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In the latest of the terrifying bills that have come out of our current Congress, Republicans in the House and Senate recently introduced two companion bills they are calling the Back the Blue Act of 2017, to keep up with the Trump Administration’s rhetoric of “law and order.” S.1134 was introduced by John Cornyn (R-Tex.), and is co-sponsored by 15 senators, all Republicans.  H.R.2437 as introduced by Ted Poe (R-Tex.), and includes five co-sponsors, also all Republicans.

What the Bills do

The bills would create a new category of federal crimes for killing or attempting to kill a state or local law enforcement officer who works for a police agency that receives federal funding. It in effect treats all local police agencies as federal agencies because nearly all police agencies already receive some sort of federal funding. The bill would also allow for the federal death penalty in such cases, and it would impose limits on the ability of defendants to file habeas petitions in federal court after they have exhausted their appeals.

The bill would also make it a federal crime to “assault” any police officer, bringing a federal mandatory prison sentence of two to 10 years.

Additionally, the bills would allow a district attorney to overrule local officials if he or she did not like the way those officials were handling a case involving a police death. As it stands, the language of the proposed legislation explicitly authorizes federal prosecutions in cases where  “the verdict or sentence obtained pursuant to State charges left demonstratively un-vindicated the Federal interest in eradicating bias-motivated violence.”

Qualified Immunity

It has always been the case that police actions are covered under qualified immunity, which means that in order for a victim’s lawsuit to proceed, the plaintiff in a civil rights lawsuit must show that not only were his or her rights violated, but also that a reasonable police officer should have known that the actions in question were a violation of the Constitution (essentially that the police intentionally violated his or her rights).

Under the language of this proposed bill, police would only be liable for out-of-pocket expenses and not statutory punitive damages, such as in instances of Section 1983 lawsuits under the Civil Rights Act. Lastly, the bills would bar plaintiffs from recovering attorneys fees under Section 1988 of the Civil Rights Act.

The bills are being opposed by civil rights and accountability groups nation-wide. Continue reading

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In Alameda county, California lawmakers are considering a contentious bill that would end lifetime registration for certain sex offenders. The lawmaker who introduced the bill, Nancy O’Malley, and the District Attorney of Alameda County’s intent is to save the state money, since it is extremely expensive to monitor sex offenders.

Senate Bill 421 would reorganize the sex offender registry into a tiered system and group existing registered offenders into three categories based on the severity of their crimes. A certain number of offenders would be dropped from the list as soon as 2018. “There are people who are still registering who are now 80 years old and they register every year because when they were 18 years old they exposed themselves, there’s injustice in some of that,” says Ms. O’Malley.

The bill passed the state Senate’s Committee on Public Safety on last month. Proponents of the new bill say that lightening the work load of law enforcement will give them more time to focus on high-risk offenders that actually need monitoring.

Currently, a state tax force has 2,500 sex offenders to keep track of. There is currently an estimated 104,000 registered sex offenders statewide.

Potential Changes in California’s Sex Offender Registry

Most U.S. states already have a tiered system for sex offenders. But under current California law, all sex offenders have to register with law enforcement for the rest of their lives, no matter if they committed a nonviolent misdemeanor crime like indecent exposure (ie. urinating in public) or a violent felony rape.

If passed into law, S.B. 421 would create a tiered system for sex offenders:

  • Tier 1: Misdemeanor or non-violent sex offenders would have to register for 10 years.  This encompasses situations like when a young college student has too much to drink and exposes him or herself publicly.
  • Tier 2: Convicts who committed serious or certain violent offenses would have to remain on the list for 20 years.
  • Tier 3: Violent high-risk sex predators will remain on the list for the rest of their lives.  This includes sex offenders who violated Megan’s Law.

A sex offender’s removal from the registry would not be automatic. Offenders who qualify for removal would still have to petition the court and have their application reviewed by their local district attorney, who has to consider factors like the risk of re-offending. Continue reading

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According to California Supreme Court Chief Justice Tani Cantil-Sakauye, the over four million traffic tickets handed out to the state’s drivers each year should no longer be criminal charges. If other lawmakers agree with her, California drivers would spend less time in court and would no longer face fines of up to $300 and possible license suspensions for failing to show up for a hearing.

A panel called the Commission on the Future of California’s Court System has recommended this traffic ticket proposal in an attempt to improve Californian’s interactions with the judicial system. Ms. Cantil-Sakauye wants the Judicial Council to study and report on the proposals by September in the Fall.

The traffic proposals are the latest response to the slew of driver suspensions brought on indirectly by the court system’s financial deficits. California courts have been padding their budgets by adding surcharges to traffic tickets — $490 to the standard $100 fine for a minor violation. When drivers miss payment deadlines, they face additional penalties and license suspensions. A statewide report in 2015 found that 4.2 million Californians had their licenses suspended between 2006 and 2013 for failing to pay traffic fines and penalties. Poor people were hit the hardest.

