"Dark Lord" Arrested in Arizona for Unlawful Symbol Burning

Reuters reports:

A 22-year-old Arizona man calling himself "Dark Lord" has been arrested for allegedly burning a Bible and urinating on it outside a Christian-oriented homeless shelter in northern Arizona, police said on Friday.

Eric Minerault was booked into the Yavapai County Detention Center late on Thursday on suspicion of one count of unlawful symbol burning stemming from the incident at the Gospel Rescue Mission, Prescott police spokesman Lieutenant Ken Morley said in a written statement.

The facts in the case are still somewhat unclear, since "Dark Lord" could refer to a number of entities. Morgoth is the possibility that initially jumped to my mind, although last I heard, he was living in Portland. Also, Minerault's attire suggests otherwise, since he "was wearing a black-and-red robe and a pentagram necklace," which suggests that he was taking a more Satanic approach to invoking the powers of evil.

While the facts of this case are bizarre, the crime of "unlawful symbol burning" that Minerault / The Dark Lord was suspected of caught my attention as well.

A quick search reveals that only Arizona has a law criminalizing "unlawful symbol burning." Section 13-1708 of the Arizona Statutes reads:

13-1708. Unlawful symbol burning; classification 

A. It is unlawful for a person to burn or cause to be burned any symbol not addressed by section 13-1707 on the property of another person without that person's permission or on a highway or any other public place with the intent to intimidate any person or group of persons. The intent to intimidate may not be inferred solely from the act of burning the symbol, but shall be proven by independent evidence. 

B. A person who violates this section is guilty of a class 1 misdemeanor.

Section 13-1707 of the Arizona Statutes refers to the crime of burning a cross with the intent to intimidate. That crime is almost identical to 13-1708, but only applies to situations where the defendant burns a cross. Several other states, including Alabama, Illinois, and Missouri outlaw the burning of a cross with the intent to intimidate others. But those states do not have provisions that apply to the burning of other symbols in general (although Alabama's cross-burning statute also applies to situations where an American flag is burned with the intent to intimidate others).

Minerault may attempt to raise a First Amendment defense, arguing that his burning of the Bible is protected speech. But as long as the prosecution can prove that Minerault burned the Bible with the intent to intimidate others, Minerault's speech will fall into the unprotected category of "true threats," which the Supreme Court recognized in Virginia v. Black.

Would the facts support a finding that Minerault burned the bible with the intent to intimidate others? Probably. Reuters reports:

Officers found Minerault standing on the steps, with a burned and wet Bible on the ground near him. He quickly admitted to the act.

He told officers the mission was selected because he believed it was a place of Christian worship and he was “cursing the Christians,” police said.

I would not be surprised if the Dark Lord ended up spending some time in jail as a result of this incident.

California Law Would Restrict 3D Printed Guns

From Brian Krassenstein at 3DPrint.com:

Last year California Senator Keven De Leon introduced Senate Bill 808. The bill, which is clearly aimed towards 3D printed firearms or ‘ghost guns’, would make it a crime under California law for a person to manufacture a firearm without first obtaining California Department of Justice approval to do so. Additionally, if that gun is approved, the individual would also be required to engrave a serial number on that weapon, which would be provided by the California Department of Justice.

This Weekend, after fierce debate within the Senate, SB808 was passed. It is now headed to Governor Jerry Brown’s desk. Brown will either sign the bill into law, or veto it. With this said, his past actions would weigh in favor of this bill being signed into law very soon.

The full text of the bill is available here.

While the bill does not expressly mention 3D printed guns, several provisions of the bill describe activities that are equivalent to 3D printing a gun, and would place restrictions on how these guns could be manufactured. In particular, the bill would add section 29180 to the California Penal Code. This section would state, in relevant part:

Section 29180 (a) For purposes of this chapter, “manufacturing” or “assembling” a firearm means to fabricate or construct a firearm, or to fit together the component parts of a firearm to construct a firearm. 

(b) Commencing July 1, 2016, prior to manufacturing or assembling a firearm, a person manufacturing or assembling the firearm shall do all of the following: 

(1) Apply to the Department of Justice for a unique serial number or other mark of identification pursuant to Section 29182. 

