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Friday, January 30, 2015

Would Texas Bill H.B. 868 Make it More Likely that Teachers Will Shoot Students?

Commentators at Daily Kos and ThinkProgress believe it will. From the ThinkProgress article:

People who are concerned about the use of excessive force by law enforcement may have to deal with another fatal can of worms. If Texas state Rep. Dan Flynn (R) gets his way, teachers will have the right to use deadly force against students in Texas classrooms, in the near future. 
The Lone Star State already permits teachers to have firearms in the classroom, but H.B. 868, also known as the Teacher’s Protection Act, would authorize instructors to use “force or deadly force on school property, on a school bus, or at a school-sponsored event in defense of the educator’s person or in defense of students of the school that employs the educator.” Instructors would also have the right to use deadly force “in defense of property of the school that employs the educator.” Moreover, civil immunity would be granted to those who use deadly force, meaning they would not be liable for the injury or death of student.
Such a bill could have disastrous consequences for students of color. A coalition of civil rights organizations found that black and Latino students face much higher rates of disciplinary action in schools, which exacerbates the so-called school-to-prison pipeline. By extension, if students of color are already disproportionately targeted by school authorities for their behavior, they could also become the targets of deadly force used by educators.
Additional coverage from the Houston Chronicle is available here. Most discussion of the law that I have been able to find is highly critical, arguing that teachers will be much more likely to shoot students if this bill is passed.

But what does the proposed law really permit? The full text of the H.B. 868 can be found here. The bill states:

Thursday, January 29, 2015

FAA: Superbowl Stadium is a "No Drone Zone"

I just came across this video released by the Federal Aviation Administration (FAA) that declares the Superbowl Stadium a "No Drone Zone."

Frank Bi at Forbes writes about the video here, and notes that the FAA has declared a 10-mile no-fly zone around the Superbowl stadium. This ban applies to unmanned aircraft systems, and therefore applies to drones.

This sort of public service announcement is an indicator of the rise in drone use and popularity. And I think that while it may come across as a bit corny, it sends the right message, since people may do many stupid things with drones near stadiums.

Wednesday, January 21, 2015

Drone Carrying Meth Crashes Near US - Mexico Border

So reports U-T San Diego. The article begins:

A small aerial drone crashed about two miles from the U.S. border in Mexico carrying several pounds of methamphetamine, Mexican police said Wednesday. 
The discovery at a shopping mall parking lot in Tijuana, within walking distance of the U.S. border crossing, raises the prospect of a new, high-tech front in the struggle between drug gangs and law enforcement.
In a previous post, I highlighted how drones have been used in attempts to smuggle contraband into prisons.

Politicians may use this incident to call for increased regulations on drones, but this would probably be an overreaction. The article goes on to note that drones are a poor choice for would-be drug smugglers:

Amy Roderick, a spokeswoman for the U.S. Drug Enforcement Administration in San Diego, said drones provide little economic incentive for smugglers. 
“This method will only allow a small amount of drugs to be flown at a time,” she said. “That coupled with the ease of detection, does not make this method very profitable to these drug trafficking organizations whose motivation is money.”
It will be interesting to see if drug-carrying-drone incidents become more commonplace. Drones are indeed easy to detect and incapable of carrying heavy loads. But drone technology is becoming increasingly popular, and I suspect that there are at least several dim-witted, trendy drug smugglers who will turn to this technology.

Tuesday, January 20, 2015

Police Radars and the Fourth Amendment

Brad Heath at USA Today has this story discussing law enforcement use of radar devices that can determine whether people are present within a house. Heath notes that this technology was mentioned in the recent Tenth Circuit case, United States v. Denson.

From Heath's article:

At least 50 U.S. law enforcement agencies have secretly equipped their officers with radar devices that allow them to effectively peer through the walls of houses to see whether anyone is inside, a practice raising new concerns about the extent of government surveillance. 
. . .

