Legislating Via Pokemon Go

The New York Times reports on an awful innovative approach to policy making:

Since its introduction this month, the app known as Pokémon Go has sent millions of players chasing after imaginary creatures in parks, city streets and, occasionally, ditches and trees.

But according to two New York State lawmakers, the game has the potential to lead children to a more frightening locale: the homes of sexual predators.

In an informal investigation by Senators Jeffrey D. Klein and Diane J. Savino, staff members took a list of 100 registered sex offenders across New York City and compared it with locations where Pokémon Go players could collect virtual items or use other game features.

In 59 cases, those locations were within half a block of offenders’ homes. The staff members, who played the game for two weeks, also found 57 Pokémon — which appear on players’ phones as if they exist in the real world — near the offenders’ homes, according to a report the senators released on Friday. Such overlap has been reported in other states, including California and North Carolina.

What is the result of the senators' inability to maintain discipline among their staff members? Why new policy of course! The Times continues:

In New York, those discoveries prompted Mr. Klein, a Democrat who represents parts of the Bronx and Westchester County, and Ms. Savino, a Staten Island Democrat, to propose two pieces of legislation, scheduled to be introduced next week. 

The first would prevent moderate or high-risk sex offenders from playing so-called augmented-reality games — like Pokémon Go — and the second would require the games’ creators to cross-reference their virtual landscapes with lists of offenders’ homes and remove any “in-game objective” within 100 feet of them.

Critics of the law point out that there have been no reports of the game leading to more crime on the part of sex offenders.

Laws targeting sex offenders are unlikely to be met with many challenges, as few groups advocate on sex offenders' behalf. And it is theoretically possible that events may come to pass in which Klein and Savino's fears are realized and Pokemon Go players who stray too close to the homes of sex offenders are victimized.

While I have heard a lot of strange stories about the trials and tribulations Pokemon Go players face, victimization at the hands of sex offenders is not an anecdote with which I am familiar. Klein and Savino's proposals may sound sensible, but they do not appear to prevent any actual harm.

Additionally, the proposal to place restrictions on the game's creators may lead to delays and restrictions on the app's use and availability in New York. While people tend not to care about hardships faced by sex offenders, Klein and Savino may face an unexpected backlash from the nostalgic hipster crowd should their restrictions on the app become law.

Merits of the proposals aside, my main reason for highlighting these policies is the awful methodology that led to their creation. Senators staff members wandered around New York and played Pokemon Go for two weeks. Indeed, here are the last few sentences of the article:

While Mr. Klein said addressing Pokémon Go would be one of his top priorities for the new legislative session in January, he also said his staff members seemed to enjoy researching the report. 

“A lot of them are very good at it,” Mr. Klein said. “They’re really into the game.”

These policies and the "work" leading to their creation are the type of government work straight out of an episode of The Thick of It. Indeed, I suspect that Klein and/or Savino started wondering where their staff members were, and a clever intern came up with the excuse that they were playing Pokemon Go as a form of policy research.

These policy proposals and their development present a rare insight into the process of policy development. I hope that I am not the only one who is appalled that government time and resources are allocated based on staff members' temporary obsession with catching imaginary creatures on their smartphones.

Sorry Iowa, Political Robocalls Are Protected by the First Amendment

While I currently live in California, I spent most of my life in Iowa, and I regularly visit my family in Iowa around the holidays. It is nice to go back, but if it happens to be a month before a caucus, I find that the phone rings off the hook with repeated robocalls from various candidates -- a phenomenon that I simply do not experience now that I live in such a politically irrelevant state. During my 2012 visit home I would try to guess which Republican candidate would greet me with their pre-recorded voice -- Michelle Bachmann and Newt Gingrich were the safest bets.

If somebody had proposed banning these robocalls, I would have welcomed the proposal without hesitation. But, according to the Federal District Court for the Eastern District of Arkansas, my enthusiasm would have been misplaced.

So reports the Wall Street Journal Law Blog:

Political robocalls may be an irritating feature of modern campaigning, but that doesn’t mean they don’t deserve protection under the First Amendment, a federal judge ruled. 

A decision handed down Wednesday in Arkansas federal court struck down a state law passed 35 years ago that banned political robocalls. The statute restricted commercial robocalling and also made it unlawful to solicit information “in connection with a political campaign” using an automated phone system for dialing numbers and playing recorded messages. 

. . .

The state attorney general’s office defended the robocall prohibition as a justifiable effort to respect people’s privacy interests and protect them from unwanted intrusions into their homes. They also argued that the law prevented “the seizure of phone lines, which could interfere with emergency calls being placed or received.” 

U.S. District Judge Leon Holmes was unpersuaded. He said the state’s motives would be more convincing had the law targeted robocalling more broadly.

The full text of the opinion is here.

