Use of Force by Police During the Dorner Standoff: Legally Justified?

This past Tuesday, February 12, deputies from the San Bernardino County Sheriff's Department cornered fugitive murder suspect Chris Dorner in a Big Bear vacation cabin.  Dorner had been on the run for nearly a week after allegedly murdering two people in Irvine and then shooting two police officers in Riverside, one of whom later died from his wounds.  After being surrounded in the cabin, he apparently attempted to shoot his way out at least twice, fatally wounding another officer.  Details are still emerging about the precise timeline of events in the standoff that followed, but it appears that the SBSD eventually opted to deploy some heavy-duty CS gas into the cabin.  Within minutes of deploying the incendiary gas, the entire structure became engulfed in flames.  No attempt was made to extinguish the blaze as the cabin was consumed by the fire.  A body later discovered in the burned out rubble was determined to be Dorner's.

The usual cast of characters has now squared off to allocate blame / thanks / condemnation / praise.  The "back-the-badge" crowd has lauded the bravery of the heroes who selflessly gave their own lives to protect ours.  The good folks over at CopBlock.org blame the militarization of police in general for this debacle.  They accuse the SBSD of acting as judge, jury and executioner and question whether or not any effort was really made to take Dorner alive.

I want to spend some time analyzing the use of force by police in this situation to determine whether or not the burning of the cabin was legal or justified.  Of course, the San Bernardino County Sheriff John McMahon has publicly denied that his deputies intended to ignite the fire.  Transcripts from police scanners at the time contradict this official explanation.  Just before the incendiary gas canisters were deployed, officers were heard saying over their radios, "We're going to go forward with the plan, with the burner...seven burners deployed...and we have a fire".

Of course, not enough information has been made public to determine whether or not the Sheriff's Department started this fire intentionally.  For the sake of discussion, let's assume that they did, or at least that the SBSD knew that launching CS gas into a wooden cabin was likely to ignite a deadly blaze.

First-hand witness accounts also suggest that Dorner actually took his own life with a single self-inflicted gun shot to the head as the cabin burned around him.  I realize, therefore, that Dorner was not DIRECTLY killed by police.  Based on the limited information available, we can surmise that the fugitive died at his own hand, but that the SBSD also deployed their own "lethal force", and it is this use of potentially lethal force by police that I want to examine.

So assuming that the SBSD either intentionally lit the blaze, or else simply ignored the known risks that are inherent when igniting a flammable gas inside a flammable structure (the definition of "recklessness"), was that use of deadly force "legal" or "justified" under the circumstances?  Let's look at the laws.

Starting with the obvious: murder is illegal, even if committed by the police (see previous posts re: Kelly Thomas).  Of course, not all killing is "murder".  There are many circumstances under which police may lawfully employ deadly force in dealing with dangerous fugitives.  CALJIC 5.26 reads in relevant part:

Homicide is justifiable and not unlawful when committed by a public officer...when necessarily and reasonably committed in arresting any person charged with a felony, and who is fleeing from justice or resisting arrest.  

Now we break that down, element by element:

"Public Officer" includes any law enforcement personnel, like deputy sheriffs and local police.

"Necessarily and reasonably committed" is up for some argument.  Were any other options available to the officers?  This is a question that I'm not equipped to answer.  Considering that the cornered fugitive allegedly fired hundreds of rounds at the police during the standoff, killing one, I think that a judge is extremely unlikely to second-guess the tactical decisions of commanders on the ground.  Daylight was fading and officers feared that Dorner might have night-vision goggles, which could have given him a major advantage in the dark.

"Charged with a felony" is pretty self-explanatory.  The District Attorneys from both Riverside and Orange County had filed murder charges against Dorner before the standoff began.

"...who is resisting arrest" also seems pretty well-established.  Again, Dorner was actually shooting at officers who had the cabin surrounded.  He had already killed two other officers during the manhunt and had demonstrated his intent to kill others.

