Trump to Nominate Justice Don Willett for Fifth Circuit

So reports San Antonio Express-News:

President Trump on Thursday will nominate two conservatives from Texas with compelling personal stories to the 5th U.S. Circuit Court of Appeals, according to a senior administrative official.

Texas Supreme Court Justice Don Willett was cited by Trump as a potential U.S. Supreme court pick during his presidential campaign. Dallas appellate lawyer James Ho is a former Texas solicitor general who has argued cases before state and federal courts.

Willett -- a prolific Twitter user whose wit with more than 96,000 followers and the title of Texas “Tweeter Laureate” --had gently mocked Trump in some tweets during the campaign for the White House.

The article has a collection of some of Justice Willett's "gently mock[ing]" tweets.

I had previously blogged about Justice Willett back in the heyday of speculation as to who Trump would nominate to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia. At the time, Justice Willett was on Trump's list of potential nominees, although Trump ultimately nominated now-Justice Neil Gorsuch to the Court.

It will be interesting to see whether Justice Willett faces heightened scrutiny in his confirmation hearing given his prior inclusion on Trump's list of potential Supreme Court nominees. Justice Willett also may have a wider public profile than some of Trump's other nominees in light of his active, and often humorous, Twitter account. This, coupled with existing dissatisfaction by Democrats on the Senate Judiciary Committee may lead to some interesting exchanges whenever the hearings end up taking place.

Texas Judge: No Plea Bargains "Involving" Probation for More Crimes than You May Realize

The title of this post admittedly involves a bit of a paraphrasing, but not much. The Wall Street Journal Law Blog has this post on a Texas judge who has banned plea bargains for probation or deferred adjudication for defendants charged with assault on a peace officer, resisting arrest, evading arrest, and other crimes in which members of law enforcement are "threatened."  Here is Judge Kerry Neves's Facebook post announcing the order.  In full, it reads:

I have just signed an Order which goes into effect immediately in this Court. No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved. In the event the State and the defense attorney believe there is compelling evidence to support such an agreement, the Court may consider it if presented with such evidence. Approval will require a sincere written statement of apology to the officer or officers involved, and agreement from the officer or officers involved to the plea bargain agreement. Prior criminal history will paly a big role in whether any such agreement is approved. 

If approved, the defendant will be required to read the statement in open Court. 

I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

The Wall Street Journal Law Blog notes that while the policy has drawn criticism from the criminal defense bar, the practice of plea bargaining takes place in a generally unregulated area of constitutional law and criminal procedure:

Plea bargaining is a ubiquitous feature of the American criminal justice system, but there’s no constitutional right to a plea offer. 

The right to a fair trial and effective counsel provide protections for defendants to ensure they have the capacity to engage in informed negotiations. And federal criminal procedure standards and local statutes set basic ground rules, but plea bargaining in the United States “is in critical respects unregulated,” according to University of Virginia criminal law professor Darryl K. Brown.

Through the ABA Journal, I was able to track down a copy of the order. As it turns out, the prohibition on plea bargaining is far broader than Judge Neves's Facebook post suggests. The order prohibits plea agreements "involving probation or deferred adjudication" for the following crimes:

1. Assault of a Public Servant
2. Evading Arrest or Detention
3. Failure to Identify
4. Resisting Arrest, Search or Transportation
5. Hindering Apprehension or Prosecution
6. Escape
7. Permitting or Facilitating Escape
8. Prohibited Substances and Items in Correctional Facility
9. Contraband in Correctional Facility
10. Taking or Attempting to Take Weapon from Peace Officer, Federal Special Investigator, Employee or Official of Correctional Facility, Parole Officer, Community Supervision and Corrections Department Officer, or Commissioned Security Officer
11. Interference with Public Duties
12. Interference with Police Service Animals
13. Any other offense in which a member of law enforcement is threatened, harmed, placed in danger or otherwise verbally or physically abused because of his or her status as a member of law enforcement.

I think that this order is misguided.

Off the bat, this strikes me as an overly partisan and political move. Texas has partisan elections for judges and, as it turns out, Judge Neves is up for reelection this November. Here is a link to his campaign website if you would like to know more about him or perhaps donate.

