Tag Archives: Mt. Vernon Criminal Defense

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.

State v. Ortega: Court Upholds Forensic Search of Defendant’s Cell Phone Using “Cellebrite Touch” Software

Bellingham Defense Attorney, Cell Phone, Mount Vernon Criminal Defense Attorney, Search and Seizure, Sex Crimes, Skagit County Criminal Defense, Technology, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Supreme Court cell phone ruling doesn't affect local law enforcement

In State v. Ortega, the WA Court of Appeals held that police officers executing a search warrant for an electronic device are not exceeding the scope of the warrant by manually searching through all the images on a device to find and seize images depicting specific content.

FACTUAL BACKGROUND

Mr. Ortega was investigated for sex offenses against his girlfriend’s children. Police believed Mr. Ortega’s cell phone probably contained evidence of the crimes with which he was charged. They obtained possession of the cell phone from a family member, who voluntarily turned it over to police. The court granted the police’s request for a search warrant. Pursuant to the warrant, police searched the phone and seized 35 images, many of which were incriminating.

Mr. Ortega moved to suppress the fruits of the cell phone search. He argued that the warrant was insufficiently particular, in violation of the state and federal constitutions. At his suppression hearing, officers testified they began the search by connecting Mr. Ortega’s phone to an extraction device known as the “Cellebrite Touch.”  They ran an extraction that allowed the files on Mr. Ortega’s phone to be organized into categories (for example, messages, images, etc.). Once extracted, data is not visible unless someone opens the individual category folders through Cellebrite’s physical analyzer program.

After the data extraction, police produced a thumb drive containing more than 5,000 extracted images. One officer testified it was similar to being given a physical photo album and having to flip through the pages to find what you are looking for.

The trial court denied Mr. Ortega’s motion to suppress the images seized from his cell phone. Mr. Ortega subsequently waived his right to a jury trial and his case was tried to the bench. The court found Mr. Ortega guilty as charged. Mr. Ortega timely appealed on arguments that the State’s case was tainted by evidence seized during an unconstitutional cell phone search.

COURT’S ANALYSIS & CONCLUSIONS

1. The Search Warrant Passed the “Particularity Requirement.”

The Court of Appeals (COA) began by explaining that both the Fourth Amendment and the Washington Constitution require that a search warrant describe with particularity the place to be searched and the persons or things to be seized. The particularity requirement, which aims to prevent generalized rummaging through a suspect’s private affairs, is of heightened importance in the cell phone context. This is because of the vast amount of sensitive data contained on the average user’s smartphone device. The purposes of the particularity requirement are to prevent a general search, limit the discretion of executing officers, and ensure that items to be searched or seized are supported by probable cause, said the COA.

Consequently, the COA reasoned the warrant satisfied the particularity requirement. It directed officers to search the phone and seize images and/or videos depicting Mr. Ortega engaged in sexual contact with minors.

“This did not permit a general rummaging; it was akin to a warrant allowing a search of a residence for controlled substances and indicia of ownership.” ~WA Court of Appeals

2. Officers Did Not Exceed the Scope of the Warrant.

The COA discussed the scope of a search can be limited by identifying targeted content. When a warrant authorizes a search for a particular item, the scope of the search “generally extends to the entire area in which the object of the search may be found.

The COA reasoned that police properly limited the scope of their search to the terms of the warrant. The incriminating images could have been located almost anywhere on Mr. Ortega’s cell phone—not only in a photos application, but also in e-mails and text messages.

Furthermore, had the detectives chosen to search Mr. Ortega’s phone manually, they likely would have needed to sort through data other than images in order to find the targets of their search. And they would have risked jeopardizing the evidentiary integrity of the phone. By instead using forensic software, the detectives were able to organize the data from Mr. Ortega’s phone without first viewing the phone’s contents. This enabled them to limit their search to data labeled as photos and videos, thus restricting the scope of the search to areas where the target of the search could be found.

“By using forensic software to extract and organize data from Mr. Ortega’s phone, the detectives were able to minimize their review of the phone contents and tailor their search to the evidence authorized by the warrant. This did not violate Mr. Ortega’s constitutional rights.” ~WA Court of Appeals

With that, the COA denied Mr. Ortega’s appeal and upheld his convictions.

Please review my Search & 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.

