To my faithful dear reader (whomever you may be), let me update my terribly outdated blog. During my hiatus from blogging, there has been no shortage of news stories pertaining to criminal law and justice throughout South Florida and the United States, and I have been unfortunately delinquent in covering these developments. So here it goes.

THE MICHAEL BROWN CASE

In my last blog post, I discussed the shooting of Michael Brown. When I wrote the article, we only had a clouded understanding of the facts. We knew: (1) an officer stopped Michael Brown for jaywalking; (2) Michael Brown was unarmed; and (3) that the officer fatally shot Michael Brown. We also knew that the officer alleged that Mr. Brown grabbed for his gun. At the time, I wrote: “What has been reported from eyewitnesses of the shooting suggests that the police fatally overreacted to a show of disrespect.” I also cautioned: “We should wait until a full investigation is completed before drawing conclusions.”

Well, a full investigation was completed, and having read through the exhaustive witness testimony, I think it is fair to say that it is highly unlikely that Officer Darren Wilson overreacted to a show of disrespect. Rather, it seems likely that Michael Brown, having just completed the commission of a forcible felony at a nearby convenience store, attacked Officer Wilson through the open window of Officer Wilson’s vehicle. During the struggle in the window, Mr. Brown grabbed for Officer Wilson’s sidearm, which caused Officer Wilson to fire his gun inside the vehicle, thereby wounding Mr. Brown.

We can be relatively certain of this, thanks to the testimony of multiple eyewitnesses, as well as to the physical evidence collected at the scene. Numerous eyewitnesses testified that Michael Brown attacked Officer Wilson through the window of Officer Wilson’s vehicle. Even among eyewitnesses who were unwilling to commit that Michael Brown attacked Officer Wilson, many nevertheless recalled seeing Michael Brown struggling inside Officer Wilson’s open window. It is inconceivable–and contrary to all police training and common sense–that a police officer would try and pull a 6 foot 5, 289 pound suspect through the driver’s side window of a police vehicle. Clearly, Mr. Brown forced his way through the window, taking advantage of Officer Wilson’s confined position to overpower Officer Wilson.

Officer Wilson testified that while defending himself in the vehicle, Mr. Brown grabbed for his gun. Office Wilson testified that he fired the gun twice, inside the vehicle, while Mr. Brown was grabbing for the gun. The physical evidence clearly corroborates Officer Wilson’s testimony. (1) Shell casings were discovered near the vehicle; (2) Officer Wilson’s vehicle showed evidence that a bullet was fired through the door, from the inside; (3) Mr. Brown’s blood and DNA were discovered inside the vehicle; (4) Mr. Brown’s DNA was found on Officer Wilson’s gun; and (5) according to multiple medical examiners, Mr. Brown suffered a wound to his right thumb, consistent with a grazing gunshot at close range, which was fired between 6 to 9 inches away from Mr. Brown.

After suffering the wound to his hand, Mr. Brown disengaged with Officer Wilson and fled down the street. As he fled, Mr. Brown’s wound dripped blood, providing a forensic track of his path. Based upon this blood splatter, it is apparent that Mr. Brown turned back toward Officer Wilson, returning at least 21 feet from the furthest point from which he fled. This path corroborates Officer Wilson’s testimony, that Mr. Brown inexplicably turned around and charged at him, despite Officer Wilson’s commands to stop. Numerous other eyewitnesses corroborated Officer Wilson’s testimony on this point, describing Mr. Brown’s movement as “charging.” Many other eyewitnesses, who did not describe Mr. Brown as “charging,” nevertheless testified that Mr. Brown turned around and moved toward Officer Wilson.

According to the medical examiners, the gunshot wounds Mr. Brown suffered all entered from the front. The kill shot, which Mr. Brown suffered at the vertex of his scalp, entered in a manner consistent with Mr. Brown’s head having been lowered at the time of the bullet’s impact. This too, is consistent with Officer Wilson’s testimony, as well as the testimony of numerous eyewitnesses. Indeed, one eyewitness testified that when Mr. Brown suffered the final gunshot to his head, he was “charging” Officer Wilson with his head lowered, “like a football player.”

Of course, numerous eyewitnesses testified that Mr. Brown did not attack Officer Wilson. Many of these witnesses disputed the claim that Mr. Brown turned back toward Officer Wilson in a threatening manner. Indeed, some claimed that Mr. Brown never turned back at all. Between these eyewitnesses who dispute Officer Wilson’s account, their versions vary wildly. Some claim that Mr. Brown was shot in the back. Some claim that Officer Wilson ran down the street, firing his gun wildly. Some claim that Mr. Brown raised his hands in the air. Some claim that Mr. Brown extended his arms outward. Some claim that Mr. Brown never raised or extended his arms at all. At least one claimed that Officer Wilson executed Mr. Brown as Mr. Brown lowered himself to his knees, yelling out to his friend: “run for your life.”

These eyewitness accounts, which claim that Mr. Brown was murdered by an overzealous cop, are problematic for a number of reasons. First, they are mostly contradictory to each other in material respects. While it is expected that multiple eyewitnesses will remember incidents differently and provide slightly different testimony based upon their different perspectives, it is not expected that eyewitnesses will so dramatically differ in material respects. Second, their accounts are largely inconsistent with the physical evidence. Whether these eyewitnesses are lying or embellishing or are just confused is beside the point; ultimately, a prosecutor cannot hope to prove a case beyond and to the exclusion of every reasonable doubt with such contradictory testimony.

Which is to say, simply: the criminal case against Officer Darren Wilson is non-prosecutable. Indeed, the takeaway from the evidence is so obvious, it is not open to rational debate. No prosecutor, no matter how talented or persuasive, could possibly overcome Officer Wilson’s presumption of innocence, beyond and to the exclusion of every reasonable doubt. Given the weight of the evidence, any prosecution of Officer Wilson would have been unethical.

Which brings us to the Grand Jury proceeding.

THE MICHAEL BROWN GRAND JURY PROCEEDING WAS HIGHLY IRREGULAR

I cannot recall ever hearing about a grand jury proceeding where the prosecuting attorney presented every shred of evidence and every single witness (including expert witnesses) to the jury. On CNN, Sonny Hostins and Mark Garagos and Jeffery Toobin claimed that the irregularity was an indication of bad faith and “stacking the deck” in favor of Officer Wilson.

Nothing could be further from the truth.

The reality is that the investigation into this shooting will go down as arguably the most transparent, thorough criminal investigation of an alleged act of police misconduct in the history of our nation. We now have transcripts of every eye-witness account of the shooting. We have transcripts of the statements of every major investigating witness. We have a transcript of the defendant’s statement. We have all of the photos; all of the police reports; all of the DNA analysis; all of the CSI reports; and three separate M.E. reports. What’s more, throughout this investigation, the State investigators worked hand-in-hand with Federal authorities.

And yet despite all of this, there remain critics who unbelievably claim that the process was somehow unfair, because a prosecutor could have theoretically received a true bill, if the prosecutor only presented a fraction of the evidence. Why a prosecutor would want to indict a case he could never hope to successfully prosecute is a question the critics leave unanswered.

If this were any other case, in which the prosecuting authority was not facing intense national scrutiny and the threat of mob violence, this case never would have gone to a grand jury at all. This case would have been “no-filed” by the D.A.’s office based upon the conclusion that either: (1) the evidence supports a finding of justifiable homicide, or (2) given the totality of the evidence, there is no reasonable likelihood of successful prosecution.

However, had Bob McCullough simply “no-filed” this case (which, it should be noted, happens regularly), the media and social justice agitators would have vigorously protested. They could have justifiably complained that one D.A. made a decision behind closed doors, with the intent of shielding a police officer from justice.

So, Mr. McCullough took the only politically viable option open to him: he presented the investigation in its entirety to the grand jury, and then published the proceeding. This option provided maximum transparency.

On the other hand, this option placed Mr. McCullough in a bizarre position. He decided to take a case to the grand jury, knowing that even if he could make the case for probable cause, he could never make the case for guilt, beyond and to the exclusion of every reasonable doubt. When a prosecutor does not believe he/she can prove a case because he/she believes there is reasonable doubt, it is the prosecutor’s ethical obligation not to proceed.

Unfortunately, the threat of violence and the unprecedented scrutiny of the case all but foreclosed the possibility of Mr. McCullough proceeding in the normal fashion. I sincerely believe he proceeded in the best way possible, given the circumstances. That those circumstances included threats of mob violence is a sad commentary indeed.

GEORGES SOREL LIVES!

When reading through the witness statements and testimony made to the grand jury investigating the death of Michael Brown, it is readily apparent that the popular narratives of Michael Brown’s last moments are largely myth. According to numerous eyewitness accounts, Brown never raised his hands in surrender, much less cried out: “don’t shoot!” Even of those witnesses who claim that Officer Wilson unjustifiably killed Michael Brown, a surprising number do not recall Brown raising his hands or crying out for mercy.

Yet, despite this record of evidence, which in today’s hyper-connected era of information is readily accessible to anyone with the curiosity to look, we’ve had protestors all over the country walking down streets, walking out of class, walking into football arenas, and performing at the Grammys with their hands in the air, chanting the catchy and dramatic phrase: “hands up, don’t shoot!” Everywhere, people have protested police violence, racial profiling, and the statistical disparities between white and black America. They have protested not simply because they recognized that these issues exist (and they do), but because they *believe* a white cop gunned down a surrendering black man in Ferguson, and got away with it.hands up.jpg

Certainly, the underlying frustrations and concerns of many of the protestors are understandable and rational. There is no shortage of examples of police misconduct across the country in which the common denominator is often the skin color of the person suffering at the hands of overzealous cops. Which is why it is so strange that these other instances of actual injustice have not sparked the widespread outrage that the shooting of Michael Brown has ignited (I’ll touch on Eric Garner’s death below).

Simply stated, people are mythologizing the death of a man whom–according to the weight of the record evidence–the police did not profile (he was initially stopped for walking down the middle of the street, blocking traffic) nor assault. Quite the contrary, the record reflects that the man had just completed a violent felony and had viciously attacked a police officer, going so far as to try and take the officer’s gun.

Of course, to be fair, the protestors don’t actually believe what the record reflects. They don’t believe Michael Brown attacked Officer Wilson. Unfortunately, their disbelief is not the result of critical analysis or reasoned judgment; rather, their disbelief is the result of willful ignorance of the facts and their own emotive feeling. Apparently, for many of the protestors, there is no need to review the statements and testimony of those people who actually witnessed the shooting, because the “truth” of the movement trumps the facts.

sorel.jpgIf the French radical, Georges Sorel, were to time travel to the present, he would immediately recognize his theory at work. Sorel, who not only influenced leftist and fascist radicals in the early twentieth century, but who also influenced the development of Saul Alinksy’s “Rules for Radicals” in the 1960’s, championed the power of myth to inspire social action. Sorel rejected the conventional Marxist wisdom that the masses would act rationally based upon their economic interests. Rather, according to Sorel, the masses express their will based upon a higher, more authentic motivator: emotion. Sorel thus perceived myth as a means of achieving praxis; of awakening the masses to action. Myths, according to Sorel, are “artificial combinations invented to give the appearance of reality to hopes, [which] inspire men in their present activity.” From the Sorelian perspective, efforts at reviewing cold facts, evidence, and analysis are debilitating, whereas myth, emotion, and passion are creative.

However innocent Darren Wilson may be, professional agitators view Wilson and the shooting of Michael Brown as set pieces in a wonderfully crafted myth, designed to excite passions and emotions and to inspire protestors to action. Thus, an image of arms in the air–universally recognizable as the symbol of surrender–is plastered across television sets across the nation, appealing to the emotions of young activists everywhere. These activists may not know what they want, but they know that action is imperative. Do they want body cameras on all law enforcement officers, or do they want an end to the commercialized frenzy of “Black Friday”? It doesn’t really matter. They must do something!

THE DEATH OF ERIC GARNER

While protestors continue to make use of the “hands up” symbolism, they have also begun to chant the words “I can’t breath,” in response to the death of Eric Garner in Staten Island.

