exception to the warrant requirement is so broad that the warrant requirement does not meaningfully restrict government drone use.

The report is worth reading in full, and its discussion of FAA regulations and state trespassing and privacy laws will likely apply to other states that are contemplating drone regulation.

Monday, December 22, 2014

Heien v. North Carolina: Implications for California Law

On December 15, the United States Supreme Court released its opinion in Heien v. North Carolina. The Court held that a police officer's reasonable mistake of law did not render a traffic stop unconstitutional under the Fourth Amendment. The Fourth Amendment permits traffic stops based on a reasonable suspicion that the law has been violated, and as long as the police officer's mistake of law is reasonable, the stop is not rendered unconstitutional. Analysis of the opinion can be found here and here.

Here is the crux of the majority opinion:

Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

. . .
Heien also contends that the reasons the Fourth Amendment allows some errors of fact do not extend to errors of law. Officers in the field must make factual assessments on the fly, Heien notes, and so deserve a margin of error. In Heien's view, no such margin is appropriate for questions of law: The statute here either requires one working brake light or two, and the answer does not turn on anything "an officer might suddenly confront in the field." Brief for Petitioner 21. But Heien's point does not consider the reality that an officer may "suddenly confront" a situation in the field as to which the application of a statute is unclear—however clear it may later become. A law prohibiting "vehicles" in the park either covers Segways or not, see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36-38 (2012), but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by. 
Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonablemistakes, and those mistakes—whether of fact or of law— must be objectivelyreasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States, 517 U. S. 806, 813 (1996). And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is dutybound to enforce. 
Finally, Heien and amici point to the well-known maxim, "Ignorance of the law is no excuse," and contend that it is fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway. Though this argument has a certain rhetorical appeal, it misconceives the implication of the maxim. The true symmetry is this: Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law. If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.
I blogged about this case back in November, and noted that this case could have significant implications for California's law of search and seizure. At the time, I was posting on the California Court of Appeal's opinion in People v. Campuzano. There, the Court held that a police officer's mistake of law rendered a stop unreasonable when the officer stopped a suspect who was riding his bicycle on the sidewalk. While the officer thought that riding a bicycle on the sidewalk was illegal if it was done in a commercial district, the Court concluded that the bicycle needed to be ridden in front of a business that was operational. Because the defendant in Campuzano was not riding his bicycle in front of an operational business, the officer's conclusion that the defendant had violated the law was mistaken, and the court held that this mistake of law rendered the stop unconstitutional.

After Heien, however, the decision in Campuzano is no longer the law in California. Article One, section 28(f)(2) of California's Constitution establishes that rules excluding evidence in criminal cases are to be only as broad as federal constitutional rules. The California Supreme Court affirmed this limitation in In re Lance W. This means that California's constitutional law of search and seizure cannot exclude a broader range of evidence than the United States Constitution.

Accordingly, the blanket statement by the California Court of Appeal in Campuzano that "[a] traffic stop based on a mistake of law is unreasonable and not subject to the good-faith exception," is no longer the law in California. Under Heien, as long as the officer's belief that the defendant has broken some law is reasonable, any ensuing traffic stop is also reasonable.

Questions remain regarding just how much of a mistake of law is permitted under the "reasonable mistake of law" exception. But I would not be surprised if the officer's mistake in Campuzano fell within this exception, and it will be interesting to see how lower courts define the scope of this new facet of Fourth Amendment doctrine.

Thursday, December 11, 2014

How Not to Write a Petition for Certiorari

From Josh Blackman's Blog, I learned about the remarkably terrible petition for certiorari in Sigram Schindler Beteiligungsgesellschaft MPH v. Lee. Blackman notes that the Supreme Court has ordered the attorney for the petitioner to show cause why he should not be sanctioned. Will Baude points out that the petition's indecipherable nature may be due to inadequate supervision by the attorney on the case.

Both Blackman and Baude highlight the petition's mysterious question presented:

“Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112, 
• require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework,
or does the US Constitution for such decisions 
• entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”
Most commentators focus only on the first few pages. But the petition's first footnote hints that true incomprehensibility will soon follow:

This petition continues using terminology introduced by SSBG’s preceding petition, e.g. “classical technology / emerging technology claimed invention, CT / ET CI”, “∀…/….s =(for) any/all”. Most of the relevant information only referred to here is available on www.fstp-expert-system.com – often proof read or just with typos removed.

For several pages after that, the petition is awkward, yet mostly written without symbols and somewhat readable. Things don't get truly interesting until page seven:

121S.II/III] tell: “{∀SPL test}≡FSTP-Test”7.a). Thus, familiarity7.b) with the FSTP-Test8) pays. It tests, ∀interpretations/TT.0s of a CI, their inventive concept sets satisfying ∀necessary˄sufficient and precise legal criteria6) for CI’s passing its SPL test.

For SPL testing a CI, the FSTP-Test hence needs ∀TT.0s of CI ∀ their compound inventive concepts and ∀ their elementary inventive concepts – as recognized and input by the user. Its fully automatic guidance greatly sharpens his/her such cognition processes by forcing him/her – by prompting to input blindly trusted answers to ∀ questions of the FSTP-Test as to ∀ TT.0s of a CI – to iteratively identify ●)∀inventive concepts of TT.0 and to check ●) ∀ their necessary ˄ sufficient relations for their holding 6).

ftn 8) is the FSTP-Test from [121 8.b)], fixed 7.c) by test. 9 to model Alice concisely.
What is this FSTP-Test? The petition claims that it's simple to implement ("vastly trivial" to intuitively grasp, according to footnote seven). Footnote eight provides the process for understanding and applying the test:
The FSTP-Test comprises the steps 1)-10):
1) The FSTP-Test prompts the user to input
(a) ∀TT.i ∧ 0≤i≤I=|RS| ∧ 1≤n≤N=N(TT.0): BADi-crCin;
(b) ∀TT.0∧1≤n≤N justof: BAD0-crC0n is definite;
(c) S0::={BED0-crC0nk|1≤k≤K0n, 1≤n≤N}:
BAD0-crC0n=∧1≤k≤K0nBED0-crC0nk ∧ K0::=∑1≤n≤NK0n;
(d) ∀1≤k≤K0n ∧ 1≤n≤N justof: BED0-crC0nk is definite;
2) ∧ ∀ ϵ S0 for justof: their lawful disclosure;
3) ∧ ∀ ϵ S0 for justof: their definiteness under § 112.6;
4) ∧ ∀ ϵ S0 for justof: their joint enablement of TT.0;
5) ∧ ∀ ϵ S0 for justof: their joint independence;
6) ∧ ∀ ϵ S0
for justof: their joint KSR-nonequivalence: BED0*-inCik ∷= N ∀ 1≤k≤K0n ∧ 0≤i≤I; BED0*-inC0k ∷= A if BED0-inC0k ϵKSR posc;BED0*-inCik ∷= A BED0-inCik=KSR BED0-inC0k, 1≤i≤I;
7) ∧ for justof: by NAIO*) S0 is not an abstract idea only;
8) ∧ for justof: S0 contains a patent-eligible BED0-crC0nk;
9) ∧ for justof: S0 is a patent-eligible combination;
10) ∧ for justof: by NANO**) S0 is patentable on S0pat-el ⊆ S0.
*) The "Not Abstract Idea Only, NAIO" test prompts the user
1) for input&justof: the CI specification discloses a problem, P, to be solved by TT.0 of CI;
2) for input&justof: S0 alias TT.0 solves P;
3) for input&justof: P is not solved, if in S0 a BED0-inC0k is relaxed (i.e. the truth set of a BED0 inC0k is enlarged);

If 1)-3) apply, then <CI,S0> is “not an abstract idea only”. 
**) The "Not Anticipated And Not Obvious, NANO" test checks
of RS all its “anticipation combinations, AC0s” as to S0 [5,6]: 
1) It starts from the ‘anticipation(A0)/non-anticipation(N0)” matrix of FSTP-test.6, any one of the I+1 lines of which shows, by its K0 column entries, for i = 1,2,...,I, which of the peer TT.0 entries is anticipated/non-anticipated by a former one, and for i=0 is anted/non-anted by posc. 
2) It automatically derives from the AN0 matrix the set of
all {AC0} with the minimal number, Qplcs/0, of “N” entries.

