Criminal Charges Against Man Who Shot Down Drone Dismissed

So reports the Wall Street Journal Law Blog, taking note of this story from Wave 3 News about a Kentucky man who shot down a drone that he claims was hovering over his property.  From the Wave 3 News report:

The man who calls himself the "Drone Slayer" called a judge's decision a victory. 

Bullitt County Judge Rebecca Ward on Monday dismissed the case against William H. Merideth, who admitted to shooting down a drone he said was hovering over his home last July. 

"I think it’s credible testimony that his drone was hovering from anywhere, for two or three times over these people’s property, that it was an invasion of their privacy and that they had the right to shoot this drone," Ward told the courtroom. "And I’m going to dismiss his charge."

John David Boggs, the owner of the drone "appeared stunned."

Boggs had posted this video of the drone's last flight, making clever use of the soundtrack and less-than-clever use of emojis:




Based on the video, the drone seemed to be so high that Meredith's claim that the drone was hovering over his property is a bit strained. While the drone did indeed appear to be flying and hovering over multiple people's properties, it seems high enough that Meredith's claim that his property was being violated is weak.

There are several gems in this story. First, there is this intriguing point:

Merideth also was facing a charge for firing his gun in a residential neighborhood. That charge was dismissed as well.

The WSJ Law Blog reports that this gun was a "12-gauge, short-barreled shotgun loaded with birdshot." This birdshot was fired high into the air over what appears to be a fairly well-populated suburban area. And yet the charge was dismissed.

Finally, on a completely unrelated note, all of this took place in a county called "Bullitt."

Aerial Surveillance, Intrusiveness, and the Fourth Amendment

Eugene Volokh has this post at the Volokh Conspiracy highlighting the recent case of State v. Davis in the New Mexico Supreme Court. In that case, police officers observed property by flying over it at a height of fifty feet in a helicopter. The Court held that the intrusiveness of this surveillance, which apparently included broken beams and solar panels, rendered the flyover a Fourth Amendment search.

The Court also criticized the New Mexico Court of Appeals ruling on the case, which noted that intrusiveness should not be the metric for determining whether a search has occurred because officers may use drones to conduct equally low flyovers without the noise, dust, and damage of a helicopter flyover. The New Mexico Supreme Court pointed out that the Court of Appeals' discussion was unnecessary speculation.

This approach is consistent with the United States Supreme Court's approach in United States v. Jones, in which the majority held that officers had conducted a Fourth Amendment search when they attached a GPS device to a car and tracked it for a prolonged period of time. Rather than hold that the prolonged gathering of information rose to the level of a search, the majority concluded that the act of attaching the GPS device was a physical trespass and therefore violated the Fourth Amendment.

While the Davis court only makes a passing reference to Jones, the Court is correct to conclude its analysis with its discussion of intrusion, as such an intrusion is sufficient to establish a Fourth Amendment violation. Going beyond the intrusiveness discussion is therefore unnecessary to resolve the question presented.

But one day, the question will be presented as to whether a low-flying police drone constitutes a Fourth Amendment search. When that question arises, the drones involved likely will not kick up the dust, incite the panic, or cause the damage that is the central focus of the Davis Court's decision. When that day comes, courts may find themselves constrained by the precedents cited in Davis which uphold the constitutionality of aerial observations. This will be especially true if state and federal laws are drafted in a manner that gives ordinary drone users a wide range of freedom in flying their drones, as common drone use will form the foundation of people's reasonable expectations of privacy.

Courts can be rescued from these difficult decisions, however, if states draft rules regulating the use of evidence obtained by police drones. State legislation can be drafted in a manner that balances law enforcement interests with privacy interests -- and this balance can be reached through debate and public input, rather than through speculation and generalizations that may arise from a single case before a deliberating court.

For those readers interested in hearing more on what I have to say on state drone laws, check out my article on the subject which was just published by the Harvard Journal on Legislation. You can find that updated version on SSRN as well.

Chemerinsky on "The Return of the Jedi"

The title of this post refers to the title of Erwin Chemerinsky's article in the most recent issue of The Green Bag.  There, Chemerinsky notes that the October 2014 term of the Supreme Court was filled with more liberal victories than any term in recent memories.  However...

