Category Archives: Legislation

Elder Abuse Bill Goes to Vote

Bellingham Defense Attorney, Criminal Mistreatment, Elder Abuse, Legislation, Theft, Whatcom County Criminal Defense, , ,

Washington State may pass new legislation protecting elderly, vulnerable adults against financial exploitation and neglect.

House Bill 1153 unanimously passed in the Senate earlier this month and was approved in the House in February. A date has not yet been set for the bill to be signed by Gov. Jay Inslee, though it will happen within the next few weeks.

The legislation, requested by the attorney general, would (1) lower the requisite mental state for the crimes of Criminal Mistreatment in the first and second degree from recklessness to criminal negligence, and (2) creates the crimes of Theft from a Vulnerable Adult in the first degree and second degree. A “vulnerable adult” is defined as any person 18 years or older who is clearly mentally or physically unable to care for himself or herself or suffers from a cognitive impairment.

Currently, for a standard theft offense, a person could serve zero to 90 days in a county jail if they have no prior criminal history. The new statute, however, would rank the crime at a higher seriousness level of theft by forcing an offender who has no priors to serve up to 12 to 14 months in prison. Additionally, if defendants were convicted of several crimes in the past, prosecutors say they could face up to 8 ½ years in prison compared to the existing maximum penalty, which is closer to five years.

Some people opposed this part of the bill during public hearings held earlier this year saying it goes from zero to prison too quickly, but the bill’s sponsor, Democratic Rep. Roger Goodman of Kirkland, says financial abuse of elderly and vulnerable adults is reaching epidemic proportions and the penalties are not strong enough to deter anyone.

“We need to send a strong message that abusing the elderly, financially or physically, is serious enough that you’re going to have a felony on your record and you’re going to go to prison and be supervised afterward,” Goodman said.

Last year, the state’s adult protective services received more than 35,000 complaints. Of those, nearly 8,700 were related to financial abuse of an elderly or vulnerable adult and more than 5,600 were complaints of neglect.

Also under the statute, the standard of proof for criminal mistreatment cases would change from “recklessness” to “criminal negligence,” something prosecutors say was needed to make it easier to prove cases.

“This is a major change that will allow us to hold more people accountable who cause vulnerable people serious injury or death,” said Page Ulrey, a King County senior deputy prosecuting attorney, who has prosecuted elder abuse cases since 2001.

Ulrey said the new statute seems like a more appropriate penalty for the degree of harm that is often done in these cases, which she says is committed most often by someone the person trusts or loves such as a family member or close friend.

Mike Webb, the legislative affairs director at the attorney general’s office, said he’s seen jurors fail to find recklessness beyond a reasonable doubt in cases when an offender didn’t remove a catheter leading to death or somebody didn’t turn a vulnerable person over for so long it led to bed sores to the bone.

“The existing law made it very challenging to bring about a felony criminal mistreatment charge because jurors struggled to find reckless behavior,” he said. “Most saw it as a failure to act rather than recklessness.”

Ulrey pointed out another significant change the bill would do is extend the statute of limitations as financial exploitation of vulnerable adults can take years to be uncovered. She said it gives law enforcement, prosecutors and other adult protection services six years instead of three to investigate and gather information surrounding the case.

Thirty-seven states have criminal penalties for financial exploitation of the elderly and vulnerable adults, according to the National Conference of State Legislatures. Thirty-four states currently have pending legislation.

My opinion? Elder abuse is awful. Still, lowering the standard of proof for criminal mistreatment cases from “recklessness” to “criminal negligence” may inadvertently create problems for jurors trying these cases. There are many components to “Negligence.” For example, was there actual negligence? Was there a duty of care? Was there a breach of duty? If so, was the breach foreseeable under the circumstances? Were there damages? Not every case is cut and dried.

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.

Distracted Driving Bill Passes House

Bellingham Defense Attorney, Distracted Driving, Legislation, Skagit County Criminal Defense, Terry Stop, Whatcom County Criminal Defense, , ,

The Washington state House approved Senate Bill 5289, which would prohibit holding an electronic device — including phones, tablets and other electronic devices — while driving, including while in traffic or waiting for a traffic light to change. Fines for a first offense would total $136 while second and subsequent offenses could cost drivers up to $235.