Under this proposal, traffic infractions would be moved to the civil court system. If a driver fails to show up in court, the judge can decide whether the law had been violated, but he or she could no longer impose a fine of up to $300 for nonappearance or suspend the driver’s license.  However, the proposal would not eliminate license suspensions for failing to pay fines and penalties for the original offense. The proposal would need to be approved by the state legislature and the governor.

State senator Robert Hertzberg (D-Van Nuys) has a new bill, SB185, that would prevent the state from automatically suspending licenses of drivers unable to pay fines for minor traffic tickets and would require courts to base fines on drivers’ ability to pay

Legal Implications

By switching out of the criminal law system into a civil one, it is now easier for the state to prove a violation. For criminal cases, prosecutors have to prove guilt “beyond a reasonable doubt.”  The switch to a civil system means prosecutors only need to prove guilt by a “preponderance of evidence,” meaning that over 50% of the evidence points to the defendant’s guilt. Continue reading

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In a tragic turn of events, seven adults were shot at a University City apartment complex pool party earlier this month. One woman named Monique Clark was killed. Witnesses say that  49-year-old Peter Selis, a resident at the upscale La Jolla Crossroads complex, never even left his pool chair when he opened fire on a birthday party.  The question left in everyone’s mind is whether Selis was motivated by race, something that the witnesses and survivors of the shooting believe to be true. All the victims of the mass shooting were people of color – four black women, two black men, and one Latino man.  

The three police offers who arrived at the scene shot and killed Mr. Selis. The preliminary investigation revealed that Mr. Selis is a car mechanic at a Ford dealership, and a 2015 bankruptcy filing illustrated that he was under crushing debt.

Hate Crimes

According to the FBI, a hate crime is a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

Hate crimes are the only criminal case in which prosecutors are required to prove a perpetrator’s motive at trial. Typically, the defendant’s mens rea, or criminal intent, is all that is needed to prove guilt. This means that the perpetrator’s state of mind must be an element of the crime; he or she must have taken action intentionally to pursue a criminal result. For example, if a gunman opens fire on a crowd, prosecutors must prove that he intended to pull the trigger (the action) and shoot people to harm them (the criminal result). With hate crimes, prosecution must prove that the perpetrator had the mens rea  to shoot people, but that he or she was also motivated by the victim’s race, gender, or religion.

As a result, hate crimes are extremely difficult to prove even if the crime of shooting is considered by some to be a ‘slam dunk’ case. The mere difference between the race of the offender and the victim in and of itself, absent of any other objective bias indicators, is unlikely to result in a conviction. Usually there must be more evidence to examine the surrounding circumstances. This may include statements the suspect made prior to the crime, which do not exist in the case of Mr. Selis.

A total of 84 “hate crime events” were reported in 2016 in San Diego. Continue reading

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Earlier this month, Superior Court Judge Tamila E. Ipema issued a court order that the San Diego County District Attorney, Bonnie Dumanis, must return $100,000 of seized assets back to a medical marijuana businessman and his family. Over a year ago, DEA agents raided James Slatic’s business, but did not charge anyone with a crime. They used sledgehammers to break open the front door of Med-West Distribution, Slatic’s business that supplied a collective of medical pot shops with cannabis oils used for vaping as well as marijuana-laced edibles, topical creams, and other products. The agents seized all of the inventory, business records, and just over $324,000 in cash (a separate forfeiture proceeding for those funds is ongoing).

A few days after the raid, the District Attorney’s office also froze Slatic’s personal bank account, along with the accounts of his wife and two stepdaughters, alleging that the money was illegal drug profits. They took $55,000 from Slatic’s account, $34,000 from his wife’s account and more than $5,000 each from the couple’s two daughters. The money was not formally seized until months later. Dumanis has used state and federal civil asset-forfeiture rules for years to confiscate millions of dollars from drug suspects.

Lawyers for Mr. Slatic argued that that money should be returned because it was not part of Med-West’s funds. Mr. Slatic wrote in a statement: “It’s about time. We did nothing wrong. My business operated openly and legally for more than two years; we paid taxes and had a retirement program for our 35 employees.” The District Attorney’s office has argued that they do not have to return the money until 12 months after money is formally seized, not 12 months after it is actually seized.

Formal Procedures of Civil Asset Forfeiture

Civil asset forfeiture occurs when the government (ie. police) literally seizes someone’s property without compensating them, based on the suspicion that the property was used in connection with criminal activity. The government has to follow certain procedures before it can declare forfeited property.

