Tag Archives: Search and Seizure

#63: Equal Protection When Boy Meets Girl

This is mark Joseph “young” blog entry #63, on the subject of Equal Protection When Boy Meets Girl.

United States Supreme Court Justice Ruth Bader Ginsburg does not like the Roe v. Wade decision.

To many, that will sound like nonsense.  Ginsburg is the anchor of abortion rights on the United States Supreme Court, and Roe the seminal case which recognized, some would say created, such a right.  Yet Ginsburg does not disagree that there is such a right; she disagrees regarding the basis of that right, and thus with the reasoning of Roe which is its foundation.

Roe v. Wade is in essence a Right to Privacy case.  Beginning with Griswold v. Connecticutt, in which the court found that the state could not criminalize the act of teaching couples how to use contraceptives in the privacy of their own bedroom, the court inferred that the First Amendment protections of freedom of expression, Fourth Amendment protections against unreasonable search and seizure, and Fifth Amendment protection against self-incrimination, implied a right to keep one’s personal matters private.  There were several intervening cases which extended that, and there have been others arising since Roe, but in Roe the argument was that the decision to have an abortion was a medical decision between a woman and her doctor, and as such was a private matter in which the government should not interfere without a very compelling interest.

Ginsburg disagrees.  That argument, she claims, makes a private and personal decision a matter to be discussed with a doctor–a paternalistic oversight that according to Ginsburg violates the fundamental right at stake.  She claims that a woman’s decision should be autonomous, something she decides without involving anyone she does not wish to involve.  She makes it an Equal Protection right, covered largely by the fifth through tenth amendments.  Her assertion is that a woman should have the autonomous right to decide whether to bear a child, unimpeded by any considerations including medical ones, because it is solely the woman’s problem.

Ginberg’s reasoning presents serious challenges for those who oppose abortion.  If her line were adopted, current efforts to regulate abortion providers and facilities would be unconstitutional.  As the decision stands, if abortion is a privacy right as a medical decision on the advice of a medical professional, it is completely reasonable for reasonable regulations of the medical profession to restrict access to abortions based on the government’s regulation of health care.  If it is an autonomous right under equal protection, then a woman in theory should be able to have a doctor or anyone she chooses perform one in the privacy of her own bedroom without any government involvement at all.  Yet Ginsburg’s position suffers from some other problems.  She believes she is defending the concept that a woman should be treated exactly as a man would be in the same circumstance, but (apart from the fact that men would not be in exactly the same circumstance) the treatment of men in this circumstance is already worse than the treatment of women, viewed from the perspective of individual autonomy and equal protection.

Ruth Bader Ginsburg official United States Supreme Court portrait.
Ruth Bader Ginsburg official United States Supreme Court portrait.

Let’s look at the situation:  boy meets girl.  We’ll call our girl Ruth, for Justice Ginsburg, and we’ll name the boy Tony, in memorium of the recent passing of her good friend, colleague, and adversary Justice Antonin Scalia.

Ruth and Tony meet, maybe at work, maybe at a party, maybe at school or in the neighborhood.  They like each other, and start seeing each other.  They find themselves attracted to each other.  Human physiology being designed to promote reproduction, at some point they have desires to have sex.  At this point they are just about equal, as far as reproductive rights are concerned.  Some argue that Tony is disadvantaged in that his drives are stronger than Ruth’s, but there aren’t many ways to test that.  Ruth might have more resistance to those drives because the consequences are more direct for her, but in essence it is within the power of each them them to choose, autonomously, not to engage in sex.  It is also within their power to choose, jointly, to risk a pregnancy.

Yes, Tony could rape Ruth; Tony could coerce Ruth by some other inducement.  Women are raped fairly often, usually by men, sometimes by women.  Men are also raped, by men and sometimes by women, but considerably less often–although more often than reported.  Men are more embarrassed about being raped than women are, and so less likely to report it; and they are taken less seriously when they do, partly because some people think a man can’t really be raped by a woman, and partly because men who have never been raped by a woman somehow think they would enjoy it.  Rape, though, is a separate issue:  anyone who has been raped has had rights fundamentally violated, quite apart from the problem of potential pregnancy.

