Reducing Opportunities to Discriminate by Limiting the Police’s Ability to Detain

Gov. Roy Cooper’s Task Force on Racial Equity recently released a report calling for widespread changes to address racial bias within North Carolina’s policing and criminal justice systems. “Black drivers are twice as likely to be pulled over as white drivers,” the report states, citing statewide law enforcement data, and “once pulled over, black drivers are twice as likely to be searched, yet less than 10% of these searches lead to arrest. These disparities contribute to the distrust of law enforcement in communities of color.”
By eliminating Pretext Stops and creating a two-tiered system of Primary and Secondary offenses, the opportunity to make racially motivated detentions by police would be reduced.

Pretext Stops

In a pretext stop, an officer pulls over a motorist for a minor traffic or equipment violation and uses the stop as an opportunity to investigate a completely different and unrelated crime. The Supreme Court ruled in Whren v. United States that pretext stops were constitutional regardless of the police’s true motive to search for drugs or other crimes as long as there had existed any minor traffic violation.
Although police insist the stops are useful for investigating drugs and weapons possession, human trafficking, and drunken driving, among other crimes, it is clear that black motorists especially young men have been subject to stops far more frequently than their white counterparts for petty traffic or equipment violations — failure to signal, broken license plate light, tinted windows and the like.
As part of the movement to curb police brutality, there is renewed interest in reducing, or eliminating, pretext stops, which studies have shown to be racially biased. “One of the things the George Floyd killing and other instances have made clear is police intervention can be highly problematic, especially for minority populations. Our legislative aim is to reduce the opportunity for law enforcement of minor infractions,” (Virginia state Sen. Scott Surovell)

Designating Minor Traffic Violations as Secondary Offenses

Lawmakers argued police often use the violations as a pretext to stop and search people they suspect of other crimes, enabling racial profiling. Cell phone cameras and police body cameras have shown us the disparity in the nature, tenor, and duration of police interactions with white drivers and passengers vs police interactions with black drivers and passengers. In an effort to reduce the opportunity for discrimination and disparate treatment, Virginia and Oregon have designated primary and secondary traffic offenses. If a secondary offense such as a broken taillight is observed with nothing more, the officer could not initiate a traffic stop.

Beginning March 1, 2021, Virginia police would be prohibited from making a traffic stop when they see vehicles with non-functioning brake and taillights, a broken or loud exhaust system, tinted windows, objects dangling from a rearview mirror, someone smoking in a car with a minor present or a state inspection that is less than four months past its expiration date. The police could only issue citations if a driver is stopped for a more serious infraction, such as speeding or reckless driving. The legislation also reduced jaywalking to a secondary offense.

Claire Gastañaga, the executive director of the ACLU of Virginia, said a study has shown that black Virginians are 3.4 times more likely than whites to be arrested on marijuana possession charges. That’s the case, experts say, even though studies show the races use the drug at similar rates. “We want to get police out of the business of hectoring people” on low-level violations “to get them on something else.”…“Having the police decide that they think somebody’s suspicious, so they’re going to pull them over for, you know, a Puerto Rican flag dangling from their mirror, and then trying to use that to bootstrap into a broader investigation, that’s what we’re trying to stop,” she said. “We’re trying to limit the interactions of police with Black and brown communities in Virginia who have been subjected to over-policing on a routine basis,” she said.

A recent ruling by the Oregon Supreme Court has banned a controversial policing practice: No longer can officers use a broken taillight or a failure to signal as a justification for scouting a driver’s car for illegal guns or drugs.
The ruling instructs officers to stick to questions “reasonably related” to the reason the driver was pulled over, effectively ending law enforcement’s ability to turn a routine traffic stop into a fishing expedition for a more serious offense.