WA State Crime Report: Violent Crimes Down, Hate Crimes & Vehicle Thefts Up

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2023 Washington Annual Crime Report

Photo courtesy of WASPC

The annual Crime in Washington report detailing specific crime rates throughout the state in 2023 was released.  It found that as overall violent crimes went down, hate crimes and vehicle thefts went up.

The report is based on data that was sent to the Washington State Uniform Crime Reporting Program of the Washington Association of Sheriffs and Police Chiefs (WASPC) by 225 agencies across the state.

The report said that the rate of murders, violent and property crimes decreased slightly across the state. There were 376 murders in 2023 which was a 5.8% decrease from 2022. But last year’s number is an 87% increase from 2019. Violent crimes decreased about 5.5% and property crime also decreased by about 11.9%.

HATE CRIMES

The report detailed statistics that showed that hate crimes increased by 6%. The highest frequency of hate crimes based on demographics were race, religion, disability, gender/gender identity, and sexual orientation.

  • Race: Anti-Black/African American
  • Religion: Anti-Jewish
  • Disability: Anti-Mental Disability
  • Gender/Gender Identity: Anti-Transgender
  • Sexual Orientation: Anti-LGBTQ

“These are severe assaults. And we had 79 of those last year related to hate crime in the state of Washington. And that should be a number that should be very concerning to us and should point to the fact that we have to do even more to combat hate crime.” ~Steve Strachan, Executive director of WASPC.

VEHICLE THEFTS

Since 2019, the state has seen a 112% increase in vehicle thefts. Based on the report vehicle thefts increased by 5.4% over the last year. More than 20% of people who were arrested for vehicle theft were juveniles, which is a 24% increase from 2022.

“This is one that is not going down. We’ve seen substantial increases since 2019, and it went up again this year. A lot of issues related this. We’ve talked about the last few years— changes in use of force standards, changes in police staffing, changes in pursuit restrictions . . . Most of the vehicles that are stolen in our state are older vehicles. They’re vehicles belonging to people who can least afford being a victim of crime in terms of vehicle theft. And it can turn their life upside down. So, this is a really concerning number for all of us.” ~Steve Strachan, Executive director of WASPC.

LAW ENFORCEMENT STAFFING

The report also looked at the staffing numbers of officers across the state. The number of commissioned officers went up by 94 which brought the total to 10,760. The report said that Washington ranked 51st out of the 50 states and the District of Columbia for the number of officers per thousand residents.

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.

Bellingham Police Department Rejoins the Whatcom County Drug Task Force

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Whatcom gang, drug task force investigation leads to two arrests | News | lyndentribune.com

Photo courtesy of WCSO

Bellingham Police staff shall dedicate personnel to resume participation in the Whatcom County Drug Task Force (WCDTF).

For the past four years, the Bellingham Police Department (BPD) has not committed manpower to the WCDTF. That’s because 2021 brought cutbacks in police staff driven by a combination of retirements, COVID, and resignations.  Also, in 2020, Bellingham sidelined its special units.  As a result, it ceased bicycle patrols, the drug task force, gang intervention, outreach, behavioral health, and more. That’s all changed, however, as Bellingham has hired 25 officers in the past two years.

Agency partnerships like the WCDTF employ various strategies. That target, disrupt and dismantle drug trafficking. They also reduce the illegal drug supply, seize assets, and bring alleged criminals to justice.

On June 3, the Bellingham City Council voted to recognize opioid drugs like fentanyl as a massive threat to our health, safety and general welfare. They believe that participating in a countywide task force is important because a large number of drug cases are focused on Bellingham.

WCDTF members include police departments in Blaine, Everson, Ferndale, Lynden and Sumas; the U.S. Border Patrol; U.S. Drug Enforcement Administration; and the Washington State Patrol. It’s run by an executive board that includes the Whatcom County sheriff and the chiefs of the Ferndale and Bellingham police departments and the Whatcom County prosecuting attorney.

Since that time, the department has been staffing only their patrol and investigations divisions, the two units that are key to answering 911 calls and solving serious crime.

Bellingham had 128 police officer positions in 2023-24 budget — up from 122 in the previous two-year cycle.

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

Defendants Can’t Be Forced to Appear in Court from Jail Cells

Bellingham Defense Attorney, Jail, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

US reporter Evan Gershkovich appears in Russian court to appeal detention | The Times of Israel

Photo courtesy of NATALIA KOLESNIKOVA / AFP)

In State v. Luthi, the WA Supreme Court held that defendants who appear in an in-courtroom holding cells at jails are essentially shackled, and as such, they may not be placed in holding cells without a specific inquiry into why that’s necessary.