The radars work like finely tuned motion detectors, using radio waves to zero in on movements as slight as human breathing from a distance of more than 50 feet. They can detect whether anyone is inside of a house, where they are and whether they are moving.
In Denson, the Tenth Circuit held that officers' entry and search of a home was constitutional. In that case, officers used a radar device to determine whether anybody was present inside the home. The court declined to rule on the constitutionality of this device, but noted that significant Fourth Amendment problems would have arisen if the evidence the radar device revealed had been crucial to the government's case. From the opinion:
Separately and as we alluded to earlier, the government brought with it a Doppler radar device capable of detecting from outside the home the presence of “human breathing and movement within.” All this packed into a hand-held unit “about 10 inches by 4 inches wide, 10 inches long.” The government admits that it used the radar before entering — and that the device registered someone’s presence inside. It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions. New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights. See, e.g., Kyllo v. United States, 533 U.S. 27, 33-35 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment). Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings. We have little doubt that the radar device deployed here will soon generate many questions for this court and others along both of these axes. At the same time, in a criminal proceeding like ours the government is free to rely on facts gleaned independently from any Fourth Amendment violation. See Murray v. United States, 487 U.S. 533, 537 (1988). And in our case Mr. Denson acknowledges that all of the facts we’ve outlined above were discovered independently of the potentially problematic radar search — a fact that requires us to defer those questions to another day.
Under Kyllo v. United States, law enforcement officers undertake a Fourth Amendment search when they use "a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion" and this search is "presumptively unreasonable without a warrant."

Kyllo may no longer be good law with regard to infrared scanners because this technology is becoming increasingly popular and therefore more likely to be "in general public use." FLIR, the company that manufactured the camera at issue in Kyllo, is now marketing an infrared camera that people can attach to their iPhones.

But even if infrared cameras are so popular that their use is no longer considered a Fourth Amendment search, police radars may fall under Kyllo's prohibition. Radars used to detect human movement or breathing are most likely not in general public use. So even if Kyllo is no longer good law with regard to the infrared technology it discussed, its rule may live on to apply to new forms of technology. Police radars may end up being one such form of technology.

Thursday, January 15, 2015

Fourth Amendment Standing and Familial DNA Searches

DNA technology that identifies people based on their genetic profiles is an effective tool for solving crime. DNA can exonerate those who are thought to be guilty and can identify people responsible for crimes when other means of investigation have failed. The United States Department of Justice states that DNA is a "powerful criminal justice tool."

While DNA technology is effective, courts and commentators have noted that the technology raises privacy concerns. In the recent case of People v. Buza, the California Court of Appeal held that a California law mandating the collection of felony arrestees' DNA violated the California Constitution. And commentators' critiques of DNA technology make frequent appearances in law journals (see here, here, and here for some examples of arguments about DNA technology's potential to invade privacy).

One aspect of DNA technology that concerns courts and commentators is "familial searching" of DNA samples. Through familial searching investigators may take one sample of DNA and compare its genetic markers to other samples they have on file in criminal cases. DNA profiles that are extremely similar to unknown DNA samples may indicate a familial relationship, and may prompt investigators to focus on the family members of a person whose DNA sample they have already collected.

For example: investigators may collect a DNA from one person - "Defendant" - as part of an arrest procedure or through an agreement with that person. Defendant's DNA may be extremely similar, but not identical, to a sample of DNA collected from the scene of an unrelated crime. This may mean that Defendant is related in some way to the unknown person who committed that crime - "Suspect" - and investigators may turn to Defendant's family members to determine whether one of them is the Suspect in the outstanding crime. 

For those seeking further clarification, the first several paragraphs of this note by Amanda Pattock provides an engaging anecdote of how familial DNA searches may identify criminals.

In this post, I discuss whether people identified through familial DNA searches have grounds to challenge the DNA search under the Fourth Amendment. I argue that these people do not have a viable Fourth Amendment argument because they lack standing to challenge the search. While recent cases like Riley v. California and United States v. Jones suggest that government investigations obtain large amounts of information about a single person may constitute Fourth Amendment searches, the standing barrier is a significant, independent obstacle to Fourth Amendment claims.

Tuesday, January 13, 2015

Hill on Inmates' Need for Federally Funded Lawyers

Over the weekend, I noticed that the first issue of Volume 62 of the UCLA Law Review is now available online. While there are several articles that I am planning to read in the near future, I want to highlight a comment by a former classmate of mine.