Does this mean that the Roberts Court has moved to the left? Not at all. It always is dangerous to generalize from a single Term. A year ago, for example, commentary on the Court focused on the fact that 66% of the cases were decided unanimously. This year, by contrast, only 34% of the cases decided after briefing and oral argument were unanimous. Next year, the Court will be deciding cases about affirmative action, voting rights, the First Amendment rights of non-union members, and possibly abortion. These are all areas where Justice Kennedy is much more likely to side with the conservative Justices. So if this year was the “Return of the Jedi” for liberals, next year well could be “The Empire Strikes Back.”

In all of today's excitement about The Force Awakens, I couldn't let this one go.  Chemerinsky does a fine job summarizing the 2014 term's opinions in his article, but his out-of-order use of "Return of the Jedi" and "The Empire Strikes Back" is flat out wrong.  A far cleaner Star Wars reference (and one that could have persisted through the entire introduction) could have been to analogize the Warren Court to the Jedi Order that maintained order during the years of the Old Republic, but which ultimately may have played an unwitting role in both the rise of the Empire and collapse of the Jedi.

Following the dark time of Sith/conservative Supreme Court decisions, Chemerinsky may look upon the 2014 term and say "A New Hope?"

California Governor Vetoes Drone Bills; Denounces Creation of New Crimes

The Los Angeles Times has this report on California Governor Jerry Brown's veto of several bills that would criminalize flying drones over wildfires, schools, and prisons and jails.  Governor Brown vetoed all three (and several other) bills with a veto message denouncing the creation of new crimes.

Of all of the drone-related bills mentioned in the article, the most notable is the bill prohibiting drone flights over wildfires.  I have not looked very much into coverage of the bill, or other laws restricting wildfire observation and interference with firefighting efforts to know if there are indeed pre-existing laws that would neatly apply to flying drones in the vicinity of a wildfire.  Moreover, the bill prohibiting drone flights near wildfires would immunize firefighters who disabled the drones -- a helpful provision that, again, I am not sure already exists in other laws restricting interference with fire fighting.

The intricacies of the drone-wildfire bill aside, Governor Brown's veto message makes a refreshing point about California's vast penal code. Here is the veto message:

Each of these bills creates a new crime -- usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. 

Over the last several decades, California's criminal code has grown to more than 5,000 provisions covering every almost conceivable form of human misbehavior. 

During the same period, our jail and prison populations have exploded. 

Before we keep going down this road, I think we should pause and reflect how our system of criminal justice could be made more human, more just and more cost-effective.

Sincerely,
Edmund G. Brown Jr.

I have blogged about some of California's stranger criminal laws here and here. I think that Governor Brown is correct to criticize the creation of new crimes that may already punished under existing statutes. Hopefully more legislators take heed of this message and maybe (just maybe) some of them will take up the thankless task of clearing up some of the chaos that already exists.

Perspectives on a Looming Decline in Bar Exam Passage Rates

As rumblings grow over the possibility of another summer of poor bar exam results, yesterday's New York Times ran this "Room For Debate" feature on declining bar exam passage rates. There were several notable contributions to the discussion regarding the notable fall in pass rates across the country which began in July 2014. 

To sum up each contribution with one (greatly simplified) sentence each: Deborah Merritt argues that the National Conference of Bar Examiners (NCBE) has too much control over access to the practice of law and is overly hasty in blaming law students' credentials for decreased passage rates; Linda Greene writes that law schools have a duty to help students better prepare for the bar exam and should identify and support those students who are most at risk to fail; Jerome Organ argues that law students' declining credentials are to blame for decreased bar passage rates and that this trend will continue; Brooklyn Law School Dean Nicholas Allard argues that the bar exam is outdated and in need of drastic overhaul; and Diane Downs notes that in an era of declining law school applicants, those who choose to attend have made a more deliberate, meaningful decision to become lawyers.

I think that each of the authors raises some good points, although, as I have noted before, I think that Dean Allard's criticism places too much blame for declining pass rates on the NCBE.  As Greene notes, law schools have a duty to better prepare their students for the bar exam. Dean Allard's criticism avoids acknowledging the legal teaching profession's responsibility to adapt to the disturbing trend of poor bar exam performance in a world where, like it or not, the bar exam exists. 

That's not to say that I don't think the bar exam could, and should, change. The exam could certainly be run more efficiently (two days, please), and results should be processed in a timely fashion (compare the date of this post to this post). But as for subject matter and format, it is easy to criticize a written, standardized exam. But I am at a lost when asked to think up any practical alternative. And those who know me know that I'm certainly not a supporter of dropping the test entirely.