The measure passed the Democratic-controlled chamber on a 63-35 vote. It now heads back to the Republican-controlled Senate for agreement on changes made in the House.

Sponsors & Objectors.

The bill’s sponsor, Republican Sen. Ann Rivers of La Center, told the Associated Press before the vote that she agrees with the House amendments and wants to get the bill to the governor’s desk this session. Rivers said she looks forward to being able to drive down the road at night and not see drivers’ faces lit up in blue from having their focus be on their phones instead of the road.

Democratic Rep. Jessyn Farrell of Seattle, who also sponsors a similar bill in the House, spoke in favor of the bill during the floor debate saying “this bill is really about safety and is about our kids who are watching every single thing that we do,” said Farrell.

However, Rep. Dave Hayes of Camano Island said the bill “goes a little too far.” Nevertheless, the Republican said he was pleased to see the House cleaned up the bill’s language by making the exemptions clearer.

Defenses & Exceptions.

The measure would allow “the minimal use of a finger” to activate, deactivate, or initiate a function of a personal electronic device while driving. Also, exceptions to the bill would include using an electronic device to contact emergency services, to operate an emergency vehicle, to allow transit system dispatch services to communicate time-sensitive messages and to allow any activities that are federally authorized for commercial motor vehicle drivers. Operating an amateur radio station and two-way or citizens band radio services are also exceptions in the proposal.

If signed into law this year, the measure would go into effect January 2019.

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.

Lower .08 to .05?

Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Department of Licensing, Drug Offenses, DUI, Implied Consent, Legislation, marijuana, National Highway Traffic Safety Administration, Skagit County Criminal Defense, Washington State Patrol, Whatcom County Criminal Defense, , ,

Interesting article from Heather Bosch of KING 5 news reports that Washington state lawmakers are considering lowering the legal limit for driving under intoxication (DUI) from .08 to .05.

“The research shows impairment begins with the first drink,” said Representative John Lovick, D-44th District. “And I believe this after being a state trooper for 31 years.” Lovick said he based his legislation, House Bill 1874, on recommendations from the National Transportation Safety Board.

According to Bosche, however, the American Beverage Institute opposes the bill and similar legislation being proposed in Hawaii and Utah. The industry group claims only a small percentage of deadly car crashes are caused by drivers with a blood alcohol concentration between .05 and .08, and that a 120-pound woman could reach .05 with just little more than one drink. A 150-pound man could reach it after two.

“The move would target responsible and moderate social drinkers while ignoring the hardcore drunk drivers who pose the greatest threat to safety,” said American Beverage Institute Managing Director Sarah Longwell. In short, Longwell says what’s needed is better enforcement of current laws: “We have to focus on the real problem and not be distracted by feel-good legislation that criminalizes perfectly responsible behavior,” said Longwell.

Representative John Lovick agrees that current laws could be better enforced, but says lowering the alcohol limit to .05 would be “a great first step in letting the public know that we are serious about keeping people who drive drunk, off the streets.”

Bosche reports that a public hearing before the House Transportation Committee will be held Tuesday. The bill already cleared the House Public Safety committee, but not without controversy.

“There will be a few ‘no’ votes on this side of the aisle,” Representative Dave Hayes (R-10th District) said during a recent hearing. “My personal viewpoint on this is just the fact that I don’t believe it’s necessary to reduce the blood alcohol level, based on testimony and my own personal experience in processing DUIs.” Hayes is a sergeant with the Snohomish County Sheriff’s Office.  Lovick is the former Snohomish County Sheriff.

The National Transportation Safety Board has said that if every state lowered the legal blood alcohol limit to .05, it would save 1,000 lives every year.

Interestingly, Mothers Against Drunk Driving (MADD) does not support the measure, calling it a “waste of time” because most people who are under .08 can pass field sobriety tests.

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.

State Senate Passes Bill Making Fourth DUI a Felony.

Bellingham, Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Department of Licensing, Diminished Capacity, Drug Court, Drug Offenses, Drug Recognition Expert, DUI, felony, First Time Offender Waiver, I-502, Ignition Interlock Device, Implied Consent, Jail, Legislation, marijuana, misdemeanor, Persistent Offender, Prison, Sentencing, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

The WA State Senate has unanimously passed a bill that would make driving under the influence (DUI) a felony if the driver has three or more prior offenses on their criminal record within 10 years.