Of course! Although I'm still not quite sure what "FSTP" stands for.

It should be noted that all of this seems to be the petitioner's legal argument. This is not a description of the "method for transmitting data in a telecommunications network and switch for implementing said method" (page 4 of the opinion below) that is the subject matter of the patent dispute, but it is the petitioner's suggested process for reasoning through patent disputes. The petitioner thinks that this process is so noteworthy that the entire petition seems devoted to discussing the process and urging the Supreme Court to adopt it.

Friday, December 5, 2014

Robinson on the Rise and Degradation of Criminal Codes

From the CrimProf Blog, I learned about Paul Robinson's essay, The Rise and Fall and Resurrection of American Criminal Codes. Here is the abstract:

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.

The essay is a transcript of Robinson's keynote address at the Third Annual Forum on Criminal Law Reform that was held in Louisville, Kentucky. Because of the location of the address, many of the examples discussed in the essay are specific to Kentucky, but the essay itself applies to many jurisdictions, including California.

Take, for example, this portion of Robinson's essay:

Another problem comes from the conflicts between statutes, and the ambiguities that can result. What is a court to do when statutory terms are defined differently in different places? Or if the same conduct is graded differently in different statutes? And one may wonder why should we be empowering courts to get back into the criminalization business to make such legislative decisions forced upon them by such statutory conflicts and ambiguities? How can a code be principled if different provisions provide different definitions of the same criminal harm, or provide different offense grades to the same conduct? In other words, the proliferation problem undermines not only the criminal law’s orderliness, but also its principled nature and its reservation of the criminalization power to the legislature.

These problems often result because new legislation is not written to integrate into the code but rather to layer on top of it, without regard to what went before. And of course layering produces a vicious cycle. The messier the code gets, the less able or inclined legislators are, to integrate new legislation into the existing code. The more new legislation that is layered on rather than integrated in, the more future legislation will layer rather than integrate, until dozens if not hundreds of overlapping layers have been created. If you imagine the original criminal code of 1974 as being the trim hull of a fast boat, the addition of hundreds of independent and overlapping patches can, over forty years, completely obscure the original design, turning it into an irregular blob.
. . .
What drives this degradation of existing criminal law? The underlying causes of degradation are found primarily in the inherent nature of the legislative process. Many amendments and new offenses are enacted for purely political purposes: politicians propose a bill to show concern regarding an issue that their constituents are concerned about. We cannot be too critical here. They are simply trying to be responsive to their community - normally something we see as a good thing, a basic feature of democracy in action. They may be responding to an especially grim case in the headlines, or a case where an offender seemed to have received too little punishment.

But in many of these cases, “the problem” has little to do with a flaw in an existing criminal law rule. Not every problem can be fixed with a criminal code amendment. People will continue to commit outrageous crimes; judges will continue to make what are seen as sentencing errors, and so on. Yet, legislators often feel a need to do something to show that they are sensitive to their constituents’ concerns. And there a few “somethings” that they can do. Changing or adding to the criminal law is one of those few things. But when crime legislation is simply a vehicle for expressing concern, drafters have little reason to take account of existing law. They aren’t really fixing a code problem but rather using their bill as a vehicle to send an empathetic message of concern to their constituents. We should not be surprised by overlaps and inconsistencies because there is little motivation to integrate; overlayering is always easier and faster and often sends a clearer and more dramatic message.
Robinson effectively points out how and why criminal statutes tend to become overly complicated as time goes on. California is one state where this happens quite a bit -- most recently with the passage of Proposition 47. The primary, stated goal of Prop 47 was to reduce sentences for misdemeanors.

Prop 47's changes to the criminal code may indeed achieve this goal. But when it comes to the law of theft, Prop 47 achieves its goal of reducing sentences by adding new laws rather than altering existing provisions. Rather than altering the crime of commercial burglary so that it is a misdemeanor unless the crime is committed outside of regular business hours, Prop 47 went ahead and created the perplexing new crime of shoplifting. Rather than eliminating or simplifying the myriad of statutes defining grand theft, Prop 47 simply added Penal Code section 492 which effectively reduces the punishment of all grand theft offenses to the level of petty theft when the amount of property stolen is less than $950.

California's Penal Code is a cautionary tale of just how complicated a state's criminal code can become as layer after layer of laws are added. Robinson notes that legislators tend to be reluctant to integrate laws into existing criminal code frameworks. I suspect that the direct-vote proposition process is even more likely to result in new layers of complexity.

Njal's Saga Available Online

I'm a big fan of Njal's Saga, which I read during my second year in law school after learning about it through a remedies course taught by Professor Samuel Bray. I just discovered that the entire saga is available online here as part of the Icelandic Saga Database. The language of this 1861 translation is a bit cumbersome compared to the Magnus Magnusson and Hermann Palsson translation that I'm familiar with, but it's still worth checking out.

The saga tells the story of Njal, a lawyer and warrior who lived in 11th Century Iceland, and his friend Gunnar -- a warrior of unparalleled strength and prowess in battle. The saga includes a wide array of additional characters and spans a significant time period. The saga centers around battles, murders, and rivalries, but it devotes an almost equal amount of time to discussing the legal ramifications of the characters' violent actions -- and often rapidly pivots between violence and legal proceedings. Since disputes were occasionally settled by resorting to single combat between the parties, violence and legal proceedings are sometimes one and the same.

Njal's Saga is of interest for law students and others interested in law because it illustrates several themes that are recognizable in today's legal world. The saga addresses the mechanics of translating wrongful death into monetary compensation (and how a person's status may lead to increased or decreased valuation). It provides examples of how one may triumph in a seemingly hopeless legal dispute through a superior knowledge of procedure. Additionally, Njal's Saga contains an account of the possible origin of the term, "gunner."

Wednesday, December 3, 2014

The First Conviction Under California's Revenge Porn Law

The Los Angeles City Attorney announced that it has secured a conviction against Noe Iniguez, who posted nude photographs of his ex-girlfriend online. The Huffington Post and Mashable have reports on the story as well.

California's law against revenge porn was enacted in October 2013 and is currently codified at Penal Code 647(j)(4)(A). Originally, the law prohibited certain instances of distributing photos that one had taken of another person. It therefore did not apply to photographs that a victim would take of himself or herself. An amendment that will expand the law to apply to selfies was approved by the governor in September, 2014, and it is my understanding that this change will take effect in 2015.

Here is the current version of the law:
Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress and the depicted person suffers serious emotional distress.
The City Attorney's announcement describes Iniguez's conduct, which seems to be a pretty clear violation of the law:

In December 2013, Iniguez, using an alias, allegedly began posting derogatory comments about his ex-girlfriend on her employer’s Facebook page. In March, 2014 Iniguez allegedly posted a topless photograph of the victim on her employer’s Facebook page which was accompanied by a message that called the victim a “drunk” and a “slut” and encouraged her firing from the company. The victim had previously secured a restraining order against Iniguez in November 2011 after receiving several harassing text messages following the breakup of their four year relationship.
I have noted before that revenge porn laws tend to draw criticism from commentators who argue that these laws violate the First Amendment. Indeed, Mike Masnick at Techdirt raises this point against the California law (though he makes sure to note that Iniguez does indeed sound "horrible").

