Category Archives: Constitutional Rights

State v. Allah: Probationer’s Right Against Unlawful Search

Bellingham Defense Attorney, Constitutional Rights, Firearm, Mount Vernon Criminal Defense Attorney, Probation, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

In State v. Allah, the WA Court of Appeals held a probationer’s vehicle was unlawfully searched and seized during a traffic stop. His prior criminal history, gang affiliations and geographic boundary  restrictions did not establish a sufficient nexus for a warrantless search.

FACTUAL BACKGROUND

In October 2020, Mr. Allah was on probation for a 2017 firearm conviction. He was driving his car in the Central District of Seattle, when a police officer pulled him over on suspicion of driving with a suspended license. After learning of Allah’s probationary status, the officer contacted the Department of Corrections (DOC). The Officer requested a Community Corrections Officer (CCO) arrive at the scene to discuss next steps.

While he was on his way to the scene, the CCO reviewed Allah’s prior conditions of community custody. The CCO noted Allah was in violation of a geographic boundary condition, which excluded him from the Central District. The geographic restriction  was in place because Allah was in a gang associated with the Central District.

Upon arriving at the scene, the CCO talked with Allah and then searched the car, specifically for a firearm. The CCO located a firearm on the floorboard underneath the driver’s seat. He collected the firearm as evidence and arrested Allah.

The State charged Allah with a Firearm Offense because his prior convictions barred him from possessing firearms. Allah moved to suppress the firearm evidence from the CCO’s search under a CrR 3.6 Motion. Allah argued there was an insufficient nexus between the search and Allah’s geographic violation. The judge denied Allah’s 3.6 Motion.

In December 2022, a jury convicted Allah as charged.  Allah appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) established that the Washington Constitution provides a robust privacy right; stating that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” That said, warrantless seizures are per se unreasonable and subject to limited exceptions. The State has the burden of proving a warrantless search falls within an exception.

THE COA further established that parolees and probationers have diminished privacy rights. This is because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls. As such, a probationer may be searched on the basis of a wellfounded or reasonable suspicion of a probation violation rather than a warrant supported by probable cause.

Even with probationer’s diminished privacy rights, however, the Washington Constitution permits a warrantless search of the property of an individual on probation only where there is a nexus between the property searched and the alleged probation violation.

“Permitting searches without a nexus would allow fishing expeditions to discover evidence of other crimes, past or present. After all, if a prior conviction, not to mention a prior arrest, should afford grounds for believing that an individual is engaging in criminal activity at any given time thereafter, that person would never be free of harassment, no matter how completely he had reformed.” ~WA Court of Appeals

The COA’s Rationale On “Sufficient Nexus”

The COA further surmised that even when there is a nexus between the property searched and the suspected probation violation, an individual’s reduced privacy interest is safeguarded in two ways. First, a CCO must have reasonable cause to believe’ a probation violation has occurred before conducting a search at the expense of the individual’s privacy. Second, the individual’s privacy interest is diminished only to the extent necessary for the State to monitor compliance with the particular probation condition that gave rise to the search. The individual’s other property, which has no nexus to the suspected violation, remains free from search.

In sum, neither CCO or the State provide a sufficient explanation of why any person would reasonably believe Allah may have had a weapon immediately preceding the search. No matter how the constitutionality of the search is conceptualized—i.e., whether as requiring a nexus between the boundary violation and the vehicle searched, or as simply requiring reasonable suspicion—the logical gap remains.

As to the geographic boundary, CCO admitted it was irrelevant to his decision to search. As to Allah’s prior firearm conviction, our Supreme Court has long explained that a probationer’s past convictions alone are not enough to support a search. Otherwise, a probationer “would never be free of harassment, no matter how completely he had reformed.”

With that, the COA reversed the lower court’s denial of Allah’s CrR 3.6 motion to suppress the firearm evidence. The COA also reversed Allah’s conviction, and remanded the matter to the lower court for future proceedings.

