The big news this week comes from the 9th Circuit Court of Appeals in California. The traditionally (notoriously?) left-leaning federal court delivered its second pro-gun ruling in as many weeks, and pundits on both sides of the gun control debate are losing their minds. Today, I want to spend a minute breaking down what this ruling actually means, and where we go from here.
On Tuesday, a 3-judge panel of the court announced its decision in the case of Young v. Hawaii. The State of Hawaii requires citizens to apply for a county-issued license before they may openly carry firearms in public. The plaintiff in this case had applied for a license and been denied twice. He argued that the state's restrictive laws regarding carrying firearms in public violated the 2nd Amendment, and court agreed.
To explain their reasoning, the majority cited the recent decisions in Heller and McDonald. Those two cases established the right of law-abiding adults to keep handguns in their homes for self-defense. In Peruta, though, the court determined that the citizens do NOT have a right to carry concealed weapons in public. Since citizens have a constitutional right to "bear" (or "carry") weapons for self-defense, but they DON'T have a right to carry concealed weapons in public, the court reasoned that they must have a meaningful opportunity to carry firearms openly in public places for their own protection. States can make some reasonable rules and regulations about carrying weapons in public, but they may not simply prohibit the practice.
The 9th Circuit sent the case back to the lower court in Hawaii for further proceedings consistent with the newly-announced rule. Now, the legal team for the state must decide whether or not to request an en banc ruling, where every judge on the circuit would have an opportunity to hear the matter. If the case is heard by a full panel of judges in the 9th Circuit, it is very likely that the ruling would be reversed again. Of course, that would inevitably lead to another appeal to the Supreme Court, where a conservative majority could reverse again and announce a nationwide right to openly carry handguns in public.
For now, this latest ruling from the 9th Circuit only narrowly applies to Hawaii's rules regarding the issuance of "open carry" licenses. It seems to open the door, though, to more challenges over California's restrictive regulations about carrying weapons in public (or in vehicles, etc.). Unlike Hawaii, California doesn't even allow law-abiding citizens to apply for a license to openly carry a firearm in public -- all "open carry" is completely banned in the Golden State. It is virtually impossible for the average citizen to obtain a concealed carry license in most parts of the state, too. If the ruling in Young withstands the next round(s) of appeals, that might change.
Stay tuned to see how this plays out.
If you or a loved one has questions about firearms and your rights in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Gun Lawyer
Showing posts with label legal news. Show all posts
Showing posts with label legal news. Show all posts
Thursday, July 26, 2018
Monday, April 9, 2018
What We're Working On Now
It's been a busy couple of months here in the office, and I realize that I haven't posted any updates about some of our recent success stories. If you've been anxiously holding your breath, good news! Here's a quick rundown of some of the great cases that we've been working on:
- Driving Without a License / False Info to a Police Officer -- Rancho Cucamonga (San Bernardino County): Our client had been stopped several years ago for driving without a valid license. To make matters worse, he gave a false name to the officer. A month later, police discovered that the name was incorrect and our client was accused of 2 separate misdemeanors. Our client failed to appear in court and he had 2 outstanding warrants for several years. Eventually, the warrants caught up to him and he was going to lose his job. This morning, I met with the DA and they agreed to dismiss both matters entirely. Our client can finally get back to work without being afraid that police would show up at any minute and take him into custody on some ticky tacky old warrants. Greats news for him and his family.
- Elder Abuse Restraining Order -- Santa Ana (Orange County): Our client was an elderly man who had been the victim of harassment and financial abuse by his adult daughter. He was seeking a restraining order against her to keep her away from his home and bank accounts. We were able to negotiate an out-of-court stipulation to help both parties achieve what they wanted without going to a full hearing before a judge. As I've written on this blog in the past, stipulations can be a great way for parties to negotiate their disputes in restraining order matters without involving taxpayers and judges. Out-of-court negotiations often allow both parties to achieve 100% of their goals without the risk that a judge will impose some "solution" where neither party is satisfied.
- Attempted Rape -- Fullerton (Orange County): Our client is a young alcoholic. He was extremely intoxicated and acting belligerently, including some aggressive behavior toward a female stranger. We all agreed that his behavior was inappropriate, but I did not believe that he intended or attempted to "rape" anyone. After a thorough investigation, the District Attorney agreed that my client was not guilty of attempted rape. He was potentially facing several years in prison, followed by lifetime sex offender registration. Instead, he received the appropriate resolution: mandatory alcohol counseling and NO sex offender registration.
- Trespassing / Theft -- Fullerton (Orange County): Our client was a "porch pirate". She was actually captured on camera stealing packages from the victim's doorstep. Package theft is rampant in North Orange County, so police and prosecutors are often eager to make an example when offenders are caught red-handed. Luckily, our client was sympathetic and apologetic. She had no serious criminal history. Most importantly, she had a great defense attorney! In the end, she agreed to a "diversion deal" -- she took a 6-hour class one Saturday and the DA agreed to dismiss the case entirely.
- Child Abuse -- West Covina (Los Angeles County): Our client was accused of abusing her boyfriend's child. My client insisted that she had merely used some reasonable methods of discipline to correct behavior in an obstinate child. The defendant was a tough disciplinarian, but I did not believe that the punishments she imposed on the child were excessive or unwarranted. After some further investigation, the DA agreed to dismiss the charges.
These are just a few of the cases where we've recently achieved some great results for our clients. Obviously, the facts of every case are different, so these success stories are not guarantees or predictions of future performance.
I have a lot more interesting cases that I'll be free to discuss soon. Check back for updates as they become available.
If you or a loved one is accused of a crime in Orange County, call us for a free attorney consultation. (714) 449-3335.
Wednesday, April 13, 2016
What's New in California Gun Laws?
AB-2459
This proposed bill would require all gun dealers in California to install extensive surveillance systems and to maintain all video footage on site for a number of years. It would prohibit licensed firearms dealers from operating out of their homes and would reaffirm the right of local municipalities to impose more stringent requirements on gun dealers.
The measure is working its way though the Assembly committee process. It was watered down a little in the Committee on Public Safety last week. Now it's headed back to the Committee on Privacy & Consumer Protection.
A previous version of the proposal would have required complete video surveillance of the interior and exterior of any licensed gun shop, including the parking lot and areas where inventory is stored, displayed or handled. It also would have mandated that the store owner maintain all footage on site for a period of 5 years.
As amended, the latest version of the proposed law would only require gun dealers to record transactions. The video footage must be in color and of sufficient definition to record the facial features of all buyers. The bill's author dropped provisions that would have mandated surveillance of the exterior and areas of the shop where inventory is stored. The period of time for which store owners would be responsible for maintaining the footage was also reduced from 5 years to 3 after the most recent amendments.