But I think that California's law does not raise the same First Amendment problems as, say, Arizona's recently-halted attempt to criminalize revenge porn. The California law specifies that the law is limited to images that are shared in private circumstances, and therefore requires prosecutors to establish that the circumstances in which the image was initially taken or shared were private. Moreover, the law requires the prosecution to prove that the defendant specifically intended to "cause serious emotional distress," and that the victim suffered such distress. All of these parts of the law narrow the scope of the revenge porn prohibition and thereby limit the law's impact on speech.

While this is the first conviction under California's revenge porn law, several other cases are about to get underway -- as the California Attorney General has filed charges against several websites that specialize in sharing revenge porn. I blogged about one of those cases back in December when the case was at the arrest stage.

Those who are interested in revenge porn laws should pay attention to California. The upcoming cases should illustrate whether laws against revenge porn can be a reliable tool for punishing deplorable online behavior. And if any of these cases are appealed, I expect that the California Courts of Appeal will need to address the First Amendment implications of laws against revenge porn.

Monday, December 1, 2014

Some Harsh Words on Dueling

While researching and writing a paper on arbitration by combat and Game of Thrones, I came across the case of Smith v. State, 9 Tenn. 228 (1829). There, Tennessee's Supreme Court of Errors and Appeals evaluated the case of an attorney, Calvin M. Smith (no relation) (hopefully), who had been charged with murder after killing another man in a duel. Smith also faced disbarment for his actions.

The court was not persuaded by Smith's claim that killing another person in a duel was less-deplorable than killing a person in different circumstances:
Taking the petition for true, and how does the case of the defendant stand? By the laws of God, the laws of England from the days of the Edwards; by the laws of Kentucky and Tennessee, and every civilized land, he is declared to have been guilty of wicked and malicious murder, and a felon fled from justice. Is it possible that any well balanced mind can, for a moment, believe that a man whom the law thus condemns, is a fit person to be an aider and adviser in the sanctuaries of justice! 
We are told this is only a kind of honorable homicide! The law knows it as a wicked and wilful murder, and it is our duty to treat it as such. We are placed here firmly and fearlessly to execute the laws of the land, not visionary codes of honor, framed to subserve the purposes of destruction. (237).
The court did not have kind words when describing the various types of people who participate in duels:

It is true, as a part of the history of our species, that many men of strong minds have equally strong passions, which are ill controlled, and subject such men to grosser errors than others with fewer mental advantages; these are the men of worth that fight duels, having no guide but blind and reckless passion when aroused, regardless of their own lives or those of others; hence their conduct furnishes the worst possible evidence upon which to ground a rule for the government of society. This class of duellists are not less wicked than others we will name, but their standing renders it more difficult to punish them. 
Another set of men fight duels (or more generally make a show towards it) to gratify their vanity, by drawing upon themselves a little temporary notice, which their personal worth or good conduct cannot procure. These are always worthless coxcombs, equally destitute of bravery, virtue, or sense, whose feeble nerves would be shattered and prostrated at the sight of an enemy in the field of battle, who are ridiculous in every situation where courage or conduct is required. This class of duellists do little harm other than to disturb the community; they quarrel to make peace; or if officious intermeddlers force them into a fight, are too much alarmed to hit, or perhaps see, their antagonist. The affair is laughed at as a farce, and the parties turned over to the constable. (233).
And recently-admitted attorneys in Tennessee should take note that dueling will most likely have a negative effect on one's ability to practice law:

Let it be once understood that the bar of Tennessee dare not fight, and it will be deemed cowardly to challenge a member of it; and this court solemnly warns every lawyer, that if he violates the laws made to suppress duelling, we will strike him from the rolls of the court, upon the fact being made known to us. The truth is, such men are too often insolent and impudent bullies, who tyrannise over, and impose upon, all orderly men about them; who literally dragoon society, by fear of personal violence, into silence and seeming acquiescence, with respect to their conduct. That such a counsellor is a disgrace, and serious encumbrance to any court where he is permitted to practice, all will admit; those who engage in duels, the statutes deem, and we will treat, as of this description. (234).
Dueling is generally frowned upon in most jurisdictions. Other commentators have noted that dueling convictions have historically led to serious collateral consequences beyond criminal punishment or the ability to practice law. But of the various cases I have read on the subject of dueling, the language in Smith v. State is the most colorful and dramatic that I have been able to find so far.

Wednesday, November 26, 2014

Bray: "On Legal Doctrines That Do Many Things"

Through Lawrence Solum's Legal Theory Blog, I learned of this excellent essay that Samuel Bray recently posted on SSRN. Its title is On Doctrines That Do Many Things. Here is the abstract:

Every kitchen has two kinds of tools. Some of these tools do many things well, like a chef’s knife. Other tools do only one thing, but they are meant to do that one thing exceedingly well, like a garlic press. This distinction also appears in legal doctrines. Some do one thing and are meant to do it very well. Other doctrines do many different things. They serve multiple functions, though perhaps all imperfectly. Indeed, this is often a basis for criticism. Scholars have criticized many legal doctrines -- from the constructive trust to the Erie doctrine, from the irreparable injury rule to the standing requirement, from the collateral source doctrine to strict scrutiny -- on the grounds that they serve multiple purposes and are therefore incoherent. By contrast, judges seem to prefer these multi-function doctrines. They resist the scholarly projects of deconstruction and specialization. This Essay considers that contrast in perspective, and it explores the differences between single-function and multi-function doctrines. These differences include the type of decisions that must be made, the possibility of expertise, adaptability over time, and the relative burdens on the designer and the user.
Bray's essay is approachable, interesting, and enlightening. It is only nine pages long. I'm posting this on the eve of a holiday weekend. You have no excuse not to read the whole thing.

Shoplifting: Proposition 47's Strange Addition to California's Law of Theft

California's Proposition 47 (Prop 47) reduces a number of California felonies to misdemeanors. I have already blogged that one of Prop 47's most extensive provisions, Penal Code section 490.2, reduces many forms of felony grand theft to misdemeanor petty theft. In that post, I purposefully avoided discussing shoplifting out of considerations of space. In this post, I hope to address Prop 47 shoplifting in the depth it deserves.

Proposition 47 adds the crime of "shoplifting" to the California Penal Code. This crime is now enumerated at Penal Code section 459.5, which states:

(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170. 
(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.
Prop 47 enacted this section in order to reduce most cases of commercial burglary from felony status to the level of misdemeanors. Before Prop 47, entering a commercial establishment with the intent to commit larceny was second degree burglary. This crime was a "wobbler" under Penal Code section 461, meaning that it could be charged as either a misdemeanor or a felony.

With the arrival of Penal Code section 459.1, however, many cases of second degree burglary are now shoplifting, rather than burglary. Section 459.1(a) requires shoplifting to be charged as a misdemeanor unless the defendant is a registered sex offender or has one of several specific, extremely severe prior convictions.

While the stated purpose of Prop 47 is to reduce the severity of punishment for certain crimes, and while the new shoplifting statute will certainly have that effect on many instances of burglary, section 459.5 is worded and structured in a way that leaves significant questions regarding how it is to be applied. Moreover, in light of the notably restrictive language of section 459.5(b), it is unlikely that prosecutors would ever charge a defendant with the crime of shoplifting.

Monday, November 24, 2014

Who is to Blame for Declining Bar Exam Passage Rates?

Derek Muller argues in this post that the National Council of Bar Examiners (NCBE) may be more to blame than they are willing to admit. From his post:

Despite protests from the National Council of Bar Examiners to the contrary (PDF), it increasingly appears that the NCBE had some role in the decline of Multistate Bar Exam scores and, accordingly, the decline in bar passage rates around the country.
Muller points out declines across the country to support this claim, and notes that even though the students taking the July 2014 bar exam had slightly lower credentials than students in prior years, that does not seem to adequately explain the shifts in scores and pass rates.

