Great News for Due Process!

On April 19, the Supreme Court of the United States (SCOTUS) issued their decision in Nelson v. Colorado, a challenge by two individuals who had been convicted of a crime, but had their convictions overturned.  Despite the overturned convictions, the State of Colorado refused to return the costs, fees, and restitution that had been paid as a result of the convictions, to the individuals.  The U.S. Supreme Court, in a concise opinion, held that this violated the fundamental American principle of “innocent until proven guilty.”

Two individuals brought the challenge: Shannon Nelson and Louis Madden.  Both had initially been convicted of crimes and sentenced to prison sentences (Nelson was given 20 to life and Madden was awaiting his prison sentence determination).  Both were ordered to pay costs, fee, and restitution in the thousands of dollars.  Nelson appealed, the appeals court found trial error and ordered a new trial, and Nelson was acquitted on all charges at the new trial.  Madden’s conviction was overturned on appeal, as well, and the State of Colorado opted not to appeal.  At the end of the day, neither individual had a criminal conviction to their name (in the cases at issue, at least).

Nevertheless, Colorado refused to return the money paid by both individuals (money neither would have paid if they had not been wrongfully convicted).  In Nelson’s case, the court dismissed the petition for refund in its entirety.  Madden was refunded costs and fees, but not the money paid in restitution.

In order to be eligible for and receive a refund, Colorado requires an individual to file an action under the State’s Compensation for Certain Exonerated Persons statute (Exoneration Act, in short).  Under the Exoneration Act, an individual who has (1) been convicted, (2) served part of their sentence, and has (3) had their conviction(s) overturned on reasons other than insufficient evidence or legal error can petition the court for a refund of any money (fines, costs, restitution, etc., but not legal fees) paid because of the wrongful conviction.  In order to be successful, however, the individual must prove by “clear and convincing evidence,” that he or she was actually innocent.  (Clear and convincing evidence is the highest burden in civil cases).  Thus, in order to get a refund for money paid to the State solely due to a wrongful conviction, the individual must prove that they were not, in fact guilty (never mind the fact that the State could not reach its burden in proving them guilty in the first place).

Rightly, the U.S. Supreme Court found this a clear violation of due process.  In order to be afforded due process, one must (1) possess a right or property interest which is (2) deprived by the government (3) without due process of law.  Like many cases, the Supreme Court used a balancing test to determine the outcome of this case.  Unlike many cases, however, the Court, by a 7-1 vote* found that the Colorado statute met none of the balanced factors.

In short, the Court found that the individuals could only have been made to pay the money in costs, fines, fees, and restitution if they were guilty of a crime.  Without a conviction, there was no right for the State to demand the payment.  Thus, when the convictions were thrown out, there was no longer a conviction.  Under the law, the individuals were not guilty of any criminal activity.  Therefore, the State had no right to the money and could not place a large burden in the path of the individuals seeking refund of the money.  As the Court succinctly put it: “Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right.”   (The Court did note that small, procedural inconveniences could take place, likely referring to filling out paperwork demonstrating the overturned convictions and requesting the money back, etc)

Also of note, the Court expressly found that the, for smaller amounts of money, “the cost of mounting a claim under the Exoneration Act and retaining a lawyer to pursue it would be prohibitive.”  While further litigation on this matter would be necessary, it at least opens the door to the argument that many post-deprivation procedures enacted by states to retrieve property and rights lost to the state are too burdensome and violate real due process.

*Justice Alito concurred in the opinion, believing that the Court used the wrong test to reach its conclusion.  Ultimately, however, he also believed that Colorado’s statute violated due process.

Justice Thomas, however, dissented from the ruling, primarily because he wasn’t convinced that the individuals had established a property interest in the money at issue.  This is primarily a procedural issue that Thomas believed was not fully explored – in his dissent, he notes the differing opinions between the petitioners and the State.  The petitioners argued that without a conviction in place, the money reverted back to them, as it never should have been taken in the first place.  The State argued that the funds became “public funds” once they were taken and so the individual no longer had a property right in them.  He ultimately turned to Colorado’s statutory law to determine that there was no statutory right to the money and, as the Due Process Clause only protects pre-existing, substantive rights, there was no right to protect.  To him, the majority determined, out-of-hand, that the petitioners had a right to the money, without any legal exploration.

As Justice Gorsuch was not nominated in time to hear the case, he took no part in the decision.

Standing With Free Speech

A New York Times editorial by Ulrich Baer, a provost at New York University, argues that the freedom of speech should be reduced to a balancing test between the inherent worth of a particular viewpoint and society’s obligation to ensure all individuals from all groups have an opportunity to be “fully recognized” in the societal debate.