Senate Bill 5037 passed Thursday and now heads to the House, where it has stalled in previous years. The bill’s sponsors are as follows: Padden, Frockt, O’Ban, Darneille, Miloscia, Kuderer, Zeiger, Carlyle, Pearson, Conway, Rolfes, Palumbo, Angel, and Wellman.

Under the measure, a person who is charged with a fourth DUI, and has no other criminal history, would be subject to a standard sentencing range of 13 to 17 months in jail.

However, this bill allows first-time felony offenders to spend up to six months in jail, instead of nine, and finish out the rest of their sentence under supervision, such as attending Alcoholics Anonymous meetings and other programs.

My opinion? We shouldn’t be surprised. Over the past 20 years, Americans have seen a significant increase in the harsh penalties for intoxicated drivers. Perhaps this is necessary move given the thousands of lives lost to drunk drivers. Speaking as a criminal defense attorney, there’s serious question as to whether people commit these violations purely out of willful disregard for the law and for the safety of others or because of an untreated mental illness or alcohol addiction. Nevertheless, public outcry has led to increased sentences.

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.

Trump v. Marijuana Legalization

Bellingham Defense Attorney, Drug Offenses, I-502, Legislation, marijuana, Skagit County Criminal Defense, Trump Administration, Whatcom County Criminal Defense, , ,
Interesting news from Sadie Gurman of the Associated Press discusses Washington State’s Position challenging the Trump administration’s stance against recreational marijuana.

Officials in Washington state, where recreational marijuana is legal, vow to fight any federal crackdown on marijuana after White House spokesman Sean Spicer vowed to increase enforcement of anti-pot laws. Apparently, President Donald Trump does not oppose medical marijuana, Spicer added, but “that’s very different than recreational use, which is something the Department of Justice will be further looking into.”

In response, Bob Ferguson, attorney general in Washington state, said the following : “We will resist any efforts to thwart the will of the voters in Washington,” Ferguson said Thursday.

Trump’s enforcement of federal laws against marijuana steps away from marijuana policy under the Obama administration, which said in a 2013 memo that it would not intervene in states’ marijuana laws as long as they keep the drug from crossing state lines and away from children and drug cartels.

Eight states and Washington, D.C., have legalized marijuana for recreational use.

“Our state’s efforts to regulate the sale of marijuana are succeeding,” they wrote in the letter, which was released Thursday. “A few years ago, the illegal trafficking of marijuana lined the pockets of criminals everywhere. Now, in our state, illegal trafficking activity is being displaced by a closely regulated marijuana industry that pays hundreds of millions of dollars in taxes. This frees up significant law enforcement resources to protect our communities in other, more pressing ways.”

Spicer’s comments came the same day a Quinnipiac poll said 59 percent of Americans think marijuana should be legal and 71 percent would oppose a federal crackdown. Also, three presidents over the last 20 years have each concluded that the limited resources of the Justice Department are best spent pursuing large drug cartels, not individual users of marijuana.

Nevada state Senate Majority Leader Aaron Ford said in a statement Thursday that meddling in recreational pot laws would be federal overreach and harm state coffers that fund education.

My opinion? I’m surprised Mr. Trump doesn’t see the financial benefits of legalizing marijuana for recreational use. In Washington state, sales at licensed pot shops now average nearly $4.4 million per day — with little evidence of any negative societal effects. That’s close to $1 billion in sales so far for the fiscal year that began last July, some $184 million of which is state tax revenue. Trump is a business man. If the facts are true, then why not allow states to regulate the issue within their borders? Better yet, why not legalize marijuana on the federal level?

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.

Strict Liability Offenses

Bellingham Defense Attorney, Blood Test, DUI, felony, Legislation, Skagit County Criminal Defense, Strict Liability, Strict Liability Offenses, Vehicular Assault, Vehicular Homicide, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Burch, Division II of the WA Court of Appeals held that in order to convict a defendant of vehicular homicide or vehicular assault, the State need not prove that a driver acted with ordinary negligence in the operation of a motor vehicle if it merely proves that the driver was under the influence of alcohol or drugs while driving that vehicle.

