Don't Operate Drones While Drunk in New Jersey, and Other Crimes

Through this angrily-titled Reason article, "Good Riddance to Chris Christie," I learned about a recent law in New Jersey that creates several new drone-related crimes. The text of S3370, which Governor Christie signed into law on Monday, is available here.

The bill creates several new drone-related crimes. One of the more widely-reported restrictions is a ban on the operation of drones while under the influence of alcohol, narcotics, hallucinogens, "habit-producing" drugs, or with a blood alcohol level of 0.08% or more. This restriction has led to the publication of several articles that whimsically announce the restriction on "drunk droning" or "drinking and droning." I'm not sure if I'm ready to approve of these publications use of "drone" as a verb, as operating drones does not necessarily involve speaking at length in a boring manner, but the restriction is worth noting.

It's also worth mentioning that federal regulations already place even stricter alcohol-related restrictions on the commercial operation of drones. This concise explainer by Jonathan Rupprecht points out that commercial drone operators can't fly drones within eight hours of consuming alcohol or with a blood alcohol concentration of 0.04% or higher. Rupprecht also notes that hobbyist drone users that operate drones while intoxicated may run afoul of federal regulations if their activity is deemed to "threaten the safety of the national airspace system."

New Jersey bans more than the drunken operation of drones. The law also includes provisions prohibiting people from using drones while hunting, and from using drones to prevent people from hunting. The law also bans the operation of drones in "a manner that endangers the life or property of another," and prohibits people from using drones from conducting surveillance on correctional facilities or "endanger[ing] the safety or security" of these facilities by operating drones on their premises.

But wait, there's more!

The law creates an offense for drone users whose drones interfere with "first responders," (which include law enforcement officers, firefighter, ambulance operators, and others). California has attempted to pass similar legislation that would criminalize operating drones near fires, as this activity has reportedly hindered firefighting efforts. But these crimes have yet to become law in California due to Governor Jerry Brown's reluctance to expand California's bloated Penal Code. Governor Christie, however, appears to have no such qualms.

A final provision of note is a revision to the law governing the penalty of "parole supervision for life" that is imposed on certain sex offenders and those convicted of kidnapping pursuant to N.J.S.A. C.2C:43-6.4. The provision states that the parole supervision for life "may include reasonable conditions prohibiting or restricting the person's operation of an unmanned aircraft system in order to reduce the likelihood of a recurrence of criminal or delinquent behavior." While drones can (and occasionally have) been used to hover creepily outside of people's windows, this is a strangely specific provision to add to the various restrictions that sex offenders face.

I'm generally opposed to imposing restrictions on private drone users, as tortious or invasive behavior with drones could probably be prosecuted or litigated under more general existing laws. I do approve of legislative restrictions on government drone use, but New Jersey appears to have yet to impose such restrictions. The last attempt at doing so failed a year ago when Governor Christie failed to sign off on a bill that would have imposed a warrant restriction (with certain exceptions) on drone use by law enforcement agencies. Perhaps Governor Phil Murphy will act differently should a similar bill make its way through the legislature in the future.

New Jersey's Distracted Driving Bill and Its Disturbing Implications for Probable Cause

USA Today reports:

A bill under consideration in the state Legislature calls to prohibit "any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway." That means no cup of coffee for those sitting in traffic, no munching on that breakfast burrito, no time to groom. (No, the law does not target coffee verbatim.) 

The bill is meant to target distracted driving, which plays a role in thousands of fatal crashes in the state each year. At least 3,179 fatal crashes were attributed to distracted driving in 2014, according to the state's Division of Highway Traffic Safety website. Distracted driving played a role in nearly 800,000 crashes between 2010 and 2014.

Here is a link to the bill itself. The new section the bill would create reads:

2. (New section) a. An operator of a moving motor vehicle shall not engage in any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway.

b. A person who violates this section shall be fined: 

(1) for a first offense, not less than $200 or more than $400; 

(2) for a second offense, not less than $400 or more than $600; and 

(3) for a third or subsequent offense, not less than $600 or more than $800. 

For a third or subsequent violation, the court, in its discretion, may order the person to forfeit the right to operate a motor vehicle over the highways of this State for a period of 90 days. In addition, a person convicted of a third or subsequent violation shall be assessed three motor vehicle penalty points pursuant to section 1 of P.L.1982, c.43 (C.39:5-30.5). 

