Iowa's Law Targeting "Critical Race Theory"

A few weeks ago, Iowa's governor signed a law that she claimed would address the teaching of "critical race theory." Shortly after she signed the bill into law, the Des Moines Register reported:

Iowa Gov. Kim Reynolds signed a new law that she said will target the teaching of critical race theory and other concepts in government diversity trainings and classroom curriculum.

“Critical Race Theory is about labels and stereotypes, not education. It teaches kids that we should judge others based on race, gender or sexual identity, rather than the content of someone’s character,” Reynolds said in a statement. “I am proud to have worked with the legislature to promote learning, not discriminatory indoctrination.”

Critical race theory, a decades-old legal theory that examines how slavery's legacy continues to influence American society, is not specifically named in the new legislation. But the law would ban teaching certain concepts, such as that the U.S. or Iowa is systemically racist.

The new law, House File 802, goes into effect July 1.

Reynolds' signing comes as other Republicans across the country have said they want to eliminate teaching critical race theory and associated concepts from classrooms. Iowa is among more than a dozen states that have considered legislation this year aimed at eliminating similar concepts from classroom curriculum.

That same Register article notes that Iowa's law is based "nearly word for word" on an executive order issued by the Trump Administration (that is now repealed) that banned certain forms of diversity training for federal contractors. The Register's prior reporting on that order is here, the order itself is here.

There are a number of glaring practical problems with the law, which appear to be based, in part, on the bill's origin in a ban on training for contractors. For one, the law contains no penalty or disciplinary provisions, so it is unclear what would result from a violation of the law. The bill also includes prohibitions on certain types of training, but also includes restrictions for school curricula. While the restrictions on training are somewhat explicit, the restrictions on school districts and their curricula are woefully vague.

These defects, and others, are addressed in the remainder of this post, which walks through the law and tries to make sense of what is being restricted.

Kansas Man Demands Trial By Combat in Iowa Court

From the conversations, texts, emails, and messages of dozens of friends, coworkers, and former classmates (all of whom are dead-on when it comes to pinpointing my legal interests), I learned about this story of a Kansas man who demanded trial by combat in an Iowa divorce case.  The story was first reported a few days ago, but I've been busy.

Those who know me, who have read this blog, or who have read papers that I have co-authored should not be surprised that this case is right up my alley. 

The Des Moines register reports:

A Kansas man has asked an Iowa court to grant his motion for trial by combat so he can meet his ex-wife and her attorney "on the field of battle where (he) will rend their souls from their corporal bodies." 

David Ostrom, 40, of Paola, Kansas, claims in court documents that his ex-wife, Bridgette Ostrom, 38, of Harlan, has "destroyed (him) legally." 

He asked the Iowa District Court in Shelby County to give him 12 weeks "lead time" in order to source or forge katana and wakizashi swords, as first reported by the Carroll Times Herald. 

"To this day, trial by combat has never been explicitly banned or restricted as a right in these United States," Ostrom argues in court records, adding that it was used "as recently as 1818 in British Court."

When reached by phone Monday, Ostrom told the Des Moines Register that he got the idea after learning about a 2016 case in which New York Supreme Court Justice Philip Minardo acknowledged that duels had not been abolished.

The story has been widely reported, but most of the other articles rehash the same points. Kevin Underhill at Lowering the Bar provides good legal coverage here, including a discussion of the relevant case law that Iowa's court would likely cite to reject Ostrom's request.

Here's a report on the story from KCTV5 News. It includes a video of an interview with Ostrom, who claims that "I'm not interested in physically causing harm to anyone." This is something of a shift in tone from the goal of rending souls from "corporal bodies" expressed in his moving papers.

(Ostrom later admitted that his demand contained a spelling error and that he had intended to write "corporeal bodies.")

If you want a copy of Ostrom's papers, or the response filed by his ex-wife's attorney, you're out of luck because none of the news outlets that are reporting and re-reporting this story have deigned them worthy to include for download in their stories. As far as I can tell, they cannot be obtained online. I'm hesitant to ask my firm's messenger service to send a runner to Shelby County, Iowa to obtain a copy of the papers, but I have not ruled the option out.

But back to the case. Unsurprisingly, Ostrom never had much of a chance of success in his motion. Indeed, the judge refused to consider his filing, or the response filed by his ex-wife's attorney in light of both parties' failure to abide by procedural requirements. Just because a form of dispute resolution is not specifically banned does not mean that a party can simply demand it once the case is being litigated in court.

Of course, if two parties are negotiating a dispute resolution provision in a private contract, this might be different. An arbitration by combat provision has been included in at least one contract of which I am aware. This 2016 New York Times article describes the contract behind the ownership of Zuffa, the promotion company that operates UFC:

The two brothers have equal stakes in Zuffa. And while there is no hint of tension between them, a lawyer insisted that their contract needed a dispute-resolution mechanism in case they ever differed over corporate strategy. Lorenzo had an idea: They would fight.

“A sport jujitsu match, three five-minute rounds,” he said. “Dana would be the referee. Whoever won got to vote the other guy’s shares.”

It has never come close to blows, the brothers say. But privately, each says that if combat were required, the other would win. “Frank’s getting ornery in his old age,” Lorenzo said. “Just kidding.”

To my knowledge, no court has litigated whether such a provision would be enforceable.

In the past, Ostrom would have faced the prospect of being barred from public office for engaging in trial by combat, as courts would likely view his proposed sword-fighting approach as a duel. But no longer, as Iowa in 1992 repealed Iowa's constitutional provision that prohibited those who had participated in duels from being eligible to hold public office. Good for them.

