Illinois Supreme Court Rejects First Amendment Challenge to "Revenge Porn" Restriction

In Illinois v. Austin, the Illinois Supreme Court addressed a challenge to the State's prohibition on the non-consensual dissemination of private sexual images (also known as "revenge porn"). The law at issue, 720 ILCS 5/11-23.5(b), states:

A person commits non-consensual dissemination of private sexual images when he or she:
(1) intentionally disseminates an image of another person:
(A) who is at least 18 years of age; and
(B) who is identifiable from the image itself or information displayed in connection with the image; and
(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and
(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and
(3) knows or should have known that the person in the image has not consented to the dissemination.

The Court's opinion has resulted in criticism from some commentators, and praise from others. While some of the criticism is correct, the Austin Court's recognition that the Illinois law targeted lesser-protected speech and therefore warranted an intermediate level of scrutiny appears to be a correct basis for its conclusion. Critics of the Austin opinion have failed to fully recognize this aspect of the decision by either mischaracterizing it or downplaying its basis in Supreme Court precedent. 

I. Summary of the Opinion

In Austin, the defendant and her fiancé shared an iCloud account, which meant that all text messages that the fiancé sent or received were visible on the defendant's iPad. ¶3. The fiancé and a neighbor exchanged several text messages, some of which included nude photographs of the neighbor. ¶4. The defendant and her fiancé then cancelled their wedding plans and broke up. The fiancé began telling people that the relationship ended because the defendant "was crazy and no longer cooked or did household chores." ¶5. The defendant, in turn, wrote a letter that included several nude photos of the neighbor and sent this letter to the fiancé's cousin. ¶6. The fiancé called the police, who interviewed the neighbor. The neighbor told them that while she was aware that the fiance and the defendant shared an iCloud account, she thought the account had been deactivated when she sent the nude photos and had intended that only the fiancé see the photos. ¶7.

The defendant was charged with one count of non consensual dissemination of private sexual images and moved to dismiss the charge, arguing that the statute was a content-based restriction on speech that violated the First Amendment. The lower court agreed with the defendant and held that the law was unconstitutional on its face. ¶10.

The Illinois Supreme Court disagreed with the lower court and held that the statute did not violate the First Amendment. The Court first stated that it rejected the State's request that it recognize that the dissemination of private sexual images as an unprotected category of speech.  ¶¶33-36. While some categories of speech, such as incitement, obscenity, defamation, and fighting words are recognized as falling outside of the category of protected speech, the Court stated that it would not add the dissemination of private sexual images to this list absent the Supreme Court addressing the issue.

While the Court refused to recognize the speech as entirely unprotected, it ended up reaching the significant conclusion that the dissemination of private sexual images was subject to a lesser amount of protection than other speech. The Court recognized that content-based restrictions on speech typically require court's to apply strict scrutiny to the restriction, which, in First Amendment cases, almost always results in the restriction being overturned. Here, however, the Court held that only an intermediate level of scrutiny was required, which meant that the law needed to serve "an important or substantial government interest unrelated to the suppression of free speech" and that the law "not burden substantially more speech than necessary to further that interest."  ¶59.

The Court advanced two justifications for its use of intermediate scrutiny. First, the Court claimed that the restriction was not a content-based restriction. While acknowledging that the law only applied to the dissemination of sexual images, the Court noted that the dissemination of this content was only unlawful if it was done so in a situation where the person sharing the content obtains the image under circumstances where a reasonable person knows or should know that the image is to remain private and that the person has not consented to the image's dissemination. The Court therefore concluded that the illegality of the dissemination was not premised on the content of the image, but rather on the manner of the dissemination. The law was therefore a time, place, or manner restriction, which warrants only intermediate scrutiny.  ¶49.

Separately, the Court noted that the law only restricted the dissemination of information that is of purely private concern.  The Austin Court noted that the Supreme Court in Snyder v. Phelps and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. has recognized that restrictions on speech involving "purely private" matters does not threaten "free and robuse debate of public issues" and is less likely to "pose the risk of 'a reaction of self-censorship' on matters of public import." ¶54. The Court concluded that the defendant's sharing of sexual images did not involve an issue of public concern as they were privately-sent sexual images that did not "relate to any broad issue of interest to society at large." ¶56. The restriction on the dissemination of these issues therefore warranted intermediate, rather than strict, scrutiny.

The Court concluded that the restriction survived intermediate scrutiny, noting that it served a substantial government interest of protecting individual privacy rights and acknowledging that the dissemination of private sexual images causes "unique and significant harm to victims in several respects." ¶66. The Court then concluded that the restriction was tailored narrowly enough to survive a First Amendment challenge, as it defined what body parts or activities needed to be included in the prohibited images, required that the person in the image be identifiable from the image or information displayed with the image, required that the image be obtained under circumstances where a reasonable person would know or understand that it was to remain private, required that the person disseminating the image know that there was no consent to share the image, and also required that the person disseminating the images do so intentionally. ¶¶79-83. The law also included exemptions to the prohibition that included the dissemination of images for purposes of reporting a crime or for a "lawful public purpose."

II. The Court's First, Mistaken Rationale for Applying Intermediate Scrutiny

The Austin Court's first basis for concluding that the Illinois law was not subject to strict scrutiny was that it was a "time, place, or manner" restriction, rather than a content-based restriction on speech. The Court got to this conclusion by stating that the illegality of the dissemination of the sexual images is premised on the manner of how the images are shared. While sharing sexual images with the consent of the person pictured or in circumstances where the image was not expected to be private is permissible, doing so when there is no consent or where a reasonable person would recognize that the image was intended to remain private is prohibited. 

While this is correct, the fact remains that the illegality of sharing the sexual image is also premised on the content of the image. The law is a time, place, and manner restriction on speech, but it also only applies to certain content. Mark Bennett correctly notes that when restrictions have "both content-based and content-neutral elements," they are content-based restrictions that are subject to strict scrutiny. He cites R.A.V. v. City of St. Paul, where the Court addressed a law that prohibited "fighting words" that "insult[ed] or provok[ed] violence on the basis of race, color, creed, religion or gender." R.A.V., at p. 391. While fighting words are an unprotected category of speech, the Supreme Court held that it was unconstitutional to prohibited a content-based subset of that category. Id. at pp. 392, 396.

The approach used in R.A.V. undermines the Austin Court's reasoning. While some elements of the law involve the manner in which sexual images are shared, the law only applies to the sharing of sexual images or images of sexual content -- which is a content-based limitation. The law therefore is content-based, and the Court's attempt to sidestep this is a mistake.

III. The Second Rationale: Lesser Protection for Speech of Purely Private Matters

While the Austin Court's analysis on time, place, or manner restrictions is incorrect, it gave a second, stronger basis for its use of intermediate scrutiny by concluding that the speech at issue was "purely private" speech that was subject to a lower level of scrutiny.