A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against the person in order to render the person liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes. 

c. Except as provided in subsection b. of this section, no motor vehicle penalty points or automobile insurance eligibility points pursuant to section 26 of P.L.1990, c.8 (C.17:33B-14) shall be assessed for this offense. 

d. A law enforcement officer who issues a summons for a violation of this section shall record on the summons the specific nature of any distracted driving behavior observed.

3. This act shall take effect on the first day of the third month after enactment.

The bill's broad language of "activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle" would likely give probable cause to any vehicle stop in which an officer sees a driver doing anything other than driving the vehicle. Eating a snack, drinking anything, engaging in animated conversation with a passenger -- all could plausibly fall under this law's broad language.

Admittedly, I suspect that many, if not most, stopped under this law will be warned rather than ticketed. But the broad language of this law would allow officers to justify traffic stops in just about any situation where they see the driver engaging in any non-driving behavior. This grant of substantial discretion may exacerbate racial disparities in traffic stops and could contribute to a disproportionate prosecution of racial minorities for crimes discovered following the stop, such as driving under the influence of alcohol or drugs.

I suspect that the "unfettered police discretion" concern will not garner many votes in opposition to this bill. But perhaps this argument, combined with the votes of those who want to drink coffee and drive, will prove to be enough to defeat this broad piece of legislation.

New Jersey Court Reportedly Bars Woman From Entering All Walmart Stores in Country

The ABA Journal has this story about a court that may have gone too far to protect Walmart from a shoplifter:

A judge in Mount Olive Township, New Jersey, has banned a shoplifter from ever shopping at a Wal-Mart store anywhere in the country. 

The defendant, 64-year-old Johanna Cassimore of Hopatcong, New Jersey, tells the New York Daily News she plans to appeal the sentence. “It was stupid. I disagree and I’m appealing it,” Cassimore said. “The judge can’t say that. He doesn’t own Wal-Mart.” 

The sentence by Judge Brian Levine also requires Cassimore to pay $258 in fines and to complete 10 hours of community service, according to the New York Daily News, NewJerseyHills.com and NJ.com.

Other reports on this case can be found here and here. The New York Daily News clarifies that the court involved was the Mount Olive Municipal Court.

Under New Jersey Law (specifically, NJSA 2B: 12-16), a New Jersey Municipal Court's jurisdiction is limited to the territory of the municipality in which the court is located. This means that the Mount Olive Municipal Court would have jurisdiction over the Walmart stores within the boundaries of the Mount Olive Township, but not over stores outside of the township.

I initially suspected that somewhere along the line, the word "county" became misspelled or misheard so that it transformed into "country." While I am not aware of any reports that verify this suspicion, I would not be surprised if it ended up being the case. But even if this alternative is correct and the court meant to bar Cassimore from all Walmart stores in the county, that order would also appear to overstep the boundaries of the court's jurisdiction. While Central Municipal Courts have jurisdiction over matters arising within the boundaries in the county, it does not appear that the Mount Olive Township Municipal Court is such a central municipal court. The jurisdiction of that court appears to be limited to all locations within the boundaries of the township.

The court's stay-away order appears to be reasonably related to the crime that Cassimore committed, and I would not be surprised to see a probation condition requiring Cassimore to stay away from Walmart locations in Mount Olive. But requiring Cassimore to stay away from all Walmart stores in the country would be an overly broad probation condition, and an appeal would likely result in the reduction of the order's scope.

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.

Ninth Circuit Refuses to Rehear Pickup v. Brown

From Dale Carpenter at The Volokh Conspiracy:

In Pickup v. Brown, the Ninth Circuit Court of Appeals today decisively reaffirmed its decision from last August rejecting First Amendment and other constitutional challenges to California’ ban on so-called “gay conversion therapy” for minors. The practice, which is not endorsed by the country’s major mental health organizations, involves trying to change minors from gay to heterosexual and is often sought by parents for their teenagers. I wrote about the Ninth Circuit decision at the time, and won’t repeat the arguments here. The ruling today means that neither the original panel nor the entireen banc appeals court will reconsider that decision. The next stop for the therapists, if there is one, would be the Supreme Court.

I blogged here and here about this case after it was decided. I believe the case was decided correctly, though there was some broad language in the opinion.