Please review my Search and Seizure Legal Guide and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

U.S. Supreme Court Ruling May Allow More Aggressive Homeless Encampment Removals

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Eighth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Activists demonstrate at the Supreme Court as the justices consider a challenge to rulings that found punishing people for sleeping outside when shelter space is lacking amounts to unconstitutional cruel and unusual punishment, on Capitol Hill April 22 in Washington. (AP photo/J. Scott Applewhite)

(AP photo/J. Scott Applewhite)

In City of Grants Pass, Oregon v. Johnson, the U.S. Supreme Court’s conservative majority upheld Oregon’s ban on camping. It found laws that criminalize sleeping in public spaces do not violate the Eighth Amendment’s protections against cruel and unusual punishment.

BACKGROUND FACTS

The city of Grants Pass in southern Oregon has a population of approximately 38,000. Of that population, somewhere between 50 and 600 persons are unhoused. Whatever the exact number of unhoused persons, however, it exceeds the number of available shelter beds, requiring that at least some of them sleep on the streets or in parks. However, several provisions of the Grants Pass Municipal Code prohibit them from doing so, including an “anti-sleeping” ordinance, two “anti-camping” ordinances, a “park exclusion” ordinance, and a “park exclusion appeals” ordinance.

A district court certified a class of plaintiffs of involuntarily unhoused persons living in Grants Pass. The district court concluded that, based on the unavailability of shelter beds, the City’s enforcement of its anti-camping and anti-sleeping ordinances violated the Cruel and Unusual Punishment Clause. A panel of the Ninth Circuit affirmed, and the Ninth Circuit denied rehearing en banc. The U.S. Supreme Court decided to hear the case.

COURT’S ANALYSIS & CONCLUSIONS

Writing for the majority, Justice Neil Gorsuch said that the nation’s policy on homelessness shouldn’t be dictated by federal judges, rather such decisions should be left to state and local leaders.

“Homelessness is complex,” Gorsuch wrote. “Its causes are many. So may be the public policy responses required to address it.”

“At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not,” ~U.S. Supreme Court Justice Neil Gorsuch

In a dissenting opinion, Justice Sonia Sotomayor wrote that, for some people, sleeping outside is a “biological necessity” and it’s possible to balance issues facing local governments with constitutional principles and the humanity of homeless people.

“Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.” ~Justice Sonia Sotomayor

Criminalizing homelessness can “cause a destabilizing cascade of harm,” Sotomayor added. When a person is arrested or separated from their belongings, the items that are frequently destroyed include important documents needed for accessing jobs and housing or items required for work such as uniforms and bicycles, Sotomayor wrote.

My opinion? The U.S. Supreme Court’s decision will likely result in municipalities taking more aggressive action to remove encampments. This may include searching homeless people’s property and/or discarding it. Since the ruling allows municipalities to issue more citations and arrests without violating the Eighth Amendment, the decision could lead to more legal claims over other constitutional protections, which could include the disposal of people’s property during encampment removals. Other legal claims over cities’ treatment of homeless people have focused on rights protecting against unreasonable search and seizure and guaranteeing due process, in the Fourth and 14th Amendments.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prison Inmates Get To View The Eclipse

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Prisoners demand to watch the solar eclipse

Photo courtesy of Gencraft AI

USA Today reports that inmates at a New York prison sued the state corrections department over the Monday total solar eclipse. Fortunately, the inmates will be able to see the celestial event after all.

The lawsuit came after one of the named plaintiffs, an atheist, received special permission last month to view the eclipse before the statewide prison lockdown was announced. However, prison officials ultimately denied permission to other inmates to be exempt from the lockdown order. Shortly after, the lawsuit was filed in federal court in upstate New York. It listed six plaintiffs of various religious faiths and claimed that the lockdown violated their religious rights.

“These inmates are asking for the most human of things: To gather and celebrate something that is greater than themselves. For many, this eclipse is a moment of monumental religious significance that cannot be overlooked or dismissed out of hand.” ~Court Documents Filed in Lawsuit

Corrections officials agreed Thursday to permit the plaintiffs – a Baptist, a Muslim, a Seventh-Day Adventist, two practitioners of Santeria and an atheist – to view the eclipse in exchange for the lawsuit’s dismissal.

“We are pleased that, in response to our lawsuit alleging religious discrimination, New York State has entered into a binding settlement agreement that will allow our six clients to view the solar eclipse in accordance with their sincerely held religious beliefs.” ~Attorney Christopher L. McArdle, one of the attorneys representing the inmates.