Notably missing in Mr. Baer’s analysis are three very important questions:

  1. Who ultimately decides the value of a particular viewpoint?
  2. What does it mean to be “fully recognized” within a national debate;  what factors and evidence are used; and who decides?  Is it objectively determined or is it subjectively determined by an individual?  If subjective, how is it enforced?
  3. How is it determined which community an individual belongs to?  A transgender (Mr. Baez uses transgender individuals as an example in his article) individual in Boston is a member of a particular neighborhood community, school community, social club and scene, is a Bostonian, and is potentially a member of a political movement (though assuming that an individual identifying in a particular way is a member of a particular political movement is presumptuous).  Which community must the member be a fully recognized member of to balance against the ambiguous value of a particular viewpoint?

The freedom of speech, contrary to Mr. Baez’s article, is designed to allow as much speech as possible into the public dialogue.  Some – even much – of that speech may be coarse.  Some may not effectively advance an argument and other views may be eloquently stated.  Some may offend, some may enrage; but each individual can choose to accept, reject, ponder, or explore each thought and eventually come to a conclusion.  This is not possible when certain viewpoints are arbitrarily closed off because someone might become offended.

What Mr. Baez should be more concerned about is what the law actually does protect against; violent reactions to speech.  The law does recognize that some speech is designed to incite violence and, as such, that speech is prohibited (under the incitement and “fighting words” doctrines).  This is typically fact-based, meaning each case has to show that the particular words were intended in a particular consequence to cause a violent reaction.

Violence as a response to speech is not acceptable and the government should take action against those who violently react to speech, actively promote violence, and those who violently prevent others from speaking.  But the key difference is in the action, not the speech.

Thompson Law Offices, LLC believes in the free speech of all individuals and seeks to protect individuals against adverse action by the government.  A government actor can be the township, county, or state, but it can also be a government employer or a school.

If you believe you have been prevented from speaking based on your viewpoint by the government, call Thompson Law Offices at (888) 866-6947 for a free consult and case analysis.

Thompson Law Offices Now Accepting New Constitutional Law Clients!

Thompson Law Offices is happy to announce that it is now taking on civil and constitutional rights defense cases!

The case law surrounding the Constitution is vast and often complex, having developed and redeveloped over the span of the nation’s 226 years. In an attempt to interpret the Constitution in a manner that can be applied uniformly in various circumstances, the U.S. Supreme Court (and the federal circuit courts of appeal) have developed doctrines and rules, each with various factors and defenses. Navigating these doctrines, rules, and cases, which often seemingly contradict each other, can be time-consuming, confusing, and frustrating.

In addition, the courts at all levels tend to defer to the government and its agents, creating defenses and immunities for officials and government entities. In order for a claim to be successful, it must anticipate these defenses and immunities from the start.

THOMPSON LAW OFFICES, LLC provides FREE CONSULTS and a FREE CASE ANALYSIS for Constitutional Law cases.  If you feel that you have been deprived of a constitutional right, call (888) 866-6947 to schedule a consultation or submit a consultation request online HERE.

Anniversary of New Jersey’s Adoption of Declaration of Independence!

Two Hundred Forty years ago today, the New Jersey Congress (as it was called then) formally adopted the Declaration of Independence, which had been adopted by the Second Continental Congress on July 2, 1776.  While it would be another 11 years before the Constitution was drafted, and another three years after that before all the states had ratified it, the Declaration became the document that outlined our founding principles.  All people are created equal; the government is answerable to the people; and that rights exist outside the existence of government.

In honor of the anniversary of New Jersey’s ratification of the document, here is the text of the Declaration:

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Button Gwinnett
Lyman Hall
George Walton
North Carolina:
William Hooper
Joseph Hewes
John Penn
South Carolina:
Edward Rutledge
Thomas Heyward, Jr.
Thomas Lynch, Jr.
Arthur Middleton
John Hancock
Samuel Chase
William Paca
Thomas Stone
Charles Carroll of Carrollton
George Wythe
Richard Henry Lee
Thomas Jefferson
Benjamin Harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton
Robert Morris
Benjamin Rush
Benjamin Franklin
John Morton
George Clymer
James Smith
George Taylor
James Wilson
George Ross
Caesar Rodney
George Read
Thomas McKean
New York:
William Floyd
Philip Livingston
Francis Lewis
Lewis Morris

New Jersey:
Richard Stockton
John Witherspoon
Francis Hopkinson
John Hart
Abraham Clark
New Hampshire:
Josiah Bartlett
William Whipple
Samuel Adams
John Adams
Robert Treat Paine
Elbridge Gerry
Rhode Island:
Stephen Hopkins
William Ellery
Roger Sherman
Samuel Huntington
William Williams
Oliver Wolcott
New Hampshire:
Matthew Thornton

Constitutional Brief: SCOTUS Condones Illegal Searches and Seizures

In a 5-3 decision Monday, the U.S. Supreme Court held that evidence seized after a search incident to arrest could be used to convict an individual, even though the initial stop was unlawful.

