Category Archives: First Amendment

Should We Criminalize “Big Lies?”

Write a Political Speech for Strategic Communications

Gov. Jay Inslee supports legislation to make it a gross misdemeanor for politicians to issue false statements about election outcomes.

Inslee announced his support for the legislation during a legislative preview event hosted by the Associated Press which coincided with the anniversary of the January 6, 2021 attack on the U.S. Capitol by supporters of former President Donald Trump.

The three-term Democratic governor, in his most extensive comments on the subject to date, spoke passionately about his concern for the state of democracy in the United States and his belief that Trump is engaged in an ongoing coup attempt. He called for politicians on both sides of the aisle to speak out more forcefully against the former president and his allies.

“It should not be legal in the state of Washington for elected officials or candidates for office to willfully lie about these election results, and unfortunately they are doing that . . . This needs to be made illegal . . . The violence of January 6 of last year is just a warning of what is coming and the basis of it is the ‘Big Lie’ . . . That’s why I’m calling on all elected officials of both parties to join together arm-in-arm and call that out.” ~Governor Jay Inslee

The “Big Lie” is a reference to the false assertion by Trump and his supporters that the 2020 election was stolen.

“The defeated president and his allies, including some legislators in Washington state, are perpetuating the belief that this election was stolen from them,” Inslee said. “What do you think is going to happen if you perpetuate that belief? Of course violence can be happening as a result of that.”

Regarding his proposal to criminalize false statements about elections, Inslee said the “finishing touches” were being put on a draft of the bill and that his office was talking to lawmakers about sponsoring it. The proposal would be narrowly tailored to target “lies about free and fair elections when it has the likelihood to stoke violence.”

Inslee defended the idea of criminalizing unsupported claims of election fraud and stolen elections — if they’re likely to result in violence — as not a violation of freedom of speech. The governor likened the rhetoric about elections being stolen to “yelling fire in a crowded theater.”

“The defeated president as recently as an hour ago is yelling fire in the crowded theater of democracy,” Inslee said, referring to statements Trump issued Thursday. Those statements included: “Never forget the crime of the 2020 Presidential Election. Never give up!”

My opinion? Many believe the incendiary rhetoric of political leaders makes political violence more likely. It gives violence direction, complicates the law enforcement response, and increases fear in vulnerable communities.

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

Political Violence

Political Violence Threatens to Destabilize America | Time

Wonderful article from CNN reporter Paul LeBlanc discusses the rising acceptance of political violence in the aftermath of the January 6th riot.

According to LeBlanc, two recent polls on this issue show our country is deeply divided on political lines. Thirty-four percent of Americans think violent action against the government is sometimes justified, according to a poll from The Washington Post and the University of Maryland released Saturday. The survey, conducted December 17-19, revealed stark partisan splits. Apparently, 40% of Republicans and 41% of independents said violence against government is sometimes justified, compared with 23% of Democrats.

Our New Normal? Listen to what David Frum, a veteran of the George W. Bush White House, told CNN’s Brian Stelter this weekend about the mentality of Trump’s allies and followers a year after the Capitol attack.

LeBlanc also discusses a recent survey from the Institute of Politics at the Harvard Kennedy School that found most American adults younger than 30 are concerned about the US and its democracy. Young adults say, by 55% to 44%, that they’re more fearful than hopeful about the future of America. This shows a shift from earlier in 2021, when most said they were hopeful. Only about one-third describe the US as a healthy or even “somewhat functioning” democracy, with 52% saying it’s a “democracy in trouble” or that it’s failed altogether.
Young Republicans are especially pessimistic. 70% say American democracy is in trouble or failed, compared with 45% of young Democrats who say the same.
“After turning out in record numbers in 2020, young Americans are sounding the alarm . . . When they look at the America they will soon inherit, they see a democracy and climate in peril — and Washington as more interested in confrontation than compromise.” ~John Della Volpe, Director of the Institute of Politics Polling
My opinion? There’s a fine line between freedom of speech and political violence. Please contact my office if you, a friend or family member are charged with Harassment, Resisting Arrest, or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

True Threats

P Emojis and Emoticons in Court – The Air Force JAG Corps Reporter

In State v. D.R.C., the WA Court of Appeals held that a 17-year-old girl’s text messages to friends which aired her grievances about her mother after they verbally argued did not constitute “true threats” for purposes of proving Harassment.