New York, which has not experienced a total solar eclipse since 1925, is one of 13 states directly on the eclipse’s path of totality. The astral event has been widely anticipated for months, if not years. As a result, it is expected to draw a heavy influx of tourists as the moon completely blocks the sun’s disc. The rare celestial phenomenon will reveal the sun’s elusive outermost layer known as the corona.

PLAINTIFFS SAY ECLIPSE HAS RELIGIOUS MEANINGS

All plaintiffs claimed in the lawsuit that the solar eclipse was deeply intertwined with the teachings of their respective religions.

In Christianity, the darkness described in the Bible as accompanying Jesus’ crucifixion has been interpreted as an eclipse, while in Islam, sacred works similarly describe the passing of the Prophet Muhammad’s son. Practitioners of Santeria also trace historical ties to chanting rituals performed during a solar eclipse. For atheists, an eclipse may not be a time for worship, but it’s still a time to marvel about the natural wonders of the universe, the lawsuit contended.

My opinion? Great work by the Plaintiffs’ attorneys. And wonderful decision on the part of NY Corrections Department. Religious liberty is a foundational principle of enduring importance in America, enshrined in our Constitution and other sources of federal law.  Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. It also encompasses religious observance and practice. Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including the incarceration of prisoners.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

DNA + Facial Recognition Technology = Junk Science

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , , ,

Psychological Assessment in Legal Contexts: Are Courts Keeping “Junk Science” Out of the Courtroom? – Association for Psychological Science – APS

Intriguing article in Wired featured a story where police used DNA to predict a suspect’s face and then tried running facial recognition technology on the photo.

BACKGROUND FACTS

In 2017, detectives working a cold case at the East Bay Regional Park District Police Department got an idea, one that might help them finally get a lead on the murder of Maria Jane Weidhofer. Officers had found Weidhofer, dead and sexually assaulted, at Berkeley, California’s Tilden Regional Park in 1990. Nearly 30 years later, the department sent genetic information collected at the crime scene to Parabon NanoLabs—a company that says it can turn DNA into a face.

Soon, Parabon NanoLabs provided the police department with the face of a potential suspect, generated using only crime scene evidence.

The image Parabon NanoLabs produced, called a Snapshot Phenotype Report, wasn’t a photograph. It was a 3D representation of how the company’s algorithm predicted a person could look given genetic attributes found in the DNA sample.

The face of the murderer, the company predicted, was male. He had fair skin, brown eyes and hair, no freckles, and bushy eyebrows. A forensic artist employed by the company photoshopped a nondescript, close-cropped haircut onto the man and gave him a mustache—an artistic addition informed by a witness description and not the DNA sample.

In 2017, the department published the predicted face in an attempt to solicit tips from the public. Then, in 2020, one of the detectives  asked to have the rendering run through facial recognition software. It appears to be the first known instance of a police department attempting to use facial recognition on a face algorithmically generated from crime-scene DNA.

At this point it is unknown whether the Northern California Regional Intelligence Center honored the East Bay detective’s request.

DOES THIS SEARCH VIOLATE CONSTITUTIONAL RIGHTS?

Some argue this search emphasizes the ways that law enforcement is able to mix and match technologies in unintended ways. In short, this search uses untested algorithms to single out suspects based on unknowable criteria.

“It’s really just junk science to consider something like this,” Jennifer Lynch, general counsel at civil liberties nonprofit the Electronic Frontier Foundation, tells WIRED. Running facial recognition with unreliable inputs, like an algorithmically generated face, is more likely to misidentify a suspect than provide law enforcement with a useful lead, she argues.

“There’s no real evidence that Parabon can accurately produce a face in the first place . . . It’s very dangerous, because it puts people at risk of being a suspect for a crime they didn’t commit.” ~Jennifer Lynch, General Counsel at Electronic Frontier Foundation.

According to a report released in September by the US Government Accountability Office, only 5 percent of the 196 FBI agents who have access to facial recognition technology from outside vendors have completed any training on how to properly use the tools. The report notes that the agency also lacks any internal policies for facial recognition to safeguard against privacy and civil liberties abuses.

In the past few years, facial recognition has improved considerably. In 2018, when the National Institute of Standards and Technology tested face recognition algorithms on a mug shot database of 12 million people, it found that 99.9 percent of searches identified the correct person. However, the NIST also found disparities in how the algorithms it tested performed across demographic groups.