South Salt Lake City, Utah’s police department received an anonymous tip that drug activity was occurring at a particular residence.  Narcotics detective Douglas Fackrell was dispatched to investigate, and observed the residence at various times over the course of a week.  It became Officer Fackrell’s opinion that drug deals were occurring at the residence, as he observed frequent visitors staying for only a few minutes at a time.

During the stop in question, Fackrell observed Edward Strieff leave the house and walk to a nearby convenience store.  Fackrell had not observed Strieff enter the house, however, and so had no idea if Strieff was one of the short-term visitors Fackrell believed was involved in drug deals, or not.  Fackrell stopped Strieff in the convenience store parking lot and demanded his identification, which he provided, and asked him a few questions about his visit at the house.  Fackrell then ran Strieff’s information, discovered that he had a warrant, and subsequently arrested him, conducting a search of his person at the time of the arrest.

The courts in Utah were conflicted on the admissibility of the evidence, since the State conceded that the initial stop of Strieff was unlawful, as there was no reasonable suspicion that Strieff was engaged in criminal activity (in order to establish that, Officer Fackrell would have had to know how long Strieff was in the house; merely being present in a place where past or future criminal activity has or will take place is not reasonable suspicion under the law).  To clarify the law, the Supreme Court granted cert to hear the case.

The Court analyzed the relevant precedents, concluding that the “attenuation doctrine” was the relevant analysis here.  That doctrine holds that where the connection between the unconstitutional conduct and the evidence is too attenuated, the evidence should not be suppressed.  Intervening circumstances can contribute to that attenuation.

Here, the Court found that the discovery of the warrant requiring Strieff’s arrest constituted an intervening circumstance, and so the search incident to the arrest was a valid search.  A search incident to arrest has long been held to be a valid search, so long as the arrest is valid.  The Court did not seem particularly concerned that the warrant was only discovered as a direct result of the illegal stop (and therefore quite connected to the illegal stop).  Rather, the Court viewed the warrant as correcting the illegality of the stop and, essentially, creating an entirely new basis for a new, lawful stop.

In addition to the connection between the unconstitutional stop and the evidence seized, the Court looked to see whether Officer Fackrell’s actions were “purposeful and flagrant.”  His actions were “at most negligent,” according to the court.  While he did not have reasonable suspicion based on his observations and, as such, could not have demanded Strieff speak with him, the Court excused the admittedly unlawful stop.  “While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful.”  The warrant check was, according to the Court, simply precautionary for “officer safety.”  And because Fackrell’s actions were not “purposeful and flagrant,” the evidence found at the stop – illegal though it may have been – should not be suppressed.

The Court thus appears to be taking a “no harm, no foul” approach to the Constitutional protections of the 4th Amendment.  Because Officer Fackrell acted unlawfully “in good faith” all the way up to the point at which he began acting lawfully, his unlawful mistakes should be ignored.  And because a warrant already existed, Strieff essentially should have been arrested anyways.

What the Court conveniently dismisses, however, is that 4th Amendment was written and ratified precisely to protect against this type of unreasonable (read: illegal) search and seizure.  The 4th Amendment was a direct response to the British Writ of Assistance, or general warrant, which allowed searches of property in order to determine whether cause existed to bring charges.  In short, the Writ of Assistance was a legitimized government fishing expedition and the 4th Amendment was a direct prohibition of that.

Here, however, the Court has seemingly condoned the same practice.  While the Court briefly addressed the fishing expedition argument, it just as briefly dismissed it.  And while Officer Fackrell may, indeed, have been sincere in his desire to question Strieff solely on the activities of the house, the end result was that a warrant check was conducted on an individual solely based on an unlawful stop.  Had Officer Fackrell not illegally detained Strieff, he would not have conducted the warrant check and thus would not have arrested him and conducted the search.  (Also of note: the Court found that the warrant check was conducted for “officer safety,” despite the fact that there is no mention of any resistance or violence on Strieff’s part).