If Ruth and Tony agree to engage in sex, suddenly the entire picture changes:  they no longer have equal reproductive rights.  A significant part of that is simply technological.  Either of them could have an operation rendering him or her permanently infertile, which is generally a drastic step few want to take and is a considerably more expensive and difficult (but ultimately more reliable) procedure for Ruth than for Tony.  Barring that, though, Tony is limited to the question of whether or not to use a condom–a prophylactic device with a rather high failure rate.  Ruth’s equivalent, a diaphram, is a bit more difficult to get (must be fitted by a gynecologist) but considerably more effective; she also has several other options.  Usually she would use spermicide (sometimes known as “foam”) with a diaphram, but she can also use hormone treatments, usually in pill form but sometimes as implants, that disrupt her ovulation cycle.  All of these options have varying probabilities of preventing conception; there are other options.  Intra-uterine devices (IUDs) usually reduce the chance of conception but also prevent or sometimes disrupt implantation, causing a spontaneous abortion–what in popular jargon is called a “miscarriage”, but at so early a stage that pregnancy was not suspected.  In all these ways, all the reproductive rights are on Ruth’s side:  if she chooses not to become pregnant, she has an arsenal of ways to prevent it.

However, young lovers are often careless.  Birth control is so unromantic, so non-spontaneous.  The young suffer from the illusion of invulnerability, that they are the heroes of their own stories and everything is going to work according to their expectations.  People have sex and don’t get pregnant; some couples try for unsuccessful years to have a baby.  A pregnancy is often a surprise, even for those who want it.  People take the risk, and Ruth and Tony might lose.  So now there is a baby on the way, as they say, and again Ruth’s reproductive rights are more than equal to Tony’s.  She can choose to carry the child to term, or to have an abortion.  He has no say in the matter, even if he is her husband.  She might include him in the decision, but it is her decision; she does not even need to inform him that there is a decision.  She can end the story right here.  He cannot.  He has no say about his own reproductive rights.  He cannot say, “I do not want to be the father of a child; terminate it.”  Nor can he say, “I want this baby, keep it.”  He does not, in that regard, have equal protection.

Maybe he does not care; maybe he figures it is her problem.  However, it is not just her problem–it is also his problem.  The inequities are not yet quite done.  If Ruth decides not to have an abortion–exercising her reproductive rights and overriding his–the child is born.  At that moment Ruth has yet another choice:  she can keep the child, committing herself to the difficulties and expenses of raising it, or she can absolve herself of all further responsibility, agreeing never to see the child again, by putting it up for adoption.  I do not want to minimize the agony of that choice, but it is her choice–it is not his choice, and he has no say in the matter.  His reproductive rights are not equally protected.

In most cases, if she chooses to surrender the child for adoption, he has no say in the matter; he cannot say it is his child and he wants to keep it.  That, though, is only half the problem.  If she decides that she wants to keep the child, she can sue him for child support–and indeed, if Ruth is poor enough that she files for public assistance from the state, most states will find Tony and force him to make child support payments, and jail him if he fails to do so.  It is his responsibility to support the child if she says it is.  He can claim that it is not his child–the tests can be expensive, but there is an avenue to avoid false claims–but we already agreed that it is his, so he is going to have to support it.  She had a choice; he has none.

So by all means, let’s think of abortion as an Equal Protection issue.  Men are not protected in this nearly as well as women.  A lot of things would have to change to get there.

In addition to web log posts with the Abortion, Discrimination, and Health Care tags, see also the articles Why Shouldn’t You Have Sex If You Aren’t Married?, and Was John Brown a Hero or a Villain?

[contact-form subject='[mark Joseph %26quot;young%26quot;’][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Website’ type=’url’/][contact-field label=’Comment: Note that this form will contact the author by e-mail; to post comments to the article, see below.’ type=’textarea’ required=’1’/][/contact-form]

#54: Nudity as Free Speech

This is mark Joseph “young” blog entry #54, on the subject of Nudity as Free Speech.

If the thirteenth century histories are to be believed, it is a practice that has roots back near a thousand years to Lady Godiva, who about two centuries prior purportedly rode her horse down the streets of Coventry clothed only in her long hair, to protest the heavy taxes assessed on the local population by the local Earl of Mercia, Leofric–who happens to have been her husband.  The technique has been used in variations since, and has more recently become a legal issue:  can public nudity be protected as a form of free speech?