Based on the letter of the law, I believe that the police were legally justified in using deadly force against Dorner.  I am not a tactical expert and have never served on a SWAT team, so I will leave all counter-factuals to other armchair quarterbacks.  Rather than arguing the strategic merits of burning down the home, I want to focus on the law of the matter.  Did the police "murder" Dorner (or at least break the law by intentionally employing deadly force)?  I don't believe that they did.

Mark your calendars: I am defending the police here.  And I'm not alone on this one.  David Klinger is a use-of-force expert at the University of Missouri at St. Louis.  He told the LA Times, "What difference does it make if one of the officers puts a round in his head, drives the armored vehicle over his body when they're knocking the building down, or he dies in a conflagration?  If he is trying to surrender, you can't do any of those things.  But if he is actively trying to murder people, there's no doubt that deadly force is appropriate and it doesn't matter which method is used to deliver it".

Sorry, CopBlock.org.  No hard feelings, just the law.  I gave you a couple links if that helps.

Am I missing the point?  Feel free to comment below.  Thanks for reading.

The Gun Control Debate: Some Statistics

The latest hot topic in the news these days has been the debate over gun control.  At issue is who should be allowed to possess which weapons, and under what circumstances?  Everyone seems to have a strong opinion backed by their own handpicked (and often conflicting) statistics.

This post is not intended to resolve the debate over gun control.  In fact, it's not even intended to persuade you either way.  Pick a side, either side, I don't care.  Rather, I've taken this opportunity to disseminate some facts that you can use next time you hear someone making up their own numbers to prove whatever point they're trying to make.  Knowledge is the best weapon.  I'm here to arm you with some fully-automatic, armor-piercing truth.

In the past couple weeks, I have heard such varying numbers from zealots on both sides of the debate that I decided to devote some time to doing my own research.  Luckily, the FBI publishes detailed yearly reports on virtually every aspect of any imaginable crime perpetrated anywhere in the country.  The reports are available for free at FBI.gov.  The following are some numbers that the FBI reports.

In 2011 (the last year for which stats are available), there were 12,664 murders in the US.  That number does not include "justifiable homicide" (e.g. police who lawfully kill suspects in the line of duty, etc.).  Of those 12,664 murder victims, 6,329 were Black (49%) and 5,825 were White (45%).  The remaining 6% of victims were some other race.  9,829 were male (77%).  The remaining 23% were female or undetermined.

Firearms were the most common weapons used to commit murder.  8,583 people were murdered by guns in 2011 (67% of all murders).  Of those gun murders, 6,220 involved handguns (72% of all gun murders and 49% of murders overall).  Rifles were only used in 323 US murders from 2011 (only 3.7% of gun murders and 2.5% of murders overall).  18 states had 1 or fewer murders involving rifles.  There are no available stats to indicate how many of the rifle murders involved "assault-type" rifles vs. traditional hunting rifles.  According to the FBI, you are 5x more likely to be stabbed to death, and 2x more likely to be beaten to death, than you are to be killed with a rifle.

The FBI also sorts their murder numbers by region.  If you want to decrease your chances of getting stabbed, move to the Midwest.  Only 9% of their murders involved knives or cutting weapons.  Compare that to the Northeast, where 16% of the murders involve stabbing.  While the Midwest claims the lowest relative murder rate by stabbing, they have the highest relative murder rate by firearms (71% compared the national average of 67%).

California had the highest number of total murders at 1,790 (take that, Texas!).  Hawaii had only 7 murders all year.  Of California's 1,790 murders, 1,220 involved firearms (68%).  866 of those involved handguns (48%).

So what have we learned?  The biggest stat that jumped out at me was how FEW people are actually killed with rifles every year in the US.  I found that surprising.  Spree killers armed with high-capacity assault rifles grab headlines, but they are responsible for only a negligible, statistically irrelevant number of killings every year.  As I mentioned above, there were 18 states in the US that experienced 1 or fewer rifle murders for the entire year of 2011.  Guess how many people were killed by sniper attack in the US last year.  Give up?  1.  1 person in the entire country was murdered by a sniper in 2011.  According to the American Journal of Medicine, about 16,500 people are killed every year by Aspirin.  You heard it here first: you are 16,500x more likely to be killed by Aspirin than you are to be killed by a sniper.