By announcing the order on Facebook in the run up to the election, this order appears to be less focused on good law and more focused on the politics of capitalizing on recent shootings of police officers in Texas.

Normally, I avoid the political criticism on this blog, but just reread the last paragraph of his Facebook post:

I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

Okay, okay. I'll get off my political soapbox.

And onto my legal one...

Hutson & Harris: "Don't Eat Your Weed"

From the Wall Street Journal Law Blog, I learned of this excellent video from Will Hutson and Chris Harris of the Texas law firm, Hutson & Harris:



As the surprisingly talented attorneys note, destruction of evidence can put somebody on a fast track to getting in even more trouble during a traffic stop. Those with marijuana in a vehicle should stop to think about the legal ramifications of eating everything in the ashtray.

The Law Blog notes that Texas is the home of some innovative attorney advertising, including the loud, patriotic, hawk-scream-filled commercials of Bryan Wilson (here and here). Texas has some competition for the most outrageous legal ads, however, as Georgia attorney Jamie Casino's Super Bowl advertisement ranks as one of the strangest, compelling, and memorable things I have seen on television.

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:

Texas Courts Can Order Removal of Defamatory Material Posted Online

So holds the Texas Supreme Court in Kinney v. Barnes. The full text of the opinion is available here. Texas Lawyer reports that court orders for the removal of online content is a new remedy for defamed parties. Texas Lawyer goes on to note that the opinion still holds that courts cannot enjoin any future online speech since that would be an unlawful prior restraint, something that the Supreme Court has roundly rejected (see footnote 7 of the opinion).

From the opinion:

In this case, Kinney’s request for injunctive relief may be broken down into two categories. First, as reflected in the pleadings, Kinney would have the trial court order Barnes to remove the statements at issue from his websites (and request that third-party republishers of the statements do the same) upon a final adjudication that the statements are defamatory. Such an injunction does not prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected in the context in which it was made. As such, it is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.

While injunctive relief is typically not available in defamation cases, ordering the removal of posted defamatory material seems to be a sensible exception to the general rule. Were the statement to remain online, courts would need to estimate the continuing damage the statement could cause, or re-adjudicate the case if harm continued to occur as a result of the statement. Ordering the removal of a defamatory statement may at least partially mitigate some of this continuing harm.

How Many States Require Warrants for Government Drone Use?

In the process of reporting on the California Assembly's approval of a bill that would require law enforcement officers to get a warrant before using drones, The Guardian states:

A total of 13 states have passed some form of legislation restricting the use of drones by public agencies, of which nine have specifically sought to rein in police snooping by requiring officers to seek warrants before using the devices. 

The nine states with warrant requirements are: Florida, Idaho, Illinois, Iowa, Montana, Oregon, Tennessee, Utah and Wisconsin.

The claim that only nine states have warrant requirements is incorrect. In fact, 11 states have warrant requirements. The article fails to mention Indiana and Texas.

Texas Man Inadvertently Demonstrates Wrong Ways to Use Drones

Several local news sources report on a Texas man who lost a drone on the roof of AT&T Stadium in Arlington, Texas. KHOU.com and Fox 4 both report on the story. Most of their information comes from this video that the drone operator posted:

At around 47 seconds into the video, the man says that he lost another one of his drones on the roof of the stadium because he let the stadium get in between him and the drone. This resulted in his losing the signal, causing the drone to fall onto the roof or balcony (at the time of the video, the man isn't sure where the drone is). Workers at the stadium later returned the man's drone from the roof.

This gets us to our first way to get in trouble while operating a drone: fly the drone in such a manner that you lose its signal, causing it to fall from the sky in a populated area. Nobody was hurt by this man's drone in this incident. But as his video demonstrates, he is willing to fly his drone carelessly in populated areas, and it is only a matter of time before he ends up hurting a bystander. Moreover, the man's tendency to fly his drones in highly populated areas may get him into trouble with the Federal Aviation Administration (FAA). The FAA, in an advisory circular on model aircraft use urges aircraft operators to avoid flying model aircraft in "populated areas." The FAA seems to imply here and here that this circular applies to drone use, since it lists the circular requirements when discussing drone operation guidelines.