Mr. Garner, an unarmed black man, was killed when a white NYPD officer, Daniel Pantaleo, forced Mr. Garner to the ground, locking his arm around Mr. Garner’s throat, despite Mr. Garner’s cries that he couldn’t breathe. The police allege that Mr. Garner was selling un-taxed cigarettes, known as “loosies”, and was resisting lawful arrest. Unlike the death of Michael Brown, the killing of Mr. Garner was caught on camera and the footage was shared with all of the world to see.

The death of Mr. Garner was without justification. While it is true that Mr. Garner was resisting officers, he was not attacking the police, nor was he resisting violently. What’s more, the police have not shared what evidence they had that Mr. Garner was actually selling “loosies” that day, or was violating any other law, other than an uncorroborated complaint from a local business owner.

Furthermore, it appears evident from the video that Officer Pantaleo used a “choke hold” against Mr. Garner, in violation of NYPD policy. While violating NYPD policy is not necessarily a crime in and of itself, it is certainly relevant when determining whether Officer Pantaleo grossly deviated from a reasonable standard of care. All things considered, the death of Eric Garner seemed ripe for prosecution.

And then the New York grand jury inexplicably failed to return an indictment.

Their decision not to indict is puzzling, given the apparent strength of the State’s case. To begin, under New York law (and I must admit, I am not licensed in New York, nor am I familiar with the case law interpreting New York’s criminal statutes), the crime of “Negligent Homicide” is defined as follows:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”

“Criminal negligence” is defined as:

“A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

Thus, in order to prove the case against Officer Pantaleo, the prosecution would need to prove, beyond a reasonable doubt, that the officer (1) failed to perceive a substantial, unjustifiable risk of death, which constituted a gross deviation from a reasonable standard of care; and (2) as a result of that failure, caused the death of another person.

Well, if an officer is (a) trained not to use a choke-hold when detaining a suspect; and (b) uses an impermissible choke-hold to detain a suspect, which is confirmed by video; and (c) two M.E.’s confirm that the impermissible choke-hold contributed to the cause of death of the suspect, then it seems to me that the State has a valid case that the officer grossly deviated from the standard of care that a reasonable person would observe when detaining a suspect.

The issue is not whether the officer intended to kill Mr. Garner; the issue is whether the officer, based upon his training, should have perceived the potential risk of using a choke-hold. I think it is fair to say that the NYPD forbids a choke-hold for a reason; a choke-hold can cause severe, unintended medical consequences.

So why didn’t the grand jury indict?

Of course, it is always difficult to indict and successfully prosecute police officers, because the law authorizes officers to use reasonable force when effectuating an arrest. People are aware that officers often operate in high stress situations, in which decisions have to be made quickly, and in which unforeseen consequences can occur. Yet deference to law enforcement should not eclipse accountability. Simply stated: the grand jury’s failure to indict Eric Garner is immensely frustrating and unjust. Absolutely, not only did there exist probable cause to prosecute, but given the facts, the State should have had a good faith basis to believe that it could have successfully obtained a conviction.

OOPS! THE FLORIDA LEGISLATURE ACCIDENTALLY LEGALIZED “SEXTING” BETWEEN TEENS!

Recently, in State v. C.M., the Fourth D.C.A. ruled that the State may not file delinquency petitions against minors for violating F.S. 847.0141(3)(a), which forbids “sexting.” For the uninitiated, “sexting” is when an individual texts nude photographs to another individual. Between consenting adults, “sexting” is nothing more than a bad idea; however, when an individual texts nude photos to a minor, a serious sex crime is committed, which may likely result in the individual being registered as a sex offender.

Prior to the passage of F.S. 847.0141, teens were texting nude photos and sending them to boyfriends and girlfriends, never considering that they were engaging in the transmission of child pornography. In some instances, teenagers were required to register as sex offenders because they possessed nude photos of their boyfriend or girlfriend. (As to the linked article, it should be noted that Mr. Alpert transmitted a nude photograph of his girlfriend to others, without his girlfriend’s consent. That act touches on the emerging phenomenon of “revenge porn”, which is another issue altogether, and one for which the law has yet to address)

In order to spare teens from this extreme penalty, which is so disproportional to the offense, the Florida legislature passed F.S. 847.0141. Under the law, the penalties for minors who engage in “sexting” are ratcheted up, depending upon the number of prior convictions. Thus, for a first violation, the violation is treated as a “non criminal offense,” punishable by only 8-hours of community service or a $60 fine. For a second violation, the violation is treated as a first degree misdemeanor. For a third violation, the violation is treated as a third degree felony.

That really doesn’t sound unreasonable, but there’s a problem. The statute did not create a process or mechanism through which the State might enforce the law. Apparently, the legislature presumed that prosecutors would proceed as they do in any other delinquency case, by filing a petition for delinquency. Unfortunately for the State, a petition for delinquency must allege a criminal or delinquent act, which, under F.S. 847.0141, a first offense of “sexting” is definitely not.

So, until the Florida legislature amends the law, there’s no procedural mechanism through which the State might prosecute a minor for “sexting.”

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This week’s disturbing news coming out of Ferguson, Missouri, is highlighting the troubling trend of militarization in American law enforcement agencies; a trend which is occurring right here in South Florida, as it is in most parts of the country. To be sure, the Ferguson Police Department is facing a tremendously difficult situation. The disgusting looting that broke out over the weekend, which resulted in at least one convenience store burning to the ground, calls into focus the need for police to reestablish law in the relatively small St. Louis suburb of Ferguson. The overwhelming presence of media is likely contributing to the difficulty. However, no law enforcement agency can credibly restore the rule of law unless it is willing to abide by the rule of law itself. What is more, it is paramount that law enforcement use a modicum of discretion if it has any hope of deescalating tensions. Officers operating in Ferguson have failed miserably in this regard. What they have shown–and what militarized law enforcement have shown time and again across the country–is a total lack of perspective and awareness.

The failure of law enforcement to act with calm and measure has also greatly diminished the credibility of officers in Ferguson. Surely, we should not jump to conclusions about the tragic shooting death of Michael Brown, an unarmed teenager, until we have a more complete reporting of the facts. What has been reported from eyewitnesses of the shooting suggests that the police fatally overreacted to a show of disrespect. If this is the case, the officer (or officers) responsible must be prosecuted for the homicide. On the other hand, law enforcement officials have already made the claim that Mr. Brown reached for an officer’s gun. While this claim seems unlikely, similar occurrences have happened elsewhere, and the claim shouldn’t be dismissed out of hand. We should wait until a full investigation is completed before drawing conclusions. However, the outrageous behavior of police officers in Ferguson (most of whom I believe are from St. Louis County) has seriously diminished the credibility of police in the area, and makes accepting law enforcement’s claims that much more difficult.

Take, for instance, this photo from the New York Times.

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The officers in this picture don’t look like law enforcement officials seeking to deescalate tensions; they look like soldiers ready to do combat with ISIS. For crying out loud, there is a sniper who is aiming his rifle from the open hatch of an armored personnel carrier. I have a suggestion for the authorities in Ferguson: if you’re trying to deescalate tensions and convince the American people that an officer reacted reasonably when using deadly force against an unarmed American teenager, don’t point guns at people who are peacefully exercising their constitutional rights.

Then, of course, we have the images of law enforcement firing tear gas at journalists from al-Jazeera:

This footage of militarized officers shooting pepper balls and tear gas at a modest crowd of peaceful protestors provides a great view of law enforcement’s overreaction.

And I’d be remiss not to mention the outrageous and unlawful arrests of Wesley Lowery of the Washington Post and Ryan Reilly of the Huffington Post. These journalists, who were exercising their constitutional right to report events on the ground, were arrested because they were too slow when complying with an unlawful order to evacuate a perfectly peaceful McDonald’s Restaurant. Mr. Lowery was slammed into a vending machine, accused of “resisting,” and placed into the back of a “Paddy Wagon” with a female police chaplain, who bizarrely sang religious hymns during his transport to the lock-up, all while a third man loudly suffered a panic attack.

During all of this insanity, the police have seemed blissfully self-unaware. When Mr. Lowery explained to authorities that his arrest would be front page national news in the morning, an officer responded: “Yeah, well, you’re going to be in my jail cell tonight,” almost as though the officer had no idea what the Washington Post was. It was almost as though he couldn’t comprehend that maybe the President of the United States would reference the arrest the next afternoon during a press conference, after reading about the incident in the Post. Strangely enough, while the President learned of the arrest while on vacation in Martha’s Vineyard, the Chief of police seemed clueless about the arrest when questioned by the media.

What’s more, the police curiously claim that their tactics of firing tear gas and pepper balls into the crowd was in response to violence. This is a curious claim, considering that journalists are filming everything that occurs on the ground. While the Chief claims that the crowd acted violently, any Joe Schmoe can go online, watch the footage, and see for himself that the crowd did nothing more than raise their hands in the air and shout “don’t shoot!”

Perhaps we shouldn’t be surprised by the cluelessness of local law enforcement. While they have funding for Long Range Acoustic Devices, armored personnel carriers, sniper rifles, and combat gear; they don’t apparently have the funding for dash board cameras. Apparently, they’re not accustomed to anyone filming police activity, which is why there was no footage of the shooting of Michael Brown. It must amaze the local police that with all of the media coverage, people can actually factcheck their claims.

Unfortunately, however, the authorities in Ferguson are not the only agencies that suffer from the unawareness that typically accompanies police militarization. Check out this SWAT video from the suburban Doraville Police Department, in Georgia. The police actually posted this video on their website!:

That’s right. A police department in Georgia posted a video with the song “Die MotherF—er Die” used as background music.

Or check out this video from the Department of Defense, toting the delivery of an MRAP (Mine Resistant Ambush Protected) vehicle to the Covina Police Department in California. For the uninitiated, the MRAP is a vehicle developed by the DOD to combat insurgents and terrorists in Iraq and Afghanistan. It remains a mystery why a suburban police department might need an MRAP. Perhaps they fear that the local soccer moms will start planting IED’s; or that the local Boy Scouts might engage in paramilitary activities? Who knows.

It’s not just the equipment, however; it’s also the tactics. In Evansville, Indiana, the local SWAT team made a forced entry into the home of a 68-year-old woman, who had done nothing wrong. The police were executing a search warrant on the woman’s home after they traced threatening, anonymous internet posts to her address. It turns out that the offending internet poster lived next door and was pirating the woman’s wireless signal. Despite the fact that they were only investigating a harassing web post made in an internet chat room, the police went full-combat on the 68-year-old woman’s home, blasting her windows, tossing flash-bangs, and pointing assault rifles at the woman and her 18-year-old daughter. Afterwards, while standing in the debris of the woman’s foyer, the SWAT members laughed and chatted about how awesome it was to storm the woman’s home. Amazingly, it never occurred to the police to investigate who actually lived in the house, prior to attacking it.

All of this illustrates a disturbing trend of the militarization of American police forces. Certainly, we want our officers to be safe from harm. Their job is inherently dangerous. But communities also need to have a trusting relationship with law enforcement. Militarizing police operations, in which officers are geared up for combat, creates a significant rift between the civilian population and the officers sworn to protect the civilian population.

For the sake of effective policing and creating a safer environment, we need to get back to this:

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And away from this:

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UPDATE:

Last week, the Ferguson Police Department released information that Michael Brown was involved in a “Strong Armed Robbery,” shortly before his death. While I find the timing of the release questionable, the information is relevant to the issue of Mr. Brown’s state of mind at the time he came into contact with law enforcement. Prior to this information, it seemed highly unlikely that an otherwise law-abiding teenager would grab for an officer’s gun, simply because the officer asked the teenager to step off of the street and onto a sidewalk. If, however, the teenager was fleeing the scene of a recently completed forcible felony, it is more plausible that the teenager may have acted rashly when confronted by an officer. This, of course, is not to say that Mr. Brown did act rashly and grab for the gun. My earlier statement remains: “We should wait until a full investigation is completed before drawing conclusions.”

