Long Island Criminal Defense Lawyer https://crimlawny.com Criminal Law Sun, 08 Mar 2020 11:29:42 +0000 en-US hourly 1 High Court: Warrantless Blood Draw Okay if Driver Unconscious https://crimlawny.com/high-court-warrantless-blood-draw-okay-if-driver-unconscious/ Tue, 12 May 2020 08:00:09 +0000 https://crimlawny.com/?p=5104 The Fourth Amendment protects against unreasonable searches and seizures and has generally been interpreted to mean police need a warrant to test blood from a driver suspected of drunk driving. As recently as 2013, the U.S. Supreme Court in a 5-4 decision (Birchfield v. North Dakota) ruled police had violated constitutional rights of a DUI […]

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The Fourth Amendment protects against unreasonable searches and seizures and has generally been interpreted to mean police need a warrant to test blood from a driver suspected of drunk driving. As recently as 2013, the U.S. Supreme Court in a 5-4 decision (Birchfield v. North Dakota) ruled police had violated constitutional rights of a DUI suspect whose blood was extracted so its blood alcohol content (BAC) could be tested, without first obtaining a warrant- a warrantless blood draw. Under Birchfield, the same is not true for breath tests, on the theory a Breathalyzer test constitutes a far less intrusive invasion of bodily privacy than drawing blood would.

This summer, however, the U.S. Supreme Court created a new exception to the warrant requirement. In Mitchell v. Wisconsin, police in Sheybogan received a report an apparently seriously intoxicated man had driven off in a van. When Gerald Mitchell was found, he was wet, sand-caked and shirtless, wandering near that van parked by a Lake Michigan beach, stumbling, standing with some difficulty, and slurring his speech.

Judging it impractical to administer a field sobriety test, Mitchell was given a breath test (it revealed a 0.24% BAC level, triple the state’s level defining driving while intoxicated). Arrested for two drunk-driving offenses, Mitchell was taken to a police station for a better breath test on more sophisticated equipment. But he passed out there, frustrating that plan, so was instead taken to a hospital lab, where a blood sample was drawn and tested for BAC (90 minutes after the breath test, it produced a 0.22% reading).

After being convicted, Mitchell appealed on the grounds of the unconsented, warrantless blood draw. He lost in state courts, but the U.S. Supreme Court agreed to hear an appeal on whether a warrantless blood test performed on an unconscious suspect violated the Fourth Amendment.

Decided June 27 by a 5-4 margin, the plurality decision was written by Justice Samuel Alito, and joined by Chief Justice Roberts, plus Justices Breyer and Kavanaugh; Justice Clarence Thomas separately wrote he’d favor making blood tests automatically legal whenever police had reasonable cause for a drunk-driving arrest but agreed with Alito’s holding that exigent circumstances exception almost always make a warrant unnecessary when a suspect is unconscious.

Well-settled law provides an exception to a warrant being required for drunk-driving blood tests: when “exigent circumstances,” such as when police must also deal with other problems, such as accidents or health conditions, that prevents obtaining a warrant as quickly as needed. Like all states, Wisconsin has an implied consent law, which provides that tests showing too high BAC levels allow license suspension, and refusal to submit to BAC testing leads to license revocation.

Of the four dissenters, Justices Ginsburg and Kagan joined Justice Sonia Sotomayor’s dissent, which found no evidence a warrant couldn’t have been obtained, or the “exigent circumstances” exception applied, while Justice Neil Gorsuch penned a separate dissent saying he would have dismissed the case.

Despite its general approval of a warrantless blood draw and testing of an unconscious suspect, the plurality decision sent Mitchell’s case back to the Wisconsin Supreme Court, to give him a chance to show his blood would not have been tested except for the police wanting BAC evidence, or that police could not have reasonably believed exigent circumstances applied.