Regardless of your position on gun control, we can probably all agree that 8,583 gun-related murders are too many.  We should also agree that limiting access to rifles is not the most efficient way to reduce the overall number of gun deaths in this country.  Disagree?  As always, please feel free to comment below.  Thanks for reading!

If you or a loved one has questions about the law regarding firearms in California, call us for a free attorney consultation.  (714) 505-2468.  Ask for John.

Santa Ana Gun Lawyer

Three Little Piggies Went to Court

Three of Fullerton's Finest appeared this morning before Judge Froeberg in Department 40 of the Orange County Superior Court.  The case had been scheduled for a "995 Motion" (more on that below).  After taking brief statements from District Attorney Tony Rauckauckas and counsel for each of the defendants, parties stipulated that the hearing would be continued to January 18.

Officer Manny Ramos (top left) stands accused of Murder and Involuntary Manslaughter.  Corporal Jay Cicinelli (top right) is accused of Involuntary Manslaughter and Assault & Battery by a Police Officer.  Officer Joe Wolfe (bottom) faces the same charges as Cicinelli.  All three are accused of causing the death of mentally ill homeless man Kelly Thomas during a brutal confrontation last July at the Fullerton Transit Center.  The beating was captured on city-operated cameras.  During the beating, Kelly can be heard crying for help and repeatedly apologizing to the officers before he takes his last breath.

Ramos is accused of instigating the confrontation by threatening Thomas.  At one point in the video, Ramos is seen putting on latex gloves.  He says to Thomas, "See these fists?  They're getting ready to fuck you up."  At one point after receiving the threats, Thomas attempted to run from Ramos.  Officer Wolfe was the first to strike Thomas with a baton, quickly taking the 130-pound Thomas to the ground.  Cicinelli arrived on the scene after the beating had already begun.  Cicinelli deployed his taser into Thomas several times, then began using the butt of the weapon to pound the victim in the face repeatedly (I suspect Cicinelli is going to learn something about "butt pounding" where he's going).  Cicinelli can be heard on the audio recording saying "I just started smashing his face to hell".  Thomas died after being removed from life support 5 days later.

As I have explained in prior posts, every felony defendant has a right to a "probable cause" hearing.  The purpose of this hearing is to determine whether or not there is enough evidence that a reasonable jury MIGHT possibly vote to convict.  If there is not, we should stop wasting the court's time and the case should be dismissed.  If there is, then we must start preparing for an eventual trial.

There are two ways for the court to determine whether or not "probable cause" exists.  The first and most common way is by conducting a "preliminary hearing" (also commonly referred to a "preliminary examination", "prelim" or just "PX").  At the PX, the DA will present most of their case-in-chief.  Typically, an investigating officer will take the stand and say something like this: "I received a call of a domestic disturbance.  When I arrived at the residence, the victim had a bloody lip and the suspect had blood on his hands.  Witnesses told me that the suspect had punched the victim, so I arrested the suspect.".  After hearing the evidence, a judge will typically find that probable cause exists and the defendant is thereafter "held to answer" to the charges.

The other (and must more rare) way for probable cause to be established is by a Grand Jury.  The Grand Jury is group of volunteers who sit on the panel for one-year terms.  They meet in secret to review the facts and to decide whether or not sufficient evidence exists that a suspect could be convicted of a particular crime.  If they decide that probable cause exists, the defendant is thereafter "indicted" for the crimes.  The Grand Jury is more expensive and time-consuming than the PX, so it is only used in very sensitive cases or cases wherein the suspect is a public figure.  The DA may be reluctant to publicly charge a politician with some wrongdoing unless he is confident that the charges will actually stick.  In cases like these, prosecutors can opt for the secrecy of the Grand Jury rather than the usual PX.