Content-based restrictions on speech must pass the difficult "strict scrutiny" test -- meaning that advocates for the law must argue that the law is narrowly tailored to achieve a compelling government interest. The Arkansas law and the courts ruling on it present an interesting case in which the law was deemed underinclusive -- that is, the government interest in preventing privacy violations from automated calls is only partially served by a ban on one subset of automated calls. Often, in the context of freedom of speech, it is more likely that a statute will be deemed overinclusive in that the law prohibits too much speech to be narrowly tailored to achieve its goal.

It looks like Iowans and others will continue to suffer political robocalls. Additionally, if I were a law student, I would take note of this case, as its emphasis on underinclusiveness highlights an aspect of strict scrutiny that is often unaddressed, and that may be likely to make its way onto a future exam...

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.

Does California Need a Law Prohibiting Drones Near Wildfires?

Ars Technica reports:

Firefighters working to contain a wildfire in the San Gabriel Mountains of Southern California were temporarily thwarted this weekend when pilots for the Monrovia Fire Department (MFD) spotted a few private drones in their path. For low-flying fire-fighting planes carrying fire retardant and smoke jumpers, an errant drone could mean life or death for the pilot and any crew. As such, the fire department decided to temporarily ground all aircraft on Saturday morning.

ABC News has further coverage on drone interference with efforts to combat wildfires in California.

Additionally, Ars Technica reports on the first arrest in California for flying a drone too close to a wilfire:

Law enforcement officers working for the California Department of Forestry and Fire Protection (Cal Fire) arrested Eric Wamser (PDF), a 57-year-old Placer County man, last Friday [July 19, 2016] for flying his drone too close to a wildfire burning north of Sacramento, California. 

Wamser’s arrest is the first of its kind in the state. 

The incident occurred on the evening of June 28 when the Trailhead Fire broke out. A drone was spotted above the fire, so authorities temporarily grounded firefighting aircraft for about 30 minutes. 

. . .

Wamser was not charged with flying a drone specifically, nor has he been penalized by the Federal Aviation Administration (FAA), but rather he was charged with a more general misdemeanor for “interfering with firefighting efforts.” He was discovered as the drone pilot after he posted some images from the drone on social media. Cal Fire and Placer County law enforcement did not say how they discovered the social media posts, but a Cal Fire spokesperson speaking to Ars suggested Wamser had posted a video and that it had been publicly available. Local news outlet KCRA reports that Wamser had posted a video on Facebook.

One might point to this coverage of drone interference with wildfires as examples of why a law prohibiting drone flight near wildfires is necessary. Utah passed such a law (which also authorizes firefighters to shoot down or otherwise neutralize offending drones). And proposals for this type of law are not new to California. Indeed, I wrote a post about such a law that Governor Jerry Brown vetoed last October. As I noted in that post, Governor Brown's reason to veto that bill, among others, was that it added an unnecessary crime to an already bloated Penal Code.

In light of all the reports of drone interference with firefighting in 2016, was Governor Brown wrong to veto the bill outlawing flying drones near wildfires?

The short answer is no. California Penal Code section 148.2 prohibits the willful interference with the lawful efforts of firefighters in the discharge of their official duties. This is the statute under which Wamser is being prosecuted. Any reasonable drone pilot should know that flying a drone near a wildfire will interfere with firefighters' ability to combat the fire from the air. With all the coverage of drone interference and statements by various agencies regarding obstacles to firefighting, this should be common knowledge. Adding a drone-specific law would be redundant, since section 148.2 is already sufficient to prosecute those whose drones interfere with firefighting efforts.

The best response to this that I can think of is that while a drone-specific law would be redundant, it might draw more attention to the problem of drone interference with firefighting. A drone-specific law would likely attract media coverage -- particularly coverage by outlets directed towards drone users. Drone operators may not be aware of Penal Code section 148.2, but they would likely take notice of a drone-specific criminal law.

Ultimately, I don't think it is worth adding a redundant crime to the Penal Code simply out of hope that it will draw more attention than existing laws. Instead, officials should continue to emphasize that even though there are no laws specifically banning drones near wildfires, flying a drone near a wildfire will likely interfere with firefighting efforts and therefore violate Penal Code section 148.2.

Moreover, governments can act to prevent drone-related offenses before they happen, rendering prosecution unnecessary. Of particular note are efforts toward an alert system warning drone pilots of no-fly zones. Between warning systems and emphasizing existing criminal laws, it hopefully will not take too many more instances of firefighting interference and arrests before drone pilots get the message.

Ninth Circuit: Double Negatives Don't Matter

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

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

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

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

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

Jones: All right. 

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

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

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

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

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

Jones: I'm telling you all.

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

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

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

Denniston on Whether Citizens United Will be Overturned

Via How Appealing, I learned of this post by Lyle Denniston at the Constitution Daily blog for the Constitution Center. Denniston notes several statements in which Hillary Clinton, Bernie Sanders, and others forecast that the Supreme Court case of Citizens United v. Federal Election Commission will be overturned. In particular, Hillary Clinton stated the following on July 18, 2016:

“Today I’m announcing that in my first 30 days as president I will propose a Constitutional Amendment to overturn Citizens United and give the American people, all of us, the chance to reclaim our democracy. I will also appoint Supreme Court justices who understand that this decision was a disaster for our democracy…. I hope some of the brilliant minds in this room will seek out cases to challenge Citizens United in the courts, because I know I can’t do this alone.”

