Wednesday, July 17, 2013

Is California a "Stand Your Ground" State?

Disclaimer: I am licensed to practice law in California, not Florida.  This blog post will specifically discuss California's approach to self-defense laws.  

Update: Stevie Wonder recently told an audience in Quebec that he would boycott any "stand your ground" states.  Mr. Wonder currently lives in Woodland Hills, CA.  Somebody, please read this to Stevie.  

Since the verdict in the George Zimmerman case was announced last Saturday, "stand your ground" laws have been the subject of a lot of discussion in the news media. It should be noted parenthetically that "stand your ground" laws had absolutely nothing to do with the Zimmerman verdict -- George Zimmerman did NOT assert a "stand your ground" defense.  The phrase "stand your ground" never even arose during the trial, except when prosecutors displayed a video in which Zimmerman denied having any knowledge of such laws.  So, while it should be understood that SYG played exactly zero role in Zimmerman's acquittal, those laws still seem to be generating a lot of controversy.  Perfect blog fodder.

To understand SYG laws, you first have to understand the traditional "common law" approach to self-defense.  Under the historical British rules, the rules from which our system evolved, a person was only justified in using deadly force against an attacker if such force was truly a last resort.  If a person came under attack in a public place, he had a "duty to retreat" -- that is, he was expected to run from his attacker.  Force was only permissible in self-defense if retreating was not a viable option.  There was a major exception to this rule, known as the "Castle Doctrine".  The Castle Doctrine said that a person had no duty to retreat if he was attacked within his own home or place of business.

The trend in many modern jurisdictions, including California, has been away from the very narrow, traditional rules of self-defense.  Why should an innocent person be required to flee from a violent criminal?  If I haven't done anything wrong, I should have a right to defend myself against an attacker wherever that attack might occur.  In fact, that's exactly what the law says in California.  A person who is assaulted in California has no duty to retreat.  He may defend himself if he believes, and a reasonable person in his position would believe, that force is necessary to protect himself from an imminent threat.  We even go one step further -- the law in California says that a person who is attacked may even pursue his assailant if necessary.  CALJIC 5.50 reads:

A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat.  In the exercise of his right of self-defense a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.  

It should be obvious that SYG laws were simply irrelevant to the Zimmerman defense.  According to Zimmerman, he exited his vehicle because he lost sight of a suspicious person in his neighborhood.  At the time that he exited the car, Zimmerman had no reason to feel threatened. After walking some distance and searching for the suspicious teenager in the hooded sweatshirt, Zimmerman gave up and began walking back towards his waiting vehicle.  Martin allegedly surprised Zimmerman by punching him in the face, knocking him to the ground and beating his head against the concrete.  Zimmerman did not have an opportunity to flee once the threat began, therefore there should be no question about the propriety of Zimmerman "standing his ground". Regardless of whether or not you believe Zimmerman's story, it must be recognized that the defense simply did not rely on a "stand your ground" argument.  As noted above, the fact that Zimmerman initially exited his vehicle is irrelevant because Zimmerman did not believe that he was facing an imminent threat at the time that he did so.

The most famous "stand your ground" case in California involved a young man named Calvin Broadus, better known as Snoop Dogg.  On August 25, 1993, Snoop and his bodyguard, McKinley Lee were in a car near Woodbine Park in Los Angeles.  Snoop was driving the vehicle and Lee was riding in the passenger seat.  The men were confronted by 20 year-old Phillip Woldemariam, who was alleged to be a member of a Long Beach street gang called the "By Yerself Hustlers". Woldemariam flashed gang signs and insults ensued.  Snoop and Lee then pursued Woldemariam into the park, where Lee shot and killed the man.  Both Snoop and Lee were charged with murder. Both were found "not guilty".  The jury believed that Snoop and Lee acted in self-defense, even though they clearly had an opportunity to avoid the confrontation by fleeing (or simply by NOT pursuing Woldemariam).

Remember the outrage when Snoop was acquitted for pursuing and murdering a young, black man?  Me neither.

If you or a loved one has questions about self-defense in Orange County, Los Angeles, Riverside or San Bernardino, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Self-Defense Lawyer

Tuesday, July 9, 2013

Why Publicize DUI Checkpoints?

If you follow my Facebook page (and you should), you've noticed that I like to post warnings about local DUI checkpoints.  I'll usually give the heads-up a few days in advance whenever I discover that a local police agency intends to operate one of these dragnets.  I get a lot of feedback when I publish my warnings, mostly negative.  I've been called names and had my posts reported as "spam" or "abuse", but I won't be deterred.  My DUI checkpoint warnings should be regarded as a valuable public service, not just for commuters, but also for anyone who pays taxes, expects accountable government, and respects the principles enshrined in the US Constitution.

The 4th Amendment ensures the right to be free from "unreasonable searches and seizures".  The "reasonableness" of any particular search and / or seizure depends on the unique facts of each situation.  To determine whether or not a given search is "reasonable", the courts perform a balancing test.  On one hand, they weigh the state's interest in public safety.  On the other, they consider an individuals expectation of privacy in the given situation.  The court will consider the methods by which the search was performed and whether or not other, less intrusive means are available to law enforcement to decide whether or not a search passes constitutional muster.

