Tag Archives: Whatcom County Criminal Defense Attorney

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

Void for Vagueness Doctrine

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

BACKGROUND FACTS

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

2. THE CONDITION WAS SUSCEPTIBLE TO ARBITRARY ENFORCEMENT.

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

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

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

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

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

Gunshot Location Technology: Effective or Not?

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

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

WHAT IS GUNSHOT DETECTION TECHNOLOGY?

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

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

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

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

POLICE CHIEFS CRITICAL OF SHOTSPOTTER, CITIES PULLING OUT OF CONTRACTS

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

INEFFECTIVE AND HURTS POLICE RESPONSE TIMES

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

CIVIL LIBERTY & EQUITY CONCERNS

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

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

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

Protect Yourself Against Jury Duty Scams

Washington State Courts - News, Reports, Court Information

According to a press release, Washington courts and residents are victimized by scams involving false claims from court officials or law enforcement officers.

“Please be advised about the following court-related scams and take appropriate precautions to protect yourself from identity and financial threats. Washington court personnel may contact you by phone, but they will never ask you to provide your personal information such as social security number or bank or credit card information.” ~ Washington Courts Press Release

“SPOOFED” CALLS FROM THE WASHINGTON SUPREME COURT

The Washington Supreme Court has become aware some state residents are receiving “spoofed” calls using fake caller ID information displaying the number of the Supreme Court Clerk’s Office. It is unknown what the falsified callers are asking of recipients, but phone and email scams in recent years have included scam artists pretending to be with courts, police and prosecutor offices.

In its press release, the Washington Supreme Court denies making calls to residents. It is advised that if you receive such a phone call, do not give any information. Please hang up and contact law enforcement immediately. If you receive a call from someone claiming to be from the state Supreme Court, please contact us at 360-357-2074.

JURY DUTY PHONE SCAM

Washington residents have received phone calls from individuals claiming to be law enforcement officers (such as a Deputy Sheriff) or court personnel saying they’ve missed jury duty — and must pay. These callers request immediate payment to avoid issuance of a warrant related to Jury Duty. These payments have ranged from a few hundred to thousands of dollars. Typically, the payments are requested to be made via some type of pre-paid card such as “Green Dot.”

If you receive such a phone call, do not give any personal, credit card, or banking information. You should hang up and contact law enforcement immediately.

COURT APPEARANCE CYBER SCAM

A fraudulent email is being widely distributed around the U.S. with the subject line “Urgent court notice NR#73230” (or another random number) that claims the receiver is scheduled to appear in “the court of Washington” on a particular date. The receiver is then instructed to open the attached court notice and read it thoroughly and is warned about not appearing.

This is a “malware” email and will download a virus to your computer if you open the attachment. Please delete the email immediately without opening it. This email did not originate with the Administrative Office of the Courts or any Washington courts.

Jury service is as wonderful a responsibility as it is weighty. You help fulfill the right of defendants to a trial by their peers – a cornerstone of democracy. But it can be onerous, too, particularly for people who can’t afford the time off from their jobs or businesses or from caring for their children or sick loved ones. And nowadays, jury duty is subject to scams and spoofs. Be careful!

And 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 Labelled Drunkest City in the State

What's the Deal With: Bellingham's unofficial slogan?

Informative article by journalist Alyse Smith reports that Bellingham is the drunkest city in the State of Washington. This comes according to a recent report by 24/7 Wall Street, a financial news and opinion website.

The report ranked cities by compiling data on percentages of people over 18 who reported heavy or binge drinking in the area, along with a report of county health rankings and the number of alcohol-related driving deaths.

The report found Bellingham to be the drunkest city in the state, with 22.9 percent of adults reporting to drink excessively, compared to 18 percent statewide. The report also found that Whatcom County had the 13th highest percentage of driving deaths involving alcohol in the state.

The report follows Bellingham’s 17th ranking as the 17th city with most breweries per capita in the United States in 2019 by Food & Wine magazine.