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High Court Weighs Life Sentence for Underage Washington Sniper https://crimlawny.com/lee-boyd-malvo-case-juvenile-washington-sniper/ Tue, 28 Apr 2020 08:00:57 +0000 https://crimlawny.com/?p=5099 In an early case during its new term, on October 16 the U.S. Supreme Court heard an appeal by Lee Boyd Malvo of the sentence of life without possibility of parole Virginia gave him in 2004 for his role in a series of lethal sniping attacks in the nation’s capital region during the autumn of […]

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In an early case during its new term, on October 16 the U.S. Supreme Court heard an appeal by Lee Boyd Malvo of the sentence of life without possibility of parole Virginia gave him in 2004 for his role in a series of lethal sniping attacks in the nation’s capital region during the autumn of 2002.

Those weeks of apparently random sniper-style attacks killed 12 people and severely wounded others in the Washington, D.C. region. Malvo, the triggerman in 10 of the killings, was only 17 years old; his partner, John Allen Muhammad, age 41 at the time, received a death sentence, which was carried out in 2009.

The appeal (Mathena v. Malvo) seeks to apply to Malvo’s sentence a pair of later-decided Supreme Court decisions restricting the punishments that can constitutionally be handed down to juvenile defendants.

The high court’s Roper v. Simmons decision in 2005 abolished the death penalty for persons under the age of 18.) In its 2012 decision in Miller v. Alabama, the Supreme Court banned mandatory life sentences without parole for juvenile offenders. Four years later, Montgomery v. Louisiana gave the Miller decision retroactive effect.

Challenging the constitutionality of his sentence, Malvo in 2017 asked a federal court to order review of his sentence, to bring it in line with the new Supreme Court decisions. The state refused, arguing the cases only applied when a state applied mandatory life-without-parole sentences to juvenile offenders; because Virginia judges had discretion to reduce a jury’s recommended sentence, the sentence was not mandatory, it argued.

Both a federal district judge and two of the three judges on the panel from the Richmond-based 4th Circuit federal appeals court sided with Malvo’s position (even though the Virginia Supreme Court had ruled the state’s sentencing law was in fact discretionary, rather than mandatory). The Department of Justice echoed that argument during oral argument at the Supreme Court.

Regardless of whether the Supreme Court decides Malvo should have his sentence re-examined, he’s very unlikely to be released. For one thing, he also received six life-without-parole sentences from Maryland for killings there (which he is also trying to overturn on appeal).

For another, even if Virginia is ordered to provide a new sentencing hearing to consider whether he qualifies as the rare exception for incorrigible youth, he could well lose on that issue at the rehearing. Finally, he and Muhammad were prime suspects in additional killings in four southern or western states, and he could conceivably face new charges in one or more of those states even if able to win reduced sentences in Virginia and Maryland.

The Supreme Court case of Lee Boyd Malvo has nevertheless received major attention because, if the Court decides that a hearing is required whenever a juvenile faces a life-without-parole sentence, it would provide a new avenue for other inmates who received such sentences for crimes committed as juveniles to mount new challenges to their sentences. Malvo’s counsel told the Court Virginia prisons currently have 13 other inmates serving life without parole for crimes committed as juveniles. On the other hand, some predict a more conservative Court may use Malvo’s case to begin rolling back rulings on substantive protections for juvenile criminal defendants.

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New York State Bans Sex-Based “Panic Defenses” to Murder https://crimlawny.com/gay-trans-panic-defenses-banned/ Tue, 14 Apr 2020 08:00:12 +0000 https://crimlawny.com/?p=5095 New York has by legislation disallowed the so-called gay or trans “panic defenses” to murder charges, in which defendants argue their legal responsibility should be lessened due to the killer’s revulsion at the victim’s sexual or gender identity. The legislature easily passed, and on June 30, Gov. Andrew Cuomo signed into law S. 6573, which […]

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New York has by legislation disallowed the so-called gay or trans “panic defenses” to murder charges, in which defendants argue their legal responsibility should be lessened due to the killer’s revulsion at the victim’s sexual or gender identity.

The legislature easily passed, and on June 30, Gov. Andrew Cuomo signed into law S. 6573, which amends state penal law, by removing from an affirmative homicide defense available for “extreme emotional disturbance” any defendant’s conduct that results from the “discovery, knowledge or disclosure” of the victim’s sex, sexual orientation, gender identity or expression.