The court noted that it would take no action "[u]ntil the proper procedural steps to initiate a court proceeding are followed." For now, it appears that Ostrom's quest to bring swords to the courtroom has failed.

In any event, trial by combat has had yet another moment in the sun. The concept will likely now fade away for another several years until the next go-getter tries, and fails, to resolve a dispute with a legally sanctioned fight to the death. This is the way.

Iowa Supreme Court Approves Innocence-Based Challenges to Guilty Pleas

The Des Moines Register reports on this significant sentencing news:

For the first time, the Iowa Supreme Court has ruled that people who plead guilty to crimes may challenge their convictions if new evidence of their innocence emerges. 

The court ruled Friday in a 4-3 decision in the case of Jacob L. Schmidt, who pleaded guilty in 2007 of sexually abusing his 14-year-old half-brother the year before. Years later, in 2014, Schmidt's half-brother began telling others that the abuse never occurred. 

The court said last week that Schmidt's case should be returned to the district court in Woodbury County, which is now allowed to consider the new evidence of Schmidt's innocence. 

"It is time that we refuse to perpetuate a system of justice that allows actually innocent people to remain in prison, even those who profess guilt despite their actual innocence," Justice David Wiggins wrote in the majority opinion, which was joined by Chief Justice Mark Cady and justices Daryl Hecht and Brent Appel.

The ruling is "definitely the first time that the Iowa Supreme Court has recognized the actual innocence claim," said Brian Farrell, a law professor at the University of Iowa. Farrell is also co-founder and president of the board of directors of the Innocence Project of Iowa, which wrote an amicus brief supporting Schmidt's appeal. 

That makes Iowa one of about 14 states in the country to recognize such claims, said Farrell, who called the ruling "an 8 or 9 on a 10-point scale of significance."

The full opinion is here.

Of particular note is the Court's discussion of the phenomenon of defendants who plead guilty despite their innocence, which begins on page 14 of the opinion. From that analysis:

A plea does not weed out the innocent. Rather, a plea is an explicit agreement [footnote omitted] between the prosecutor and the defendant that “establishes a ‘going rate.’ ” John L. Kane, Plea Bargaining and the Innocent, The Marshall Project (Dec. 26, 2014, 1:05 PM), https://www.themarshallproject.org/2014/12/26/plea-bargaining-and-the-innocent [https://perma.cc/R5FU-Y3T4]. Specifically, “[t]he anticipated sentence is the central concern in the negotiation[,]” but “[t]he problem . . . is that both innocent and guilty defendants are placed in the same pot and the goal is to achieve the appearance of justice, not the realization of it.” Id.; see also Missouri v. Frye, 566 U.S. 134, 144, 132 S. Ct. 1399, 1407 (2012) (“In today’s criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”). Pleading guilty does not automatically mean the defendant is actually guilty. Sometimes, an innocent defendant is choosing the lesser of two evils: pleading guilty despite his or her actual innocence because the odds are stacked up against him or her, or going to trial with the risk of losing and the prospect of receiving a harsher sentence. 

Innocent defendants may also plead guilty in the face of pressure from prosecutors and even their own defense counsels. Today, “our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.” Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books (Nov. 20, 2014). Behind these closed doors, prosecutors have broad discretion: “the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed.” Id.; see also Innocence Project, Why Are People Pleading Guilty to Crimes They Didn’t Commit? (Nov. 25, 2015), https://www.innocenceproject.org/why-are-people-pleading-guilty-to-crimes-they-didnt-commit/ [https://perma.cc/3CEX-WEW2].

The dissenting justices argue that this rule may lead to a flurry of new claims that disturb earlier guilty pleas. Even if these claims arise, the burden they create is likely outweighed by the possibility that some of those earlier guilty pleas were entered into by innocent defendants. (For the intricate calculations involved in these determinations, see N Guilty Men by Alexander Volokh).

Moreover, the need for new claims may be reduced if prosecutors take this new rule to heart. While one hopes that even without the Court's ruling, prosecutors would stay true to their roles as "minister[s] of justice and not simply . . . advocate[s]," this rule may prompt prosecutors to ensure that negotiated pleas are on solid factual footing to minimize the probability of an innocence-based challenge in the future.

Iowa Senate Bill Would Require State Supreme Court Supermajority to Find Laws Unconstitutional

The Des Moines Register reports:

The Iowa Senate narrowly approved a controversial bill Tuesday that says no state law can be held unconstitutional by an Iowa court without the concurrence of at least five justices of the seven-member Iowa Supreme Court. 

Senate File 2282 was approved on a 26-24 vote, sending it to the Iowa House, where it faces an uncertain future. All the votes in favor were cast by Republicans, while the opposing votes came from 20 Democrats, one independent and three Republicans.

Here's the text of the bill:

Pursuant to the provisions of Article V, section 4 of the Constitution of the State of Iowa, the general assembly declares that no statute shall be held unconstitutional by a court of this state except by the concurrence of at least five justices of the supreme court of Iowa.

The Iowa Supreme Court is made up of seven justices, meaning that this bill would require a supermajority of justices to hold that a state law is unconstitutional. Additionally, the bill applies to statutes being held unconstitutional by "a court of this state," meaning that a statute cannot be deemed unconstitutional unless it is ultimately appealed to the Iowa Supreme Court where at least five justices agree that the law is unconstitutional.

This structure of the bill makes some sense, as it avoids the scenario where the Iowa Court of Appeals holds that a law is unconstitutional, and then becomes precedent because it is not appealed to the State Supreme Court. At the same time, the bill would have a strange effect on the status of Court of Appeals' opinions that are not taken up by the State Supreme Court -- as opinions finding state laws unconstitutional that are not reviewed by the Supreme Court would appear to run afoul of the law and therefore be invalid.