In December 2014, Burch was driving across an icy bridge when her truck spun out, slid off the road, and hit two men who were investigating the scene of an earlier accident. One of the men died and the other received serious injuries, including multiple broken bones and a severe ear laceration. Burch was uncooperative with law enforcement officers who responded to the scene. During their contact with Burch, the officers noticed that she smelled strongly of intoxicants.

They restrained Burch and brought her to a hospital to draw blood to test for intoxicants. Testing of that sample showed a blood alcohol concentration of .09, indicating a concentration between .11 and .14 two hours after the accident. The State charged Burch with vehicular homicide and vehicular assault, alleging that she drove or operated a motor vehicle while under the influence of intoxicating liquor or any drug or any combination of the two, in a reckless manner, and with disregard for the safety of others.

The jury found Burch guilty of both vehicular homicide and vehicular assault. In special verdicts, the jury found that Burch had driven while under the influence of intoxicating liquor or drugs, but had not driven recklessly. However, the jury was unable to agree as to whether she had driven with disregard for the safety of others. Burch appealed her convictions.

The Court of Appeals addressed the sole issue of whether the crimes of vehicular homicide and vehicular assault committed while under the influence of alcohol or drugs require the State to prove ordinary negligence in addition to the fact that the defendant was under the influence of alcohol or drugs.

Here, the Court of Appeals disagreed with Burch’s arguments that ordinary negligence is an element of vehicular homicide by driving under the influence of alcohol or drugs.

The Court also reasoned, “Offenses that criminalize a broad range of apparently innocent behavior are less likely to be strict liability offenses.  However, vehicular homicide committed by a driver under the influence encompasses little, if any, seemingly innocent conduct:

“Driving under the influence of alcohol or drugs is itself a serious criminal offense. RCW 46.61.502(1). Therefore, operating a motor vehicle under the influence is rarely, if ever, innocent behavior. Because vehicular homicide while under the influence of intoxicating liquor or drugs requires the State to prove the facts of both impairment and operation of a motor vehicle, the crime necessarily encompasses primarily or solely criminal behavior.”

For those who don’t know, a “strict liability offense” strict liability exists when a defendant is in legal jeopardy by virtue of an wrongful act, without any accompanying intent or mental state.  In criminal law, possession crimes and statutory rape are both examples of strict liability offences.

With that, the Court of Appeals held that the legislature intended to impose strict liability for vehicular homicide while under the influence of alcohol or drugs: “These considerations, along with the analysis of relevant statutory language above, lead to a single conclusion: the trial court did not err by instructing the jury that it could convict Burch without finding ordinary negligence or any other culpable mental state.”

The Court also held that the legislature intended vehicular assault by driving under the influence to be a strict liability offense, and that the trial court did not err by instructing the jury that it could convict without finding that Burch acted with ordinary negligence.

My opinion? Vehicular Homicide and Vehicular Assault are particularly difficult to mount a legal defense against given the “strict liability” facets of the law. The prosecution does not need to prove intent as long as the offender had drugs or alcohol in their system at the time of the offense. Period.

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.

State v. Murray: Improper Implied Consent Warnings Held Unimportant

Bellingham Defense Attorney, Drug Offenses, DUI, Evidence, Implied Consent, law enforcement, Legislation, marijuana, Search and Seizure, Skagit County Criminal Defense, United States Supreme Court, Washington State Patrol, Whatcom County Criminal Defense, , ,

In State v. Murray, the WA Supreme Court held that DUI breath test results should not be suppressed even though the police officers who informed defendants did not properly inform the defendants of THC warnings. In February, I discussed Robison’s Court of Appeals decision to suppress the BAC test before the WA Supreme Court re-addressed the issue on this most recent appeal.

Late one night, a state trooper observed Robison speeding through a restaurant parking lot toward a road. The trooper had to hit his brakes to avoid a collision as Robison exited the parking lot. The trooper decided a traffic stop was in order. The trooper could smell both alcohol and cannabis coming from Robison’s car. The officer investigated Robison for DUI. Robison performed poorly on field sobriety tests and agreed to take a roadside breath test.

Based on the results, the officer arrested Robison for suspected driving under the influence (DUI) and took him to a police station. At the station, the trooper read Robison an implied consent warning from a standard form’s that did not mention the new statutory language concerning THC. The form warning did warn Robison that he was subject to having his driver’s license suspended, revoked, or denied if the test revealed he was under the influence of alcohol.