This week, the State of Florida has amended its “Stand Your Ground Law,” allegedly “expanding” the law to protect “warning shots.” The apparent impetus for this legislation was the conviction and sentencing of Ms. Marissa Alexander, who was sentenced to a 20-year, “minimum-mandatory” prison term for supposedly shooting a “warning shot” at her husband. While a portion of the legislation provides welcome reform, the new legislation also includes some puzzling shortfalls. At its heart, the law is simply redundant, because “warning shots” were already protected under the law. What’s more, a misleading and one-sided version of Ms. Alexander’s case, which didn’t accurately reflect the evidence, apparently served as the motivating force behind the law.

To be clear, I fully support cloaking “warning shots” with the legal protections of Florida’s “Stand Your Ground” law. Obviously, if you can lawfully shoot someone who threatens your life, you should also be able to lawfully fire a warning shot at someone who threatens your life. It is terribly obtuse to claim that a kill shot is lawful, but a warning shot is unlawful.

In fact, so obvious is it that “warning shots” should be protected under the law, that Florida law *already protected* “warning shots” prior to the passage of this new legislation. This new legislation does not create a new right; it redundantly clarifies what was already the law. See Alexander v. State, 121 So.3d 1185 (1st DCA, 2013), and Garrido v. State, 97 So.3d 291 (4th DCA, 2012) (both recognizing the applicability of Florida’s “Stand Your Ground” law to allegations of Aggravated Assault).

This is not to say that the new legislation is nothing more than a meaningless appendix to the body of Florida’s “Stand Your Ground” law; it certainly does alter existing law in other ways, which I will discuss in further detail. It is to say, however, that the intended purpose of the law was to fix a problem that didn’t actually exist. The only reason anyone seems to have believed that Florida law didn’t protect “warning shots” was because of the misleading headlines reporting the Marissa Alexander case. It’s a case study of how manipulative reporting drives policy, and essentially alters reality.

THE CASE OF MARISSA ALEXANDER

The press has relentlessly driven a misleading narrative of Ms. Alexander’s conviction. CBS News’ headline at the time of Ms. Alexander’s conviction was: “Fla. Woman Marissa Alexander Gets 20 Years For ‘Warning Shot’: Did She Stand Her Ground?” The headline assumed as fact that Ms. Alexander had actually fired a “warning shot.” Likewise, the Huffington Post’s headline for a Mitch Stacy authored Associated Press article read: “Marissa Alexander Gets 20 Years For Firing Warning Shot.” Mr. Stacy opened his article with this sentence: “Marissa Alexander had never been arrested before she fired a bullet at a wall one day to scare off her husband when she felt he was threatening her (Emphasis added). This MSNBC article provides a narrative that simply reports Ms. Alexander’s version of events, as though that version is fact, without discussing any of the evidence that contradicts Ms. Alexander’s claims.

The evidence adduced at trial painted a much different picture than that presented by the media. It wasn’t that Florida law didn’t protect Ms. Alexander’s right to fire a “warning shot”; it was that no one believed that Ms. Alexander had actually fired a “warning shot”.

First, according to the testimony at trial, Ms. Alexander’s husband, Rico Gray, did not chase, batter, or assault Ms. Alexander on the day of the shooting incident. Rather, upon hearing that Mr. Gray was going to leave the house, Ms. Alexander walked through her kitchen, into her laundry room, into her garage, and accessed the glovebox of her vehicle. She pulled out a 9mm handgun. She then exited the garage, walked through the laundry room, and reentered her kitchen. At the time Ms. Alexander reentered the kitchen, Mr. Gray was still in the living room, with Ms. Alexander’s two young children at his side.

Obviously, if Mr. Gray was actually chasing Ms. Alexander and threatening Ms. Alexander’s life, she couldn’t have possibly made it (1) through the kitchen, (2) into the laundry room, (3) out into the garage, (4) into her vehicle, (5) out of her vehicle, (6) back out of the garage, (7) into the laundry room, and (8) back into the kitchen, all while Mr. Gray remained in the living room.

Second, if Ms. Alexander had truly feared for her life, she had the opportunity to drive out of her garage in her vehicle. When asked why she didn’t drive away, she claimed that the garage door opener malfunctioned. However, when law enforcement tested the opener, they found it working properly.

Third, Ms. Alexander did not fire a warning shot into the ceiling of the living room. Rather, she fired a bullet at the level of Mr. Gray’s head (5′ 8”), next to Mr. Gray’s head, which entered the kitchen wall. The bullet then exited through the kitchen wall and ricocheted up into the ceiling.

Fourth, Mr. Gray wasn’t the only individual who felt he was going to die that day. One of Ms. Alexander’s own children testified at trial that he: “thought I was fixing to die.”

Fifth, it wasn’t Ms. Alexander who called the police to report that Mr. Gray attacked her; it was Mr. Gray and the children who called the police to report Ms. Alexander’s gunplay. What’s more, Ms. Alexander did not cooperate with authorities; she barricaded herself into her home and had a stand-off with the SWAT team.

Sixth, months after the shooting–and while out on bond–Ms. Alexander violated a court order and began living with Mr. Gray. During their time together, Ms. Alexander pummeled Mr. Gray’s face, leaving him with a visible knot under his eye. Ms. Alexander was arrested and convicted of domestic battery. Despite reports to the contrary, Mr. Gray has never been convicted of battering Ms. Alexander, nor has Ms. Alexander ever received a restraining order against Mr. Gray. (To be clear, Mr. Gray was accused of domestic battery against Ms. Alexander on one occasion, but the charges were dropped. Likewise, there was a court order forbidding both Mr. Gray and Ms. Alexander from having violent contact with one another, but that order was not a “restraining order,” and it applied equally to Ms. Alexander)

Nevertheless, despite the overwhelming import of the evidence, some in the media have continued to press a narrative that omits the majority of the facts. As a result, the Florida Legislature has now passed a new law, based largely upon this fictional version of events. The weight of the evidence surely suggests that Ms. Alexander purposefully and unjustifiably shot a gun at her husband, endangering the lives of both her husband and her young children.

THE GOOD

One positive aspect of the new legislation is that it provides judges with more flexibility during sentencing. The law specifically states that despite Florida’s “minimum mandatory” sentencing regime, judges may downward depart from the minimum 20-year sentence for Aggravated Assault, if the court determines that: (1) the defendant had a good faith belief that the Aggravated Assault was justifiable; (2) the Aggravated Assault was not committed in the course of committing another criminal offense; and (3) the totality of the circumstances involved in the offense do not justify the imposition of the “minimum-mandatory” sentence.

Florida’s “minimum-mandatory” sentencing regime is premised upon the notion that in some cases, judges should not enjoy flexibility in sentencing. The fear is that some judges will issue unjustifiably light sentences for serious crimes. However, he regime does contemplate prosecutorial discretion. Just because the State can seek a “minimum-mandatory” sentence does not mean that the State must, or should seek a “minimum-mandatory” sentence. Rightfully or wrongfully, the “minimum-mandatory” sentencing regime seemingly trusts the discretion of prosecutors over the discretion of judges.

This new legislation apparently swings the pendulum in the other direction, allowing judges to second-guess the discretion of prosecutors, and depart from the “minimum-mandatory” sentence. However, before the court can downward depart, the court must first find that the defendant acted with a “good faith” belief that the Aggravated Assault was justified.

This requirement is more nuanced than it first seems. Under Chapter 776 of Florida Statutes, a defendant is not entitled to immunity based only upon his/her subjective belief that the use of force was justifiable. Rather, the court is to test the defendant’s belief that the use of force was justifiable against the objective, “reasonable man” standard. Under this approach, the court must ask whether a reasonable and prudent person standing in the defendant’s shoes, knowing what the defendant knew at the time, would have used the same force as did the defendant (See Mobley v. State, 132 So.3d 1160 (3rd DCA, 2014). If a defendant subjectively believed the use of force was justifiable, but was not objectively reasonable in that belief, the defendant is not entitled to immunity.

Under Florida’s new statute, someone who acts unreasonably–but nevertheless acts in good faith–can avoid the “minimum-mandatory” 20-year prison sentence, even if they are not entitled to immunity. For instance, imagine that a skittish woman unknowingly drops her keys from her purse while walking to her car at night. Imagine that a young, tattooed, mohawk-wearing man picks up the keys and runs to the woman, yelling: “Hey lady, stop! I have something for you!” The woman, seeing the frightening looking man running after her in the night, and not understanding the man’s purpose, hastily pulls out her concealed gun and screams “don’t come any closer!”, as she fires the gun in the air.

Arguably, the hypothetical woman’s subjective belief that the man posed a threat was not reasonable. However, it nevertheless was a good faith belief. Prior to Florida’s new legislation, the hypothetical woman would likely have been sentenced to the “minimum-mandatory” term, if she was convicted of Aggravated Assault by discharging her firearm. Today, a court could take into consideration the totality of the circumstances, and impose a more just sentence.

Of course, none of this is to suggest that Ms. Alexander would necessarily receive the benefit of this reform. As already mentioned, the facts of her case weigh against the notion that she acted in “good faith.” Sure, a court might downward depart; but nobody should bank on it.

THE BAD

As I’ve written in the past, Florida’s “Stand Your Ground” law was certainly in need of reform. Unfortunately, it still is.

One problem that I wrote about was the law’s poor drafting. For instance, under the prior version of the law, defendants engaged in “unlawful activity” at the time of using force to protect themselves outside of their home (pursuant to F.S. 776.012) or to protect others (pursuant to F.S. 776.031) were still entitled to immunity, despite their “unlawful activity;” but defendants engaged in “unlawful activity” while defending against a home invasion (pursuant to F.S. 776.013) were not entitled to immunity. This discrepancy was likely the unintended result of poor drafting.

It appears as though the legislature tried to fix this shortfall. Unfortunately, they might have failed. I say “might,” because it will of course come down to how the courts interpret the statute.

Curiously, the legislature didn’t simply state across the board that defendants engaged in “unlawful activity” are precluded from immunity, no matter whether they claim to have acted under F.S. 776.012, 776.013, or 776.031. Instead, the legislature added language to F.S. 776.012 , clarifying that defendants engaged in “criminal activity” are not entitled to immunity under 776.012. Likewise, the legislature added similar language to F.S. 776.031. At first blush, that should have done the trick to establish that defendants engaged in “criminal activity” are not entitled to immunity, no matter what section they attempt to rely upon.

However, for some reason, the legislature completely removed the issue of “unlawful activity” from F.S. 776.013(3); the one and only section that limited immunity prior to revision. Instead, the legislature altered the section to apply only when an individual is “attacked in his or her dwelling, residence, or vehicle,” and only if the individual “uses or threatens to use force in accordance with s. 776.012(1) OR 776.012(2) OR s. 776.031(1) OR s. 776.031(2)” (emphasis added). This language is confusing, because neither 776.012(1) nor 776.031(1) make mention of “criminal activity.” In other words, it is plausible to read the statute as providing immunity to an an individual under F.S. 776.013(3), even if the individual was involved in a “criminal or unlawful activity” at the time of using force.

Put another way, the legislature may have flipped the law’s prior inconsistency on its head. Whereas before the law’s revision, defendants engaging in “unlawful activity” could not claim immunity under 776.013(3), but could claim immunity under 776.012 or 776.031; now those same defendants cannot claim immunity under 776.012 or 776.031, but can under 776.013(3).

It all sounds rather confusing, doesn’t it? It does. That confusion is the hallmark of bad drafting.

THE UGLY

In addition to poor drafting, the new legislation also suffers from an ugly case of redundancy. The new legislation reads, in part: “The legislature intends to:…(c) Ensure that those who threaten to use force in a manner and under circumstances that would have been justifiable under chapter 776, Florida Statutes, are not sentenced to a mandatory minimum term of imprisonment pursuant to s. 775.087, Florida Statutes.”