Muller's post is worth reading in its entirety, as he addresses many of the explanations that have been offered so far. He ultimately concludes that more information is necessary for an adequate explanation for the decline in scores. I hope that the NCBE takes his (and others') concerns to heart in evaluating their testing methodology.

The bar exam is hard enough as it is, and failing to pass can be a very difficult setback. As more data is released, hopefully an explanation for the decline in scores and pass rates will become clear. And if the NCBE indeed is to blame for even some of this decline, they will hopefully take steps to remedy whatever went wrong during the July 2014 exam.

Friday, November 21, 2014

I Have Passed the California Bar Exam!

This, of course, changes nothing in my disclaimers (although once I am sworn in, I will be changing that remark about not being a licensed attorney).

But it is a good day.

UPDATE

Based on statistics recently posted by Derek Muller, it appears that the odds were not in my favor.

Amar and Allard on Reevaluating the Bar Exam

At Justia's Verdict, Vikram Amar has this article discussing the decline in performance of the July 2014 bar examinees relative to other years. Amar also addresses the National Conference of Bar Examiners' [NCBE's] response to this performance decline which was laid out in this memo by Erica Moeser, the president of the organization.

I've blogged about this year's decline in performance yesterday. There, I described the unpleasant situation of California bar examinees who have to read about the nationwide drop in bar exam performance before they have even received word of whether they have passed. 

Here is an excerpt from Moeser's memo where she addresses this decline:

Beyond checking and rechecking our equating, we have looked at other indicators to challenge the results. All point to the fact that the group that sat in July 2014 was less able than the group that sat in July 2013. In July 2013 we marked the highest number of [Multistate Bar Exam, or] MBE test-takers. This year the number of MBE test-takers fell by five percent. This was not unanticipated: figures from the American Bar Association indicate that first-year law school enrollment fell 7% between Fall 2010 (the 2013 graduating class) and Fall 2011 (the 2014 class.) We have been expecting a dip in bar examination numbers as declining law school applications and enrollments worked their way to the law school graduation stage, but the question of the performance of the 2014 graduates was of course an unknown.

Amar argues that Moeser's claim that the July 2014 examinees were "less able" than other groups of students who took the exam was likely a mistake of wording and that a mere decline in law school enrollment cannot adequately explain the drop in exam performance. From Amar's article:

For that reason, Ms. Moeser probably erred (putting aside her choice of language) in trying to offer any explanation for the lower performance; her diagnosis of a “less able” group of takers seems to be, at most, a (limited) diagnosis of (partial) exclusion. In other words, what she knows—or should be able to know—is confined to the fact that the MBE test that was given in 2014 was reliable as compared to prior year tests. Even if this year’s test was no different in substance or administration, Ms. Moeser really has no way of accounting for the lower performance. Certainly her vague implication—that a decrease in the volume of law school applications and graduating students explained the lower score—is open to question. Indeed, a seven-percent reduction in the number of starting law students in the fall of 2011 might suggest that law schools shrank in size rather than lowered their admissions standards. And the comparison of seven-percent fewer incoming students and five-percent fewer MBE takers wouldn’t, without more data, say much. So Ms. Moeser should have said no more than that the test has been examined and validated, and that we need to look elsewhere for an explanation. 
In this regard, [Brooklyn Law School] Dean [Nicholas] Allard is correct that the rest of us deserve to know more details about MBE’s “quality control” processes, to use Ms. Moeser’s term. It’s hard to see why more transparency about the internal test-validating data and techniques that the MBE-makers use would not be a good thing.
Amar is referring to this letter by Dean Allard that responded to Moeser's memo. In that letter, Dean Allard pointed out that graduating from an accredited law school takes a great deal of intelligence and work, that it "defies common sense" that students who have completed three years of law school need to spend even more money on a bar exam preparation course, and that "in short, it is not the students, it's the test."

I have some disagreements with some of Amar's and Dean Allard's remarks. Regarding Amar's article, I don't think that it is possible to interpret Moeser's use of the "less able" label to simply denote that students performed poorly on the Multistate Bar Exam. Moeser clearly refers to the "less able" description as an explanation for the poor performance, so it would not make sense to interpret her explanation in this diplomatic way.

But unlike Amar and Dean Allard, I don't find the "less able" description to be necessarily offensive. Faced with a decline in performance of students across the nation, an obvious potential explanation is that those taking the July 2014 bar exam were less prepared for the bar exam than students in other years. This could mean a number of things -- for example: that they were less intelligent, that their law school education was poor preparation, or that they had less time or intellectual energy to devote to preparing to the bar exam (perhaps because they were simultaneously searching for jobs that are increasingly difficult to find).

Take my opinion with a grain of salt, since I am one of these "less able" students, but I think Dean Allard was overly hasty in taking offense. I agree with Amar and Dean Allard that more research into the issue is necessary, and that Moeser may not be able to conclusively claim that the students are the reason for the poor performance on the exam.

But I think that Dean Allard's response opens itself up to criticism -- especially when he points out that students spend thousands of dollars on bar exam prep courses after taking three years of law school courses. This remark highlights a problem with law school, rather than the bar exam: if law school adequately prepared students for the bar exam, then they would not need to take the bar exam prep course. While I have many good things to say about legal education, and while I acknowledge that the situation is indeed a complex one, I think that Dean Allard's response needed to be more measured in order for it to be more credible.

I agree with Amar that more research into the issue is necessary, but I don't think that Moeser was relying solely on the number of students taking the exam in reaching her conclusions. The NCBE tests its MBE questions by including unscored experimental questions on its exams in preparation for following years' exams. I imagine that the questions used on the July 2014 exam were tested and performed comparably to previous years' questions -- which is one reply the NCBE will certainly be able to make to those criticizing its methods.

There is, however, one feature of this year's exam that may count against Moeser's claim that students were the reason for their own poor performance. Moeser mentioned in her memo that civil procedure will be an MBE exam topic starting in February. During my bar exam preparation course, one of the instructors mentioned that the July 2014 MBE may include test questions for civil procedure in light of its inclusion in future exams. While these questions would be unscored, they would be clearly different from other MBE categories. And if students were not adequately warned about the inclusion of civil procedure test questions in a year where civil procedure was not an MBE topic, these test questions could confound students and lead them to waste time and energy on trying to figure out what MBE category the civil procedure questions fit into. I don't know if it is possible to examine how adequately students were prepared for the possibility of the MBE including civil procedure test questions. But if many students were not prepared, this could be one explanation for the July 2014 exam being an outlier.

One might point out that as somebody who took the July 2014 bar exam, I am in a position to potentially confirm whether civil procedure questions were on the MBE. But while you might think that, I couldn't possibly comment due to the dozens of confidentiality agreements I signed before taking that exam. As far as my own experiences with the MBE are concerned, I'm going to remain silent.

In any event, law school enrollment has continued to decline, so the next several years will bring more opportunities to see whether this declining enrollment is indeed the explanation for falling performance on bar exams. More research is necessary, and the data for that research will gradually become available.

Thursday, November 20, 2014

Bloomberg Businessweek Decides to Traumatize California Bar Examinees...

...by publishing this article, titled Why Did So Many People Flunk the Bar Exam This Year?

It begins:

The most recent bar exam test results are in, and they are ugly. In several states, people who took the bar in July were more likely to fail than those who took it last year, and scores on one portion of the test dropped to their lowest point in 10 years. 
Are America’s law graduates really getting dumber? The people who put together the bar exam seem to think so.
Thanks are due to Paul Caron of the TaxProf Blog for sharing this inspiring piece. It follows other depressing posts on the subject, including this one by Derek Muller on the surprisingly horrible performance of this year's examinees on the Multistate Bar Examination

Back in July, thousands of people took bar exams across the country. I (somehow) documented my own experiences in a series of posts herehere, here, and here. It's a good thing I did, because I have repressed almost all of my memories of those three days. Were it not for those posts, I might have doubts as to whether I even took the bar exam in the first place. By rereading my posts, I feel a little more confident that I am not lying to my coworkers when I tell them that I did indeed take the exam and that it was less than pleasant.