In 2021, Bellingham had one brewery for every 6,153 residents, according to the Visit Bellingham Whatcom County website. These breweries include Boundary Bay Brewery, Structures Brewing, Stemma Brewing Company, Kulshan Brewing Company, El Sueñito Brewing Company, Aslan Brewing Co., Twin Sisters Brewing Company, Wander Brewing, Gruff Brewing Co., Stones Throw Brewing Co., Menace Brewing Co., Otherlands Beer and Larrabee Lager Company.

Whatcom County is also home to other breweries, distilleries and cideries, such as Fringe Brewing, Bellingham Cider Company, Chuckanut Bay Distillery, Bellewood Farms distillery and North Fork Brewery.

My opinion? By all means, enjoy the amenities that Bellingham offers. It’s a wonderful city.

And remember to enjoy and entertain responsibly. There is a strong evidence linking alcohol with Domestic Violence. Various factors are linked to chronic alcohol use and violence. They include psychiatric behavioral issues such as  personality disorders, mood disorders, and intermittent explosive disorders. Individuals prone to aggressive behaviors are more likely to commit impulsive violent crimes, especially under the influence of alcohol.

Please contact my office if you, a friend or family member are charged with an alcohol-related crime. These crimes may include DUI, Assault and/or Domestic Violence. In some cases, the actual substantive defense of Voluntary Intoxication may apply. Hiring an effective and competent defense attorney is the first and best step toward justice.

Supreme Court Unveils Ethics Code For Justices

New Clarence Thomas ethics questions about forgiveness on luxury RV loan | WUSF

Intriguing article by journalists  and  discusses how the U.S. Supreme Court recently announced its first formal code of conduct governing the ethical behavior of its nine justices. This comes as pressure over revelations of undisclosed luxury trips and hobnobbing with wealthy benefactors have plaqued the Court.

The new code drew mixed reviews, with some critics noting the apparent absence of any enforcement mechanism. It was adopted after a series of media reports detailing ethics questions surrounding some Supreme Court members, in particular conservative Justice Clarence Thomas, even as Senate Democrats pursued long-shot legislation to mandate an ethics code for the nation’s top judicial body.

The court has been buffeted for months by revelations of justices accepting undisclosed trips on private jets, luxury vacations, real estate and recreational vehicle deals, and more:

The nine-page code contains sections codifying that justices should not let outside relationships influence their official conduct or judgment. This spells out restrictions on their participation in fundraising and reiterating limits on the accepting of gifts. It also states that justices should not “to any substantial degree” use judicial resources or staff for non-official activities.

A commentary released with the code elaborating on some of its provisions said that justices who are weighing a speaking engagement should “consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public.”

Unlike other members of the federal judiciary, the Supreme Court’s life-tenured justices had long acted with no binding ethics code. That absence, the court said in a statement accompanying the code, had led some to believe that the justices “regard themselves as unrestricted by any ethics rules.”

The ethics drum beat added pressure to a court already facing declining public approval following major rulings in its past two terms powered by its 6-3 conservative majority. The court ended its recognition of a constitutional right to abortion, expanded gun rights and rejected affirmative action collegiate admissions policies often used to increase Black and Hispanic student enrollment.

My opinion? This is a small but significant step in the right direction. However, it does not specify how the rules would be enforced or by whom. The Court has also failed to acknowledge past transgressions. Our take-away? It’s good that they feel some obligation to respond to public criticism and act like they care.

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.

Gallup Poll Says More Americans Believe Crime is Becoming Extremely Serious

Is Crime on the Rise? - Point of View - Point of View

Informative article from the Hill journalist Nick Robertson discussed a Gallup poll showing nearly two-thirds of Americans believe crime is an “extremely” or “very” serious problem in the U.S. The 63 percent rate is the highest collected by Gallup, with the previous high of 60 percent found in 2000, 2010 and 2016.

Nationally, about three-quarters of Americans believe crime has gone up. This perspective underlines the tough-on-crime political narrative of conservative politicians. Republicans were significantly more likely to believe that crime is going up nationally. In fact, 92 percent of Republicans hold that belief compared to 58 percent of Democrats. Republican respondents also believed national crime was a more serious issue, 78 percent to 51 percent of Democrats.

Gallup’s self-reporting of crime victimhood has also increased. A fifth of respondents said someone in their household was a victim of a crime this year, near a record high. Most of those reported crimes were vandalism and car break-ins, according to the poll.

