Boating Under the Influence and Probable Cause

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

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

. . .

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

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

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

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

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

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

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

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

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

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

I Didn't Realize that UCLA had an Admiralty Law Professor

At the Faculty Lounge, Michelle Meyer posts about Long Knives, a new legal thriller by Charles Rosenberg. This book is a sequel to Rosenberg's earlier book, Death on a High Floor, and moves the protagonist of the earlier work from a large law firm to a tenure-track faculty position at UCLA School of Law.

Meyer includes an excerpt from the book's prologue. From that excerpt:

Five years [ago], I had decided, let’s face it, on a whim, that I was done with Big Law. And so, aided by a bit of luck and the dwindling memory of my fifteen minutes of fame from saving Robert Tarza’s butt from San Quentin, I left my law firm, Marbury Marfan, and transformed myself—poof!—into a tenure-track law professor at UCLA. I still worked hard, but I no longer spent my nights preparing for trial or my days battling the jerks, most of them of the male persuasion, who seemed to appear like clockwork on the other side of my cases. 

 . . .

Teaching and writing about civil procedure, with eight long trials under my belt, was a natural for me. Teaching admiralty law had come as a surprise; I’d never even been on a sailboat prior to arriving at UCLA. But fate twists your life in funny ways. The week before classes started for my first year of teaching, Charles Karno, who looked the picture of health and had been teaching the admiralty course for more than twenty years, dropped dead of a heart attack while running a half marathon. The dean had prevailed on me to teach it. “You can learn it along with the students,” he said.

I have never gotten into reading legal fiction, but I will admit that the main character's occupation as a professor at UCLA Law makes Long Knives tempting. But I doubt I will end up reading it, since I would probably need to read Death on a High Floor first, and because I would be tormented by inaccuracies (for example, a search of UCLA Law's curriculum indicates that there are no classes on maritime or admiralty law).

Underwater Drones

Here's an interesting report on one unexplored aspect drone warfare's future:

Think of them as sleeper cells that go dormant for years, waiting for the signal that will send them into action. 

This is the high-tech version: unmanned drones that the government plans to plant on the ocean floor, ready to speed to the surface — and beyond — for surveillance, search-and-rescue and other operational support.
. . . 

The Defense Advanced Research Projects Agency is funding the construction of deep-sea capsules containing dormant aerial drones. DARPA documents say the agency is also willing to consider other types of unmanned vehicles that travel on the water but accomplish the same mission, though there are no current plans to arm any of them, according to a DARPA statement. The call for proposals made public earlier this year offers scant details, relying on the imagination of interested inventors.

This story focuses on drones that are stored on the seabed that fly to and above the surface when needed.  The Navy is also working on developing drones and drone carriers that function underwater.

The story reminded me of an article I read a while back on the future of armed conflict. The article is Eric Jensen's, The Future of Armed Conflict: Ostriches, Butterflies, and Nanobots, and is forthcoming in Volume 35 of the Michigan Journal of International Law. It is available on SSRN here. The article surveys how conflicts in the future will unfold, how developing technology will expand the battlefield, and how the law of armed conflict must adapt to developments.

Jensen notes the relevance of the seabed as a platform for future conflicts:

Currently the seabed and even non-surface waters have seen very little armed conflict. Submarine vessels have engaged surface vessels but there has been almost no conflict between submarines and none from the seabed. This is likely to change dramatically with technological improvements. For example, China has developed submersibles that can reach 99.8 percent of world’s seabed. As more and more underwater vehicles become unmanned, the need for breathable air dissipates. Underwater drones will eventually become armed and underwater engagements will quickly follow. 

Similarly, the seabed will quickly become militarized, once the need for air is erased. Not only will sensors be used to track surface and subsurface traffic, but armaments will soon follow and the seabed will become another area where States will employ weapons systems. [internal footnotes omitted]

If the military ends up moving forward with the drone development plans described in the first news article, the seabed may indeed become as relevant as Jensen argues.  I still, however, have some trouble accepting all of his predictions on where battles will be fought in the future:

Similar to the seabed, the ability to place weapons systems under ground and employ them effectively against an enemy is beginning to develop. Not only will underground weapons attack surface targets, but they will also be used to create surface effects through underground explosions and other means of manipulation. This will include the creation of earthquakes, tsunamis, and other surface effects that will severely affect an enemy. This is currently an unweaponized portion of the earth, but it will not remain so in the future. [internal footnotes omitted]

Or maybe I'm just too scared to consider this to be a possibility.