Lady Godiva by John Collier, c. 1897, Herbert Art Gallery and Museum
Lady Godiva by John Collier, c. 1897, Herbert Art Gallery and Museum

On April 17th, 2012, a frequent air traveler named John Brennan (not to be confused with the Central Intelligence Agency director of the same name) was stopped at a Transportation Safety Administration (TSA) checkpoint in Portland, Oregon.  He had declined to pass through the scanners which would have produced an image of his naked body under his clothing in favor of a metal detector and pat-down.  However, the pat-down detected nitrates from his clothing–a substance found in some popular explosives, as well as in fertilizer, bacon, some hand lotions, and many other products.  This was certain to be a problem, so Brennan responded, in protest, by stripping naked at the checkpoint in full view of other passengers so that it could be plainly seen that he did not have a bomb.

He was arrested for indecent exposure.  It was a weak case–the applicable indecent exposure law in that part of Oregon, home of the “World Naked Bike Race”, only forbade having sexual contact in public and disrobing “with the intent of arousing sexual desire”, both conditions plainly absent here.  However, Brennan claimed that his act of disrobing was a form of protected free speech.  There is precedent for the notion that actions can be classed as speech or expression under the First Amendment, stemming from a 1971 case, Cohen v. California (403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971)), in which the defendant was convicted of “offensive conduct”, defined as including “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” for wearing a jacket bearing an obscene anti-war slogan to a protest outside a municipal courthouse.  The Supreme Court overturned the conviction, asserting that emotive speech intended to get attention is protected speech.  This subsequently gave rise to Holder v. Humanitarian Law Project (561 U.S. 1, 130 S.Ct. 2705 (2010)), in which actions which were aimed at providing humanitarian aid to terrorist groups were deemed reasonably forbidden in the name of national security, but which classed such actions as freedom of expression and declared that laws which are otherwise about conduct face “more rigorous scrutiny” (greater than the ordinary “intermediate scrutiny” but not as severe as the nearly always fatal “strict scrutiny”) under facts in which the conduct is part of political speech.  The judge in Brennan’s case agreed that his actions were protected political protest, and found him not guilty.

Not willing to let it rest there, the TSA fined Brennan one thousand dollars for “interfering with screening”.  The fine was upheld, although it was reduced by half, in an administrative hearing under the auspices of an “Administrative Law Judge” whose qualifications were that he was a United States Coast Guard officer working for the Department of Homeland Security (DHS).  The extended appeals process for such an “administrative” violation took over a year to reach the head of the department before it could be appealed to a “real” court, the 9th Circuit Federal Court of Appeals.  As of November 11, 2013, an appeal was filed with that court asking that the fine be voided due to several constitutional issues (including the vagueness of TSA regulations), and specifically that his action was constitutionally protected speech.  As recently as October that case was still pending, as the parties await the court’s decision on whether to hear oral arguments or base their decision on the filed papers.

Meanwhile, back in Oregon, Matthew T. Mglej is citing this case in a similar unrelated case.  On May 23rd, 2014, Mglej set up space in front of the federal court building in Portland, posting a few signs, then stripped naked and played the violin to call attention to his cause, a desire for greater transparency in government.  The police arrested him for public indecency (this law makes it “unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex”) but later released him.  On January 20th, 2015, he filed suit in federal court on a variety of claims including unlawful arrest and violation of his First Amendment right.  This past month U. S. District Judge Michael W. Mosman disagreed, dismissing the suit; Mglej’s nudity was not protected speech, he asserted.

However, as Harvard Constitutional Law Professor Noah Feldman observes (in print as The naked truth about the First Amendment, found online as Protesting Nude in Portland Should Be Protected), the basis for the dismissal is at best dubious.  Mosman asserted that the nudity did not advance the message, that an impartial observer would not have understood how the message and the nudity were connected.  This, as Feldman rightly observes, makes the judge the arbiter of style, as it were, assessing whether Mglej’s speech was effective in achieving its purpose.  The First Amendment does not require that the speaker be articulate, nor give anyone the right to judge whether the message could have been conveyed a different way.  Mglej was attempting to communicate something by his nakedness; does the fact that most people failed to understand what he was attempting to communicate negate his right to attempt to say it?

Besides, part of the message is the medium, and part of the medium is its function in drawing attention to itself and through itself to the message.  Large signs with hot pink lettering do not communicate the message more clearly, they only are more eye-catching; rock bands playing at evangelistic rallies might or might not convey the message as well as the speakers who follow them, but they do draw a crowd–a fact that was not lost on Salvation Army founders William and Catherine Booth, who took brass bands into the streets to draw crowds to hear the message.  Whether or not Mglej’s nakedness clearly conveyed the message of the need for transparency in government, it certainly got the attention of the crowd to hear it.  Absent that detail, it is doubtful that you would be reading about him here, now.  The nudity was as much a part of the message as the violin:  it was the neon sign that caught the attention of passersby to hear the message.