In short, Justices Thomas, Kennedy, Alito, Breyer, and Chief Justice Roberts chose to penalize Edward Strieff for his ignorance of judicial interpretation of the 4th Amendment, rather than the detective who actually violated Strieff’s rights.  Officer Fackrell admittedly made mistakes and violated Strieff’s 4th Amendment rights.  Strieff’s mistake, according to the Court, was in listening to Fackrell’s demands.  One wonders how the incident may have played out had Strieff followed the Court’s advice and ignored Fackrell’s demands.

At the end of the day, the Court chose to side with a narcotics detective who, though supposedly trained in the basic precepts of the 4th Amendment, made several basic mistakes.  Those mistakes led to the unlawful seizure of an American citizen, which ultimately led to the incarceration of that individual.

The constitutional rights of the individual are not contingent upon the good faith of the government or its agents.  They are inherent to in the individual. Whether the violation of the rights were mistaken or purposeful does not make the right any less violated.  While that may matter when determining whether to penalize the violator, it should not matter at all in determining whether the individual’s right have been violated.

In this instance, the correct remedy was to suppress the evidence unlawfully seized (whether to find civil liability with Officer Fackrell would be an entirely different case).  In failing to suppress the evidence, the Supreme Court has essentially told the citizens of the United States that they have no 4th Amendment protections, so long as the police officer thought he was acting according to the law.  At least until the next case . . .


Constitutional Brief: Eighth Circuit Continues Erosion of Fourth Amendment Privacy Rights

In United States v. DE L’Isle, No. 15-1316 (8th Cir., June 8, 2016), the federal appeals court for a large portion of the mid-west ruled that an individual has no right to privacy in the information contained on the credit card strip or on the face of the card.

Eric-Arnaud DE L’Isle was pulled over by a Nebraska police officer in 2014 for following too closely to a semi.  The officer stated he smelled marijuana in the car and conducted a canine search, which indicated the presence of controlled substances.  The subsequent search produced no drugs, but the officers did find a duffel bag containing “a large stack of credit, debit, and gift cards” in the trunk.  Only about 1/5 of the cards had DE L’Isle’s name on the front.  The cards were seized at the stop and then scanned by the U.S. Secret Service, which discovered that the magnetic strips on the cards were either blank or contained American Express account information.  Needless to say, none of the information on the magnetic strips was associated with any legitimate account of Eric DE L’Isle.

According to testimony from fraud investigators and U.S. Secret Service agents, the magnetic strip on the back of a credit, debit, or gift card contains up to three lines of information.  The first two are omnipresent and consist of the account number, expiration date, and cardholder’s name.  The third line is discretionary based on the issuing entity, but can contain a particular identifier.

DE L’Isle argued that the search of the strip constituted an invasion of his 4th Amendment right against the unreasonable search or search of his personal papers and effects.  Under existing federal and Supreme Court precedent, this type of claim (contesting whether the search was reasonable) rests on a person’s actual expectation of privacy and on society’s expectation of privacy in the particular situation.  In this case, DE L’Isle would need to show that he actually expected his credit card strip information to be private and that society had the same expectation.

The Court expressly rejected his claim that he had an actual expectation of privacy.

Mr. DE L’Isle “could not have had a subjective expectation of privacy in any of the . . . cards because the purpose of a credit card, debit, or gift card is to enable the holder of the card to make purchases, and to accomplish this, the holder must transfer information from the card to the seller, which negates an expressed privacy interest.”  Thus, the user of the card “knowingly discloses the information on the magnetic strip . . . to a third party and cannot claim a reasonable expectation of privacy in it.”

Mr. DE L’Isle’s subjective expectation was irrelevant, however, as the 8th Circuit panel found that “this alleged privacy interest is not one society is prepared to endorse.”  In a rather broad definition of what is considered to be public, the court found that “any member of the public may see” the information on an individual’s credit card, so the information was therefore considered to be public.  (The dissent in the case focused on factual issues, rather than the general privacy issues).

While no one should have any particular sympathy for an individual who was, according to the evidence, clearly intending to engage in a substantial amount of identity theft and credit card fraud.  Simply stated, Mr. DE L’Isle belongs in jail.  The problem arises in how he ended up there and the implications for individual rights that the court’s needlessly broad analysis casts.

The courts (the 8th Circuit here is only the latest example) have fundamentally misunderstood the 4th Amendment.  The protections of the 4th Amendment apply solely to the government (we have criminal statutes to prosecute violations of privacy from individuals against other individuals).  Thus, it is entirely irrelevant to a proper 4th Amendment analysis that DE L’Isle offered the information on the card to a merchant.  The information on a credit card is inherently private and, generally speaking, individuals only offer that information to a select group of other private entities: merchants and financial institutions who are prohibited from releasing the information to the general public.