Greenpeace Activists Charged with Piracy

The New York Times reports here Reuters reports here, Eugene Kontorovich reacts and has analysis here.  My previous posts on this issue appear here and here.  As the Times notes, this prosecution is inconsistent with Vladimir Putin's previous remarks that the activists were "obviously not pirates."

Acccording to the Times:

The lodging of such serious charges in the Greenpeace case illustrates how far apart the Russian government remains from Western governments and nongovernmental organizations on issues like freedom of speech and civil disobedience. Russian courts ignored a similar international outcry last year when they sentenced members of the group Pussy Riot to two years in prison for protesting in a church.

The piracy charges carry a maximum sentence of 15 years in prison. It was not clear how many of the 28 members of the crew and the two journalists who were aboard the Arctic Sunrise would ultimately be charged; all of them have been detained for investigation. The court in Murmansk that is handling the matter adjourned on Wednesday with the cases of the ship’s American captain, Peter Willcox, and a number of others still pending. Lawyers for Greenpeace said the hearing could continue with more charges lodged on Thursday.

Kontorovich notes that "such clearly abusive and politicized piracy charges are quite unprecedented in modern history" and argues that this signals that Russia is claiming superpower status and is unafraid of retaliation.

It will certainly be interesting to see how this case develops and how the United States and United Nations react.  Kontorovich encourages the government to challenge Russia's action as a violation of both international and customary treaty law.  Whatever happens, this case will add a notable dimension to modern piracy cases and law.

Students interested in international law would do well to explore this.  I know that if I were still slating articles, a paper piracy would get my attention pretty effectively.

Kontorovich on Why Greenpeace Activists Are Not Pirates

I posted a little while back about Greenpeace's boarding of a Russian oil platform and the subsequent arrest of the activists.  Today, at the Volokh Conspiracy, Eugene Kontorovich posted about the issue.  I suspect that he had received numerous emails following his analysis of a previous case involving Sea Shepherd, and decided to set the record straight.

I was happy to see that I was correct in my earlier conclusion (it was my first foray into piracy law, after all), although Kontorovich makes a wider variety of arguments to support this conclusion.  He writes:

The Greenpeace activities are most certainly not piracy for several reasons. The modern definition of the offense can be found in Art. 101 U.N. Law of the the Sea Convention (UNCLOS III), Art. 101(a)(1).

First, piracy requires an attack against a “ship.” The Greenpeace incident involved an oil rig, which is not a ship because it is not navigable. (The 1988 SUA Convention dealing with maritime violence beyond piracy required a separate protocol to apply to oil platforms).

Second, piracy requires “acts of violence or detention.” Here the Greenpeace activist merely put a poster on the platform. This does not constitute violence. In the Ninth Circuit case, by contrast, the Sea Shepherd vessels allegedly attempted to ram Japanese whalers, hurled projectiles at them, and so forth. While the defendants argued this did not amount to violence, it is certainly more colorable than a poster. The Greenpeace activists certainly committed trespass, but not piracy.

Indeed, it is Russia that fairly clearly violated UNCLOS by seizing the ship for the misconduct of the crew. The arrest of a vessel is strictly forbidden “even as a matter of investigation,” (Art 97(3)), except for piracy. The piracy allegations here are clearly pretextual, making Russia liable to the Netherlands for seizure “without adequate grounds,” Art. 106. 

It would appear that Kontorovich is an influential figure indeed.  The BBC reports that Russian President Vladimir Putin mentioned the Greenpeace Activists earlier today:

Mr Putin, speaking at a forum on the Arctic, said: "It is absolutely evident that they are, of course, not pirates."

But the protesters are not safe yet:

A spokesman for Russia's main investigating agency, the Investigative Committee, said the charges might be changed if new evidence emerges.

Maybe the oil platform was actually a ship.  This would be a significant development indeed.