Democrats in the Republican-controlled state senate have spoken out against the law, arguing that it seizes power away from the Supreme Court. Republicans agree -- arguing that the courts should not have the power to overturn laws without this additional requirement. For some truly dense commentary, look no further than Senator Jason Schultz:

Sen. Jason Schultz, R-Schleswig, thanked [Senator Julian] Garrett for advancing the bill, saying it's a measure needed in this day and age. 

"Ladies and gentleman, this bill acknowledges that the Constitution is a contract; that the words do not change. What this bill does is say that we are not going to simply have a popularity contest on the constitutionality of a law," Schultz said.

While it isn't really related to the substantive issues, I'm going to break down Schultz's comment, as it demonstrates a stunning failure to grasp what the Senate is doing and how the the Court works. First, Schultz's assertion that the Constitution is a contract is not correct, as the Constitution is a set of rules that govern the basic functions of state government, and also sets forth individual rights that may be used to strike down laws. It's a set of rules that was enacted by popular vote -- not a contract.  Second, even if the Constitution is a contract, it's unclear how the law acknowledges this. Third, the words of the Constitution do change -- the Constitution can be amended.  Fourth, the bill does effectively say there will be a popularity contest on the constitutionality of law in that five, rather than four, justices can still hold a law unconstitutional. The law just has to be "more unpopular" if we are to adopt Schultz's misleading phrasing.

While I don't approve of the law, as it raises some unpleasant memories of woefully misguided backlash against the Court back in 2010, I don't agree with Democratic lawmakers who claim that the bill is unconstitutional. From the Register:

Sen. Matt McCoy, D-Des Moines, said he was troubled by the partisanship that had appeared to develop over the bill, as well as what he described as "the contempt that this Legislature has towards the courts." 

"I have news for you," McCoy said. "This is not going to be constitutional, and Iowans are going to be angry again at this effort to bring partisanship into this process. Make no mistake about it: This is about partisan politics. When the Legislature doesn't get its way, it punishes the courts."

While the bill certainly has an impact on the separation of powers, and while it certainly appears to be a partisan ploy, McCoy is not correct to imply that the bill violates the Iowa Constitution. Article V, Section Four of the Iowa Constitution states that the Iowa Supreme Court shall "constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe." (emphasis added). This section indicates that the general assembly can place restrictions on the court's jurisdiction. This constitutional grant of power to the legislature is reaffirmed by Article V, Section 14, which states that the general assembly has the duty to "provide for a general system of practice in all the courts of this state," meaning that the legislature is charged with making court rules and enacting procedures.

Senate File 2282 would place a limit on the Iowa Supreme Court's ability to hold laws unconstitutional. It is a clear attempt by the legislature (which is now entirely controlled by Republicans) to limit the power of the Court. This attempt smacks of partisan politics, as Iowa conservatives likely still see the Court as a liberal institution following its 2009 decision in Varnum v. Brien striking down the state's law restricting marriage to opposite-sex couples. It's unfortunate to see such partisan fiddling with the mechanics of the legal system and I hope (though I am not optimistic) that the bill will fail in the Iowa House.

The Second Amendment and Legislative "Protection" of Constitutional Rights

This column in yesterday's Des Moines Register by the Editorial Board caught my eye. It begins:

Is state Rep. Chip Baltimore clairvoyant?

The Boone Republican was arrested last week, charged with operating a motor vehicle while intoxicated and possession of a firearm while under the influence of alcohol. Interestingly, less than 10 months ago, he voted to support legislation reducing penalties for toting a gun while drunk. Lucky for him, that bill was signed into law.

According to a police report, Baltimore was stopped by an Ames officer early Friday morning after authorities received reports of a reckless driver traveling northbound on Interstate Highway 35. With his slurred speech and bloodshot eyes, he told the officer he was on his way home after attending meetings in Des Moines, the report said.

. . .  

Last legislative session, Baltimore was among the lawmakers who supported the Iowa Omnibus Gun Law.

Before this law went into effect, carrying a firearm while intoxicated was an aggravated misdemeanor, punishable by up to two years in prison. An OWI conviction provided clear grounds for revocation of a permit to carry a weapon.

The new law, which went into effect July 1, cuts in half potential jail time and allows drunken drivers the ability to keep their permits to carry handguns.

At the time, one Iowa sheriff questioned the change, baffled that state legislators recognized the danger of operating a vehicle while drunk but not carrying a lethal weapon while intoxicated.


“We know alcohol blurs judgment,” said Black Hawk County Sheriff Tony Thompson. “I’m not sure what the driving force was behind watering that down.”

The Register's earlier article reporting Baltimore's arrest is here. Notably, Baltimore was stopped when an officer observed him driving at 55 mph in a 70 mph zone entering a 65 mph zone. For those interested in DUI-related trivia (who isn't?), the National Highway Traffic Safety Administration states that driving at 10 miles or more below the speed limit is an indicator of possible impaired driving. The same is not true of speeding.

 

This story is my quirky introduction for a much broader discussion of misleading rhetoric regarding the "protection" of constitutional rights through legislation. For those only interested in the adventures and apparent foresight of Chip Baltimore (and accompanying DUI trivia), stop reading now!

Boating Under the Influence and Probable Cause

Here's some good news out of Iowa: it appears that incidents involving people boating under the influence of alcohol are on the decline. From this KCRG report:

A total of 78 full time Iowa Department of Natural Resources conservation officers cover Iowa's 99 counties. This summer those officers did get the help from 29 seasonal water patrol officers but that still means full timers have multiple counties under their care. And when you consider around 500 boats may be out on a typical holiday weekend just at Coralville Reservoir alone, catching someone boating under the influence can be a challenge.