In a signing message, Cuomo called the defense “essentially a codification of homophobia and transphobia,” which is “repugnant to our values of equality and inclusion.” The bill’s sponsors point to cases, like the brutal beating murder of Wyoming gay college student Matthew Shepard in 1998; his two attackers said they had merely intended to rob him, but became infuriated when he made a pass at one of them.

The defense has been used sporadically for over 50 years, and has on occasion resulted in convictions on lesser charges (for example, manslaughter instead of murder, or brought a significantly more lenient sentence). Although removed in 1973 from the American Psychiatric Association’s standard reference work Diagnostic and Statistical Manual of Mental Disorders (or DSM), gay panic had been recognized for years as a diagnosis there.

How have the defenses or gay or trans panic played out in cases where a defendant tried to use them against criminal charges? Sometimes the defense will argue the victim’s conduct (such as an unwelcome sexual pass) caused the defendant to use force to ward it off. On other occasions, a defendant will argue that the victim’s behavior, gender identity or sexual nature cause either such rage or panic in the defendant that it triggered temporary mental confusion or even diminished mental capacity to deal with the situation.

Leaders in the gay community protest the defense plays on jury bias against the victim, who is essentially blamed for having provoked the harm experienced, and stems from the assumption that gay and trans lives are less valuable than those of persons charged with crimes against them.

The sponsors of the new law adopted by New York said the defense reflected bigotry and should never be allowed. The American Bar Association House of Delegates in 2013 unanimously adopted a resolution urging the defense be banned.

The next year, California became the first state to do so, followed by Illinois, Rhode Island, Nevada, Connecticut, and Maine. Hawaii’s governor signed into law a bill removing the gay/trans panic defense the day after Gov. Cuomo did.

Bills to outlaw the defense have also been introduced in a number of other states and the District of Columbia, and a federal bill was introduced in both the previous and the current Congress. Both times the “Gay and Trans Panic Defense Prohibition Act” (now S. 1721) was offered in the Senate by Edward Markey (D-MA); the House counterpart (H.R. 3133) was introduced by Rep. Edward P. Kennedy III, rumored to be eyeing a primary challenge to Sen. Markey in 2020.

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High Court Hears Challenge to New York City Gun Transport Law https://crimlawny.com/second-amendment-issues-in-new-york/ Tue, 31 Mar 2020 08:00:24 +0000 https://crimlawny.com/?p=5091 For the first time in nearly a decade, the U.S. Supreme Court on December 2 heard arguments on Second Amendment issues. In New York State Rifle and Pistol Association v. City of New York, the state affiliate of the National Rifle Association and three New York City residents challenge regulations city police adopted banning licensed […]

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For the first time in nearly a decade, the U.S. Supreme Court on December 2 heard arguments on Second Amendment issues. In New York State Rifle and Pistol Association v. City of New York, the state affiliate of the National Rifle Association and three New York City residents challenge regulations city police adopted banning licensed gun owners there from taking their weapons out of the city. Both sides of the debate view the case as possibly setting future directions for what restrictions state and local governments may constitutionally impose on gun owners.

Case backers hope it’ll erect new obstacles to state and local laws curbing gun owners’ rights, and invite the Supreme Court, with two new conservative justices, to be more active in knocking down such laws and regulations. (Justice Clarence Thomas has complained of the Court’s reluctance to hear Second Amendment cases, and new Justices Neil Gorsuch and Brett Kavanaugh likely helped provide the four votes needed to hear this appeal.) Gun control advocates, on the other hand, fear the case might weaken some current restrictions, like those on concealed carry.

The Court’s 2008 District of Columbia v. Heller decision knocked down a virtual ban on home possession of handguns in Washington, D.C., holding the Second Amendment’s protection of the right to keep and bear arms gives citizens the right to keep a handgun at home for self-defense. In 2010’s McDonald v. City of Chicago, the Court invalidated several local gun bans, finding the Fourteenth Amendment’s “due process” guarantee requires state and local governments, not just the federal government, to recognize individuals’ Second Amendment rights.

The plaintiff organization in the new case unsuccessfully challenged the New York City rules in federal district court in 2013 and lost an appeal to a federal Circuit court in 2018. In the Supreme Court, plaintiffs again attack the city rules as infringing Second Amendment rights. The case’s individual plaintiffs complain the ban on transporting licensed guns prevented them from competing in nearby states’ marksmanship contests and meant they couldn’t take their handguns with them when traveling to a second home outside the city.