At 3:26 in the video, the man says that he needs to take his drone to a height of about 700 feet in order to get the whole stadium in his shot. After saying this, the drone climbs higher and higher until the entire stadium is in the camera's shot. At 3:42, he says that the height of the stadium is "400 feet or so."

The FAA advisory circular states, "Do not fly model aircraft higher than 400 feet above the surface." Throughout the entire video, the man is almost certainly flying his drone much higher than the 400-foot ceiling recommended by the FAA This is the second way this man demonstrates you can get in trouble for flying a drone: take the drone far beyond the 400-foot ceiling recommended by the FAA and, as a bonus, say out loud that you've taken it hundreds of feet beyond that ceiling.

At 3:49, while the drone is rotating, a shadow of a plane appears in the upper right corner of the shot. While the camera never shows the plane itself, the shadow's path reveals that the plane is traveling close to the drone, and the shadow appears when the drone is at its highest point during its filming of the stadium.

Back to that FAA advisory circular! It states: "Give right of way to, and avoid flying in the proximity of, full-scale aircraft." This raises the third way to get in trouble for flying a drone: take the drone beyond the FAA's recommended ceiling in the proximity of full-sized aircraft.

In the background of this entire discussion lurks a fourth way to get in trouble: videotape your dangerous drone-flying habits, record your commentary, and share it with the public on Youtube.

Admittedly, the FAA's advisory circular is not law -- it is a series of recommendations for the use of model aircraft that most likely applies to drones. As I have blogged previously, the National Transportation Safety Board recently ruled that the FAA has not enacted any enforceable regulations against the use of drones. The FAA is appealing that ruling, and questions remain as to whether the advisory circular can be used to interpret the FAA's existing regulations that prohibit the careless or reckless operation of aircraft (Federal Aviation Regulations Part 91, Section 91.13(a)).

While the law may be unsettled, if the courts end up deciding that the FAA's flight regulations are enforceable against drones and are to be interpreted in light of its advisory circular, the man in this video could be in quite a bit of trouble. Federal law aside, a video like this would be excellent evidence in a tort claim if the man's drone ended up falling and causing damage.

Drones can be fun. But using them in a clearly dangerous manner and posting the video online is a pretty foolish thing to do.

If You Live in Any of These States, Keep an Eye on the Sky

The BBC reports that the FAA has announced which six states will have test sites for the "testing commercial use of drones."  Those states are: Alaska, Nevada, New York, North Dakota, Texas and Virginia.

Describing the purpose of these test sites, the BBC reports:

The biggest chunk of the expected growth in the commercial drone industry is currently expected to be for agriculture and law enforcement.

Police and other emergency services could use them for crowd control, taking crime scene photos or for search and rescue missions.

It can cost a police department hundreds of dollars an hour to deploy a helicopter, while an unmanned aerial vehicle (UAV) can be sent into the skies for as little as $25 an hour.

Farmers, meanwhile, might find it easier to spray crops or survey livestock with the pilotless aircraft.

I have a few of my own remarks on this.

Notably absent from this list is the state of Colorado.  As I noted in this previous post, Colorado was one of the states applying to have a drone testing site.  This application was not without backlash, with the town of Deer Trail, Colorado proposing an ordinance that would grant drone hunting licenses to residences, and reward residents for shooting down federal drones.

It also looks like the Alaska test site actually consists of several sites, identified by the University of Alaska, with different climates "from Hawaii to Oregon," so people outside of the six states identified in this article may not be entirely free from drone activity.

Finally, I am not sure why Iowa is not on the list.  If the government seriously is considering agriculture as a use for drones, then Iowa would be an excellent place to test this out.  Moreover, Iowa would offer an excellent setting to test drones' abilities to operate in weather that changes drastically over the course of a year.  For these reasons, I think that Iowa could fulfill all of the roles of North Dakota's test site (reportedly to test the "human impact" of drones, and how drones function in "temperate climates").

And while some Iowa cities (like Iowa City) may ban the use of drones, there are still plenty of people that these drones could bother the "human impact" of drones could be tested in other towns like Ames.