. . .

"If a state trooper or deputy officer in the cities, they know 'okay they're going across the lines.' There's no lines on the water. There's no evidence left other than the wake," said [Iowa Department of Natural Resources conservation officer, Eric] Wright.

By late July at Coralville Reservoir only three people had been arrested this summer for the crime. If you think that number is low, you're not alone.

"There's been fairly heavy enforcement on Coralville itself and we're starting to see the effects of it."

Data obtained by I9 through an Iowa open records request shows BWI arrests at Coralville have been on the decline since at least 2014 when 33 people were charged. The numbers statewide show a similar story, arrests did spike however in 2015 when 47 people were arrested. Fast forward to July of this present year and that number drops to 29.

The consequences for boating under the influence are similar if you are caught driving a car drunk in Iowa but if you get a BWI there is nothing stopping you from losing your driving privileges out on the road. In fact, when I9 searched the names of people charged over the years with BWI we found several who also had OWIs on their record as well.

The report is a bit confusing -- particularly the second-to-last paragraph. It is unclear whether the 47 people were arrested statewide or in the Coralville reservoir alone (the context suggests that it is in Coralville alone). With that number in the mix, the claim that arrests have been on the decline since 2014 isn't accurate - rather the arrests seem to have been on the decline since 2015 (assuming 2016 had fewer than 47 arrests, but more than 29).

But I did not highlight this story or spend untold numbers of what could have been billable hours writing this post to slog through numbers. Instead, I was intrigued by Officer Wright's discussion of deciding whether to pull over a boat -- noting that unlike officers who decide to pull over a car, there may not be clear cut instances where the car crosses a lane line. While the Fourth Amendment restricts officers from the unreasonable seizure of vehicles, officers are permitted to stop a vehicle if they have reasonable, articulable suspicion that a crime has occurred -- or "probable cause." Most typically, officers can establish probable cause by observing a traffic violation, like failing to signal, crossing a lane line, or speeding. But what about boats?

A potential basis for stopping a boat is analyzed in depth in the Iowa Supreme Court case of State v. Pettijohn. There, the Court held that an officer's stop of a boat was constitutional because the officer reasonably believed that the operator of the boat was violating Iowa Code 462A.12, which prohibits the reckless, negligent, or careless operation of a vessel, water skis, surfboard, or similar device. The basis for the violation? The defendant was driving a boat while a passenger was dangling her feet in the water near the motor, which the officer knew used an unguarded propeller based on his knowledge of the type of boat that he observed. Section 462A.12 likely operates as a catch all, as officers can likely articulate reasons for stopping boats based on numerous circumstances, including boating in darkness without lights (assuming there aren't laws that already specifically address that), or unsafe speed (particularly with other boats present), or both!  See, e.g., Iowa Supreme Court Attorney Disciplinary Board v. Cannon (attorney suspended from practice of law for various prior alcohol/drug related offenses, including a boating while intoxicated offense in which he was stopped for accelerating "rather quickly" in a five mile per hour speed-limit zone at 10:30 p.m.).

Another potential basis for stopping a boat is mentioned, but not analyzed, in State v. Slade, where officers believed that a boat was over capacity, and stopped the boat for that reason. As it turns out, the boat contained 16 people, but only was designed to hold 14 people. Slade is notable because it involves "Party Cove" at the Coralville reservoir. Having grown up close to that location, were I to testify as an expert on the Fourth Amendment as applied to Iowa waters, I would likely conclude that the mere presence of a boat in that section of the reservoir constitutes probable cause to stop a boat on suspicion of boating under the influence. I doubt that the courts would agree with me, but that's just because the judges that make these important decisions haven't spent enough time out on the reservoir on the weekends.

But perhaps things have changed since I left Iowa.  KCRG notes that only three people had been arrested on the reservoir for boating under the influence by late July this year. This does not sound like the booze-soaked body of water of my childhood memories, and if the arrest numbers reflect a general trend towards less drinking and boating, then it's a trend that I welcome.

A Survey of State Laws Against Glue Sniffing and Driving Under the Influence of Glue

After writing yesterday's post on this story about a man arrested in Cedar Rapids, Iowa for allegedly driving while sniffing fumes from an aerosol can, I decided to do a little more research into glue sniffing laws in other states. As I noted in yesterday's post, Cedar Rapids' ordinance does not apply to any substances other than glue or cement, so any non-adhesive, aerosolized substances that people may inhale to get high are not covered by the ordinance. Additionally, I was unable to find any provisions in Iowa law regarding driving under the influence (operating while intoxicated) that clearly applied to driving while under the influence of inhaled glue or other aerosolized substances.

Cedar Rapids' ordinance banning glue sniffing states:

62.29 - GLUE SNIFFING.

(a) As used in this section the term model glue shall mean any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors.   

(b) No person shall, for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system, smell or inhale the fumes from any model glue; provided, however, that this section shall not apply to the inhalation of any anesthesia for medical or dental purposes.                           

(c) No person shall possess, buy, sell, transfer possession, or receive possession of any model glue for the illegal purposes set forth in subsection (b) hereof.

While I concluded that Cedar Rapids' ordinance did not apply to the conduct described in the article, there are other, more expansive, state laws on glue sniffing that Cedar Rapids may want to imitate if it wants to broadly ban the huffing of fumes from glues and aerosols.

Driving Under the Influence of Glue?

