Disturbing the Peace in Libraries: An Statutory Interpretation Puzzle

Most of my research in recent weeks has veered away from constitutional interpretation. This has been a welcome change of pace as theoretical questions of interpretation and the judicial shenanigans this work tends to uncover can grate on the soul after a while. But even when I'm researching intricacies of state criminal laws pertaining to libraries, these theoretical questions have a way of creeping up on me.

Take Massachusetts' law against disturbing the peace in libraries:

Whoever wilfully disturbs persons assembled in a public library, or a reading room connected therewith, by making a noise or in any other manner during the time when such library or reading room is open to the public shall be punished as provided in the preceding section. (emphasis added)

This law is Massachusetts General Laws, Chapter 272, Section 41. As of today, the preceding code section appears to be Section 40A, which provides:

Whoever gives, sells, delivers or has in his possession any alcoholic beverage, except for medicinal purposes, in any public school building, or on any premises used for public school purposes and under the charge of a school committee or other public board or officer, shall be punished by imprisonment for not more than thirty days or by a fine of not more than one hundred dollars, or both; provided, however, that a school committee of a city, town or district may authorize a public or nonprofit organization using a public school building with its permission during non school hours to possess and sell alcoholic beverages therein provided such nonprofit organization is properly licensed under the provisions of section fourteen of chapter one hundred and thirty-eight.

While Section 40A contains a punishment provision (imprisonment for 30 days and/or a $100 fine), it seems like a bit of an odd reference for Section 41's prohibition of disturbing the peace. Sure, selling or distributing alcohol in schools may constitute (or lead to) a disturbance of the peace, but the conduct at issue seems quite a bit different than the general disturbance covered in Section 41. Indeed, a better match appears to be the section preceding 40A--Section 40:

Whoever willfully interrupts or disturbs an assembly of people meeting for a lawful purpose shall be punished by imprisonment for not more than 1 month or by a fine of not more than $50; provided, however, that an elementary or secondary student shall not be adjudged a delinquent child for an alleged violation of this section for such conduct within school buildings or on school grounds or in the course of school-related events.

This section also includes a punishment provision--although it's slightly different from Section 40A, providing for punishment of up to a $50 fine (rather than $100) and imprisonment for one month.

The first instance of Chapter 272 of the General Laws that I could find is in the version of the General Laws that went into effect in 1921. That version of the General Laws includes both Section 40 and 41, but not Section 41A. It appears that Section 40 was enacted in 1849, and that Section 41 was enacted in 1885. Section 40A is nowhere to be found, as it wasn't enacted until 1962.

With all of this in mind, what is the meaning of "the preceding section" in Section 41? Do we read it from a present perspective and interpret it to mean what is now the preceding section--Section 40A? Or do we read it in the manner it would have been read in 1885 when Section 41 was enacted, at which point "the preceding section" seems to refer to to Section 40? 

Even if we decide that we must look to the original, 1885 meaning of the statute, the questions don't end there. How generally are we to interpret the original meaning of Section 41? A specific reading might be that "the preceding section" referred to a specific law--whatever was the preceding section at the time Section 41 was enacted. Under this approach, even if that law is later moved to a different chapter or repealed altogether, it would still inform the meaning of Section 41's penalty provision. An alternate, less specific reading would interpret "the preceding section" to refer to whatever section preceded Section 41 at the time of enactment. As it happened, that was Section 40 as it was written in 1855. The result the same as the previous, more specific reading, but the meaning employed is more abstract. 

Things change, however, if we get even more general with our reading of "the preceding section," and read it as expressing an original intent to reference whatever statute appears, at any time, immediately prior to section 41. This abstract reading would lead us back to the same result as a present-tense reading of the phrase, as a generalized statement abut whatever appears in the preceding section may change in meaning over time as that reference point shifts with the enactment of Section 40A. Or, to look at it a different way, this reading treats the enactment of Section 40A as also changing the meaning of Section 41. And now that we've laid out all these alternate formulation of the original meaning of Section 41, how are we to decide between these varying levels of generality?

To date, it does not appear that Massachusetts' courts have wrestled with these interpretive questions. It therefore remains unclear whether disturbing the peace in a library results in a fine of $50 or $100. Ever the optimist, I continue to hold out hope that the Supreme Court will take up a case that resolves this issue. 

The Opaque, Incomplete Corpus Linguistics Analysis in the Mask Mandate Ruling

As virtually all news outlets have reported, Judge Kathryn Kimball Mizelle of the United States District Court, Middle District of Florida, recently struck down the CDC's requirement that people wear masks in certain settings, including plains, train stations, busses, and other public transit settings. The ruling is here. The case is Health Freedom Defense Fund, Inc. v. Biden.

Reaction to the ruling has been swift. Most of the commentary is an early phase, with initial reactions widespread on Twitter. For some initial, detailed discussion, Ilya Somin writes about the opinion here, suggesting that it is more defensible than critics claim, but that it may still be vulnerable to being overturned on appeal. The Wall Street Journal's editorial page writes favorably of the ruling here. The Washington Post has dueling takes for and against the ruling. 

More undoubtedly will be written as the days go on and as commentators parse the 59-page decision. Initial reactions suggest that the textualist methodology employed by the court is lacking. (See, e.g., here and here). I want to focus on one portion of the analysis: the court's use of corpus linguistics methodology in support of its conclusion.

I won't delve into the intricacies of the dispute and all of the arguments made by the parties and addressed in the ruling. In brief, the court addressed whether 42 U.S.C. § 264(a) was a sufficient basis for the CDC's mask requirement. The court concluded it was not, finding, among other things, that section 264(a)'s grant of power to provide for "sanitation" did not apply to requiring masks.