Schedule I substances (drugs) can be seized by policy without any formal petition of forfeiture. See CA Health and Safety Code § 11475.  

When police seize personal property worth less than $25,00 they must give notice of formal forfeiture proceedings to all property owners. See CA Health and Safety Code § 11488.4(j). You must be given an opportunity to file a claim if you recieve this notice, which must be filed within 30 days of the received notice.

California law prohibits police from keeping seized cash and property valued at less than $40,000 in federal cases without obtaining a criminal conviction. Continue reading

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A young man named Juan Manuel Montes Bojorquez, 23, who may be the first “dreamer” to be deported under the Trump administration, has filed what could be the first “dreamer” lawsuit against the administration in San Diego federal court. The lawsuit demands the government release information about his case under the Freedom of Information Act (FOIA), to find out why he was deported.

Mr. Montes was deported back to Mexico after being stopped by a border officer on a bike in Calexico on February 17th. He did not have any ID on him when he was detained. It is reported that Montes was not given an opportunity to see an immigration judge or attorney, and that he was escorted across the border in Mexicali without the copies of the papers that he signed. After he was removed to Mexico, the lawsuit claims that Montes was robbed in Mexicali at knifepoint of a suitcase of clothing. He snuck back in to the U.S. the next day with his wallet, and then turned himself to CBP. He was detained once again and deported back to Mexico. Montes has been living with family in Mexico since.

According to his attorneys, Mr. Montes came to the U.S. when he was 9 years old and since 2014 has been able to legally live and work in the country under the Deferred Action for Childhood Arrivals (DACA) program. According to the Department of Homeland Security, his DACA status had expired, and an illegal entry into the U.S. and a prior conviction for theft put his status in question. Montes has a minor traffic offense and one misdemeanor offense.

Continue reading

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It is reported that California is easing back into executions for convicted criminals on death row, after not having executed anyone in over a decade. California has a sordid history with the death penalty. The process is extremely delayed, with inmates waiting on death row for decades before dying of natural causes instead of being executed. The state has held no executions since 2006, and only 13 since the death penalty was reinstated in 1978. However, the list of death row inmates is twice as many as any other states, up to 749.

California voters voted for Proposition 66 last November, which would keep the death penalty intact and also reform the state’s capital punishment system by speeding up executions. In 2012, voters also rejected Proposition 34 and Proposition 62 in 2016, which would have permanently repealed the state’s death penalty. Voters in a few Southern California counties are also electing district attorneys who put more people on death row. The people of California have definitely spoken: They want to speed up death row, not eliminate it, despite the data that shows it is racially discriminatory. However, it would take an execution a day, every day, for the next two years in order to empty the state’s death row backlog.

Crimes Eligible for Capital Punishment in California

There are several statutes that touch on capital punishment in the California Penal Code. CA Penal Code § 187 addresses “special circumstances murder” which includes:

  • More than one murder conviction;
  • Murder by bomb or poison;
  • Murder of a cop;
  • Murder involving torture;
  • Murder involving gang activity; and
  • Murder involving another serious felony (ie. rape).

California law also provides for the death penalty if you are convicted of:

  • Treason against the state;
  • Perjury causing the execution of another innocent person;
  • Intentionally interfering with preparations of war.

Lastly, CA Penal Code § 190.3 sets out a list of aggravating factors that allow a jury to determine whether a defendant should get the death penalty. For example, juries may consider the circumstances of a crime, such as if the acts were particularly egregious. They can also consider other past violent criminal activity that is not connected with the crime at hand (ie. domestic violence).     Continue reading

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David R. Daleiden, 28, and Sandra S. Merritt, 63, the anti-abortion activists behind the infamous Planned Parenthood video were charged earlier this month in San Francisco Superior Court for 14 felony counts of eavesdropping and secretly recording conversations, and one additional count of felony conspiracy (amounting to 15 felony counts total). California Attorney Gen. Xavier Becerra unveiled a 15-count felony complaint against the activists, alleging that they video-recorded 14 people without their consent at meetings with women’s healthcare providers in Los Angeles, Pasadena, San Francisco and El Dorado. The complaint can be found here.

Back in 2015, the Orange County-based Center for American released a video featuring high-ranking Planned Parenthood employees haggling over prices for fetal specimens as well as describing altering abortion procedures to obtain more intact fetal body parts. That video has largely also been debunked as fake.

In a related development, the 9th U.S. Circuit Court of Appeals also held the same week, that the Planned Parenthood video showed no evidence of criminal activity, and upheld the preliminary injunction barring Daleiden and his fake company from further dissemination of the material. The 9th Circuit rejected the Defendant’s claim that their activity was protected by the First Amendment. Investigations have also cleared Planned Parenthood of criminal charges, but threats and violence against the healthcare provider have still continued.