On the other hand, as one city attorney observed, anyone arrested for public nudity could claim that his state of undress was a political protest.  It is easy to imagine that people who subscribe to “nudism” might make it a practice to go about their daily chores completely naked, and assert that they are doing so in protest of the very laws they are violating.  How is that to be resolved?  Can one protest such laws by being naked?

This argument could be pushed to the absurd.  Someone robbing a bank could claim that they are doing so in protest of the laws protecting personal property, or of the unfair advantages accorded to those who own the banks.  Many bombers are already acting in protest, at least as far back as the Viet Nam War protesters, and many rioters become swept up into violent protests that were fundamentally about a reaction against the system.  If breaking one law can be protected speech, can the same be true of all these other laws?

It will be answered that these other crimes are dangerous; people get hurt.  The injury might be physical; it might be economic.  It is clear that we need to protect ourselves from such actions, lest we become their victims, and indeed we need to prevent these actions as much as possible for the sake of others who might be injured by them.  Inherent in that response, though, is the presumption that no one is “really” harmed by public displays of nudity, that those who object are simply being prudish, Victorian, censorial, trying to run the lives of others by requiring them to wear clothing and conform to public decency standards.  The point can be argued.  Those who oppose public nudity believe that there is harm, that for example children should be shielded from seeing naked adults, women should not be forced to look at naked men, and that people exposed to such sights may genuinely be harmed, suffering psychological injury of some type.  It is not a harmless nor a victimless crime.  If it were, it would never have been illegal in the first place–someone thought it was injurious to someone, so laws were passed to prevent it.

You might object that our prudish ancestors had a lot of misguided notions about right and wrong and about conduct that was deemed harmful to others, and that in our enlightened age we can dispense with such nonsense.  It is a point that can be debated–but the fact that it can be debated means that there is at least some merit to the claim that there is real harm; and if there is a basis for a claim of real harm, there is at least potentially reason to make such conduct unlawful.  That in turn pushes us into the quandary:  at what point does harmful conduct become protected self-expression?  If such nudity is in fact harmful to at least some ordinary people, then it ought to be as illegal as robbing banks and bombing buildings, and breaking the law should not be legal merely because it is self-expression.  If it is not harmful to anyone but perhaps a few overly sensitive individuals, then it ought not be illegal and we should find less intrusive means of protecting those weaker citizens who might be impacted by it.

Certainly there is a place for civil disobedience in self-expression, for violating laws in order to make a point.  As we previously noted, the Supreme Court has ruled that burning a cross in the yard of a black family is indeed protected speech, but the perpetrators might still be convicted of arson, trespass, and disorderly conduct.  The individual who chooses civil disobedience as a mode of protest is inherently agreeing to accept the lawful penalty for breaking the law, as part of his choice.  Henry David Thoreau spent a night in jail for refusing to pay a tax that supported the continuation of slavery; he understood that his disobedience to the law meant that he would be imprisoned, and took that as part of his protest.  It is not unreasonable to conclude that Mglej is permitted to make his statement, but that he still must stand trial for violating the law in doing so, just as any protesting bomber would.  That, though, does not seem to be what the courts are saying, and what they are saying seems to be that this particular law does not matter because violating it does not hurt anyone.  We are going to have to settle that issue, one way or the other, and decide whether public nudity should be forbidden or permitted.

Zymurgy’s Law of Evolving Dynamic Systems states, “If you open a can of worms, the only way to re-can them is to use a bigger can.”  We’ve got one of those here, for certain.

[contact-form subject='[mark Joseph %26quot;young%26quot;’][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Website’ type=’url’/][contact-field label=’Comment: Note that this form will contact the author by e-mail; to post comments to the article, see below.’ type=’textarea’ required=’1’/][/contact-form]

#48: Inequities in the Justice System

This is mark Joseph “young” blog entry #48, on the subject of Inequities in the Justice System.

I have a story that intrigues me on so many levels I have to tell it.  It is, as they say, a true story–that is, I have my information largely from the first-hand account of one of the key persons involved, but for parts of it that I on the one hand witnessed myself or on the other hand deduced.  I shall attempt to keep them clear.  It is a case of an injustice that was, in large part, remedied, but the sense of injustice looms over it nonetheless.

img0048Court

The story begins with a young man in his early twenties out for a walk on a late summer afternoon.  He happened to pass what must be the main intersection in the sprawling sparsely populated town, as it is the only traffic signal, and there are two gas stations on the corner, owned by the same near-eastern immigrant family, the only gas stations within the town.