I like to check in on what's happening in my old home state of Iowa, and in doing so today I was drawn to this KCRG story on an (allegedly) very stupid and irresponsible driver:

A Cedar Rapids man was charged with Driving Left of Center and Glue Sniffing.

An officer was traveling westbound in the 4500 block of 1st Avenue East around 5 p.m. on August 29 when they saw a car driven by James Knight, 58, traveling in the left lane veer into the right lane.

The car crossed the dotted line and the driver corrected it, but then crossed the solid yellow line dividing the westbound lanes with the center turn lane.

The officer saw the driver holding a canister and suspected Knight may be huffing. He followed the car and when it stopped, the officer got out of his squad car and approached Knight's car.

The driver appeared to be passed out or had blacked out. When the officer knocked on the window, the driver appeared startled and the car began to roll forward.

The officer told the driver to put the car in park but the driver didn’t seem to understand and appeared to be in some intoxicated state.

The vehicle rolled forward and hit another parked car.

The officer was able to put the car in park. Knight was holding an aerosol can and denied huffing the gases out of the can.

When the story's headline contains "glue sniffing," it's difficult not to click.

Knight's reported behavior is more dangerous than driving over the center line, so it is understandable that the authorities wanted to charge him with something more than simply driving over the center line. Knight probably cannot be charged with driving under the influence (or operating while under the influence, to use Iowa's language) as this statute (Iowa Code 321J.2) is limited to those under the influence of alcohol or drugs. "Drug," is conveniently undefined under Iowa's OWI laws. Unless there is an extremely expansive definition of "drug" elsewhere in the Iowa Code that applies, the language of the OWI statute appears to foreclose charging Knight with this offense, which is most likely why Knight was not charged with OWI.

But does Knight's conduct constitute "glue sniffing?"

To answer this, we need the text of the Cedar Rapids City Ordinance that bans glue sniffing. You can find it here, and the complete text of the ordinance is as follows:

62.29 - GLUE SNIFFING.

(a) As used in this section the term model glue shall mean any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors.   

(b) No person shall, for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system, smell or inhale the fumes from any model glue; provided, however, that this section shall not apply to the inhalation of any anesthesia for medical or dental purposes.                           

(c) No person shall possess, buy, sell, transfer possession, or receive possession of any model glue for the illegal purposes set forth in subsection (b) hereof.

Knight was reportedly in possession of an "aerosol can," and was presumably suspected of huffing gasses out of the can. People can get high from huffing or sniffing fumes from aerosol cans, as noted by the National Institute on Drug Abuse. But while the end result of sniffing these fumes may be similar to the result of sniffing glue, King's alleged conduct does not appear to fall under the scope of the glue sniffing ordinance.

Based on the language of the ordinance, it does not seem to apply to instances where a person sniffs fumes from an aerosol can to get high. The ordinance defines "model glue" as "any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors." This definition is irritating, since it essentially uses the word "glue" to define "glue." While a number of chemicals are named, and while the catch-all at the end of the definition includes other toxic vapors, these chemicals are restricted to chemicals contained in "glue or cement." While I am not an expert on what is going on inside of an aerosol can, Wikipedia informs me that the cans contain small particles or liquids that are dispersed with a propellant, which creates the pressure that forces the particles/liquid out of the can as a spray. This sounds like quite the opposite of glue or cement, which have high viscosity.

It's possible one might attempt to apply the "or other solvent or chemical having the property of releasing toxic vapors" portion of the model glue definition to an aerosol can. But this reading is not correct, since this catch-all provision is part of a list that modifies the terms "glue" or "cement." The most subtle revision to the statute that could support such an interpretation would be to separate the named chemicals from the catch-all -- for example: "the term model glue shall mean any glue or cement containing toluene or acetone, or other solvent or chemical having the property of releasing toxic vapors." If this is what the ordinance said, Knight's conduct could potentially fall under it. As written, however, sniffing or huffing from an aerosol can does not fall under the language of Cedar Rapids' glue-sniffing ordinance.

[UPDATE - 8/30/2017]

A friend surprised me with a sudden outpouring of his proclaimed knowledge and enthusiasm for glue and its diverse potential forms. He informed me that glue does not necessarily have high viscosity, and that rubber cement, for example, could become fluid enough to be aerosolized if enough of a solvent were added to it. Indeed, here is a "Multipurpose Adhesive Aerosol" that I found with some quick Googling! I suppose that the law could be interpreted to apply to aerosolized adhesives, as glue can be defined by its function of binding objects together, although it most commonly refers to a substance that absorbs water and becomes a viscous solution with strong adhesive properties. Perhaps the courts will one day address these pressing questions regarding the true definition of glue.

Of course, it is doubtful that Knight was sniffing aeresolized glue, unless he somehow even less intelligent than initially thought. Such a practice would carry the risk of gluing his nose shut while attempting to get high, an outcome that would not only be inconvenient and painful, but that would also prevent Knight from continuing to sniff the aerosol. I suspect that if Knight indeed was using an aeresolized substance to get high, it was likely a substance other than the aeresolized adhesive that I linked to above.

Charged With a Crime? Don't Accept Interview Requests

The Des Moines Register reports:

A Des Moines woman has been arrested on suspicion of voting twice this month in the general election, police and court records show. 

Terri Lynn Rote, 55, was booked into the Polk County Jail about 3:40 p.m. Thursday on a first-degree election misconduct charge, which is a Class D felony. 

Rote, a registered Republican, reportedly cast an early voting ballot at the Polk County Election Office, 120 Second Ave., and another ballot at a county satellite voting location in Des Moines, according to a Des Moines police report.