But the increase in crime perception could also be a result of frequent messaging about crime through politics and the increase in murders in some cities, which draws attention in media, Gallup said.

Despite an increase in attention, crime is still only the most important issue to 3 percent of Americans, according to a separate Gallup poll, a stark contrast to 1994, when crime was the top issue for more than 40 percent of respondents. The figure hasn’t crossed 10 percent since the recession.

IS IT CRIME OR POVERTY?

It sounds unreal, farfetched, or even crazy to say that “poverty is illegal.” However, the prosecution of poverty is an ongoing issue in our country. When you look at the frequency people are incarcerated because they can’t pay fees for speeding tickets and other small infractions, it’s heartbreaking. There are 2.2 million people locked up on any given day in the U.S. according to the Bureau of Justice Statistics (BJS).

Countless people living in poverty are forced to plead guilty when they are, in fact, innocent. The injustice happens because they simply cannot afford the legal fees to fight the case against them. Forty-three states charge for a public defender. Fines for less than $200 might keep someone in jail due to the “pay or stay” system. Courts rarely ask if a defendant has the ability to pay rather than their willingness to pay. Overuse of incarceration is negatively impacting families, causes job loss and a myriad of other problems.

Please contact my office if you, a friend or family member are charged with a crime. Criminal convictions and incarceration are terrible consequences that deeply affect one’s livelihood and family. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Rapid Recidivism” Sentencing Aggravator Upheld

Unusual Jail Sentences: When the Punishment Really Fits the Crime - A&E True Crime

In State v. Jackson, the WA Court of Appeals held the Sentencing Aggravator of committing a criminal current offense shortly after release from incarceration on a different criminal conviction was not inappropriate. The sentencing aggravator was not unconstitutionally vague simply because “shortly after” is not defined.  Also, committing Vehicular Homicide and Felony Hit and Run only 93 days after release from incarceration constituted “shortly after.”

BACKGROUND FACTS

On November 11, 2015, Mr. Jackson crashed his vehicle into a large power vault while driving under the influence of alcohol. A passenger in the vehicle died instantly from skull fractures and brain avulsion as a result of the “extremely high speed crash. The vehicle was traveling at nearly 80 miles per hour, significantly higher than the posted 25 mile per hour speed limit, when the collision occurred. Jackson’s blood alcohol content was later calculated to have been between .135g/100mL and .22g/100mL. Jackson fled the scene without reporting the collision or seeking medical care for his passenger. He also evaded police until the next morning, when he “aggressively resisted arrest.”

Following a bench trial, Jackson was convicted of Vehicular Homicide and Felony Hit and Run. The superior court found that these offenses had occurred “shortly after” Jackson’s release from incarceration on August 10, 2015. Accordingly, the court determined that, as to both convictions, the aggravating circumstance of rapid recidivism applied. At the time, Jackson had two prior felony convictions, including a conviction of second degree robbery.

For those who don’t know, Prosecutors can offer evidence of aggravating factors that would merit a harsh sentence during trial. Criminal statutes often identify specific factors that should result in harsher punishments. A common aggravating factor is a prior record of similar convictions. Other aggravating factors typically relate to the circumstances of the offense itself, such as the use of a weapon or the severity of the injuries suffered by a victim. With the exception of prior convictions, a court may not use aggravating factors to impose a harsher sentence than usual unless the jury found those factors to be true beyond a reasonable doubt.

Based on these prior convictions, the sentencing court imposed an exceptional upward sentence on Mr. Jackson based on aggravating factors. It determined that Jackson was a persistent offender and sentenced him to life imprisonment without parole. The court also determined that an exceptional sentence was appropriate and imposed a sentence of 400 months of incarceration.

Jackson appealled, in part, on arguments that the aggravating circumstance of rapid recidivism is unconstitutionally vague. He further asserts that the evidence is insufficient to support a finding that he committed the offenses “shortly after being released from incarceration” under RCW 9.94A.535(3)(t). Thus, he argued, the court erroneously imposed an exceptional sentence based on the rapid recidivism aggravator.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under WA’s Sentencing Aggravator Statute, a sentencing court may impose an aggravated exceptional sentence based on a finding that the defendant committed the current offense shortly after being released from incarceration. It also acknowledged, however, the term “shortly after” is nowhere defined in the statute.