This section is puzzling. Those who “threaten to use force in a manner and under circumstances that would have been justifiable under chapter 776” are already immune from prosecution, because that’s what chapter 776 is all about. In other words, if an individual is found to act in compliance with F.S. 776, it is legally impossible for that individual to be sentenced to anything–let alone a minimum mandatory prison term–because F.S. 776 already requires the court to dismiss the case.

It appears as though what the statute is really saying is: “The legislature intends that the courts follow the law.” Great! Why didn’t the legislature think of that earlier!? Why not also pass a statute that says: “The legislature intends to…(e) Ensure that those who are found not guilty of committing a crime are not sentenced to prison for committing the crime for which they were found not guilty?”

The reason why a legislature should not enact this type of statute is that it suggests that absent the statute, the courts actually could ignore the law. How else to read this new section, other than to conclude that it was previously lawful for courts to sentence defendants to minimum-mandatory prison sentences for using justifiable , lawful force?

Which brings us back to Ms. Alexander. Some people with a political axe to grind want the public to believe that Ms. Alexander was unjustly imprisoned for acting in self defense. With a compliant press pushing the agenda, the truth becomes malleable. Repetition becomes authentication. The facts become less relevant than how the facts are reported. As a result, we get a law that “expands” “Stand Your Ground” without actually expanding “Stand Your Ground,” in order to fix a problem that wasn’t really a problem in the first place.

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Recently, the United States Supreme Court handed down its opinion in Navarette v. California, in which the Court upheld the validity of a traffic stop that was based upon a largely uncorroborated anonymous tip that the defendant’s vehicle ran another vehicle off the road. After stopping the vehicle, California Highway Patrol officers discovered 30 pounds of marijuana in the vehicle’s truck bed. While the defendant was never charged with D.U.I., the logic of the Court’s opinion will undoubtedly affect D.U.I. cases throughout South Florida, because the opinion explicitly holds that an anonymous allegation of reckless driving provides law enforcement with reasonable suspicion to believe that the crime of D.U.I. is being committed.

Unfortunately, the Court really biffed this case. It was sure to be an interesting case, given that Justice Thomas wrote for the majority, while his jurisprudential BFF, Justice Scalia, wrote for the dissent. The majority opinion is not only naive in its interpretation of the facts, but it is also cynically opportunistic in its analysis of those facts. Moreover, the opinion’s logic is brutally strained. The effect of the Court’s opinion is that the police may conduct traffic stops (so-called Terry Stops, named after the seminal case Terry v. Ohio) based largely upon uncorroborated anonymous tips; tips, which may very well be made in bad faith. While the Court does not overtly discard the need for corroboration of anonymous tips, the force of the Court’s logic surely sweeps the need for corroboration into the waste bin. As Justice Scalia colorfully explains in his dissent:

“The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its locations, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkeness.”

Before delving into the Court’s opinion, let’s first discuss the prior status of the law, as it related to anonymous tips justifying an investigatory stop.

ALABAMA v. WHITE

The United States Supreme Court first addressed the constitutionality of an investigatory stop premised upon an anonymous tip in Alabama v. White. In White, an anonymous tipster called the police and stated that at a specific time, a woman would exit a specific apartment, enter a specific vehicle, and drive to a specific location. The tipster alleged that the woman would carry an ounce of cocaine in a brown attache bag. After officers observed a woman exit the apartment unit at the given time and drive the suspected vehicle in the direction of the given destination, the officers stopped the woman and consensually searched her car. They ultimately found the woman in possession of marijuana and a small amount of cocaine.

Although the officers did not personally observe anything that justified reasonable suspicion of wrongdoing, the Court upheld the traffic stop, holding that the officer’s surveillance of the woman corroborated the details of the anonymous tip, cloaking the tip in reliability and justifying a reasonable suspicion of wrongdoing. Key to the Court’s finding was that the anonymous tipster provided specific details of the woman’s *future conduct*. The Court stated: “What was important was the caller’s ability to predict respondent’s *future behavior*, because it demonstrated inside information–a special familiarity with respondent’s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get into the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities.” Thus, the cornerstone of the Court’s analysis was that the anonymous tip, standing alone, was insufficient to justify reasonable suspicion. Reasonable suspicion required corroboration of the anonymous tip’s detailed information of the suspect’s future conduct.

FLORIDA v. J.L.

The United States Supreme Court revisited and affirmed its approach to anonymous tips and reasonable suspicion in Florida v. J.L. In J.L., Miami police received an anonymous tip that a black juvenile, wearing a plaid shirt at a specific bus stop, was unlawfully carrying a concealed firearm. Without making any corroborative observations, the police frisked the suspect and found a handgun in the suspect’s pocket. The Court held the stop-and-frisk of the suspect unconstitutional.

Key to the Court’s analysis was the lack of any corroborating information of the anonymous tip. While the State of Florida argued that the presence of a black juvenile wearing a plaid shirt at a specific bus stop provided the requisite corroboration, the Court disagreed. The fact that a black juvenile in a plaid shirt was standing at a bus stop was generalized information, available to anyone in eyesight of the area. The information did not establish any “special familiarity with the [suspect’s] affairs.” Put plainly, the tip was an empty, uncorroborated allegation.

KALNAS v. STATE

The United States Supreme Court’s decisions in White and J.L. have governed how Florida courts approach anonymous tips and reasonable suspicion. The case of Kalnas v. State, 826 So.2d 860, (4th DCA, 2006), is a perfect example of how the 4th D.C.A. has applied the Supreme Court’s precedent in Broward County. In Kalnas, Fort Lauderdale police received an anonymous tip that a white male, wearing blue jeans, a blue visor, and a white t-shirt, was trying to open doorknobs in the area of 1109 Northeast 17th Terrace. Shortly after receiving the tip, an officer observed the defendant walking in the described area, wearing a white t-shirt, a blue visor, and blue jeans. Without observing any suspicious behavior, the officer conducted an investigatory stop of the defendant.

The 4th D.C.A. found the stop invalid, holding that the officer failed to observe any details corroborating the anonymous tipster’s allegations of attempted-burglary or trespass. The Court stated: “[W]hen the police officer arrived on the scene, he was only able to verify the innocent details of identification. The officer was unable to confirm or verify any of the allegations concerning the commission of a criminal offense. We find that this situation fits more within those types of cases which require independent police investigation in order to establish the tip’s reliability.” Without corroboration of the anonymous tipster’s allegations, the tip failed to show any indicia of reliability.

NAVERETTE v. CALIFRONIA

Finally, we arrive at the Court’s recent decision in Navarette. The facts are rather straightforward. An anonymous tipster dialed 911, alleging that a specific Ford F-150 pickup truck had run her off the road. The caller was able to identify the truck’s license plate, direction of travel, and general location. Shortly thereafter, officers from the California Highway Patrol observed the truck heading in the given direction. After following the truck for five minutes (FIVE MINUTES!!!!), the officers observed no indication that the truck was driving erratically, recklessly, or clumsily. Indeed, they didn’t observe a single traffic infraction. Nevertheless, the officers pulled over the pickup truck based upon the anonymous tip. Lo and behold, the officers discovered thirty pounds (THIRTY POUNDS!!!!) of marijuana in the truck bed. What a coincidence!

Writing for the majority, Justice Thomas found the anonymous tip reliable because: (1) the tipster’s detailed description of the truck indicated that the tipster was claiming eyewitness knowledge of the truck’s alleged reckless driving; (2) the tipster’s call was made “contemporaneous” to the timing of the alleged reckless driving; and (3) the tipster utilized the 911 system. Furthermore, Justice Thomas held that the tipster’s allegation of a single incident of reckless driving justified a suspicion that “criminal activity was afoot,” because a single incident of reckless driving creates a reasonable suspicion of on-going drunk driving.

Let’s break down the problems with the Court’s holding.

STRAINED LOGIC

The Court found “significant support [for] the tip’s reliability” based upon the tip’s description of a silver Ford F-150 pickup truck. Apparently, the Court’s logic is that if someone makes an anonymous tip regarding a verifiable vehicle, the tip is likely true because the vehicle is verifiable. In other words, if you’re driving in traffic on I-595 behind an obnoxious vehicle with bumper stickers that read: “9/11 Was an Inside Job!!!”, and you anonymously and falsely use the 911 system to allege that the driver is abusing a child in the backseat, your false allegation will be deemed credible, simply because the police find a vehicle on I-595 with a “9/11 Was an Inside Job!!!” bumper sticker.

By that logic, the Court in J.L. should have found the anonymous tip reliable, simply because there actually was a black juvenile in a plaid shirt standing at the bus stop. While the Court seems to believe there’s a distinction between the tip in J.L. and the tip in Navarette, it does a poor job of explaining it. The Court writes that in J.L., “the tip provided no basis for concluding that the tipster had actually seen the gun;” but the Court fails to explain how the Naverette tip was any better. Like the tip in J.L., the tip in Navarette simply provided a description of the alleged wrongdoer. It’s a mystery why the Court doubts that the J.L. tipster actually saw the gun, but believes that the Naverette tipster did actually observe reckless driving.

Next, the Court makes the similar claim that because the truck was where it was supposed to be–heading southbound on Highway 1, near mile marker 69–the tip appeared to have been made contemporaneously with the alleged incident of reckless driving. The Court equates this alleged contemporaneous timing with Federal Rule of Evidence 803(1) and (2), which provides an “excited utterance” and “present sense impression” exception to the hearsay rule. The Court figures that if “excited utterances” are cloaked with a notion of reliability for purposes of hearsay, why shouldn’t an “excited utterance” enjoy reliability for purposes of establishing reasonable suspicion?

Of course, the fault of the Court’s logic on this point is its premise: there’s no reason to believe the 911 call, in this case, would qualify as an “excited utterance” or a “present sense impression” under Fed. Rule Evid. 803(1) and (2). The “present sense impression” exception applies to “A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” The critical inquiry when determining if a statement is a “present sense impression” is not the amount of time that has passed since the event, but whether the declarant is still in a state of excitement resulting from the event. See US v. Stepherson, No. 09-15412, 383 Fed. Appx. 853 (11th Cir. Jun. 17, 2010). As the declarant in this case was anonymous, there seems to be no record evidence suggesting whether the declarant was actually in a state of excitement when making the call.

Under the “excited utterance” exception, statements are admissible if they “relat[e] to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” It is doubtful the caller was “under the stress of the excitement” at the time she made her 911 call, seeing as she had the wherewithal to reflect and record the suspect’s license plate.

Moreover, both the “excited utterance” and the “present sense impression” exceptions apply when the declarant is describing an exciting event that actually happened. As a prerequisite, the introducing party must establish the exciting event actually occurred. In this case, there is no evidence that an exciting event happened at all, save for the anonymous call itself. Without a live witness to testify under oath that the exciting event happened, the Court should not automatically assume the veracity of the claim.

Next, the Court argues that the anonymous tip should be deemed reliable, because the tip was made through the 911 system. The Court notes that according to FCC regulations, the phone numbers of those people using the 911 system are recorded, so that law enforcement may track down callers. Thus, the Court reasons, it is unlikely that anyone would want to use the 911 system to make a false allegation, lest they find themselves prosecuted for misusing the system, after police track them down.

This is a difficult argument to accept. First, it presupposes that the average individual is aware of FCC regulations, which is highly unlikely. Second, it ignores the reality that people make false allegations on the 911 system all the time! Third, it conveniently ignores the central fact of the case: no one knows who actually called 911 against the defendant. If the 911 system is so reliable, in which police can track down anyone making a call, why couldn’t they do it here? Obviously, an individual can utilized the 911 system anonymously, without fear of prosecution. Indeed, it happened in this case. To the Court’s credit, it is careful to state that it is not finding 911 calls per se reliable; however, it certainly seems to give significant weight to the supposed reliability of such calls.