BACKGROUND FACTS

The case against 17-year-old juvenile defendant D.R.C. began with a mother-daughter dispute over whether D.R.C. violated house rules by possessing gang-colored clothing. The argument took place in D.R.C.’s bedroom, and at some point D.R.C. slammed her door shut. D.R.C.’s mother responded by removing the door from its hinges.

During the argument with her mother, D.R.C. was on her phone and texting with several friends, indicating she wanted to kill her mother. The texts were vaguely worded and peppered with smiling emojis and the initialism “LOL.”

After removing D.R.C.’s bedroom door, the mother confiscated D.R.C.’s phone and turned to leave the room. As she was leaving, D.R.C.’s mother heard a loud noise. D.R.C. had punched her bedroom wall, leaving a hole in it. D.R.C.’s mother called the police. The police arrived and talked to D.R.C. and her mother, but did not take further action. Later that night, D.R.C.’s mother reviewed D.R.C.’s phone and discovered the text messages.

D.R.C.’s mother shared the text messages with the police. The State charged D.R.C. with felony harassment in juvenile court. The case proceeded to trial. The juvenile court found D.R.C. guilty of harassment.

D.R.C. appealed under arguments that the State failed to meet the additional burden of proving a true threat.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that in order to penalize a defendant for harassment, the State must prove not only the elements of the offense but also that the defendant’s words were not the type of speech protected by the First Amendment.

“A true threat is a serious threat,” said the Court. “It is not an idle statement, a joke, or even a hyperbolic expression of frustration.” The court further reasoned that when analyzing whether a statement is a “true threat” it looks carefully at the context of the inflammatory statement in order to avoid infringement on the precious right to free speech.

“The focus of the true threat analysis is on the speaker. But we do not look at the speaker’s actual intent . . . Instead, the test is objective . . . We ask whether a reasonable person in the speaker’s position would foresee their statement would be interpreted as a serious expression of intent to cause physical harm.” ~WA Court of Appeals

Next, the Court of Appeals examined whether D.R.C.’s friends thought the threats were “true threats.” It reasoned that D.R.C.’s past conversation with one friend supports D.R.C.’s testimony that she tended to use hyperbolic language with her friends. “In the prior text between D.R.C. and Lexy, D.R.C. accompanied her statements about harming or killing a mutual acquaintance with ”Lmfao”; the face with tears of joy emoji, ; a shrug emoji, ; a smiling face with horns emoji, ; a zany face emoji, ; and a heart emoji,” said the Court of Appeals. “The combination of the initialism and emojis conveyed an unmistakable message of sarcasm, as opposed to a serious intent to cause harm or death.”

“The language used by D.R.C. was distastefully violent, but it was not as disturbing as some of the past statements held to fall within First Amendment protections.” ~WA Court of Appeals

The Court of Appeals reversed D.R.C.’s conviction – but not without warning:

“While we rule in D.R.C.’s favor, our disposition should not be interpreted as approval of D.R.C.’s choice of language . . . We, like the trial court, find nothing funny in the texts. Nevertheless, the First Amendment protects all sorts of speech, even when the sentiment is hurtful or vile.” ~WA Court of Appeals

My opinion? I’ve gained jury acquittals in similar cases. In proving harassment charges, the State must prove that a reasonable person would have felt the threats were true threats under the circumstances. That’s a high burden to prove. Many people – indeed, most people – are guilty of making threats during or after an emotional situation. However, simply uttering threats does not logically mean that the threat is intended to be carried out out.

Please contact my office if you, a friend or family member are charged with Harassment. Hiring an experienced criminal defense attorney like myself is the first and best step towards justice.