In Dun & Bradstreet, the U.S. Supreme Court upheld a lower court's ruling affirming a jury's award of punitive damages after the defendant credit reporting agency shared a credit report for the plaintiff construction contractor that included false information. Dun & Bradstreet, at pp. 752-53. The Supreme Court noted that while it had previously recognized strong protections for speech on matters of public concern, speech of "purely private concern" warrants "less stringent" protection under the First Amendment. Id. at p. 760. The Court concluded that the credit report was speech of purely private concern, as it was made "solely in the individual interest of the speaker and its specific business audience." Id. at 762. The Court therefore held that permitting recovery of presumed and punitive damages was permitted, even absent a showing of actual malice.  Id. at 762.

The Austin Court uses Dun & Bradstreet and similar language from Snyder v. Phelps to support its conclusion that laws against disseminating private, sexual content are subject to intermediate scrutiny. Scott Greenfield criticizes this move by referring to "purely private speech" as a "non-category category" and accuses the Austin Court of relying solely on dicta from Snyder.  While this criticism is warranted to the extent that Snyder's invocation of lesser protection for purely private speech is dicta, it overlooks the basis for this doctrine in Dun & Bradstreet, which applied that lesser level of protection in upholding presumptive and punitive damages in a defamation case. Admittedly, the context of Dun & Bradstreet was different--as the Supreme Court was not evaluating the constitutionality of a criminal law restricting speech. But the rule set forth in Dun & Bradstreet was broad, and the Court applied that rule favorably in upholding an award of damages in a defamation case. It is neither surprising nor incorrect for a state court to apply this broadly-stated rule to a different set of circumstances, particularly one involving a law that requires the disseminated content to have been initially shared or kept in private circumstances. 

Bennett's criticism is less substantive, as he claims that the Austin Court identifies "speech on purely private matters" as a category of speech that is not subject to the same protection as other speech and that the Supreme Court has never recognized such a category. This misses the mark, as the Supreme Court in both Snyder and Dun & Bradstreet has recognized that speech on matters of purely private concern warrants a lesser level of First Amendment protection. It may not be a category of unprotected speech like defamation, fighting words, or obscenity, but as the Austin opinion demonstrates, the Supreme Court's First Amendment doctrine recognizes that purely private speech is subject to lesser protection, and this reasoning is certain to appear in future cases that involve similar laws against revenge porn. 

Bennett raised this same criticism back in 2014 when Danielle Citron set out proposed language for revenge porn restrictions. At that time, I argued that Bennett's critique of Citron's proposed law was misguided, as it ignored Supreme Court case law on lesser-protected speech of purely private concerns. Bennett dismissed that argument, claiming that the Supreme Court had not considered the "purely private concern" issues in recent cases involving First Amendment challenges to criminal statutes. In light of Austin, it seems that simply dismissing this aspect of First Amendment law is an unwise approach for those who wish to argue that revenge porn laws are unconstitutional. It is also unsurprising that Courts would look to this area of First Amendment law, as revenge porn prohibitions are often drafted to apply only to sexual images and content taken in a private setting and shared in a context where there is an expectation that the images will remain private. (For much more on how technology facilitates invasions of privacy and proposals to address these issues through legal and market efforts, see Citron's article, Sexual Privacy).

As the Cyber Civil Rights Initiative notes, the Illinois law is one of the strongest laws against non-consensual sharing of sexual imagery to survive a First Amendment challenge. Other states are likely to use the reasoning from this case in addressing challenges to their own laws. As other courts address these challenges, they will hopefully use the correct components of Austin's reasoning on lesser-protected speech rather than perpetuate the incorrect analysis on time, place, or manner restrictions.

UPDATE - 10/23/2019

In a measured response here, Bennett takes me to task for not reading extensive briefing that he filed in a separate case in Texas. His post on the Austin case was, after all, simply a "copy-and-paste" version of a brief he filed in the Texas case. My failure to review the briefing on that separate case--which was neither linked to nor referenced in his post on Austin--apparently "annoyed" him.

Bennett's brief from the Texas case, Ex Parte Jones, is included in his response. A link to the Court of Criminal Appeals page for that case where all the briefs can be downloaded is here. I have looked over the brief in Bennett's response and, to his credit, it addresses the private speech issue in far more detail than his original post. Heck, I might even write a separate post in response to those arguments one of these days now that it has been brought to my attention.

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.

Fish, the Fourth Amendment, and the Scope of Consent

It's always a pleasant surprise to see legal disputes that involve fish for nonsensical reasons, particularly fish-related disputes that may be heard by the United States Supreme Court. Cases involving salmon are of particular interest (see, e.g. here and here). 

I was therefore thrilled to see this report by James Gill of the New Orleans Advocate on the case of Jacson Moore, who thought he could successfully smuggle marijuana inside of frozen salmon. Moore thought wrong:

Baton Rouge police were staking out the UPS depot in Port Allen in 2012 when they noticed a package from Oakland, California, which is evidently the source of many illegal drug shipments. The package was addressed to Moore, who has a police record that would heighten suspicions that drugs were inside. 

The police department, of course, has sniffer dogs that could have settled the issue, but K-9 was not called in. Neither was a search warrant applied for. The cops just kept tabs.
Moore retrieved the package from his doorstep, re-emerging a little later with a Styrofoam container he put in the trunk of his car. He then drove off on an erratic path that indicated he was “heat checking” — trying to make sure the cops weren't on his tail. But they were, and, after 15 zigzagging minutes, he was pulled over. 

A rule of thumb might be that an offender with contraband in his car is best advised not to consent to a search, but Moore did so after being told that the police who stopped him were investigating an armed robbery. He evidently figured that nobody seeking the fruits of a heist would look twice at a few frozen members of the finny tribe. 

When the cops did, he said the fish were a present from his aunt. Officers cut them open and found the dope. Moore also gave them permission to search his apartment, where they found more cannabis and a gun.

Moore argued that the search was unconstitutional, and while the trial court agreed, its decision was overturned on appeal. The Louisiana Supreme Court declined to hear the case although Justice Crichton and Justice Weimar dissented. Joe Gyan Jr. of The Advocate reports that Moore is now trying to appeal to the United States Supreme Court:

In a legal brief filed at the Supreme Court, Messina claims the officers did not have probable cause to believe contraband was in the car, and he says Moore's consent to search the car was not freely and voluntarily given because officers lied about investigating a robbery. 

Messina acknowledges that officers can use deception during interrogations, but he stresses that such interrogations must be preceded by police informing the suspect of certain constitutional rights, such as the right to remain silent. 

"There is a distinction between misleading a defendant once he has relinquished a Constitutional right versus misleading a defendant in order to cause him to relinquish a Constitutional right," he argues in the Supreme Court documents.

There had better be a bit more to Messina's argument, since police can lie in order to gain consent for searches or entry onto property. No less a Fourth Amendment stickler than Justice Warren held that officers can lie about their identity to gain access to property in order to find evidence of drugs.

This is not to say that officers' ability to deceive is unlimited, nor is it to say that Moore does not have a decent Fourth Amendment argument. Indeed, the officers' lie about what they were searching for (evidence of an armed robbery), and the scope of their ultimate search raises significant constitutional concerns. But this case is not so much one of deceit as it is a test of the scope of consent in the Fourth Amendment context.