Would the Supreme Court take up this case? I doubt it. Generally, this is a pretty safe position to take, since the Supreme Court accepts a very small percentage of petitions for certiorari. But as for this case in particular, while the issue involved in these cases raises some very interesting First Amendment questions, there are not many cases on this particular issue of sexual orientation conversion therapy. Pickup is the only existing circuit opinion on this type of law, and the only decision to the contrary is one of the district court opinions that Pickup overturned. Moreover, the law involved in this case is not common -- California and New Jersey are the only two states I know of that have laws banning sexual orientation conversion therapy for minors. Since there are only two states with this type of law, and since there is no split in authority on this issue, I doubt that the Supreme Court would review Pickup v. Brown. But then again, these types of outcomes are impossible to predict.

New Jersey To Ban Sexual Orientation Change Efforts for Minors

It looks like New Jersey is going to be the second state to outlaw sexual orientation change efforts for minors.  Sexual orientation change efforts consist of therapy, counseling, and other efforts by psychiatrists to change the sexual orientation of gay youths.  Various professional organizations, including the American Medical Association and the American Psychiatric Association, decry this practice and argue that it is harmful for youths.

California was the first state to outlaw sexual orientation change efforts for minors.  The statute was challenged on First Amendment grounds, leading to a split between two California District Courts.  In Welch v. Brown, Judge William Shubb upheld an injunction preventing the law from taking effect, holding that the law constituted impermissible viewpoint discrimination and violated the First Amendment.  In Pickup v. Brown, Judge Kimberly Mueller refused to uphold a similar injunction, holding that sexual orientation change efforts did not constitute expressive conduct and was therefore subject to the state's control so long as there was a rational basis for the law.  The case has since been appealed and the Ninth Circuit still has yet to release a decision.  (The various briefs submitted by the parties and amici can be found here).

Eugene Volokh blogged about the split here, noting that existing Ninth Circuit precedent seemed to support Judge Shubb's ruling.  In Conant v. Walters, 309 F.3d 629 (2002), for instance, the Ninth Circuit upheld an injunction prohibiting the criminal investigation of a doctor on the sole basis that the doctor recommended the use of medical marijuana to a patient.  The court noted that it is important that a doctor feel able to speak freely to his or her patients.  Volokh pointed out, however, that the sexual orientation change efforts cases raise an open question (at the Supreme Court level) of the power of states to restrict professional-client speech on the grounds of that speech harming the client.  He concludes that this case may well be destined for the Supreme Court because it raises such an open question.

The New Jersey statute certainly makes things more interesting for this type of statute.  I have not researched the issue in depth, but my preliminary check of cases turned up no controlling authority for the New Jersey courts.  The closest authority I could find was Cunningham v. New Jersey, 452 F. Supp. 2d 591 (D. N. J. 2006).  In this case, the New Jersey District Court cited Conant and noted that it stood for the proposition that a doctor's statements to a patient regarding treatment could be protected by the First Amendment.  The court, however, was distinguishing the case before it from Conant, and, in any event, this opinion is at the district level and is persuasive at most for the New Jersey District Court.

I am interested in this issue because I think it illustrates the limits of theories behind the First Amendment.  One central justification for First Amendment protections is that protecting speech preserves a marketplace of ideas.  People speak freely and share ideas, and through this process of sharing, the best ideas will become clear to those participating in the discourse.  Speech between doctors/psychiatrists/psychologists and patients may be less likely to contribute to any meaningful marketplace of ideas because the speech is private.  The patient may feel compelled to share whatever is discussed with others, but the structure of the professional/patient interaction does not seem to lend itself to this.  Moreover, speech by professionals reminds me of speech by experts that Robert Post discusses in his book, Democracy, Expertise, and Academic Freedom : a First Amendment Jurisprudence for the Modern State.  Post seems to raise similar questions about whether the marketplace of ideas theory applies to private professional-client speech.  Moreover, Post notes that traditional marketplace of ideas justifications break down in the context of expert speech.  Speech by experts is not characterized by a deluge of conflicting opinions, but is rather regulated by peer review.  The dominant theory underlying expert speech seems to be accuracy, rather than variety.  This doesn't necessarily mean that expert speech should be easily regulated, however, because there is the danger of the state getting a regulation of expert speech wrong.  While I approve of the states' policies in this case - there is always the danger that states may make similar laws banning speech that is not as obviously harmful, or that may in fact be beneficial.  This danger perpetually exists because legislators are often not experts themselves.

I think that the California and New Jersey statutes and the cases involved in the California litigation are fascinating examples of how the First Amendment affects state regulation of professional speech.  I would not be surprised if litigation similar to the California lawsuits occurs in New Jersey, and I am interested in seeing how the New Jersey District Court (with its lack of controlling precedent) will react to such a lawsuit.