Robison argued a 3.6 motion to suppress the results of the breath test, arguing that the implied consent warning was inadequate because it did not mirror the statutory language regarding the consequences of a finding of THC in his blood. The district court commissioner concluded that the warnings accurately informed the defendant that the result of a breath test would reveal the alcohol concentration of his breath and that it would be misleading to advise or imply to the defendant that the breath test could obtain a THC reading.

Robison was found guilty. Robison appealed to the superior court, which reversed, concluding the officer had no discretion to leave out a portion of the implied consent warning. The Court of Appeals affirmed the decision to suppress, and the WA Supreme Court accepted review on the State’s appeal.

Ultimately, the Court affirmed the lower courts and upheld Robison’s conviction. A driver’s implied consent to a breath test for alcohol, and the arresting officer’s duty to warn of the potential consequences of the test, have been part of our statutory system for decades. Both the legal consequences of driving while intoxicated and the details and exactitude of the warning required by the legislature have changed during that time. For example, Initiative 502, which decriminalized the recreational use of cannabis, also amended the implied consent statute. In relevant part, the amended implied consent statute said:

“(c) If the driver submits to the test and the test is administered, the driver’s license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if: (i) The driver is age twenty-one or over and the test indicates either that the alcohol concentration of the driver’s breath or blood is 0.08 or more or that the THC concentration of the driver’s blood is 5.00 or more.”

Robison argued that since some of the statutory language was omitted during his DUI investigation, the tests must be suppressed.

However, the WA Supreme Court disagreed:

“We find no case, and none have been called to our attention, that require officers to read an irrelevant statutory warning to a driver suspected of DUI. Instead, as acknowledged by counsel at oral argument, it has long been the reasonable practice of arresting officers to omit warnings related to underage drinking and commercial drivers’ licenses when advising those over 21 or driving on a noncommercial license.”

The Court further reasoned that the Implied Consent warnings did not omit any relevant part of the statute, accurately expressed the relevant parts of the statute, and were not misleading. Accordingly, the warnings substantially complied with the implied consent statute and the test results were properly admitted.

With that, the WA Supreme Court reversed the Court of Appeals and reinstated Robison’s convictions.

My opinion? Bad decision. Like I said before, DUI investigations involving Implied Consent Warnings must keep up with today’s legislative amendments and other changing laws. The law is the law.

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

ACLU Proposes New Jury Selection Court Rule

ACLU, Bellingham Defense Attorney, Constitutional Rights, Jury Selection, Jury Trial, Legislation, Race & Law, Skagit County Criminal Defense, United States Supreme Court, Washington Supreme Court, Whatcom County Criminal Defense, , ,

The Washington Supreme Court is considering a new court rule which would effectively end racial bias in jury selection.

Proposed General Rule 36 (“GR 36”) is proposed by the American Civil Liberties Union (ACLU), and is meant to protect Washington jury trials from intentional or unintentional, unconscious, or institutional bias in the empanelment of juries.

BACKGROUND 

In State v. Saintcalle, the Washington State Supreme Court expressed concerns that the federal Batson v. Kentucky test fails to protect potential minority jurors from racial bias during jury selection; specifically, the Prosecutor’s use of peremptory challenges to strike them.

The ACLU believes, however, that Batson has failed to adequately protect potential jurors and the justice system from biased use of peremptories. In proposing its new rule, the ACLU deftly cites and relies upon State v. Saintcalle, a Washington State Supreme Court case which admits that Batson was failing to end racial discrimination in jury selection. The  Saintcalle Court recognized there was ample data demonstrating that racial bias in the jury selection process remained “rampant”:

“Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection.  In part, this is because Batson recognizes only “purposeful discrimination,” whereas racism is often unintentional, institutional, or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.”

Saintcalle, 178 Wn.2d at 36.

In addition to the WA Supreme Court’s Saintcalle, the ACLU also argues that legal scholars have also long noted Batson’s failure to effectively eradicate discrimination in peremptory challenges.