The stated purpose of the law is to discourage "straw purchases", where a buyer purchases a firearm on behalf of someone else who would be precluded from purchasing the weapon himself or herself. The actual, intended purpose of the law is to drive California gun dealers out of business by imposing more expensive, onerous regulations. Straw purchases are a serious problem because they contribute to weapons falling into the hands of dangerous criminals and mentally ill individuals. California already has a robust system in place, however, to track firearms back to their original purchaser if the gun later ends up in the possession of a prohibited person. All gun buyers in California are already required to present a valid, government-issued photo ID, 2 "proof of residence" documents, and a thumb print. The gun dealer must make photocopies of these documents and maintain them on file, along with the serial number and a description of the weapon sold. It is not clear to me how video surveillance would be of any real use in identifying an illegal buyer if the dealer already has that person's ID, home address and thumb print on file. A government-issued photo ID with a thumb print is a much more reliable means of identification than any grainy video surveillance footage.
Current Status of Peruta v. San Diego
This is the case that turned California's CCW licensing scheme on it's head. It's not really news, but I figured it was time to check in on its current status as this legal dispute slowly navigates our federal court system.
Here's a little background: Prior to 2014, San Diego County, in accordance with state law, required concealed weapons permit applicants to demonstrate some "good cause" for the issuance of the license. A permit would be denied unless the applicant could prove that he or she was at a greater risk of harm than the general population. Simply citing the need for self-defense was not sufficient to warrant the issuance of a concealed weapon license.
Mr. Peruta passed the necessary background checks but was denied a concealed firearms permit because he could not demonstrate any specific "good cause" to carry a weapon, beyond self-defense. His attorneys argued that the state's CCW policy was overly restrictive because it effectively prohibited law-abiding adults from exercising their 2nd Amendment rights in public. The Federal District Court in San Diego agreed.
Once the law was ruled unconstitutional in the District Court, some local sheriffs around the state immediately began issuing concealed weapons permits, under a relaxed standard, to any applicant who could demonstrate good moral character.
The 9th Circuit Court of Appeals has now taken up the matter and vacated all lower court rulings. Oral arguments were presented in June, 2015, but the court has not published its opinion yet. An announcement could come at any time -- tomorrow, next month, next year -- your guess is as good as mine.
Until the court provides some guidance, we're left in a sort of legal purgatory. The issue hasn't been resolved. Once the appellate court makes its ruling, it's a safe bet that the case will eventually make its way to the US Supreme Court. Things are likely to get even muddier before we see any clarity. Check back often for updates as they become available.
Updated 6/23/16: The 9th Circuit delivered its ruling last week. Judges found that the 2nd Amendment does not guarantee the right to carry concealed weapons outside of the home. Therefore, California's heightened standard for issuance of CCW permits does not unduly infringe upon the right to bear arms.
AB-1663 & AB-1664
These two proposed laws would effectively ban the "bullet button" in CA. I've written about them previously, here.
Both measures are currently working their way through the committee process in the State Assembly. They were approved by the Public Safety Committee on March 1, 2016 by votes of 5-2. Now they're awaiting further hearings with the Appropriations Committee. Democrats outnumber Republicans 12-5 on that panel, so their recommendation may be a foregone conclusion.
If the bills are eventually approved by the legislature, there's a good chance that they'll face a veto once they reach the governor's desk. Jerry Brown rejected a similar proposal in 2012, noting that the measure would likely have no impact on crime and that it would impose an undue burden on lawful sportsmen in California.
8,500 CCW Permits in Orange County, 0 Incidents of Misuse
Orange County Sheriff Sandra Hutchins was among the group of county sheriffs who issued CCW permits under the relaxed standard, following the Peruta decision in San Diego. Currently, 8,500 OC residents hold licenses to carry concealed firearms.
According to an article published in the Orange County Register on 4/6/16, there have been exactly 0 reported incidents of CCW license holders misusing their weapons in Orange County. Of the 8,500 people who carry concealed weapons daily, not a single one has pulled out his / her piece in a road rage incident or bowling dispute ("Mark it '0'! He was over the line!").
Lt. Gov. Gavin Newsom Backs Gun Control Ballot Measure
Lt. Gov. Newsom and a coalition of gun control groups claim to have collected enough signatures to qualify their proposal for the November ballot.
The initiative would outlaw the possession of high-capacity magazines and would require background checks to purchase ammunition.
California already prohibits the manufacture, importation and sales of high-capacity magazines. Gun owners who lawfully possessed the magazines before the ban, however, are currently allowed to keep them. Newsom's proposed law would require gun owners to surrender their high-capacity magazines to police, sell them to a licensed dealer, or take them out of the state.
Since high-capacity magazines are widely available for purchase in all neighboring states (and since criminals are generally willing to break the law), prohibiting the possession of high-capacity magazines is likely to have zero actual impact on violent crime in California.
And since ammunition can easily be manufactured at home, imposing burdensome restrictions on the sale and purchase of ammo is likely to encourage more shooters to handload their own rounds in the garage. No other state currently requires background checks to purchase ammo.
The whole initiative reeks of an opportunistic career politician, desperate for media attention in an election year. Imposing more complicated restrictions on law-abiding gun owners is unlikely to have any appreciable effect on crime. As previously noted, all of the items described in Gavin Newsom's proposed law are widely available for purchase in every state that borders California. Since criminals are generally undeterred by pesky things like "laws", they will continue to acquire and import those items at will. News flash: felons are already prohibited from possessing firearms and ammunition in California. This law will not prevent bad guys from gaining access to guns. It will, however, make shooting sports more expensive and inconvenient for the rest of us.
If you or a loved one has questions about guns or weapons in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John. Thanks for reading.
Orange County Gun Lawyer
This proposed bill would require all gun dealers in California to install extensive surveillance systems and to maintain all video footage on site for a number of years. It would prohibit licensed firearms dealers from operating out of their homes and would reaffirm the right of local municipalities to impose more stringent requirements on gun dealers.
The measure is working its way though the Assembly committee process. It was watered down a little in the Committee on Public Safety last week. Now it's headed back to the Committee on Privacy & Consumer Protection.
A previous version of the proposal would have required complete video surveillance of the interior and exterior of any licensed gun shop, including the parking lot and areas where inventory is stored, displayed or handled. It also would have mandated that the store owner maintain all footage on site for a period of 5 years.
As amended, the latest version of the proposed law would only require gun dealers to record transactions. The video footage must be in color and of sufficient definition to record the facial features of all buyers. The bill's author dropped provisions that would have mandated surveillance of the exterior and areas of the shop where inventory is stored. The period of time for which store owners would be responsible for maintaining the footage was also reduced from 5 years to 3 after the most recent amendments.