“When a statute does not define terms alleged to be unconstitutionally vague, we may look to existing law, ordinary usage, and the general purpose of the statute to determine whether the statute meets constitutional requirements of clarity,” said the Court of Appeals. It further reasoned that here, Jackson committed the current offenses on November 11, 2015, after being released from incarceration on August 10, 2015—a period of 93 days. He needed to demonstrate that a person of reasonable understanding would have to guess that reoffending 93 days after release from incarceration would subject the defendant to an exceptional sentence pursuant to RCW 9.94A.535(3)(t). “Jackson has not done so,” said the Court of Appeals. “Accordingly, the rapid recidivism aggravator is not unconstitutionally vague as applied to his case.”

Next, the Court of Appeals addressed Jackson’s argument that there was insufficient evidence of the rapid recidivism aggravator because he committed “impulse crimes” that are unrelated to his prior offenses”

“Here, Jackson committed offenses while highly intoxicated that resulted in the violent death of another person. He then sought to avoid accountability by fleeing the scene and aggressively resisting arrest when later discovered. He did so only 93 days after his release from incarceration. Whether Jackson’s conduct constituted rapid recidivism is a question for the finder of fact. Plainly, some rational fact finders could conclude that Jackson committed the current offenses “shortly after” his release from incarceration, and that such conduct evidenced disdain for the law, rendering Jackson particularly culpable in committing those offenses. Accordingly, sufficient evidence supports the resentencing court’s rapid recidivism finding.” ~WA Court of Appeals

With that, the Court of Appeals concluded that Jackson’s claims on appeal were without merit. The Court affirmed his exceptional sentence imposed by the lower court.

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

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

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

BACKGROUND FACTS

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

“Lustful Disposition” Evidence Held Inadmissible Under ER 404(b)

Inadmissible Evidence (Broadway, Sam S. Shubert Theatre, 1965) | Playbill

In State v. Bartch, the WA Court of Appeals reversed a defendant’s conviction for Indecent Liberties. The trial court mistakenly admitted evidence or prior advances made by the defendant towards the victim a year before the charged sexual assault under ER 404.

BACKGROUND FACTS

In 2018, the alleged victim S.P. and Mr. Bartch were among a group that socialized together several times during the summer. S.P. and Bartch privately communicated every now and then through Snapchat. On one occasion, S.P. sent Bartch a Snapchat of herself sunbathing in a swimsuit with a message asking if he was still with a mutual friend, with the intent of making plans for the evening.

On June 26, 2018, S.P. attended a gathering at Bartch’s house with common friends. Alcohol was involved. Sexual contact allegedly took place. With the assistance of friends, S.P. departed Bartch’s house and reported the alleged sexual assault to police.

Months later, on May 8, 2019, the State charged Bartch with one count of Indecent Liberties. This required the State to prove that S.P. was “incapable of consent by reason of being mentally incapacitated and physically helpless.” Bartch, on the other hand, argued S.P. consented to sexual contact both through flirtatious behavior leading up to the sexual contact in the bedroom, and by expressly consenting.

At trial, the State offered evidence of two prior instances in which Bartch made sexual advances towards S.P. First, the State put on evidence that Bartch made unwanted sexual advances during a party in 2017. Second, later the same night, when the party was “toning down,” Bartch asked S.P. if she wanted to “sleep with him.” S.P. again declined.

At trial, the judge admitted evidence of these other acts under Washington’s “lustful disposition” case law. The jury returned a guilty verdict. Bartch appealed his conviction on grounds that the trial court unlawfully allowed the lustful disposition evidence at trial.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals said that generally, ER 404(b) prohibits evidence of “other crimes, wrongs, or acts” to prove the character of a person to show the person acted in conformity with that character, that is, propensity.

“But the rule permits evidence of other acts for purposes other than propensity,” said the Court. “Historically, one such purpose was to show “lustful disposition” towards a specific person in sexual assault cases.”

The Court elaborated by saying that Washington decisions have permitted evidence of other acts by the defendant toward the same victim “to demonstrate ‘the lustful inclination of the defendant toward the victim. Apparently, this evidence makes it more probable that the defendant committed the offense charged because it evidences a sexual desire for the particular victim.