A possibility exists that, despite agreeing to hear oral argument, the Court may resolve it quickly on the procedural ground of mootness, i.e. no significant issues needing decision. That’s because the New York police in July (six months after the Court decided to hear the appeal) adopted a new ordinance allowing guns to be taken out of town for use at nearby ranges or to accompany a gun owner to a second or vacation home; the state also amended its gun laws to prevent localities from outlawing gun transport for those purposes.

The city argues these law changes make unnecessary the injunctive relief which the plaintiffs asked, and so the case should be dismissed as moot. But, plaintiffs counter, to prevail on mootness, the city must prove similar policies won’t later be re-imposed. Oral argument spent much time on the mootness issue.

The case has attracted several dozen “friend of court” briefs, from both sides of the debate. The Department of Justice’s brief viewed the New York City rules as infringing individual Second Amendment rights and discriminating against interstate commerce. A brief filed by five Democratic Senators unsubtly warned that ruling against the city would boost public sentiment for reshaping the high court.

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Google Cellphone Data May Tell Police if You Were by a Crime Scene https://crimlawny.com/reverse-location-warrant/ Tue, 24 Mar 2020 08:00:44 +0000 https://crimlawny.com/?p=5088 You probably regard your cellphone or smartphone as an invaluable communication tool. But, to their regret, some criminal defendants are learning the mobile phones they carry with them can communicate with police searching for suspects and tell them if they happened to have been near the scene of a crime around the time it was […]

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You probably regard your cellphone or smartphone as an invaluable communication tool. But, to their regret, some criminal defendants are learning the mobile phones they carry with them can communicate with police searching for suspects and tell them if they happened to have been near the scene of a crime around the time it was committed.

Some mobile phone platforms, especially Google, can process location data collected by service companies, and then share it with law enforcers. Police, prosecutors or even the FBI can seek so-called “reverse location” warrant, which asks, based on Google’s records, for a list of cellphones that can be determined to have been at or near a specific location at a specific time.

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Records in Google’s Sensorvault database cover hundreds of million devices and go back around 10 years (making them especially useful in cold or slow-developing cases). Federal law enforcers first began accessing this data in 2016, and local departments in numerous states have since then discovered ways to use the data in their investigations.

Google maintains a portal, its Law Enforcement Request System, for law enforcement requests for its data. The company does not disclose statistics on the volume of data requests it receives from law enforcement agencies, but an unnamed Google employee last year told the New York Times that in some weeks the company receives as many as 180 “reverse location” warrant inquiries.

How Does a “Reverse Location” Warrant Work

The company may identify dozens or hundreds of phone numbers its database indicates were in a particular location during a specified time period. It furnishes police with an anonymous coded list of those devices, which police then track the devices’ patterns of movements in order to narrow down the devices on which they want fuller information.

But some civil liberties advocates say they’re troubled by this growing trend, which they fear may catch up some innocent persons in a digital dragnet, especially since judges may sometimes issue overly broad “reverse location” warrants because they not fully grasp the technical details defining the extent of the requested search area.

Applications might only list GPS coordinates to the area to be covered by a “reverse location” warrant, a practice known as “geo-fencing,” leaving it nearly impossible to discern without careful checking against maps for how wide an area and how many individuals’ data will be taken. Many judges reportedly approve such warrants in a matter of minutes, making it highly unlikely a detailed examination occurred.

And unlike an ordinary search which names a suspect and gives probable cause to seek evidence of that person’s involvement in a crime, a “reverse location” warrant asks for wholesale information on everyone who was in a particular area at a specific time, then tries to eliminate all but the most likely to be either suspects or witnesses.

The U.S. Supreme Court has not directly addressed the constitutionality of a “reverse location” warrant but did rule in its 2018 Carpenter decision that warrants are required for extensive or protracted tracking of a suspect’s movements through monitoring cell tower data.

About the Author

Scott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. You can contact Scott anytime. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.