FACTUAL BACKGROUND

In order to fully appreciate the particular restraint at issue in this case, we must first describe the in-court holding cell at the Cowlitz County Jail courtroom used for Ms. Luthi’s hearing.

The Cowlitz County Superior Court often employs a courtroom in the Cowlitz County Jail for short criminal proceedings without witnesses. When the defendant appears for such a hearing, they enter the in-court holding cell directly from a “secured area of the jail.” The holding cell appears to be located at the back or side of the Cowlitz County Jail courtroom, away from the table where counsel sits.

The interior of the holding cell is roughly five feet wide, five feet deep, and eight feet long, with a “mesh window” on the right to allow defendants to speak with their attorneys, and a glass window on the left. Id. (internal quotation marks omitted). Viewed from the courtroom, the in-court holding cell looks like this:

Defendants can't be forced to appear in court from jail cells, WA Supreme Court rules | The Seattle Times

In 2021, Luthi pleaded guilty to Drug Offense. She was given a mental health sentencing alternative (MHSA) of 36 months’ parole. Following two parole violation notices in 2022, the State petitioned to revoke the MHSA. Luthi was taken into custody at the Cowlitz County Jail on December 20, 2022. She was held without bail until her MHSA revocation hearing in February 2023.

Luthi’s defense counsel was already very familiar with the in-court holding cell, which counsel refers to as “a cage on the side of the  courtroom.” According to defense counsel, the incourt holding cell was a dehumanizing restraint comparable to shackling. As a form of restraint, shackling cannot be imposed unless a judge finds it necessary. Through counsel, Luthi filed a motion before her MHSA revocation hearing to appear in court without restraints. Counsel argued there was no reason to place Ms. Luthi inside of a cage and for her to be physically separated from the court proceedings. She was not a flight risk, and she was not going to harm herself or others.

The judge denied Luthi’s hearing to be released from the holding cell during court hearings. After her hearing, Luthi wrote an e-mail to defense counsel. She explained how difficult it was to participate from the in-court holding cell. Among other things,  it was “almost impossible to speak” to her attorney. Luthi also described feeling as though she was “on display” in the holding cell and “not a part of her own court hearing.”

COURT’S RATIONALE & CONCLUSIONS

Justice Yu wrote the court’s opinion. She held the superior court failed to conduct a  individualized inquiry before requiring Luthi to appear in an in-court holding cell. Consequently, Justice Yu reasoned that in-court holding cell violated Luthi’s due process right to appear at all courtroom proceedings without unjustified restraints:

“Requiring defendants to attend court hearings while in a holding cell undermines the presumption of innocence, interferes with a defendant’s ability to communicate with counsel, and violates the dignity of the defendant and the judicial proceedings.” ~WA Supreme Court Justice Mary Yu

Moreover, Justice Yu reasoned the physical separation between the defendant and everyone else in the courtroom created undue biases and assumptions from others:

“Applying reason, principle, and common human experience, we must conclude that this constant reminder of the accused’s condition could invite any decision-maker to draw negative, prejudicial inferences, even at a subconscious level.” ~WA Supreme Court Justice Mary Yu

Finally, Justice Yu reasoned the in-court holding cell is contrary to the courtroom’s formal dignity, which includes the respectful treatment of defendants:

“In the United States, defendants traditionally sit next to their counsel at counsel table, and courtrooms have historically been built without docks or incourt holding cells . . . Compelling a defendant to appear from an in-court holding cell without justification creates the perception that the rest of the courtroom is really a theater . . . making the defendant an exhibit or spectacle in the trial.” ~WA Supreme Court Justice Mary Yu

With that, Justice Yu and the majority court reversed and remanded Ms. Luthi’s MHSA revocation to the superior court for a new hearing.

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.

U.S. Supreme Court Upholds Domestic Violence Gun Ban

Bellingham Defense Attorney, Domestic Violence, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Supreme Court upholds federal gun ban for those under domestic violence restraining orders | Fox News

In United States v. Rahimi, the U.S. Supreme Court handed down its most significant gun control ruling in two years. It upheld a federal law that bars people who are the subject of domestic violence restraining orders from owning weapons.