Praying While Arrested

Image result for praying while handcuffed

In Sause v. Bauer, the United States Supreme Court held that a police officer may lawfully prevent a person from praying at a particular time and place, such as when a suspect who is under arrest seeks to delay the trip to the jail by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.

BACKGROUND FACTS

Petitioner Mary Ann Sause filed this civil rights action under U. S. C. §1983, and named the Louisburg, Kansas, police department as the defendant/respondent in the lawsuit.

The centerpiece of Ms. Sause’s complaint was the allegation that two of the town’s police officers visited her apartment in response to a noise complaint, gained admittance to her apartment, and then proceeded to engage in a course of strange and abusive conduct, before citing her for disorderly conduct and interfering with law enforcement.

At one point, Ms. Sause knelt and began to pray. However, one of the officers ordered her to stop. She also claimed that officers refused to investigate her complaint that she was assaulted by residents of her apartment complex, and that officers threatened to issue a citation if she reported this to another police department. In addition, she alleged that the police chief failed to follow up on a promise to investigate the officers’ conduct.

Ms. Sause’s complaint asserted a violation of her First Amendment right to the free exercise of religion and her Fourth Amendment right to be free of any unreasonable search or seizure. The defendants moved to dismiss the complaint for failure to state a claim on which relief may be granted, arguing that the defendants were entitled to qualified immunity. The Federal District Court granted the motion to dismiss her lawsuit.

Ms. Sause appealed, however, the Court of Appeals for the Tenth Circuit affirmed the decision of the District Court, concluding that the officers were entitled to qualified immunity.

COURT’S ANALYSIS AND CONCLUSIONS

“There can be no doubt that the First Amendment protects the right to pray,” said the Court. “Prayer unquestionably constitutes the “exercise” of religion.” The Supreme Court also reasoned that at the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. “For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.”

Furthermore, the Court also reasoned that when an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

The court ruled that in this case, it was is unclear whether the police officers were in Ms. Sause’s apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful. The Court found that Ms. Sause’s complaint contains no express allegations on these matters. “Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying. Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.”

Despite agreeing with the Government on this issue, the Supreme Court nevertheless reversed the judgment of the Tenth Circuit which dismissed Ms. Sause’s case and remanded her case back to federal court for further proceedings consistent with this opinion.

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.

Definition of “Porn” Vague

We need a new definition of pornography—with consent at the centre

In State v. Padilla, the WA Supreme Court held that a defendant’s parole conditions prohibiting him from possessing or accessing pornographic materials was unconstitutionally vague because the accompanying definition of “pornographic materials” is vague and overbroad.

BACKGROUND FACTS

Mr. Padilla was convicted for communicating with a minor for immoral purposes. The court sentenced him to 75 days of confinement and 12 months of community custody, imposing multiple conditions.

Padilla challenged the condition prohibiting his possession and access to pornographic materials. The term “pornographic material’ was defined by Padilla’s Community Corrections Officer (CCO) as “images of sexual intercourse, simulated or real, masturbation, or the display of intimate body parts.”

 COURT’S ANALYSIS & CONCLUSIONS

The Court reasoned that a legal prohibition, such as a community custody condition, is
unconstitutionally vague if (1) it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement.  Furthermore, a vague condition infringing on protected First Amendment speech can chill the exercise of those protected freedoms. A restriction implicating First Amendment rights demands a greater degree of specificity and must be reasonably necessary to accomplish the essential needs of the state and public order.

“Padilla notes that the prohibition against viewing depictions of simulated sex would unnecessarily encompass movies and television shows not created for the sole purpose of sexual gratification,” said the Court. “We agree.”

“Films such as Titanic and television shows such as Game of Thrones depict acts of simulated intercourse, but would not ordinarily be considered ‘pornographic material.’ We agree. The prohibition against viewing depictions of intimate body parts impermissibly extends to a variety of works of arts, books, advertisements, movies, and television shows.” See Jenkins v. Georgia, (the depiction of nudity alone is not enough to make material legally obscene).”