He was at least three blocks from there, around a corner out of sight, when two police cruisers arrived behind him.  The young man has been detained by police before, largely because he has friends who have been in trouble with the law on several occasions, although he himself has never been charged with anything.  They asked him to identify himself, and he gave his name but was reluctant to tell more.  After some discussion he gave his address, and was told he was not permitted to leave until they had identified him.  They then insisted on patting him down, then handcuffed him and informed him that he was under arrest.

I have to interject here.  The police are indeed permitted to stop a person if they have a reasonable suspicion of possible involvement in a crime, and if we stretch that–as you will see–they might arguably have had that here.  The purpose of such a check is to ensure that the person with whom they are speaking is not able abruptly to produce a weapon; the rule exists to protect the police.  It’s called a “Terry Stop” after the case which confirmed that it was legitimate.

On the other hand, an arrest requires “probable cause”.  At this point all the police have–well, we’re getting ahead of the story.

They emptied his pockets into a plastic bag, and put him in the back of one of the patrol cars.  The officer in that car then produced a bag of marijuana from another satchel and placed it in the bag with his possessions.  The young man objected, loudly, that he had never seen that bag in his life, but the police officer claimed that an attendant at the gas station had seen him stop and hide the bag at the control box at the traffic light on that corner.  He was told he was under arrest for possession of marijuana.  The officer then drove to that gas station, and once in the parking lot read the young man his Miranda rights while this witness, a near eastern immigrant, observed.

Maybe you have noticed the three problems with the “identification” here.  I did immediately, but then, I hit these problems in law school.  Still, I cannot believe that the police procedure here was so incredibly bad.  One of these problems might have been excusable, even unavoidable, but there was no reason for this kind of work unless they expected to strongarm the suspect into a confession.

The first problem can be called the problem of cross-cultural identification.  You’ve probably heard the rubric that all Blacks look alike, and while that’s not at all true it is true that Whites and Asians have trouble recognizing the distinguishing features of Blacks, and that the same is true for most cross-racial or cross-cultural observers.  If you did not grow up among people of a particular racial/ethnic group, the specific features that distinguish one from another are often difficult to spot.

I often recall the story of The Five Chinese Brothers.  In brief, one of five brothers was condemned to death, but he and each of his brothers had a particular invulnerability.  Each time the emperor declared how the boy was to be executed, he would ask to say goodbye to his parents, and be replaced by the brother who was invulnerable to that form of execution.  The conceit is that no one can tell the difference between one Chinaman and another, so if they were also brothers not even the Emperor could tell them apart–which tells me that it is not a Chinese story at all, but a European story about European perceptions of the Chinese.  Had it been a Chinese story, it would have been The Five Swedish Brothers–all tall, light hair, light skin, light eyes, they look exactly alike, because the characteristics by which Chinese distinguish each other are not those by which Europeans distinguish each other.  That’s the problem of cross-cultural identification:  our near-eastern immigrant gas station attendant would have trouble distinguishing one tall white American boy from another.  The identification is already suspect.

However, even if that were not so, there is a much more significant problem.  You’ve probably noticed that on television shows when the police want a witness to identify a suspect they have a lineup, or if not a lineup a photospread.  They don’t usually present the suspect to the witness and say, “Is this the guy?”  That’s because those kinds of identifications are inherently prejudicial–and this one is extremely so.  We have a suspect who fits the description “young white male” in a town where that describes a significant portion of the adult population.  Our young white male has been brought to the witness handcuffed in the back of a police car, and in the presence of the witness the arresting officer makes a point of Mirandizing the suspect, clearly placing him under arrest and signalling, “This guy is a criminal.”  The witness then has in essence been told, “Identify this guy,” and even if we assume that the witness wants to be honest and has been honest to this point, we just played a game with his memory.  The police told the witness who to remember; human memory is a fluid and flexible thing in most people, and by this act the police helped the witness solidify an image that matched the guy they caught.

