David M. Boertje

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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

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It was recently reported that Rep. Duncan Hunter (R-Alpine) is currently under criminal investigation by the federal Department of Justice for allegedly misspending tens of thousands in campaign funds. According to a report by the Office of Congressional Ethics, Rep. Hunter may have appropriated the money from his congressional campaign committee for personal use to pay for family travel, tuition, jewelry, groceries, and other personal expenses. The Committee on Ethics then deferred its investigation at the request of the Justice Department.

At a town hall in Ramona, California, Hunter was asked about his alleged personal use of campaign funds. In response, the congressman said his campaign had made a “mistake” and that the funds had been paid back. He has reimbursed his campaign fund approximately $62,000.

As of March 23rd, Hunter has been under criminal investigation by the Department of Justice/ Federal Bureau of Investigation for the misspending. Federal election officials and the San Diego Union-Tribune have repeatedly raised questions over the last year about his unusual spending.  These spending issues reach back over a year, when the Federal Election Commission (FEC) first questioned Hunter for using campaign funds to pay for video games on 68 occasions.

The Citizens for Responsibility and Ethics in Washington, the group that filed the original ethics complaint against Hunter, said in a statement that “Hunter has shown a blatant disregard for the rules.” The FBI has looked at the financial dealings of more than a half dozen House members in the last decade.

Federal Campaign Rules

Political action committees or campaign committees are organized for the purpose of raising and spending money to elect and defeat candidates. They must register with the FEC within 10 days of formation and abide by disclosure rules and federal limits on contributions. Candidates are not allowed use the funds in these committees for personal use.

California Campaign Rules

California’s Political Reform Act was adopted as a statewide initiative (Proposition 9) by an overwhelming vote in 1974. The state has been a leader in promoting transparency in elections since. The law requires candidates and committees to file campaign statements disclosing contributions received and expenditures made. These documents are public and can be audited by the Fair Political Practices Commission  and Franchise Tax Board. However, the law only applies to state and local elections, and not federal (ie. Congressional ones).

Additionally many cities have adopted local ordinances on the city level that may also have additional regulations and restrictions. Continue reading

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Earlier this year, San Diego police arrested dozens of people believed to be amongst North County San Diego’s biggest criminal gun and drug dealers in a massive takedown. In total, 55 men and women were charged in 10 federal indictments that allege heroin and methamphetamine trafficking, along with illegal gun possession, money laundering, robbery, theft, assault, and burglary. By March 1st, 46 out of the 55 suspects were in custody.

The arrest was part of a year-long investigation involving wiretaps, surveillance, and 150 cops.  Acting U.S. Attorney Alana Robinson says many of the defendants are connected to drug traffickers in Tijuana (most likely the Sinaloa cartel). Mexican drug cartels then used San Diego gang member as distributors of their heroin.

It is reported that eight defendants currently remain at large, two of which are believed to have fled to Mexico. One of them is Yadira “Pini” Villalvazo, who prosecutors identified as the leader Tijuana operation, and imported and distributed heroin in North County to send tens of thousands of dollars back to Mexico. Authorities said the investigation also targeted meth traffickers.

Heroin Laws in California

The possession and sale of heroin is still a crime in California even though there have been a couple reforms that would steer the penalties for first-time offenders towards rehabilitation instead of jail. In 2001, California voters passed Proposition 36, the Substance Abuse and Crime Prevention Act (SACPA). SACPA mandates that those arrested for non-violent drug offenses be offered the opportunity for treatment instead of jail time. Prop 47, passed in 2015, made possession of heroin a misdemeanor for first time offenders and many other cases. Penalties can include a year in jail and a $1,000 fine.

However, it is a felony if you have a prior conviction for possession or if you also have a record for other serious felonies such as manslaughter or a sex crime. See CA Health and Safety Code § 11350. Possession for the sale of heroin remains a felony no matter what, and it is punishable by three to five years of imprisonment and a fine up to $20,000. See CA Health and Safety Code § 11351. You are not eligible for the drug diversion program if you have this conviction.

Selling or transporting heroin is probably the most serious of drug crimes, punishable by up to 25 years in prison. The number of years you face depends on the amount you are convicted of selling or transporting. Continue reading

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Saturday, March 7th marked the seventh anniversary of the Balboa Park “Chelsea’s Run” to commemorate the 17-year-old Poway High School student who was sexually assaulted and killed in 2010 by convicted sex offender John Gardner. Chelsea King was abducted while running in a Rancho Bernardo park by Gardner, the same man who admitted to killing Amber Dubois of Escondido. Garner pled guilty and was sentenced to life without parole.

Six months later, “Chelsea’s Law” was passed after being signed by Gov. Arnold Schwarzenegger. The law sharply increased penalties for those convicted of sexual assaults on minors (including the sentencing of life without parole). It also included reforms to increase outreach to paroled sex offenders most likely to re-offend, and made GPS monitoring mandatory for child sex offenders. It also barred sex offender parolees from being near where children congregate.

A report released five years after the enactment of Chelsea’s Law concluded that at least 332 defendants were charged statewide under various aspects of the Law. In San Diego County, 22 people were charged under the law between September 2014 and August 2015, including two who received terms of 25 years to life.

Aggravated Sexual Assault of a Child

Aggravated sexual assault of a child is an extremely serious crime. It is a felony punishable by 15 years imprisonment to life, along with a fine of up to $50,000. The sentence will increase if there is multiple victims. See CA Penal Code § 269. Additionally, those convicted will be required to register as a sex offender.

One will be charged under § 269 if s/he allegedly sexually assaults a minor under the age of 14, or if the victim is a minor (under 18 years old) and seven years younger than the defendant.