A 2019 report from Georgetown’s Center on Privacy and Technology was written by Clare Garvie, a facial recognition expert and privacy lawyer. She found that law enforcement agencies nationwide have used facial recognition tools indiscriminately. They’ve tried using images that include blurry surveillance camera shots, manipulated photos of suspects, and even composite sketches created by traditional artists.

“Because modern facial recognition algorithms are trained neural networks, we just don’t know exactly what criteria the systems use to identify a face . . . Daisy chaining unreliable or imprecise black-box tools together is simply going to produce unreliable results. We should know this by now.” ~ Clare Garvie, Esq.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

“No Hostile Contact With Police” Sentencing Condition Held Unconstitutionally Vague

Bellingham Defense Attorney, Burglary, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Void for Vagueness Doctrine

In State v. Shreve, the WA Court of Appeals held that a felony sentence condition prohibiting the defendant from having any future hostile contact with law enforcement was unconstitutionally vague.

BACKGROUND FACTS

In March 2022, Shreve attended a party at a hotel. He got into a physical altercation with another individual at the hotel. A hotel security guard intervened. When approached by the security guard, Shreve drew a knife and lunged toward him. The security guard blocked the attack and disarmed Shreve. The security guard confiscated the knife and brought Shreve to the lobby.

Police were dispatched. Upon arrival, a police officer saw Shreve seated in the lobby while the security guard stood nearby. Shreve appeared to be intoxicated and angry. The police officer and the security guard initially decided to allow Shreve to leave the hotel without his knife. However. Shreve escalated the situation by suddenly and aggressively moving toward the security guard.

A physical scuffle ensued. The officers forced Shreve to the ground and attempted to handcuff him. Ultimately, Officer Hannity was forced to use his taser to subdue Shreve.

On June 30, 2022, Shreve pleaded guilty to a single count of second degree burglary. Shreve was sentenced the same day. As a first-time offender, Shreve was sentenced to one day of confinement and twelve months of community custody. The sentencing court imposed several community custody conditions, including “No hostile contact with law enforcement/first responders.”

Shreve appealed his community custody sentencing condition. He argued that the community custody condition prohibiting him from having “hostile contact” with law enforcement is unconstitutionally vague and not crime-related. Shreve also argued that the condition was overbroad and infringed on his First Amendment rights.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals agreed with Mr. Shreve.

First, it addressed Mr. Shreve’s arguments that his community custody condition is unconstitutionally vague. He asserts the term “hostile” is not subject to a clear definition and is especially susceptible to arbitrary enforcement because it could encompass a wide range of everyday conduct and permit law enforcement officers to decide subjectively for themselves what constitutes hostile behavior.

“Whether a condition is sufficiently specific is a constitutional issue,” said the Court of Appeals. “Due process requires that individuals have ‘fair warning’ of what constitutes prohibited conduct.”

Next, the Court of Appeals applied a two-prong analysis to determine whether a condition is sufficiently specific and not unconstitutionally vague. A condition is not unconstitutionally vague if (1) it defines the prohibited conduct so an ordinary person can understand what the condition means, and (2) it provides ascertainable standards to protect against arbitrary enforcement.

1. THE TERM “HOSTILE” DOES NOT CLARIFY WHAT BEHAVIOR IS PROHIBITED.

The Court reasoned that here, the term “hostile” does not clarify what behavior is prohibited. The term “hostile” has a wide variety of dictionary definitions, which is indicative of its imprecision in this context. An individual’s conduct may be considered hostile when it is marked by malevolence and a desire to injure. However, it may also be considered hostile when it is marked by antagonism or unfriendliness.

“Given the broad range of conduct this term could cover, what the condition prohibits is guesswork. Thus, the ambiguous scope of the term “hostile” fails to provide Shreve with fair warning of the type of behavior prohibited by the condition. The first prong of the vagueness analysis fails.” ~WA Court of Appeals

2. THE CONDITION WAS SUSCEPTIBLE TO ARBITRARY ENFORCEMENT.

The Court of Appeals explained that a community custody condition is unconstitutionally vague when enforcement relies on a subjective standard. It reasoned that here, even assuming Shreve could generally understand what “no hostile contact” means, the condition fails the second prong because it is overly susceptible to arbitrary enforcement.