Police officers can ask for consent to search a suspect's home, vehicle, or person. If officers obtain consent to conduct a search, incriminating evidence that they discover can be admitted at trial. There are limits to the consent exception to Fourth Amendment protection. For one, the consent must be voluntary. Additionally, officers cannot exceed the scope of the authority they are granted by the subject's consent. As Justice Stevens wrote in Walter v. United States:

When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization. Consent to search a garage would not implicitly authorize a search of an adjoining house; a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers.

Moore consenting to a search of his vehicle puts him in a tough position, as the Court held in Florida v. Jimeno that giving officers consent to search a vehicle permits officers to search containers within the body of the car. A search of the trunk is a bit more complicated, though. From the Jimeno decision:

The facts of this case are therefore different from those in State v. Wells, supra, on which the Supreme Court of Florida relied in affirming the supression order in this case. There the Supreme Court of Florida held that consent to search the trunk of a car did not include authorization to pry open a locked briefcase found inside the trunk. It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.

So under Fourth Amendment law officers can search a closed paper bag in a trunk, but (as the Court noted in some very strong dicta) not a locked briefcase in the trunk. What about the interior of vacuum sealed salmon that are inside a Styrofoam container in the trunk of a car?

The fish in Moore's case are far more analogous to a closed, locked container than a closed paper bag. Officers had to open a Styrofoam container, cut through vacuum sealed wrapping, and open up the fish before they found the drugs. Moore therefore has a strong argument that the officers went beyond the scope permitted by his consent to a search of the vehicle when they searched the fish in the trunk.

Moore's argument is strengthened by the fact that the officers said that they were looking for evidence of an armed robbery when they obtained Moore's consent. In granting the officers consent to search his vehicle for evidence of an armed robbery, Moore likely did not expect that officers would extend their search to the interiors of vacuum sealed fish in the trunk of his car, and has a strong argument that the officers' search went beyond the scope of the consent he granted.

Based on the facts that have been reported, the ideal outcome would be for the United States Supreme Court to grant certiorari and reverse the Louisiana Court of Appeals' decision. Based on the percentage of cases that the Supreme Court agrees to hear, however, I think that such an outcome is unlikely. Accordingly, Moore is most likely out of luck.

As a final note, while this post may be a bit last-minute for law students this semester, this case is a fantastic basis for a criminal procedure exam. Students studying for exams now (and next semester) should take note of this case and the many issues it raises. There may just be a few professors out there who think that this story would make a solid issue-spotter.

Ninth Circuit: Double Negatives Don't Matter

In an opinion sure to shock the conscience of grammar enthusiasts around the nation, the Ninth Circuit ruled that a defendant's statement, "I don't want to talk no more," was a plain invocation of the defendant's right to silence.

The opinion is Jones v. Harrington, and you can read the whole thing here.

The defendant, Kevin Jones Jr., was arrested on suspicion of being involved in a shooting. During his interrogation, Jones made several inconsistent statements. From the opinion:

As detectives continued to press Jones about his implausible story, the following exchange occurred:

Jolivette: Kevin, do you think -- why don't you stop this man. 

Jones: All right. 

Jolivette: Stop this. The thing is you drove a car, it shows that on the tape and that's all I'm going to put down, as far as what you were doing. You drove the car. You just didn't know it was going to happen like that. Kevin, sit up, man. 

Jones: I don't want to talk no more, man. 

Jolivette: I understand that, but the bottom line is -- 

Jones: You don't want to hear what I'm telling you. 

Jolivette: I'm so sorry.  I can't -- you're mumbling, you got to speak up.  I got bad hearing. 

Jones: I'm telling you all.

From there, questioning continued as normal, and eventually Jones made incriminating statements. (emphasis in original)

The Ninth Circuit concluded that the officers violated clearly established law by continuing to interrogate Jones after he invoked his right to remain silent. The court concluded that Jones's request to remain silent was "unambiguous on its face," and "the only statements that could cast any ambiguity on Jones's initial invocation were statements he made after the fact" -- that is -- after officers continued to question Jones.

"Unambiguous on its face?" That's some pretty disturbing reasoning in light of Jones's statement, the wording of which indicated that he DID want to talk MORE in light of the two negative qualifiers cancelling each other out. But I guess that's the Ninth Circuit for you.

Video and the Future of Excessive Force Law

I just learned about the shooting and death of Philando Castile by police officers during a traffic stop in Falcon Heights, Minnesota. Buzzfeed, the Los Angeles Times, and CBS Minnesota currently have reports on the shooting, although I expect more outlets will report on this soon. From Buzzfeed:

A Facebook Live video posted Wednesday night appeared to show the aftermath of a black man’s fatal shooting by police officers in Falcon Heights, Minnesota. 

Saint Anthony police confirmed the man died but did not release his name. Multiple local news outlets identified him as 32-year-old Philando Castile.

Police said Wednesday that the shooting took place after a traffic stop about 9 p.m. local time. A gun was recovered from the scene. 

Saint Anthony Sgt. John Magsen said he was aware of the Facebook video, but couldn’t confirm that it was of the incident. The video was temporarily removed, but reappeared on the page later with a graphic warning. 

. . .

The video was posted by Lavish Reynolds, who said she was the man’s girlfriend and streamed the graphic encounter from the seat of a car. The man is seen sitting in the other seat, his white shirt soaked in blood.

The link in the text quoted above leads to Reynolds' Facebook account. Currently, the video is the top post at the account, and those who wish to view it are warned that it is indeed graphic.

The Castile shooting follows on the heels of the widely publicized shooting of Alton Sterling, which occurred early on Tuesday in Baton Rouge, Louisiana. Reports on the Sterling shooting can be found here and here. As the Washington Post reports, the Sterling shooting lead to "outrage" and protests, the force of which were bolstered by a trend of widely-publicized instances of lethal force:

Police departments nationwide have grappled with how to quell public distrust after police shootings. Protests have erupted in dozens of major U.S. cities —from Cleveland to Minneapolis to New York — in response to police shootings during the past two years. In both Ferguson, Mo., and Baltimore, demonstrations gave way to nights of rioting and violence as frustrated community members demanded answers following the deaths of Michael Brown in Ferguson, and Freddie Gray, who died in police custody in Baltimore.

Both the Castile and Sterling incidents involved graphic video of the shootings. As smartphones continue to proliferate, it is far easier for witnesses or parties to obtain footage of instances in which law enforcement officers allegedly exercise excessive force. In both the Castile and Sterling incidents, videos of the incidents (or their aftermath) quickly spread across the internet, prompting strong reactions and criticism of the police officers' conduct.