In this case, Ramos and Cicinelli were initially charged in the typical manner.  They were publicly accused and subjected to a PX.  After hearing the evidence, a judge determined that probable cause existed and both were thereafter "held to answer" for their crimes.  Wolfe, however, was indicted by the Grand Jury several months later.  This, to me, suggests that DA Tony Rackauckas was reluctant for some reason to publicly charge Wolfe with the serious crimes alleged.  Rather than risking a political firestorm by filing excessive charges and running the risk that some could be dismissed, he instead opted for the Grand Jury route.  If the Grand Jury had determined that there was no probable cause, Officer Wolfe would never be charged and could be spared the public embarrassment of such an accusation.  Of course, the Grand Jury did return an indictment and Wolfe now stands next to Ramos and Cicinelli as all three await trial.

We know that 5 Fullerton Police Officers were involved in the beating that killed Kelly Thomas.  Many in the community have called for charges to be brought against the remaining two, but the DA has declined to do so.  Of course, we will never know if Rackauckas has presented those cases to the Grand Jury.  It is entirely possible (pure speculation) that the DA HAS presented those suspects to the Grand Jury and the Grand Jury has declined to indict because they found no evidence of wrongdoing.

Long story short, probable cause has now been established against all three accused officers.  Their defense attorneys have filed documents called "995 Motions".  A 995 Motion essentially asks the judge to dismiss a case after the PX if a defendant has been unlawfully "held to answer".  The defense is arguing that errors were made at the prelim (or, in Wolfe's case, at the Grand Jury) and that probable cause was found where none actually existed.  The 995 is always a long-shot and never really very likely to succeed.  Failing to file the motion would probably be considered malpractice on the part of the defense attorneys, though.  It's kind of a proverbial "shot in the dark", but one worth taking.

Today had been the day for argument on the 995 motions.  Defense attorneys for the accused asked the judge for more time, however, because the evidence is voluminous and the issues are complicated.  By stipulation of the parties, it was agreed that argument would be postponed until January 18, 2013.  Ron Thomas, father of the victim, addressed the court to oppose the continuance, but Judge Froeberg allowed the delay over Mr. Thomas' objection.

The defendants exited the courtroom immediately after the ruling.  They were flanked by a large group of family and supporters, including armed escorts.  An overweight Hispanic woman, presumably Ramos' wife or a female relative, was seen taunting Kelly's family as the crowd spilled into the hallway.  Ramos laughed and told her "You're funny" as he stepped into the elevator.

Check back on January 18 more another exciting update to the saga.  I will continue covering this story until there is justice for Kelly Thomas.

Is Facebook Secretly Selling Your Instagrams to the Russians?...and other reasons to freak out for no reason.

Today's post is a bit of a departure for this blog.  I know many of my readers direct their web browsers here for the most up-to-date, insightful commentary on current developments in the world of criminal law, but I've decided to go a different direction today.  This post is instead dedicated to yesterday's magnificent collision of intellectual property law, social media and a good-old-fashion internet hoax.

If you logged onto Facebook yesterday and you have more than 3 or 4 friends, you probably saw the following message pasted onto at least one status bar:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times!

(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place

 them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates.

Of course, cutting and pasting this message onto your Facebook status carries absolutely no legal relevance (except to formally notify all your friends that you are gullible).  It essentially has the same legal effect as posting "I hereby declare that all rules, laws, international conventions and treaties do not apply to me except the ones that I imagine."

It does not require an expensive legal education to spot a hoax like this.  Several "red flags" should jump out at anybody who has ever tried to read the legalese on a mattress tag.

For starters, have you ever read a legal document that used exclamation points?  There is no need to yell when crafting air-tight legal disclaimers.