“Considering that interactions with police officers are often investigative or even adverse in nature, separating hostile contact with law enforcement from an adverse, but non-hostile, contact is simply too subjective to be constitutional.” ~WA Court of Appeals

With that, the Court of Appeals decided  Shreve’s “no hostile contact with law enforcement” condition was unconstitutionally vague.

My opinion? However well-intentioned by the sentencing court to protect law enforcement and first responders from enduring undeserved aggressive interactions, this particular community condition cannot withstand constitutional scrutiny.

Clearly, some community custody conditions are unconstitutional. Best to avoid felony convictions altogether. Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Gunshot Location Technology: Effective or Not?

ACLU, Bellingham Defense Attorney, Constitutional Rights, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , , ,

How ShotSpotter CEO says technology can 'change the risk calculation' for shooters - mlive.com

In an interesting story, the Seattle City Council has greenlit funding for a controversial gunshot locator system as part of a larger crime prevention pilot project.

WHAT IS GUNSHOT DETECTION TECHNOLOGY?

Gunshot Detection Technology (GDT) uses sophisticated acoustic sensors to detect, locate and alert law enforcement agencies and security personnel about local illegal gunfire incidents in real-time. The digital alerts include a precise location on a map. It corresponds data such as the address, number of rounds fired, type of gunfire, etc. delivered to any browser-enabled smartphone or mobile laptop device as well as police vehicle MDC or desktop.

GDT is touted to protect officers by providing them with increased tactical awareness. It also enables law enforcement agencies to better connect with their communities and bolsters their mission to protect and serve.

With GDT, officers can more quickly arrive at the scene of a crime with an increased level of safety. They know exactly where the gunfire took place. In many cases, an officer can arrive with the shooter still at the crime scene. If the criminal has fled, shell casings and/or other evidence can be recovered and used for investigative and potential prosecution purposes and key witnesses can be interviewed at the crime scene.

Below are just some of the reports showing how ShotSpotter technology is being rejected by cities and police departments. It can can hurt police response times, result in more racial bias, and violate people’s civil liberties.

POLICE CHIEFS CRITICAL OF SHOTSPOTTER, CITIES PULLING OUT OF CONTRACTS

  • San Antonio’s chief of police led the charge to end the city’s ShotSpotter program. He said, “We made a better-than-good-faith effort trying to make it work.” Instead of renewing with ShotSpotter, he said “We’re going to use that money to provide more community engagement, which ShotSpotter can’t provide.”
  • When Fall River, Massachusetts ended its contract with ShotSpotter, their chief of police said, “It’s a costly system that isn’t working to the effectiveness that we need it to work in order to justify the cost.” 
  • Portland, Oregon decided not to move forward with ShotSpotter in July after their mayor approved a pilot program in 2022. The mayor said he was interested in pursuing better strategies.
  • Atlanta decided not to move forward with the technology after two separate pilot programs led to poor results.
  • Chicago’s mayor promised to get rid of ShotSpotter in the city during his campaign. Their contract with the company is up in February.
  • New Orleans; Dayton, OH; Charlotte, NC; and Trenton, NJ also ended their ShotSpotter contracts.

INEFFECTIVE AND HURTS POLICE RESPONSE TIMES

  • A study found that CCTV paired with ShotSpotter-type technology, as proposed in this budget, “did not significantly affect the number of confirmed shootings, but it did increase the workload of police attending incidents for which no evidence of a shooting was found.”
  • A study published last year of 68 large metropolitan counties in the United States found “ShotSpotter technology has no significant impact on firearm-related homicides or arrest outcomes.”
  • An article by a crime analyst working for the St. Louis Police Department found ShotSpotter-type technology “simply seem to replace traditional calls for service and do so less efficiently and at a greater monetary cost to departments.”
  • A report by the Chicago inspector general found that around 90 percent of ShotSpotter alerts are false positives, resulting in police being dispatched 40,000 times when no gun-related violence had taken place.
  • The technology was found to be ineffective in a report by the City of Atlanta, costing $56,000 per gun recovered – money that would have been more effective in other programs.