It should also be noted that if the story the officers told is true, the witness must have called to report having seen someone hiding something at the traffic light control box perhaps fifty feet away, the police must have arrived and searched the area and found the bag, then the witness must have told them in which direction the person left who had placed it there.  By that time, anyone who might have been in the area would have walked out of sight, and indeed the suspect was not in sight–which means that the witness could not point to him, and the police could not see him when they arrived at the scene.  They have no idea who they are seeking.  Anyone they find who roughly fits the description is likely to be identified by the witness as the person he saw.  He made no claim of having seen him up close, or having recognized him from previous acquaintance.  He had not kept his eye on the suspect, and could not be certain the person he saw didn’t enter one of the houses along the street.  About the only information the witness gave the police was young white male, went that direction.  They should have known their identification was going to be problematic.

For a legitimate witness identification, they needed to take the suspect to the station and take the witness there separately, keeping them from seeing each other until the suspect was mixed with several other persons who also roughly fit the description, and then determining whether the witness could choose the suspect from among the group without any assistance or prompting.  That would not solve all the problems here, but it would be a much better case for the police than what they did.

They also should have known that they had insufficient basis for probable cause.  A young man walking quiet sub-suburban streets in a rural town on a late August afternoon is not suspicious.  Being a young white male is not suspicious.  Nothing was found on the suspect to connect him to this or any other crime.  The police don’t like it when you avoid answering their questions, but even if it could be argued that the refusal to answer questions implies guilt, it is illegal to draw that conclusion:  the exercise of the Constitutional right to remain silent cannot be taken as evidence of guilt of any crime, and therefore cannot support probable cause of such guilt.  The police had sufficient cause for the Terry Stop–it requires an articulable suspicion, and it is reasonable to argue that a young white male walking somewhere within several blocks of the site of an alleged crime allegedly committed by a young white male afoot is at least vaguely suspect.  Having questioned him and learning nothing that connected him more closely to the crime, they did not have probable cause for an arrest.

The police took him to the station and held him for a while, and then began questioning him.  They intimated that they had surveillance video of him planting something there, and he responded that he knew they did not because he never did so–he was not even really cognizant of the fact that there was an electrical control box there.  They attempted to get him to explain how he thought the marijuana got there, as if it were his problem and they hoped in solving it he would confess something they could use against him.  They then gave him a summons to appear in court to answer charges, and released him.

He went to court and applied for a public defender.  His parents had prepared him well–within twenty-four hours of the events he wrote down everything that happened, so there would be a clear written statement, and he gave a copy of this to his attorney.  He also had been made aware of the problems already mentioned regarding witness identifications, and also that in New Jersey the governor had recently required that all police cars be equipped with dash cameras, and a Superior Court Judge had ruled that all those recordings were public records, so his attorney subpoenaed these.  It took six months for the State of New Jersey to realize that on those facts they had no case, and dismiss the charges.  The public defender application fee is not refundable.

No one apologized for the wrongful arrest.  In fact, in an odd turn, as the judge dismissed the case he told the defendant to be sure not to be arrested on that charge again.  It was an entirely inappropriate thing to say under the circumstances, although the judge probably was not fully aware of the circumstances.  After all, the young man had been charged simply because he was the nearest person out walking somewhere near the scene of the crime, and he could not have anticipated that there might have been such a crime.  If we assume the integrity of everyone involved, and that these were the honest mistakes of a couple of police officers who found the contraband and believed they had the right person who would probably confess and plead guilty (and not that they were trying to create a case from nothing), there was no way he–or indeed anyone–could have avoided being so charged under these circumstances, except perhaps by staying at home at all times, or at least never taking a walk in public.

In all of this I want to mention one point that you probably did not notice, although it was mentioned.  The defendant was not a young black male; he was a young white male.  It may or may not be true that young black males are unfairly singled out by police, but it might not be because they are black so much as that they are young and male.  It is difficult to know how to react to that; young males disproportionately commit crimes, and so it becomes proportionate to suspect them disproportionately.  Yet if one is more likely to be arrested and charged because one is a young man, the claims that the disproportionate arrests of young black men demonstrate systemic racism are seriously weakened.  Such racism may still exist in some places, but racial oversensitivity also plays a role in causing us to perceive racism where the real problems are agism, sexism, and classism.  If there is a real disproportionate correlation between criminal activities and factors such as age, gender, race, and social class, it can hardly be said to be discriminatory to make disproportionate arrests.  If such correlations cause police to be careless in their procedures, that needs to be corrected–but it does not make it a matter of racism.

