Thursday, September 25, 2014

An Officer Asks You for ID. Have You Been Detained?

In this space last week, we looked at a case of police confronting a man, asking him whether he was armed, and requesting that he show his hands. The issue was whether the officer and his colleagues had detained the fellow. That depended on whether a reasonable person in the defendant’s position would have felt free to disregard the cops and walk away. Remarkably enough, the federal appeals court deciding that question answered it, “Yes.”

To enforce what they call a Terry stop—often a precursor to search and arrest—officers must have reasonable suspicion of criminal activity. But they don’t need anything to strike up a conversation with someone in public or to ask a few casual questions. It’s that zone between “How ya doin?” and “Stop! Don’t move!” that keeps courts busy.

All in the Circumstances

According to the U.S. Supreme Court, an officer may approach, identify him or herself as a member of law enforcement, and begin to ask questions without having “detained” the interlocutor. (Florida v. Royer, 460 U.S. 491 (1983).) On the other hand, a detention can be implicit, perhaps as when several officers confront the subject. Other circumstances that point toward detention include an officer displaying a weapon, touching the citizen, or using forceful language or a stern tone of voice. (U.S. v. Mendenhall, 446 U.S. 544 (1980).)

A particularly sticky situation arises when an officer asks for—but doesn’t demand—someone’s identification. Really now, how many among us wouldn’t feel significant pressure to comply? Regardless though, the reality is that courts tend to view ID requests along the lines of routine conversation.

Different Places

The U.S. Supreme Court once somewhat famously ruled that there was no detention when out-of-uniform agents approached a woman at an airport, identified themselves, and requested her ID and ticket. (Mendenhallsupra.) Other courts have followed suit, holding that an ID request does not a detention make. (See, for example, U.S. v. $25,000, 853 F.2d 1501 (9th Cir. 1988).)

But that isn’t the end of the story. States are free to expand basic freedoms beyond what the federal constitution provides. So, while the U.S. high court has the final say on what does and does not constitute a detention under the Fourth Amendment, state courts are free to decide the same under their own constitutions. That is, they’re free to diverge from SCOTUS’s rulings on the U.S. Constitution as long as they side with the defendant. 

That’s exactly what a New Jersey court did in 1999. It found that an officer’s approaching a parked car, identifying himself, showing his badge, and asking to see the driver’s “credentials” constituted a detention. The court concluded that a reasonable person in the driver’s position, who hadn’t done anything to deserve the inquiry, wouldn’t have felt free to leave. (State v. Egan, 325 N.J. Super. 402 (N.J. Super. Ct. Law Div. 1999).)

No Detention?

But even in New Jersey, a request for identification isn’t the end of the story. Actually, the general rule there appears to be that a request for ID, standing alone, doesn’t transform an encounter into a detention. (State v. Sirianni, 347 N.J. Super. 382 (App. Div. 2002).)

In the end, it can be pretty tough to say when a person has or hasn’t been detained. The determination depends not only on the facts, but also on where in the country the encounter occurred. And common sense isn’t necessarily the guiding principle.

Tuesday, September 23, 2014

Why a Texas Court Invalidated the State 'Upskirting' Ban


Back in March, the highest Massachusetts court rejected a criminal prosecution for “upskirting”—the practice of secretly photographing or videotaping the area underneath a woman’s skirt or dress. The court found a hitch in the wording of the statute underlying the case. Predictably, the state legislature reacted quickly by crafting a more precise law. Authorities are already making arrests under it.

The legislature in Texas will likely get back to the drawing board on a similar law of its own after a ruling last week by the state’s foremost criminal court. That ruling, courtesy of the Court of Criminal Appeals, struck down the part of a law that happened to make upskirting illegal. (Ex parte Thompson, No. PD-1371-13 (Tex.Crim.App. 2014).)

Understandably, plenty of people are decrying the Texas ruling in the way they did the Massachusetts decision. But those who read such opinions will notice that no one is saying upskirting should be legal. Instead, courts are saying that the laws that ban this nasty practice have to be carefully drafted.

A Closer Look

Last week’s Texas case involved a man accused of photographing women and girls wearing swimsuits at a water park. Disturbing for sure, but illegal? The appeals court said no—because of the First Amendment.