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Circuit Court Casts Dubious Eye on Campus Speech Police https://crimlawny.com/free-speech-violations-in-a-school-campus/ Tue, 17 Mar 2020 08:00:32 +0000 https://crimlawny.com/?p=5078 A federal appeals court stopped short of halting the activities of the University of Michigan’s Bias Response Team (BRT), but suggested such campus organizations might be unlawfully curbing students’ privileges, and instigating free speech rights violations. Last year, Speech First, an advocacy group based in Washington, D.C., sued the university in federal court, claiming it […]

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A federal appeals court stopped short of halting the activities of the University of Michigan’s Bias Response Team (BRT), but suggested such campus organizations might be unlawfully curbing students’ privileges, and instigating free speech rights violations.

Last year, Speech First, an advocacy group based in Washington, D.C., sued the university in federal court, claiming it violated First Amendment free-expression rights and asking the court to order to shut down the BRT.

The lawsuit argued the BRT — created as a way for the university to probe and address on-campus incidents which could be seen as racist, sexist, anti-gay or otherwise offensive to particular individuals or groups — unconstitutionally infringed students’ ability to make statements or take part in protests, even though within the First Amendment’s protections, that might offend some.

Many colleges and universities have created bodies like the BRT, although they vary widely in their missions and powers. Another campus free-speech group, the Foundation for Individual Rights in Education (FIRE), estimated early in 2017 that over 230 public or private American colleges and universities with a total enrollment of 2.8 million maintained bias response programs.

Are BRTs Responsible for Campus Free Speech Rights Violations?

Michigan officials opposed the lawsuit, arguing the BRT lacked powers to discipline students for speaking offensively. Instead, it would merely offer support to students who thought themselves the targets of bias, for example, by counseling an affected student in how to file a complaint with school officials or campus police, or inviting allegedly offending students to meet voluntarily with school officials to discuss such incidents. The BRT also invites students to report speech which they believe reflects bias.

The plaintiff pointed out the school until recently had used very broad definitions of terms like “harassing” and “bullying” within its mandate, and BRT still retained the ability to refer students to campus police, academic enforcers, or mental health counselors.

In August last year, a lower court ruled for the university, dismissing the case and holding Speech First had established neither its right to speak for students complaining about the BRT nor that a court order was needed to prevent constitutional rights from being harmed.

The Department of Justice submitted a statement of interest in litigation challenging attempts to curb campus free-speech rights, calling the BRT systematic “arbitrary censorship of, and punishment for, constitutionally protected speech.” It was the fourth time in the past two years the agency had filed a statement in litigation over campus speech restrictions (the earlier instances involved schools that had confined all on-campus expressive speech to small so-called “free speech zones” or allegedly set stricter controls over campus appearances by conservatives than for those by liberals).

In a 2-1 decision (Speech First, Inc. v. Schlissel) issued September 23, a three-judge panel of the Cincinnati-based Sixth Circuit reversed the lower court decision, held Speech First had standing to bring the case, and found the BRT’s power to refer incidents to school administrators or law enforcers “objectively chills speech.” That potential to dampen free speech on campus posed a constitutional issue, the appellate majority ruled. (The dissenting judge would have upheld the lower court’s decision entirely.)

The appellate panel sent the case back to the district court for further consideration of whether an injunction against the BRT is merited. The decision is likely to be viewed as support for other activists and groups seeking to loosen school policing over campus speech.

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Blocked by One Court from Resuming Federal Executions, DOJ Tries Again https://crimlawny.com/the-return-of-federal-death-penalty/ Tue, 10 Mar 2020 08:00:58 +0000 https://crimlawny.com/?p=5073 Last July, the Trump Department of Justice (DOJ) said it planned to end a lengthy hiatus on federal executions (the last occurred in 2003) and carry out death sentences on four convicted murderers of children. Attorney General William Barr also directed the Bureau of Prisons to use a single-drug lethal injection protocol using the sedative […]

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Last July, the Trump Department of Justice (DOJ) said it planned to end a lengthy hiatus on federal executions (the last occurred in 2003) and carry out death sentences on four convicted murderers of children. Attorney General William Barr also directed the Bureau of Prisons to use a single-drug lethal injection protocol using the sedative pentobarbitol sodium.