Since July, many state bar associations have already reported the results of their states' bar exams. I suspect that this is how the folks at Bloomberg Business Week are able to compile information on states' passage rates. I have not systematically studied which states have already released results, but based on a survey of status announcements of non-California people I know on Facebook, it seems to me that 49 states have notified students about whether they have passed the bar.

That leaves California, which announces bar exam results tomorrow.

California bar examinees have waited for almost four months to learn whether they have passed the bar exam. As they wait, outlets like Bloomberg Business Week publish articles on the woeful state of bar examination results following the July 2014 exam. Friends from other states joyfully announce their success, while those in the state with the most difficult bar exam anxiously watch the clock tick down.

Best of luck to those who have yet to learn of their bar exam results. And while these well wishes may seem a little self-serving, I give them anyway, since I want all the good luck I can get.

Wednesday, November 19, 2014

NTSB Rules that FAA Regulations Apply to Drones

The National Transportation Safety Board (NTSB) ruled yesterday that the Federal Aviation Administration's (FAA's) aircraft regulations apply to drones. Bill Chappell from NPR has the story here. Additional reporting from The Hill is available here. The full NTSB ruling is available here.

Specifically, the NTSB ruled that a regulation prohibiting the reckless operation of aircraft (14 C.F.R. § 91.13(a)) applies to the operation of drones -- despite the FAA's release of circulars and other notices specifically discussing model aircraft operation.

This opinion overturns an earlier administrative law judge's ruling that the FAA's regulations do not apply to drones. That earlier decision is available here. I blogged about the previous decision here.

From the NTSB's ruling:

[T]he Administrator’s application of § 91.13(a) to respondent’s aircraft is reasonable. Section 91.13(a) states, “Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” As discussed above, neither the plain language of § 91.13(a) nor the definitions of “aircraft” applicable to regulations in 14 C.F.R. part 91 exclude unmanned aircraft. The Administrator’s interpretation of this text—that it applies to respondent’s operation of his Zephyr to prohibit careless or reckless operations—is reasonable, given the broad language of the section. In addition, the Administrator’s preamble text in its Notices of Proposed Rulemaking, published in the Federal Register under the Administrative Procedure Act for promulgation of § 91.13(a), do not contain any language indicating its application of § 91.13(a) to respondent’s aircraft is an unreasonable reading of the regulation’s text and purpose. The Board has affirmed the Administrator’s application of § 91.13(a) as an alleged independent violation in other cases in which, presumably, no other regulation would have explicitly prohibited the alleged conduct. (footnotes omitted).
And as to whether the FAA's 1981 Advisory Circular on "model aircraft" operation exclude these aircraft from other regulations:

Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or “model aircraft” from the prohibition on careless or reckless operation in § 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator’s part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator’s interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator’s intent to ensure the safe operation of model aircraft by appropriate means.
While drones are generally quite different from traditional aircraft, the NTSB's conclusion seems correct, given the broad language of the regulation and the non-exclusive language of the advisory circular.

The NTSB cites statutory and regulatory definitions of "aircraft" as "any contrivance invented, used, or designed to navigate, or fly in, the air" (49 USC § 40102(a)(6)) and as "a device that is used or intended to be used for flight in the air." (14 C.F.R. § 1.1). While this language covers a great many devices (possibly even including paper airplanes or "toy balsa wood gliders" as the administrative law judge's ruling warns), the language is nevertheless clear.

It is worth adding that even though I think the NTSB's reading is correct, that does not mean that I necessarily agree that regulations applying to full-sized, manned aircraft ought to be applied to drones. I think that the administrative law judge was correct to note the broad definition of "aircraft" for purposes of federal law and regulation -- but I don't think that the law's unintuitive breadth is a sufficient reason to disregard the plain meaning of the text.

The NTSB's ruling will almost certainly accentuate the need for specialized drone regulations. And it may have a secondary effect of prompting awareness and criticism of how far a broadly-worded federal law may extend.

Tuesday, November 18, 2014

"Monkey Selfie" Photo May Venture Into Trademark Territory

During the summer of 2014, everybody on the Internet briefly became a copyright expert, scholar, or commentator as people debated the copyright status of this photo taken by a monkey:


The copyright dispute over this photo revolved around whether the photographer whose camera the monkey stole to take the picture owned the copyright for the photo. The U.S. Copyright Office concluded that the picture could not be copyrighted since it was taken by the monkey, by including a notably-specific hypothetical scenario on page 8 of this vast report.

While the U.S. Copyright Office's say may put an end to the copyright speculation, Craig Whitney of the Socially Aware Blog notes that this picture may end up making its way back to intellectual property debates in the trademark arena.

Whitney highlights this application for trademark status which features a picture that looks strangely similar to the monkey selfie photo. Whitney writes:

A company identified as Saban Capital Group Inc., based out of the British Virgin Islands, has filed an application with the U.S. Patent and Trademark Office to register a trademark in the image of a monkey for use on various types of apparel—including wedding gowns (one can only imagine the market for such an item). The company claims to have been using this image in commerce since August 16, 2010—which we understand is prior to the date that the Monkey Selfie was taken. Nevertheless, the image in question bears a striking resemblance to a certain photograph of a fetching Indonesian primate. But given that no one owns a copyright in the Monkey Selfie, it is unclear whether the Trademark Office or anyone else will seek to prevent a drawing based on the image—if that is what this is—from being registered as a trademark for use on certain apparel.
The trademark application is still in the early stages, and I don't know nearly enough about that area of law to give an informed opinion on the application's merits or whether it may be challenged. But if any law students are reading this post, it might be a good idea to flag this story just in case Intellectual Property professors are considering writing exams on some of the stranger areas of copyright and trademark law.

Thursday, November 13, 2014

Proposition 47 and Petty Theft

California’s recent Proposition 47 (Prop 47) has reduced a number of former felonies to misdemeanors. One of Prop 47’s most sweeping changes to the Penal Code is its revision of California’s law of theft.

Prop 47’s provisions influence a large number of theft statutes. In this post, I explore Prop 47’s broad impact on the law of theft. I then dissect the language of the statutes that Prop 47 enacts and point out how some of them may end up increasing the penalties for petty theft for certain offenders. Finally, I explore how prosecutors may go about charging petty theft.

As a caveat to this post, I will not yet discuss the new shoplifting crime enacted at Penal Code section 459.5. In an earlier draft, I had planned to discuss shoplifting, but I found that Prop 47 petty theft and shoplifting were too complex to discuss in a single post. I will have a post on California's shoplifting law written soon.

Tuesday, November 11, 2014

Fourth Amendment Stops and Mistake of Law in California

Via FourthAmendment.com, I learned about the California Court of Appeal case of People v. Campuzano. In that case, an officer stopped a defendant who was riding his bicycle on a sidewalk. The officer believed that the defendant was violating a section of the San Diego Municipal Code that prohibits biking on the sidewalk in front of a commercial establishment.

As it turns out, the defendant was riding his bicycle on the sidewalk in front of a business that had obviously been closed for some time. The officer stopping the defendant acknowledged that while that business was closed, there were no residences in the area, and argued that the defendant was riding his bicycle in a "commercial area."

But the Court of Appeal held that the law did not prohibit the defendant from riding his bike on a sidewalk in a "commercial area." Instead, looking to the text of the section, the Court held that the San Diego Municipal Code only prohibited the defendant from riding a bike in front of a commercial establishment. The defendant did not violate the law because the building in front of which the defendant was stopped had been out-of-business for some time.