As articulated by the Governor’s Task Force for Racial Equity, North Carolina’s citizens deserve to be protected from over-policing and arbitrary enforcement of traffic laws. Ending pretext stops and developing a two-tiered system wherein minor traffic infractions are deemed secondary and cannot, in and of themselves, form the basis for a traffic stop will constitute a positive step towards a more just treatment of minority drivers.
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1. Doran, Will and Bridges, Virginia, https://www.newsobserver.com/news/politics-government/article247828785.html/eedition?fbclid=IwAR0eVuipF5E-N6gtRPY0_mZQN6mIo85RMXJCwQf_sr93zTbB7-nkK_NhOtc, https://www.nyu.edu/about/news-publications/news/2020/may/black-drivers-more-likely-to-be-stopped-by-police.html

2. “Police ‘Pretext’ Traffic Stops Need to End, Some Lawmakers Say, September 3, 2020, By Marsha Mercer
https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/09/03/police-pretext-traffic-stops-need-to-end-some-lawmakers-say

3.Https://www.virginiamercury.com/2020/10/02/virginia-lawmakers-pass-bill-banning-pretextual-traffic-stops-and-searches-based-on-the-smell-of-marijuana/

The Legal Basis Behind Face Mask Mandates

As of today, June 28, 2020, the total number of COVID-19 cases in the U.S. is 2,504,175 of which 44,703 are new cases compared to yesterday’s data. The total deaths in the U.S. are 125,484 of which 508 are new deaths compared to yesterday’s data. (www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fsummary.html)

Given the fact that COVID-19 is a global health crisis, does a person have a constitutional or legal right not to wear a mask if the wearing of a mask is mandated? The answer is “no.” State and local government has broad and primary authority to issue orders to protect the health and welfare of the people and control the spread of dangerous diseases within their jurisdictions. The 10th Amendment of the U.S. Constitution, which gives states all powers not specifically given to the federal government, is the source of the authority to take all public health emergency actions, such as setting quarantines, ordering the wearing of masks and business restrictions.
State and local governments are primarily responsible for maintaining public health and controlling the spread of diseases within state borders. The state public health emergency preparedness powers and laws authorizing quarantine and isolation through the state’s health authority vest the governor with the authority to mandate the wearing of masks.
Governor Cooper has issued a state wide mandate that requires most North Carolinians to wear masks in most public settings. This order is based upon the public health officials’ professional opinions that masks can prevent wearers, whether or not they are symptomatic, from spreading the virus to others. So unlike laws which focus the person who uses the protection such as seat belt laws or requiring helmets when riding a motorcycle, the mask requirement protects other persons from the mask wearer. The mask requirement is analogous to anti-smoking laws which are designed to protect those persons in the vicinity of the smoker from second-hand smoke as opposed to the smoker.
Governor Cooper’s statewide mandate supersedes any conflicting city or county from overruling the mask requirement because of the preemption doctrine. The preemption doctrine states that a higher authority of law will displace the law of a lower authority when the two authorities come into conflict. Consequently, cities and counties are not permitted to tell their residents to ignore the mask requirement.
Additionally, an employer can require the wearing of a face mask based on Occupational Safety and Health Administration statutes.1
Beyond the mask mandate, the state as well as the CDC can quarantine and isolate those who refuse test positive and refuse to wear masks and or self-quarantine. N.C. Gen. Stat. § 130A-145, Title 42 of the US Code, The Public Health and Welfare Service Act, Chapter 6A, sec. 264 in the regulations to control communicable diseases.2

So, in conclusion, claims that mask orders are violative of personal freedoms is misplaced. The interest of the state and local authorities as well as employers in maintaining the health and welfare of the residents and workers is paramount.

___________________________________Footnotes___________________________________________________________________
1 “Employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from SARS-CoV-2, the virus that causes COVID-19. Employers may choose to use cloth face coverings as a means of source control, such as because of transmission risk that cannot be controlled through engineering or administrative controls, including social distancing.”

2 Quarantine or isolation can be imposed for 30 days. The individual so restricted can challenge the order in superior court. The period of restriction can be increased a further 30 days if still necessary for protection of public health by petition to the superior court.( N.C. Gen. Stat. § 130A-41, 130A-45, -45.1, -45.2, -45.3, -45.4, -45.5, -45.6)

Chalking a Tire Is an Unconstitutional Search

Chalking a tire to determine how long a car has been parked was ruled to be a search in violation of the Fourth Amendment. The Sixth Circuit in Michigan ruled that a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information.

Chalking a tire constituted a common law trespass because parking enforcement officers made intentional physical contact with the property of another when it placed a chalk mark on the tire. This intrusion, though minimal and not resulting in damage, was a trespass nonetheless.