The first new federal execution was scheduled for December 9th last year, but all were blocked on November 20 by the order of a federal district court judge in Washington, D.C. Obama appointee Tanya Chutkan accepted the inmates’ argument that DOJ’s plan likely violated the Federal Death Penalty Act (FDPA), a 1994 law providing that federal death sentences be carried out in the manner of execution specified by the state where the capital crime was committed.

After a federal appeals court refused to lift the lower court’s order blocking the executions, DOJ quickly asked the Supreme Court to do so. The government argued FDPA merely requires federal executions to follow the general method set by the state (for example, lethal injection), not to observe every detail of the state-mandated method (such as which drugs can be used). Under FDPA, when a state lacks a death penalty, BOP can choose which state procedure it will follow.

Fourteen death-penalty states also submitted a “friend of the court” brief urging the high court to step in to allow federal executions to resume; the brief observed five states already use the single-drug lethal injection protocol DOJ proposed, calling it “tried-and-true,” and argued any further delay would make capital case rulings less final. (A 7-2 Supreme Court decision in 2008 upheld an often-used three-drug execution protocol, but one of those drugs thereafter became largely unavailable and left governments searching for alternatives.)

Request to Resume Federal Death Penalty Declined by the Supreme Court

On December 6, without issuing an opinion, the Supreme Court declined to lift the lower court’s freeze on federal executions but did say it expected the federal appellate court to decide the merits of the inmates’ case “with appropriate dispatch.”

Three Justices (Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) issued an Alito-written statement critiquing the district court’s decision for misreading the FDPA as over-specific and possibly requiring federal executions to use less humane state-mandated procedures. The statement added the intermediate court reviewing the appeal (Barr v. Roane) should not need over 60 days to issue its decision.

During January 15 arguments before the appellate court, two members of a three-judge panel seemed to be leaning towards DOJ’s position that federal executions must only follow the general manner, but not every detail, of state-mandated executions. At the time, the appellate court had about three weeks remaining in the 60-day deadline suggested by Justice Alito. While the debate on whether, and in what fashion, federal executions will resume is thus still unresolved, the outcome seems likely to be determined in fairly short order.

While awaiting the appellate court’s ruling and a potential Supreme Court appeal, DOJ is not standing still on the as-yet unresolved issue of restarting federal executions. The agency also scheduled a fifth execution in California and will seek the death penalty for an El Salvadorean native regarded as the leader of a Washington, D.C. branch of the MS-13 gang who’s facing capital kidnapping and homicide charges in the deaths of two teenagers.

About the Author

Scott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. You can contact Scott anytime. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.

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Upstate County Criminalizes Behavior to “Annoy” the Police https://crimlawny.com/anti-annoyance-law-new-york/ Tue, 03 Mar 2020 08:00:18 +0000 https://crimlawny.com/?p=5069 Being annoying won’t do much to advance your popularity or social life, but in one upstate county, New Yorkers might go to jail for being annoying — if a person they’re annoying is working for the police force or other public safety organization. Jailtime for Individuals Who Annoy Police Officers? In Monroe County, which includes […]

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Being annoying won’t do much to advance your popularity or social life, but in one upstate county, New Yorkers might go to jail for being annoying — if a person they’re annoying is working for the police force or other public safety organization.

Jailtime for Individuals Who Annoy Police Officers?

In Monroe County, which includes and surrounds Rochester, residents at least in theory run that risk, under a local law which took effect early in December 2019. The Anti-Annoyance Law forbids any action intended to “annoy, alarm or threaten the personal safety” of any on-duty police officer, peace officer, or first responder.

The new offense, a misdemeanor punishable by a fine of up to $5,000 and as much as a year’s imprisonment, or both, was portrayed by its backers as designed to prevent residents from harassing public safety forces while they’re on-duty responding to service calls.

The Anti-Annoyance Law drew criticism from some activists, and misgivings even from some local officials. Hotly debated when it cleared the 29-member county legislature by a 17-10 vote on November 12, the measure was authored and supported by Republican members of the Monroe County legislature.