(2) (A) Within ten days of manufacturing or assembling a firearm in accordance with paragraph (1), the unique serial number or other mark of identification provided by the department shall be engraved or permanently affixed to the firearm in a manner that meets or exceeds the requirements imposed on licensed importers and licensed manufacturers of firearms pursuant to subsection (i) of Section 923 of Title 18 of the United States Code and regulations issued pursuant thereto.

(B) If the firearm is manufactured or assembled from polymer plastic, 3.7 ounces of material type 17-4 PH stainless steel shall be embedded within the plastic upon fabrication or construction with the unique serial number engraved or otherwise permanently affixed in a manner that meets or exceeds the requirements imposed on licensed importers and licensed manufacturers of firearms pursuant to subsection (i) of Section 923 of Title 18 of the United States Code and regulations issued pursuant thereto. 

(3) After the serial number provided by the department is engraved or otherwise permanently affixed to the firearm, the person shall notify the department of that fact in a manner and within a time period specified by the department, and with sufficient information to identify the owner of the firearm, the unique serial number or mark of identification provided by the department, and the firearm in a manner prescribed by the department.

Penal Code section 29180(a) applies to 3D printed firearms since it applies to the "construction" and "fabrication" of firearms. Additionally, since 3D printed guns are made by printing off each component of the firearm, and then assembling the components, the portion of subsection (a) that covers the assembly of the components would likely apply to 3D printed guns as well.

The bill also proposes section 29181 of the Penal Code, which would exempt already-registered firearms from the provisions in 29180. This is important because it means that when somebody disassembles and reassembled a registered gun, that person will not be required to seek a new serial number.

This bill, like most gun regulations, has gotten strong reactions from critics.

Lawfare Podcast on the Law of War . . . Against Zombies

I highly recommend the most recent Lawfare Podcast which is entitled, "Bone-Crushing Zombie Action."




Shane Harris moderates the podcast in which Benjamin Wittes, Robert Chesney, and Jennifer Daskal discuss issues that would arise in the event of a military conflict between the United States and zombies.

The panelists discuss numerous issues, including whether the President would have the authority to order military force against zombies, whether zombies can truly considered to be engaging in "armed" conflict against the united states, and whether military action would potentially violate the zombies' due process rights or international laws. Important considerations throughout the discussion include whether the zombies are human or not and whether non-lethal actions against zombies are feasible.

My favorite line in the podcast is from Benjamin Wittes. A portion of the podcast addresses the issue of how much government surveillance should be permitted in light of the zombie threat. Wittes points out that privacy is an important consideration, but that "I prefer to be not eaten on camera than to be lunch in private." There was also some pretty good discussion about the case, In re Neagle.

If you are looking for both laughs and some good insight into an alternate perspective on laws of war, I highly recommend that you listen to the whole thing.

How Many States Require Warrants for Government Drone Use?

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

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

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

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

Idaho's Sneaky Law on Drones

Before work begins, I am trying to quickly finish up and send out a paper on state regulations of government drone use. Part of this process involves my researching laws restricting drones that states have passed. I have blogged about many of these states, but I do not believe I have addressed Idaho's law until now.

Initially, I thought that Idaho's law regulating the use of drones was fairly restrictive. Here is the text of Idaho's restriction:

(2)(a) Absent a warrant, and except for emergency response for safety, search and rescue or controlled substance investigations, no person, entity or state agency shall use an unmanned aircraft system to intentionally conduct surveillance of, gather evidence or collect information about, or photographically or electronically record specifically targeted persons or specifically targeted private property including, but not limited to: 

(i) An individual or a dwelling owned by an individual and such dwelling's curtilage, without such individual's written consent; 

(ii) A farm, dairy, ranch or other agricultural industry without the written consent of the owner of such farm, dairy, ranch or other agricultural industry.

The law goes on to provide for statutory damages of $1,000 in the event of a violation of the law -- so even if somebody cannot point to personal harm from their being observed by a drone, that person will not need to prove damages in order to obtain a reward.

Gregory McNeal correctly points out that this law is very restrictive of private drone use. In particular, it would prevent private parties from using drones to obtain aerial photographs or information about agricultural industries. McNeal notes that this could prevent the discovery of illegal activities.