Legal Ramifications

It is reported that the state of California has the evidence it needs to win the convictions against these anti-abortion activists. California has stronger privacy protections than most states. In fact, the right to privacy is even mentioned in the state’s constitution:

” All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” See California Constitution, Article 1, Section 1.

Prosecutions involving hidden recordings tend to be fact specific. Using a hidden recording device almost already admits the other person assumed the conversation was private and therefore is a violation of Cal. Penal Code § 632, which is at the heart of the California Attorney General’s complaint.

Even citizen journalists have to comply with criminal statutes. The Penal Code only has some narrow exceptions for exposing certain crimes, such as bribery and extortion, and to protect public safety. Continue reading

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Recently, the state Fair Employment and Housing Council (FEHC) finalized new regulations that would further limit a California employer’s ability to use criminal history when making employment decisions. Specifically, the new regulations, which are based on the FEHC’s 2012 Equal Opportunity Commission Guidance, would prohibit an employer from considering a job applicant’s or employee’s criminal history if doing so would result in an adverse impact on individuals within a protected class, such as gender, race, and national origin. This means a job applicant must first prove that an employer’s background screening policy actually has an adverse impact on a protected class. This includes proving that the screening policy disproportionately affects certain groups more than others, such as African Americans.

If an adverse impact is shown, the employer must demonstrate that the policy is job-related and consistent with business necessity. The employer in deciding these two factors must consider the nature and gravity of the criminal offense, the amount of time elapsed since the offense, and the nature of the job held/sought by the employee. Under FEHC regulations, employers must specifically assess people on a case by case basis while considering criminal history. Employers must be able to justify why they rejected a specific candidate. In other words, blanket policies that preclude any criminal record will now be illegal.

It should be further noted that even when the employer implements job-related screening processes, an applicant or employee can still prevail on an adverse impact claim if s/he can demonstrate the employer could use a less discriminatory policy without increasing significant costs.   

Lastly, the new regulations also contain employee notice requirements. This means that before an employer can adverse action against someone based on their record, he or she must give this person notice to refute his or her criminal history.

The regulations will become effective July 1, 2017.

Other Criminal Disclosure Changes

Earlier this year, Assembly Bill (A.B.) No. 1843, which amended Section 432.7 of the California Labor Code, was signed into law to prohibit employers from asking about or considering one’s juvenile records or involvement in the juvenile system if it did not result in a conviction.

Between these new regulations and last year’s law, employers should be careful when considering one’s criminal record. These policies must be narrowly tailored and exclude any blanket prohibitions. Continue reading

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It has been reported by Rolling Stone Magazine that Immigration and Customs Enforcement (ICE) has virtually stopped granting detained immigrants bond or parole, keeping them incarcerated throughout their cases unless they successfully appeal to an immigration judge.  Nationwide, there has been a noticeable drop in bond issuances by ICE. This shift has already been attributed to Trump’s January immigration enforcement executive order, which called for ICE “to ensure the detention of aliens apprehended for violations of immigration law” and to grant parole on a “case-by-case basis.”

However, immigration attorneys say ICE has clamped down even more extremely than called for in Trump’s order.  Many immigration officials are not releasing detainees at all, and punting them straight to the immigration court.  This enforcement strategy has been confirmed by attorneys in 11 states in different regions of the country.

Previously, immigrant asylum-seekers could leave detention after demonstrating fear of persecution as the initial step of their case.  ICE would then offer a bond or a release on recognizance to those who had been apprehended by immigration agents, and would grant parole to those who had requested refugee status at an official port of entry. The agency has instead begun blanket rejections of those types of cases. Immigration lawyers are now rushing to file bond requests for dozens of detainees in immigration court. However, immigrants who present themselves at the border are lawfully ineligible to appeal to a judge if ICE denies them parole.

Many worry that the bond and parole denials could be the beginning of even more widespread detention. Trump has asked Congress for the funds to open up 20,000 beds to expand immigrant detention facilities.

Immigration Bonds

Currently, only in the states of Arizona, California, Nevada, Idaho, Oregon, Washington, Montana, Alaska, and Hawaii can immigrants denied parole request bond from a judge after six months in detention. See Rodriguez et al. v. Los Angeles ICE.

Immigration Bonds

Immigration bonds refer to money paid to secure a detained foreign national’s release that serves as a guarantee to the government that, once out of detention, the bonded individual will attend all immigration court hearings. When ICE detains someone, it also sets a bond amount if the person is eligible. This eligibility is based on a risk assessment. If the immigrant can afford to pay the bond, then he or she will be released upon payment. He or she can also request an immigration judge lower the amount. The immigrant must go back to court on the date of his or her immigration hearing. Continue reading