Obviously, the state has a strong interest in preventing and deterring drunk driving.  Drunk driving is a major safety concern on the roads.  Alcohol is the biggest single contributing factor in fatal auto collisions.  I think we all agree on this: drunk driving is bad.  We all want to keep drunk drivers off the road.  We also want to achieve this directive in a manner that is cost-effective -- saving the most lives per dollar spent.  Along those same lines, we all want to preserve the rights and privileges that make America great.

The flip side of the coin is this:  DUI checkpoints are plainly examples of warrantless, suspicionless searches and seizures.  A typical DUI checkpoint can screen thousands of drivers in a given night. Commuters will be subjected to traffic delays and unnecessary police interrogation.  Everyone is a suspect at DUI checkpoints.  This is clearly not what the Constitution's Framers envisioned. Americans have the constitutional right to move about the country, free from unnecessary government intervention.  You don't need the cops' permission to drive down your street -- you own the street and the cops work for you.  DUI checkpoints turn this principle on its head.

To rectify the conflict between public safety and individual privacy, the US Supreme Court has provided a set of guidelines to be considered when determining the constitutionality of a particular DUI checkpoint.  Among the Court's list of factors, it ruled that:

  • Checkpoints should be publicized 
  • Checkpoints should be set up in areas where there is already a high occurrence of drunk driving and DUI-related accidents
  • Drivers should have an opportunity to avoid the checkpoint (Note: Police have gotten around this one.  If they provide some opportunity to turn away before entering the checkpoint, there will usually be "chasers" in position.  The chasers are cops whose job is to watch for anyone who avoids the checkpoint.  They will follow you until they find a reason to pull you over, imagined or otherwise.)

If the traffic delays and suspicionless interrogations don't bother you, consider the cost of these dragnets.  DUI checkpoints usually cost taxpayers about $10,000.00 to operate per night.  The funds come from various sources, including federal and state grants to local police agencies.  The checkpoints are staffed by officers on overtime.  Next time you're sitting in traffic waiting to go through one of these time-wasters, at least you'll be comforted by the fact that the cops are being paid time-and-a-half.

Of course, police unions are the most vocal lobbyists in favor of more checkpoints.  Their members get to stand around and eat catered food while getting paid extra to do safe, easy "work".  I like to call the dragnets "DUI Checkpoint Fundraisers", because I think that accurately describes their function.  DUI checkpoints don't just raise funds from state and federal grants, they also boost department coffers with towing and impound fees.  Did you forget to pay a ticket from out-of-county when you were on vacation?  Did your wife forget to mail in your insurance check?  If so, you might be surprised to learn that you have a suspended driver's license.  You'll be even more surprised when police impound your car, hold it for 30 days, and charge you thousands of dollars to release it at the end of the month.

So there are avoidable traffic delays and suspicionless interrogations that erode the public's faith in law enforcement.  There's the tax dollars being squandered on unnecessary overtime pay and the wasted police resources that aren't being utilized while the checkpoint is in operation.  Any other reasons people should avoid DUI checkpoints?  Here's one:  they simply don't catch drunk drivers.  As I mentioned above, a typical DUI checkpoint can screen thousands of drivers in a single night.  On average, though, a checkpoint will net less than 1 DUI arrest.  If the purpose of DUI checkpoints is to catch DUI drivers, then they're not working.  Just imagine if all those cops working the checkpoint had been in their cars, cruising high-DUI areas, watching for intoxicated individuals and responding to actual alcohol-related incidents.  Remember what I said above about lives saved per dollar spent?

DUI checkpoints are wasteful in every respect.  The sooner we figure this out, the sooner we can start implementing strategies that actually reduce the harms associated with DUI driving.  For my part, I will continue publicizing advance notice of DUI checkpoints in Orange County on my Facebook page.  Check back often for updates as they become available.

As always, please don't give the cops anything to do.

Monday, July 1, 2013

Fishing Regulations in California: How Not to Get Bagged

As its name implies, the California Department of Fish & Wildlife (formerly the "Department of Fish & Game") has the responsibility of governing fishing and hunting with the state.  The DFW has the authority to author its own rules and regulations to that end. Those regulations (written, enforced and interpreted by the DFW) carry the full weight of the law. Any violation of the DFW's self-imposed rules can carry hefty penalties, including jail time, fines, loss of hunting / fishing privileges in the future and even forfeiture of property used in the commission of the alleged offense. Laws on the subject are incredibly complicated and, unfortunately, ignorance of those laws is generally not a defense.

So the DFW, an un-elected, executive agency, can make up laws, enforce those laws, and decide for itself how those laws are to be interpreted? Basically, yes. The District Attorney and the courts play a role, but the bulk of hunting and fishing regulations in the State of California are issued by an agency that is virtually insulated from popular pressure. The legislature also contributes to the mish-mash of gaming regulations in the state, resulting in more laws than any one man could possibly wrap his mind around.