The Court further reasoned that, on its face, the plain language of the pornography condition and its relevant definition is ambiguous. In application, the definition does not provide adequate notice of what behaviors Padilla is prohibited from committing and also encompasses the prohibition of constitutionally protected speech. “But also, delegating the authority to determine the prohibition boundaries to an individual CCO creates a real danger that the prohibition on pornography may ultimately translate to a prohibition on whatever the CCO personally finds titillating,” said the Court.

“In the present case, Padilla’s sentencing condition and its definition similarly fails to adequately put him on notice of which materials are prohibited and leaves him vulnerable to arbitrary enforcement,” said the Court. “Therefore, the condition is unconstitutionally vague.”

With that, the WA Supreme Court reverse the Court of Appeals’ decision upholding the condition and remanded the issue back to the trial court for further definition of the term “pornographic materials” following a determination of whether the restriction is narrowly
tailored based on Padilla’s conviction.

Please contact my office if you, a friend or family member is on parole and allegedly violating certain conditions of their community custody responsibilities. An experienced defense attorney could frame legal arguments showing that, similar to this case, the CCO might actually be enforcing rules and conditions which are too vague to be legal.

Inmate Lawsuits

Image result for jailhouse lawyer

In Entler v. Gregoire, the Ninth Circuit Court of Appeals held that a prisoner may not be disciplined for threatening to file civil suit against prison staff. The filing of a criminal complaint against prison officials by a prisoner, as well as the threat to do so, are protected by the First Amendment, provided they are not baseless.

BACKGROUND

John Thomas Entler  is a prisoner at the Washington State Penitentiary (“WSP”). During the summer of 2012, he took issue with certain incidents at the WSP and submitted written complaints to the prison officials involved.

In all but one, Entler threatened to initiate civil litigation if his concerns were not addressed; in the other, he threatened to file a criminal complaint against a number of state officials and have them arrested. Entler was disciplined for these threats under a Washington Department of Corrections (“DOC”) regulation that bars prisoners from
intimidating or coercing prison staff.

Later, Entler brought a complaint pursuant to 42 U.S.C. § 1983 alleging that his First Amendment rights were violated when he was disciplined for threatening to initiate civil litigation and file a criminal complaint against prison officials.

The complaint ended up in federal court.

The Defendants – here, the DOC – moved for judgment on the pleadings under Rule 12(c). Initially, the federal district court summarily adopted Magistrate Judge Hutton’s Report and Recommendation (“R&R”) recommending that Defendants’ 12(c) motion be granted and that the complaint be dismissed with prejudice.

Entler sought reconsideration. In a written decision denying Entler’s motion, the federal district court, disagreeing with the magistrate judge, held that Entler’s informal complaints were not protected by the First Amendment because they “were not part of the grievance process”; but the court agreed that there was a “rational connection” in the “particular context” of the case with the correctional institution’s “legitimate penological interest,” namely the “peaceable operation of the prison through the insistence on respect.” The court also agreed with the R&R that, in any event, “defendants are entitled to qualified immunity.”

This appeal followed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that running a prison is an inordinately difficult undertaking, and that it should give adequate consideration to the judgment of the prison authorities.

“We cannot, however, condone punishing a prisoner for simply threatening to sue if his grievances are not addressed,” said the Court of Appeals. It reasoned that regardless of the prisoner’s misdeeds—however reprehensible—prison walls do not form a barrier separating prison inmates from the protections of the Constitution:

“The most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts . . . for without those bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy prison injustices.”

With that, the Court reasoned that Entler did exactly what he was “expected” to do by the DOC Grievance Program Manual: he sought informal resolution of his concerns through regular administrative channels prior to utilizing the grievance machinery by submitting “kites” to the appropriate prison officials. “This is as it should be,” said the Court. “Entler gave the prison administration the opportunity in the first instance to attempt to resolve his concerns and thus obviate the need to engage in the formal grievance process—with its attendant administrative burdens and costs —and litigation.”