Lastly, having found the anonymous tip reliable, the Court leaps to the conclusion that the anonymous allegation of a single incident of reckless driving provided reasonable suspicion of D.U.I. Again, this is a difficult argument to accept. Anyone who regularly commutes in South Florida, particularly on I-95, is well aware that reckless driving is a hallmark of rush hour traffic. Sometimes, people negligently fail to check their side or rear view mirrors when changing lanes. Other times, people mindlessly tend to their cell phones and seemingly forget they are behind the wheel of a car. Surely, on some occasions, alcohol or drugs play a part in the poor driving, but those occasions are undoubtedly the exception; not the rule. Does the Court really believe it is reasonable to suspect that every single instance of an improper lane change, which results in a car running off the road, is an instance of ongoing D.U.I.? If so, the police should probably start pulling over 1/3 of the drivers in Broward County at any given time.

NAIVE INTERPRETATION OF THE FACTS

Underlying the strained logic of the Court’s opinion is the Court’s naive interpretation of what actually happened. The Court is more than willing to accept the alleged fact that the silver Ford F-150 actually ran another car off the road. Is that a fair assumption? I don’t think so.
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Think about it. Who calls 911 to report a reckless driver, but refuses to identify themselves to the 911 operator, and doesn’t follow behind the alleged reckless driver to help the police locate it? I certainly suppose such a scenario is possible, but in this case, there are reasons to doubt the veracity of the anonymous tipster. First, the tipster alleges that she was run off the road by a reckless driver; but she also helpfully happens to know the precise letters and numbers of the driver’s license plate. Jotting down the license plate of a car that just ran you off the road is quite the talent. Maybe the anonymous tipster was Wonder Woman, and she used her super sight to read the plate of the zooming truck as she was left in the dust by the side of the road!

Not only did the tipster conveniently know the truck’s license plate, despite the tipster’s claim of being “run off the road;” and not only did the tipster strangely seek anonymity; but the tipster just so happened to report on a vehicle that oh-so-coincidentally was carrying 30 pounds of illicit drugs! Gosh, what a coincidence! It couldn’t possibly have been a rival drug trafficker, taking care of the competition…could it? Nah!

CYNICALLY OPPORTUNISTIC ANALYSIS

Not only is the Court naive in its readiness to accept the reliability of the tip, but the Court is also cynically opportunistic in its analysis of those facts. The Court claims that a single instance of reckless driving provides a reasonable suspicion of D.U.I., because “[t]hat conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness.” What are the so-called “paradigmatic manifestations” of drunk driving? According to the Court, they include: “lane positioning problems” “decreased vigilance” and “impaired judgment.” Fair enough, I can’t argue that that those factors are indeed paradigmatic manifestations of drunk driving.

However, the driver of the vehicle wasn’t drunk. And why did the police have every reason to believe the driver wasn’t drunk? *Because the police followed the truck for 5 minutes*, during which time the truck did not once exhibit “lane positioning problems,” “decreased vigilance,” or “impaired judgment.”

The Court’s response to this inconvenient fact is cynically opportunistic. “It is hardly surprising,” the Court states, “that the appearance of a marked police car would inspire more careful driving for a time.” Oh reeeeeaaaaalllllyyyy?!?

Let me get this straight. Before the police observed the truck, the driver’s alleged alcohol consumption overpowered the driver’s ability to position his car, remain vigilant, and use good judgment; but when the police arrived, the alcohol’s affects suddenly vanished, and the driver magically regained all of his senses! Is that the way alcohol works? Gosh, its amazing that anyone drives drunkenly in the presence of cops at all! If the mere presence of a cop car can simply erase the well documented effects of alcohol on a drinker’s brain chemistry, heavy-drinkers should just drive home with a cop following closely behind! They’ll drive perfectly safe!

Next the Court writes: “Extended observation of an allegedly drunk driver might eventually dispel a reasonable suspicion of intoxication, but the 5-minute period in this case *hardly sufficed in that regard.*” WHAT!? Five minutes of observing perfect driving hardly suffices to dispel a reasonable suspicion of drunk driving? It doesn’t even come close? The driver was driving on Highway 1 in California, where the speed limit varies between 25mph to 65mph. Assuming that the driver was driving an average speed of 45mph for 5 minutes, the police followed the driver for 3.75 miles of travel. That means that the Court believes that it is reasonable to suspect that a drunk driver can drive for miles without violating a single traffic law. It means that the Court believes that a drunk driver can drive for miles without exhibiting “lane positioning problems”, “decreased vigilance,” or “impaired judgment;” the very factors that the Court believes are “paradigmatic manifestations” of drunk driving. It’s as though the Court believe that a drunk can simply flip a switch, and cease being drunk at the sight of a cop.

What this really means is that the Court no longer believes that police need to meaningfully apply a “totality of the circumstances” approach to drunk driving. In this case, the “totality of the circumstances” was that the driver of the vehicle exhibited every indication he was sober, although an anonymous tipster made an uncorroborated allegation of prior reckless driving, which the police didn’t see. If the “totality” of those circumstances weighs in favor of reasonably believing an anonymous tipster’s uncorroborated tip over believing the officer’s own “lying eyes”, then there is no meaning to the words “the totality of the circumstances.”

Perhaps the Court could have expanded the Terry doctrine to apply not only to ongoing “criminal activity afoot,” but also to apply to prior completed non-felony offenses (something that the Court left unanswered in United States v. Hensley). The Court would have had difficulty arguing the tip established that a completed crime occurred, given the paucity of information provided in the 911 call. At least in Florida, there is a marked distinction between careless driving and reckless driving. The former isn’t a crime. Regardless, the Court didn’t go that route. Instead, the Court significantly diluted the basis for which an officer may reasonably suspect an individual of D.U.I.

HOW WILL THIS AFFECT FLORIDA CASES

It occurred to me, of course, that a State court may theoretically provide its citizens with greater protection than that afforded by the 4th Amendment. Certainly, a State court may not interpret the 4th Amendment in such a way as to provide lesser protections than interpreted by the United States Supreme Court; but a State may theoretically interpret its own State Constitution as providing greater protection than the 4th Amendment.

Unfortunately, such is not the case in the State of Florida. As the Florida Supreme Court held in Soca v. State, “With the conformity clause amendment, we are bound to follow the interpretations of the United States Supreme Court with respect to the Fourth Amendment and provide to Florida citizens no greater protection than those interpretations.” In other words, if an anonymous tipster uses the 911 system to allege a single instance of reckless driving, Florida police may now pull over the alleged vehicle without observing any corroborating reckless driving. Indeed, a Florida cop can observe 5 minutes’ worth of safe, lawful driving, and “hardly” come close to dispelling a “reasonable suspicion” of D.U.I. Such was not the case a couple of weeks ago.

Obviously, we all want our roads safer from the dangers of drunk driving. However, our society long ago made a commitment to protect citizens from unreasonable searches and seizures, despite the fact that unreasonable searches and seizures would undoubtedly make our society safer from danger. And while it is true that an intelligent and competent defense attorney will distinguish future Florida cases from the holding in Navarette, it is inescapable that the United States Supreme Court has yet again diluted the strength of the Fourth Amendment’s protection.

This past week saw another addition to the never-ending story of school administrators making incredibly stupid disciplinary decisions. Awhile back, a Pennsylvania educator responded to an incident of bullying by contacting a law enforcement officer to assist in investigating the incident. That alone wasn’t necessarily objectionable. Surely, some cases of bullying are so extreme as to justify the involvement of the police. However, did the school contact law enforcement to investigate the bullies? No, of course not! They wanted to investigate the victim! The victim’s alleged crime? The audacious decision to video-record his own torment, without the bullies’ consent. Those poor bullies! Apparently, the school believes that bullies should enjoy privacy while tormenting special-needs students! What’s worse, the victim was actually convicted of “disorderly conduct!” The bullies? Not charged at all.

In fairness to the school’s administration, the asinine foolishness of investigating, charging, and ultimately convicting the special-needs victim was not a solo performance; the outrage was the result of a team effort between law enforcement, prosecutors, and a Pennsylvania judge. Thankfully, after taking some time to review the case, the District Attorney’s Office decided to reconsider its position, and has moved to dismiss the charges and erase the teen’s conviction.

How could this have ever happened in the first place, and is it possible that something like this could happen to a student in Florida? Unfortunately, the victim in this case was not only the victim of bullying, but he was also the victim of poor leadership in his school; poor judgement from the police and prosecutors; and poor legal reasoning from the judge. While this shouldn’t happen to anyone, the same mistakes that were made in Pennsylvania could occur in Florida as well.

Like Pennsylvania, the State of Florida is a “two-party consent” state, which means that in most circumstances, it is unlawful for an individual to surreptitiously record another person’s “oral communications.” However, both Florida and Pennsylvania law defines “oral communication” as a communication that is reasonably intended to remain private. Thus, when determining whether a defendant has impermissibly intercepted an “oral communication,” the court must first determine whether the speaker of the intercepted communication had a subjective expectation of privacy when making the communication; and second, the court must determine whether society recognizes the speaker’s expectation as reasonable.

In the case of the Pennsylvania bullies, it is undisputed that the intercepted communications were openly–and loudly–made in a classroom, while the bullies were actively engaged in taunting a special-needs student. It is puzzling, indeed, to understand how anyone–let alone a detective, a prosecutor, and a judge–might arrive at the mind-numbingly dimwitted conclusion that these bullies had a subjective expectation of privacy when making a disruptive commotion in a classroom full of students. However, even if one were to accept that bizarre idea, it is downright mystifying that anyone might think that society was willing to recognize the bullies’ expectations as reasonable.

Florida courts have made it clear that not every subjective expectation of privacy is one that society is willing to recognize as reasonable. For instance, in Jatar v. Lamaletto, the 3rd DCA ruled that an oral communication made in private, with the intent to threaten extortion, was not a communication cloaked with a reasonable expectation of privacy, because the speaker intended to “do harm” through the communication. Likewise, communications that harass and bully are intended to “do harm,” and thus are not deserving of the protections of Florida law. It’s really not a difficult concept to grasp.

Of course, the victim in the Pennsylvania bullying case wasn’t actually charged with wiretapping. Presumably, law enforcement recognized the absurdity of charging a victim of bullying with a felony, and opted instead to charge the teen with a misdemeanor. Why anyone felt it necessary to prosecute the victim with anything remains a mystery.

According to reports of the teen’s delinquency hearing, the prosecution’s theory of guilt was deliciously inane. It went something like this: surreptitiously recording an incident of bullying “created a physically offensive condition,” because the surreptitious recording was a “crime,” and committing a crime is physically offensive. That’s right; the bullying didn’t create a “physically offensive condition,” despite the bullies’ admission that they were trying to scare the victim; but the victim’s thumbing of a “record” button on an I-Pad, without first obtaining written waivers, did create a physically offensive condition. Doesn’t make sense, does it? Well, it apparently made sense to Judge Maureen McGraw-Desmet, who reached the unbelievable conclusion that the victim had committed a crime.

Truly, it doesn’t appear as though the court engaged in any critical legal analysis at all. While it is preposterous to suggest that the victim committed the crime of wiretapping, it is doubly preposterous to suggest that he committed the crime “disorderly conduct.” The treatment of the victim in this case was offensive to intelligence, fairness, and justice. It’s one thing to suffer bullying at the hands of classmates; it’s another thing to suffer bullying at the hands of the system. The judge, the school, and law enforcement owes this kid an apology.

On November 17, 2013, twenty-year-old Kayla Mendoza (now aged 21) allegedly drove a car down the wrong way on Broward County’s Sawgrass Expressway, causing a fatal collision that took the lives of two young women: Kaitlyn Ferrante and Marisa Catronio, both 21 years of age. According to reports, Ms. Mendoza’s blood-alcohol level was nearly twice the legally permissible limit for a driver: 0.15 grams of alcohol per 100 milliliters of blood.

After months of investigation, the Florida Highway Patrol has finally arrested Ms. Mendoza, recommending charges of D.U.I. Manslaughter, Vehicular Homicide, and Driving Without a License Resulting in Death. Due to the principle of double jeopardy, Ms. Mendoza may only be sentenced once per homicide, which means that she faces a maximum penalty of 30 years behind bars.