The stated purpose of the law is to discourage "straw purchases", where a buyer purchases a firearm on behalf of someone else who would be precluded from purchasing the weapon himself or herself. The actual, intended purpose of the law is to drive California gun dealers out of business by imposing more expensive, onerous regulations. Straw purchases are a serious problem because they contribute to weapons falling into the hands of dangerous criminals and mentally ill individuals. California already has a robust system in place, however, to track firearms back to their original purchaser if the gun later ends up in the possession of a prohibited person. All gun buyers in California are already required to present a valid, government-issued photo ID, 2 "proof of residence" documents, and a thumb print. The gun dealer must make photocopies of these documents and maintain them on file, along with the serial number and a description of the weapon sold. It is not clear to me how video surveillance would be of any real use in identifying an illegal buyer if the dealer already has that person's ID, home address and thumb print on file. A government-issued photo ID with a thumb print is a much more reliable means of identification than any grainy video surveillance footage.
Current Status of Peruta v. San Diego
This is the case that turned California's CCW licensing scheme on it's head. It's not really news, but I figured it was time to check in on its current status as this legal dispute slowly navigates our federal court system.
Here's a little background: Prior to 2014, San Diego County, in accordance with state law, required concealed weapons permit applicants to demonstrate some "good cause" for the issuance of the license. A permit would be denied unless the applicant could prove that he or she was at a greater risk of harm than the general population. Simply citing the need for self-defense was not sufficient to warrant the issuance of a concealed weapon license.
Mr. Peruta passed the necessary background checks but was denied a concealed firearms permit because he could not demonstrate any specific "good cause" to carry a weapon, beyond self-defense. His attorneys argued that the state's CCW policy was overly restrictive because it effectively prohibited law-abiding adults from exercising their 2nd Amendment rights in public. The Federal District Court in San Diego agreed.
Once the law was ruled unconstitutional in the District Court, some local sheriffs around the state immediately began issuing concealed weapons permits, under a relaxed standard, to any applicant who could demonstrate good moral character.
The 9th Circuit Court of Appeals has now taken up the matter and vacated all lower court rulings. Oral arguments were presented in June, 2015, but the court has not published its opinion yet. An announcement could come at any time -- tomorrow, next month, next year -- your guess is as good as mine.
Until the court provides some guidance, we're left in a sort of legal purgatory. The issue hasn't been resolved. Once the appellate court makes its ruling, it's a safe bet that the case will eventually make its way to the US Supreme Court. Things are likely to get even muddier before we see any clarity. Check back often for updates as they become available.
Updated 6/23/16: The 9th Circuit delivered its ruling last week. Judges found that the 2nd Amendment does not guarantee the right to carry concealed weapons outside of the home. Therefore, California's heightened standard for issuance of CCW permits does not unduly infringe upon the right to bear arms.
AB-1663 & AB-1664
These two proposed laws would effectively ban the "bullet button" in CA. I've written about them previously, here.
Both measures are currently working their way through the committee process in the State Assembly. They were approved by the Public Safety Committee on March 1, 2016 by votes of 5-2. Now they're awaiting further hearings with the Appropriations Committee. Democrats outnumber Republicans 12-5 on that panel, so their recommendation may be a foregone conclusion.
If the bills are eventually approved by the legislature, there's a good chance that they'll face a veto once they reach the governor's desk. Jerry Brown rejected a similar proposal in 2012, noting that the measure would likely have no impact on crime and that it would impose an undue burden on lawful sportsmen in California.
8,500 CCW Permits in Orange County, 0 Incidents of Misuse
Orange County Sheriff Sandra Hutchins was among the group of county sheriffs who issued CCW permits under the relaxed standard, following the Peruta decision in San Diego. Currently, 8,500 OC residents hold licenses to carry concealed firearms.
According to an article published in the Orange County Register on 4/6/16, there have been exactly 0 reported incidents of CCW license holders misusing their weapons in Orange County. Of the 8,500 people who carry concealed weapons daily, not a single one has pulled out his / her piece in a road rage incident or bowling dispute ("Mark it '0'! He was over the line!").
Lt. Gov. Gavin Newsom Backs Gun Control Ballot Measure
Lt. Gov. Newsom and a coalition of gun control groups claim to have collected enough signatures to qualify their proposal for the November ballot.
The initiative would outlaw the possession of high-capacity magazines and would require background checks to purchase ammunition.
California already prohibits the manufacture, importation and sales of high-capacity magazines. Gun owners who lawfully possessed the magazines before the ban, however, are currently allowed to keep them. Newsom's proposed law would require gun owners to surrender their high-capacity magazines to police, sell them to a licensed dealer, or take them out of the state.
Since high-capacity magazines are widely available for purchase in all neighboring states (and since criminals are generally willing to break the law), prohibiting the possession of high-capacity magazines is likely to have zero actual impact on violent crime in California.
And since ammunition can easily be manufactured at home, imposing burdensome restrictions on the sale and purchase of ammo is likely to encourage more shooters to handload their own rounds in the garage. No other state currently requires background checks to purchase ammo.
The whole initiative reeks of an opportunistic career politician, desperate for media attention in an election year. Imposing more complicated restrictions on law-abiding gun owners is unlikely to have any appreciable effect on crime. As previously noted, all of the items described in Gavin Newsom's proposed law are widely available for purchase in every state that borders California. Since criminals are generally undeterred by pesky things like "laws", they will continue to acquire and import those items at will. News flash: felons are already prohibited from possessing firearms and ammunition in California. This law will not prevent bad guys from gaining access to guns. It will, however, make shooting sports more expensive and inconvenient for the rest of us.
If you or a loved one has questions about guns or weapons in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John. Thanks for reading.
Orange County Gun Lawyer
Thursday, March 31, 2016
Announcing New Collaboration with Thekindland.com
I'm proud to announce my partnership with thekindland.com. I've contributed a few columns to their online magazine over the past year, but we recently finalized an agreement for a regular, long-term collaboration. My "Ask a Weed Lawyer" features will appear each Sunday until the complaints become intolerable or until the robot apocalypse, whichever comes first.
As the title of my column suggests, I will be answering common marijuana-related legal questions. If you have specific questions that you'd like answered, please feel free to leave your suggestions in the comments, below.
If you don't already read thekindland.com, you should start now. It's a free online magazine dedicated to cannabis culture and lifestyle. Think High Times meets Vanity Fair. And it's not all weed. Daily articles include a roundup of bizarre news from the internet, commentary on arts / current events, and a feature they call "Chill / No Chill", where readers can vote on the divisive topic of the day (e.g. compression pants, hemp sneakers, pizza delivery robots, etc.) Enter your email address on their homepage to get all the headlines delivered to your inbox every morning.
I will continue updating this blog while I work with the thekindland.com. Most of my nationally-relevant, marijuana-related posts will go up over there, and the California-specific posts will stay here. I'll also do my best to keep this blog freshly stocked with non-marijuana-related news and analysis.