Furthermore, the Court reasoned that it may well be that if the prison officials were able to address Entler’s concerns rather than to punish him for his threats to sue, this litigation might never have come to pass. “It would have been a good thing,” said the Court.

In 2012, the year Entler initiated this suit, prisoners nationwide filed 54,402 of the 267,990 civil cases brought in the district courts.14 In 2016, the most recent year with complete statistics, these filings had increased to 76,417 out of 292,159.15 Thus, over 25% of the district courts’ civil caseload in our country entails prisoner litigation.

The Court of Appeals concluded that Since Entler has alleged cognizable First Amendment
retaliation claims regarding his threats to sue, it was improper to dismiss the complaint in its entirety under Rule 12(c). However, in regard to Entler’s threat to file a criminal complaint, even

My opinion? Good decision. As the Ninth Circuit Court of Appeals said, “The most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts.” Exactly. Prisons are nowhere fun, and they’re not easy to manage, but an inmate’s Constitutional rights do not totally disappear once they’re incarcerated. Indeed, the only right inmates have left to exercise is the First Amendment. And denying them that one right – the right to express themselves – chills free speech. Pure and simple.

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.

Sex Offenders & Cyberspace

Sex offenders active on social media in Lafayette despite ban

In Packingham v. North Carolina, the United State Supreme Court outlawed a North Carolina statute that makes it a felony for a registered sex offender to access a commercial social networking web site. The statute restricts lawful speech in violation of the First Amendment.

BACKGROUND FACTS

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. North Carolina has prosecuted over 1,000 people for violating this law.

The Defendant was charged after posting a statement on his personal Facebook profile about a positive experience in traffic court. The trial court denied petitioner’s motion to dismiss the charges on the ground that the law violated the First Amendment. He was convicted and given a suspended prison sentence. On appeal, the State Court of Appeals struck down the statute on First Amendment grounds, however, the North Carolina Supreme Court ended up reversing the decision.

The United States Supreme Court granted review on the issue is whether the Carolina Statute was permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.

COURT’S ANALYSIS & CONCLUSION

The U.S. Supreme Court held that the statute impermissibly restricts lawful speech in violation of the First Amendment.

First, the Court reasoned that the First Amendment allows all persons have access to places where they can speak, listen, reflect, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds to users engaged in a wide variety of protected First Amendment activity on any number of diverse topics. Reno v. American Civil Liberties Union, 521 U. S. 844, 870. The Court stated that the Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow. Indeed, the Court expressly proceeded very carefully in its analysis:

“Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

That said, the Court bluntly reasoned that the statute is not narrowly tailored to serve a significant governmental interest.  Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people, and that a legislature may pass valid laws to protect children and other sexual assault victims.

“Two assumptions are made in resolving this case,” said the Court. First, the law applies to commonplace social networking sites like Facebook, LinkedIn, and Twitter. Second, the First Amendment permits a State to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.

However, the Court reasoned that even with these assumptions, the North Carolina statute enacts unprecedented prohibitions in the scope of First Amendment speech it burdens:

“Social media allows users to gain access to information and communicate with one another on any subject that might come to mind. With one broad stroke, North Carolina 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.”

The Court said that even convicted criminals might receive legitimate benefits from the social media for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.

Consequently, the Court reasoned that North Carolina failed to prove that its sweeping law was necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims. “No case or holding of this Court has approved of a statute as broad in its reach.” With that, the U.S. Supreme Court reversed and remanded Mr. Packingham’s criminal conviction.

My opinion? Excellent decision. Granted, nobody wants anyone using the internet for predatory purposes. Nevertheless, its simply unconstitutional to totally prohibit people – even convicted sex offenders – from using the internet and social media. There’s plenty of spyware, child molestation sting operations and government internet monitoring happening on the internet to reduce the risk of predatory behavior. There’s no need for the Government to make statutes which violate Constitutional rights.

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.

Seattle Allows Filming Cops

 

You Have a First Amendment Right to Record the Police | Electronic Frontier Foundation

Great article in the Seattle Times by Daniel Beekman discusses how Seattle’s City Council voted Monday to enshrine in the Seattle Municipal Code the rights of the public to observe, record and criticize police activity without fear of retaliation.