Next, you might have noticed that there is no such thing as "the Berner Convention".  The Berne Convention is a real thing, but its signatories probably didn't have Facebook in mind when they ratified the treaty in 1886.  The Berne Convention was an agreement by member nations to recognize copyrights granted by all other signatories.  It focused on artistic and literary copyrights, but expressly excluded photographs.  If you have a copyrighted photo of yourself making a duck face in a bathroom mirror and you post it to Facebook, don't expect the Berne Convention to protect your "intellectual property".

By now you're probably wondering what the UCC (which stands for "Uniform Commercial Code") has to do with any of this.  The answer is nothing.  Don't ask my why the author threw it in there.  The UCC is a huge body of model laws governing any sort of commercial transaction you can possibly imagine.  A bunch of lawyers and academic types got together and drafted a set of rules that make a lot of sense when conducting almost any sort of business.  Every jurisdiction in the US has based their commercial codes on the UCC, some more loosely than others.  No jurisdiction in the US has adopted the UCC in its entirety.  And again, it is completely irrelevant to any instagrams of food that you post to Facebook.

This brings us to the Rome Statute.  The Rome Statute established the framework for the International Criminal Court (the "ICC").  The ICC was formed in 1998 to prosecute genocide, war of aggression, and other crimes against humanity.  To date, the ICC has not prosecuted a single case involving misappropriation of instagrams.

And finally, we must address the assertion that Facebook is now an "open capital entity", and that this has some effect on the pictures of cute animals that you have been busy posting.  If there were such a thing as an "open capital entity", we could all imagine what this would mean for Farmville.  Luckily, there isn't.

Stay tuned for more exciting idiocy as it happens.

Election 2012: What's New in Criminal Law?

Last night, voters turned out to decide the future of the country.  Here at the SoCal Law Blog, our interest was devoted to a few ballot initiatives with special implications for criminal justice in California and around the nation.  I've summarized some of these developments below:

-Prop. 34 (California): Would have abolished the death penalty in CA and replaced it with "life-
without-parole".  The measure would have also transferred $100 million from the State to local law enforcement agencies to help investigate cold cases.

Proponents of the measure argued that CA's death penalty system is expensive, dysfunctional, discriminatory, inhumane, and just plain ineffective as a deterrent.  Opponents were backed by various law-enforcement and victims' rights groups.

The measure failed by a margin of 52.8% to 47.2%.  Looks like we will have a (nominal) death penalty in the Golden State for at least 4 more years, when this issue will almost certainly come before voters again.


-Prop. 35 (California):  Increases penalties for human trafficking, requires convicted traffickers to register as sex offenders, and requires registered sex offenders to disclose details regarding their internet usage.

This one passed by a huge margin of victory.  No real surprises here.  Who votes against such a no-brainer?  This guy, for one.

Prop. 35 is a "feel-good" measure that will make people feel like they're making a positive difference (as are most criminal-justice related ballot proposals), without really making any important changes to protect children from becoming victims of sex abuse.  The activities punishable under this act were already illegal before its passage.  This measure merely represents our collective disgust with sex traffickers and not an actual policy shift to help stop that activity.

Sex offenders on probation or parole must already cooperate with any reasonable directives of their supervising probation / parole officers.  This supervision already includes monitoring of the sex offender's internet activity.

Prop. 35 requires that any person who derives income from the work of prostitutes must register as a sex offender.  The intent was to publicly "out" pimps and others who earn their livings by managing sex workers.  The lead opponent of the measure, Maxine Doogan, is a professional "erotic service provider" (her euphemism, not mine).  Since Ms. Doogan provides financial support for her adult son while he attends college, she fears that he could be prosecuted and required to register as a sex offender for life, simply for accepting support from his prostitute mom.  See how good intentions can have counter-intuitive results?


-Prop. 36 (California):  Amends the "3 Strikes" law so that a 3rd, minor felony will not automatically result in a "25-to-life" sentence.  It also passed by a comfortable margin.

California's 3 Strikes law currently works as follows:  if an individual has two prior convictions for certain, enumerated "serious or violent" felonies (e.g. rape, assault with a deadly weapon, residential burglary, etc.), ANY third felony would automatically result in a prison sentence of 25 years to life in prison, regardless of how serious or petty the third felony is.