D.U.I. Manslaughter is a particularly tragic offense, not least because of the terrible loss of innocent life that results from drunk driving. However, the culpability of an individual accused of D.U.I. Manslaughter is typically different from that of an individual accused of murder, because in the case of D.U.I. Manslaughter, the killing is not intentional (even if it is reasonably foreseeable). In some cases, prosecutors and judges are willing to show a level of mercy toward D.U.I. Manslaughter defendants, particularly when the accused individual is young (although, it should be noted, the crime of D.U.I. Manslaughter carries a minimum mandatory 4 year prison sentence). Making “bad choices” early in life–even tragically “bad choices”–is a far cry from making “evil choices,” and the criminal justice system is not unsympathetic to that reality.

However, Ms. Mendoza presents an example of an individual who is particularly unlikely to endear sympathy. Not only did she drive the wrong way on an expressway at an “extremely fast” speed, but hours before the crash, she allegedly tweeted the message: “2 drunk 2 care.” Not surprisingly, Judge John “Jay” Hurley stated his concern that Ms. Mendoza “knew she shouldn’t be driving,” and ordered a bond of $600,000, plus house arrest.

This evidence highlights the new prominence that social-media plays in the investigation of criminal acts. When individuals feel the impulse to publicly share their every thought and daily activity with the entire world, investigators have a powerful tool to reconstruct events. According to the New York Daily News, Ms. Mendoza referred to herself as the “Pothead Princess” on her twitter feed, although Ms. Mendoza’s family alleges that someone hacked into Ms. Mendoza’s account, prior to the accident.

Regardless of the infamous tweet, the legal case against Ms. Mendoza is straightforward. The State must prove the following elements, beyond and to the exclusion of every reasonable doubt:

1. Ms. Mendoza drove or was in actual physical control of a vehicle.
2. While driving or in actual physical control of the vehicle, Ms. Mendoza had a blood
alcohol level of .08 or more grams of alcohol per 100 milliliters of blood.
3. As a result of operating the vehicle, Ms. Mendoza caused or contributed to the cause
of the death of Ms. Ferrante and/or Ms. Catronio.

With the facts as we know them, it is rather easy to prove these elements. According to a probable cause affidavit, the first officer to arrive at the scene of the accident found Ms. Mendoza unconscious behind the wheel of a vehicle. The officer found no indication that anyone else was in the vehicle. Multiple witnesses observed Ms. Mendoza’s vehicle driving at a high rate of speed. Undoubtedly, accident reconstruction models will show that Ms. Mendoza’s vehicle was traveling at a high rate of speed at the moment it made contact with Ms. Ferrante’s and Catronio’s vehicle. This evidence firmly establishes the first element of the offense. Not only was Ms. Mendoza in actual physical control of the vehicle, but she was driving the vehicle.

According to reports, Ms. Mendoza’s blood alcohol level registered at 0.15 grams of alcohol per 100 milliliters of blood. That evidence firmly establishes the second element of the offense.

Lastly, multiple witnesses testified that Ms. Mendoza’s vehicle was driving the wrong way on the Sawgrass Expressway when it collided into the victims’ vehicle. Presumably, a Medical Examiner will testify that the collision caused the death of both victims. This evidence will clearly establish the third element of the offense.

Through the discovery process, Ms. Mendoza’s legal team will certainly explore any possible defenses. There’s no reasonable way to dispute that Ms. Mendoza was driving on the wrong side of the road and plowed into the victims. Indeed, from the facts as we know them, it appears that Ms. Mendoza’s best course of action is to work for a negotiated resolution, or to prepare for a thorough evidentiary sentencing hearing after a direct plea to the Court. However, as unlikely as it might appear, there may be issues that the defense may exploit, if the defense feels compelled to take the case to trial.

First, they will want to look at the collection and testing of Ms. Mendoza’s blood, as it is the best evidence showing that Ms. Mendoza was driving while impaired. If the blood was collected improperly, or if the blood was not properly stored, or if investigators failed to maintain a chain of custody over the blood, it is possible that the court might suppress the admissibility of that evidence.

Second, they will want to inspect what is left of Ms. Mendoza’s vehicle. While witness testimony will certainly establish that the vehicle was operable at some point while Ms. Mendoza was driving, perhaps there is some mechanical explanation as to why the vehicle was traveling at such a high rate of speed. Even if it is highly unlikely and improbable, there might be a mechanical explanation as to why her vehicle entered onto the wrong way of the Sawgrass Expressway. If, at some point before the accident, the vehicle became inoperable, Ms. Mendoza might have a defense, if she can also create a doubt in a jury’s mind that she wasn’t impaired when she was driving. That’s certainly a tough case to make.

Third, they will want to explore the possibility that someone else had access to her Twitter account, to explain the damning tweet: “2 drunk 2 care.” Indeed, Ms. Mendoza’s family is already making that argument. Nevertheless, the prosecution will likely have no trouble admitting the tweet into evidence, if they can call witnesses to testify that the account in question was an account used by Ms. Mendoza. In order to authenticate the tweet for purposes of admissibility, the State need only present prima facie evidence that the tweet is a statement from Ms. Mendoza. The State may meet this low burden through circumstantial evidence. Regardless, even if the tweet is admissible, the defense will want to investigate any means by which they may call into question the tweet’s authenticity.

Fourth, as distasteful as it sounds, the defense will want to investigate what the victim driver was doing prior to the crash, in order to determine whether the victim was driving while impaired. From what is publicly known about the case, there is absolutely no reason to believe that the victim was impaired. The Medical Examiner’s report should confirm that the victim did not have anything in her system at the time of the crash. In the event that she did have some alcohol in her system, the defense might theoretically make the case that Ms. Mendoza did not contribute to, nor cause, the death of the victims. This is an extraordinarily unlikely defense, because the evidence will establish that Ms. Mendoza was driving on the wrong side of the road. Nevertheless, it is worthwhile to explore every possible avenue of defense, regardless of the ultimate strategic decision of how to defend the case.

Ultimately, the families impacted by this horrific tragedy will have to live through the difficult process of criminal litigation. Hopefully, those in pain will find some solace in the knowledge that the community is reacting to the tragedy and that the case is being faithfully prosecuted.

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Apparently, Justin Bieber has spent the morning in the custody of the Miami Beach Police Department. His alleged crimes? Spending the day smoking pot, popping pills, drinking alcohol at a nightclub, and drag-racing a Lamborghini at 4 o’clock in the morning in a residential neighborhood. Or, as the 19-year-old Justin Bieber might say: a typical Wednesday night.

Of course, in today’s social-media universe, there’s already video of the traffic stop online. Apparently, a gaggle of shrilly “Beliebers” were also out at 4 o’clock in the morning, following their favorite troubled teen icon through the streets of Miami Beach. Not surprisingly, the girls were totally incompetent in their attempt to film Bieber, and mostly just captured a series of blurry images, accompanied by off camera screeching: “THERE HE IS!!!!! PLEASE!!!! PLEASE!!!! OH. MY. GAWD!!”

So let’s break down the law, and what we know about the case, as reported in the media.

According to a Miami Beach Police Department probable cause affidavit, an officer observed Bieber in a yellow Lamborghini. Bieber’s Lamborghini was allegedly next to a red Ferrari, both of which were heading northbound on Pine Tree Drive. The officer observed two S.U.V.’s that appeared to be blocking traffic, so as to create “an open road” for a race. The officer then allegedly observed “both vehicles start a contest of speed (drag racing) from a start.” The officer estimated the speed to be “about 55-60 MPH.”

Pursuant to Florida Statute 316.191(2)(a), to prove the crime of “Drag Racing,” the State must prove that Bieber was driving a motor vehicle in a “race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration, or for the purpose of making a speed record on any highway, roadway, or parking lot.” “Drag Racing” is further defined as: “the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit.”

Taking the officer’s probable cause affidavit at face value, it does appear that the officer had valid probable cause to arrest Bieber for “Drag Racing.” However, it should be noted that the officer simply states that he observed a “contest of speed (drag racing),” without specifically stating that he observed Bieber attempting to competitively “outdistance” the Ferrari. Nevertheless, the officer’s observation of the Lamborghini and the Ferrari starting a “contest of speed” “from a start,” surely suffices for the purpose of probable cause.

Proving the crime of “Drag Racing” beyond a reasonable doubt is another thing altogether, but it is doubtful that Bieber will have any desire to drag this matter out in litigation. See what I did there?

Interestingly, the officer did not actually arrest Bieber for “Drag Racing.” Rather, he arrested Bieber for “Resisting Arrest Without Violence” (RWOV). From my experience representing clients in Miami Beach, the Miami Beach Police will charge just about anybody for “Resisting Arrest Without Violence,” no matter how outlandish the allegation (note to Miami Beach Police: asking “why am I being placed under arrest” is not a crime). That said, taking the probable cause affidavit at face value, the officer seems to have had a legitimate basis to arrest Bieber for RWOV.

According to the affidavit, when the officer pulled Bieber over, Bieber exited the vehicle and “kept going into his pants pockets.” In legalese, when an individual “keeps going into his pants pockets,” it is called “furtive movements.” Typically, a police officer cannot conduct a “cursory pat-down” of an individual during a traffic stop if the officer only has a generalized concern for safety. Rather, under Florida Statute 901.151 and relevant case law, an officer may only conduct a “pat-down” if the officer has a reasonable articulable suspicion that the detained individual might be armed. “Furtive movements,” in which a detained individual fidgets, or places his hands in his pockets as though to conceal something, provides an officer with a legitimate basis to conduct a “pat-down.”

Allegedly, when the officer attempted to conduct a “pat-down” of Bieber, the upset pop-star refused to comply with the officer’s lawful order to turn around and keep his hands on the vehicle. Under Florida Statute 843.02, it is unlawful for any person to “resist, obstruct, or oppose” any law enforcement officer who is “engaged in the lawful execution of a legal duty.” Thus, taking the probable cause affidavit at face value, it does appear that Bieber resisted a lawful order from a law enforcement officer. In fact, considering how Miami Beach Police have reacted to Resisting Without Violence in the past, Bieber should count himself lucky that he wasn’t tasered to death.

However, the investigation did not end with Bieber’s arrest. According to the probable cause affidavit, Bieber smelled of alcohol, had bloodshot eyes, and a look of “stupor” on his face. The affidavit claims that Bieber denied being drunk, and that officers afforded Bieber the opportunity to perform “SFST’s.” For the uninitiated, this means that officers asked Bieber to perform Standardized Field Sobriety Tasks. The affidavit references a “DUI Test Report,” which as of publishing, is not yet publicly available. The affidavit further states that Bieber did not perform the Field Sobriety Tasks “to standards.” The affidavit also claims that Bieber agreed to a “breath test” as well as a “drug evaluation.”

According to the Miami-Herald, Bieber told police officers that “he had a beer, was under the influence of anti-depressants, and had been smoking marijuana all day.” The Herald also sources Miami Beach Police Chief Raymond Martinez as saying that “tests showed that Bieber was under the influence of drugs.”

So what does all of this mean?

To begin, it means that Bieber is being charged with D.U.I. This is not as straightforward as it might seem. Typically, to prove the crime of D.U.I., the state must prove beyond a reasonable doubt that the defendant drove or was in actual physical control of a vehicle, while under the influence of alcohol, a chemical substance, or a controlled substance, to the extent that the defendant’s normal faculties were impaired. “Normal faculties” are defined as including “the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”

The reason an officer will ask an individual to perform Field Sobriety Tasks, is so that the officer may observe how well–or how poorly–an individual has control of his/her “normal faculties.” If an individual refuses to perform Field Sobriety Tasks, the officer will have less evidence to prove that the individual’s “normal faculties” are impaired. Unfortunately for Bieber, he agreed to perform the Field Sobriety Tasks, and it appears likely that the State will use his performance as evidence of Bieber’s alleged guilt .

Of course, the State may also prove the crime of D.U.I. a second way. The State may also prove the crime of D.U.I. by proving that the defendant was operating or in actual physical control of a vehicle, while having a breath-alcohol level of .08 or more grams of alcohol per 210 liters of breath. This is why the police asked Bieber to provide a sample of his breath for testing.

