To my faithful dear reader (whomever you may be), let me update my terribly outdated blog.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.”

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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.

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).

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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.”

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.

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.

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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!!”

https://www.youtube.com/watch?v=5GtrNOXqZco

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.

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.

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.”