Thanks for reading.
As the title of my column suggests, I will be answering common marijuana-related legal questions. If you have specific questions that you'd like answered, please feel free to leave your suggestions in the comments, below.
If you don't already read thekindland.com, you should start now. It's a free online magazine dedicated to cannabis culture and lifestyle. Think High Times meets Vanity Fair. And it's not all weed. Daily articles include a roundup of bizarre news from the internet, commentary on arts / current events, and a feature they call "Chill / No Chill", where readers can vote on the divisive topic of the day (e.g. compression pants, hemp sneakers, pizza delivery robots, etc.) Enter your email address on their homepage to get all the headlines delivered to your inbox every morning.
I will continue updating this blog while I work with the thekindland.com. Most of my nationally-relevant, marijuana-related posts will go up over there, and the California-specific posts will stay here. I'll also do my best to keep this blog freshly stocked with non-marijuana-related news and analysis.
Thanks for reading.
Wednesday, March 2, 2016
Proposed Bills Would Ban "Bullet Buttons" in California
Under current California law, an "assault weapon" is defined as any semi-automatic, centerfire rifle that includes a detachable magazine and one of several enumerated "scary" features (e.g. a pistol grip, folding stock, etc.). A magazine is not considered "detachable" under the law if its removal requires the use of a tool.
Enter the "bullet button". The bullet button is a California oddity. It is essentially a magazine release button that cannot simply be depressed by the shooter's thumb, the way that magazine release buttons typically work. Instead, the bullet button features a small hole which requires the shooter to insert some pointy tool (such as the tip of an unused bullet) to release the magazine. Hence the name, "bullet button". It looks like this:
A pair of pending laws would amend the California Penal Code to ban any magazine or ammunition feeding device that can be removed without disassembling the weapon, including magazines that can be removed with the use of a tool. The bills are specifically intended to prohibit the bullet button. Current owners of rifles with installed bullet buttons would be required to register their weapons with the state, and they would be prohibited from selling, transferring or giving away their firearms. Gun owners would even be prohibited from passing down their collections to their children when they die.
Proponents of the measures claim that they close a "loophole" that currently allows individuals to circumvent the spirit of the law. They argue that the ability to quickly reload a rifle poses a danger to public safety.
Opponents argue that the proposed bills are just the latest attempt to curtail the rights of shooters and hunters in California with more unnecessary and unduly burdensome regulations. I tend to agree (no surprises here).
Governor Brown vetoed a similar law immediately after the mass shooting in Newtown, CT. In his veto message, he noted that California already has some of the most restrictive gun laws in the nation. Since Arizona and Nevada have very permissive rules regarding gun sales, imposing more onerous restrictions on law-abiding Californians would likely have little effect on gun violence here. Criminals will continue importing illegal weapons from out-of-state. He also noted that hundreds of thousands of Californians currently own rifles with detachable magazines, which are commonly used for target shooting and hunting.
The proposed laws would solve a problem that simply does not exist in California. According to the State Department of Justice, California experienced 1,697 murders in 2014 (the most recent year for which data is available). Of those 1,697 murders, only 40 were committed by rifle. That's a whopping 2.3% of all murders in the state. There is no information available regarding how many of the rifles involved in those 40 killings featured detachable magazines, or to determine if the proposed laws would have prevented a single killing.
In the same year, shotguns killed 43 people. Blunt objects killed 65. Knives were involved in 256 murders. Handguns killed 763. Of all the weapons that were included in the AG's statistics, the only one that killed fewer people than rifles was rope. It's fair to say that we don't have a rifle problem in California.
The laws currently pending in the California Assembly, AB-1663 and AB-1664 would impose an undue burden on lawful gun owners, without any corresponding benefits for public safety. They would expose the state to costly litigation as 2nd Amendment groups sue to block enforcement of the new restrictions. These proposed bills are obviously an election-year distraction by politicians desperately grasping for headlines. If you agree, please call your local Assemblyman and let him or her know how you feel.
If you or a loved one is accused of any gun-related crime in Southern California, call our office for a free consultation. (714) 449-3335. We understand California's complicated gun laws and we have the experience to fight your case.
Thanks for reading.
Orange County Gun Lawyer
Enter the "bullet button". The bullet button is a California oddity. It is essentially a magazine release button that cannot simply be depressed by the shooter's thumb, the way that magazine release buttons typically work. Instead, the bullet button features a small hole which requires the shooter to insert some pointy tool (such as the tip of an unused bullet) to release the magazine. Hence the name, "bullet button". It looks like this:
A pair of pending laws would amend the California Penal Code to ban any magazine or ammunition feeding device that can be removed without disassembling the weapon, including magazines that can be removed with the use of a tool. The bills are specifically intended to prohibit the bullet button. Current owners of rifles with installed bullet buttons would be required to register their weapons with the state, and they would be prohibited from selling, transferring or giving away their firearms. Gun owners would even be prohibited from passing down their collections to their children when they die.
Proponents of the measures claim that they close a "loophole" that currently allows individuals to circumvent the spirit of the law. They argue that the ability to quickly reload a rifle poses a danger to public safety.
Opponents argue that the proposed bills are just the latest attempt to curtail the rights of shooters and hunters in California with more unnecessary and unduly burdensome regulations. I tend to agree (no surprises here).
Governor Brown vetoed a similar law immediately after the mass shooting in Newtown, CT. In his veto message, he noted that California already has some of the most restrictive gun laws in the nation. Since Arizona and Nevada have very permissive rules regarding gun sales, imposing more onerous restrictions on law-abiding Californians would likely have little effect on gun violence here. Criminals will continue importing illegal weapons from out-of-state. He also noted that hundreds of thousands of Californians currently own rifles with detachable magazines, which are commonly used for target shooting and hunting.
The proposed laws would solve a problem that simply does not exist in California. According to the State Department of Justice, California experienced 1,697 murders in 2014 (the most recent year for which data is available). Of those 1,697 murders, only 40 were committed by rifle. That's a whopping 2.3% of all murders in the state. There is no information available regarding how many of the rifles involved in those 40 killings featured detachable magazines, or to determine if the proposed laws would have prevented a single killing.
In the same year, shotguns killed 43 people. Blunt objects killed 65. Knives were involved in 256 murders. Handguns killed 763. Of all the weapons that were included in the AG's statistics, the only one that killed fewer people than rifles was rope. It's fair to say that we don't have a rifle problem in California.
The laws currently pending in the California Assembly, AB-1663 and AB-1664 would impose an undue burden on lawful gun owners, without any corresponding benefits for public safety. They would expose the state to costly litigation as 2nd Amendment groups sue to block enforcement of the new restrictions. These proposed bills are obviously an election-year distraction by politicians desperately grasping for headlines. If you agree, please call your local Assemblyman and let him or her know how you feel.