CIVIL LIBERTY & EQUITY CONCERNS

  • The ACLU-WA has asked the Council to reject funding ShotSpotter, “given that investing in gunshot detection and CCTV technologies will not prevent crime and violence and will adversely impact communities through increased police violence and heightened privacy risks.”
  • Privacy advocates recently asked the Department of Justice to investigate gunshot detection companies because they lead to over policing of communities of color and may be violating the Civil Rights Act.
  • Faulty evidence from ShotSpotter has been used to wrongfully imprison people like Michael Williams. He was held in Chicago for more than a year before the charges were dismissed and prosecutors admitted they had insufficient evidence, according to an AP report.

My opinion? Only time will tell whether GDT is effective and/or equitable.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Ross: Washington’s Unlawful Possession of a Firearms Statute Is Constitutional

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Philadelphia Law Firm, Kenny, Burns & McGill | New District Court Opinion on Felons and Gun Ownership

In State v. Ross, the WA Court of Appeals held that the Second Amendment does not bar the state from criminalizing the possession of firearms by felons. Consequently, Washington’s Unlawful Possession of a Firearms in the First Degree statute is constitutional.

BACKGROUND FACTS

Mr. Ross was convicted of Unlawful Possession of a Firearms in the First Degree. His conviction was based on a prior 2010 conviction for second degree burglary. Unfortunately for Ross, his burglary conviction is a defined “serious offense” under WA’s Sentencing Reform Act.

Ross appealed. He argued that under the Second Amendment and New York State Rifle & Pistol Ass’n v. Bruen, Washington’s Firearms Statute RCW 9.41.040(1) was unconstitutional as applied.

COURT’S ANALYSIS & CONCLUSIONS

The Court began with a critique of the Second Amendment right to bear arms. The Court recognized, however, that the right secured by the Second Amendment is not unlimited. In District of Columbia v. Heller, the U.S. Supreme Court identified several longstanding prohibitions, including possession by felons:

“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” ~WA Court of Appeals quoting District of Columbia v. Heller.

Next, the Court of Appeals analayzed the U.S. Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen. In Bruen, the Supreme Court considered and struck down New York’s regulatory licensing program requiring applicants to prove that they had “proper cause” to carry a handgun in public.

The WA Court of Appeals emphasized that Bruen was intentionally drafted to be limited in its scope. As a result, Bruen did not overrule Washington’s own time-stested caselaw on the subject matter:

“Indeed, at least 11 times the majority referenced the Second Amendment right of “law-abiding” citizens . . . Of the six justices in the majority, three wrote or joined in concurring opinions clarifying the scope of their decision. We hold that consistent with Heller, McDonald, and Bruen, the Second Amendment does not bar the state from prohibiting the possession of firearms by felons as it has done in RCW 9.41.040(1). RCW 9.41.040(1) is facially constitutional.” ~WA Court of Appeals.

Next the WA Court of Appeals adressed Ross’s argument that because his underlying crime of second degree burglary was nonviolent,  RCW 9.41.040(1) was unconstitutional as applied.

“We disagree for two reasons,” said the Court. First, Ross’s attempt to distinguish violent and nonviolent felons is of his own construct. There are no prior court opinions distinguishing violent felons from nonviolent felons. Second, the legislature has defined second degree burglary as a violent crime:

“The prohibition on possession of firearms under RCW 9.41.040(1)(a) applies to any person previously convicted of “any serious offense.” A “serious offense” is defined by the same statute to include “[a]ny crime of violence.” RCW 9.41.010(42)(a). And a “crime of violence” is defined to include burglary in the second degree . . . Ross offers no support for the proposition that the legislature did not intend to define burglary in the second degree as a serious offense and a crime of violence.” ~WA Court of Appeals

With that, the WA Court of Appeals upheld Mr. Ross’s conviction.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

No Books for Inmates

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

What Books Are Banned in Prisons? A State-by-State Breakdown | The Marshall Project

Interesting article from the Marshall Project says prisons are preventing inmates from receiving books.

The Marshall Project has documented more than 50,000 records of publications dating back to the 1990s being banned by state prisons that censor materials. These books contain sexual content, references to racial justice or other topics corrections staff deem inappropriate, or threats to security. However, free speech advocates and groups that promote reading in prison say the increased crackdowns that limit who can mail books inside amount to harmful, de facto book bans while doing little to help prevent overdose deaths behind bars.