The part of the law in question made it a crime to photograph or visually record someone who isn’t in a bathroom or private dressing room (there’s a separate law for that), and who hasn’t consented to the photograph or recording, if the photographer/videographer acted “with intent to arouse or gratify the sexual desire of any person.” (Texas Penal Code § 21.15(b)(1).) The court said that portion of the law violated the First Amendments freedom of speech guarantee, in large part because:
  • photographs and videos—and the act of creating them—are inherently expressive
  • the First Amendment protects sexual expression that’s “indecent but not obscene,” and
  • the government can’t protect “someone who appears in public from being the object of sexual thoughts.”

Not Safe for Long

To make abundantly clear that she wasn’t condoning upskirting or anything like it, Presiding Judge Sharon Keller wrote that the legislature could write a law that specifically prohibits invasions of privacy like “the taking of a photograph underneath a person’s clothing.” 

The problem to Keller and seven of the other nine judges was that section 21.15(b)(1) of the Texas Penal Code was just too broad. It could, for example, apply “to an entertainment reporter who takes a photograph of an attractive celebrity on a public street.” Under it, the reporter who snaps such a pic with an understanding of why people would want to view it could face a felony conviction. All kinds of photos at events like music festivals and sporting events could also become fodder for criminal prosecution.

So, we’ll have to see what the Texas legislature comes up with to criminalize sexual, photographic invasions of privacy. There’s little doubt that it’ll pass a replacement law that gets at upskirters and the like—and only them.

Thursday, September 18, 2014

Daniele Watts Controversy: Can Officers Demand ID?

Chef Brian James Lucas is adamant that he and partner Daniele Watts weren’t having sex last Thursday afternoon. Both he and the actress of “Django Unchained” fame maintain that they had simply been making out in a car when someone in a nearby office building called the police. Police officers ended up arresting Watts after she refused to hand over her ID.

There’s been a lot of back and forth in what might seem like a trivial bit of celebrity news about two people some of us had never before heard of. But many are keeping up on the story because Watts is black, Lucas is white, and both accuse the responding officers of racism. (In that vein, the narrative seems to have shifted at least somewhat now that TMZ (who else?) has published photos depicting the frisky pair doing something on what appears to be a very public street in LA’s Studio City.)

Stop & Identify

From a purely legal standpoint—which we’ll happily stick to here—the question is whether the police were entitled to demand from Watts her identification, and whether she was within her rights to refuse.

Here’s what Lucas had to say about that, via Facebook:

As the LA Times and ACLU have said in the past few days, Daniele had every right NOT to show her ID!!! California does not have a stop and identify statute. According to California State Law, to investigate a potential arrest for lewd behavior (which is a misdemeanor), Sgt Parker would have had to seen us in the middle of the lewd act, OR had talked to a witness at the scene of the alleged crime. 

Lucas’s “lewd act” reference relates to California Penal Code section 647(a), which Watts and he may well have violated if they were indeed having intercourse. That statute outlaws “lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.”

A Little Fuzzy

Some states have stop-and-identify statutes, while others don’t. In 2004, the U.S. Supreme Court upheld one such law. The section in question, courtesy of Nevada, provided that failure to identify oneself after being detained for suspicion of wrongdoing constitutes its own offense. (Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004); also see Police Searches on the Street: Stop and Frisk.) California used to have a stop-and-identify statute that was broader than the Nevada law, but the U.S. Supreme Court struck it down in 1983. (Kolender v. Lawson, 461 U.S. 352 (1983).)

That’s at least in part why Peter Bibring of the ACLU of Southern California states so clearly, “There’s no question that, in California, failure to provide identification upon an officer’s request is not, in and of itself, basis to detain or arrest someone.” (“Daniele Watts, Brian Lucas, LAPD Clash…”)

Despite Bibring’s worthy opinion, not all agree on the state of the law. At least some law enforcement agencies and prosecuting offices are of the mind that people who have been lawfully detained by the police can’t refuse to disclose their names or written IDs. The Alameda County District Attorney’s Office, for example, says that refusal in these circumstances violates the law on delaying or obstructing an officer. (Cal. Penal § 148(a)(1).)

Though the lively debate won’t be resolved here, you can at least catch some of it—between the LAPD and the ACLU—over at the LA Times.

Of course, we’re also missing the final word on whether race was a factor in this case. Perhaps all we can say for certain is that having sex or something close to it in a car, in public, with the door open may garner some attention.