In reaching this conclusion, one method the court employed was corpus linguistics--a method in which databases of documents and texts are searched for instances in which words and phrases are used. In theory, one trying to determine the meaning of a word or phrase can type that word or phrase into a corpus linguistics database and examine the instances in which that word or phrase is used across a wide variety of texts. In doing so, patterns may emerge demonstrating multiple usages, common trends in meaning, and other information that may aid in determining the definition (or definitions) of a term. This method of interpretation has gained steam in recent years, particularly in originalists circles where it is hailed as a groundbreaking method for determining the original public meaning of constitutional provisions. (See articles by Lawrence Solum and Thomas Lee and James Phillips advocating the use of corpus linguistics in the originalist context). As I've noted in recent work coauthored with Alexander Hiland, this methodology raises a fair share of concerns, including a lack of transparency as to how a judge undertook the corpus linguistics analysis. The corpus linguistics analysis in Judge Mizelle's opinion demonstrates that this concern is well-founded.

Here's the excerpt of the ruling addressing corpus linguistics (from pages 17-18 of the ruling):

Customary usage at the time agrees. One method to assess the ordinary meaning of a term is to search a database of naturally occurring language. A search returns the desired word as well as its context and, with a sufficient sample size, search results permit inferences on how a word was used. This method is known as corpus linguistics.[FN 2] The Court here searched the Corpus of Historical American English (COHA) [FN 3] to find uses of "sanitation" between 1930 and 1944. Of the 507 results, the most frequent usage of sanitation fit the primary sense described above: a positive act to make a thing or place clean. Common examples referred to sanitation in the context of garbage disposal, sewage and plumbing, or direct cleaning of a dirty or contaminated object. In contrast, by far the least common usage-hovering around 5% of the data set-was of sanitation as a measure to maintain a status of cleanliness, or as a barrier to keep something clean. And so, the COHA search results are consistent with the contextual clues of the active words surrounding sanitation in § 264(a).

[FN 2]: "Corpus linguistics is an empirical approach to the study of language that uses large, electronic databases" of language gathered from sources such as books, magazines, and newspapers. Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 YALE L.J. 788, 828 (2018) (footnote omitted) (describing this tool).

[FN 3]: The COHA corpus is publicly available. See CORPUS OF HISTORICAL AMERICAN ENGLISH, https://www.english-corpora.org/coha/ (last visited Apr. 12, 2022). It is "the largest structured corpus of historical English." Id. Because Congress enacted the PHSA in 1944, the Court searched for uses of the word "sanitation" and variants like "sanitary'' and "sanitize" between 1930 and 1944. The search returned 507 hits, or "concordance lines."

This description of the analysis that the court undertook and the conclusions drawn from the analysis lack transparency and raise a number of questions.

To start, it is unclear what search (or searches) the court undertook. In footnote 3, the court indicates that it searched for the word "sanitation," and also "variants like 'sanitary' and 'sanitize'." The court does not specify how many variants of "sanitation" it searched for--only providing two examples of such variants. It appears that the court conducted a single search, although this is unclear as well, given the acknowledgment that the court searched for variations on "sanitation." This suggests that there was a single search for "sanitation," along with some of its variants (say: "sanitation OR sanitary OR sanitize"). The court's failure to specify the precise terms of its search, however, leave the reader to speculate as to how the court conducted its search of the database.

The court's analysis also lacks transparency regarding how it coded the results of its search. The court gives two apparent examples of its coding: results reflecting the meaning, "a positive act to make a thing or place clean" and results reflecting "a measure to maintain a status of cleanliness, or as a barrier to keep something clean." The court does not specify whether its search uncovered alternate meanings, and the percentage of results that fell into these meanings. Indeed, the only percentage specified in the opinion is that five percent of results were consistent with the "measure to maintain a status of cleanliness" meaning. The court is silent as to the percentage of results that fell into the other meaning it identifies, stating only that the "most frequent usage of sanitation" fit that sense. It is unclear whether sanitation as "a positive act to make a thing or place clean" was a majority of the results or a plurality of the results. Even if this sense was a majority of the results, there is still room for the possibility of a frequently used, third meaning that the court does not identify here. Without a breakdown of how results were coded and the frequency of hits for each definition that was code one cannot know how the court reached its decision or evaluate the significance of its conclusions regarding the frequency of definitions.

The court also fails to list sufficient examples detailing how it decided to categorize the search results. The court notes that it one of its definitions was "a positive act to make a thing or place clean," but goes on to provide purported "examples" that list little more than characterizations of the context of the terms. Some of these terms are likely loaded: "sewage" and "garbage disposal," for instance, suggest that some of these results may have been uses of the term, "sanitation," in a specialized sense to describe a "Department of Sanitation." The court does not specify how it classified search results like this, or whether it treated such results differently from the use of "sanitation" in non-departmental contexts. Departments of Sanitation likely carry out a variety of activities, including taking positive actions to make places clean and to maintain a state of cleanliness. Accordingly, it is likely that the court's analysis included hits that, themselves, could have been interpreted in multiple ways. The court does not specify whether, in these cases, it selected one of the alternate definitions, whether it discounted the result from its analysis, or whether it coded the result as including multiple definitions.

Additionally, this analysis illustrates an overall issue with corpus linguistics analysis: the methodology does not contain a basis for selecting among multiple meanings that a search of the relevant corpus uncovers, or whether choosing a single meaning is appropriate. Here, the court notes that the results of its analysis indicated that there were at least two potential meanings of "sanitation." The court ultimately concludes that it should use the variation that appears most frequently, but does not state why the most frequent usage is the only usage that should be employed (for a critique of this assumption, see Donald Drakeman's essay on corpus linguistics; although see Neal Goldfarb's arguments to the contrary). Moreover, selecting a particular meaning of "sanitation" is, itself, a judgment call as to how broadly to read the statute. If one takes a wide view of the CDC's power, one may be inclined to read "sanitation" to cover all of its potential meanings, so as to allow the CDC to take a broad range of actions. Limiting the reading of "sanitation" to only one of its alternate definitions is, itself, a judgment call as to the appropriate breadth of the agency's power--yet no basis or justification for this assumption is set forth.