Indeed, the crime DE L’Isle is accused of is stealing other individuals’ information.  If there is no privacy interest in this “public” information, then what, precisely, is the criminal behavior DE L’Isle was prosecuted for and convicted of?  At the time of the search, there was no indication that DE L’Isle actually used the cards or stole any money – he was merely in possession of what the courts apparently view as public information.  The government’s criminal charges belie its arguments before the 8th Circuit.

Despite the 8th Circuit’s ruling, credit card information is private information.  Entire industries exist to protect that information from other individuals, much less the forcible seizure of that information by the government.  Class action lawsuits have been initiated against major companies for negligent handling of information that resulted in hacking.  To say that credit card information – even “just” the account numbers – is flawed, to say the least.

Thus, not only did DE L’Isle demonstrate an intent to keep the information private (he kept the cards in a duffel bag and/or wallet to keep them from the view of the general public – and police), but society does, quite obviously, expect credit card accounts, expiration dates, the connected names, and particular identifiers to be kept private.

The courts’ rulings on this issue have been frightening and dangerous, to say the least.  An individual’s release of private, personal information to another individual does not, by any stretch of common language or common sense, indicate any intention to make that information public.  The court’s interpretation means that any disclosure – to anyone – of information is no longer considered private and, as such, is subject to search by the government without a warrant.  This is not hyperbole, but the language of the court: DE L’Isle “knowingly disclose[d] the information on the magnetic strip . . . to a third party and cannot claim a reasonable expectation of privacy in it.”

Simply stated, the courts have been on a dangerous trend that dismissed the need for a warrant where it is evident that a warrant would likely have been issued.

This case is a prime example: large numbers of credit cards without the individual’s name on them stored in a duffel bag in the truck almost guarantee the probable cause needed to obtain a warrant to both seize and search everything in that car, much less the particular cards and their information.  Law enforcement only needed to apply for the warrant and there was no exigency demanding immediate action: DE L’Isle was in custody and therefore not putting any more charges on the cards.  Knowing the information on the card several hours sooner would not particularly help the victims, either.

The purpose of the exclusionary rule (suppressing illegally obtained evidence) is to discourage law enforcement from obtaining evidence improperly.  If the police and prosecutors are confident that their convictions will be overturned when the evidence is improperly gathered, the theory is that they will be more constitutionally careful.  Conversely, when law enforcement is comfortable that the court is more interested in upholding convictions it believes are worthy than upholding the Constitution, then they will be less inclined to be concerned about the procedural safeguards offered by the Constitution.

This case is a perfect example of the latter: DE L’Isle was probably engaging in counterfeit.  However, the evidence used to convict – the information gathered on the magnetic strips was not DE L’Isle’s – was not properly obtained, even though law enforcement easily could have obtained a warrant once they had possession of the cards (which was almost certainly obtained lawfully, at least according to the facts as outlined here).  At the end of the day, the courts here chose to uphold a particular conviction, rather than the Constitution.

 Thompson Law Offices is dedicated to the protection of civil rights, the natural rights and liberties of the individual, and the Constitution.  If you believe your rights have been violated, call (888) 866-6947 for a FREE consultation.

Opportunity to Change NJ Carry Permit Laws: Assembly Bill 2955

On February 16, Assemblymen R. Bruce Land and Bob Andrzejczak (both of District 1 in Atlantic, Cape May, and Cumberland Counties) introduced a bill into the Assembly, No. 2955, which they’ve entitled the “Citizens’ Protection Act.”  The bill provides amendments that would make it realistic for a law-abiding individual to obtain a carry permit in New Jersey.  Because the legislation is new and the issues important, at the end of the post, you’ll find links to a map of New Jersey’s Assembly districts and a list of members of the Assembly and their contact information.

New Jersey is notorious for having some of the strictest firearms laws in the country.  Perhaps the most public aspect of this has been the “justifiable need” provision in the application process to obtain a permit to carry a handgun.  As the law currently stands, the individual seeking to obtain a permit must demonstrate justifiable need, which has been defined by the state courts to mean 1) “specific threats or previous attacks” that 2) “demonstrat[e] a special danger to the applicant’s life that cannot be avoided by other means.”  In re Pantano, 60 A.3d 507, 510 (NJ Super. 2013) (Emphasis added).  Thus, to get a carry permit in New Jersey today, you must have already been threatened or attacked and a carry permit must be the only way you can protect yourself.

While the law holds no liability against municipalities for failure to protect an individual, most police officers will tell you that they view it as their duty to protect individuals against crime; while there are some notable examples to the contrary, this is true in most cases.  However, as rightly noted by many firearms experts, life-threatening situations such as muggings occur very quickly and often there is no chance to even call police, much less time to wait for their arrival, no matter how quick it may be.  Likewise, mass shootings often occur quickly and, by design, as a surprise to the victims.  Thus, the bulk of the damage is done before police have an ability to arrive and assess and control the situation.