Cases like this lead me to wonder whether the spread of easily-accessible video technology will lead to changes in excessive force law, particularly in cases involving lethal force. The Castile case in particular reminded me of an excessive force (42 U.S.C. §1983) lawsuit in Gonzalez v. City of Anaheim, (which I learned about through Shaun Martin's excellent California Appellate Report) back in 2013. Gonzalez consists of two opinions: a 2013 opinion by a three-judge panel, and a 2014 opinion in which an en banc Ninth Circuit reversed the 2013 decision. In Gonzalez, officers stopped Gonzalez's vehicle after observing Gonzalez make an illegal left turn and weave within his lane, and after noting that, after running the vehicle's plate, that "the van had been involved in a prior narcotics stop." The 2014 decision describes what ensued:

The officers exited their vehicle and approached the minivan from both sides. Ellis approached from the driver's side, and Wyatt approached from the passenger side. Wyatt drew his gun. Wyatt thought he saw Gonzalez reach for something between the driver and passenger seats and warned Gonzalez that if he reached down again, Wyatt would shoot. Gonzalez at that point complied and held his fists in his lap. 

The officers told Gonzalez to turn off the vehicle and open his hands, which he held clenched. Ellis tried to open the driver's side door, but it was locked. The officers reached through the minivan's open windows and opened the driver and passenger side doors. Ellis saw Gonzalez pull his hand out of a bag located between the two front seats. Ellis observed a plastic bag in Gonzalez's right fist. Ellis told Gonzalezto turn off the vehicle and give him his hands. Gonzalez did not respond to that command. 

Wyatt reached into the car, struck Gonzalez's elbow three times with a flashlight, and told Gonzalez to open his hand. Gonzalez then raised his hand up to his mouth, as if to swallow what he was holding. Ellis grabbed Gonzalez. Wyatt testified that he thought Ellis was trying to apply a carotid restraint, but Ellis testified that he was only trying to gain control of Gonzalez's hands. Wyatt also observed that Gonzalez had a clenched fist and was reaching downward with his left hand. Wyatt called for assistance on his police radio. Wyatt went around to the driver's side to try to help Ellis restrain Gonzalez, but was not able to do so. 

Wyatt went back to the passenger side, entered the minivan, and began punching Gonzalez in the head. Ellis observed Gonzalez reaching for the minivan's gear shift with his right hand. Ellis thought Gonzalez was attempting to shift the car into drive so Ellis used his flashlight to hit Gonzalez on the back of the head to try to stop him. 

Despite the officers' efforts, Gonzalez managed to shift the minivan into drive, and the minivan began moving. Ellis withdrew from the vehicle as it began moving and struck Gonzalez in the head as he did so. The front passenger door closed behind Wyatt, who remained in the vehicle. 

Ellis stated that Gonzalez "stomp[ed]" on the accelerator. Wyatt said that Gonzalez"floored the accelerator" and that the vehicle "violently accelerated."
Wyatt yelled at Gonzalez to stop the car, but he kept going. Gonzalez swatted Wyatt's hand away as he tried to turn off the ignition or shift the transmission to neutral or park. Unable to stop or gain control of the car, Wyatt drew his weapon and shot Gonzalez in the head, killing him. He shot from a distance of less than six inches. The minivan hit a parked car and came to a stop. 

Wyatt testified that he fired the shot less than ten seconds after the car started moving, and it could have been less than five seconds. He estimated that the car moved approximately 50 feet in that time and was going 50 miles per hour at the time of the shot.

The initial majority determined that the Plaintiff's excessive force lawsuit was barred by qualified immunity, noting that "when Gonzalez tried to shift the van into drive with an officer in the vehicle, the situation became substantially more dangerous, and the officers' justification for force increased commensurately." Judge Clifton dissented, however:

"Deadly force cases pose a particularly difficult problem," we have observed, "because the officer defendant is often the only surviving eyewitness." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994). This is one of those cases. Rafael Gonzalez is dead and cannot speak for himself.

Judge Clifton also noted that there were inconsistencies in the officers' testimony and ultimately wrote the en banc decision reversing the 2013 opinion, reiterating the importance of consistent officer testimony:

Because Gonzalez is dead, the police officers are the only witnesses able to testify as to the events that led to Gonzalez's death. In such a circumstance, we must carefully examine the evidence in the record to determine whether the officers' testimony is internally consistent and consistent with other known facts. After conducting such a review, we conclude that a significant inconsistency in the officers' testimony was sufficient to present a genuine dispute of material fact. Based on the current record, summary judgment on the plaintiffs' claim for deadly excessive force was inappropriate. We reverse and remand that claim for further proceedings.

Of particular note was the testimony regarding the distance the vehicle traveled and its speed:

As described above, Ellis testified that Gonzalez "stomp[ed]" on the accelerator, and Wyatt said that Gonzalez "floored" it. Wyatt specifically testified that the minivan "violently accelerated." But that is not entirely consistent with Wyatt's other testimony. His story was that the minivan moved 50 feet in five to ten seconds but was going 50 miles per hour when he shot. 

That combination of facts appears to be physically impossible. There are three pieces to this puzzle: the speed of the minivan at the time of the shot, the distance it traveled, and the time that elapsed. These pieces don't fit together. As plaintiffs argued to the district court, a vehicle that traveled 50 feet in ten seconds would have an average speed of only 3.4 miles per hour. If the time period is cut to five seconds, the average speed increases only to 6.8 miles per hour. Even accepting that the minivan would be gaining speed while accelerating, an average speed of 3 to 7 miles per hour appears inconsistent with Wyatt's testimony as to the speed of the vehicle and with the testimony of both Wyatt and Ellis that Gonzalez floored or stomped down on the gas.

In Gonzalez, the officers' testimony proved mathematically inconsistent, which substantially contributed to the reversal of the earlier decision. This inconsistency presented at least enough of a factual dispute to defeat the defendants' motion for summary judgment.

But how often will there be testimony in a lethal force case in which officers' statements paint a mathematically impossible portrait of the facts? I suspect that similar contradictions are absent from the testimony most cases involving lethal force as the Plaintiffs are unable to contradict the officers' statements.

Video, however, may change things. Admittedly, the Castile and Sterling cases are not perfect examples, as both cases involved separate witnesses who were shooting the videos. Had the witnesses not taken the videos, they still would be available to testify. But the videos and their wide publicity confirms the existence of these witnesses and moves them into the spotlight as public figures who now would almost certainly testify in depositions or any ensuing excessive force trial. And even in the absence of third party witnesses, the Plaintiff in a deadly force case may still take a video prior to his or her death, and video of the incident may be captured on officers' body cameras.

In addition to raising public awareness of excessive force incidents, video footage may lead to a change in the law of excessive force (or at least the practice of excessive force law). Video evidence may give judges pause before determining that there is no dispute of material facts. Indeed, video footage may prevent a case from ever reaching a summary judgment stage, as it may lead defendants to believe that a summary judgment motion may be futile.

It is too early to determine what the outcome would be any any criminal or civil cases that may arise from the Castile or Sterling incidents. But cases like these demonstrate that the future of excessive force litigation is likely to change as videos of alleged instances of excessive force become more common.