Advocates of corpus linguistics claim that it can bring a level of empirical rigor to legal interpretation. But as the court's ruling in this case demonstrates, corpus linguistics can backfire and lead to conclusions based on methodology that is impossible to examine or verify. Advocates of corpus linguistics will undoubtedly argue that misapplications of the methodology should not count against the method itself. But in a world where attorneys may increasingly seek to use corpus linguistics in a one-sided manner to convince judges that their position is correct, or where judges themselves employ corpus linguistics without the necessary transparency, the costs of this method to judicial transparency may outweigh the benefits. A judge or attorney may abuse dictionary definitions by selecting a particular dictionary or one particular definition among alternate, plausible definitions. But these abuses can be identified and critiqued. This is not the case with incomplete corpus linguistics analysis, in which a failure to disclose search terms, coding methods, and percentages of coded results makes it impossible to evaluate the interpretive methods employed. The court's decision in Health Freedom Defense Fund illustrates how this opaque, incomplete methodology can impact the lives of millions.

Candeub and Volokh on Section 230 and Removing "Otherwise Objectionable" Content From Websites

 At Volokh Conspiracy, Eugene Volokh flags a brief article that he coauthored with Adam Candeub that was recently published in the Journal of Free Speech Law. Here's the abstract:

[Communications Decency Act] Section 230(c)(2) immunizes platforms' decisions to block material that they "consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." The ejusdem generis interpretive canon suggests that "otherwise objectionable" should be read "to embrace only objects similar in nature to those objects enumerated by the preceding specific words."

In this instance, the similarity is that all those words refer to material that was traditionally viewed as regulable in electronic communications media—and was indeed regulated by the Communications Decency Act of 1996, as part of which § 230 was enacted. And restrictions on speech on "the basis of its political or religious content" were not viewed as generally permissible, even in electronic communications.

Candeub and Volokh argue that "otherwise objectionable" material should not be interpreted as a catch all category, but should instead be construed in light of the other terms in Section 230(c)(2)'s list of materials. As a result, they urge that Section 230(c)(2) be read as immunizing Internet companies and websites from restricting "obscene, lewd, lascivious, filthy, excessively violent, or harassing communications," and that the statute not be read to immunize these actors from the removal of content that is objectionable based on its political content.

I think there are several problems with this argument. With the caveats that these are my initial impressions and that it's been a while since I've done intensive research into Section 230, these concerns are listed below. I've tried to list my objections in order of most technical and specific first, followed by broader points.

First, I think the ejusdem generis interpretive canon has less power in the particular context here because Section 230(c)(2) immunizes platforms' decisions to block "otherwise objectionable" content rather than "other objectionable" content. The latter wording would be a clear example of specific terms followed by a general term, and would be in line with most examples in Candeub's and Volokh's article which involve statutes listing examples, followed by "other" things. But the way the statute is actually worded includes the term, "otherwise," which suggests material that is objectionable in ways that are distinct from the preceding examples. Candeub and Volokh do not address this, and their esjudem generis argument therefore seems stronger than the language of the statute warrants, as it implicitly reads the statute as prohibiting "other objectionable" content rather than "otherwise objectionable" content.

Second, this reading takes an overly narrow view of the purpose of the provision it analyzes and the Stratton Oakmont, Inc. v. Prodigy Services Co. case that played a significant role in prompting the inclusion of the provision. In Stratton Oakmont, the plaintiff sued a website message board for defamation based on several allegedly defamatory posts from message board users. The plaintiff alleged that the message board was liable because it exercised editorial control over the message board, noting that the site set forth detailed content guidelines that discourage the posting of "insulting" notes, as well as notes that "harass other members or are deemed to be in bad taste or grossly repugnant to community standards, or are deemed harmful to maintaining a harmonious online community" stating that such content would be removed when brought to the site's attention. The court cited this choice to engage in this editorial control as opening up the site to greater liability than other sites that did not take such measures. 

Congress was aware of this case when it passed Section 230, which Candeub and Volokh recognize. But they only focus on remarks from legislators who cite the blocking of material that is not "family-friendly," which (sort of) lines up with their restrictive reading of the statute. But this narrow focus ignores the extent of editorial restrictions at play in Stratton Oakmont, which included guidelines for the removal of "insulting," [non]-harmonious," and "bad taste" comments. It also suggests a narrow view of "family friendly," content, which may well exclude truthful, politically significant content such as images and discussions of war or terrorism, litigation and legislation over sexual privacy and abortion, and other such political content. Stratton Oakmont illustrated the danger of any sort of editorial policy giving rise to heightened liability, and Section 230(c)(2) was the response. Candeub and Volokh's narrow reading is inconsistent with this broad concern that prompted the immunity provision.

Third, a reading of the statute that removes immunity concerning the removal of political content while immunizing the removal of other content would run into significant First Amendment problems. Those who run websites or forums may have their own political preferences, and may moderate content based on these preferences. Limiting this ability would infringe on those providers' First Amendment rights--an aspect of online content moderation that is often ignored by Section 230 critics (and misinterpreters) who prefer to focus only on the purported rights of users.

To Candeub's and Volokh's credit, they recognize that the First Amendment may be relevant, but set it aside for the purpose of their article. Because of this, though, the article's analysis is in a misleading vacuum.  What is the point of this discussion about ejusdem generis if the First Amendment will ultimately require a different reading? Indeed, the First Amendment may well be relevant to discussions of interpretive canons: to the extent that the narrow reading of "otherwise objectionable" content leads to First Amendment problems, the canon of constitutional avoidance would weigh in favor of an expansive interpretation that avoids this issue.

These are my initial concerns with the conclusions in the article, but I'll be interested in seeing what others have to say--particularly those who are more involved in Section 230 research and litigation than me.