Many people are currently serving life sentences in California for very ticky-tacky 3rd "strikes".  For example, petty theft can be charged as a felony if the defendant has a prior misdemeanor conviction for petty theft.  If you've got two prior strikes and a misdemeanor conviction for stealing a candy bar, stealing another candy bar will land you behind bars for the rest of your natural life.

Similarly, "Commercial burglary" can also be charged as a felony.  The crime of commercial burglary is defined as "entering property, other than an inhabited dwelling, with the intent to commit theft therein".  Walking into Walmart with a plan to shoplift is commercial burglary even if you don't actually steal anything.  This means that if you have two prior strikes and you walk into a Walmart with a plan to steal a pack of gum, you might as well shoot somebody in the face because the penalty for doing so would be the same (25-to-life either way).

There are many other seemingly-petty crimes that can be charged as felonies, or even as "strikes" in certain situations.  Stealing a bicycle out of an open garage, for example, can be charged as "residential burglary", which is considered a "serious or violent crime" and can be treated as a strike.

Prop. 36 amends this hyper-rigid sentencing scheme so that ALL THREE felonies must now be "serious or violent" in order to trigger the mandatory 25-to-life sentence.  A third conviction for a minor or petty felony will no longer automatically result in a life sentence.  This common sense approach will save taxpayers millions of dollars every year in prosecution and incarceration costs.  It grants more flexibility to District Attorneys and judges and it better serves the interests of justice by making the punishment fit the crime.


-Amendment 64 (Colorado):  Amends the State Constitution to allow for the personal and recreational use of marijuana by adults 21 and older.  Directs the legislature to implement a system to regulate the production, sale, and taxation of marijuana.

Congratulations to the people of Colorado!  On Tuesday, November 6 you became the first jurisdiction in the history of the world to repeal marijuana prohibition by popular vote.  Amendment 64 represents a huge step towards finally adopting a more rational policy regarding drug use in this country.  Hopefully, your achievement will soon be mirrored throughout the western states.

Cracks have begun to appear in the great dam of prohibition.  Alcohol prohibition finally failed once states began to thumb their noses at the federal government and repealed local booze bans.  When the dominoes started to fall, Uncle Sam just couldn't afford to continue his wasteful, failed War on Alcohol.  Drug policy reformers are now mimicking the strategies that worked in the 1930s.  The strategies still work, prohibition still doesn't.

Once again, way to go, Colorado!


-I-502 (Washington):  Three short hours after Colorado passed Amendment 64, Washington voters approved I-502, effectively legalizing marijuana in that state, too.

Like Amendment 64 in Colorado, I-502 removes criminal and civil penalties for the adult possession of limited quantities of marijuana and marijuana-laced products.  It also directs the state's Liquor Control Board to draft regulations regarding licensing for growers and distributors.

I-502 generated a lot of debate and contention within the marijuana legalization community because it includes a very controversial provision regarding driving under the influence of marijuana.  Under I-502, the state will impose a threshold "per se" blood-level for delta-9 THC, marijuana's psychoactive ingredient.  Any person caught operating a motor vehicle with greater than 5 ng / ml of THC in his or her blood will be deemed guilty of "driving under the influence of marijuana".

We all agree that driving while stoned is certainly dangerous and could impair one's ability to safely operate a vehicle, but many activists and experts feel that the 5 ng / ml limit is arbitrary, ridiculously low, and really not based on any reliable science.  Most studies indicate that a person would remain well above that level for 12-24 hours after smoking.  If you take a toke before bed, you could be arrested for DUI while driving to work the next day.  Daily smokers would almost never fall under the legal threshold to drive a car.

It will be interesting to see how this all plays out!  Watch for updates as the feds almost certainly sue to prevent the full implementation of Amendment 64 and I-502.