Voisine and the Significance of Second Amendment Silence

The Supreme Court released an opinion today in Voisine v. United States (full opinion here), a case described by Rory Little of SCOTUSblog as both "arcane" and "unremarkable." But the case involves guns and statutory interpretation, so here I am writing about it.

Voisine concerns 18 U.S.C. §922(g)(9) which prohibits those who have previously been convicted of a "misdemeanor crime of domestic violence" from possessing firearms.  18 U.S.C. §921(a)(33)(A) defines the Section 922(g)(9) prohibition to encompass anybody previously convicted of a misdemeanor against a domestic relation that necessarily involves "the use or attempted use of physical force."  The question before the Court: whether Voisine's prior conviction for misdemeanor assault against his girlfriend in violation of Section 207 of the Maine Criminal Code constituted "the use or attempted use of physical force" under the federal law.  Section 207 of the Maine Criminal Code prohibits a person from "intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to another person." The central issue: whether "reckless" use of force is sufficient to constitute a prior use of force, or whether the prior crime had to involve knowing or intentional use of force.

In this post, I will first explore Voisine's quirky background, then outline the statutory arguments that constituted the bulk of the Majority and Dissenting opinions. I then turn to the Second Amendment issue, which rears its head only in Justice Thomas's solo dissent, and explore whether the Court's silence on this issue signals how it may address future cases with potential Second Amendment questions.

In Washington, Your Trash is Private, But Not Your Abandoned DNA

So reports the Seattle Times:

Seattle’s ordinance allowing garbage collectors to look through people’s trash — to make sure food scraps aren’t going into the garbage — was declared “unconstitutional and void” Wednesday afternoon by King County Superior Court Judge Beth Andrus.

The Court's order is here.  The Court held that looking through people's garbage was an unconstitutional search in violation of resident's reasonable expectation of privacy.

"But wait!" one may say, "What about California v. Greenwood, in which the United States Supreme Court held that there was no Fourth Amendment violation when officers searched the trash bags a suspect left to be picked up on the curb in front of his house?"

To answer the inquisitive Fourth Amendment enthusiast: Washington law governing searches and seizures provides a heightened level of protection. Here is the relevant language from the Court's order:

The Washington Supreme Court diverged from California v. Greenwood when analyzing the issue under Art. I, §7. In State v. Boland, 115 Wash.2d 571, 800, 800 P.2d 1112 (1990), the Supreme Court held that under our state constitution, a defendant's private affairs were unreasonably intruded on by law enforcement officers when they removed garbage from his trash can and transported it to a police station to be searched by state and federal narcotics agents. The Supreme Court held that any resident who places garbage in a can and puts it on the curb for collection reasonably believes the garbage will not be subjected to a warrantless governmental search. 115 Wash.2d at 578. "While a person must reasonably expect a licensed trash collector will remove the contents of his trash can, this expectation does not also infer an expectation of governmental intrusion." Id. at 581. In other words, we expect the collector to pick up our garbage and remove it for proper disposal; we do not expect that the government will search the contents of our garbage bags to identify evidence of wrong-doing.

On the one hand, the court's reliance on Washington's unique constitutional privacy protections and case law limits the scope of this ruling.  But on the other hand, this ruling highlights how state constitutions may provide more protection than the federal constitution.

The logic behind Washington's protection of privacy in trash has its limits. Elizabeth Joh noted the potential for the court's order to effect the law governing expectations of privacy in abandoned DNA (which is what interested me in this case in the first place). After some digging, however, I found that defendants would be hard pressed to extend State v. Boland or the logic of this more recent trash ordinance injunction case to the government's collection and testing of abandoned DNA.

In State v. Athan, the Washington Supreme Court found no violation of Article I, section 7 of the Washington State Constitution when the police employed a creative scheme to obtain a suspect's DNA:

The detectives invented a ruse to obtain Athan's DNA without making Athan aware they had resumed investigating Sumstad's murder. Posing as a fictitious law firm, the detectives sent Athan a letter inviting him to join a fictitious class action lawsuit concerning parking tickets. The letterhead contained the names of the "attorneys," all of whom were employed by the SPD. Believing the ruse to be true, Athan signed, dated, and returned the enclosed class action authorization form and attached a hand-written note stating, "if I am billed for any of your services disregard my signature and my participation completely." Ex. 53.

 ¶ 6 Athan's reply was received by Detective Diaz, one of the "attorneys" listed on the letterhead. Without opening it, Diaz gave the letter to another detective who forwarded it to the crime lab. A lab technician opened the letter, removed and photographed the contents, cut off part of the envelope flap, and obtained a DNA profile from saliva located on the flap. The DNA profile from the envelope matched the DNA profile from the semen found on Sumstad's body. Based primarily on the results of the DNA testing, the prosecuting attorney filed an information and probable cause statement to secure an arrest warrant for Athan.

This, the Washington Supreme Court held, did not violate Washington's constitutional equivalent of the Fourth Amendment.  Here is the relevant analysis:

We find there is no inherent privacy interest in saliva. Certainly the nonconsensual collection of blood or urine samples in some circumstances, such as under the facts of Robinson, invokes privacy concerns; however, obtaining the saliva sample in this case did not involve an invasive or involuntary procedure. The relevant question in this case is whether, when a person licks an envelope and places it in the mail, that person retains any privacy interest in his saliva at all. Unlike a nonconsensual sampling situation, there was no force involved in obtaining Athan's saliva sample here. The facts of this situation are analogous to a person spitting on the sidewalk or leaving a cigarette butt in an ashtray. We hold under these circumstances, any privacy interest is lost. The envelope, and any saliva contained on it, becomes the property of the recipient.

The Court goes on to consider and dismiss concerns that DNA may reveal a great deal of information about a suspect, noting that in this case, the testing done on the DNA was restricted to the defendant's identity.

Under Article I, Section 7 of the Washington State Constitution, you can reasonably expect that the government will not search through trash that is placed on the curb for collection. It is not reasonable, however, to expect that the government will not test the DNA in your saliva on an envelope you mail to what you think is a law firm. While states may protect rights beyond protections found in the United States Constitution, Washington teaches us that these extended protections may end up being quite limited in scope.

Varriale v. State: DNA Submitted Without Express Limitation on Consent Can be Used to Investigate Other Crimes

So holds Maryland's Court of Appeals (the state's court of last resort), in Varriale v. State. The opinion can be found here. Here is the abstract of the case provided by the Court:

The use of a buccal swab inside a person’s cheek to obtain DNA samples for testing is a search. Generally, a DNA sample may be obtained from an individual for testing by consent, pursuant to a warrant, or other court order. If a person’s DNA profile created from a DNA sample is in the lawful possession of the police for examination by consent and does not exceed the scope of the consent given to conduct the search, there is no Fourth Amendment violation. Moreover, the subsequent examination and use of the DNA in an unrelated investigation is not a search. Here, the defendant did not expressly limit the testing and/or use of his DNA. Any legitimate expectation of privacy that Varriale had in the identifying information contained in his DNA obtained from his cheek cells and penile area evaporated when his DNA was lawfully seized; it did not reappear when law enforcement officers compared his DNA sample to other samples and obtained a match.