Furthermore, the trespass was “conjoined with . . . an attempt to find something or to obtain information” in that the purpose of the chalk marks was to identify vehicles which had been parked in the same location for a certain period of time. That information is then used by the City to issue citations.

Not all warrantless searches are unconstitutional, only unreasonable searches. The court ruled that the vehicles were parked legally, there was no probable cause probable cause to believe that the vehicle contained evidence of a crime” or even an “individualized suspicion of wrongdoing.” Consequently, the automobile exception did not apply nor was there a reduced expectation of privacy.

The Community Caretaker exception to the warrant requirement also was inapplicable since the purpose of chalking is to raise revenue, and not to mitigate public hazard and no injury or ongoing harm to the community at large would result by a lawfully parked vehicle in a proper parking location.

So if you are lawfully parked but exceeding the allotted time on the sign, the parking enforcement cannot chalk your tires to determine whether you have exceeded the prescribed time. If they do, challenge it as an unconstitutional search and cite Taylor v. City of Saginaw (US Court of Appeals, Sixth Circuit, 4/22/2019)

NC STALKING CONVICTION BASED ON SOCIAL MEDIA POSTS IS UNCONSTITUTIONAL

Brady Shackelford fell in love with “Mary,” a woman from his church. He did not make a good impression and she refused to go out with him. He sent her emails and letters but she was not interested. In fact, she told the minister to tell Mr. Shackelford to stop contacting her. He stopped contacting her but began waxing poetic on Google Plus about his broken heart and his frustrations that Mary didn’t return his undying affection. These unrequited love social media posts resulted in felony stalking charges because Mary claimed she felt “like she was being stalked” and obtained a “no contact” order to avoid him. The “no contact” order prohibited Mr. Shackelford from contacting Mary or posting any information about her on social media.

The NC. stalking law criminalized social media posts made on Mr. Shackelford’s own Google Plus account because the posts referenced Mary and the posts made her feel “harassed.” (N.C. Gen. Stat. § 14-277.3A)

The reason that the stalking law was ruled unconstitutional in Mr. Shackelford’s case was that the law as-applied to him criminalized his social media posts. This content-based speech while annoying was not threatening and could not be prohibited either by a no-contact order or by the stalking statute. It was his First Amendment right to speak about his broken heart as long as he just posted it on his own Google Plus page.

(In The Court of Appeals of North Carolina No. COA18-273 Filed: 19 March 2019 Mecklenburg County, Nos. 16 CRS 10028-30, 34, State of North Carolina v. Brady Lorenzo Shackelford)

Firearm Restoration after Involuntary Commitment Hearing: Practical Considerations (Part 5)

In order to have one’s firearm rights restored after an involuntary civil commitment, a restoration hearing must occur. The judge must consider:
(1) the petitioner’s mental health and criminal history records,
(2) the petitioner’s reputation, developed at a minimum through character witness statements, testimony, or other character evidence, and
(3) any changes in the petitioner’s condition or circumstances since the original determination or finding.

Practical Issue #1: The Need for a Cooperative Mental Health Professional

If the Involuntary Commitment occurred in a different state or city, the motion to restore firearm rights will occur in that location. I have encountered a refusal on the part of treating psychiatrists to travel to another state to testify.

Practical Issue #2: Expensive fees for record review, report preparation, travel time and testimony

The treating psychiatrist must agree to review all previous psychological and hospital records as well as their own in order to properly opine as to any changes in the petitioner’s condition since the involuntary commitment. The moving party must pay for all the expert’s time in reviewing records, traveling to court and testifying. This fee can be extremely expensive.

Practical Problem #3: Petitioner’s continuing need for psychotropic medication, treatment and therapy

In cases where firearm rights have been successfully restored, the facts typically portray the involuntary commitment as an aberration in the life of a person who otherwise has no mental health issues. Other courts have refused to consider the effect of the passage of time or the effect of rehabilitation on the issue of restoration of gun rights.
If the petitioner continues to seek mental health treatment and takes psychotropic medication, the prosecutor can argue that the petitioner’s mental stability is precarious and uncertain.

The law of the state at issue will dictate whether a motion can be brought and whether the petitioner’s post-commitment mental state can be considered or whether rehabilitation is relevant.

These issues must be considered before a petition to restore firearm rights can be brought.