Iowa's Law Targeting "Critical Race Theory"

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

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

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

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

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

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

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

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

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

Impossibility, What

If you're looking for inspiration in the California Civil Code this weekend, look no further than section 1597:

IMPOSSIBILITY, WHAT. Everything is deemed possible except that which is impossible in the nature of things.

The first two words of the statute appear to have been dictated by someone who had expected an impossible contract to be performed, but just learned that the entire contract was void under California law.

I prefer the statute standing alone with no further explanation. But readers interested in learning more can start by knowing that it is not legally impossible to build and operate a sawmill, while ensuring that no sawdust or debris from the mill fall into a stream. Peterson v. Hubbard, 9 P. 106, 107 (1885). It is, however, impossible to grade and level a parcel of land on which there are many trees without removing some of those trees. Greathouse v. Daleno, 57 Cal. App. 187, 190 (1922).

North Dakota's Maxims of Jurisprudence

A while back, I blogged about California's and Montana's maxims of jurisprudence. These are collections of statutes, or subsections of statutes, that set forth various maxims, canons of construction, or presumptions to aid in the interpretation and application of the law. Typically, the text accompanying the maxims notes that they are intended to aid in the just application of laws, and do not qualify any existing laws.

As a result of another weekend spent inside, I learned that North Dakota also has a statute setting forth a similar list of maxims. North Dakota Century Code § 31-11-05 sets forth North Dakota's maxims of jurisprudence:

The maxims of jurisprudence set forth in this section are not intended to qualify any of the provisions of the laws of this state, but to aid in their just application: 

1. When the reason of a rule ceases so should the rule itself. 

2. When the reason is the same the rule should be the same. 

3. A person must not change that person's purpose to the injury of another. 

4. Anyone may waive the advantage of a law intended solely for that person's benefit, but a law established for a public reason cannot be contravened by a private agreement. 

5. One must so use one's own rights as not to infringe upon the rights of another. 

6. One who consents to an act is not wronged by it. 

7. Acquiescence in error takes away the right of objecting to it. 

8. A person cannot take advantage of that person's own wrong. 

9. A person who fraudulently has dispossessed himself or herself of a thing may be treated as if the person still had possession. 

10. A person who can and does not forbid that which is done on that person's behalf is deemed to have bidden it. 

11. No one should suffer by the act of another. 

12. One who takes the benefit must bear the burden. 

13. One who grants a thing is presumed to grant also whatever is essential to its use. 

14. For every wrong there is a remedy. 

15. Between those who are equally in the right or equally in the wrong the law does not interpose. 

16. Between rights otherwise equal the earliest is preferred. 

17. No person is responsible for that which no person can control. 

18. The law helps the vigilant before those who sleep on their rights. 

19. The law respects form less than substance. 

20. That which ought to have been done is to be regarded as done in favor of one to whom and against one from whom performance is due. 

21. That which does not appear to exist is to be regarded as if it did not exist. 

22. The law never requires impossibilities. 

23. The law neither does nor requires idle acts. 

24. The law disregards trifles. 

25. Particular expressions qualify those which are general. 

26. Contemporaneous exposition is in general the best. 

27. The greater contains the less. 

28. Superfluity does not vitiate. 

29. That is certain which can be made certain. 

30. Time does not confirm a void act. 

31. The incident follows the principal, not the principal the incident. 

32. An interpretation which gives effect is preferred to one which makes void. 

33. Interpretation must be reasonable. 

34. When one of two innocent persons must suffer by the act of a third, the one by whose negligence it happened must be the sufferer.

North Dakota also has two other statutes (both accessible at the link above) which set forth conclusive and disputable presumptions. Section 31-11-03 is the list of forty disputable presumptions which contains several familiar concepts such as: "That a person is innocent of a crime or wrong" (subsection (1)); "That higher evidence would be adverse if inferior is produced" (subsection (6)); and "That a printed and published book purporting to contain reports of cases adjudged in the tribunals of the tate or county where the book is published contains correct reports of such cases. (subsection (34)).  The list also contains some presumptions that the familiar reader will recognize from other states' lists of maxims of jurisprudence, such as: "That Private transactions have been fair and regular" (subsection (19)); "That things have happened according to the ordinary course of nature and the ordinary habits of life" (subsection (28)); That a thing once found to exist continues as long as is usual with things of that nature" (subsection (31)); and "That the law has been obeyed." (subsection 32)).

These maxims are virtually identical to most of California's maxims of jurisprudence, and are even listed in the same order.  There are some minor changes in the wording, primarily changes that make North Dakota's list gender neutral.  North Dakota's list overlaps with California Civil Code sections 3509 through 3543.  Missing from North Dakota's list are the following California sections:

3545. Private transactions are fair and regular.

3546. Things happen according to the ordinary course of nature and the ordinary habits of life.

3547. A thing continues to exist as long as is usual with things of that nature.

3548. The law has been obeyed.

As noted above, all of these missing maxims are included in North Dakota's list of forty disputable presumptions.

The statutes appear to be cited with relative frequency--often in cases involving equitable claims or defenses, such as equitable estoppel or the defense of unclean hands.  While a body of case law exists in support of these defenses, the statutes appear to provide a quick, go-to resource for a simple statement of the rule being applied. But as noted in the statute itself, the maxims have little independent force beyond that which is already set forth in statute or precedent.

Montclair Passes Broad Ordinance to Combat "Distracted Walking"

The city of Montclair in Southern California recently passed an ordinance that bans crossing the street while talking on the phone, looking at the screen of an electronic device, or wearing headphones or earbuds on both ears (regardless of whether they are playing music).

Many outlets have reported on this ordinance. I learned about it this morning from a teaser for a local public radio report that you can find here. Illustrious publications such as the LA Times reported on the ordinance. Local outlets as well report on it here and here.

Because I'm a lawyer with a blog and not a "journalist," I'm going to depart from the standard practice that all of these reports have in common, which is to fail to provide a link to the text of the ordinance. Here it is. You're welcome. Here, also, are the minutes for the December 4, 2017 meeting where this Ordinance was approved.  The minutes contained the ordinance number (17-791), which finally led me to the text. (Two links to the text in one post. I'm out of control.) 