Excuse Me, I Didn't Order This Turd Stew: CA's Convoluted Medical Marijuana Laws Get Weirder

My loyal readers will recall a post that I wrote in January of this year, entitled "Turd Stew Clarity on the Way?".  In it, I optimistically wondered aloud whether or not our court system would soon grace us with some clarity on California's medical marijuana laws and the myriad issues surrounding their implementation.  So far, the answer has been a resounding "no".

It remains the position of this blog that marijuana prohibition causes more harm than the drug itself.  The plant is safer than Tylenol, for christsakes.  All logic aside, however, the War on Drugs continues.  California's medical marijuana dispensaries have become the latest battleground in this war.

As discussed in prior posts, one major issue that cities and counties have grappled with is how to regulate and control the proliferation of storefront marijuana shops that have sprung up in residential communities, near schools and in concentrations thick enough to blight entire neighborhoods.  Towns across California have tried a variety of strategies: arresting operators and accusing them of illegal drug sales, using municipal ordinances to ban dispensaries from all or parts of the city, using code enforcement actions to shut down offenders, and even requesting DEA assistance.

Long Beach had a unique approach to regulating the proliferation of dispensaries.  It used a lottery system, whereby hopeful operators paid astronomical fees for the privilege of the application.  15 lucky winners of the lottery were granted licenses to operate storefront dispensaries in the city.  A fellow named Pack who did not win a license (and was, therefore, barred from operating a dispensary within the city), sued Long Beach, claiming that their licensing system was illegal and was preempted by federal laws.  Federal law flatly criminalizes any marijuana use or sale and trumps any inconsistent state or local laws.  Since Long Beach's licensing system essentially granted permission for 15 operators to violate federal laws, the entire licensing system was found to be void by an appellate court.

Think about what that means: since marijuana is illegal federally, cities may not attempt to regulate the proliferation of storefront pot shops (what?).  Pot-friendly cities may simply decide not to devote city resources, i.e. police, to shutting the clubs down, thereby creating a de facto local "legalization", or else they may ban clubs entirely, but they may not place restrictions on the clubs, and they definitely can't issue licenses.

As the Pack case slowly wound its way through the courts, the City of Long Beach replaced its licencing system with a flat prohibition on all storefront marijuana dispensaries.  By the time the case finally reached the CA Supreme Court this week, the entire issue was moot because the law in question no longer exists.  No sense in arguing about something that doesn't exist anymore.  Case dismissed.

So where does this leave us?  On first glace, you'd be tempted to say that the appellate decision stands and that cities may not attempt to regulate the proliferation of storefront pot shops (what I call "the all-or-nothing approach").  But, like most things in the law, it's more complicated than that.  See, a legal case can only be cited to as a precedent if the case has been ordered "published".  "Unpublished" cases have no value as precedent and cannot be cited to in future cases.  The appellate decision in Pack was briefly published, but it automatically became unpublished by operation of law when the Supreme Court decided to hear it.  After the SC rendered its decision to throw out the case entirely, it never specifically ordered that the appellate decision be re-published.  That appellate decision, therefore, has exactly zero value as a precedent today and cannot be cited to.

...and so we're right back where we started, just looking down at this steaming bowl of turd stew that we didn't order.

Vigilante Justice, Part II: The Citizen's Arrest

Update:  http://latimesblogs.latimes.com/lanow/2012/08/lancaster-residents-help-nab-suspected-serial-burglar.html  This article was posted in today's Los Angeles Times.

I had so much fun with my previous post on "Vigilantism and the Law" that I've decided to devote a series of posts to some of the legal issues surrounding vigilantism.  For part II in my series, I've chosen to write a little bit about the legalities of the "citizen's arrest".  As a case study, I've selected a recent incident that took place aboard a subway train in Brooklyn, New York (*Disclaimer:  I am licensed to practice law in California, but not in New York.  Legal analysis of the subway incident will apply CA law, even though I understand that it did not occur in CA).  Today's course materials are available for your viewing pleasure here.