Pirates Need to Do Something: A Note on Veggie Tales

My previous post on Greenpeace got me thinking about pirates and piracy in general, which in turn caused my thoughts to wander to the days of my childhood when being a pirate sounded like an enjoyable and feasible career option.  Not all pirates seemed romantic, however, especially "The Pirates Who Don't Do Anything."  These pirates were originally described in this Veggie Tales song:

I have learned that the band, Reliant K, released a version of this song, but I'm not at all familiar with the band or the song so I'll leave you to figure out which version is better.

My foray into piracy law for purposes of my last post made me wonder how the Pirates Who Don't Do Anything could ever exist.  As the Ninth Circuit noted in Institute of Cetacean Research v. Sea Shepherd Conservation Society, Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) defines piracy as any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
           (i) on the high seas, against another ship or aircraft, or against persons or property on                    board such ship or aircraft;
           (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any                  State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

This definition of piracy caused me to question the Veggie Tales song.  UNCLOS clearly indicates that pirates must do something, namely engage in illegal violence, detention, or depredation, in order to be defined as pirates in the first place.  If an individuals just "stay home and lay around," they cannot engage in piracy.

Veggie Tales may not be entirely without an argument here, however.  Eugene Kontorovich notes in his article, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, (45 Harv. Int'l. L.J. 183, 2004) that piracy has historically been a universal offense in the international law context.  He further notes in this article that the universal, historic punishment for piracy was death.  The Restatement (Third) of Foreign Relations Law, section 404, comment f states, "a universal offense is generally not subject to limitations of time," indicating that there is no statute of limitations on universal offenses (Judge Kleinfeld pointed this out in his dissent in the later-vacated Ninth Circuit case, Sarei v. Rio Tinto, PLC, 671 F.3d 736, 817 n.128).

The upshot of all of this is that while the Pirates Who Don't Do Anything may not currently do anything but stay home and lay around, if they ever engaged in piracy before, they may still be prosecuted for that piracy.  Notably, none of the singing vegetables ever deny that they ever engaged in illegal violence, detention, or depredation.

If carrying out an act of piracy leaves somebody with a permanent threat of prosecution for that offense, I think that this person (or vegetable) is well within his or her rights to label himself or herself a pirate.

Are Greenpeace Activists Pirates?

The Guardian and BBC report that Russian authorities boarded the Greenpeace ship, the Arctic Sunrise, and arrested a number of activists.  I am not immediately clear about whether Russia's military was involved -- The Guardian simultaneously reports that it was the Russian "military" and "coastguard" but the BBC reports that it may have been Russia's "internal security service," the FSB.

Russia claims that it is arresting the activists for crimes arising from a previous protest where members of Greenpeace boarded a Russian oil drilling platform to protest the environmental impact of the drilling operation.

This whole affair reminded me of the Ninth Circuit's opinion in Institute of Cetacean Research v. Sea Shepherd Conservation Society (2013 WL 2278588).  I learned about that case from Kenneth Anderson's post here and from Eugene Kontorovich's in-depth commentary on the ruling here.  In this case, the Ninth Circuit determined that Sea Shepherd's actions of "Ramming ships, fouling propellers and hurling fiery and acid-filled projectiles" was piracy under the United Nations Convention on the Law of the Sea (UNCLOS) because these were violent actions carried out for private ends.  The court concluded that the actions were violent even though property was the target of these activities.  The court further held that "private ends" included actions taken with environmental activism goals -- "private" simply required that the goals be nongovernmental.

For those who are interested in legal issues relating to piracy (who isn't!?), check out Kontorovich's articles on the subject here, here, and here.  

With Institute of Cetacean Research in mind, were Greenpeace's actions piracy?

I don't think so, at least not based on the facts I have seen in the stories I've read.  Greenpeace's actions seemed to be nothing more than an attempt to board an oil platform.  While weapons were displayed, these weapons all seemed to be in the hands of Russian authorities aboard the platform.  I have no idea how concepts like trespass work on the high seas, but in the absence of "violence or detention or any act of depredation," Greenpeace's actions do not appear to be piracy, at least not under UNCLOS.