THE ARGUMENT: BOOKS SMUGGLE CONTRABAND INTO PRISONS.

Karen Pojmann, a spokesperson for Missouri Department of Corrections, said the department implemented the rule after mailroom staff found paper soaked with drugs such as methamphetamine. “We are trying to save lives,” she said.

Pojmann was unable to provide data on the total number of overdose deaths in Missouri prisons in recent years. But deaths from drug overdoses have been plaguing prisons and jails. According to data from the U.S. Department of Justice, 253 people died in prisons nationwide from drug or alcohol intoxication in 2019, a significant increase from 2001 when that number was 35 people.

NUMEROUS STATE PRISONS ARE NOW BANNING BOOKS.

Iowa, Missouri and Texas have cracked down on who can send books, citing concerns over narcotics-laced paper.

In September, Missouri banned individuals and organizations from sending books to people in prison, or even purchasing them on someone’s behalf. Instead, incarcerated people must purchase books themselves.

Other states have made similar changes. In Iowa prisons, books can only come from two approved vendors, a policy adopted in 2021 according to local news reports. But those vendors have limited selections. For example, Ralph Ellison’s classic book “Invisible Man,” which explores issues of racism and Black identity, is not available from either vendor, despite being a key piece of the U.S. literary canon.

In addition to the tighter rules about who can send books inside, books-to-prisoner programs said many states are being stricter in their screening process. The programs have had packages rejected because the wrapping had too much tape. Facilities in some states also refused packages because they were wrapped in brown butcher paper instead of white.

FREE-SPEECH ADVOCATES PROTEST THE BANNING OF BOOKS.

Moira Marquis, a senior manager at PEN America, an organization that advocates literary and journalistic freedom, has been researching access to books in prison. She said these policies that bar books based on their origin or how they are mailed rather than their content are growing and threaten incarcerated people’s right to access books and information. Based on calls to prison mailrooms in 16 states, PEN America found more than 80% of those state and federal correctional institutions now dictate that literature come from approved vendors, according to a report to be released this October.

“Absolutely, these policies are censorship . . . This is depriving people from being able to acquire information.” ~Moira Marquis, Senior Manager at PEN America.

ARE BOOKS THE CULPRIT FOR DRUG OVERDOSES IN PRISONS?

There is evidence from other states that guards are a source of drugs and other illegal contraband. Since 2018, there have been at least 360 cases of staff smuggling contraband, including drugs, into Georgia state prisons, according to an investigation from The Atlanta Journal-Constitution. And a study from The Urban Institute that looked at a handful of correctional facilities across the country found staff were a common source of contraband cellphones and cigarettes in Florida.

Prison is a terrible place.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA Attorney General Advises Pawn Shops on Handling Assault Rifles

Bellingham Defense Attorney, Constitutional Rights, Firearm, Legislation, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

How does a person buy a gun from a shop? | WFXL

Much confusion has arisen in the wake of WA State’s recent ban on assault rifles. Some thorny legal issues surrounding the changing role of pawn shops and their handling of assault rifles are especially interesting. For instance, if a pawnbroker receives an assault weapon, does the law permit the pawnbroker to return the firearm to the owner on repayment of the loan? And if the owner of a pawned assault weapon defaults on the loan, does the law allow the pawnbroker to sell the firearm?

In AGO 2023 No. 5 (October 5, 2023), the WA Attorney General answered these questions.

FACTUAL BACKGROUND

 SHB 1240 was signed into law by the governor on April 25, 2023, and became effective immediately. Its stated purpose is to limit the prospective sale of assault weapons, while allowing existing legal owners to retain the assault weapons they currently own. To that end, section 3 of the bill enacts the following prohibition: “No person in this state may manufacture, import, distribute, sell, or offer for sale any assault weapon, except as authorized in this section.” A violation of section 3 is a gross misdemeanor.

Pawnbrokers engage in the business of loaning money on the security of pledges of personal property. The term of a pawnbroker loan is ninety days. The customer may redeem their pledged property at any time during the loan period upon repayment of the loan principal, interest, and associated fees. After the term of the loan, unredeemed property on unpaid loans becomes the property of the pawnbroker.