If an individual refuses to provide a sample of breath, the individual’s driver’s license will be automatically suspended for 1 year. Of course, if an individual refuses to provide a sample of breath, the State will have no direct evidence of the individual’s breath-alcohol content. Thus, if an individual refuses to provide a sample of breath, it is just about impossible for the State to prove an individual is guilty of having a breath-alcohol level above .08.

Nevertheless, just as Bieber agreed to perform Field Sobriety Tasks, it also appears as though Bieber agreed to provide a sample of his breath.

For Bieber, however, the lawful limit is well below .08. Under Florida Statute 322.2616, individuals under the age of 21 may not drive or be in actual physical control of a vehicle with a breath-alcohol level of .02. What is more, under this statute, an officer may detain any individual under the age of 21 for the purposes of testing the individual’s breath, if the officer has probable cause to believe that the individual is driving a vehicle while under the influence of alcohol–regardless of impairment. Thus, for all intents and purposes, law enforcement had the right to detain Bieber and take Bieber to a Breath-Alcohol Testing Center the moment law enforcement smelled alcohol on Bieber’s breath.

It is entirely possible, of course, that Bieber provided a sample of breath that tested below .02. That, however, would not mean that Bieber is out of the water, so to speak. Rather, law enforcement would next ask Bieber to provide a sample of urine, so as to determine whether Bieber was under the influence of a chemical substance or a controlled substance. If it is true that Bieber admitted to taking anti-depressants and smoking pot, it is more than likely that any urine sample would reveal that Bieber was under the influence of one or more controlled substances.

Which brings us to the Herald’s assertion that “tests showed that Bieber was under the influence of drugs.” There is simply no way that a sample of Bieber’s urine has already been tested for drugs. That process can take weeks. However, it is entirely possible that Bieber submitted to a Drug Influence Evaluation. A Drug Influence Evaluation is somewhat similar to a battery of Field Sobriety Tasks, except that it is conducted by a specialized officer, who is designated a Drug Recognition Expert (or “D.R.E.”). Unlike Field Sobriety Tasks, which are designed for observing an individual’s control of his/her “normal faculties,” a Drug Influence Evaluation is designed for observing specific indicators of drug use. The exercises in a Drug Influence Evaluation are different than the exercises in a battery of Field Sobriety Tasks. What’s more, the D.R.E. administering the Drug Influence Evaluation can testify in court as an expert witness, and share his/her expert opinion as to the defendant’s drug impairment.

Reading between the lines, it is entirely possible that when Chief Martinez claimed that “tests showed Bieber was under the influence of drugs,” Chief Martinez was referring to the results of a Drug Influence Evaluation.

Lastly, law enforcement is alleging that Bieber’s Georgia driver’s license was expired, which is a second-degree misdemeanor.

Got all of that? Good. Now, let’s look at the possible penalties.

First, the D.U.I. is a misdemeanor offense, punishable by a maximum jail sentence of 6 months. If Bieber doesn’t receive a diversion program for his D.U.I., he can expect to serve up to 12 months on probation, suffer a 6-month driver’s license revocation, pay a minimum $500 fine (maximum $1,000), and have at least one vehicle, which is registered in his name, immobilized for a period of 10 days.

Second, the Resisting Without Violence charge is a First Degree misdemeanor, punishable by up to 1 year in jail, and a maximum fine of $1,000.

Third, the Expired Driver’s License charge is a Second Degree misdemeanor, punishable by up to 60 days in jail, and a maximum fine of $500.

Likely, Bieber won’t serve anymore time in jail. A more realistic scenario is that he will go on probation. During the term of his probation, he’ll have to stay out of trouble. For Bieber, who has faced allegations of driving recklessly and causing $20,000 worth of egging damage, this might prove difficult.

In the final analysis, it is clear that Justin Bieber is a troubled individual. He exists in a peculiar caste within American society: the nobility of celebrity. It would be remiss to fail to mention that an investigation is currently underway in Opa-Locka, Florida, in Miami-Dade County, to investigate an unlawful police escort, which allegedly convoyed Bieber’s entourage from the airport to a series of strip-clubs in South Florida. Only a bloated sense of narcissistic entitlement would propel a 19-year-old to recklessly drag-race through the streets of a residential neighborhood on a Thursday morning, while under the influence of alcohol, marijuana, and anti-depressants, and then respond to a police officer with the words: “why the f**k are you doing this? What the f**k is this about.” It is important in a society that rejects formal notions of class distinction, and which prides itself on the Rule of Law, to disabuse Justin Bieber of the notion that his social status cloaks him with the privilege of violating the law; or that it affords him special treatment. That said, it is equally important that the law treat Justin Bieber no different than any other similarly situated defendant.

Here’s to hoping that Florida’s criminal justice system is equal to the task.

Although this blog is dedicated to the field of criminal law, I cannot help but write about the precipitous decline that the Rule of Law has suffered in this country.

Yesterday, the President announced a “fix” to the so-called “problem” of Obamacare, in which millions of Americans have lost their health insurance coverage as a result of the law’s mandatory, minimum coverage requirements. Of course, calling this feature of the law a “problem” is absurd. Obamacare was specifically designed to impose minimum, mandatory coverage requirements for health insurance plans. No matter how many times the President claimed that everyone “could keep their health insurance plan,” the President, as well as his allies in Congress, purposefully and specifically designed the law so that some insurance plans would no longer meet minimum requirements. Calling this feature of the law a “problem” is like claiming that the emergency brake on a car is a “problem,” simply because the car won’t move while the emergency brake is engaged. It’s part of the design.
beanie.gifNevertheless, because President Obama purposefully deceived the American people on this point, the cornerstone of Obamacare has suddenly become a “problem” that needs a “fix.” In a constitutional republic with an unparalleled respect for the Rule of Law, legislative “problems” are typically “fixed” through the legislative process. Cause, you know…it’s the law.

However, in the Era of Obama, the Rule of Law is nothing more than an annoying obstacle on the pathway to a progressive paradise. So, instead of looking to Congress to “fix” what is the central component of Obamacare, the President is simply notifying state insurance commissioners that insurance companies have “federal permission” to violate the law, at least until after the 2014 midterm elections. The President calls this “enforcement discretion.” Never mind his oath to “faithfully execute” the Office of the Presidency. President Obama’s idea of “faithful execution” is to not execute the very law that he claims is his greatest presidential achievement. In the Era of Obama, suggesting a legislative repeal of the law, or suggesting a legislative defunding of the law, is tantamount to “hostage taking”; simply ignoring the law, however, is considered an appropriate “fix.”

All of this nonsense was foreseen by the Nobel Prize winning economist F.A. Hayek. Having left Austria before the Nazi takeover of his country, Hayek penned the political masterpiece, The Road to Serfdom. In a chapter entitled, “Planning and the Rule of Law,” Hayek expounds upon the inherent conflict between the Rule of Law and centralized economic planning. Whenever a centralized bureaucracy attempts to equalize the conditions of society (for instance, by mandating that everyone purchase a federally certified insurance plan), the bureaucracy imposes economic costs that fall unevenly upon the population, and which often threaten the viability of the bureaucratic scheme. Thus, the bureaucracy is forced to make ad hoc, arbitrary exceptions to its own regulations, in order to achieve greater “fairness.” These ad hoc, arbitrary exceptions are the very antithesis to the Rule of Law, which only functions appropriately when it is evenly, consistently, and blindly applied to a given set of facts.

Here’s how Hayek puts it: “To say that in a planned society the Rule of Law cannot hold is, therefore, not to say that the actions of the government will not be legal, or that such a society will necessarily be lawless. It means only that the use of the government’s coercive powers will no longer be limited and determined by pre-established rules. [T]o make…central direction of economic activity possible, [the law]must legalize…arbitrary action. If the law says that such a board or authority may do what it pleases, anything that board or authority does is legal–but its actions are certainly not subject to the Rule of Law. By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable.”

Hayek clarifies this concept in a footnote, writing: “The conflict is thus not…between liberty and law…The conflict is between different kinds of law–law so different that it should hardly be called by the same name: one is the law of the Rule of Law, general principles laid down beforehand, the ‘rules of the game,’ which enable individuals to foresee how the coercive apparatus of the state will be used, or what he and his fellow-citizens will be allowed to do, or made to do, in stated circumstances. The other kind of law gives…the authority the power to do what it thinks fit to do. Thus, the Rule of Law could clearly not be preserved in a democracy that undertook to decide every conflict of interest, not according to rules previously laid down, but ‘on its merits.'”

This later type of law–the ad hoc, arbitrary law, which empowers the bureaucracy to apply a different set of rules for every conceivable problem–is precisely the type of law that the Obama Administration embraces. When Obamacare was passed into law, the government effectively set down a series of rules that imposed certain obligations on individuals, employers, and health-insurance providers. The government gave everyone three years to prepare for the implementation of the law. Everyone knew the rules beforehand. The health-insurance providers invested tens of millions of dollars to review their existing insurance products, and to create new insurance products that would comply with the requirements of the law.

Then, with the snap of his fingers, the President changed the rules, all by himself. All of the effort and resources that the insurance industry invested into complying with the law? A waste. They could have simply waited another year. They should have known that the President might just change his mind. And what about the individuals who purchased new, more expensive plans, because they were told that the law required it? Too bad. They should have just waited to see if the President would change his mind about enforcing the law.

Of course, the disregard for the Rule of Law goes even deeper. The President is not only stating that he will not enforce the law for another year; he is also qualifying his refusal to enforce the law on the condition that the insurance companies notify consumers about how the old policies violate Obamacare, and how the consumers have the option to purchase new policies on the Obamacare exchanges. In other words, the President is inventing a new rule–without legislative approval–while simultaneously refusing to enforce a duly enacted law. A law that he himself championed and helped craft. It is truly the “theatre of the absurd” when progressives confidently thump their chests and proclaim, “Obamacare is the law of the land,” while all the while changing the rules, or ignoring the law at their whimsical pleasure.

Indeed, this entire farce illustrates the absurdity of the notion that centralized, redistributive economic planning is compatible with a democratic, limited system of government, which exists to protect individual liberty. Truthfully, the term “Democratic Socialism” is an oxymoron. There is no democracy without the Rule of Law; and there is no socialism–no centralized economic planning–with the Rule of Law.

It’s horrible that people are losing their health insurance plans; particularly considering that they were told that they would not lose their plans. The solution, however, is not to haphazardly change the rules, or grant arbitrary waivers and extensions to an unworkable bureaucratic quagmire of regulations. The solution is to legislatively scrap the law, through the constitutional process that we call: the Rule of Law.

Earlier this month, a Miami man allegedly killed his wife and photographed her body, before posting the photograph on Facebook. Advertising the alleged crime, the man posted to his Facebook account: “I’m going to prison or death sentence for killing my wife love you guys miss you guys take care Facebook people you will see me in the news my wife was punching me and I am not going to stand anymore with the abuse so I did what I did I hope u understand me.”

Fascination with the ghoulish photo has generated national interest in the case. The defendant, Derek Mendina, will now forever be known as the “Facebook Killer.”

It’s quite surprising, actually, that a similar incident hasn’t occurred earlier. In today’s world, where social media provides validation for every narcissistic impulse and creates an open platform to achieve “15 minutes of fame,” it is a wonder that someone hasn’t already uploaded a video of a murder on YouTube or Vine, or hasn’t already posted grizzly photos on Facebook or Instagram. Hopefully, the novelty of the “Facebook Killer’s” actions remain novel, and aren’t repeated elsewhere.

Indeed, the novelty of posting pictures of the crime scene to Facebook, as well as posting an apparent “confession,” make the case appear fairly open and shut. However, over at Random Pixels (a terrific South Florida blog), Bill Cooke has written a very interesting piece, in which he uses the 1966 killing of Theresa Rix to illustrate an important point: no criminal case is truly hopeless.