As for law students and prospective law students taking all of this in, while proposals for change and criticisms of the exam may circulate, I suspect that the bureaucratic nature of the bar exam will make change a slow and painful process. My best advice for those considering law school now is don't count it out, but do carefully consider the realities of the field before making a hasty decision, and realize that tomorrow's bar exam will probably still look a lot like today's.

For previous posts on falling bar exam pass rates, see here, here, and here.

One-Armed Piano Players Do Not Need to Play For Free in Iowa

This is a second post in which I identify a rumored law and research whether it exists. In an earlier post, I researched rumors that Iowa law prohibits mustached men from kissing women in public and concluded that no such law exist. Here, I investigate the rumor that Iowa law requires one-armed piano players to perform for free.

There are several phrasings of this supposed law. The most commonly shared version is "One-armed piano players must perform for free." Websites, books, and articles proclaiming this law's existence may be found here, here, here, here, here, here, here, and here. None of these websites cite any statutes or cases.

One book quotes the supposed Iowa law as stating, "A one-armed piano player may be seen, but not if admission is charged to view his performance." This looks pretty authoritative because it is in quotation marks and sounds a bit more like it comes from a law or case. And it's in a book, not just the Internet.  But, for what it's worth, websites sharing similar versions of this phrasing are here and here.

After searching through the Iowa Code and Iowa cases, I was unable to find any law or case that prohibits one-armed piano players from charging admission for their performances. The quoted, second version of the law appears in only one other website.

Based on my research of statutes and cases, I have concluded that there is no Iowa law that prohibits one-armed piano players from charging admission for their performances. As a caveat: my search was limited to the Iowa Code and Iowa case law. I did not search any municipal codes because all websites referencing this law claim that it is a state law, rather than a particular city ordinance.

If you, the reader, happen to find a particular case or statute prohibiting one-armed piano players from charging admission to their performances, I welcome you to share the citation in this post's comments. But I strongly suspect that searching for such a citation is an endeavor that is destined to fail.

Sunstein on Academic Legal Writing

Through the TaxProf Blog, I learned of this recent essay by Cass Sunstein, In Praise of Law Reviews (And Jargon-Filled, Academic Writing). Here is the abstract:

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

I have long been of the opinion that a great deal of criticism of academic legal writing consists of the recycling of the same tired arguments every few years. I try not to be dismissive of this criticism -- but it just seems that there are some instances of classic criticism and dozens of dreary echoes.

In his essay, Sunstein takes on the classics. I have expressed my appreciation (or at least, good-humored enjoyment) of Fred Roddell's, Goodbye to Law Reviews in previous posts. But Sunstein has none of it -- arguing that Roddell's approach is "smug" and filled with contempt. And in responding to Roddell's criticism of law reviews, Sunstein makes one of his central points:

Rodell seemed to hold up general interest magazines as the standard, but rigor is not exactly their stock-in-trade. It should be unnecessary to say that the arguments that can be found there are often attention-grabbing, glib, result-oriented, and careless (and a little ridiculous). As for people, so too for genres: Their vices are a product of their virtues. What Rodell deplored as unnecessary formality, and a kind of incomprehensibility, is the dark side of the effort to avoid superficiality and glibness. Notably, some contemporary law professors seem strongly, drawn to more popular outlets, producing blog posts or online columns, where significant numbers of readers might be found, and where publication is essentially immediate. But a great deal is lost by writing of this kind, which tends not to be rigorous, and which does not really develop an argument or add to the stock of human knowledge.

I find this argument interesting, and I think that it is worth considering, especially in light of trends towards the media of blogs and Twitter in producing legal commentary and arguments. Published articles, at least, have no shortage of references for the points they make, and it may be harder to get unsupported assertions around journal editors.

But I don't think that Sunstein's argument will have much of an impact on the critics of law journals. True, an article in a law journal may be more rigorous than a blog post or an article in The Atlantic. But law journals are published and edited by law students, and critics argue that these articles are less-rigorous than that which is typically published in other fields. Sunstein would likely note that those professors who eschew law journals for popular articles also tend to shy away from more rigorously-edited publications. But the criticism still remains.

I am left with two main questions after reading Sunstein's essay. I would like to know how he would respond to the criticism that law reviews are not rigorous enough compared to other academic publications. And in a different vein, I would like to know what Sunstein thinks about online supplements to law reviews, which produce shorter, less-footnoted, and more quickly published pieces than printed law reviews. Are these online supplements akin to the general interest articles that lack rigor? Are they simply shorter versions of the over-footnoted, dry, and difficult law review articles? Or are they a possible middle ground where both rigor and readability can be achieved?