Despite the serious constitutional questions as to New Jersey’s firearms permitting statutes, the federal courts have been content to let them stand.  In a very recent case, the Third Circuit Court of Appeals held that it could not say with certainty that there was any right to carry a firearm outside the home inherent in the Second Amendment. See Drake v. Filko, 724 F.3d 426 (3d Cir. 2013).  In Drake, the plaintiff had been approved for a carry permit by the local police chief, but when he applied to the Superior Court, the State Police objected to the permit.   The Superior Court agreed with the State Police and denied the permit.  That decision was appealed to the Third Circuit, which then held that the U.S. Supreme Court precedents – D.C. v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010) – applied strictly to the home (which is a very, very strict and selective reading of those cases).  The plaintiffs then appealed the Third Circuit’s decision to the U.S. Supreme Court, which ultimately declined the hear it.  With the death of Justice Antonin Scalia, is remains unlikely that any substantial changes to firearms laws will occur in the near future.

All of which makes this bill so important for individuals who desire to carry firearms.  Assemblymen Land and Andrzejczak begin the bill with a series of whereas clauses, in which they accurately state that the courts have found that the police have no affirmative duty (either federally or under state law) to protect an individual citizen. See Wuethrich v. Delia, 382 A.2d 929 (N.J. Super. 1978) (“Municipalities are expressly immunized from tort liability for the failure to provide police protection or the failure to provide sufficient police protection”).  (It should be noted that under Federal procedure, a plaintiff sues the municipality in police force liability cases, rather than the police force, itself.)  In addition, the Assemblymen spell out the New Jersey constitutional provisions under which citizens have a liberty interest in self-defense.

This bill removes “justifiable need” from the statutory language by deleting the provision from N.J.S.A. 2C:58-4(c) entirely.  By removing the justifiable need requirement, the burden would no longer be on the individual seeking the permit, but on the State if it intended to deny the application.  Because Pantano interpreted the justifiable need statutory language, that holding would, in essence, be statutorily overruled.

In tandem with justifiable need, the proposed legislation removes the requirement that an applicant take an approved application before the Superior Court.  Currently, under N.J.S.A. 2C:58-4(d), the Superior Court may then reject the application (even though it has been approved by the local police chief) if the applicant’s character is found to be in question.  Indeed, many of the precedential cases on New Jersey’s firearms permitting scheme involve denials by the Superior Court after initial approvals at the local level.  The Citizens’ Protection Act would completely remove this step in the application process.

Firearms owners will also be excited to learn that the bill would explicitly prohibit the State from recording handgun serial numbers and descriptions when granting the permit, nor would it allow the Superintendent of the New Jersey State Police to include additional provisions as part of the application process.

The new application process proposed by the bill would be as follows:

  1.  The individual must provide 2 frontal photographs taken within 30 days of the application;
  2. Take a training and safety course, evidenced by a certificate of completion attached to the application;
  3. Verification by the applicant that the information provided is accurate (which replaces the requirement of witnesses to the signature).
  4. $20 application fee.

The permit would also be valid for 5 years, rather than 2, and place the burden on the State to demonstrate that the individual is not eligible, rather than requiring the individual to prove to the State that he or she does not run afoul of any of the eligibility requirements.  Anyone who is a U.S. citizen 21 years or older, has not been convicted of a felony (including certain juvenile delinquencies); has not been convicted of a domestic violence misdemeanor; has not been convicted of a drug crime in the 5 years prior to applying; does not have a physical or mental health defect that prevents them from safely possessing the firearm*; is not subject to a restraining order for domestic abuse; is not on the Terror Watchlist;  and has not been an alcoholic or addict within the same time period, would be eligible, assuming they pass an 8 hour training course.

Other provisions of note include the amendment of N.J.S.A. 2C:39-2(b), which provides that an individual found to be in possession of a firearm in a vehicle in New Jersey “shall be presumed that he does not possess such a license . . . until he establishes the contrary.”  This means that the law currently grants a legal presumption of the presence of an element of guilt to the State of New Jersey in certain criminal cases.  This bill would delete this language entirely.

Then the bill tackles the carry permit scheme.  It begins by deleting N.J.S.A 2C:58-3(c)(5), which prohibits the issuance of a carry permit to someone in cases where it is considered to be against the public’s health or safety.  Given the other reasons why one may be denied a permit, this particular provision is not only superfluous, but dangerously vague, in that it serves as a fallback provision upon which to deny someone otherwise eligible.  The bill also removes any special provisions for armored car personnel, applying a uniform standard to all applicants.