Rote chose not to exercise her right to remain silent. From Iowa Public Radio:

"I wasn't planning on doing it twice, it was spur of the moment," says Rote. "The polls are rigged."

It appears that Rote made this comment after she was charged and released, as the Iowa Public Radio story indicates that it was updated to include Rote's statement. The report goes on to quote Polk County Attorney John Sarcone who confirms that cases of voter fraud are "very rare."

KCCI Des Moines reports that police were able to determine that Rote had voted twice by comparing signatures on election ballots. Rote's admission to media outlets that she voted twice will probably prove helpful to the prosecution's case against her as well.

Iowa's Law Against Simulated Intoxication

Back when I lived in Iowa City, the local police blotter was a reliable source of intrigue and occasional amusement. I would read it now and then, seeing if I could spot any elementary school acquaintances or unusual stories. As Iowa City is the home of the University of Iowa, a one time number one party school, accounts of public intoxication were rampant. While reading of these arrests, I sometimes wondered what would happen if I were to simply act intoxicated around police officers.

As it turns out, such activity could result in an arrest for public intoxication, and rightly so -- at least under the language of Iowa Code section 123.46, the statute prohibiting public intoxication. Section 123.46(2) states:

A person shall not use or consume alcoholic liquor, wine, or beer upon the public streets or highways. A person shall not use or consume alcoholic liquor in any public place except premises covered by a liquor control license. A person shall not possess or consume alcoholic liquors, wine, or beer on public school property or while attending a public or private school-related function. A person shall not be intoxicated or simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor. (emphasis added)

I blogged about this section previously when the Iowa Supreme Court decided that you can be as drunk as the heck you want on your porch because it is not a "public place." In that previous post, I speculated that criminalizing simulated intoxication may violate the First Amendment, but I did not look into the question further.

For those who were disappointed with the short shrift I paid to this unusual law, you are in luck! At long last, here is my analysis on whether the law violates the First Amendment...

Sorry Iowa, Political Robocalls Are Protected by the First Amendment

While I currently live in California, I spent most of my life in Iowa, and I regularly visit my family in Iowa around the holidays. It is nice to go back, but if it happens to be a month before a caucus, I find that the phone rings off the hook with repeated robocalls from various candidates -- a phenomenon that I simply do not experience now that I live in such a politically irrelevant state. During my 2012 visit home I would try to guess which Republican candidate would greet me with their pre-recorded voice -- Michelle Bachmann and Newt Gingrich were the safest bets.

If somebody had proposed banning these robocalls, I would have welcomed the proposal without hesitation. But, according to the Federal District Court for the Eastern District of Arkansas, my enthusiasm would have been misplaced.

So reports the Wall Street Journal Law Blog:

Political robocalls may be an irritating feature of modern campaigning, but that doesn’t mean they don’t deserve protection under the First Amendment, a federal judge ruled. 

A decision handed down Wednesday in Arkansas federal court struck down a state law passed 35 years ago that banned political robocalls. The statute restricted commercial robocalling and also made it unlawful to solicit information “in connection with a political campaign” using an automated phone system for dialing numbers and playing recorded messages. 

. . .

The state attorney general’s office defended the robocall prohibition as a justifiable effort to respect people’s privacy interests and protect them from unwanted intrusions into their homes. They also argued that the law prevented “the seizure of phone lines, which could interfere with emergency calls being placed or received.” 

U.S. District Judge Leon Holmes was unpersuaded. He said the state’s motives would be more convincing had the law targeted robocalling more broadly.

The full text of the opinion is here.

Content-based restrictions on speech must pass the difficult "strict scrutiny" test -- meaning that advocates for the law must argue that the law is narrowly tailored to achieve a compelling government interest. The Arkansas law and the courts ruling on it present an interesting case in which the law was deemed underinclusive -- that is, the government interest in preventing privacy violations from automated calls is only partially served by a ban on one subset of automated calls. Often, in the context of freedom of speech, it is more likely that a statute will be deemed overinclusive in that the law prohibits too much speech to be narrowly tailored to achieve its goal.

It looks like Iowans and others will continue to suffer political robocalls. Additionally, if I were a law student, I would take note of this case, as its emphasis on underinclusiveness highlights an aspect of strict scrutiny that is often unaddressed, and that may be likely to make its way onto a future exam...

One-Armed Piano Players Do Not Need to Play For Free in Iowa

This is a second post in which I identify a rumored law and research whether it exists. In an earlier post, I researched rumors that Iowa law prohibits mustached men from kissing women in public and concluded that no such law exist. Here, I investigate the rumor that Iowa law requires one-armed piano players to perform for free.

There are several phrasings of this supposed law. The most commonly shared version is "One-armed piano players must perform for free." Websites, books, and articles proclaiming this law's existence may be found here, here, here, here, here, here, here, and here. None of these websites cite any statutes or cases.

One book quotes the supposed Iowa law as stating, "A one-armed piano player may be seen, but not if admission is charged to view his performance." This looks pretty authoritative because it is in quotation marks and sounds a bit more like it comes from a law or case. And it's in a book, not just the Internet.  But, for what it's worth, websites sharing similar versions of this phrasing are here and here.

After searching through the Iowa Code and Iowa cases, I was unable to find any law or case that prohibits one-armed piano players from charging admission for their performances. The quoted, second version of the law appears in only one other website.

Based on my research of statutes and cases, I have concluded that there is no Iowa law that prohibits one-armed piano players from charging admission for their performances. As a caveat: my search was limited to the Iowa Code and Iowa case law. I did not search any municipal codes because all websites referencing this law claim that it is a state law, rather than a particular city ordinance.