THE “OBJECTIVE-OBSERVER” STANDARD

The ACLU proposes that GR 36 addresses this problem by employing a test that utilizes an objective-observer standard.  Apparently, the trial court would invalidate a peremptory strike if an objective observer could find that race or ethnicity was a factor for a peremptory challenge.  GR 36 also gives trial courts the necessary latitude to protect the justice system from bias by granting courts the freedom to raise objections to a peremptory strike sua sponte.  It would also bring greater diversity to juries, so that juries in Washington are more representative of the communities they serve.[12]  The rule would also improve the appearance of fairness and promote the administration of justice.

My opinion? I hope GR 36 passes. The Washington State Supreme Court has the flexibility to “extend greater-than-federal Batson protections” through its rule-making authority. Also, other states have adopted court rules dealing with the Batson issue.

GR 36 preserves the use of peremptory challenges as part of the right to a jury trial while at the same time addressing racial bias in jury selection.  Thankfully, the rule also provides guidance to the judiciary and attorneys about how to apply the rule. By adopting this rule, Washington will ensure that its justice system is not improperly tainted by bias, protect Washingtonians from discrimination, ensure diversity in juries, and address systemic, institutional, and unintentional racism in jury selection.

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.

Criminalizing “Illegal Protests”

42 U.S.C. § 1983, ACLU, Bellingham Defense Attorney, Constitutional Rights, felony, First Amendment, Legislation, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

The Bellingham Herald reported that Senator Doug Ericksen of Ferndale, a Republican state senator who campaigned for President-elect Donald Trump, wants to propose a bill that criminalizes what he calls “illegal protests.”

In short, his bill would create a new crime of “economic terrorism” and would allow felony prosecution of people involved in protests that block transportation and commerce, damage property, threaten jobs and put public safety at risk.

Erickson said his bill also would apply to people who fund and organize such protests. “We are not just going after the people who commit these acts of terrorism,” Ericksen said. “We are going after the people who fund them.”

American Civil Liberties Union of Washington spokesman Doug Honig told The Associated Press Wednesday that while they’ll need to see an actual bill, Ericksen’s statement throws out a lot of broad rhetoric. Honig said the following:

“We’re already concerned that some of its loose terms appear to be targeting civil disobedience as ‘terrorism.’ That’s the kind of excessive approach to peaceful protest that our country and state do not need. Let’s keep in mind that civil rights protesters who sat down at lunch counters could be seen as ‘disrupting business’ “and ‘obstructing economic activity,’ and their courageous actions were opposed by segregationists as trying to ‘coerce’ business and government.”

My opinion? Yes, protest is ugly. It’s loud. It’s inconvenient. And it’s American. Fundamentally American. As in, First Amendment American. It’s no secret that the First Amendment plays a large role in enabling robust public political discussion. In particular, expressive freedom can help to generate dynamic political change.

True, there are exceptions to the general protections to the First Amendment; including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising.

Despite the exceptions, however, the legal protections of the First Amendment are some of the broadest of any industrialized nation, and remain a critical, and occasionally controversial, component of American jurisprudence.

Erickson’s “economic terrorism” bill is problematic. It attempts to solve little more than a perceived threat and ultimately criminalizes liberty. If proposed and passed through the GOP-controlled Senate, it would likely would face serious obstacles in the current Democratic-controlled House. Even if the bill is passed and made into statute, it would immediately face constitutional challenges as being overly broad and/or facially invalid as applied.

Please contact my office if your friends or family are charged with crimes related to the exercise of their rights to publicly protest. I’m honored to represent clients who face criminal charges for essentially exercising their First Amendment rights. These prosecutions should be dismissed, debunked and exposed.

Trump On Crime

ACLU, Bellingham Defense Attorney, Constitutional Rights, Death Penalty, Due Process, Immigration, law enforcement, Legislation, marijuana, Police Misconduct, Race & Law, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

Like it or not, Donald Trump won.

Criminal defense attorneys serving their clients must survey the aftermath and ponder how Mr. Trump’s administration approaches issues of criminal justice. What is Trump’s stance on the “War on Drugs?” How does his stance embrace the growing legalization of marijuana among the States? How does Mr. Trump view the Fourth Amendment’s protections against unlawful searches and seizures? How does Trump view the discord between police and communities of color? Will Trump’s administration seek the immediate deportation of illegal immigrants who commit crimes? How does he feel about the death penalty? These issues – and many others – affect many defendants facing criminal charges.

If the best predictor of future behavior is past behavior, we look no further than Mr. Trump’s comments over the years; especially his comments during his campaign.