The part of the law that caught my attention, however, is that the bill contains an exception to the warrant requirement when the government is engaging in "controlled substance investigations." This means that quite a bit of government drone use will be unrestricted by the warrant requirement. The most likely scenarios in which I can foresee the government using drones is to fly over people's houses and yards, or to monitor the movement of suspects.

If the government uses a drone to look into somebody's yard to see if drugs are being grown there, this would not violate the statute's warrant requirement because this would be part of a controlled substance investigation. And if the government is tracking the movements of somebody suspected of trafficking drugs, the statute would not require the law enforcement agency to obtain a warrant before using drones to track that person's movements.

While the Idaho legislature may claim that it has taken action to curtail the government's use of drones, the careful wording of the bill means that law enforcement still has a great deal of leeway to use drones in criminal investigations.

Our Generation's Jarndyce and Jarndyce is Over

So reports Gerry Beyer in his post, "Anna Nicole Smith's Twenty Year Battle Finally Ends."

Summing up the story, Beyer writes:

After nearly twenty years of contentious debate in the courtroom, a federal judge recently ruled Anna Nicole Smith’s estate would not receive millions of dollars from the estate of E. Pierce Marshall, the son of Anna Nicole’s late husband, J. Howard Marshall II.

My comparison of this case to Dickens' Jarndyce and Jarndyce in Bleak House is a reference to the beginning of Justice Roberts' opinion in Stern v. Marshall -- where this case managed to make its way before the highest court in the land:

This "suit has, in course of time, become so complicated, that ... no two ... lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause: innumerable young people have married into it;" and, sadly, the original parties "have died out of it." A "long procession of [judges] has come in and gone out" during that time, and still the suit "drags its weary length before the Court." 

Those words were not written about this case, see C. Dickens, Bleak House, in 1 Works of Charles Dickens 4-5 (1891), but they could have been. This is the second time we have had occasion to weigh in on this long-running dispute between Vickie Lynn Marshall and E. Pierce Marshall over the fortune of J. Howard Marshall II, a man believed to have been one of the richest people in Texas. The Marshalls' litigation has worked its way through state and federal courts in Louisiana, Texas, and California, and two of those courts—a Texas state probate court and the Bankruptcy Court for the Central District of California—have reached contrary decisions on its merits. The Court of Appeals below held that the Texas state decision controlled, after concluding that the Bankruptcy Court lacked the authority to enter final judgment on a counterclaim that Vickie brought against Pierce in her bankruptcy proceeding.[1] To determine whether the Court of Appeals was correct in that regard, we must resolve two issues: (1) whether the Bankruptcy Court had the statutory authority under 28 U.S.C. § 157(b) to issue a final judgment on Vickie's counterclaim; and (2) if so, whether conferring that authority on the Bankruptcy Court is constitutional.

Now, at last, the case is over.

Over for good . . . probably.

Do Police Need a Warrant for Aerial Surveillance in California?

The answer to this question is important in light of the California legislature's recent passage of a bill restricting the use of drones by law enforcement agencies. If existing California law already requires police to obtain a warrant for aerial surveillance, then this bill would not seem to make much of a difference.

Normally, I would quickly answer that police are not constitutionally required to obtain a warrant before engaging in aerial surveillance. But after some searching of California case law, I found that the answer is a little bit more complicated -- although I am still fairly sure that the answer is no.

My Initial Answer

My initial instinct to conclude that police in California do not need a warrant to carry out aerial surveillance is based on the 1989 Supreme Court case of Florida v. Riley. There, the Court held that officers did not carry out a Fourth Amendment search when they photographed a suspect's backyard from a helicopter that they were flying within navigable airspace. The plurality held that people do not have a reasonable expectation of privacy from this sort of surveillance, and O'Connor's concurrence stressed the importance that the helicopter be flown in a manner consistent with the common flying habits of the public at large.

For this reason, I've been of the opinion that police in California can conduct aerial surveillance of suspects so long as their plane or helicopter is flown in navigable airspace in accordance with the applicable regulations.