To make things even crazier, here's (most of) the text of the municipal code sections that the ordinance added to the Montclair Municipal Code (and which became effective on January 3, 2018):

8.02.010. Definitions. 
As used in this Title, the following definitions shall apply. For purposes of Title 8, these definitions shall supersede any other definitions of the same terms elsewhere in this Code.  

Emergency Responders include, but are not limited to, public safety officers of either a municipal or county police department or fire department, emergency medical technicians, paramedics, private ambulance service responders, emergency management workers, and federal and state law enforcement and fire service officers on duty and responding to an emergency service request.  

Mobile Electronic Device means any handheld, head- or body-mounted, or portable electronic equipment capable of providing wireless and/or data communication between two or more persons or a device for providing amusement, including but not limited to a cellular phone, smart phone, text messaging device, paging device, personal digital assistant, laptop computer, video game, video/audio player, digital photographic device, or any other similar electronic device. 

Pedestrian means a person who is afoot or who is using any of the following: (1) a means of conveyance propelled by human power other than a bicycle; or (2) an electric personal assistive mobility device.  

Personal Audio Equipment means any device placed in, on or around a person's ears capable of providing an audible sound, including but not limited to headphones or ear buds.  

Viewing means looking in the direction of the screen of a mobile electronic device.  

Chapter 8.28 PEDESTRIANS  

8.28.020. Pedestrian Use of Mobile Electronic Devices.  

A. No pedestrian shall cross a street or highway while engaged in a phone call, viewing a mobile electronic device or with both ears covered or obstructed by personal audio equipment.  

B. Upon presenting evidence, it is an affirmative defense to any citation for a violation of subsection (A) that the cited person was engaged in, or making, a "911" emergency communication with a mobile electronic device.  

C. Emergency responders viewing a mobile electronic device, or whose ears are covered or obstructed by audio equipment, while in the performance and scope of his or her official duties are exempt from subsection (A).  

D. Persons with medically prescribed hearing aides [sic] are exempt from subsection (A).  

E. Any person who violates any provision of this Chapter is guilty of an infraction violation punishable in accordance with Chapter 1 .1 2 of Title 1 of this Code.

A few things.

Honolulu Bans Looking at Cell Phones While Crossing The Street

NPR reports here and here on a recent ordinance passed by the City and County of Honolulu that prohibits people from "viewing" "mobile electronic devices" while crossing a street or highway. From NPR:

Police in Honolulu on Wednesday will begin writing tickets for people who get distracted by their cellphones while walking in a crosswalk. Honolulu is the first major city in the country to pass such a law, citing a high rate of pedestrians being hit in crosswalks.

"Starting today, texting while walking in a crosswalk can get you a ticket," Hawaii Public Radio's Bill Dorman reports for our Newscast unit. "In fact, a downward glance at a screen of any kind will cost you — a phone, a tablet, a video game."

Under the new law, the only legal reason for a pedestrian to use a cellphone while crossing a street or highway would be to call 911 to report an emergency.

One of the NPR reports claims that Fort Lee, New Jersey banned texting while crossing the street a few years ago, but its only support for this claim is a link to a story where police say that they are cracking down on pedestrians who are in the road illegally and are also on their phones. There is no indication that looking at a device without engaging in some other illegal activity was banned.

Because this apparently is the first major restriction of crossing the street while looking at devices, this post takes a deep dive into the ordinance. There are some quirks and questions that the ordinance raises, and I lay them out in painstaking detail after the break.

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

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

Cedar Rapids' ordinance banning glue sniffing states:

62.29 - GLUE SNIFFING.

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

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

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

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

Driving Under the Influence of Glue?

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

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

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

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

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

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

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

The vehicle rolled forward and hit another parked car.

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

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

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

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

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

62.29 - GLUE SNIFFING.

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

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

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

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

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

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

[UPDATE - 8/30/2017]

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

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

No, It is Not Legal to Smoke Marijuana While Walking On the Sidewalk in Downtown Los Angeles

...or in any other California city or town for that matter. On November 8, California passed Proposition 64 (text of the Proposition here, analysis here) which legalized the recreational use of marijuana. The LA Times reports on the passage of Prop 64 here. From the LA Times:

The approval of the ballot measure creates the largest market for marijuana products in the U.S. It comes six years after California voters narrowly rejected a similar measure. Activists said passage would be an important moment in a fight for marijuana legalization across the U.S.

“We are very excited that citizens of California voted to end the failed policy of marijuana prohibition," said Nate Bradley, executive director of the California Cannabis Industry Assn. "Proposition 64 will allow California to take its rightful place as the center of cannabis innovation, research and development.”

Discouraged law enforcement officials said they will closely monitor implementation of the ballot measure.

At this point, it looks like the sites I typically link to for California laws have not yet been updated to reflect Prop 64's passage. I will add links to those sections when they become available. For now, the text of the news laws is available in the text of the proposition itself.

The central statute in Prop 64 is the newly created Health and Safety Code 11362.1 which states:

(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
 

(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;
 

(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products;
 

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;
 

(4) Smoke or ingest marijuana or marijuana products; and  

(5) Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 21 years of age or older without any compensation whatsoever.
 

(b) Paragraph (5) of subdivision (a) is intended to meet the requirements of subdivision (f) of Section 863 of Title 21 of the United States Code (21 U.S.C. § 863(f)) by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute marijuana accessories.

(c) Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.

What was I thinking with my extremely specific, negatively worded title? True, it has been a little off-putting that in the three days since Prop 64's passage I have:

1. Walked through a cloud of marijuana smoke to get to the front door of my office building in the center of downtown Los Angeles;
2. Walked past a young professional in a suit on the sidewalk in downtown Los Angeles in the early evening who was smoking marijuana while chatting with friends;
3. Had the privilege of being stuck behind a slow person taking up the entire sidewalk (which, in itself, should be a crime) who also happened to be smoking marijuana.