THE WAR ON DRUGS: 1990 & 2015

In 1990, Trump argued that the only way to win the War on Drugs was to legalize drugs and use the tax revenue to fund drug education programs. As he put it, “You have to take the profit away from these drug czars.” In his 2000 book,The America We Deserve, he stated that he’d never tried drugs “of any kind.”

Fast-forward 25 years, and now Trump is opposed to legalization. “I say it’s bad,” he told the crowd at the Conservative Political Action Conference in June, in response to a question about Colorado’s legal weed. “Medical marijuana is another thing, but I think recreational marijuana is bad. And I feel strongly about that.” Regarding states’ rights, Trump said, “If they vote for it, they vote for it. But they’ve got a lot of problems going on right now, in Colorado. Some big problems. But I think medical marijuana, 100 percent.”

Source: On the Issues: Donald Trump on Drugs.

Apparently, Trump opposes recreational marijuana and endorses medical marijuana. Unfortunately, his stances can become problematic for states like Washington, Colorado and a handful of others which have already passed initiatives allowing its citizens to possess small amounts of marijuana for recreational purposes. Will Trump’s administration reverse these State initiatives? Will Trump’s administration violate federal court opinions which have slowly de-prioritized federal prosecutions of marijuana cases in states which have legalized marijuana? How will drug prosecutions and/or convictions under Trump’s administration affect citizens receiving federal benefits to include welfare, social security and financial aid?

Only time will tell.

CRIME, THE 4TH AMENDMENT AND THE RACIAL DIVIDE BETWEEN POLICE AND COMMUNITIES OF COLOR.

Trump’s recent comments at the First Presidential Debate at Hofstra University, Sept. 26, 2016, moderated by Lester Holt of NBC News gives telling insights on these issues.

Q: What should be done about crime?

TRUMP: “Stop and frisk worked very well in New York. It brought the crime rate way down. You take the gun away from criminals that shouldn’t be having it. We have gangs roaming the street. And in many cases, they’re illegal immigrants. And they have guns. And they shoot people. And we have to be very vigilant. Right now, our police, in many cases, are afraid to do anything. We have to protect our inner cities, because African-American communities are being decimated by crime.”

Q: “Stop-and-frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.”

TRUMP: “No, you’re wrong. Our new mayor refused to go forward with the case. They would have won on appeal. There are many places where it’s allowed.”

Q: “The argument is that it’s a form of racial profiling.”

TRUMP: “No, the argument is that we have to take the guns away from bad people that shouldn’t have them. You have to have stop-and-frisk.”

Some background information and “fact-checking” is necessary to understand this discussion.

Recently, in Floyd v. City of New York, U.S. District Court Judge Shira A. Scheindlin ruled that New York City police violated the U.S. Constitution in the way that it carried out its stop-and-frisk program, calling it “a form of racial profiling” of young black and Hispanic men. Apparently, there were 4.4 million stops made by New York City police between January 2004 and June 2012, and 83 percent of them were made of blacks and Hispanics — even though those racial groups represented 52 percent of the city’s population in 2010.

During trial, Judge Scheindlin found that 14 of the 19 stops constituted an unconstitutional stop or unconstitutional frisk. Ultimately, Judge Scheindin found the NYPD’s execution of its stop and frisk policy was unconstitutional.

My opinion?  Sure, most would agree we want guns and criminals off our streets. However, if stop and frisk policies involve systematically targeting certain racial groups, then these policies are simply unlawful. Period. Given his statements during the debates, I fear Trump’s administration may create, endorse and execute criminal justice policies which ultimately violate Fourth Amendment protections against unlawful searches and seizure.

2. How do you heal the racial divide?

TRUMP: “We need law and order. If we don’t have it, we’re not going to have a country. I just got today the endorsement of the Fraternal Order of Police. We have endorsements from almost every police group, a large percentage of them in the US. We have a situation where we have our inner cities, African- Americans, Hispanics are living in he’ll because it’s so dangerous. You walk down the street, you get shot.”

3. Do you see a crisis in the US of white police officers shooting unarmed blacks?

TRUMP: “It’s a massive crisis. It’s a double crisis. I look at these things, I see them on television. And some horrible mistakes are made. But at the same time, we have to give power back to the police because crime is rampant. I believe very strongly that we need police. Cities need strong police protection. But officers’ jobs are being taken away from them. And there’s no question about it, there is turmoil in our country on both sides.”