If you or a loved one is accused of any gun-related crime in Southern California, call our office for a free consultation. (714) 449-3335. We understand California's complicated gun laws and we have the experience to fight your case.
Thanks for reading.
Orange County Gun Lawyer
Thursday, August 13, 2015
Gov. Brown Signs Bill Affirming the Right to Film Police in California
As I've previously written here, Californians have the legal right to film police while officers perform their official duties in public as long as the citizen does not obstruct or interfere with the performance of those duties.
In 2015, Gov. Brown signed SB-411 into law, which amended the Penal Code to specifically affirm the right of citizens to film police. Sections 69 and 148(a)(1) now includes the following language: "The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of [this code], nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person."
The law was drafted by the California Public Defenders' Association and supported by the ACLU and other civil rights groups. There was no organized opposition. Practically, the change will has legal effect. The act of filming police in public has always been legal in California (in the sense that it has never been illegal). This bill merely clarifies and restates existing law.
If you have questions about your rights during encounters with police, call our office for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Criminal Defense Attorney
Tuesday, June 10, 2014
The Future of Medical Marijuana Dispensaries in Santa Ana
Updated 9/16/15: The California State Legislature has approved a package of laws that will create a comprehensive new system to regulate medical marijuana. Click on the link for more information about the Medical Marijuana Regulation and Safety Act.
Updated 11/10/14: Both proposed ordinances passed, but the Council's measure garnered more total votes. The new ordinance will take effect December 19. The city's Director of Planning will now prepare an application packet that each dispensary must submit. Once all qualified applications are received, the city will hold a lottery to randomly select 20 dispensaries that will be permitted to operate within 2 designated areas.
Updated 7/24/14: The OC Register is reporting that the Santa Ana City Council recently voted to earmark $500,000 for a task force devoted specifically to shutting down illegal dispensaries in the city. According to the author, SA police cited or arrested 42 people over the course of 2 days for crimes related to working in, owning, managing or volunteering at illegal shops. Stay tuned for more details as they become available.
The future of Santa Ana's bustling medical marijuana industry hangs in the balance, as activists and local leaders grapple with the city's proliferation of storefront dispensaries.
As of today, nearly 50 active pot shops operate within Santa Ana, mostly concentrated around "the green mile" -- 17th Street, between Grand & the 55 Freeway. That number has fluctuated wildly over the past couple years, due largely to inconsistent enforcement and market forces.
Santa Ana imposed an official ban on storefront dispensaries in 2007. Since that time, enforcement actions have shuttered 177 collectives. Despite the city's efforts, though, clubs are often operating again within days.
The high turn-over in "fly-by-night" pot shops has frustrated observers on both sides of the debate. City leaders and code enforcement officials complain that, despite their best efforts, the lure of quick money attracts new dispensaries faster than law enforcement can shut them down. Seriously ill patients complain about the safety, security and lack of regulation at "less-than-legitimate" collectives.
We all agree that the current status of medical marijuana in Santa Ana is not sustainable. Only a clear, concise set of reasonable regulations will bring some order to Santa Ana's green mile. Residents need assurances that the pot shops in their backyards aren't attracting crime or degrading the quality of life in their neighborhoods. Patients need a safe, affordable and reliable source for their medicine.
Medical marijuana activists have gathered enough signatures to qualify a ballot initiative for the November election. If approved by voters, The "Medical Cannabis Restriction and Limitation Initiative" would establish a process for collectives to register with the city and to pay a 2% sales tax. It would prohibit loitering and smoking on the premises and would restrict areas where pot shops could operate. Kandice Hawes, president of OC NORML, says, "We feel that people do want medical marijuana collectives. They want them to be controlled and safe, and they want the participation of the city and the police departments."
The City Council is now debating whether or not to place its own, competing measure on the ballot. The city's proposal would impose a 5-10% tax and would cap the total number of licensed shops, and would restrict dispensaries to two industrial zones within the city.
If we've learned anything from our country's failed social experiment called "prohibition", it should be that the government cannot simply make something go away by making it illegal. The market forces of supply and demand are far more powerful than any local code enforcement agency. Driving the market underground causes more problems than it solves. When the product is outlawed, the government turns its citizens into outlaws. I understand and support the city's need for comprehensive, effective regulation of this emerging industry. Residents should feel secure in their homes, without excessive traffic, loitering and other nuisance behavior. The Council's proposed ordinance could be counterproductive, though, if it overtaxes marijuana or places an artificial cap on the number of shops that are permitted to operate within the city. Let the market decide how many shops will operate. If dispensaries are overly restricted and taxed, prices are likely to climb and many consumers will turn back to the black market.
Unlike the Council's proposed ordinance, the Medical Cannabis Restriction and Limitation Initiative (or MCRLI) sounds like an effective way to address the community's concerns while ensuring that qualified patients have safe and convenient access to their medicine. It will protect children, generate revenue for the city without imposing burdensome taxes, and reduce the harmful impact that some collectives have had on their surrounding neighborhoods.
This November, vote to save medical marijuana in Santa Ana. Vote "yes" on the Medical Cannabis Restriction and Limitation Initiative. If the Council votes to place its own, competing measure on the ballot, tell them to butt out and let the free market do what it does best.
Disagree? Let me know in the comments section, below.
Thank for reading.
Updated 11/10/14: Both proposed ordinances passed, but the Council's measure garnered more total votes. The new ordinance will take effect December 19. The city's Director of Planning will now prepare an application packet that each dispensary must submit. Once all qualified applications are received, the city will hold a lottery to randomly select 20 dispensaries that will be permitted to operate within 2 designated areas.
Updated 7/24/14: The OC Register is reporting that the Santa Ana City Council recently voted to earmark $500,000 for a task force devoted specifically to shutting down illegal dispensaries in the city. According to the author, SA police cited or arrested 42 people over the course of 2 days for crimes related to working in, owning, managing or volunteering at illegal shops. Stay tuned for more details as they become available.
The future of Santa Ana's bustling medical marijuana industry hangs in the balance, as activists and local leaders grapple with the city's proliferation of storefront dispensaries.
As of today, nearly 50 active pot shops operate within Santa Ana, mostly concentrated around "the green mile" -- 17th Street, between Grand & the 55 Freeway. That number has fluctuated wildly over the past couple years, due largely to inconsistent enforcement and market forces.
Santa Ana imposed an official ban on storefront dispensaries in 2007. Since that time, enforcement actions have shuttered 177 collectives. Despite the city's efforts, though, clubs are often operating again within days.