If you, the reader, happen to find a particular case or statute prohibiting one-armed piano players from charging admission to their performances, I welcome you to share the citation in this post's comments. But I strongly suspect that searching for such a citation is an endeavor that is destined to fail.

It is Legal to be Intoxicated on the Front Steps of a Private Residence in Iowa

So ruled the Iowa Supreme Court last week, holding that Iowa Code section 123.46(2), which prohibits a person from being "intoxicated in a public place," does not prohibit people from being intoxicated on the front steps or porch of a private residence. The full text of the opinion is here. Coverage of the opinion is available here, here, and here.

The Court held that the front steps of a private residence are not a "public place." The Court noted that if a private residence's porch or residence were to be deemed a public place, people could be punished for a wide range of behavior. From the opinion:

[I]f the front stairs of a single-family residence are always a public place, it would be a crime to sit there calmly on a breezy summer day and sip a mojito, celebrate a professional achievement with a mixed drink of choice, or even baste meat on the grill with a bourbon-infused barbeque sauce—unless one first obtained a liquor license. We do not think the legislature intended Iowa law to be so heavy-handed.

Additionally, holding the front steps of a single-family home are always a public place would mean any intoxicated person who responsibly secures a ride home from a sober designated driver could be arrested for and convicted of public intoxication because they traversed the stairs of their single-family house while intoxicated. Iowans “should not suffer a criminal penalty for taking . . . responsible action.” (citations and footnote omitted)

It is important to note, however, that this ruling is limited to private residences. The Court noted at the outset of its opinion that in State v. Booth 670 N.W.2d 209, 215-16 the Court held that the front steps and hallway of apartment buildings are public places.

One other interesting thing that I learned from this opinion was that Iowa Code section 123.46(3) states:

A person shall not simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor

I suppose I could see a few situations where this law might make sense. People are prohibited from attempting to fool officers into thinking they are intoxicated in violation of section 123.46(2). Although why anyone would ever want to do that is beyond me. Alternatively, this section may prevent sober friends from attempting to camouflage drunk companions by putting on a performance in which all the members of a group appear intoxicated and, in doing so, confound an officer's investigation (a tactic that I will call the Spartacus defense).

But ultimately, section 123.46(3) appears to be an overly strict prohibition, and I suspect that it may violate the First Amendment. If a storyteller or comedian is pretends to be intoxicated as part of an act or play, for instance, that person may be found guilty of simulating intoxication in a public place. Additionally, the law seems vague, since it is unclear how convincing the simulation of intoxication needs to be.

Perhaps the Supreme Court will address this intriguing subsection of the law on another occasion. Until then, those in Iowa who are sitting on their front porches or steps can raise a glass to the Iowa Supreme Court without fear of legal repercussion.

What is a Pond?

According to the Iowa Court of Appeals, a pond is "a body of water," and a contractor's building "a pond that does not hold water," amounted to nothing more than the construction of a dam.

Via Kevin Underhill's Lowering The Bar, I learned about this story of a recent Iowa Court of Appeals decision holding that a contractor's agreement to construct a pond left the construction company liable when the pond ultimately failed to hold water due to "a porous layer of shale" on the sides of the pond. Additional coverage of the case is available here. A direct link to download a pdf version of the opinion is available here.

The construction company, Reilly, argued that it had abided by the terms of its contract to produce a pond. But the court held that the waterless pond violated Reilly's express warranty of the quality of product it would provide to its customer, Bachelder:

Reilly does not quibble with Bachelder’s testimony that Reilly told him he could “do a pond” at the staked location on Bachelder’s property. In his testimony, Reilly agreed he intended the pond would hold at least enough water so that the tires placed on the bottom for fish habitat would be covered up. By definition, a pond is “a body of water.” See American Heritage College Dictionary 1062 (3d ed. 1993); see also Iowa Code §§ 455B.171(39) (defining “water of the state” as including ponds), 462A.2(15) (defining farm pond as “a body of water”). When Reilly agreed to construct a pond on Bachelder’s property, he was expressly warranting the pond would hold water. Otherwise, Reilly would have simply been constructing a dam, without any anticipation it would capture water to form a pond. (Footnote omitted)

  In the wake of this opinion it appears that a pond without water is not a pond at all under Iowa law.

A New Round of Bar Exam Criticism

Law school graduates around the country took the bar exam at the end of February. In the exam's wake, commentators are questioning the necessity of the test. Last summer's bar exam prompted a notable wave of criticism in light of low passage rates and some blunt comments by the president of the National Conference of Bar Examiners. That criticism appears to have continued into the spring.

The New York Times reports:

For decades, law school graduates have endured a stressful rite of passage, spending the first 10 weeks after classes end taking cram courses in the arcane details of the law before sitting down for the grueling, days-long bar exam. Those who do not pass cannot practice law, at least in nearly all the states and the District of Columbia that consider the exam the professional standard. 

But that standard, so long unquestioned, is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments. Some states, including Arizona, Iowa and New Hampshire, are exploring or have adopted other options, questioning the wisdom of relying on a single written test as the gateway to legal practice. 

The debate over the exam is not new, but it broke out in the open after the results of last summer’s exam were released in the fall, showing that the 51,005 test takers had the poorest results in nearly a decade.

The article explores several innovative approaches to bar exams, such as allowing students to take the bar exam in their final year of law school. Arizona has implemented this approach, which reduces the amount of time that students need to wait before exam results.

The article also notes that several states, including Iowa, have considered adopting Wisconsin's approach and doing away with the bar exam for students who graduate from in-state law schools. I have gone on record arguing that this proposal is misguided.