4. Do you understand why African Americans don’t trust the police right now?

TRUMP: “Well, I can certainly see it when I see what’s going on. But at the same time, we have to give power back to the police because we have to have law and order. And you’re always going to have mistakes made. And you’re always going to have bad apples. But you can’t let that stop the fact that police have to regain control of this tremendous crime wave that’s hitting the US.”

THE SUPREME COURT

According to Politico Magazine, Trump will probably pick ultra-conservative judges to fill anticipated vacancies in the United States Supreme Court. In an article titled, “How President Trump Could Reshape the Supreme Court – and the Country,” reporter Jeffrey Rosen surmises that Trump’s lasting legacy could be his power to shape the Supreme Court.

Apparently, during the third presidential debate, Trump described the 21 judicial candidates he has identified:

“They will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the Founders wanted it interpreted, and I believe that’s very important.”

Apparently, Trump’s judicial picks are pro-law enforcement on issues involving government searches and seizures. This bodes negatively for preserving Fourth Amendment protections against search and seizure.

Also, Trump vows to give more power to police to handle the racial divide between police and communities of color. My opinion? That’s similar to dousing a forest fire with gasoline. or allowing a fox to guard your henhouse. Police aren’t experts at policing themselves. What is needed are the reinforcement of police accountability policies as well as a substantial shift with the culture of today’s police departments.

Let’s be frank: the unjustified killing of citizens at the hands of police can no longer go unpunished, especially in the face of indisputable video evidence. In those cases, police must be held accountable for the crimes they commit against the citizens they are sworn to serve and protect. It’s the only way to rebuild trust between police and the communities of color.

Equally important, we need policies which increase training on de-escalation techniques and decrease police militarization models which involves the use of military equipment and tactics by law enforcement officers. This includes decreasing the use of armored personnel carriers, assault rifles, submachine guns, flashbang grenades, grenade launchers, sniper rifles, and Special Weapons and Tactics (SWAT) teams if more reasonable alternatives are possible.

THE DEATH PENALTY

Put simply, Mr. Trump as a staunch advocate of the death penalty.

“A life is a life, and if you criminally take an innocent life you’d better be prepared to forfeit your own. My only complaint is that lethal injection is too comfortable a way to go.”

“I can’t believe that executing criminals doesn’t have a deterrent effect . . . Young male murderers, we are constantly told, are led astray by violent music and violent movies. Fair enough. I believe that people are affected by what they read, see, hear, and experience. Only a fool believes otherwise. So you can’t say on one hand that a kid is affected by music and movies and then turn around and say he is absolutely not affected when he turns on the evening news and sees that a criminal has gone to the chair for killing a child. Obviously, capital punishment isn’t going to deter everyone. But how can it not put the fear of death into many would-be killers?”

Source: The America We Deserve, by Donald Trump, pp. 102-104, July 2, 2000.

JAILING AND DEPORTATION OF UNDOCUMENTED IMMIGRANTS.

According to the Huffington Post, Trump vows to immediately deport or imprison up to 3 million undocumented immigrants.  Trump said he would launch what could be the largest mass deportation effort in modern history, vowing to immediately deport a number of people comparable to the record-setting figure that President Barack Obama carried out over two terms in office.

This should come as no surprise. According to a recent article from the Washington Post, Trump’s proposal calls for the deportation of undocumented immigrants who have committed violent crimes. Trump said he would push for two new laws aimed at punishing criminal aliens convicted of illegal reentry and removing “criminal immigrants and terrorists,” including previously deported unauthorized immigrants. He said he would name these laws after victims killed by people in the United States illegally.

Although Trump’s removal of undocumented immigrants at this pace is apparently limited to convicted felons, his enthusiasm for removals suggests that overall deportations will likely rise when he takes office, after declining sharply last year.

Clearly, Trump’s presidency shall affect our nation’s approach to crime and punishment. Consequently, it’s imperative to hire defense counsel who is competent handling drug charges, death penalty crimes, violent crime, racial injustice and immigration issues. Today’s defense counsel must stay abreast of today’s ever-changing political landscape.

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.