Spencer Hsu at the Washington Post covers the case here. Additional coverage from the Baltimore Sun is available here.

To summarize the facts of the case: officers investigating a reported rape learned that George Varriale had been located near the scene of the crime. They asked for his consent to collect DNA evidence from his person, and Varriale agreed. While Varriale's DNA did not implicate him in the rape, his DNA ended up matching a sample collected in 2008 in a burglary. Varriale was charged with the 2008 burglary and after his motion to suppress the DNA evidence was denied, he entered a conditional guilty plea which preserved his rights to appeal.

Varriale is one of several recent cases that illustrate how evolving technologies can strain the acceptability of long-established concepts in Fourth Amendment law. An example of an earlier one of these cases is the 2014 U.S. Supreme Court case, Riley v. California, which involved officers searching the cell phone of an arrestee. Under the long-established concept of searches incident to arrest, officers are permitted to search the person, and immediate surroundings of an arrestee, including containers within that area. In Riley, however, the Court held that this doctrine does not extend to the contents of a cell phone. Noting the wealth of information cell phones contain, the Court held that the search incident to arrest doctrine did not justify the search.

In Varriale, the concept being tested is consent. Well-established Fourth Amendment doctrine states that police officers may search somebody's person, vehicle, or house as long as the person voluntarily consents to the search. Officers are not required to inform the person that he or she has the right to refuse consent. Officers' searches, however, are limited based on the scope of the person's consent. For example, if a suspect consents to a search of her car, that does not mean that officers may search her house -- they would be required to ask that suspect's consent to extend the scope of the search to her house.

Varriale illustrates a broad approach to consent in the DNA context. Mr. Varriale signed a written consent form for the collection of DNA evidence which included the following clause:

I realize that if I do consent to a body search, that any evidence found to be involved in this investigation, being conducted by the Anne Arundel County Police Department can be used in any future criminal prosecution.

Varriale argued that the phrase "any evidence found to be involved in this investigation" limited the scope of the permissible search to the investigation into the suspected rape. The prosecution argued that the phrase "can be used in any future criminal prosecution" indicated that the officers' use of the DNA was not limited to the rape investigation.

The Court held that Varriale's consent to the search was enough to remove any reasonable expectation that officers would not use the DNA to investigate additional crimes. Rather than focusing on the language of the consent form, the Court centered its reasoning around the nature of DNA, and that DNA, like fingerprints, retains the same identifying information over time. The Court held that it was reasonable to expect that officers would retain the DNA sample for future use in investigating other cases, and noted that the defendant did not expressly limit the scope of his consent to the present case. Accordingly, Varriale did not have a reasonable expectation that officers would not use his DNA sample to investigate other crimes.

Officers are not required to tell suspects that they have the right to refuse consent. And Varriale establishes that officers are not required to describe the potential scope of the investigation that may be done into evidence submitted with consent. Instead, it is reasonable for suspects to expect that their DNA may be used for identification purposes in other cases since DNA information provides identification information that remains consistently accurate over time.

Does this broad approach to consent go too far? Suspects who are asked to submit samples of their DNA may be focused on the case at hand, especially if the suspects know that the case involves a crime like rape in which DNA will likely be crucial evidence. These suspects might not realize that state governments and investigating agencies retain DNA databases like fingerprint databases, and therefore may not realize that their consent may implicate them in other matters. Without a statement that the DNA evidence may be retained and used in other cases, suspects may expect that their DNA will be used only in the present investigation.

And while DNA may be analogized to fingerprints, DNA contains more information than fingerprints provide. For example, somebody's DNA may be a close, but not exact, match to another sample. Such a close match might indicate that the person whose DNA was collected is related to the person who provided the other sample. These so-called "familial" matches may be used to investigate crimes as well. For instance, had Varriale's DNA been a close match to a sample in the database, officers may have inquired as to whether Varriale had any close family members and investigated their potential involvement in the 2008 burglary. The wide scope of possible uses for DNA samples requires courts to stretch the assumption that those consenting to the collection of their DNA are truly aware of what their consent entails.

As DNA continues to become a more commonly-used tool to investigate crimes, I would not be surprised to see more cases like Varriale make their way through the courts. It will be interesting to see how other courts address the doctrine of consent in DNA cases, And if courts end up reaching different conclusions, I would not be surprised to see the Supreme Court ultimately take up this issue.

The Supreme Court's "Superspecial" Kimble Opinion

Today, the Supreme Court released several opinions, including Kimble v. Marvel Entertainment. Kimble involves the question of whether a party may contract for payment of patent royalties after the patent's expiration. The opinion has attracted a great deal of attention -- not due to its answering this question in the negative and adhering to the precedent set in Brulotte v. Thys Co., 379 U.S. 29 (1964) -- but instead because of its numerous references to Spider-Man and superheroes. The case, after all, includes Marvel Entertainment as a party, and concerns "a toy that allows children (and young-at-heart adults) to role-play as 'a spider person' by shooting webs—really, pressurized foam string—“from the palm of [the] hand.'"

For example, in the concluding paragraphs of the majority opinion, Justice Kagan notes;

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “SpiderMan,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”).

Coverage noting the references in Justice Kagan's majority opinion can be found here, here, here, and here.

Also of note is this paragraph:

As against this superpowered form of stare decisis, we would need a superspecial justification to warrant reversing Brulotte. But the kinds of reasons we have most often held sufficient in the past do not help Kimble here. If anything, they reinforce our unwillingness to do what he asks.

After a bit of searching, it appears that this is the first federal court opinion to use the word "superspecial." A few other opinions contain the hyphenated phrase, "super-special" -- often as part of a quotation -- but Kimble is the first to employ the single-word term. Kimble also appears to be the first Supreme Court opinion to use the term, "superpowered." Several opinions in the lower court have employed this phrase (see, e.g., Twentieth Century Fox Film Corporation v. Marvel Enterprises, Inc., 277 F.3d 253, 255 (2002) ("In 1963, Marvel began publishing a comic book series entitled 'X-Men,' featuring a group of young, superpowered mutants led by Professor X, an older, superintelligent leader who sought to train his students and to protect them from a hostile society.")). But Justice Kagan's majority opinion appears to be the first instance of the Supreme Court using this word.

Kimble concerns a technical subject. But due to Justice Kagan's marvelous writing and references, the opinion is a delight to read.

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.

Supreme Court Narrowly Decides Online Threats Case, Elonis v. U.S.

At long last, the Supreme Court has issued an opinion in Elonis v. United States. I blogged about the opinion back when the Court granted certiorari in Elonis to answer this question presented:

Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

Yesterday, the Supreme Court held that the "reasonable person" test is insufficient to support a conviction under 18 U.S.C. § 875(c). The Court did not address what level of intent is required to support a conviction, and the Court did not decide whether the reasonable person test was unconstitutional under the First Amendment.