The Court held that the officer's stop was therefore based on a mistake of law and that even if the officer made this mistake in good faith, the evidence obtained as a result of this stop should have been suppressed. From the opinion:

In the instant matter, the officers’ interpretation of San Diego Municipal Code section 84.09, subdivision (a) was a mistake of law. An officer's erroneous interpretation of California law or a local ordinance is generally considered unreasonable. (People v. Lopez (1987) 197 Cal. App. 3d 93, 101 [good faith does not excuse erroneous belief that statute prohibiting possession of open container of alcohol in vehicle on highway applies to a vehicle in a parking lot].) Courts usually view mistakes of law as unreasonable because when the wording of a statute or ordinance is reasonably clear, a contrary ruling would provide an incentive to remain ignorant of the law. (People v. Teresinski (1982) 30 Cal. 3d 822, 832.) A traffic stop based on a mistake of law is unreasonable and not subject to the good-faith exception. (People v. White (2003) 107 Cal. App. 4th636, 643; see also, In re Arthur J. (1987) 193 Cal. App. 3d 781 [good faith did not excuse an officer’s mistake regarding hours covered by local curfew ordinance].) The officers did not have reasonable cause to stop and detain the defendant based upon San Diego Municipal Code section 84.09, subdivision (a) when their only observation of him was in front of the former Lee’s Auto Repair, a business no longer in operation. The People failed to prove the sidewalk was in front of a “commercial business establishment.”
This opinion is worth noting because of the Supreme Court's impending decision in Heien v. North Carolina. There, the Court took up the question: "Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop." Analysis on Heien is available here and here. The Court heard arguments on October 6, 2014.

While the California Court of Appeal has taken a clear position on whether officers' mistake of law can form a basis for a stop, Campuzano's impact may be short lived. The Truth in Evidence Rule in Article One, Section 28(f)(2) of the California Constitution (also known as "Proposition 8") limits the constitutional exclusion of evidence in criminal cases to the boundaries established by the United States Supreme Court. In In re Lance W., the California Supreme Court noted:

We agree that Proposition 8 did not repeal either section 13 or section 24 of article I. The substantive scope of both provisions remains unaffected by Proposition 8. What would have been an unlawful search or seizure in this state before the passage of that initiative would be unlawful today, and this is so even if it would pass muster under the federal Constitution. (3b) What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.
Under the Truth in Evidence Rule, the scope of the exclusionary rule for unlawfully-obtained evidence is governed by federal constitutional law rather than California constitutional law. If the Supreme Court ends up concluding that an officer's mistake of law can form the reasonable suspicion necessary to justify a stop, then Heien will effectively overrule Campuzano, since the United States Supreme Court has the final word on the extent of the Fourth Amendment's exclusionary rule.

For those practicing criminal law in California, the stakes in Heien just got a little bit higher. When the decision is released, I will be sure to note how the Supreme Court ultimately rules on the issue and what its ruling will mean for California criminal procedure.

Sunday, November 9, 2014

The Retroactivity of California's Proposition 47

One of the notable features of California's recent Proposition 47 (Prop 47) is its retroactivity. As I explained in this previous post, You can find the full text of Prop 47 here on pages 7-11. Prop 47 reduces a number of felonies to misdemeanors. It also establishes procedures for reducing the sentences of those serving time for felonies that would be misdemeanors under Prop 47. And those who have finished serving their sentences for felonies that would be misdemeanors under Prop 47 can petition to have their felony convictions reduced to misdemeanor status.

While not all of Prop 47 is retroactive, it will have a significant impact on crimes committed before November 5, 2014. Moreover, the wording of Prop 47 suggests that its retroactive provisions may not be limited to its later resentencing sections. In this post, I discuss the extent of Prop 47's retroactivity. I begin with the portions of Prop 47 that are obviously retroactive, and then move on to sections that have a retroactive effect that may not be apparent at first glance.

Friday, November 7, 2014

Public Urination Convictions in California Typically Do Not Require Sex Offender Registration

Through the CrimProf Blog, I learned about Jenny Roberts's article, Crashing the Misdemeanor System (70 Wash. & Lee L. Rev 1089) (2013). It has been published for some time, but apparently it was only recently uploaded to the SSRN database.

Roberts raises some interesting and important points throughout her article. Expanding on Michelle Alexander's discussion in this New York Times Op Ed, Roberts notes that the criminal justice system is ill-equipped for numerous trials. Alexander notes that if numerous defendants were to refuse to accept pleas and insist on taking their cases to trial, prosecutors would be unable to prosecute all of the cases.

I think that the proposal of taking many cases to trial raises some ethical issues -- lawyers must communicate plea deals to their clients, and if the client wishes to take the deal, it would be unethical for the lawyer to refuse and take the case to trial. In many cases, a defendant might want to take a favorable deal, especially if they think that it is unlikely that they will prevail at trial. While a broader goal of crashing the system may appeal to scholars and some attorneys, defendants will probably not care as much about the whole system as they do about their individual cases.

Roberts's suggestions are ultimately less dramatic than the title of her article suggests, and she therefore avoids some of these ethical pitfalls. Roberts advocates a focus by defense attorneys, law school clinics, and pro bono law firm lawyers on particular classes of misdemeanor cases. She also notes that defense attorneys should emphasize that criminal convictions carry a large number of collateral consequences. While these strategies may avoid ethical quandaries, they are hardly the "crash" of the system that the article's title foreshadows.

While it is good for Roberts to point out the consequences of misdemeanor convictions, one particular claim that she makes is so far off base that it overshadows that portion of her paper. Roberts, at one point, writes:

[I]t is one thing to say a person does not need a lawyer to keep him out of jail o a public urination case. It is quite another to say he does not need serious counseling, from his own lawyer, about how, if he is in California, pleading guilty to public urination leads to lifelong sex offender registration.
The legal support for this claim is provided in this portion of the footnote following that second sentence:

See Cal. Penal Code § 290(b)-(c) (West 2012) ("Every person described in subdivision (c), for the rest of his or her life while residing in California . . . shall be required to register . . . in accordance with the [Sex Offender Registration] Act. The following persons shall be required to register . . . [persons convicted under] subdivision 1 or 2 of Section 314 . . . "); Cal Penal Code § 314(1) (West 2012) ("Every person who willfully and lewdly, either: Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby . . . [is guilty of a misdemeanor].") (alterations in original).
This is an instance where the text of the law looks like it might support what Roberts is saying, but where the actual elements of the crime disprove Roberts's point. In the unfortunately named case of In re Smith, the California Supreme Court noted that a conviction under California Penal Code section 314 (indecent exposure) requires more than mere exposure of private parts:

From the foregoing definitions and cases the rule clearly emerges that a person does not expose his private parts ‘lewdly’ within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront. (footnote omitted).
For a more recent reiteration of that same rule, see People v. Earle (2009) 172 Cal.App.4th 372, 391-392. These cases make it clear that the "willfully and lewdly" portion of the statute adds a specific intent element to the crime. A person is only guilty of indecent exposure if that person exposes himself or herself and draws attention to his or her exposure for the purpose of sexual arousal, or for the purpose of annoying others.

Most instances of public urination will not involve the specific intent element of the indecent exposure crime. Rather, public urination would be more properly prosecuted under Penal Code section 370, which defines a "public nuisance" (See People v. McDonald (2006) 137 Cal.App.4th 521, 534-539). Absent the specific purposes of sexual arousal or annoying others, public urination is not indecent exposure, and is therefore not a crime requiring sex offender registration. It is therefore misleading for Roberts to insinuate that sex offender registration is an inevitable consequence of a public urination conviction.

While my critique of this one particular point is narrow, I think that it is worth mentioning because these limited, yet blatant, mistakes can cast a disproportionate shadow over an otherwise notable piece. My criticism of Roberts's argument is not limited to this single statement, and I have indicated my broader concerns with her argument at the beginning of this post. But I think that law journal editors must be on the lookout for statements like this. An author's larger argument may invite controversy, but it is the job of editors to ensure that the controversy remains focused on the larger argument, rather than flaws in the details.