To be sure, the recent trial of Casey Anthony also illustrates the point well. While Casey Anthony never admitted to killing her child, the overwhelming weight of the evidence clearly removed any reasonable doubt. In the 1966 case of Theresa Rix, the defendant did admit to killing Ms. Rix, but the defendant claimed that he killed Ms. Rix accidentally. To be more precise, the defendant claimed to have accidentally bludgeoned the woman to death, before stuffing a rag in her mouth, tying her up, and sealing her in a trashcan with liquid cement. The jury let him walk free. The fact is, when a case is presented to a jury, any outcome is possible; no matter the merit of the case.

As we have also seen in Miami Dade County, any outcome is possible in a “Stand Your Ground” hearing; no matter the merit of the case. Greyston Garcia (who, it should be noted, was tragically murdered this past July), admitted to chasing down an unarmed burglar and stabbing the man to death (the alleged burglar did have a folded pocket knife in his pocket, but he never wielded it). Despite Mr. Garcia’s initial denials that he killed the man; and despite the evidence that Mr. Garcia pawned property that Mr. Garcia lifted from the dead man’s body; a judge dismissed the homicide charges against Mr. Garcia, on the theory that Mr. Garcia acted in compliance with Florida’s “Stand Your Ground” statute.

Is it possible that Derek Mendina will likewise claim to have acted pursuant to “Stand Your Ground?” In Miami, anything is possible.

Obviously, many of the alleged facts are inconsistent with a valid claim of “Stand Your Ground.” First, Mr. Medina photographed the body and posted it to Facebook. That is not behavior that is seemingly consistent with someone who has just used deadly force in self-defense. Second, he not only admitted that he killed his wife, but he also admitted that he thought he would go to prison or receive the death sentence for killing his wife. Clearly, that sentiment is indicative of a guilty conscious. Third, in his alleged statement to police, he admitted that (1) on a prior occasion, he had pointed a gun at his wife; (2) prior to the shooting, he retreated upstairs to get his gun; and (3) while wielding the gun, he reengaged in an argument with his wife. Undoubtedly, these admissions all seem to foreclose the possibility of dismissal.

Nevertheless, the facts in the Greyston Garcia case were equally inconsistent with a valid “Stand Your Ground” claim. Mr. Garcia not only didn’t report his use of deadly force to authorities, but he also rifled through his victim’s belongings and pawned the stolen property for money. When initially questioned about the killing, Mr. Garcia lied to authorities. He didn’t admit his involvement until the detectives confronted him with video footage of the killing. Moreover, just as Mr. Medina allegedly armed himself before going downstairs to confront his victim, so too did Mr. Garcia admit to arming himself before going downstairs to confront his victim. However, unlike the case of Mr. Medina, Mr. Garcia actually chased down his victim, for more than a block, before stabbing the victim to death.

Mr. Medina, from the moment he posted the ghoulish images on his Facebook page, laid the seeds for a “Stand Your Ground” defense. In the same post in which he admitted to the killing, he also stated that the victim was “punching” him. Mr. Medina also implied that he was the target of “abuse;” perhaps, systematic abuse. In his statement to detectives, it appears that he claimed that his wife pulled a knife, prior to the shooting.

If a judge was willing to throw out Mr. Garcia’s case, it isn’t impossible to believe that a judge might toss out Mr. Medina’s case. Then again, thanks to the national media attention, the judge in the Medina case will undoubtedly feel pressure not to grant dismissal. That said, if anything is certain in Miami, it’s this: anything’s possible. Just ask the man who killed Theresa Rix.

Amiya Fernando, of www.topcriminaljusticedegrees.org, reached out to me with an “infographic,” which makes the case that Florida’s “Stand Your Ground” law is racially biased. I would post the inforgraphic in its entirety, but I fear that it will take up all of the space on my page. If you want to see it, follow the link: http://www.topcriminaljusticedegrees.org/stand-your-ground/

Needless to say, I strongly disagree with the “infographic’s” suggestion. However, before I break down some of my objections, let me make a few preliminary points.

First, I believe the law needs some limited reform. As currently written, Florida’s “Stand Your Ground” law has led to some absurd results in the courtroom. In Miami-Dade County, murder charges against Greyston Garcia were dismissed, based upon a judge’s finding that Mr. Garcia acted in compliance with the law. According to the evidence in the case, Mr. Garcia chased down his un-armed victim and then brutally stabbed the man to death. Not only did Mr. Garcia not call the police to report the killing, but he also took a bag that the victim was carrying and sold the bag’s contents at a local pawn store. Almost anywhere on earth, those facts amount to a robbery-homicide. In Miami-Dade County, those facts amounted to “Stand Your Ground.”

It is arguable, of course, that the judge in the Greyston Garcia case misapplied the law. A different judge, facing the same facts, might have ruled differently. Nevertheless, where the law creates a mechanism that forces the State to put on a mini-trial, in which the defendant need only meet the low burden of a preponderance of the evidence to receive a dismissal, it is inevitable that some judges will dismiss charges, despite the merit of the prosecution’s case.

Additionally, “Stand Your Ground” seriously inhibits law enforcement from making timely arrests. Typically, law enforcement can arrest an individual when there is probable cause to believe that the individual has committed each element of a criminal offense. Prior to “Stand Your Ground,” this meant that law enforcement could arrest a suspect for homicide if there was probable cause to believe that the suspect killed another human being. While the arrested individual could still raise justifiable homicide as a legal defense, justifiable homicide remained an “affirmative defense,” requiring the defendant to offer some evidence in a court of law.

Under “Stand Your Ground,” however, law enforcement must presume that an individual acted in self-defense. Thus, before making an arrest for homicide, law enforcement must not only have probable cause to believe that the suspect killed another human being, but they must also have probable cause to believe that the killing was not committed in justifiable self-defense. In many investigations, where there are no living witnesses, it takes time for law enforcement to establish probable cause to believe that the killing wasn’t justifiable. In the time it takes to overcome the presumption of what should be an “affirmative defense,” suspects can easily flee the jurisdiction.

Another problem with Florida’s “Stand Your Ground” law is that it was poorly drafted. This poor drafting leads to inconsistent results. For instance, F.S. 776.032 provides immunity from prosecution if the defendant acted in lawful self-defense, pursuant to F.S. 776.012 (Use of Force in Defense of Person), F.S. 776.013 (Home Protection), or F.S. 776.031 (Use of Force in Defense of Others). While the language of F.S. 776.013 (Home Protection) does not afford immunity to defendants who are engaged in unlawful activity at the time force is used, neither F.S. 776.012, nor F.S. 776.013, includes similar language. In other words, while a convicted felon in unlawful possession of a handgun cannot use the handgun to defend himself during a home invasion (because the possession of the handgun is unlawful), the same convicted felon can use the handgun to defend himself outside of his home. What’s more, the convicted felon can use the handgun to kill another person if the convicted felon reasonably believes that the other person is about to commit a “forcible felony.” Under Florida law, the mere burglary of an unoccupied car, which results in no violence whatsoever, is a “forcible felony.” Clearly, this is absurd. Very likely, the drafters of the law never intended to codify the right of convicted felons to shoot down a person burglarizing a car.

These issues deserve discussion. Both conservatives and liberals should agree that the application of the law has led to some unintended consequences. We can do better.

However, none of these issues have anything to do with race. Making Florida’s “Stand Your Ground” law into a racial fault-line forecloses the possibility of reasonable, common-sense discussion. A cynic might even say that injecting race into the issue serves only to excite a particular political constituency, with the sole purpose of mobilizing partisan voters for an upcoming election cycle. If the objective is to reform “Stand Your Ground,” injecting race into the issue is exactly the wrong tactic to take.

With that said, let’s get to the substance of the “infographic.”

1. If “Stand Your Ground” Is Anything, It Isn’t “Black and White.”

One thing is for sure: the application of Florida’s “Stand Your Ground” law is highly contextual. Whether the law applies to a given case requires a diligent, case-by-case, fact-by-fact review. Was the defendant allegedly defending himself outside of his home or inside of his home? If outside of the home, was the defendant inside of a car or outside of a car? If outside of a car, did the defendant provoke the incident or was the defendant attacked? If the defendant provoked the incident, how did the defendant provoke it? If the defendant physically provoked the incident, did the defendant withdraw from physical contact prior to the use of deadly force? If the defendant did withdraw from physical contact, did the defendant have an avenue to retreat, prior to using deadly force? If the defendant was in his car, what was he doing in his car? Was he using the car to engage in criminal activity? If the defendant was in his home, was he engaged in criminal activity at the time? If the defendant was in his home, did the deceased have a right to be in the home? These questions are all relevant and material to any analysis of a defendant’s rights under “Stand Your Ground.” Clearly, it is not as simple as “black and white.”

For this reason, drawing a conclusion based upon bland statistics, which tell you nothing about the individual merit of each case, isn’t helpful. Certainly, if statistics suggest a racial disparity in the application of the law, the suggestion requires further investigation. However, the statistics alone are not enough to reach a definitive conclusion. Those questioning the existence of racial disparity in the application of “Stand Your Ground” should not focus only on the skin color of the individuals exonerated under the law; rather, individuals should question whether there is a disparity in outcome between white and black defendants with similar cases.

Furthermore, if there is a disparity between similarly situated white and black defendants, what is the nature of the disparity? Are white defendants, who shouldn’t receive dismissal, receiving dismissal; or, are black defendants, who should receive dismissal, not receiving dismissal? To what extent is it a combination of both? Surely we don’t want to “even the playing field” by denying a mechanism for dismissal to defendants who actually deserve dismissal.

2. The Duty to Retreat is Unfair and Inconsistent With Human Nature

For some reason, opponents of Florida’s “Stand Your Ground” law have rallied around the notion that the “Duty to Retreat,” if applied to the George Zimmerman case, would have led to Mr. Zimmerman’s conviction. This is ridiculous. As the facts in the Zimmerman case clearly show, Mr. Zimmerman was pinned-down on his back at the time he pulled the trigger. Even if he were required to retreat, he had nowhere to retreat. His back was up against the wall, so to speak.

The “infographic” quotes Sir Matthew Hale as saying: “private persons are not to be trusted to take capital revenge one of another.” This, of course, is true. The law never has, nor does it now, allow individuals to take “revenge” on one another. One gets the sense, however, that proponents of “Duty to Retreat” are really just saying: “private persons are not to be trusted,” period.

When individuals are placed in imminent danger, the human body responds with what biologists call the “fight or flight” response. The “Duty to Retreat” essentially requires individuals to ignore one half of this instinctual response, in favor of running away. Depending upon the circumstances, the act of retreat could possibly put an individual at greater danger. While it is true that the “Duty to Retreat” only applies when safe retreat is reasonably possible, it nevertheless forces individuals to second-guess their instincts in the midst of a life-or-death struggle.

The Supreme Court has described the right of “self-defense” as an “inherent right.” To require individuals to retreat, before exercising an “inherent right,” is to place individuals in an unfair, unnatural position. When faced with unlawful force or violence, individuals have an inherent, fundamental, natural right to stand their ground, and meet force with force.

3. The “Infographic” Demonstrates That a Majority of the Country Does Not Support “Duty to Retreat.”

Belying the “infographic’s” implication that “Stand Your Ground” is some sort of fringe legal theory, which deserves comparison to Jim Crow laws, the maps on the graphic clearly establish that a large majority of the country rejects the notion of a “Duty to Retreat.” What’s more, the states that reject the “Duty to Retreat” are geographically and politically diverse. Not only do Southern states reject the “Duty to Retreat,” but traditionally liberal states like Oregon, Illinois, and Connecticut also reject it. This makes decisions to “boycott Florida,” as well as suggestions that “Stand Your Ground” laws are born from the perverse injustice of Jim Crow, all the more absurd.

Ultimately, the issues surrounding the “Stand Your Ground” law are far more complex than the oversimplification of “black and white.” It is an important issue, which requires considered, thoughtful reflection. Framing the issue in the context of race, in which it is argued that proponents of “Stand Your Ground” are supporting a racist law, will surely squelch any chance of considered, thoughtful debate.