Ultimately, the Court of Appeals reasoned that Bartch’s prior advances were dissimilar to the charged conduct and too remote in time. “They are at most only minimally probative that the later conduct that was charged was for the purpose of gratifying sexual desire, and in the best case only cumulatively so,” said the Court.

“The history and nature of the relationship between S.P. and Bartch therefore had a reasonable probability of being of particular significance to the jury. Because the other acts evidence was inadmissible for the purpose for which it was admitted, the State does not show an other, permissible purpose, and there is a reasonable probability the outcome may have been affected, we reverse Bartch’s conviction.” ~WA Court of Appeals

With that, Mr. Bartch’s criminal conviction was reversed.

My opinion? As I’ve said in past reviews of similar cases, it’s difficult to predict what path judges will take on admitting or denying evidence of “lustful disposition.” This term of art has all but been abandoned in recent years. In  State v. Crossgunsthe WA Supreme Court disapproved of the prosecution’s use of the term “lustful disposition” at trial.

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 Implements “Police Ruse” Policy

Lies We Tell Ourselves: How Deception Leads to Self-Deception - Scientific American

In a press release, the City of Seattle announced the implementation of the nation’s first policy governing the use of police patrol ruses.

Mayor Bruce Harrell directed the SPD to develop the new policy. It comes a few years after a Seattle officer’s ruse contributed to the suicide of a hit-and-run driver in 2018. Another controversial ruse was when officers created fake radio traffic to try and get protesters away from the CHAZ/CHOP zone in 2020. Those cases undermined the public’s trust and confidence in police, according to the SPD.

“Effective public safety requires community buy-in, and this new policy is an important step to build understanding with the public, demonstrating that for SPD operations to be successful, they must be paired with a commitment to unbiased, constitutional policing . . .This innovative new policy will lead to better police work thanks to the voices of many, including the media who brought attention to this tactic, community members who called for guidelines to match our values, and Seattle accountability and police leaders who developed a plan to make that vision real.” ~Seattle Mayor Bruce Harrell

WHAT IS THE “RUSE POLICY?”

The Ruse Policy recognizes that while this tactic may be necessary in specific situations to support public safety, the need and conditions for its use should be strongly and clearly defined. The new ruse policy sets substantial guardrails around the use of ruses, limiting the use by patrol officers to these five scenarios:

  • De-escalation,
  • To calm or provide comfort to a person,
  • To promote the safety of any person,
  • Scene management, or
  • To bring potentially violent situations to a peaceful resolution.

Additionally, patrol ruses may not be broadcast over radio, social media or any other mass media format, the new policy states. No patrol ruse may involve officers making or implying promises regarding prosecution or filing decisions, and patrol ruses that shock the conscience will not be used.

The policy defines appropriate uses of ruses for de-escalation and investigation, while also creating clear accountability through requirements for documentation, supervisor approval, and protections for juveniles. The policy prohibits ruses broadcast via mass media or false promises regarding prosecution, as well those that plainly “shock the conscience.”

“The Seattle Police department engaged in an in-depth review on the use of ruses, facilitated by the Office of the Inspector General. This first-in-nation policy balances the legitimate use of deception, especially for de-escalation and the safety of all persons, with supervision, documentation, and clear prohibition of ruses that compromise public trust.” ~Seattle Police Chief Adrian Diaz.

The policy will continue to be evaluated and refined based on the now required documentation and new data. The policy also provides an objective standard by which officers’ conduct can be evaluated, creating a framework to hold them accountable when violations occur.

My opinion? Seattle’s Ruse Policy is indeed a novel step in the right direction. Even better, it should only be applied under limited circumstances.

However, intriguing legal issues arise. Can a criminal charge be dismissed if the defendant reasonably relied on a ruse from a police officer? In other words, but for the ruse, would a crime have been allegedly committed? If so, then a defendant’s reliance on a ruse can be Entrapment.

Under Washington law, Entrapment is a defense to criminal charges if the criminal design originated in the mind of police and the defendant was lured or induced to commit a crime that the defendant had not otherwise intended to commit.

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.