The Court's opinion is available here. Coverage from Lyle Denniston at SCOTUSBlog is available here.

This high-profile case was eagerly awaited by many legal commentators, but ultimately resulted in a very narrow decision. Eugene Volokh notes the narrowness of the case here, and Orin Kerr argues that this narrowness was a good call.

While the Elonis case involved arguments touching on constitutional law, it is important to note that the Court explicitly avoided addressing First Amendment issues. Accordingly, while coverage noting that the Elonis decision is a victory for free speech may involve technically accurate descriptions of the ruling, readers should keep in mind that the Court did not wade into the question of whether 18 U.S.C. § 875(c) violates the First Amendment -- even if the statute is applied in a manner that asks whether a reasonable person would feel threatened by the statement.

Moreover, while the Court did indeed conclude that a defendant prosecuted under 18 U.S.C. § 875(c) must have a level of intent greater than negligence, it is important to note that this does not mean that a defendant must "intend to threaten" somebody in the conventional sense of the word. Summaries of the opinion claiming that defendants now must truly intend to make a threat, while accurate, may be misleading, since this language suggests that an individual must make a statement with the purpose to threaten somebody.

But the Court did not decide that a statement must be made with the purpose to threaten -- the Court simply held that it is not sufficient that the prosecution prove that a defendant negligently made a statement that would cause a reasonable person to regard the statement as threatening. A defendant may possibly violate 18 U.S.C. § 875(c) if he or she knowingly or recklessly makes a statement that another may feel threatened by. For instance the prosecution may succeed if it proves that a defendant made a statement that he or she knew would cause another to feel threatened, or that the statement would create a substantial risk that somebody else would feel threatened. The Court did not hold that the prosecution must prove that a statement is made with the purpose to threaten another. Readers in the legal community should have no trouble noting that "intent" does not necessarily mean "purpose." But I fear that the wider audience who reads broadly-worded commentary on the decision will be left with an impression that the Court's ruling is far wider than it actually was.

Ultimately, Elonis is a narrow decision, and I suspect that there is a great deal of litigation still to come that will attempt to answer the questions that Elonis leaves open. In the meantime, I hope that commentators and the general public will recognize Elonis for its narrowness rather than criticizing it or praising it for what it is not. Elonis is not a landmark victory for the First Amendment. Nor does it give people carte blanche to threaten others online. Elonis simply prohibits one way of interpreting 18 U.S.C. § 875(c) and leaves questions of free speech and required levels of intent for another day.

Some Harsh Words on Dueling

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

The court was not persuaded by Smith's claim that killing another person in a duel was less-deplorable than killing a person in different circumstances:

Taking the petition for true, and how does the case of the defendant stand? By the laws of God, the laws of England from the days of the Edwards; by the laws of Kentucky and Tennessee, and every civilized land, he is declared to have been guilty of wicked and malicious murder, and a felon fled from justice. Is it possible that any well balanced mind can, for a moment, believe that a man whom the law thus condemns, is a fit person to be an aider and adviser in the sanctuaries of justice! 

We are told this is only a kind of honorable homicide! The law knows it as a wicked and wilful murder, and it is our duty to treat it as such. We are placed here firmly and fearlessly to execute the laws of the land, not visionary codes of honor, framed to subserve the purposes of destruction. (237).

The court did not have kind words when describing the various types of people who participate in duels:

It is true, as a part of the history of our species, that many men of strong minds have equally strong passions, which are ill controlled, and subject such men to grosser errors than others with fewer mental advantages; these are the men of worth that fight duels, having no guide but blind and reckless passion when aroused, regardless of their own lives or those of others; hence their conduct furnishes the worst possible evidence upon which to ground a rule for the government of society. This class of duellists are not less wicked than others we will name, but their standing renders it more difficult to punish them. 

Another set of men fight duels (or more generally make a show towards it) to gratify their vanity, by drawing upon themselves a little temporary notice, which their personal worth or good conduct cannot procure. These are always worthless coxcombs, equally destitute of bravery, virtue, or sense, whose feeble nerves would be shattered and prostrated at the sight of an enemy in the field of battle, who are ridiculous in every situation where courage or conduct is required. This class of duellists do little harm other than to disturb the community; they quarrel to make peace; or if officious intermeddlers force them into a fight, are too much alarmed to hit, or perhaps see, their antagonist. The affair is laughed at as a farce, and the parties turned over to the constable. (233).

And recently-admitted attorneys in Tennessee should take note that dueling will most likely have a negative effect on one's ability to practice law:

Let it be once understood that the bar of Tennessee dare not fight, and it will be deemed cowardly to challenge a member of it; and this court solemnly warns every lawyer, that if he violates the laws made to suppress duelling, we will strike him from the rolls of the court, upon the fact being made known to us. The truth is, such men are too often insolent and impudent bullies, who tyrannise over, and impose upon, all orderly men about them; who literally dragoon society, by fear of personal violence, into silence and seeming acquiescence, with respect to their conduct. That such a counsellor is a disgrace, and serious encumbrance to any court where he is permitted to practice, all will admit; those who engage in duels, the statutes deem, and we will treat, as of this description. (234).

Dueling is generally frowned upon in most jurisdictions. Other commentators have noted that dueling convictions have historically led to serious collateral consequences beyond criminal punishment or the ability to practice law. But of the various cases I have read on the subject of dueling, the language in Smith v. State is the most colorful and dramatic that I have been able to find so far.

Fourth Amendment Stops and Mistake of Law in California

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

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

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

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

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

This opinion is worth noting because of the Supreme Court's impending decision in Heien v. North Carolina. There, the Court took up the question: "Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop." Analysis on Heien is available here and here. The Court heard arguments on October 6, 2014.

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

We agree that Proposition 8 did not repeal either section 13 or section 24 of article I. The substantive scope of both provisions remains unaffected by Proposition 8. What would have been an unlawful search or seizure in this state before the passage of that initiative would be unlawful today, and this is so even if it would pass muster under the federal Constitution. (3b) What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.

Under the Truth in Evidence Rule, the scope of the exclusionary rule for unlawfully-obtained evidence is governed by federal constitutional law rather than California constitutional law. If the Supreme Court ends up concluding that an officer's mistake of law can form the reasonable suspicion necessary to justify a stop, then Heien will effectively overrule Campuzano, since the United States Supreme Court has the final word on the extent of the Fourth Amendment's exclusionary rule.

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

OCTOBER 2019 UPDATE

In reviewing this post, I found that Campuzano was erroneously labeled as a Court of Appeal case, rather than a case from the appellate division of the San Diego Superior Court. While decisions from superior court appellate divisions may be cited as persuasive authority, they are not binding. The post has been updated to correct this error.

Parents' Liability for Their Children's Online Conduct

The Wall Street Journal Law Blog has this interesting post about Boston v. Athearn, a recent case from the Court of Appeals of Georgia. From the Law Blog:

The Georgia Court of Appeals ruled that the parents of a seventh-grade student may be negligent for failing to get their son to delete a fake Facebook profile that allegedly defamed a female classmate. 