The high turn-over in "fly-by-night" pot shops has frustrated observers on both sides of the debate. City leaders and code enforcement officials complain that, despite their best efforts, the lure of quick money attracts new dispensaries faster than law enforcement can shut them down. Seriously ill patients complain about the safety, security and lack of regulation at "less-than-legitimate" collectives.
We all agree that the current status of medical marijuana in Santa Ana is not sustainable. Only a clear, concise set of reasonable regulations will bring some order to Santa Ana's green mile. Residents need assurances that the pot shops in their backyards aren't attracting crime or degrading the quality of life in their neighborhoods. Patients need a safe, affordable and reliable source for their medicine.
Medical marijuana activists have gathered enough signatures to qualify a ballot initiative for the November election. If approved by voters, The "Medical Cannabis Restriction and Limitation Initiative" would establish a process for collectives to register with the city and to pay a 2% sales tax. It would prohibit loitering and smoking on the premises and would restrict areas where pot shops could operate. Kandice Hawes, president of OC NORML, says, "We feel that people do want medical marijuana collectives. They want them to be controlled and safe, and they want the participation of the city and the police departments."
The City Council is now debating whether or not to place its own, competing measure on the ballot. The city's proposal would impose a 5-10% tax and would cap the total number of licensed shops, and would restrict dispensaries to two industrial zones within the city.
If we've learned anything from our country's failed social experiment called "prohibition", it should be that the government cannot simply make something go away by making it illegal. The market forces of supply and demand are far more powerful than any local code enforcement agency. Driving the market underground causes more problems than it solves. When the product is outlawed, the government turns its citizens into outlaws. I understand and support the city's need for comprehensive, effective regulation of this emerging industry. Residents should feel secure in their homes, without excessive traffic, loitering and other nuisance behavior. The Council's proposed ordinance could be counterproductive, though, if it overtaxes marijuana or places an artificial cap on the number of shops that are permitted to operate within the city. Let the market decide how many shops will operate. If dispensaries are overly restricted and taxed, prices are likely to climb and many consumers will turn back to the black market.
Unlike the Council's proposed ordinance, the Medical Cannabis Restriction and Limitation Initiative (or MCRLI) sounds like an effective way to address the community's concerns while ensuring that qualified patients have safe and convenient access to their medicine. It will protect children, generate revenue for the city without imposing burdensome taxes, and reduce the harmful impact that some collectives have had on their surrounding neighborhoods.
This November, vote to save medical marijuana in Santa Ana. Vote "yes" on the Medical Cannabis Restriction and Limitation Initiative. If the Council votes to place its own, competing measure on the ballot, tell them to butt out and let the free market do what it does best.
Disagree? Let me know in the comments section, below.
Thank for reading.
Thursday, January 23, 2014
Why Privacy Rights Still Matter
Disclosures regarding the NSA's secret spying program have recently raised some debate in the United States over privacy rights and their limits. How much government intrusion is too much and how should we balance the state's legitimate "need to know" against an individual's reasonable expectations of privacy?
The Fourth Amendment to the US Constitution assures our right to be free from unreasonable searches and seizures. Critics of the Fourth Amendment often claim that it only protects the guilty. "If you aren't doing anything illegal, then what do you have to hide?", they ask. There are lots of compelling responses to this stupid question, but perhaps the best defense of the Fourth Amendment was recently illustrated by the case of a New Mexico man named David Eckert.
Eckert was pulled over by police for failing to make a complete stop at a sign as he pulled out of a Walmart parking lot. An officer noticed that Mr. Eckert appeared to be clenching his buttocks. Clenched butt cheeks can only mean one thing, police reasoned: Eckert must be transporting marijuana inside his rectum (because that's where people keep it?). This was the "probable cause" that cops cited in obtaining a warrant to perform a 14-hour-long series of invasive cavity searches on their suspect.
Police transported Eckert to an area hospital for exams. Doctors initially refused to perform the requested procedures, citing medical ethics. Officers then took Eckert to the Gila Regional Medical Center, where other doctors apparently had no such ethical objections.
First, doctors performed x-rays of Eckert's lower abdomen. No contraband was located.
Then, doctors probed Eckert's anus with their fingers. No contraband was found.
Then, just to be safe, doctors probed Eckert's anus again with their fingers. Still no contraband.
Next, Eckert was subjected to an involuntary enema. He was forced to defecate in front of doctors and police. Police searched his stool for signs of contraband, but none was found.
After that, doctors forcibly inserted an enema into Mr. Eckert's anus a second time. Again, he was made to defecate in front of the doctors and police. Again, no contraband was found.
Can you guess what happened after that? If you guessed "Eckert was forcibly subjected to a third enema", you're right! Still no contraband.
Now, after spending the better part of their afternoon elbow-deep in Mr. Eckert's colon, lesser doctors might have reasonably concluded that their patient was not hiding any contraband, at least not inside his rectum. But these guys didn't get to be doctors by quitting when the going got tough.
Mr. Eckert was then subjected to another x-ray of his abdomen. Still no contraband.
Finally, Eckert was prepared for surgery and sedated. Doctors performed an involuntary colonoscopy to inspect the lower portion of his digestive tract. No contraband was ever located.
Mr. Eckert's only crime was failing to make a complete stop at a sign. Police, acting on no more than a hunch, were able to obtain a warrant from a judge, authorizing a series of highly invasive "medical procedures", supposedly justified by some serious risk to public safety (suspected possession of marijuana). Just imagine how police might have treated Eckert if he were suspected of something that was actually dangerous.
Some people will say that this type of government intrusion is making us safer by reducing the risk of a terrorist attack. I'd rather take my chances.
If you or a loved one have questions about invasive police searches and your constitutional right to privacy, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Criminal Defense Lawyer
Some people will say that this type of government intrusion is making us safer by reducing the risk of a terrorist attack. I'd rather take my chances.
If you or a loved one have questions about invasive police searches and your constitutional right to privacy, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Criminal Defense Lawyer
Friday, November 22, 2013
Kelly Thomas Trial Date Approaching
The trial of Fullerton police officers Manny Ramos and Jay Cicinelli is now scheduled to begin in Department C-40 of the Santa Ana Courthouse on December 2, 2013. Members of the public are encouraged to attend.
Officer Ramos and Corporal Cicinelli are accused in the 2011 beating death of transient Kelly Thomas, pictured, at the Fullerton Transit Center. Kelly was severely beaten by six Fullerton police officers on the evening of July 5, 2011. He suffered severe injuries, including facial fractures and broken ribs. Kelly never regained consciousness. He died after being removed from life support five days later.