For a bit of background on Citizens United, Denniston writes:

In that ruling, the court voted 5-to-4 in declaring that the First Amendment protects the right of corporations and labor unions to spend unlimited amounts of their money to try to influence election outcomes. Many political analysts believe that this ruling brought about the rise of “super PACs,” with a dominant financial influence in national elections. (It is an irony of history that the Citizens United case arose because of the money spent to create a highly critical campaign movie against Hillary Clinton, who now is one of the strongest critics of the Citizens United decision.)

Denniston notes that a constitutional amendment is unlikely, given the difficult process of obtaining the widespread support necessary to pass an amendment. Denniston also argues that changing the makeup of the Supreme Court is an unlikely means to overrule the decision:

Hillary Clinton is now proposing two different ways to overturn that ruling. Often during speeches last year, she spoke about selecting Supreme Court Justices who, she hoped, could be counted on to overrule that decision. She has continued to press that approach. That has always seemed like quite a long shot. Even the death in February of one of the Justices in the majority, in that case, Antonin Scalia, may not have changed the judicial calculus – unless a newly elected Democrat chooses a replacement for Scalia who would help make a majority to overrule that decision. Candidate Clinton recently added a strong encouragement of lawyers to keep trying to file lawsuits to test whether the court might be persuaded on this point.

While I agree with Denniston's conclusion that a constitutional amendment is unlikely, I do not think that Clinton's proposal to change the makeup of the Supreme Court is a "long shot." Justice Scalia's death may result in a significant shift in the Court's ideological balance should Hillary Clinton win the 2016 election, and this shift may well lead to a reversal, or at least a narrowing, of the Citizens United decision.

Texas Judge: No Plea Bargains "Involving" Probation for More Crimes than You May Realize

The title of this post admittedly involves a bit of a paraphrasing, but not much. The Wall Street Journal Law Blog has this post on a Texas judge who has banned plea bargains for probation or deferred adjudication for defendants charged with assault on a peace officer, resisting arrest, evading arrest, and other crimes in which members of law enforcement are "threatened."  Here is Judge Kerry Neves's Facebook post announcing the order.  In full, it reads:

I have just signed an Order which goes into effect immediately in this Court. No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved. In the event the State and the defense attorney believe there is compelling evidence to support such an agreement, the Court may consider it if presented with such evidence. Approval will require a sincere written statement of apology to the officer or officers involved, and agreement from the officer or officers involved to the plea bargain agreement. Prior criminal history will paly a big role in whether any such agreement is approved. 

If approved, the defendant will be required to read the statement in open Court. 

I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

The Wall Street Journal Law Blog notes that while the policy has drawn criticism from the criminal defense bar, the practice of plea bargaining takes place in a generally unregulated area of constitutional law and criminal procedure:

Plea bargaining is a ubiquitous feature of the American criminal justice system, but there’s no constitutional right to a plea offer. 

The right to a fair trial and effective counsel provide protections for defendants to ensure they have the capacity to engage in informed negotiations. And federal criminal procedure standards and local statutes set basic ground rules, but plea bargaining in the United States “is in critical respects unregulated,” according to University of Virginia criminal law professor Darryl K. Brown.

Through the ABA Journal, I was able to track down a copy of the order. As it turns out, the prohibition on plea bargaining is far broader than Judge Neves's Facebook post suggests. The order prohibits plea agreements "involving probation or deferred adjudication" for the following crimes:

1. Assault of a Public Servant
2. Evading Arrest or Detention
3. Failure to Identify
4. Resisting Arrest, Search or Transportation
5. Hindering Apprehension or Prosecution
6. Escape
7. Permitting or Facilitating Escape
8. Prohibited Substances and Items in Correctional Facility
9. Contraband in Correctional Facility
10. Taking or Attempting to Take Weapon from Peace Officer, Federal Special Investigator, Employee or Official of Correctional Facility, Parole Officer, Community Supervision and Corrections Department Officer, or Commissioned Security Officer
11. Interference with Public Duties
12. Interference with Police Service Animals
13. Any other offense in which a member of law enforcement is threatened, harmed, placed in danger or otherwise verbally or physically abused because of his or her status as a member of law enforcement.

I think that this order is misguided.

Off the bat, this strikes me as an overly partisan and political move. Texas has partisan elections for judges and, as it turns out, Judge Neves is up for reelection this November. Here is a link to his campaign website if you would like to know more about him or perhaps donate.

By announcing the order on Facebook in the run up to the election, this order appears to be less focused on good law and more focused on the politics of capitalizing on recent shootings of police officers in Texas.

Normally, I avoid the political criticism on this blog, but just reread the last paragraph of his Facebook post:

I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

Okay, okay. I'll get off my political soapbox.

And onto my legal one...