If you or a loved one is accused of unlawful hunting or fishing in California, call an attorney with experience in defending against local hunting and fishing violations. Luckily, you've already made the right first step. I'm not only a criminal defense attorney, I'm also an avid fisherman here in Southern California. When I'm not in the courtroom, you can find me ripping lips in Newport Beach, trapping lobster with hoop nets in Mission Bay, or getting my line wet wherever the opportunity presents itself. I've even been hassled by cops for fishing in the water hazards on golf courses.

If you're going to enjoy some of the outdoor sporting activities that the Golden State has to offer, you'd better get familiar with some local regulations before your next fishing trip. I want to share a few tips to help prevent other fishermen from accidentally (or negligently, or intentionally) running afoul of California's complicated Fish & Wildlife Regulations.

The California coastline is divided into 7 "regions". Each region has its own set of regulations to govern the types of fish that can be caught, permissible methods for catching various species (nets, hook & line, traps, spears, bare hands, etc.) closed seasons, minimum sizes, bag limits and other restrictions. This post will focus on rules and regulations within the "South Coast Region", stretching from Point Concepcion to the Mexican border. This region includes the southern portion of Santa Barbara County and all of Ventura County, Los Angeles County, Orange County and San Diego County. The South Coast Region is home of the warmest water in the state, as well as the largest population of fishermen. The warm water and heavy angling pressure has contributed to a unique set of challenges, both for the fisherman and the fish in Southern California. Accordingly, the DFW has imposed specific rules to account for the specific circumstances in the waters between Santa Barbara and Mexico. For example, it is currently unlawful to catch Dungeness Crab in Southern California, but perfectly lawful to do so in Northern, CA. Dungeness Crab season will reopen in the South Coast Region on November 2 of this year. It is also illegal to take Abalone from the South Coast Region year-round.

The South Coast Region is also home to several "Marine Protected Areas", or "MPAs". Each MPA has its own strict rules. It is the angler's responsibility to understand the location and regulations of each protected area.  Here is a link to more information regarding Marine Protected Areas within California. Fishermen love to argue about the wisdom and efficacy of the MLPA. Many commercial anglers and sport fishermen feel that the MPAs were imposed arbitrarily or without due consideration for the local economies that depend on fishing certain waters during certain times of the year. Conservationists, on the other hand, welcome the state action to prevent the decimation of our precious fisheries. Wherever you come down on the MPLA, it's important to pay close attention to the locations and regulations affecting each protected area along the California coastline. Ignore them at your own peril.

Once you've determined your region and checked for MPAs, there are even more rules to govern the various methods by which you will be fishing (from shore, from a boat or diving?) Targeting or taking certain species of fish from boats is prohibited during certain times of year within certain regions. Those same fish may be targeted or taken year-round if you're fishing from the shore or diving.  For example, here in the South Coast Region, it is unlawful to target or take any species of Rockfish, Cabezon or Greenlings from a boat between the dates of 1/1 - 2/28. Shore-based fisherman and divers may target those species year-round. Anglers may take Leopard Sharks from boats within designated bays year-round (including within Newport Bay, Los Alamitos Bay, Mission Bay and San Diego Bay). Anglers may also take Leopard Sharks from shore year-round, but Leopard Shark season is only open to anglers aboard boats outside of the above-designated bays between 3/1 - 12/31.

See how quickly these regulations get complicated? I haven't even gotten into bag limits, size limits and maximum allowable depths for various species. To make things even more confusing, the DFG likes to issue "In-Season Fishing & Regulation Changes", just to keep everyone on their toes. These rule changes can go into effect with as little as 10 days of advance notice to the public.

Species identification is another area that may cause confusion among novice anglers.  Here's a link to a handy illustration that can be used to distinguish among some types of fish that are commonly found near shore in California. Notice how similar many of the rockfish species appear. The bocaccio and chilipepper varieties look nearly identical. The bocaccio, however, has a statewide bag limit of 2 per angler, while the chilipepper rockfish has a bag limit of 10 in the South Coast Region. It's easy to see how an innocent mistake could transform a novice angler into a misdemeanor defendant.

Accidentally violating a DFW regulation can be expensive. Fines for minor violations start at around $500 (including all mandatory state penalty assessments and court fees). The District Attorney may pursue misdemeanor charges over seemingly innocent mistakes (You didn't know that it's illegal to possess a halibut fillet that's less than 19 inches long? You've never filleted a halibut before and you really botched this one? Too bad. That's a misdemeanor conviction on your record). In some cases, prosecutors may even pursue forfeiture actions against violators. They can take your boat, your expensive gear, even the truck that you used to pull the boat if they believe that those items were "instrumentalities" used in the commission of some poaching offenses.

The intricacies of California fishing laws are obviously too complicated to fully explain in one blog post. The short version of the story is this: pay close attention to the local rules and regulations wherever you're fishing. If you're trying out a new stretch of coastline, always check the MPA maps first. You don't want to accidentally wander into a protected area.

If you are accused of poaching or violating any fishing regulations, call an attorney with extensive knowledge of the rules and regulations that govern fishing in Southern California. We offer free fish stories with every consultation. (714) 449-3335. Ask for John.

Keep your lines tight.

Orange County Fishing Lawyer