Tasha Hill's comment, Inmates’ Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine With Implicit Bias to Eviscerate Inmate Civil Rights, appears in this issue of the UCLA Law Review and can be read and downloaded in full here. You can find Hill's previous work on sexual abuse in California prisons here. In this most recent paper, Hill delves into a sorely underdiscussed aspect of indigent representation. Hill's writing is approachable and illuminating, and should be of interest to readers in all fields -- and particularly those working in the fields of criminal law and prison law. Here is the abstract:

The United States incarcerates a larger percentage of our population than any other country. Minority populations make up a substantially disproportionate percentage of those incarcerated. For a variety of reasons, violence perpetrated against incarcerated persons, including sexual assault, is endemic and inmates have very limited opportunities to protect themselves. The state has an obligation to protect these people whom it has chosen to strip of the ability to protect themselves and to provide for inmates’ other “basic human needs” such as adequate nutrition and housing.  
The only legal avenue of redress available for inmates to enforce their constitutional rights lies with the courts. But in recent decades, inmates’ access to the courts has been undermined by Congressional acts (principally the Prison Litigation Reform Act) and Supreme Court decisions (such as Casey and Iqbal), leading to a sharp reduction in the success rate of meritorious inmate Constitutional claims. Additionally, pro se inmates, who file the vast majority of claims, have substantially lower success rates in civil rights cases than do represented inmates. 
I therefore propose that a new program called Prison Lawyers be designed and implemented. Prison Lawyers would work for the state, much like public defenders do, and would guide inmates through increasingly complicated administrative grievance processes to achieve exhaustion. Should grievances not be successfully settled, Prison Lawyers would then help inmates file civil rights claims in federal courts. This system would potentially save the state money by reducing the courts’ burden in processing pro se inmate civil rights claims, and would ensure the enforcement of constitutional carceral conditions.
Hill suggests that the the Ninth Circuit could fund a "circuit-wide" Prison Lawyers program that could take up the task of representing inmates who file lawsuits over poor conditions and mistreatment. Noting that most inmate constitutional claims are filed in federal courts, Hill argues that as few as 68 lawyers could take on this role based on the current number of federal cases inmates file. While this program would need to be funded, Hill argues that the program could save money in the long term by creating stronger incentives for prisons to comply with constitutional requirements.

There are indeed some unanswered questions, and Hill recognizes this. It is unclear what the Prison Lawyers program would do to the number of lawsuits filed. Prisoners who may have formerly refrained from filing lawsuits may think that their prospects of success are improved if they are represented by an attorney. This may lead to a heavier caseload for prison lawyers than current numbers suggest.

At the same time, the costs such a program could save shouldn't be dismissed. Beyond long-term savings that may result from changing prison conditions, the Prison Lawyers program could be a filtering device that could weed out frivolous and malicious claims before they reach the courts. Attorneys could inform their clients why a claim lacks merit or redirect their clients' efforts toward proper administrative channels. This could lead to a twofold reduction in workloads: it would lessen the burden on the courts that would have handled and rejected these claims, and of government attorneys who would have responded to these claims.

Hill sheds light on an under-scholared area of law and makes concrete proposals. People working in the field of prison law should take note of this comment.

Tuesday, January 6, 2015

It is Illegal to Dye Live Chicks, Rabbits, and Ducklings in California

So says subsection (b) of California Penal Code section 599. The section in full states:

599. Every person is guilty of a misdemeanor who: 
(a) Sells or gives away, any live chicks, rabbits, ducklings, or other fowl as a prize for, or as an inducement to enter, any contest, game or other competition or as an inducement to enter a place of amusement or place of business; or 
(b) Dyes or otherwise artificially colors any live chicks, rabbits, ducklings or other fowl, or sells, offers for sale, or gives away any live chicks, rabbits, ducklings, or other fowl which has been dyed or artificially colored; or 
(c) Maintains or possesses any live chicks, rabbits, ducklings, or other fowl for the purpose of sale or display without adequate facilities for supplying food, water and temperature control needed to maintain the health of such fowl or rabbit; or (d) Sells, offers for sale, barters, or for commercial purposes gives away, any live chicks, rabbits, ducklings, or other fowl on any street or highway. This section shall not be construed to prohibit established hatchery management procedures or the display, or sale of natural chicks, rabbits, ducklings, or other fowl in proper facilities by dealers, hatcheries, poultrymen, or stores regularly engaged in the business of selling the same.
I have not had a chance to look into the legislative history behind this section, but I thought that it was interesting enough to share. Section 599 is located amid a number of other laws prohibiting other animal-related conduct, It is also worth pointing out that this conduct is a misdemeanor, meaning that somebody who carries out this conduct may face a maximum sentence of six months in jail and/or a fine of $1,000.

A final note: this particular section is limited to "chicks, rabbits, ducklings, or other fowl," and does not cover dogs, cats, or other household pets. As I have mentioned before, however, California's laws relating to animals can be a tangled and complicated subject to research. While I do not see any bans on dying dogs or cats in the statutory vicinity of Penal Code section 599, there may indeed be other laws elsewhere that prohibit that sort of conduct.