Lastly, it is important to point out that Roberts is not alone in making this mistake. A quick Google search reveals numerous sources like Business Insider (via Human Rights Watch) claiming that public urination convictions require sex offender registration in California. These sources also rely on an overly broad reading of Penal Code section 314(1)-(2) (and on similarly incorrect readings of other states' statutes). It is unfortunate to see these sources perpetuating this misleading claim.

Tuesday, November 4, 2014

Proposition 47 Passes in California

So reports the LA Times:

Penalties for common drug and theft crimes in California will be reduced from potential felonies to misdemeanors, shortening the time some offenders spend behind bars. 
Crimes covered by the measure include drug possession and the following offenses when less than $950 is involved: shoplifting, check and credit fraud, forgery, theft and possession of stolen goods. 
As with other misdemeanors, the new maximum sentence will be one year in jail, down from a maximum of three years. Those with histories of violence or sex offenses will be ineligible for the lighter sentences.
You can find the full text of Proposition 47 (Prop 47) here, on pages 7-11.

Regarding theft crimes, Prop 47 adds several new Penal Code sections relating to theft, one of which states:

490.2. (a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. 
(b) This section shall not be applicable to any theft that may be charged as an infraction pursuant to any other provision of law.
This is bad news for those prosecutors who have made their names prosecuting felonies involving stolen avocados and fruits (PC 487(b)(1)(A)), fish and mollusks (PC 487(b)(1)(B)(2)), horses and pigs (PC 487a(a)), dead horses (PC487a(b)), and gold dust and quicksilver (PC 487d). Before Prop 47, theft of those items valued at an amount less than $950 could have been grand theft, and therefore could have been charged as a felony. But now, the value of those stolen items will need to exceed $950 for a felony to be charged. The same is true of situations where a defendant defrauds public housing services -- while a loss of $400 was previously sufficient to prove a potentially felonious grand theft, that amount has now been increased to $950.

It is important to note that contrary to the broad language used by the LA Times, the reduced sentencing provisions will apply to numerous people who have a history of violent convictions. Under Prop 47, the only people exempt from the reduced sentencing provisions will be sex offenders and those with a prior conviction listed under Penal Code 667(e)(2)(C)(iv). Here is that list of qualifying offenses:

(I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. 
(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. 
(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. 
(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. 
(V) Solicitation to commit murder as defined in Section 653f. 
(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. 
(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. 
(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.
It is also worth noting that Prop 47 adds section 1170.18 to the Penal Code, which makes the reduced sentencing provisions retroactive. Section 1170.18 lays out the procedure for those serving sentences or those who have already served their sentences to petition to have felony convictions reduced to misdemeanors.

For those who are serving sentences for felony convictions that Prop 47 reduces to a misdemeanor, section 1170.18 requires that a court reviewing a petition for a sentencing reduction grant the petition unless the defendant poses "an unreasonable risk of danger to public safety." Section 1170.18(c) provides a very narrow definition of this phrase:
As used throughout this Code, “unreasonable risk of danger to public safety” means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.
This means that a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk that the defendant will commit one of the specific crimes in the list provided above. While there may be evidence that a defendant is indeed a dangerous person, it would likely be much more difficult to show that a defendant is likely to commit one of those particular, heinous crimes.

I noticed that section 1170.18(c) applies to the use of "unreasonable risk of danger to public safety" "throughout this Code," which presumably means that if this phrase appears elsewhere in the penal code, it is now defined by section 1170.18(c)'s very narrow definition.

I looked into whether this broad phrasing would have any impact on other laws. I found that while Prop 47 seemed to affect another statute, the deadlines included in that other statute effectively cancel out any impact that Prop 47's broad language would have. I go into the technical details of this investigation after the break, but in summary: Prop 47's broadly phrased section 1170.18(c) does not appear to have a significant effect on other sections of the Penal Code.

Monday, November 3, 2014

Dirks, Daggers, and California Penal Code § 21310

California Penal Code section 21310 prohibits people from carrying a concealed "dirk or dagger" on their person. The crime is a "wobbler" meaning that it can be charged as either a misdemeanor or as a felony, since a violation of this law is punishable by imprisonment "pursuant to subdivision (h) of [Penal Code] Section 1170."

In this post, I delve into the meaning of this statute. My goal is to point out the intricacies of applying this seemingly simple law. I also raise questions about some of the older case law interpreting this statute and ask whether it would still be good law today in light of the changing language of the law.

For the California Penal Code's definition of "dirk or dagger," one should look to section 16470, which states:

As used in this part, “dirk” or “dagger” means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. A nonlocking folding knife, a folding knife that is not prohibited by Section 21510, or a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position.
It would seem, from this section, that the definition of "dirk" or "dagger" is fairly broad, and encompasses a number of sharp objects that could be used as stabbing instruments.

Before delving into the layers of definitional peculiarities that the case law heaps onto this statute, it is important to note that in order to violate this statute, it is not enough that somebody simply carries and conceals one of these sharp objects. CALCRIM Jury Instruction 2501 specifies that a defendant must know that the device could be used as a stabbing weapon. You can read over the full instruction here, beginning at page 1645 of the pdf. Evidence that a defendant knew an object was dangerous could likely be established through the defendant's acknowledgment of the object's dangerous nature -- such as an admission that the defendant uses the item for self-defense.

While Penal Code section 16470 seems to provide a broad definition, it is important to note that the case law interpreting the definition of "dirk or dagger" adds some wrinkles to the analysis. In People v. LaGrande (1979) 98 Cal.App.3d 871, 873, for instance, the California Court of Appeal held that "an unaltered awl is not a dirk or dagger as a matter of law." Here's a picture of an awl, courtesy of The Hunger Games Wiki:

Sovereign Citizen or Law Student?

In an effort to receive more notifications of peculiar news stories, I recently set up a Google alert for "sovereign citizen." One story I received today linked to this article from The Police Chief, which describes how officers should approach sovereign citizens in traffic stop situations.

The article notes that many sovereign citizens are not dangerous, but points out that dealing with them can be a tricky undertaking. The article suggests how officers may interact with sovereign citizens without causing the situation to escalate.

One portion of the article, however, struck me as particularly interesting because it struck me as something that would apply just as easily to law students as it would to sovereign citizens. The paragraph on "Officer Safety on Traffic Stops" begins:

Recognize danger signs. Many sovereigns are public about their beliefs and will advertise them on their vehicles. “No Trespassing” or “Don’t Tread On Me” signs or obviously unofficial license plates can warn an officer of a possible encounter with a sovereign. Officers must approach these individuals with a heightened sense of caution and request backup immediately.
Admittedly, this bit of advice will often be inapplicable when the person pulled over is a law student, especially if they are a law student from my alma mater. But the paragraph goes on:

The most common tactic for sovereigns is a steadfast refusal to provide information or comply with simple instructions. They may respond to any question with a counterquestion like, “Under what authority are you detaining me?” They also may even produce an official-looking questionnaire with distracting content like, “Will public servant read aloud the portion of the law authorizing the questions public servant will ask (yes or no),” to delay and confound the officer.
At this point, the article blurs the line between sovereign citizens and law students who have taken a criminal procedure course. In law school, I recall that my classmates who learned about the consent exception to the Fourth Amendment's warrant requirement and the breadth of the Fifth Amendment's protection against self-incrimination often noted that they would put these rights into practice in future encounters with the police.

One would hope that officers would not equate the enunciation of constitutional rights with sovereign citizenry. I suspect that officers are able to make this distinction, however, since many sovereign citizens apparently provide officers with questionnaires and do all sorts of other strange things.