But all of this looks legal right?

Not so fast. Newly created Health and Safety Code section 11362.3 states:

(a) Nothing in Section 11362.1 shall be construed to permit any person to:

(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Section 26200 of the Business and Professions Code.

(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.

(3) Smoke marijuana or marijuana products within 1,000 feet of a school, day care center, or youth center while children are present at such a school, day care center, or youth center, except in or upon the grounds of a private residence or in accordance with Section 26200 of the Business and Professions Code or Chapter 3.5 of Division 8 of the Business and Professions Code and only if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present.

(4) Possess an open container or open package of marijuana or marijuana products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(5) Possess, smoke or ingest marijuana or marijuana products in or upon the grounds of a school, day care center, or youth center while children are present.

(6) Manufacture concentrated cannabis using a volatile solvent, unless done in accordance with a license under Chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code.

(7) Smoke or ingest marijuana or marijuana products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(8) Smoke or ingest marijuana or marijuana products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation except as permitted on a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation that is operated in accordance with Section 26200 of the Business and Professions Code and while no persons under the age of 21 years are present.

Smoking marijuana is prohibited in any public place, unless the place is a business registered to sell marijuana (a quick summary of the exception in Business and Professions Code section 26200). This means that people walking down the sidewalk in a city or suburb or outside of a home or office building are in a public place and therefore violating Section 11362.3, which is an infraction (under the newly created Health and Safety Code section 11362.4).

Notably, while Section 11361.1 states that permitted marijuana possession or use cannot serve as a basis for search or seizure by law enforcement, Section 11361.3's prohibition on marijuana use in public and possession of open containers of marijuana in vehicles covers most conduct that would have served as the basis for such searches and seizures before Proposition 64's passage. Those who thought that Prop 64 would reduce incidents of search and seizure due to officers' detecting the scent of marijuana were therefore mistaken.

Those considering taking advantage of California's new marijuana laws should consider smoking marijuana as a combination of smoking cigarettes and drinking alcohol. You cannot smoke cigarettes inside of (most) businesses or (in Los Angeles) on restaurant patios -- and you cannot smoke marijuana in these locations either. You cannot drink a beer while walking down a sidewalk -- and you cannot smoke marijuana while walking down the sidewalk either. You cannot drive with an open container of alcohol -- and you cannot drive with an open container of marijuana either.

Would-be marijuana smokers should treat smoking marijuana as subject to the combined restrictions on alcohol and cigarettes, and should therefore avoid smoking in public -- particularly if they are in downtown Los Angeles during the early morning or evening hours when I am most likely to be outside. We'll all be better off that way.

Illinois "Pidgey's Law" an Overly Hasty, Muddled Attempt at Regulating Augmented Reality

Several news outlets have reports on this bill (AB 6601) recently introduced by Illinois State Representative Kelly Cassidy. Nicknamed "Pidgey's Law," the bill was introduced in response to reports that players of the augmented reality game, Pokémon Go, were trampling the habitats of endangered species in a federal park.

From the Chicago Sun Times:

Cassidy introduced “Pidgey’s Law” on Wednesday during a news conference at the Loyola Dunes Restoration Site. Named after one of the game’s bird Pokémon, the bill aims to crack down on location-based game developers to remove problematic gaming sites from their maps.

. . .  

If passed, “Pidgey’s Law” would give game developers up to two days to remove a location-specific site from its game if that site’s property owner, manager or custodian requests its removal. After that, developers would be fined up to $100 each day until the stop is removed. 

The bill is in response to a Pokéstop — real-life locations gamers can visit for in-game perks — that rests at the center of the dune restoration area, which is protected under state and federal law. The stop, based on an art installation that stood there a few years back, sometimes draws players off the designated path into areas where some endangered wildlife lives. 

The hundreds of Pokémon Go players who frequent the area each night have caused increased littering and vandalism as well as occasional trampling of the wildlife when rare Pokémon appear in the augmented reality of the game.

Other news outlets report on the bill here, here, and here. A common theme in all of this reporting is that the purpose of the bill is to remove in-game landmarks (in Pokémon Go these are known as Gyms and PokéStops) from private property or environmentally sensitive areas at the request of property owners or managers.

But is this what the bill actually does? Below are the pertinent sections of the bill. To make efficient use of these extensive quotes, I've emphasized the terms that are either undefined or that cause problems:

Fred Flintstone, World Records, and Rules With Shifting References

While the rest of the country was watching the Democratic National Convention yesterday, my attention was drawn to a far more dramatic series of events: an ongoing set of videos in which contenders attempt to seize the world record for the fastest drawing of Fred Flintstone.

This article at Cartoon Brew set this whole thing off. The article featured this video by Myron Smith in which he claimed to hold the world record for the fastest drawing of Fred Flintstone:



This prompted an enthusiastic response from Lev Cantoral, a former classmate and mock trial teammate of mine, who claimed to beat Smith's record in nearly half the time:



Which, in turn, prompted this awful response from Wyatt Duncan:



And this cynical, yet hopeful, response from Nick Maida:



Frankly, I don't know why anybody was watching the Democratic National Convention while this was happening. For my German-speaking readers, I think that part of this saga is covered here as well.

But this is a law blog, or at least, that's what I keep telling people, so what does this have to do with laws -- or rules of any kind? In this post, I will explore an initial question people may have: are these videos and purported records "official" in any way? Next, I will explore how these videos and the shifting quality of the drawings in them illustrate a criticism of viewing laws or constitutions as living documents with flexible frames of reference.

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.