 The only exceptions are when an observer hinders, delays or compromises legitimate police activity, threatens someone’s safety or attempts to incite other people to violence, according to the ordinance sponsored by Councilmember Lisa Herbold.

The First Amendment can offer protections to members of the public when they watch and record police. And a Seattle Police Department policy adopted in 2008 says bystanders may remain nearby and record the incident as long as they don’t interfere.

So, people already were allowed to watch and record police in Seattle. But the council’s vote means the rights of police observers are now recognized in city law.

According to Beekman, the ordinance says officers should assume members of the public are observing and possibly recording their work at all times. Councilmember Herbold initially proposed the change last year, pointing to high-profile shootings that was recorded by bystanders.

 “The value of video and audio recordings by the public is keenly evident from the recordings in 2016 of the deaths of Philando Castile in Minnesota, Alton Sterling in Baton Rouge … and law-enforcement officers in Dallas and Baton Rouge,” the ordinance says.

Across the country, smartphones are helping regular people hold their police departments accountable. But people watching, recording and criticizing officers have in some instances been arrested, according to a council memo.

Though Seattle police are recorded by patrol-car cameras and are being outfitted with body-worn cameras, civilian recordings are still important, Herbold said Monday.

My opinion? Wonderful! I’ve had many Clients complain that their attempts to record interactions with police result in their cameras being confiscated and being slapped with charges of Obstructing and Resisting police.

I’ve said it once, and I’ll say it again: recording interactions between police and citizens makes everyone behave better and shows proof of what really happened. Kudos to the Seattle City Council.

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.

Jail Mail

Image result for jail mail

In Mangiaracina v. Penzone, the Ninth Circuit Court of Appeals held that prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected.

BACKGROUND FACTS

Nick Mangiaracina was jailed as a pre-trial detainee in Maricopa County’s Fourth Avenue Jail in Phoenix, Arizona. The jail’s stated policy is to open legal mail addressed to a prisoner only in the presence of that prisoner. Mangiaracina alleged, however, that his mail was repeatedly opened outside his presence in contravention of this policy. His complaint included descriptions of nine specific instances of the jail improperly opening his mail to/from his attorney.

In describing his injury resulting from the improper opening of his legal mail, Mangiaracina alleged that he and his two attorneys “are afraid to communicate by mail which is hard as I have so many cases and so much paperwork to go back and forth.” He further explained that his “right to confidentiality and privacy was violated” and that his “defense strategy and his rights in general were just shredded.”

PROCEDURAL HISTORY

Mangiaracina initially filed suit in Arizona superior court pursuant to 28 U.S.C. § 1983, alleging violations of his First and Sixth Amendment rights by a number of jail employees and John Doe defendants. The case was moved to federal court. Unfortunately, the U.S. district court ultimately dismissed Mangiaracina’s complaint with prejudice. it noted that Mangiaracina had failed to specifically allege that the pieces of mail were marked as “legal mail” and that, for most of the instances, he failed to explain how he knew the mail was opened outside his presence. He appealed to the Ninth Circuit.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit reasoned that under the U.S. Supreme Court’s Wolff v. McDonnell  and the Ninth Circuit’s Nordstrom v. Ryan, that prisoners have a Sixth Amendment right to confer privately with counsel and that the practice of opening legal mail in the prisoner’s presence is specifically designed to protect that right.

Furthermore, other circuit courts have similarly recognized the importance of this practice. In Jones v. Brown, the Third Circuit recognized, in the context of a First Amendment challenge, that opening legal mail outside the addressee’s presence was unlawful.

The Ninth Circuit further reasoned that the jail failed to identify any legitimate penological interest that would be served by opening legal mail outside Mangiaracina’s presence: “As we have emphasized in the past, a criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense.”  By necessity, reasoned the court, prisoners and pre-trial detainees rely heavily on the mail for communication with their attorneys. Unfortunately, the Maricopa County jail system does not allow incoming phone calls or provide access to e-mail, and outgoing phone calls can only be placed as collect calls.