Thursday, October 30, 2014

Judges: Don't Be Afraid to Give Out Candy on Halloween

From Texas Supreme Court Justice Don Willett's wonderful Twitter feed, I learned about this entry in the American Judges Association Blog. It reports on this 2013 story from the Milwaukee, Wisconsin Journal Sentinel. From the article:

Jimmie C. Green, 31, was convicted of a 2009 drive-by gang shooting in Racine that killed a 12-year-old boy. As part of of his appeal, he claimed he might have been prejudiced by the trial judge passing some leftover Halloween candy to the jury.
More specifically, Green claimed his attorney was deficient for not moving for a mistrial when he learned that the jury had sent a thank-you note to the judge for the candy. 
"Green argues that this indirect contact may have caused the jury 'to view Mr. Green’s case as a ‘we vs. them’ matter,' especially given the gang-related evidence," the court wrote in a per curiam decision
. . .

Apparently, the judge had given the candy to the bailiff to give the jury, not intending for jurors to know where it came from. But the bailiff mentioned the treats were courtesy of the judge. 
"The record demonstrates that the trial court was well aware of the prohibition against ex parte communication with the jury and avoided any direct contact," the appeals court found. "There is nothing improper about a neutral body providing leftover candy to the jury through the bailiff."
Unfortunately, this case says nothing about judges providing attorneys with Halloween candy. But if a judge were to provide candy to attorneys on all sides of the case he or she was presiding over, I suspect that this evenhanded treatment would avoid any appearance of bias.

Moreover, a quick perusal of the California Code of Judicial Ethics reveals numerous mentions of gifts, but the Code notes that "gifts" are defined as things "of value." If you were to ask me, this would clearly apply to candy, but an ethics board might not share my priorities. Moreover, the Code of Judicial Ethics places numerous restrictions on judges' receipt of gifts, but there seems to be a  lack of discussion regarding judges' giving gifts. So it appears that my candy recommendation may survive ethical scrutiny.

So judges, feel free to give candy to attorneys as well as jurors! At the very least, this practice may result in some interesting judicial ethics test cases.

CONFLICT OF INTEREST ALERT

The author of this post frequently appears in court in front of judges who, if they were to follow the author's recommendations, would give candy to the author. Therefore, the claims and recommendations in this post should at least be taken with a grain of salt -- and it may be even more prudent to regard every claim in this post as entirely untrue.

Wednesday, October 29, 2014

FAA Criminalizes Flying Drones Over Stadiums During Games

So reports the Associated Press. From the article:

Operators who fly drones or model planes near or over large sports stadiums and auto racetracks are breaking the law and can be fined and imprisoned for up to a year, the Federal Aviation Administration warned in a notice posted on the agency's website. 
The notice marks the first time the FAA has sought to criminalize the use of drones and model planes, attorneys representing drone users said. 
The notice, posted on Monday, updates a previous notice to pilots warning that aircraft are prohibited from flying below 3,000 feet and within 3 miles of a Major League Baseball, National Football League and NCAA Division I college football game for national security reasons. The NSCAR Sprint Cup, Indy Car and Champ series auto races are also included. The prohibition extends from one hour before the events until one hour after. 
The original version of the notice was issued shortly after the Sept. 11, 2001, terrorist attacks and has been previously updated. The original and most recent prior version of the notice, issued in 2009, make no mention of drones or other remotely controlled aircraft.
The article points out that officials and sports teams are concerned that drones could be used to film games and that drones could crash into players or spectators. The article quotes Brendan Schulman, who argues that this law would not add any meaningful protections against terrorism.

I think that this law is sensible, and I think that it is important to acknowledge the law's limits before rushing to criticize it. The law only applies to stadiums that seat 30,000 people or more, and Schulman states that this covers about 150 stadiums in the United States. Moreover, the law only prohibits drone use near sports stadiums during sport events, and for a one hour window before and after the events. That means that even stupid drone use like this would not be covered by the law, since that drone use did not take place during (or right before or after) a game.

Additionally, while I agree with Schulman that this law might not do much to prevent terrorist activities, I think that the risk of drones falling and striking spectators or players warrants this restriction. Any fan of Iowa football will tell you that football players already have enough to worry about when it comes to mechanical devices falling onto the field. And with the dense traffic that precedes and follows sport events, and the large crowds of people present during these events, the risk of a falling drone crashing into somebody is multiplied.

Alaska Law Purports to Restrict Government Drones, But Does it Really?

Earlier this summer, Alaska's governor signed HB 255, a bill regulating the government's use of drones. As of October 26, that bill is now law.

You can find the full text of the bill here. The most noteworthy portion of the bill adds Alaska Statutes sections 18.65.900 - 909, which are the provisions pertaining to government drone use. Last I checked, these statutes are still not up on Westlaw or on any website displaying the Alaska Statutes, but the legislature's website makes it pretty clear that this bill was signed into law and that its effective date was three days ago. I will therefore refer to Alaska's drone law by the numbers of the sections that HB 255 added to the statutes.

Privacy advocates typically argue that restrictions on government drone use protect citizens' privacy, since drones could be used to undertake continuous surveillance of people's public movements and homes. Privacy advocates argue that warrants should be required for law enforcement agencies to use drones.

At first glance, it looks like privacy advocates have gotten what they want with Alaska's drone law. Section 18.65.900 prohibits government drone use unless that use falls under the exceptions specified in the bill. Section 18.65.902(1)(A) states that government agencies may use drones in criminal investigations as long as the drone use takes place "under the express terms of a search warrant issued by a court."

But Section 18.65.902(1)(B) states that government agencies can use drones for criminal investigations as long as the drone use is "in accordance with a judicially recognized exception to the warrant requirement." As I have previously discussed at length in the context of California law, and in other discussions of drone laws here and here, this sort of provision effectively removes any meaningful restriction that this law could have on law enforcement drone use. Under existing Fourth Amendment case law, police do not need a warrant to track somebody's movements from the air, nor do they need a warrant to conduct surveillance of a person's yard as long as the police are flying in commonly used airspace.

Because the Alaska law permits existing judicial exceptions to the warrant requirement, the bill would not meaningfully restrict law enforcement agencies from using drones to track people's public movements or conduct surveillance of people's homes. While law enforcement agencies may feel that this is a favorable outcome, it carries the risk of putting more pressure on judges to restrict exceptions to the warrant requirement in cases of government drone use -- which could cause this law's broad allowance on government drone use to backfire.

This is also not to say that privacy advocates haven't gained anything through this legislation. Section 18.65.901(a)(5)-(6) would require law enforcement agencies to keep records of their drone use, which would include the time, date, and purpose of the flights, and be open to audit. If the fears of privacy advocates were realized, and the government ended up using drones for pervasive surveillance, this use would be reflected by these records, which could prompt policy changes in the future.

Additionally, I think that this law could have been better drafted. Parts of the law are written in such a slipshod manner that they have substantive implications for the law's operation. Consider, for example, section 18.65.901(a)(7), which requires law enforcement agencies to "establish a method for notifying the public of the operation of an unmanned aircraft system, unless notifying the public would endanger the safety of a person."

Does this mean that law enforcement agencies will be required to use this notification method when the method is in place? It doesn't say that. But if the law did require the use of that notification method, would notification be required in all cases where the "safety of a person" was not endangered? This would seem to limit the effectiveness of drone use in, say, drug crime investigations if the notification happened before, rather than after, the use of the drone. And if notifying the public of the government's drone use would endanger the safety of a person, should law enforcement agencies not notify the public, or should they cease establishing a method for notifying the public altogether? The wording of the subsection seems to call for the latter meaning.

Finally, it seems downright inconsiderate to those reading the statute to require a search warrant for law enforcement drone use in criminal cases, but then permit that drone use in non-criminal situations where no "unwarranted" invasion of privacy will occur. While I get the meaning of this subsection, and while I think that this section of the statute can be applied without any serious problems, the inconsistent uses of the term "warrant" in the same subsection of the law lead me to conclude that the drafters should have put a bit more thought into the wording of the statute.