Tuesday, September 16, 2014

Free to Leave? Court Takes Incredible View of Police Encounters

In order to detain you, a police officer must have a reasonable suspicion that you’re up to no good—that is, that you committed or are committing a crime. An officer who doesn’t have an objectively reasonable basis to suspect that crime is afoot generally doesn’t have the authority to stop you. If a cop in this position behaves in a way that would prevent a reasonable person from feeling free to leave, then there’s been an unlawful detention. Any evidence the police obtain as a result of the encounter is inadmissible for most purposes.

If the prosecution can establish that you were at liberty to go your own way, but that you instead consented to the interaction, then you’re probably out of luck. It all depends on a realistic assessment of how your average member of society would have experienced the event.

Last week, the U.S. Sixth Circuit Court of Appeals provided a nice little indicator of just how realistic these assessments are.

Consensual Encounter

The case in question involved Byron Preston, a convicted felon taking a walk on New Year’s Eve “in a high-crime area.” Three officers in a police car happened to see him approaching a liquor store parking lot from an alley. They didn’t know  what he was doing, but they didn’t like whatever it was. (United States v. Preston, 13-2514 (6th Cir. Sept. 12, 2014).)

As Preston continued on his way, the police car pulled up near him. According to the officers, he appeared to see the car and alter his path. He passed out of sight behind a dumpster “and lingered there a moment longer than seemed right.” At this point, the police car was in the parking lot. Preston reappeared and walked in the direction of both the car and the liquor store’s front door. Officer Jackson, in the passenger seat, lowered his window and purportedly said “something similar to ‘What’s up?’ or ‘Where are you heading?’”

In response, Preston approached the car with his hands inside the hooded sweatshirt he was wearing. Officer Jackson supposedly “asked something like ‘Are you armed?’ or ‘Do you have a gun?’ and asked to see Preston’s hands.” Preston confided that he was carrying a gun. The officers arrested him, leading to his eventual conviction for being a felon in possession of a firearm and a six-and-a-half-year prison sentence.

Ask vs. Order

There was never any question that Officer Jackson & Co. had nothing more than a hunch that Preston was about to do something illegal. They certainly didn’t have reasonable suspicion. So, the issue was whether Preston consented to the entire police interaction. A showing that he reasonably thought at any point that he couldn’t ignore the officers would mean his victory.

Anyone who can imagine being the target of an approaching police car and what we’ll call an officer’s casual inquiries can probably envision a little nervousness. If that were you—even if you had nothing to hide—you might or might not think you were within your rights to leave. But is there anyone who, at the point of being queried about weapons and asked to display hands, would feel “free to disregard the questions and walk away”? (United States v. Mendenhall, 446 U.S. 544 (1980).)

In case there was any doubt as to how a reasonable person would have reacted to the scene that Byron Preston faced, there’s this tidbit: In his early synopsis of the non-detention-turned-arrest, Officer Jackson wrote that he “ordered the subject to place his hands in the air.” The judge who initially decided Preston’s motion to suppress evidence, to whom the Sixth Circuit deferred, decided that point (and apparently all others) in the government’s favor. The judge chose to take at face value Jackson’s explanation—when testifying with the knowledge that confessing to an “order” would lead to the suppression of evidence—that he merely asked Preston for a show of hands in a “conversational tone.”

Hows that for a realistic assessment?

Thursday, September 11, 2014

Oscar Pistorius Verdict: How Strange

If the Oscar Pistorius case is any indication, the criminal justice system in South Africa is strange—at least when compared to ours.

Photo by David Jones
South Africa doesn’t use juries. So, the double-amputee sprinter’s fate was up to one person, a former social worker and news reporter turned judge. Except, the guilt/innocence determination wasn’t entirely Thokozile Matilda Masipa’s. If the two assessors aiding “My Lady” had disagreed with her finding, they could have overturned it. But even had that happened, sentencing would have still been up to Masipa. (“Oscar Pistorius' Trailblazing Judge Has Reputation for Toughness.”)

To someone trained in American law, it’s all somewhat convoluted. Like the verdict.