With conservatives and liberals joining the 8-1 majority, the decision was a major win for gun safety groups and victims of domestic violence. It limited a controversial standard the high court’s conservatives had set down in 2022 that required gun prohibitions to have a connection to history to survive constitutional scrutiny.

The case centered on a 1994 law that bars people who are the subject of domestic violence restraining orders from possessing guns. A Texas man, Zackey Rahimi, was convicted for violating that law following a series of shootings.

SUPREME COURT’S PRECEDENT ON GUN CONTROL 

Two years ago, in New York State Rifle & Pistol Association v. Bruen, the Supreme Court said that to survive a challenge, gun laws must have some connection to the nation’s history and tradition.

In Bruen, Justice Thomas wrote on behalf of the Supreme Court’s majority as the court charted a new approach to the Second Amendment. The sweeping “history and tradition test” Thomas put forth in that opinion declared that modern gun-control laws are invalid unless similar restrictions existed in early American history.

Unfortunately, Justice Thomas’s opinion in Bruen sent lower federal courts dumbfounded on whether modern gun laws had some connection to the 18th Century.

RAHIMI ADDRESSES THE CONFUSING PRECEDENT CREATED BY BRUEN.

Chief Justice John Roberts, who wrote Rahimi’s majority opinion, sought to minimize the Court’s disagreements with Justice Thomas, who was the lone dissenter (and wrote Bruen, remember). However, not all the justices were so restrained, with two calling Thomas’ approach “useless.”

Justice Amy Coney Barrett, a conservative who has been raising concerns about the Supreme Court’s approach on history in recent cases, penned a brief concurrence criticizing how some lower courts were looking for near-identical historical gun laws when examining modern regulations.

“Imposing a test that demands overly specific analogues has serious problems. It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’” ~Justice Barrett

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

U.S. Supreme Court to Decide Influential Criminal Cases

Bellingham Defense Attorney, Domestic Violence, Firearm, Mount Vernon Criminal Defense Attorney, Obstructing, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

In Death Penalty Cases, a Texas Court Tests the Supreme Court's Patience - The New York Times

The Associated Press reports the Supreme Court is headed into its final few weeks with nearly half of the cases heard this year still undecided. Some of the criminal cases are quite influential, including ones that could reshape the law on Obstructing, Firearms Offenses and Domestic Violence cases.

Here’s a look at some of the major undecided cases:

Jan. 6, 2021 Riots

A former Pennsylvania police officer is challenging the validity of obstruction charges brought against hundreds of people who took part in the violent assault on the Capitol on Jan. 6, 2021. Former President Donald Trump faces the same charge of obstructing an official proceeding.

The legal issue is whether a law meant to discourage tampering with documents sought in investigations can be used against the Capitol rioters.

The federal charge of Obstruction of an Official Proceeding carries up to 20 years behind bars. It is among the most widely used felony charges in the Jan. 6 cases. It has been brought against extremists accused of plotting to stop the transfer of presidential power from Republican Donald Trump to Democrat Joe Biden as well as in dozens of less serious cases.

Guns & Domestic Violence

The justices are weighing whether to uphold a federal law that seeks to protect Domestic Violence victims by keeping guns away from the people alleged to have abused them.

The case, United States v. Rahimi, made its way up to the Supreme Court after the Biden administration asked the justices to review a decision earlier this year by the U.S. Court of Appeals for the 5th Circuit that struck down a federal law that bars people under domestic violence orders from having firearms.

An appeals court struck down a law that prohibits people under domestic violence restraining orders from possessing firearms. That court found that the law violated the 2nd Amendment right to “keep and bear arms” following the Supreme Court’s 2022 ruling that expanded gun rights and changed how courts are supposed to evaluate gun restrictions.

Homelessness

The most significant Supreme Court case in decades on homelessness centers on whether people can be banned from sleeping outdoors when shelter space is lacking.

A San Francisco-based appeals court decision said that amounts to cruel and unusual punishment. Leaders from California and across the West say that the ruling makes it harder for them to regulate homeless encampments encroaching on sidewalks and other public places. Advocates say it would criminalize homelessness just as rising costs have pushed the number of people without a permanent place to live to record levels.

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.

The “Second Look” Movement

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rear view of a silhouette man in window

Photo by Donald Tong on Pexels.com

A recent article in the Sentencing Project reports that numerous states have enacted “second look” judicial review policies to allow judges to review sentences after a person has served a lengthy prison sentence.