The incident was captured by both audio and video recorders. Ramos is accused of provoking the fatal encounter by threatening Kelly with unlawful force. At one point in the recordings, Ramos can be seen putting on latex gloves. He says to Kelly, "See these fists? There's getting ready to fuck you up". As Kelly gets up and attempts to run from Officer Ramos, Officer Joe Wolfe strikes Kelly with a baton. Wolfe and Ramos quickly take Kelly to the ground as more police arrive to assist. Corporal Cicinelli deploys his taser several times, then begins striking Kelly repeatedly in the face with the butt of his weapon. Six officers dog pile onto Kelly and continue their assault until Kelly stops breathing.
After Kelly lost consciousness, the officers made no effort to provide medical attention. Even as the homeless man lay dying in the parking lot, officers prevented emergency responders from rendering aid to him.
Kelly's death helped to expose a "culture of corruption" within the Fullerton Police Department. Several other incidents were later revealed in which Fullerton Police had used excessive force, fabricated reports, suppressed exculpatory evidence, and engaged in acts of dishonesty. Chief Michael Sellers was forced to "resign" in the wake of the investigation. Fullerton voters also held a special recall election, in which 3 council members were removed from office for their roles in the scandal.
The Fullerton Police Department has a long way to go if it hopes to restore the public's trust. "Guilty" verdicts for Ramos and Cicinelli will be a crucial first step in the healing process, both for the City of Fullerton and for the Thomas family.
The defense is expected to make two key assertions. First, they will argue that Kelly caused his own death by refusing to follow the commands of officers and by attempting to flee. Attorneys will claim that the officers used the appropriate degree of force to restrain a violent, dangerous individual and that their force would have ended immediately upon Kelly's compliance. Secondly, the defense will likely argue that the cause of Kelly's death cannot be determined with any reasonable degree of certainty and that some reasonable doubt must, therefore, exist.
Stay tuned for developments as they become available. I will try to attend as much of the trial as possible.
Wednesday, October 2, 2013
Posting "Revenge Porn" is Now a Misdemeanor in California
PC 647(l) makes it a misdemeanor to post online, distribute or otherwise disseminate nude photos of your ex. Anyone convicted under this section could face up to 6 months in jail and a $1,000 fine for the first offense, with the penalty doubled for a second offense.
The bill, proposed by Anthony Cannella (R-Ceres), was signed by Gov. Brown and took effect in 2013. It provides, in relevant part, the following:
"...that any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress, is guilty of disorderly conduct."
Put simply, you can be arrested and prosecuted if you share (or post, or publish, or upload...) nude pictures of someone without that person's permission. Even if you had permission to take the photos when they were created, or even if the photos were sent to you, you may not distribute those photos without the subject's permission.
Disseminating revenge porn may also be the basis for a Domestic Violence Restraining Order. Even though we don't typically think of revenge porn as being an act of "domestic violence", a judge will grant a domestic violence restraining order if the the victim requests one because the act of posting revenge porn can constitute "harassment". Aside from being arrested and possibly jailed, you will be barred from possessing firearms if a restraining order is granted against you.
Finally, you are likely to be sued if the victim can prove that you breached his or her privacy by publishing intimate photos.
There are many possible defenses to the crime of distributing revenge porn. Our office has experience fighting these types of charges and we can help if you have been arrested or if you believe that you are under investigation. Call us for a free attorney consultation. 714 449 3335.
Thanks for reading.
Thursday, May 16, 2013
AB 473: Turd Stew's Worst Enemy
State Assemblyman Tom Ammiano (D - San Francisco) recently introduced a bill in the state legislature that could finally bring some clarity to the convoluted mess surrounding California's tangled medical marijuana laws. This blog regularly refers to CA's current MMJ framework as "turd stew", because it's murky, it's unappealing, and it's not what any of us ordered.
As previously discussed here, California voters overwhelmingly approved Prop. 215 (commonly referrred to as the "Compassionate Use Act", or "CUA") in 1996, which exempted "qualified patients" from most marijuana-related laws. Those protections were extended in 2003 under SB 420 (also known as the "Medical Marijuana Program", or "MMP"). The MMP allowed patients to "collectivize" in order to help each other procure their medication. MMP "collectives" quickly evolved into storefront dispensaries that served walk-in "patients".
As dispensaries proliferated over the following decade, cities and counties struggled with many unforeseen effects of marijuana's quasi-legal status. In the absence of adequate zoning regulations, fly-by-night dispensaries sprung up (often without business licenses) in apartment buildings, near schools and in other sensitive locations. Neighbors complained about crime, traffic, noise, odors, and related concerns. Without any sort of legal oversight or inspection process, growers stole electricity by circumventing electrical meters. Unpermitted outdoor grows contaminated waterways and damaged sensitive fish spawning grounds. Meanwhile, patients had no way of knowing if their cannabis was tainted with pesticides (or actual pests), mold, etc.
Cities and counties experimented with various methods of controlling the heretofore unchecked proliferation of storefront dispensaries. As previously discussed on this blog, the city of Long Beach implemented a lottery system, whereby applicants paid huge fees for a chance to win one of a limited number of "dispensary licenses". Other cities imposed zoning restrictions or prohibited the shops altogether. Californian patients were left with a mishmash of local laws that varied wildly from town to town.
Ambiguities within the existing laws were filled in by the courts, sometimes with contradictory results. Consequently, there is still very little agreement in California today over what the various laws actually mean. This is, in a nutshell, how we achieved today's current state of "turd stew" -- just a big, steaming bowl of something we don't even recognize.
As if things weren't bad enough already for Californian medical marijuana patients, enter the DEA. The Obama administration began an aggressive new policy of targeting medical marijuana collectives in 2011. Publicly, the Justice Department stated that it would not go after any clubs that were in "clear and unambiguous compliance with state laws". Unfortunately, NOBODY is in "clear and unambiguous compliance" with CA law because nobody understands what CA law actually is. As a result, every clinic in CA is subject to a federal raid at any time. This has created a climate of fear and uncertainty among dispensary operators and patients.
Fortunately, help could finally be on the way. Assemblyman Ammiano, longtime friend of the decrim community, has introduced a prescription that could help alleviate MMJ's growing pains. His proposed law, AB 473, would allow the state's Department of Alcohol Beverage Control (the "ABC") to create reasonable rules and regulations to more uniformly govern the cultivation and distribution of medical marijuana. The bill would impose uniform fees and taxes upon businesses engaged in the sale of marijuana. Proceeds derived from those fees would be deposited into a "Medical Marijuana Fund", which would then be used to administer and enforce the law. The ABC would be charged with ensuring the safety of cannibis provided to patients, as well as preventing harmful cultivation practices and the diversion of marijuana for non-medical uses.
Quintin Mecke, former spokesman to Assemblyman Ammiano, recently told the Huffington Post that the DEA was using the lack of statewide regulation as a justification to enforce a crackdown on local cannabis clubs. Said Mecke, "If we create regulations, we've removed every reasonable explanation on their part to justify the crackdown."