But I think that approaches like Arizona which could reduce the burden of the bar exam without eliminating it are worthy of exploration. And Derek Muller has this post noting that California's bar examiners are considering reducing the length of the bar exam from three days to two. Muller notes that this would make the exam less grueling, that those taking the exam would not need to spend as much on hotels, and that this change could cut down on the time it takes to grade exams.

I think that reducing California's bar exam to two days is a very good idea. The idea is not a new one, however, and I am worried that any decision or discussion on the issue may end up being delayed in the same way it was two years ago. My hope is that the continuing criticism of bar exams will prompt the Committee of Bar Examiners to give more serious consideration to the proposal.

Ban on Sexual Orientation Conversion Therapy for Minors Approved By Iowa Senate

So reports the Des Moines Register:

Iowa mental health professionals would be banned from trying to change the sexual orientation of gay patients younger than 18 under a bill approved on a straight party line vote Tuesday by the Iowa Senate. 

Senate File 334 was passed 26-24. All Democrats voted in favor. All Republicans voted no. The bill now heads to the Republican-controlled House, where it will likely be declared dead amid strong opposition from Christian conservatives.

I had previously expressed hope that the bill would pass, noting that if more states pass similar bans, it could lead more courts to analyze the interesting First Amendment aspects of these laws. But if Republican lawmakers continue their voting patterns in the House, it looks like this bill isn't going to make it very much further.

Iowa Bill Would Prohibit Sexual Orientation Conversion Therapy for Minors

So reports the Des Moines Register:

A bill that would ban Iowa mental health professionals from trying to change the sexual orientation of gay patients under age 18 was approved by the Iowa Senate Human Resources Committee Wednesday on a straight party line vote. 

Senate File 31 was sent to the Iowa Senate floor with the committee's eight Democrats in favor and four Republicans against. While the measure could be approved this session by the Democrat-led Senate, it appears unlikely the GOP-controlled House will consider the bill. 

So-called conversion therapy attempts to convert gay, lesbian, bisexual and transgender individuals from homosexuality to heterosexuality through prayer and other efforts. It's based on the idea that a person's sexual orientation or gender identity is a choice.

The full text of the bill is available here.

I have blogged at length about a similar ban in California, the First Amendment challenge to the ban, and the Ninth Circuit's ultimate decision that prohibiting sexual orientation conversion therapy for minors is constitutional.

If the Iowa bill were to pass, I would not be surprised if it ended up facing similar constitutional challenges. California and New Jersey laws prohibiting sexual orientation conversion therapy for minors have survived constitutional attacks so far. But if more states continue to pass these laws,  some of the First Amendment challenges may end up succeeding. And if that happens, it could set the stage for a pretty fascinating Supreme Court case.

Is it Constitutional to Prosecute Those Who Mail Cow Manure?

My attempt at answering this age-old legal question is prompted by this story about a pair of feuding Iowa couples. Here is the report:

A southeast Iowa couple who were sent cow manure in the mail have sued the woman who acknowledges that she paid to have the poop sent.

The Hawk Eye reports that Mary Eipert and Steven Rowland want a judge to order Kimberly Capdevila and her husband, Carlos, to stop their dog from barking all day and night. The lawsuit filed Monday seeks compensatory and monetary damages for the barking and for what the lawsuit says is harassment by the Capdevilas.

The two couples are neighbors who have been squabbling over the barking dog. Fifty-one-year-old Kimberly Capdevila has said she had the manure sent as a practical joke. She has pleaded not guilty to a misdemeanor charge of harassment. She’s due back in court on April 7 for pretrial conference.

In this post I will briefly discuss the aspects of the Rowlands' civil claim, but then move on to discuss the criminal side of this story. I will look into the crime that Kimberly Capdevila has most likely been charged with, whether the prosecution has a strong case, and whether prosecuting Capdevila under this law is constitutional.

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.

"Life as a Rural Lawyer"

The title of this post is a partial quote of this Washington Post article's title. In the article, Judge Donna Taylor describes the need for rural lawyers and her experience as a private attorney, county attorney, and judge in rural Nebraska.

The article begins:

There’s a great deal of need for young lawyers in rural communities. There’s plenty of work to go around. To a law school student who is trying to decide, ‘Should I leave the city for a small town?’ I’d say: Give it a try.

Judge Taylor goes on to describe the unique experience of practicing law in a rural setting, and I recommend that you read the whole article.

I grew up in Iowa, which, like Nebraska, is experiencing a severe shortage of rural lawyers. The Iowa State Bar Association notes that declining numbers of rural lawyers forces residents to drive longer distances. Moreover, town governments need to pay more to bring in attorneys to handle municipal issues.

The Wall Street Journal notes that law schools in Iowa are teaming up with the Iowa State Bar Association to get students internships and jobs in rural Iowa counties. Iowa Now also describes the program, and quotes several students who are involved. A more dramatic solution that's been proposed is to do away with the Iowa bar exam for those who graduate from an in-state law school and remain in Iowa after graduation.

While these programs may help, there are still difficulties finding rural practitioners who want to be a part of these programs. And law school culture is largely focused towards getting students careers with large firms. The more students that get these jobs, the better a network with large firms the school can boast, which leads schools to invest a lot of their time and resources in maintaining a relationship with these large firms. Moreover, students typically view job offers from large, private firms as the ideal outcome of a legal education, and may view practice in a rural setting as a sign of failure.

Providing legal services to rural community is a challenge that will need to be addressed. Programs that facilitate connecting students to rural communities are a step in the right direction. But broader changes in attitudes and practices will be needed before this problem can be solved.