1. If a pawnbroker receives an assault weapon, does the law permit the pawnbroker to return the firearm to the owner on repayment of the loan?

Yes. The Attorney General opined that the legislature’s express intent in enacting SHB 1240 was to allow existing legal owners to retain the assault weapons they currently own. Within the term of a pawnbroker loan, the pledgor retains ownership of the pledged article and retains the right to redeem the pledge at any time.

“The legislature’s stated intent in enacting SHB 1240 confirms this reading. The stated purpose of SHB 1240 is ‘to limit the prospective sale of assault weapons, while allowing existing legal owners to retain the assault weapons they currently own.’ Laws of 2023, ch. 162, § 1. This enacted statement is included within the plain reading of the statute. See G-P Gypsum Corp., 169 Wn.2d at 310. As RCW 19.60.061 makes clear, the pledgor remains the ‘existing legal owner’ of the assault weapon during the loan period, and thus, consistent with the legislature’s explicit intent, remains entitled to retain the assault weapons they currently own.” ~WA Attorney General.

In other words, a pawnbroker who receives an assault weapon as security for a loan may lawfully return the weapon upon repayment of the loan. Returning the assault rifle to the owner  is not an unlawful “delivery.” It is merely a return of property of which the pawnbroker was a bailee.

2. If the owner of a pawned assault weapon defaults on the loan, does the law allow the pawnbroker to sell the firearm?

No. Pawnbrokers are now prohibited from selling assault weapons they receive as security to a loan. Instead, pawnbrokers may sell assault weapons to the armed forces or to a state law enforcement agency for use by that agency or its employees for law enforcement purposes.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Mississippi’s Lifetime Voting Ban on Felons Held Unconstitutional

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Voting Rights, Whatcom County Criminal Defense, , , , ,

Opinion | The Racist Origins of Felon Disenfranchisement - The New York Times

Journalist Nick Robertson for The Hill reports that the 5th Circuit Federal Court of Appeals ruled Mississippi’s lifetime voting ban for those convicted of certain felonies is unconstitutional. This ruling overturns a 19th-century Jim Crow Law widely considered “cruel and unusual punishment.”

“In the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society. … Mississippi stands as an outlier among its sister states, bucking a clear national trend in our nation against permanent disenfranchisement.” ~5th Circuit Court of Appeals

The Mississippi law says anyone convicted of bribery, theft, arson, perjury, forgery, embezzlement or bigamy could never have their voting right reinstated.

The nonprofit Sentencing Project found that Mississippi has one of the country’s most strict disenfranchisement laws, impacting about 11 percent of all otherwise eligible voters. That is the highest proportion of any state.

The disenfranchisement provision “serves no legitimate penological purpose,” the opinion reads.

“By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society.” ~5th Circuit Court of Appeals

The law was passed in 1890 as part of early Jim Crow provisions attempting to disenfranchise and limit the rights of Black residents.

The Southern Poverty Law Center also pursued the lawsuit, representing those who were disenfranchised by the law.

“Section 241 of the Mississippi Constitution lifetime disenfranchisement scheme disproportionately impacted Black Mississippians,” SPLC attorney Ahmed Soussi said in a statement. “We applaud the court for reversing this cruel and harmful practice and restoring the right to vote to tens of thousands of people who have completed their sentences.”

The case also attracted the support of legal aid nonprofits, including the Legal Defense Fund, which submitted an amicus brief on behalf of the plaintiffs in December.

“Section 241 is Jim Crow law, which created a deliberate and invidious scheme to disenfranchise Black people,” Legal Defense Fund attorney Patricia Okonta said in December.

The state now has the opportunity to appeal the ruling to the entire 5th Circuit or the Supreme Court.

My opinion? Excellent decision. The right to vote is the cornerstone of a functioning democracy. This is a major victory for Mississippians who have completed their sentences and deserve to participate fully in our political process. Mississippi is finally being held accountable for its sordid history of racial discrimination that has led to the disproportionate disenfranchisement of its Black citizens.

Nowadays, an estimated 4.6 million Americans are barred from voting due to a felony conviction.

Please contact my office if you, a friend or family member are charged with a crime. Losing your right to vote is an awful consequence to be avoided. Hiring an effective and competent defense attorney is the first and best step toward justice.