California's Initial Case Law

During an informative Twitter exchange earlier today, I learned about a California Supreme Court case that potentially complicates the answer to this question. In People v. Cook, the California Supreme Court held that a person has a reasonable expectation of privacy in his or her fenced-in backyard. The court held that aerial surveillance of the yard -- even from 1,000 feet in the air -- intrudes on the curtilage of the home and violates a reasonable expectation of privacy. The Court held that this was unconstitutional under Article 1, Section 13 of the California Constitution.

Cook was decided in 1986. It was later narrowed by the California Supreme Court in People v. Mayoff, where the Court held that aerial surveillance of open fields was permitted under the California Constitution. The Cook holding was further narrowed by People v. Venghiattis, where the California Court of Appeal held that Cook's reasoning did not apply to an unfenced yard where marijuana was being grown 100 feet from the suspect's house.

The Impact of Proposition 8: The "Truth in Evidence" Rule

More important than these factual distinctions, however, are the legal developments that took place in California after Cook. Soon after Cook, Proposition 8 added the Truth in Evidence Rule to the California Constitution, which can now be found at Article 1, Section 28(f)(2). In In re Lance W, the California Supreme Court construed this rule to require that evidence can only be excluded in a criminal trial if it is obtained in violation of the Federal, rather than the state, Constitution. Mayoff and Venghattis noted this change, and concluded that Cook no longer applied, since its holding was based on the California Constitution.

The California Court of Appeal took further note of the impact of the Truth in Evidence Rule in the 1986 case of People v. Sabo. While the Sabo court held that evidence obtained from a low-flying helicopter violated a reasonable expectation of privacy, the court reached this conclusion because the helicopter was not within navigable airspace. The court noted in footnote one of its opinion that it was basing its opinion on the recent Supreme Court case, California v. Ciraolo, and that Cook would not warrant the exclusion of evidence if the admission of the evidence was consistent with the holdings of the United States Supreme Court.

In the 1988 case of People v. Romo, the California Court of Appeal confronted a case very similar to Cook. There, an officer conducted aerial surveillance of a suspect's fenced-in yard, and took pictures of the yard where the suspect was growing marijuana. The court noted that the marijuana was farther from the suspect's house than the marijuana in Cook, but further noted that Cook did not mandate exclusion of the evidence because its holding was based on the California, rather than the Federal, Constitution. In light of the Truth in Evidence Rule and the interpretation of that rule in Lance W., the Romo court held that Cook no longer applied.

This series of cases explains the California Court of Appeal's decision in People v. McKim. There, the court held that no Fourth Amendment search took place when officers spotted marijuana growing "30-40 yards" from the suspect's "rural residence." While the court could have relied on Venghiattis to factually distinguish Cook, the court cited neither Cook nor Venghiattis, and focused instead on the first case I mentioned in this post: the United States Supreme Court case of Florida v. Riley.

Conclusions

In light of these cases and legal developments, I am inclined to conclude that California law does not restrict aerial surveillance by government officers beyond any restrictions required by the Supreme Court's existing case law.

Admittedly, I could not find any California Supreme Court case that explicitly overturns Cook. And all of the California Court of Appeals cases that noted the significance of the Truth in Evidence Rule as overturning Cook involved scenarios that could have been factually distinguished from the Cook case.

But in light of the Truth in Evidence Rule, I don't think that Cook would apply if a court were to consider the same facts today. While the California cases have involved facts that are potentially distinguishable from Cook, Florida v. Riley involved a case where marijuana was growing a mere "10 to 20 feet" from the defendant's home in the defendant's fenced-in yard -- a fact pattern that is extremely similar to that in the Cook case. California courts have consistently held that the Fourth Amendment, rather than Article 1, Section 13 of the California Constitution, governs whether the police carry out a search. If the aerial surveillance in Riley was not a search, then the aerial surveillance in Cook would probably not be considered a search.

All of this means that government officers can conduct aerial surveillance of people as long as they are flying within navigable airspace. This also means that California's AB 1327 -- which would require the government to obtain a warrant before using drones for surveillance in criminal cases -- could have a meaningful impact on the law governing searches and surveillance.

UPDATE - 8/28/2014

I have made changes to the sentence describing Justice O'Connor's concurrence in Florida v. Riley.