Some opposition to the new enactment was procedural: it was raised as an “emergency” measure that allowed a vote on the passage without being considered by a legislative committee or affording many opportunities for public comment. The new law was passed on the same day as a mid-afternoon public hearing on it was held. Even law enforcement groups had little opportunity to share their views on the measure, opponents also claimed.

But the leading objection focused on the suspect unconstitutionality of the measure, especially the vagueness of the term “annoy.” Opponents argued it was too subjective, and so gave inadequate guidance on what behavior would run afoul of the new law. A regional ministers’ organization announced that fearing the new law would be used in discriminatory ways against minority group members, it was considering bringing a lawsuit against the new law.

Anti-Annoyance Law Shunned by the Force

While only the police chief in one Rochester suburb publicly voiced opposition to the measure before it was enacted, within a few days local law officials — including the county sheriff and the Rochester police chief — announced they had ordered their workers not to use the new law to arrest “annoying” persons. Similarly, the head of the county’s association of police chiefs said all members of his group agreed not to enforce the new law.

The Monroe County sheriff called the new law a solution “to a problem that does not exist,” since there were already ample state laws to deal with persons interfering with law enforcers. Many opponents predicted the new measure would be successfully challenged in court. The director of a regional chapter of the state’s American Civil Liberties Union claimed the measure probably infringes the First Amendment, by authorizing police officers to arrest crime suspects, witnesses or bystanders whose comments they dislike.

Other opponents of the anti-harassment measure, introduced just a week after about 75% of Rochester voters in the November elections approved a ballot measure authorizing the creation of an independent board to review complaints of city police misconduct, was intended to counter that action. With subpoena and disciplinary powers, the new board replaces a far weaker civilian review board.

About the Author

Scott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. You can contact Scott anytime. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.

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New York Governor Will Try Again to Legalize Adult Pot Use https://crimlawny.com/new-york-governor-plans-for-marijuana-legalization-and-adult-recreational-use/ Tue, 25 Feb 2020 08:00:42 +0000 https://crimlawny.com/?p=5063 Although failing to make good last year on his plan to legalize adult recreational use of marijuana (or, as the New York penal code has it, “marihuana”), Gov. Andrew Cuomo (D) has renewed his intention to make that a priority part of his wide-ranging 2020 agenda, which is dubbed “Making Progress Happen.” In his annual […]

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Although failing to make good last year on his plan to legalize adult recreational use of marijuana (or, as the New York penal code has it, “marihuana”), Gov. Andrew Cuomo (D) has renewed his intention to make that a priority part of his wide-ranging 2020 agenda, which is dubbed “Making Progress Happen.”

In his annual State of the State address on January 7, Cuomo called marijuana legalization a long overdue part of criminal justice reform, noting unequal enforcement of state marijuana laws had for decades “disproportionately affected” communities of color.

In 2019, Cuomo’s plan to include marijuana legalization in budget legislation died early in the year, and further negotiations with the state legislature on a modified bill fell apart by early summer over issues like who would be authorized to sell marijuana not used for medicinal purposes and how the new state revenues generated by those sales would be used.

This year the governor is predicting legalizing adult recreational marijuana for persons age 21 and up could bring in as much as $300 million in new state tax revenue – a not insignificant sum, especially in a year state government is facing an estimated $6 billion budget shortfall. Another part of Cuomo’s marijuana-related proposal calls for the state university system to launch a research program on the health effects on marijuana.

Cuomo also pledged to work with three neighboring states (Connecticut, New Jersey and Pennsylvania) to coordinate the four states’ systems governing legal recreational use of marijuana. New Jersey also failed to act on legalization last year, but such an initiative will be on this November’s ballot there. Two other New York neighbor states (Massachusetts and Vermont) are already among the 11 states which have approved legalization.

Even though New York did not legalize non-medical use of marijuana in 2019, it did adopt a decriminalization measure, which makes possessing under two ounces of marijuana a civil violation subject to a $200 fine, rather than a crime, and also eases expungement of past convictions.

Delay in New York’s Marijuana Legalization Cause a Lawsuit Against a Government Entity

But while Gov. Cuomo and his allies are seeking to expand the availability of marijuana, another part of New York’s government is being sued for its policies restricting access to medical marijuana. Early this year, the New York chapter of the National Organization for Reform of Marijuana Laws and several other plaintiffs brought suit against the state’s Department of Corrections and Community Services.