[contact-form subject='[mark Joseph %26quot;young%26quot;’][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Website’ type=’url’/][contact-field label=’Comment: Note that this form will contact the author by e-mail; to post comments to the article, see below.’ type=’textarea’ required=’1’/][/contact-form]

#19: The Smell of Grass

This is mark Joseph “young” blog entry #19, on the subject of The Smell of Grass.

Just about the middle of last year (2014) I wrote two articles related to the legalization of marijuana (now combined in one page with two other articles on the subject), the first raising the question of whether the legalization of marijuana in some states meant employers could no longer drug test for it, and the second noting that the answer is yes, in most cases you can be fired for using marijuana based on a failed drug test even in a state in which marijuana use is legal.

In our search and seizure series, rather separately, we reported on cases in which the fact that an involved officer “smelled marijuana” became probable cause for further investigation.  That raises another question:  if it is legal for some but not all people to use marijuana in a given state, does that mean that the smell of marijuana can no longer be the basis for probable cause that a crime is being committed?  After all, there is now the possibility that whoever is burning the marijuana is doing so legally, and thus neither the possession nor the use of marijuana is necessarily a crime.  Are officers now forbidden to assume there is a crime in progress if they smell the drug?

In New Jersey, that has recently been answered by a state appeals court, a ruling binding on all New Jersey trial courts.

img0019Marijuana

In 2012 police in Cumberland County responded to a report of gunfire, and found George Myers sitting in a car in the area.  Police quite reasonably questioned him, but smelled marijuana coming from the car.  Based on the smell of marijuana they claimed probable cause to search Myers, and found both marijuana and an unlicensed handgun in his jacket.  Myers took a plea agreement for a five year sentence on the weapons charge, but also filed an appeal, claiming that the search was unlawful because there was no probable cause:  he might have been using the drug under the authority of New Jersey’s 2010 Compassionate Use Medical Marijuana Act (CUMMA).  He was not, but Myers maintains that the fact that he might have been meant that police could not conclude there was a crime in progress, and thus having no basis to search him would not have found the unlicensed gun, and that he could not be convicted on evidence obtained in an illegal search.

The court says no, that is not what the law means.  Marijuana is still classified as a controlled dangerous substance, and its possession and use is still criminal.  CUMMA provides an affirmative defense; it does not decriminalize the action.  The best known example of an affirmative defense is a self-defense killing:  a homicide has been committed, and it would be murder except that the victim was clearly in danger of being killed (or sometimes raped or severely assaulted) and so acted reasonably and will not be found guilty of murder.  In New Jersey, police are instructed not to arrest someone for marijuana possession if the individual “reasonably appears” to be enrolled in the medical marijuana program (usually by presenting the program identification card).

As of the end of last year there were a bit shy of four thousand persons so enrolled in the entire state, out of almost nine million residents, so it is generally unlikely that any particular user is going to be enrolled.  However, the decision was not based on this probability assessment, but on the nature of the law itself:  just as it is never really legal to kill someone threatening you with bodily harm but will be excused if it was reasonable for you to believe the threat was genuine and imminent, so too it is never really legal to possess or use marijuana in New Jersey but will be excused if you have been authorized to use it under the medical marijuana program.  It is important to understand that, because just as this ruling only applies in New Jersey, the law itself only applies in New Jersey; the laws will be different in other states, and the exact nature of the treatment of marijuana users under the law is going to be the key to whether probable cause can be assumed.  Had the law stated that it was not illegal for such persons to possess or use marijuana, that might have led to a different outcome; what it actually said was that their illegal possession and use of the substance will be excused based on medical necessity, that in essence their crime will be overlooked by the system.

So do not think that the fact that medical marijuana is legal in New Jersey means that the smell is no longer evidence of a crime.  In fact, although it is a technicality, medical marijuana is not legal in New Jersey, it is simply a crime that is excused under those circumstances.  That is not at all the same thing.

[contact-form subject='[mark Joseph %26quot;young%26quot;’][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Website’ type=’url’/][contact-field label=’Comment: Note that this form will contact the author by e-mail; to post comments to the article, see below.’ type=’textarea’ required=’1’/][/contact-form]

#14: Two and a Half Years for Clearing a Browser History

This is mark Joseph “young” blog entry #14, on the subject of Two and a Half Years for Clearing a Browser History.

O.K., that is admittedly an overly dramatic heading, and not entirely accurate, but it is rather close to the truth of the matter.