Not Guilty

After a six-month-long trial that involved approximately three months in breaks—including a month-plus delay for Pistorius to undergo court-ordered psychiatric testingJudge Masipa showed her hand. On Thursday, she found that the government hadn’t established that Pistorius premeditated Reeva Steenkamp’s death or that he intended to kill her at all. That means that Pistorius is off the hook for South Africa’s version of first degree murder.

Judge Masipa also found that Pistorius wasn’t guilty of what they call dolus eventualis murder. As The Independent explains, “dolus eventualis means it is enough to find someone guilty of murder if the perpetrator objectively foresees the possibility of his or her act causing death and persists regardless of the consequences.” 

That sounds an awful lot like an American variation of second degree murder that goes by monikers like implied malice murder, “abandoned and malignant heart” murder, and reckless murder.  In essence, it’s an unintentional killing where a defendant is aware of, but consciously disregards, a risk that takes another person’s life. (For infamous case examples, see Murder vs. Manslaughter: State of Mind.) 

No one disputes that Oscar Pistorius fired four bullets into a closed bathroom door, thereby killing Steenkamp. He claimed—and the judge believed that—when he unloaded, he thought an intruder was in the bathroom. But, as Stephen Tuson, an adjunct professor at the University of the Witwatersrand in Johannesburg, queried, “How can you shoot four bullets through a door and not foresee” the death of the person behind it?

Masipa’s answer? “Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom.”

Unforeseen Consequences

It might well be that dolus eventualis murder wasn’t the right charge, and that Pistorius was nevertheless criminally responsible for Steenkamp’s death. Indeed, Judge Masipa indicated on Thursday that she’ll complete her findings by entering a guilty verdict for culpable homicide, the rough South African equivalent to U.S. manslaughter.

Our manslaughter has two branches. Voluntary manslaughter can involve an intentional killing where the defendant acted in the heat of passion, because of some reasonable provocation. And involuntary manslaughter often refers to an unintentional homicide caused by criminally negligent or reckless conduct.

Masipa refered to the sprinter’s conduct as clearly negligent. She mentioned the alternatives that were available to Pistorius in those fateful moments, like screaming from the balcony or calling security or the police. In short, she found that it was unreasonable to fire four rounds at the bathroom.

But even if dolus eventualis isn’t the appropriate verdict—if something like manslaughter is more fitting—reconciling Judge Masipa’s words with the facts is a challenge. Someone intentionally fires four rounds into a bathroom that someone else is in. Three of those shots hit the occupant; at least one of them kills her. But the judge says that the person doing the shooting didn’t foresee the possibility that his actions would kill the occupant?

How strange.

Tuesday, September 9, 2014

Ray Rice and Evolving Domestic Violence Policy

Photo by Keith Allison
As former NFL running back Ray Rice has recently learned, the public takes domestic violence very seriously these days. Folks were less than thrilled about the NFL suspending the one-time star for only two games for assaulting his then-fiancĂ©e/now-wife and dragging her, unconscious, out of an Atlantic City casino elevator. And they didn’t appreciate the Baltimore Ravens, Rice’s employer, not doing much at all in response to the February 15 incident.

But now that footage of the actual in-elevator assault is out, the Ravens have cut Rice, a former Pro-Bowler coming off a poor 2013 season. They’re even offering fans some sort of exchange for handing back their “Rice 27” jerseys. And the NFL went ahead and made the suspension indefinite. New England Patriots owner Robert Kraft went as far as saying of the 27-year-old, “I don’t think he’ll play another NFL game.”

But football-related punishment aside, there’s a telling, overlooked part to the Ray Rice story. Back on the night of the altercation, the police arrested the player’s now wife. They arrested her even though the video establishes she was the victim of, at a minimum, a brutal left-handed punch. (Mrs. Rice appears not to have been prosecuted; her husband, as a first-time offender, received diversion.)

New Mandate

Until relatively recently, police departments and prosecutors looked the other way when there was violence between spouses or significant others. But the kind of outrage generated by the Rice case–if not quite as immediate and fierce—eventually started to shape law and policy.

Today, many states make arrest mandatory where there are allegations of domestic violence. For example, in New Jersey, when someone claims to be a victim of domestic violence and the responding officer has probable cause to believe that such violence has occurred, the officer must arrest the alleged attacker if there are signs of injury or it appears that a weapon was involved. (For more detail, see this coverage of state-by-state domestic violence laws.)