Titled, “The Second Look Movement: A Review of the Nation’s Sentence Review Laws,” the report provides a detailed analysis of second look legislation and court decisions in 12 states, the District of Columbia, and the federal government. It also delves into the implications of such laws on youth offenders and emerging adults, along with recommendations for enhancing their application.

“Research has clearly established that lengthy sentences do not have a significant deterrent effect on crime and divert resources from effective public safety programs. Nevertheless, existing parole systems, like executive clemency, are ineffective at curtailing excessive sentences in most states due to their highly discretionary nature, lack of due process and oversight, and lack of objective consideration standards,” ~Kara Gotsch, executive director of The Sentencing Project. 

Research has also established that lengthy sentences do not have a significant deterrent effect on crime and divert resources from effective public safety programs. Nevertheless, existing parole systems are ineffective at curtailing excessive sentences in most states due to their highly discretionary nature, lack of due process and oversight, and lack of objective consideration standards.

As a result, we’ve seen legislators consider and adopt second look legislation as a more effective means to reconsider an incarcerated person’s sentence in order to assess their fitness to reenter society. While much work remains, we’re thrilled to see this momentum across the country.

Key findings from the report highlight the provisions and recommendations necessary to ensure the effectiveness and fairness of second-look legislation. These include expanding eligibility criteria, implementing fully retroactive provisions, granting judicial discretion in sentence reduction, and providing timely and accessible review processes.

Among the states examined, six — Connecticut, Delaware, Maryland, Oregon, Florida, and North Dakota — and the District of Columbia allow courts to reconsider sentences under specified conditions, such as age at the time of the offense and duration of incarceration. Meanwhile, California, Colorado, and New York focus their reviews on specific populations, such as military veterans, habitual offenders, and domestic violence survivors, respectively.

In addition to California, four states – Illinois, Minnesota, Oregon, and Washington – have enacted prosecutor-initiated resentencing laws that allow prosecutors to request the court to reconsider a sentence.

Moreover, the report underscores provisions allowing for compassionate release for federal inmates based on extraordinary and compelling reasons, as well as for the elderly age alone for those incarcerated in the District of Columbia.

My opinion? Second look legislation is imperative to end mass incarceration, accelerate racial justice, and better invest in public safety.

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.

Police Can Pursue Again

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Police car chasing the offender on the road with flashing lights.

Featured image by Aleksandr_Kuzmin/Shutterstock.com.

Starting June 6, police officers in Washington state will have broader reign to chase drivers suspected of a crime. Under the previous iteration of the law, officers were only allowed to pursue a driver under very narrow circumstances. In short, the officer needed “reasonable suspicion” that someone in the car had committed a violent crime, sex crime, domestic violence or a vehicular assault, was attempting to escape custody or was driving under the influence. Now, after Initiative 2113 was passed in March, officers can pursue a car if they have reason to believe someone inside the vehicle violated the law in any way.

2021 PURSUIT LAW WAS CONTROVERSIAL

The initiative reverses changes made by a 2021 law, which limited police pursuits, among other restrictions on the amount of force that officers could use. Critics of the law said that it didn’t give law enforcement enough authority to pursue suspects and protect communities, pointing to rising crime in the state.

According to FBI data, Washington’s violent crime rate rose from 303 offenses per 100,000 people in 2019 (and 294 in a pandemic-affected 2020) to 336 in 2021 and 376 in 2022. Proponents of the reform, meanwhile, cited evidence that high-speed chases endanger the public and claim they should only be conducted when absolutely necessary.

According to the San Francisco Chronicle, over 3,000 people died nationwide in police chases between 2017 and 2022, including over 500 bystanders. More data found that the state saw 11 deaths as a result of police pursuits in the 15 months before the reforms took effect, and two deaths in the 15 months following the reforms.

WHAT ELSE DOES INITIATIVE 2113 CHANGE?

In addition to broadening the number of crimes that police are allowed to pursue a vehicle for, I-2113 lowers the standard needed to set off a pursuit. Before, a suspect needed to pose a “serious risk of harm to others” in order for police to start a pursuit. Now, they need to deem the suspect “a threat to the safety of others” in order to justify a chase.

The offense of Eluding is basically a driver intentionally disobeying a law enforcement officer’s command to stop. Some examples of “evading” include:

  • immediately speeding away from the officer
  • stopping but then driving off
  • driving several miles before pulling over
  • increasing the speed of the vehicle, or
  • extinguishing the vehicle lights.

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