CA NORML and other patient groups have unanimously endorsed the proposed bill. Medical marijuana advocates hope that new regulations will ensure safe access to medical cannabis while helping to reduce or eliminate many of the negative effects that dispensaries have had on communities and preventing future hostile action from the DEA.
The bill is slowly winding its way through committee now. It cleared a major hurdle in April when the Committee on Public Safety voted to recommend its approval. The bill now goes back to the Committee on Appropriations for further amendments and analysis of the law's fiscal effects.
AB 473 has the potential to create a huge impact on CA MMJ law by ensuring public safety and reducing many of the harms currently associated with the medical marijuana industry. We can expect a long, arduous fight as this bill works its way through the legislature. Police unions have joined forces with the California District Attorneys Association to aggressively lobby against the proposed legislation. Of course, the law enforcement industry will always oppose any common sense approach to marijuana policy reform.
It's too soon to guess whether AB 473 will ever even make it to the floor of the Assembly for a vote. When (if) the bill ever makes its way out of committee, there remains the chance that amendments, riders, addenda and "tweeks" will render the legislation unrecognizable. That's what makes this whole process so exciting!
Stay tuned for updates as they become available. Thanks for reading.
Tuesday, May 14, 2013
Freshly Squeezed Legal Analysis
OJ Simpson is in a Nevada courthouse this week to argue that his kidnapping and robbery convictions should be overturned. The appellate brief outlines 22 separate grounds on which the judge may find that OJ's trial was flawed. The major point raised on appeal, and the point I want to focus on here, is OJ's claim of "Ineffective Assistance of Counsel", or "IAC" for short.
As we all remember, OJ Simpson was arrested in 2007 on suspicion of several robbery and kidnapping-related offenses. He was accused of leading a group of men who entered a hotel room to demand the return of some memorabilia from a collector. OJ claimed that the items had been stolen from him and were his rightful property. During the confrontation, two members of OJ's group brandished firearms while OJ threatened the collector. He was convicted of 10 felony counts the following year and was sentenced to 33 years in prison. OJ will become eligible for parole in 2017 after serving at least 9 years in custody.
OJ's new legal team will now argue, among other claims, that the former USC standout did not receive a fair trial because his former attorney acted incompetently. The 6th Amendment to the US Constitution assures that criminal defendants have the right to assistance of counsel. Over the years, that assurance has been interpreted by the courts to mean "effective" assistance of counsel, not just a warm body to sit at the table next to the defendant. Whenever a criminal defendant is represented by a licensed attorney, that attorney is presumed to be competent and "effective". The very heavy burden of proving IAC, then, falls on the appellant (the person seeking to overturn his conviction).
In order to prove IAC and win a retrial, the appellant must prove 2 things:
1) That the attorney's conduct fell below an "objective standard of reasonableness", and
2) That, but for the attorney's unprofessional conduct, there is a reasonable probability that the outcome of the trial would have been different.
These two elements are called the "Strickland Standard", because they were first elaborated in the case of Strickland v. Washington, 466 U.S. 668 (1984). The argument is raised often on appeal because everybody sitting in jail blames his or her attorney. IAC claims are rarely successful, though, because of the very high burden of proof that is placed upon the appellant.
The first prong of the Strickland test requires the appellant to prove that his attorney's conduct was "objectively unreasonable". This requires some showing that the attorney either acted under some actual conflict of interest, or else that his conduct was so outrageous that NO competent attorney ANYWHERE would EVER engage in such unprofessional behavior. The court will generally afford great deference to an attorney's strategic, game-time decisions and will not second-guess a lawyer's judgement calls just because those decisions turned out poorly. Attorneys often take calculated risks that don't obtain the results we had hoped for. This is the legal equivalent of pulling your goalie toward the end of the game -- risky, but not necessarily crazy if there is some articulable explanation for taking that risk. The appellate court will not find IAC just because, with the benefit of hindsight, we now know that a particular strategic decision was a bad one.
If the court finds that the first prong is satisfied and that OJ's former attorney, John Galanter, acted extremely unprofessionally, the analysis doesn't end there. Now we move on to the second prong. Did Galanter's bad decisions really affect the outcome of OJ's trial? Remember, it's not enough just to show that your attorney acted in an "objectively unreasonable" manner. The appellant must also show that, if his attorney had demonstrated basic competence, there is a good chance that the appellant would be on the golf course and not in a jail cell. This is harder to prove than it sounds. Courts have denied IAC claims even where defense attorney was drunk during the entire trial, where the attorney slept while the prosecutor cross-examined the defendant, and where the attorney suffered from delusions and mentioned his delusions during opening remarks. In those cases, courts found that the attorney did, in fact, commit unprofessional conduct, but that the conduct probably did not affect the ultimate outcome of the trial.
We'll be watching closely to see how this all plays out. If we've learned anything from history, it should be that legal analysts are almost always wrong when the Juice is in the backfield.
Did John Galanter commit some unprofessional misconduct? If so, did that misconduct actually affect the outcome of OJ's trial?
Stay tuned for updates as they become available. Thanks for reading.
Wednesday, April 10, 2013
CA Court Rules: U Can't Touch This [Cell Phone While Driving]
An appellate court in Fresno recently took up the question of what it means to "use" a cell phone while driving.
Section 23123 of the California Vehicle Code reads as follows:
A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving. (Section 23123.5 specifically addresses texting while driving).
The facts of the case were undisputed: Steven Spriggs, the appellant, had been cited for using his phone's map application while driving. In January of 2012, Mr. Spriggs was stuck in a traffic jam caused by road construction. He reached for his iPhone and pulled up the map application to check traffic on alternative routes. A highway patrolman spotted Mr. Spriggs holding the phone and glancing at the device's screen, and Mr. Spriggs was cited for violating VC 23123 -- "using" a wireless telephone while driving.
Mr. Spriggs appealed his traffic citation on the grounds that he was not "using" a phone, he was simply looking at a map. The legislature, he argued, intended to prohibit electronic communication, not map glancing. It would be more distracting, but perfectly legal, to unfold a Thomas Guide while driving. Why should a small, digital map be treated differently than a large, paper map? The court was unmoved.
Citing the legislative history of the statute, the court found that "the primary evil sought to be avoided was the distraction the driver faces when using his or her hands to operate the phone. That distraction would be present whether the wireless telephone was being used as a telephone, a GPS navigator, a clock or a device for sending and receiving text messages and emails...If the Legislature had intended to limit the application of the statute to 'conversing' or 'listening and talking', as appellant maintains, it could have done so."
Did you hear that? The court found that you may be cited for using your phone as a clock while driving. Even glancing at the time on your phone is now punishable by a $159 ticket (a $25 fine + court costs, mandatory state penalty assessments, etc. = $159+).
On the bright side, the state should be closing its massive budget deficit any day now...
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