THE US SUPREME COURT STRIKES DOWN NC LAW BARRING PERSONS ON SEX OFFENDER REGISTRY FROM ACCESSING SOCIAL NETWORKING SITES

In 2010, Mr. Packingham, a person listed on the sex offender registry, posted on Facebook a note of gratitude to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that made it a felony for a convicted sex offender to use social-networking websites which allow minors to create profiles. Today, the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

In 2012, I represented Mr. Packingham and filed a motion to dismiss because the statute infringed upon the First Amendment right of free speech. Today in an 8-0 decision, the USSC agreed. Justice Kennedy began by outlining what he described as a “fundamental principle of the First Amendment”: that everyone should “have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” And even if once it may have been hard to determine which places are “the most important” “for the exchange of views,” Kennedy concluded, it isn’t hard now. Instead, he reasoned, it is “clear” that the Internet and, in particular, social media provide such opportunities.

He wrote that North Carolina’s law stifled “lawful speech as the means to suppress unlawful speech.” By barring sex offenders from using social-networking sites, he continued, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” “In sum,” Kennedy concluded, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

This case is important because it “is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet.” Justice Kennedy warned that the court should “exercise extreme caution before suggesting that the First Amendment provides scant protection for access” to ubiquitous social-networking sites like Facebook and Twitter.

PERSONS WITH MENTAL HEALTH ISSUES AND THEIR RIGHTS TO POSSESS A GUN- PART 1

The United States was created on the premise that possession of guns and the right to arm oneself was a right of the individual. This right is not without exceptions and individuals who have been adjudicated to be mentally incompetent or involuntarily committed to a mental institution cannot possess a gun.
But what about persons who have not been adjudicated incompetent or involuntarily committed? What about persons who receive Social Security disability benefits because they are autistic, bipolar, depressed or anxious to a degree that they are unable to work and a money manager handles their finances? Should they be precluded from gun ownership?
Under the Obama administration, persons receiving SSI with a representative payee, such as a person with autism who had no intellectual impairment and no language impairment, a person with agoraphobia or social anxiety disorder would have been forbidden from keeping a firearm in their home for self-defense.
The strange bedfellows of the ACLU and the NRA fought this regulation on the basis that that without a judicial determination, the constitutional rights of those with mental issues were being arbitrarily abridged. Additionally, the inability of persons to work or manage their money did not correlate to increased likelihood to commit violence. Research shows that the cohort with serious mental health issues was no more likely than the general population to use a firearm to harm others or themselves.
This order was rescinded but persons with mental health issues and especially those who depend on government aid are a particularly vulnerable group and cannot be treated as a lesser class. We must avoid disparate treatment whenever possible.

“All animals are equal but some animals are more equal than others.” (George Orwell, Animal Farm)

Part 2 of this blog will address restoration of gun rights.

Sources:
N.C.G.S.§ 14-404(C)(4),
18 U.S.C. §922(d),
20 CFR Part 421,
Dist. of Columbia v. Heller (2008) 554 U.S. 570,
Jeffrey Swanson, “The ban on mentally ill people buying guns wasn’t ever based on evidence,” The Washington Post, February 10, 2017,
Implementation of the National Instant Criminal Background Check System Improvement Amendments Act, www.regulations.gov/document?D=SSA-2016-0011-3998
www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm

The US Supreme Court will decide my First Amendment challenge in Packingham v. North Carolina

In 2012, I represented Lester Packingham in the Durham county court and argued pretrial that a North Carolina law prohibiting registered sex offenders from accessing social networking websites was an unconstitutional infringement on his First Amendment rights. The judge denied the motion and the case was appealed. On appeal, the NC Appellate Court agreed with my argument but the NC Supreme did not. The case was accepted by the US Supreme Court and oral argument was heard on February 27, 2017. This is the link for the oral argument: www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1194_0861.pdf.

The New York Times reported:
“A Supreme Court argument on Monday about whether North Carolina may bar registered sex offenders from using Facebook, Twitter and similar services turned into a discussion of how thoroughly social media have transformed American civic discourse.The justices’ remarks, which indicated easy familiarity with the major social media services, suggested that they would strike down the North Carolina law under the First Amendment. Justice Elena Kagan said that President Trump, every governor and every member of Congress has a Twitter account.’So this has become a crucially important channel of political communication,” she said. “And a person couldn’t go onto those sites and find out what these members of our government are thinking or saying or doing.'”(www.nytimes.com/2017/02/27/us/politics/supreme-court-north-carolina-sex-offenders-social-media.html.)