If you are interested in the constitutional right of citizens to defend themselves against threats, wherever those threats might occur; disappointed (to put it mildly) in the current state of New Jersey’s firearms statutes; or want to get a carry permit in New Jersey for any other legal reason, this bill would greatly increase your ability to do so.

Thompson Law Offices encourages the participation of the individual in both the legal and political system.  If you wish to get involved, you will find links to a map of the Assembly districts and contact information for your representatives below.

Map of New Jersey Assembly Districts

Contact Information for Representatives

* If you have been involuntarily committed for mental health evaluation in New Jersey or Pennsylvania, you are invited contact our office for a free consultation.  You may have the ability to expunge the commitment.  An attorney will be able to advise you as to the effect an expungement may have on your ability to possess or carry a firearm.

Fields/Geraci v. Philadelphia: No right to record police in Pennsylvania

The Eastern District of Pennsylvania recently released a decision in the combined cases of Fields v. City of Philadelphia and Geraci v. City of Philadelphia.  Both of these cases involved the constitutionality of recording police officers performing their duties in public places.  At the end of the analysis, the Court held that there is no First Amendment right to record police officers without some form of criticism involved.  The decision is unfortunately dangerous on both a practical and a theoretical level.

In order to understand the context in which the decision was made, it is necessary to understand the parameters of the First Amendment, at least as defined by the various federal appeals courts, including the U.S. Supreme Court.  In essence, the First Amendment’s protection of speech (only one of the various rights protected in that Amendment) also applies to “expressive conduct.”

Expressive conduct is activity that can reasonably be viewed as promoting an idea or expression.  Thus, flag-burning, picketing, the wearing of an armband, etc. can be deemed “expressive conduct” because they intend to relay a political point of view through conduct.  Because the plaintiffs here did not issue verbal political statements, the Court used the “expressive conduct” analysis.

In Fields and Geraci, the Court found that there was no expressive conduct.  In the Fields case, the plaintiff was walking on the sidewalk, observed a large group of police officers, and thought it “would make a great picture.”  He stopped to take the picture, an officer approached him and asked if he like taking pictures of grown men, and then told him he was blocking a public passage and needed to move.  Fields stated he was within his rights to be where he was, and he was arrested.

In the Geraci case, the plaintiff was attending a protest against fracking in order to observe the interactions between police and protestors.  She was, in fact, an activist and her specific reason for being at the event was to observe and record activities for her organization.  She apparently wore a pink bracelet identifying herself as a member of the organization.  When a police officer began to arrest a protestor, Geraci moved closer (but not in a distance to interfere), when the officer pushed her against a tree and held her there so she could not continue recording.

To reach its decision, the Court ultimately sifted through a series of cases from the Third Circuit (the federal appeals court for Pennsylvania, Delaware, and New Jersey).  The legal research found no evidence of a right to freely record police officers; the most the Third Circuit had to say up to this point was that an individual “may” have the right, so long as the recording is accompanied by a context indicating that it is “expressive conduct.”  The Court found that merely observing cannot be deemed “expressive conduct.”  And because the Court determined that the plaintiffs “are not members of the press,” they had no First Amendment right to record without an accompanying protest or challenge.

This holding is dangerous for two reasons.

First, the Court held that in order to be protected by the First Amendment, one’s recording of police must be accompanied by an active protest of police actions.  This, again, has two major problems: (a) if the police have engaged in inappropriate conduct prior to the recording, the individual has no mechanism to show the inappropriate conduct, short of a police report and the individual’s own testimony; and (b) given that both individuals claim that there was a significant use of force against them (and Fields was actually arrested) for recording without protest, one can imagine the risk an individual takes to his person and liberty should he (or she) attempt to record police activity while actively protesting the individual’s own treatment.

Constitutionally speaking, this is a dangerous ruling, as well.  The District Court found that the plaintiffs were not members of the press.  Notably, the Court failed to explain its decision here and offered no reasons why someone taking interesting photos of city activities and a political activist specifically seeking to observe and record police activities are not to be considered journalists.  The Court noted the “instant image sharing technology” available to share the images recorded by the plaintiffs, so that presumably it assumed that the plaintiffs had at least some intention of sharing the recordings.

We have already seen attempts by the government to determine who, precisely, is considered a journalist.  The First Amendment protects the freedom of the press, in addition to the freedom of speech, assembly, petition, and religion.  These rights protect the individual against encroachments by the government.  It is exceedingly dangerous, then, to allow the entity against whom we are protected to define to whom the protections apply.  That would be equivalent to allowing the individual to determine his/her own tax deductions, or a criminal suspect to determine which sections of the Crimes Code applies to him.