The trouble started in 2011 when, with the help of another student, the boy constructed a Facebook profile pretending to be the girl. He used a “Fat Face” app to make her look obese and posted profane and sexually explicit comments on the page depicting her as racist and promiscuous, according to court documents. 

When the girl found out about it, she told her parents who then complained to the school’s principal. The school punished the boy with two days of in-school suspension and alerted his parents, who grounded him for a week. 

But for the next 11 months, according to the appeals court opinion, the page stayed up. It wasn’t deleted until Facebook deactivated the account at the urging of the girl’s parents, the opinion said. The girl’s lawyer says the child’s parents didn’t immediately confront the boy’s parents because their school refused to identify the culprit for confidentiality reasons.

The full opinion of the court is available here.

The court emphasized that the parents had been notified of their child's online conduct, and pointed out that the nature of online defamation created an ongoing harm to the plaintiffs. From the opinion:

In this case, it is undisputed that Dustin used a computer and access to an Internet account improperly, in a way likely to cause harm, and with malicious intent. The Ahearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin’s use of the computer and Internet account. The Ahearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile. While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.

Given the nature of libel, the original tortious conduct may continue to unfold as the false and injurious communication is published to additional readers or the defamatory content persists in a public forum without public correction or retraction. With regard to the instant action, we conclude that a reasonable jury could find that, after learning on May 10, 2011, of Dustin’s recent misconduct in the use of the computer and Internet account, the Ahearns failed to exercise due care in supervising and controlling such activity going forward. Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the Athearns’ negligence proximately caused some part of the injury Alex sustained from Dustin’s actions (and inactions). Accordingly, the trial court erred in granting the Athearns’ motion for summary judgment in part. (footnotes omitted).

Critics have spoken out against this ruling, arguing that it is undesirable or that the negligence lawsuit should have been barred by section 230 of the Communications Decency Act (CDA). I think that this ruling is far less problematic than the critics have argued, and I explain my reasoning after the break.

Ninth Circuit: CDA Section 230 Does Not Bar Failure to Warn Lawsuit Against Website

Under Section 230 of the Communications Decency Act (CDA), websites are generally not liable for harm caused by content posted by third parties. This is because the CDA provides that websites will not be treated as the publishers of that content for purposes of liability. 

To illustrate, if I post something defamatory on this blog, the person I defame may have a viable claim against me, but not against Blogspot or Google, the platforms on which this blog is run. I explain this law in more detail here.

Every once in a while, courts find that a website encourages the third party's harmful statements in such a way that the website can be liable. But these decisions are a rare exception to the general rule.

Yesterday, the Ninth Circuit released the opinion Doe v. Internet Brands, Inc., an important case that illuminates the boundaries of websites' immunity. While websites may be shielded from lawsuits that concern the statements of third parties, the websites may be liable in failure to warn lawsuits, since those causes of action do not require the inference that the website was the publisher of third parties' statements. While I think that the opinion reaches a correct result, the Ninth Circuit maintains that its reasoning is consistent with the underlying goals of section 230 -- a claim over which I have some doubts.

A Notable Approach to the Exclusionary Rule in the Ninth Circuit

Over the weekend, I learned about the Ninth Circuit case, United States v. Dreyer. At The Volokh Conspiracy, Eugene Volokh has a post containing the notable selections of the opinion. Here are the facts of the case, as laid out by the majority:

In late 2010, NCIS Special Agent Steve Logan began investigating the distribution of child pornography online. Several months later, from his office in Georgia, Agent Logan used a software program, RoundUp, to search for any computers located in Washington state sharing known child pornography on the Gnutella file-sharing network.

Agent Logan found a computer using the Internet Protocol (IP) address 67.160.77.21 sharing several files identified by RoundUp as child pornography. He downloaded three of the files, two images and a video, from that computer. After viewing the files, Agent Logan concluded that they were child pornography.

Thereafter, Agent Logan made a request for an administrative subpoena for the name and address associated at the time of the downloads with the IP address. He submitted his request to NCIS’s representative at the National Center for Missing and Exploited Children, which turned the request over to the Federal Bureau of Investigation (FBI). The FBI sent an administrative subpoena to Comcast. Comcast responded by providing Dreyer’s name and address in Algona, Washington.

After receiving that information, Agent Logan checked a Department of Defense (DoD) database to determine if Dreyer had a military affiliation. He found that Dreyer had no current military affiliation. Agent Logan then wrote a report summarizing his investigation and forwarded it and the supporting material to the NCIS office in the state of Washington. That office then turned the information over to Officer James Schrimpsher of the Algona Police Department. (footnotes omitted).

The majority concluded that Agent Logan's investigation violated the Posse Comitatus Act, which prohibits military personnel from conducting or assisting in civilian law enforcement activities unless authorized by law.

The most notable part of the opinion comes near the end, where the majority concludes that the violation of the Posse Comitatus Act warrants the exclusion of the evidence Agent Logan obtained. From the opinion:

The extraordinary nature of the surveillance here demonstrates a need to deter future violations. So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over the information to civilian law enforcement when no military connection exists.

This is squarely a case of the military undertaking the initiative to enforce civilian law against civilians. “There must be an exceptional reason” to invoke the exclusionary rule for violation of posse comitatus-like regulations, United States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982), and the broad use of military surveillance of overwhelmingly civilian populations is an exceptional reason. 

Agent Logan carried out these searches repeatedly. He was monitoring another computer at the same time that he found Dreyer’s IP address. And he was involved with at least twenty other child pornography investigations. Further, Agent Logan was not the only NCIS agent who engaged in such searches. He began carrying out these searches with two other agents at least several months before he found Dreyer’s IP address. (footnotes omitted).

At Just Security, Steve Vladek analyzes this portion of the opinion, noting that Judge O'Scannlain dissented in part, taking issue with the majority's conclusion that exclusion of the evidence was warranted. Vladek analyzes O'Scannlain's reasons, and notes that there is a broad question as to whether exclusion is the proper remedy for a statutory violation in light of the Supreme Court's "ever-growing hostility to the exclusionary rule." At The Volokh Conspiracy, Will Baude has additional analysis, noting that he is skeptical of the majority opinion, and highlighting various theories of the exclusionary rule that may apply, including one theory based in due process advanced by Richard Re in a recent article.

This case is certainly worth watching. If the Supreme Court is indeed engaged in a broader project of narrowing the scope of the exclusionary rule, reversing this case would be a convenient way to continue this undertaking. Additionally, this case might bring attention to the military's law enforcement activities and prompt other courts to confront the question of excluding any evidence that violates the Posse Comitatus Act. If additional courts confront this issue, their opinions may clarify the precise theory of the exclusionary rule that is in play.

UPDATE - 9/15/2014

Orin Kerr comments on the case here. He notes that Dreyer demonstrates an approach to the exclusionary rule that is similar to courts' approach in the mid 1900s and suspects that the Ninth Circuit's opinion would be "very vulnerable" if it were appealed to the Supreme Court.