The mandatory-arrest policy may not explain why Atlantic City police took Janay Palmer (now Rice) into custody after she regained consciousness on that winter night.  But her arrest is an indication of just how serious domestic abuse accusations are nowadays.

The Atlantic City Police Department issued a release after the arrests, reporting that the surveillance footage indicated “that both Ric[e] and Palmer struck each other with their hands.” Because there was at least some kind of indication of mutual violence, the authorities took the common approach of arresting both parties. (Somewhat amazingly, the release indicates that arrest was discretionary, rather than mandatory, even for Rice—it mentions that “no injuries were reported by either party.”)

Handle With Care

Despite the media frenzy over the Ray Rice story, domestic violence accusations are anything but uncommon, even when it comes to people in the public eye—or the NFL. Just three days after Commissioner Roger Goodell announced the league’s new, Rice-inspired punishment policy for domestic abusers, San Jose police arrested 49ers defensive tackle Ray McDonald. The allegation is that he struck his pregnant girlfriend.

If there’s any video in the McDonald case, we don’t yet know about it. It appears as though his case is like so many others—and so unlike the Rice case—in that regard.

But, video or not, the NFL now knows that police departments aren’t the only ones who must handle domestic violence cases with care.

Thursday, September 4, 2014

“Hot Car Death” Charges Explained

A grand jury has indicted Justin Ross Harris in the case the media refers to simply as “hot car death.” The broad facts are that Harris, employed as a web developer for Home Depot in Georgia, left his son Cooper in the car for seven hours while at work. While almost-two-year-old Cooper languished, prosecutors say, Harris sexted several women and even sent one—an underage girl, actually—a photo of his erect penis. (“Dad indicted on murder charges in son’s hot car death.”)

There are eight charges in the indictment against Harris for what are really two distinct acts. The first is causing the death of his child. The second act—or set of acts—relate to the sexting accusations.

Murder and Cruelty

The Cobb County District Attorney brought five charges against Harris for Cooper’s death. The most serious is malice murder, but there are also counts of felony murder and cruelty to children.

In Georgia, murder occurs when someone kills another with either “express” or “implied” malice. Express malice essentially denotes an intentional killing.

Several outlets have reported that the malice murder charge means that prosecutors must prove that Ross intended or premeditated his son’s death. But the relevant count in the indictment—which says simply that Ross acted with “malice aforethought”—indicates that they haven’t necessarily alleged as much. That’s because the “malice” in malice murder can be implied. In other words, killing someone, not necessarily intentionally, but through a “reckless disregard for human life,” fits the bill. (For more on a related distinction, including infamous real-life examples, see Murder vs. Manslaughter: State of Mind.)

The felony murder counts are really lesser variations of the malice murder charge. In essence, they allege that Ross caused his son’s death by committing either malicious or criminally negligent child cruelty. And the child cruelty charges are basically less substantial versions of the felony murder counts. 

In short, each of the first five charges relates to the single act of leaving the boy in a hot car for seven hours. If a jury were to convict Ross of all these offenses, they would “merge,” meaning that the judge would have to sentence on only the most serious one. But that one carries a maximum penalty of death. (GA ST §§ 16-5-1, 16-5-70.)

Sexting Crimes

The second group of charges against Harris relates to the time up to and including the day of Cooper’s death: one count of criminal attempt to commit sexual exploitation of children and two counts of dissemination of harmful materials to minors. They have to do with Ross allegedly asking a minor girl to provide him with a lewd image of herself, sending the same girl “detailed verbal descriptions and narrative accounts of sexual excitement and sexual conduct,” and sending her a photo of “uncovered male genitals in a discernibly turgid state.”

Some legal minds have reasonably theorized that the prosecution wanted those charges lumped in with the others so as to increase the chances that a jury would convict on the more weighty accusations. (GA ST §§ 16-12-100, 16-12-103; “Dad in Georgia Hot Car Death Charged With Murder.”)

What’s Next?

It’s not yet clear whether the prosecution will get the sext-related charges in front of the same jurors who would decide the other counts. And the District Attorney hasn’t announced whether this is going to be a death penalty case. Not only that, but DA Vic Reynolds seems to have left open the possibility of charging Harris’s wife as somehow complicit in young Cooper’s death. Reynolds commented that “whether (the investigation) leads to anyone else remains to be seen.”