The lawsuit aims to invalidate agency policies which forbid medical marijuana use by ex-inmates while they are on probation. The petitioners argue agency probation rules violate the state’s Compassionate Use Act, which since January 2016 has regarded any certified medical marijuana patient as covered by the state’s Human Rights Law, and thus protected against discrimination.

The New York probation system bases denial of medical marijuana to its probationers on the federal illegality of cannabis under the Controlled Substances Act. Those who attack that position point out Congress has repeatedly passed provisions blocking federal funds from being used to take action against official state actions that comply with that state’s marijuana laws.

About the Author

Scott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. You can contact Scott anytime. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.

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Appeals Court Says Cops Not Liable for Wrecking Home https://crimlawny.com/court-acquit-cops-who-destroy-lech-family-home/ Tue, 18 Feb 2020 09:00:03 +0000 https://crimlawny.com/?p=5053 In June 2015, an armed shoplifter fleeing police in Aurora, Colorado, after a high-speed auto chase, decided to hole up in the upstairs bathroom of a randomly chosen home in suburban Greenwood Village. Police surrounded the site, and he was eventually captured alive after a 19-hour stand-off. The outcome was far less dramatic than were […]

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In June 2015, an armed shoplifter fleeing police in Aurora, Colorado, after a high-speed auto chase, decided to hole up in the upstairs bathroom of a randomly chosen home in suburban Greenwood Village. Police surrounded the site, and he was eventually captured alive after a 19-hour stand-off.

The outcome was far less dramatic than were a SWAT team’s efforts to dislodge the suspect from the home. The suspect fired shots at the assembled police, both before and after five hours of fruitless negotiations. The police responded by firing tear gas into the home, using an armored vehicle to crash through the front door, and using that vehicle and robot-delivered explosives to blast numerous holes in the residence’s outer walls.

The home’s occupants, a family named Lech, were unharmed, but the structure was seriously damaged. With police-sent projectiles protruding through its exterior walls, also displaying many gaping holes, the Lech family home had had to be demolished after Greenwood Village condemned it. The city offered the homeowners $5,000 to help with temporary living expenses while the home was rebuilt, but it refused to provide any other compensation.

The Lechs, who would spend almost $400,000 to reconstruct the home and replace ruined possessions, filed a lawsuit against the city and about a dozen police officials and officers, claiming the destruction of the home and refusal to compensate them for the loss amounted to a “taking” of the property without compensation, which they claimed was unconstitutional under the Fifth Amendment (which guarantees that citizens receive compensation when government takes private property for a public purpose).

When the case was heard in a federal district court, the municipal defendants argued the Fifth Amendment’s “taking” provision didn’t apply to police destruction of the Lech family home, since – unlike an exercise of eminent domain, when a government seizes private property to put it to a public use, such as a park or roadway, the city was exercising its “police power,” not converting it to a different, public usage. So, the defendants won as a matter of law.

Owners of Lech Family Home Appeal to Higher Federal Court

In Lech v. City of Greenwood Village, the homeowners appealed to a higher federal court, the Denver-based 10th Circuit Court of Appeals. They contended the Fifth Amendment’s “takings” provision was apt, because it was meant to prevent the government from imposing on citizens losses than government should rightfully shoulder.

They also argued the distinction the lower court had made between police power and official takings like eminent domain should not apply when blameless property owners were involved. They also cited decades-old cases from Minnesota and Texas supreme courts which allowed citizens to recover for property damages police inflicted on innocent citizens while apprehending criminal suspects.

But on October 29, a three-judge appellate court panel unanimously agreed with the district court’s decision and reasoning. The panel admitted the outcome might seem “unfair,” but police exercising their duty of protecting the public cannot be “burdened with the condition” of having to compensate anyone whose property suffers damage in the process. It also noted the same position had been taken by several other federal appeals courts.

About the Author

Scott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. You can contact Scott anytime. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.

The post Appeals Court Says Cops Not Liable for Wrecking Home appeared first on Long Island Criminal Defense Lawyer.

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