I will post a new blog entry when this case is decided but it appears that the justices recognize the importance of access to websites in 21st century life.

Does Alexa Kiss and Tell? Technology v. Privacy

“Alexa, play Beyonce.” “Alexa, what is the playing at the Southpoint cinemas?” “Alexa, how many cups are in a liter?” These commands and others posed to Alexa, a voice activated service created by Amazon can be easily become a little slice of the space-aged Jetson’s smart home in your daily world. But is Alexa a spy? Is there a record of what is said? Is this seemingly private “interaction” not so private and why do I care?

In the pending murder case of James Bates of Bentonville, Arkansas, the question of whether statements of Mr. Bates were recorded and could be used as evidence used against him in his pending murder case is at issue. Mr. Bates had an Alexa voice activated system in his home at the time Victor Collins’ body was found in Mr. Bates’ hot tub. Mr. Bates proffered explanations for how this occurred which didn’t jive with the physical evidence. Prosecutors served a warrant on Amazon to obtain any recordings made by Alexa and stored by Amazon which would aid in the prosecution’s case-in-chief or provide impeachment against Mr. Bates. If the warrant is not quashed, would there be anything incriminating to discover? The answer is that there are recordings made and preserved by Amazon which could be used to defeat or support Mr. Bates’ version of the facts.

What is Alexa, exactly? Alexa is an intelligent voice control service which in this case was connected to a small tower called Echo which is a Bluetooth speaker with a seven-piece microphone array. Alexa is described as a “passive listening device” which means that Alexa listens but does not record anything until she hears the activation word or wake word “Alexa”. Once the word “Alexa” is said, a small amount of audio content preceding the wake word and all content thereafter is streamed to Amazon’s network of connected computers where it is processed and stored. The audio record then lives in Amazon’s storage or Cloud until it is the subject of a subpoena or warrant or until you delete it.

In the Bates case, Alexa could have recorded evidence in the following ways: (1) all voice commands made to Alexa by Mr. Bates or anyone in his home would be recorded. (2) conversations between persons inside Mr. Bates’ home would be recorded if they were simultaneous to an Alexa voice command. (3) If the command required a significant period of time to achieve compliance such as, “Alexa, tell me when 20 minutes elapses” could result in all conversations occurring in the room being recorded until the Alexa task is completed.

Obviously any command or other function requested by Mr. Bates or the victim such as calendaring an event, purchasing an item, or linking up with another smart home service which conflicts with the defense’s version of the timeline of occurrences is problematic. As smart home and intelligent assistants functions assume a larger role in our lives be aware that a record is stored and even if you request deletion, there is no realistic way to ensure it is completed.

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The default activation word is “Alexa.”
“With far-field voice recognition, Echo can hear you ask a question from any direction—even while playing music.” (Amazon website)
For the complete list of Alexa commands see: www.cnet.com/how-to/the-complete-list-of-alexa-commands/

ONLY A LITTLE BIT ILLEGAL

When Justice Thomas is the author of a criminal opinion, you can be sure that it will not benefit the defendant and he does not disappoint in Utah v. Strieff. The reason this opinion is so bad is that it rewards the police for violating an individual’s constitutional rights. Here, even though the police officer had no right to stop Mr. Strieff and would not have known that an outstanding arrest warrant existed had he not made the illegal stop, methamphetamine recovered was admitted as evidence.
To understand why this is such a bad opinion, you need to understand the Exclusionary Rule. The Exclusionary Rule states that if the search or seizure is illegal then anything found can’t be used in trial except when:
1) The police would have found it anyway (Inevitable discovery)
2) There was an independent source which was completely separate from the illegal search or seizure, or
3) The connection between the misconduct and the evidence was weakened by time or intervening circumstances.
Here, Justice Thomas selected door #3, the Attenuation Doctrine. But the illegal stop was only minutes before a warrant check and subsequent search– so this doesn’t really make sense. So anytime a valid warrant exists, Strieff will be cited for the proposition that the illegal stop was only a little bit bad and after all, there was a preexisting valid warrant and the guy had drugs on him anyway. So I guess that makes it okay.