To cite another, perhaps more important, example: prior to the American Revolution, the primary media was newspapers and pamphlets.  In the 1760’s, after the rather expensive French and Indian War, the British government began placing taxes on various objects and activities.  To state their objections to this and other recent policies, the American colonists ran newspaper editorials critical of the British Parliament and individual officials.  To curb this, the British government exacted a tax on newspapers (and some other legal documents).  This action, called the Stamp Act, was one of the major contributing actions (among a series of impositions by the British) that led to the American Revolution.  Thus, when forming the Bill of Rights, the drafters were careful to include the freedom of speech and of the press as one of the first rights (second only to religion) protected against government encroachment.

By defining who the press is, the government limits the protections of the First Amendment perhaps more than the initial Stamp Act did.  Today, taxes and fees exist at every level of conducting business, a fact the colonists would likely abhor, but is fully accepted today; here, however, the government actually defines who may receive constitutional protection and who may not.  The manner in which the Court matter-of-factly states that the plaintiffs were not members of the press is certainly disturbing; it is apparently so evident to the Court that no explanation was needed.  (As an aside, this is a different argument than requiring press passes into a press conference at an official press conference – while the government may decide to whom its officials will personally speak, it cannot prevent another individuals from reporting on what was said).

Finally, the arguments of several other federal appeals courts seem more convincing than the Eastern District’s or the Third Circuit’s.  The First Circuit (Maine, New Hampshire, Massachusetts, and Rhode Island), Eleventh Circuit (Georgia, Florida, Alabama), Seventh Circuit (Illinois, Indiana, Wisconsin), and Ninth Circuit (California, Nevada, Arizona, Oregon, Idaho, Washington, Montana, and Alaska), and , – in total, 18 states* –  all recognize a right to record police in public, so long as there is no interference with the police performing their duties.  These Circuits recognize that observation and recording serves an important function in the national conversation, in preventing corruption, and in promoting free discussion of ideas, in addition to the news gathering function (which they do not necessarily limit to the “authorized” press).  In the view of the Eleventh Circuit, “the First Amendment protects the right to gather information about what public officials do on public property.”

While the First Amendment claims were unfortunately dismissed, the Fourth Amendment unreasonable search and seizure, false arrest, and excessive force claims will ultimately go to trial.  The search and seizure claims may very well be affected by this decision, however, as officers (and other public officials) have qualified legal immunity against liability if the actions were not clearly unconstitutional at the time.  If there was no right to record police and Fields refused a police command, then perhaps it was “reasonable,” in the legal sense, for the officer to seize his phone and search it.  I certainly hope that is not the case, but I have seen more loosely connected logic in grants of qualified immunity.

The attorneys for the plaintiffs have indicated that they will appeal this decision to the Third Circuit.  One hopes that that court will recognize the right to record public officials in the course of their public duties, regardless of who is doing the recording.

* Other states may recognize the right individually.  This is merely to show states in which the federal courts have stated there is a right to record police under the U.S. Constitution.  New Jersey, for example, has held that there is a right to record police officers, essentially adopting the First Circuit’s reasoning.

**This case currently applies only within the boundaries of the Eastern District of Pennsylvania and, as a district court case, is binding on the parties.  However, the case may be used as persuasive authority in any legal proceeding.  This means that while not binding on persons who are not parties to the case, Thompson Law Offices, LLC would not advise recording police officers in Pennsylvania at the present time.

Eastern District of Pennsylvania Holds Recording Police Activity In Public NOT Constitutionally Protected

In an opinion today, Judge Mark Kearney ruled that citizens who, at the time of recording, do not intend to challenge police activity, have no right to videotape police officers performing their duties in public.  You can read excerpts of the decisions here, as reported by The Legal Intelligencer today.  The opinion was not publicly available online at the Eastern District’s website and the decision may not be appealed immediately, as there were other issues to be decided in the case.  However, the attorneys for the plaintiffs have indicated their desire to appeal the case, according to the article.

Once the opinion has been made public, Thompson Law Offices will review the decision and post further analysis.  However, given the importance of the case, it was felt necessary to post the decision, without analysis, sooner, rather than later.

R.I.P. Justice Antonin Scalia

We are deeply saddened to learn of the death of Justice Antonin Scalia. Throughout his nearly 30 years on the U.S. Supreme Court, Justice Scalia championed the U.S. Constitution and the system of government established and envisioned by our founders.  He will be sorely missed.