With that, the Ninth Circuit reversed the lower court’s dismissal of Mangiaracina’s Sixth Amendment and First Amendment claims with respect to some mail-opening incidents and affirmed the lower court’s dismissal of the remaining counts of alleged improper mail opening.

My opinion? Excellent decision. It’s extremely difficult to communicate with jailed clients. Some jails offer limited hours of visitation and/or phone calls. Reading a defendant’s jail mail deprives the expression of confidentiality and chills the inmates’ protected expression. This is wrong, and violates a defendant’s First Amendment rights.

With respect to phone calls, I don’t discuss important details over the jail phones because the conversations are recorded. Although recorded phone calls with my clients are inadmissible at trial, these conversations are still surveillance which can “tip off” prosecutors to the strategies and tactics I develop with my clients.

Kudos to the Ninth Circuit for a very well-reasoned and substantial decision.

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.

Taping Cops is Free Speech

McKinney police Cpl. Eric Casebolt is shown in a screen shot from video of an altercation in which he pulled his gun on a group of teenagers at a pool party. A witness, Brandon Brooks, uploaded this video of the incident to YouTube. In a recent 5th Circuit Court of Appeals ruling, Justice Jacques Wiener wrote: “Protecting the right to film the police promotes First Amendment principles.”

The federal 5th Circuit Court of Appeals held that videotaping or filming police activities is protected by the First Amendment.

BACKGROUND FACTS
Phillip Turner, a computer science major at Austin Community College, started collecting video of police activities after he said a Cedar Park police officer blocked his view when filming a DUI arrest several years ago. He filed a complaint and during an investigation learned that there wasn’t an established right to film the police.
Armed with his understanding of the law, Turner has since posted a series of videos on his website where he challenges police officers and police department policies on videotaping of their activities.

On the day of the incident, Mr. Turner was video recording a Fort Worth police station from a public sidewalk across the street when Officers Grinalds and Dyess approached him and asked him for identification. Turner refused to identify himself, and the officers ultimately handcuffed him and placed him in the back of a patrol car. The officers’ supervisor, Lieutenant Driver, arrived on scene. after Driver checked with Grinalds and Dyess and talked with Turner, the officers released Turner.

He filed suit against all three officers and the City of Fort Worth under 42 U.S.C. § 1983, alleging violations of his First and Fourth Amendment rights. Each officer filed a motion to dismiss, insisting that he was entitled to qualified immunity on Turner’s claims. The district court granted the officers’ motions, concluding that they were entitled to qualified immunity on all of Turner’s claims against them. Turner appealed.
THE COURT’S DECISION
Ultimately, the Court affirmed in part and reverse and remand in part.
“Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy,” Justice Jacques Wiener wrote in an opinion joined by Justice Stephen Higginson. “Protecting the right to film the police promotes First Amendment principles.”

The 5th Circuit made it clear that such activity to be protected, saying that “a First Amendment right to record the police does exist, subject only to reasonable time, place and manner restrictions,” Justice Wiener wrote.

“Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy . . . Protecting the right to film the police promotes First Amendment principles.”

The 5th Circuit sent the case back to the lower court to examine Turner’s claims that he was unlawfully arrested. The court cleared the officers on that point, determining the acted appropriately. In her dissent, Justice Edith Clements said Turner’s First Amendment rights were not violated and that the officers acted reasonably in detaining Turner.

Turner’s attorney Kervyn Altaffer called the 5th Circuit’s ruling a significant one in a complicated area of the law.

“I think any time one of the federal court of appeals says that something is protected by the Constitution, that is important for all people,” Altaffer said. “I definitely think they the police overstepped. … This is supposed to be a free country.”

My opinion? Cameras make everyone behave. And I’m extremely happy the 5th Circuit describes this behavior as protected free speech. Kudos to the 5th Circuit.

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.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

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Bellingham, WA 98225

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Mount Vernon, WA 98273

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