Here's the factual scenario: Around 9:30 PM on Friday, July 13, two women followed a young man as he boarded a train car at Brooklyn's Lorimer station.  They were pointing and yelling at the man, who they accused of sexually assaulting them on the train platform moments before the doors of the train car opened.  The women demanded that he exit the train and wait for police to arrive. Other passengers quickly joined in and helped the women physically drag the suspect from the train. Bystanders restrained him until arresting officers arrived.

This is the classic, textbook example of the "citizen's arrest".  By definition, a citizen's arrest occurs when a private person (rather than a police officer) takes another person into custody on suspicion of having committed some crime.

In the year 1872, the California State Legislature bestowed upon us sections 837, et seq., of the California Penal Code.  That series of laws provides a system by which non-sworn, private citizens may lawfully detain and arrest their peers if certain conditions are met.  Under PC 837, a citizen may arrest a suspect in any of the following situations:

-When the private person has actually witnessed a suspect commit or attempt to commit any crime (felony or misdemeanor) in his or her presence,
-When the person being arrested has actually committed a felony (regardless of whether or not it occurs in the presence of the arresting citizen), or
-When a felony has actually been committed (regardless of whether or not it occurs within the presence of the arresting citizen) and the person making the arrest has reasonable suspicion to believe that the suspect committed it.

"The person making the arrest must, on request of the person being arrested, inform the latter of the offense for which he is being arrested" (PC 841)

Penal Code section 839 further provides, "Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein" ("Hey, y'all, help me hold this guy!"). 

It gets even better.  "To make an arrest, a private person...may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired." (PC 844)

...And if you get locked INSIDE a suspect's house while making a citizen's arrest, PC 845 says that you may break open a door or window if necessary to get OUT.  Apparently, there was a time when California must have had a real problem with private citizens becoming trapped inside the homes of people that they had been attempting to arrest because the arresting citizen was reluctant to break down the door for fear of legal repercussions.  This problem must have become so dire that the legislature felt it necessary to pass a law authorizing such entrapped citizens to break doors or windows to escape.

Sworn peace officers DO enjoy a few more protections than the average man-on-the-street when making arrests, however.  For example, a peace officer cannot be held personally liable in a civil suit for false arrest if the officer acts with "reasonable cause" to believe that the arrest is lawful. You and I do not enjoy this qualified immunity.  If you or I attempt a citizen's arrest and we nab the wrong guy, we can expect to get sued.  Peace officers may also use "all necessary means" of force to effect arrests in certain limited situations, whereas private citizens may only use "such restraint as is reasonable".

Now, let's take what we've just learned and apply it to the above-mentioned subway incident. When the camera starts rolling, the two female victims have just witnessed a crime occur in their presence.  They had been sexually assaulted and they were attempting to restrain the suspect until police could be summoned.  Unfortunately for the women, they were physically unable to restrain the man because of his relative size and strength.  Fortunately for the women, however, Penal Code section 839 permitted them to summon "as many persons as [they deemed] reasonably necessary to aid [them]" in effecting the arrest.  They hollered and other subway riders sprung into action.  Several men physically dragged the suspect onto the train platform and held him until subway police responded to the scene and took the man into custody.

One thing that immediately jumped out at me about the incident is the surprising lack of force used to effect the arrest.  Several men grab the suspect by the torso and neck, but I did not see the degree of violence that might be expected in a "lynch mob-type" environment such as this. The suspect is manhandled and thrown to the ground, where he is restrained by strangers, but I could not discern a single punch thrown or any sign that excessive force was applied.  My impression was that the arresting citizens employed only a "reasonable" degree of restraint and did not apply anything near "excessive force".  As always, please feel free to comment and to tell me that I'm an idiot if you disagree.

Thanks for reading! Stay tuned for more fun and exciting legal news and analysis.  And remember, if you or a loved is arrested (by police or citizens), call us for a free attorney consultation.  (714) 505-2468.  Ask for John.

Orange County Criminal Defense Attorney