Oklahoma State Legislators! Please Make These Changes to Your State's Laws

My Facebook and Twitter accounts were abuzz yesterday with reports of this recent opinion by the Court of Criminal Appeals of Oklahoma in which the Court held that a juvenile defendant was not guilty of forcible sodomy under Oklahoma law because his victim was passed out from intoxication when the defendant forced her to engage in oral sex.  The Court noted that it was bound by the "very specific" requirements for the commission of the crime of forcible sodomy. Those five scenarios in which forcible sodomy occurs are (under 21 Ok. Stat. § 888(B)):

1. Sodomy committed by a person over eighteen (18) years of age upon a person under sixteen (16) years of age; or 

2. Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or

3. Sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime; or 

4. Sodomy committed by a state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, a county, a municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state; or 

5. Sodomy committed upon a person who is at least sixteen (16) years of age but less than twenty (20) years of age and is a student of any public or private secondary school, junior high or high school, or public vocational school, with a person who is eighteen (18) years of age or older and is employed by the same school system.

Note that "sodomy," remains undefined beyond the description provided in 21 Oklahoma Statutes §886 which eloquently states that sodomy is "the detestable and abominable crime against nature." More on this later.

Following this ruling, outrage ensued, with several outlets (e.g.: here and here) erroneously reporting that Oklahoma law provides that "it isn't rape if the victim is drunk." This is actually untrue, as Oklahoma's law against rape (Ok. Stat. § 1111(A)(4)) specifically provides that the definition of rape includes sex with one who "is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit."

Oh, hang on, I should clarify that the rape-by-intoxication crime applies only when the victim is not the perpetrator's spouse. More on this later.

Oklahoma legislators announced that they are working to close this loophole in the law against forcible sodomy. If the legislature copies the language above from subsection (A)(4) of Oklahoma's rape statute into the forcible sodomy statute, this should solve the problem. To any Oklahoma state legislators who are reading this post, please do that.

While doing the research to write the post so far, however, I discovered some other areas of Oklahoma criminal law that may be due for some revision. I encourage all of my readers, especially those who are Oklahoma state legislators, to continue reading beyond the break.

California's Fractional Statutes

One interesting phenomenon I have noticed in a few of California's statutes is the numbering of sections with fractions rather than decimal points. I first noticed this when I ran across California's law prohibiting the destruction or defacement of items of archaeological significance. The Penal Code section prohibiting this is section 622 1/2. 

California frequently numbers uses decimal points in numbering its statutes. For instance, California's criminal trespass law is an unwieldy behemoth, commencing at Penal Code section 602. Section 602's intricate, specific, and often inapplicable definitions of trespass consists of subsections and subdivisions of those subsections, going so far as 602(y), which prohibits the avoidance of security screening procedures in courthouses and other public buildings. Beyond section 602, a number of other decimal-pointed 602 sections further define instances of trespass, including the amazing section 602.12 which prohibits entry onto land with the purpose of interfering with research. To see section 602 and the following sections, you can find a list of those statutes here.

But despite California's frequent use of decimal points, there are several examples of fractional statutes and sections. A quick search of Westlaw reveals that California has repealed or renumbered numerous sections that contained fractions rather than decimal points. But several fractional statutes still exist. These mainly appear in California's Water Code Appendix, which contains several fractional sections, including section 28-141 1/2 which specifies the code sections governing claims for money damages against water districts. There is also section 33-281 1/4(o) which deals with the lease and sale of land deeded to water districts as a result of tax delinquency.

California's constitution also contains at least one example of a fractional section. Article 9, Section 6 1/2 states that the California Constitution does not prohibit the formation of school districts in multiple counties or the issuance of bonds by those districts.

I have not looked into the codes of other states to see if the practice of fractional sections is more widespread. But from my cursory investigation into California law, it looks like these sections are holdovers from historic practices of numbering statutes with fractions rather than decimal points. 

I think that the use of letters or decimal points rather than fractions is a better way of organizing statutes. And I am not aware of citation rules for citing fractions. For instance, does there need to be a space between the section number and the fraction? Does the fraction need to be formatted as 1/2 or ½? I am not aware of the answers to these questions. Ultimately, decimal points and letters are easier to work with, and California's fractional statutes remain as a quirky remnant of old drafting practices.

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.

Heien v. North Carolina: Implications for California Law

On December 15, the United States Supreme Court released its opinion in Heien v. North Carolina. The Court held that a police officer's reasonable mistake of law did not render a traffic stop unconstitutional under the Fourth Amendment. The Fourth Amendment permits traffic stops based on a reasonable suspicion that the law has been violated, and as long as the police officer's mistake of law is reasonable, the stop is not rendered unconstitutional. Analysis of the opinion can be found here and here.

Here is the crux of the majority opinion:

Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

. . .

Heien also contends that the reasons the Fourth Amendment allows some errors of fact do not extend to errors of law. Officers in the field must make factual assessments on the fly, Heien notes, and so deserve a margin of error. In Heien's view, no such margin is appropriate for questions of law: The statute here either requires one working brake light or two, and the answer does not turn on anything "an officer might suddenly confront in the field." Brief for Petitioner 21. But Heien's point does not consider the reality that an officer may "suddenly confront" a situation in the field as to which the application of a statute is unclear—however clear it may later become. A law prohibiting "vehicles" in the park either covers Segways or not, see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36-38 (2012), but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by. 

Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonablemistakes, and those mistakes—whether of fact or of law— must be objectivelyreasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States, 517 U. S. 806, 813 (1996). And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is dutybound to enforce. 

Finally, Heien and amici point to the well-known maxim, "Ignorance of the law is no excuse," and contend that it is fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway. Though this argument has a certain rhetorical appeal, it misconceives the implication of the maxim. The true symmetry is this: Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law. If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.

I blogged about this case back in November, and noted that this case could have significant implications for California's law of search and seizure. At the time, I was posting on the San Diego County Superior Court Appellate Division's opinion in People v. Campuzano. There, the Court held that a police officer's mistake of law rendered a stop unreasonable when the officer stopped a suspect who was riding his bicycle on the sidewalk. While the officer thought that riding a bicycle on the sidewalk was illegal if it was done in a commercial district, the Court concluded that the bicycle needed to be ridden in front of a business that was operational. Because the defendant in Campuzano was not riding his bicycle in front of an operational business, the officer's conclusion that the defendant had violated the law was mistaken, and the court held that this mistake of law rendered the stop unconstitutional.