The defendant was Khairullozhon Matanov, a twenty-four year old legally resident alien who drives a cab the Boston area.  He was a known associate of Tamerlan and Dzhokhar Tsarnaev, and had dinner with them following their attack on the Boston Marathon.  He apparently spoke with them several times after the bombing, then saw their pictures on the FBI and CNN websites, attempted to contact them again, and then went to the local police to be interviewed by a detective.  It has never been alleged that he was involved in the bombing or had any knowledge of it before hand nor any certain knowledge of it after the fact.  He was simply a friend of the bombers.

img0014matanov

However, before he spoke to the police, he attempted to delete videos from his computer and erase his browser history, and to give his cell phone to someone else.  When he was interviewed he downplayed his relationship with the Tsarnaev brothers, and said that he had not seen them since having dinner with them several days before the bombing.  One can certainly understand why a Muslim citizen of Kyrgyzstan in the United States on a work visa would be reluctant to be seen as too closely associated with a pair of terrorist bombers, but the police still consider that obstruction of justice, an effort to lie to investigators in an ongoing investigation to obscure facts that might be relevant to the case.  The FBI seized his computer, questioned him, and charged him.

He pled guilty–not because he believed he had done anything illegal, but because conviction for the destruction of “any record, document, or tangible object with intent to obstruct a federal investigation” under the Sarbanes-Oxley Act can carry a sentence of up to twenty years in federal prison, and prosecutors were offering him a two-and-a-half-year sentence in a plea bargain agreement.

It seems fairly clear that Matanov was not involved in the bombing and knew nothing about it; it seems likely that even after the fact the Tsarnaevs remained tight-lipped and his repeated (mostly unanswered) calls to them were probably his effort to learn whether or not they were involved.  No one has asserted that there was any evidence on Matanov’s computer or cell phone of anything other than that he was a Muslim who knew and was in touch with the Tsarnaevs immediately before and after the bombing–the only evidence which could have been obtained from him would have related to the movements of the bombers over the long time before and after the attack.  However, he evidently thought that the combination of evidence that he was a Muslim and he knew the defendants was likely to lead investigators to suspect him of involvement in the bombings, and so he attempted to minimize any such evidence that they might find were they to investigate him.  The sentence seems a bit harsh for a gut fear response to the possibility of being implicated in a terrorist act, and it is not clear what it accomplishes, but he was probably right that the particular law under which he was charged was broad enough and severe enough that he could probably go away for a long time.  After all, he really was attempting to obstruct a federal investigation–he did not want them to know that he was friends with the bombers and had dinner with them that evening, because even to himself it probably seemed absurd that he would not have known they had committed this act.

I think it unlikely that I have any friends likely to become terrorist bombers in the near future, or indeed likely to be gunmen in the next tragic mass shooting.  Statistically that’s certainly true.  On the other hand, I’ve got a lot of Facebook “friends” and Twitter and Pinterest “followers” and LinkedIn “connections” and such, and I belong to several Yahoo! groups–I rub electronic elbows with a lot of people I’ve never met.  Further, I am pretty sure Matanov had no idea that his friends the Tsarnaev brothers were terrorist bombers–I expect that is why he kept attempting to call them even after he saw their pictures on the news, trying to get them to tell him that it was a mistake, they were not involved.  It seems rather clear that most of his efforts to clean his computer were attempting to erase any connection to them and any suggestion that he might be a radical Islamic terrorist.  Yet the wording of the law is such that had he suspected there was something wrong with his friends and attempted to erase any connection he had to them before the bombing, he might as easily have been charged with the same crime.  That means that it is within the realm of possibility that someone I know might suddenly go off the ranch, and the fact that I deleted files on my computer or cleaned my browser history around the same time that it happened could become evidence that I was intentionally destroying evidence.

It is a search and seizure law that might just be too open-ended, or too serious.  It has the potential to turn a little crime into a big crime very quickly, even accidentally.  It sounds like something Congress might want to consider adjusting.  Sure, we want destruction of evidence with the intent of impeding a federal investigation to be a crime; it does not seem, though, as if Matanov’s efforts to distance himself from a couple of friends whom he no more suspected would be terrorist bombers than anyone anticipates the identity of the next mass shooter (he seemed like such a quiet person) is the kind of crime the law was intended to punish.

[contact-form subject='[mark Joseph %26quot;young%26quot;’][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Website’ type=’url’/][contact-field label=’Comment: Note that this form will contact the author by e-mail; to post comments to the article, see below.’ type=’textarea’ required=’1’/][/contact-form]