After Heien, however, the decision in Campuzano is no longer the law in California. Article One, section 28(f)(2) of California's Constitution establishes that rules excluding evidence in criminal cases are to be only as broad as federal constitutional rules. The California Supreme Court affirmed this limitation in In re Lance W. This means that California's constitutional law of search and seizure cannot exclude a broader range of evidence than the United States Constitution.

Accordingly, the blanket statement by the Court in Campuzano that "[a] traffic stop based on a mistake of law is unreasonable and not subject to the good-faith exception," cannot be cited even as persuasive authority in California. Under Heien, as long as the officer's belief that the defendant has broken some law is reasonable, any ensuing traffic stop is also reasonable.

Questions remain regarding just how much of a mistake of law is permitted under the "reasonable mistake of law" exception. But I would not be surprised if the officer's mistake in Campuzano fell within this exception, and it will be interesting to see how lower courts define the scope of this new facet of Fourth Amendment doctrine.

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.

Shoplifting: Proposition 47's Strange Addition to California's Law of Theft

California's Proposition 47 (Prop 47) reduces a number of California felonies to misdemeanors. I have already blogged that one of Prop 47's most extensive provisions, Penal Code section 490.2, reduces many forms of felony grand theft to misdemeanor petty theft. In that post, I purposefully avoided discussing shoplifting out of considerations of space. In this post, I hope to address Prop 47 shoplifting in the depth it deserves.

Proposition 47 adds the crime of "shoplifting" to the California Penal Code. This crime is now enumerated at Penal Code section 459.5, which states:

(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170. 

(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.

Prop 47 enacted this section in order to reduce most cases of commercial burglary from felony status to the level of misdemeanors. Before Prop 47, entering a commercial establishment with the intent to commit larceny was second degree burglary. This crime was a "wobbler" under Penal Code section 461, meaning that it could be charged as either a misdemeanor or a felony.

With the arrival of Penal Code section 459.1, however, many cases of second degree burglary are now shoplifting, rather than burglary. Section 459.1(a) requires shoplifting to be charged as a misdemeanor unless the defendant is a registered sex offender or has one of several specific, extremely severe prior convictions.

While the stated purpose of Prop 47 is to reduce the severity of punishment for certain crimes, and while the new shoplifting statute will certainly have that effect on many instances of burglary, section 459.5 is worded and structured in a way that leaves significant questions regarding how it is to be applied. Moreover, in light of the notably restrictive language of section 459.5(b), it is unlikely that prosecutors would ever charge a defendant with the crime of shoplifting.

NTSB Rules that FAA Regulations Apply to Drones

The National Transportation Safety Board (NTSB) ruled yesterday that the Federal Aviation Administration's (FAA's) aircraft regulations apply to drones. Bill Chappell from NPR has the story here. Additional reporting from The Hill is available here. The full NTSB ruling is available here.

Specifically, the NTSB ruled that a regulation prohibiting the reckless operation of aircraft (14 C.F.R. § 91.13(a)) applies to the operation of drones -- despite the FAA's release of circulars and other notices specifically discussing model aircraft operation.

This opinion overturns an earlier administrative law judge's ruling that the FAA's regulations do not apply to drones. That earlier decision is available here. I blogged about the previous decision here.

From the NTSB's ruling:

[T]he Administrator’s application of § 91.13(a) to respondent’s aircraft is reasonable. Section 91.13(a) states, “Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” As discussed above, neither the plain language of § 91.13(a) nor the definitions of “aircraft” applicable to regulations in 14 C.F.R. part 91 exclude unmanned aircraft. The Administrator’s interpretation of this text—that it applies to respondent’s operation of his Zephyr to prohibit careless or reckless operations—is reasonable, given the broad language of the section. In addition, the Administrator’s preamble text in its Notices of Proposed Rulemaking, published in the Federal Register under the Administrative Procedure Act for promulgation of § 91.13(a), do not contain any language indicating its application of § 91.13(a) to respondent’s aircraft is an unreasonable reading of the regulation’s text and purpose. The Board has affirmed the Administrator’s application of § 91.13(a) as an alleged independent violation in other cases in which, presumably, no other regulation would have explicitly prohibited the alleged conduct. (footnotes omitted).

And as to whether the FAA's 1981 Advisory Circular on "model aircraft" operation exclude these aircraft from other regulations:

Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or “model aircraft” from the prohibition on careless or reckless operation in § 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator’s part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator’s interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator’s intent to ensure the safe operation of model aircraft by appropriate means.

While drones are generally quite different from traditional aircraft, the NTSB's conclusion seems correct, given the broad language of the regulation and the non-exclusive language of the advisory circular.

The NTSB cites statutory and regulatory definitions of "aircraft" as "any contrivance invented, used, or designed to navigate, or fly in, the air" (49 USC § 40102(a)(6)) and as "a device that is used or intended to be used for flight in the air." (14 C.F.R. § 1.1). While this language covers a great many devices (possibly even including paper airplanes or "toy balsa wood gliders" as the administrative law judge's ruling warns), the language is nevertheless clear.

It is worth adding that even though I think the NTSB's reading is correct, that does not mean that I necessarily agree that regulations applying to full-sized, manned aircraft ought to be applied to drones. I think that the administrative law judge was correct to note the broad definition of "aircraft" for purposes of federal law and regulation -- but I don't think that the law's unintuitive breadth is a sufficient reason to disregard the plain meaning of the text.

The NTSB's ruling will almost certainly accentuate the need for specialized drone regulations. And it may have a secondary effect of prompting awareness and criticism of how far a broadly-worded federal law may extend.