Aggravated Kidnapping

The crime of aggravated kidnapping occurs when someone:

  • Uses force, fear, or fraud against a minor under age 14; or
  • Demands a ransom;
  • Causes the victim bodily harm or death;
  • Violates California’s carjacking law under Penal Code § 215.

See CA Penal Codes § 207, 208, 209. A conviction of aggravated kidnapping carries a prison sentence of five years to life, depending on the circumstances. Continue reading

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In a big announcement, the Lee County Attorney’s Office dismissed the remaining charges against the protestors arrested last fall while protesting the Dakota Access Pipeline. Over 50 people, ranging from their mid-teens to their late 70s, were arrested on charges including trespassing, interference with official acts, and disorderly conduct. While some pled guilty and agreed to pay their respective fines, the majority of protestors pled not guilty and requested a jury trial.

In more than one instance, journalists covering the protests were arrested along with legal observers and protestors. Assistant Lee County Attorney Clinton Boddicker dropped the charges against one reporter, Aaron Murphy, along with those against 10 other protestors that only had one charge against them.   

Those with more than one charge were offered a different deal. One woman, Jessica Garraway of Minneapolis, had her trespassing charge dropped if she agreed to plead guilty to a charge of interference with official acts and pay the maximum fine.

One of the reasons the County likely dropped the charges was in the interests of court efficiency.  “‘If they all ended up having a jury trial, I would probably have had a jury trial every week between now and October, and we still probably would not have reached all the cases,” said Boddicker.

For those who did not show up to court, Lee County says it is planning to issue arrest warrants.

The Press is Supposed to have Reporter’s Privilege

Under the First Amendment of the U.S. Constitution, the freedom of speech and press, and therefore the right of newspapers to cover and publish a story are protected rights that should be free from government interference. However, it is more of a legal gray area when reporters have to news-gather, and go to the protest, or step over a police line to get their photos and story.

Assuming the protest is in a public forum, reporters should not need credentials to cover it—they enjoy a right of access along with the public under the umbrella of the First Amendment.  However, the government is allowed to institute time, place, and manner restrictions on free speech activities.

In those instances, it is recommended that a reporter get credentials or a ‘press pass’ from police departments to be able to cover a protest. Credentials will allow a reporter to cover the protest, but not partake in it. It also does not guarantee that he or she can cross police lines. This means that reporters also cannot “commit” crimes while trying to do their job, such as trespassing. In any event, it can be assumed that police and the current Administration will seek to limit press access and increase retaliation against reporters covering a contentious protest. If you are a reporter, it is recommended you have a criminal defense attorney on-hand if you know you are going to covering an event with high arrest rates. Continue reading

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After Trump’s Executive Order on Immigration came out, fears have been running high among immigrant and migrant communities throughout the nation. After the highly publicized deportation of an undocumented Arizona mother of two, Guadelupe Garcia,  after a routine visit with immigration officials, reports have been spreading of Immigration and Customs Enforcement (ICE) doing massive immigration sweeps throughout the southwestern U.S. and California. Garcia had a prior conviction from eight years ago for using a fake social security number.

It is reported that ICE in Los Angeles conducted a five-day operation targeting criminals and fugitives in which 160 people were arrested. The arrests took place in six counties. Of the 160 arrested, it is reported that approximately 150 had criminal histories.

The immigration sweeps are the first concerted effort by ICE under the Trump administration to arrest targeted undocumented immigrants for deportation proceedings. Immigration lawyers and advocates have reported that they are getting calls about raids of homes and businesses, and in some instances, arrests of undocumented immigrants without criminal histories. Many law enforcement agencies in California, including the LAPD have promised not to take part in the mass deportations for which Trump has called.

According to the Pew Research Center, the Los Angeles metro area is home to the second largest unauthorized immigrant population in the nation (1 million unauthorized immigrants). It follows New York City, which has 1.2 million.

Questioned by Police About Your Immigration Status?

First and foremost, everyone should be prepared in case of a criminal or immigration raid. If you have valid immigration status documents or an alien registration number (a nine digit number assigned to noncitizens), you should always carry them with you and show them to the immigration official or police officer in case you are stopped. If you are unauthorized, you should have the name and phone number of your lawyer and a friend or relative.

If you are stopped by the police or immigration officials about your status in the street, note that the law in California does not mandate that you have to show them any ID, and you have the right to remain silent. In California, they cannot arrest you without evidence that you are in the country illegally. If you are arrested or detained, you still have the right to remain silent. You should then immediately ask for your lawyer. If enforcement officials come to your door, you also have the right to ask for a warrant. You can refuse to let them in if they do not have a warrant and ask them to come back with the warrant. Continue reading

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It is reported that legislation will be introduced that will update California’s laws criminalizing HIV.  It would make it so that a person could not be prosecuted for intentionally transmitting the virus if his or her sex partner tested negative for HIV. This comes at a time in which health officials throughout Southern California are reporting alarming increases in STDS, particularly syphilis, gonorrhea, and chlamydia, which are also part of a national epidemic.

According to the Centers for Disease Control and Prevention, STD rates reached a record high.  While officials do not know the definitive cause for such high rates, they include medical and social factors ranging from a lack of adequate screening to decreased fear of curable STDs.  Specifically, Orange County reported cases of gonorrhea were up 75% from 2011 to 2015.  Syphilis cases jumped 80%, and chlamydia increased 14%. The California Department of Public Health say the highest STD rates are found among young people, African-Americans, and gay and bisexual men, according to the state.

California Has Strict HIV Disclosure Laws

Under current California Law, it is a felony if you fail to disclose to your sexual partner that you are HIV positive with the specific intent to transfer the virus to him or her.

Pursuant to California Health and Safety Code § 120291(a),“Any person who exposes another to the human immunodeficiency virus (HIV) by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony punishable by imprisonment in the state prison for three, five, or eight years.”

Another law on the books targets sex workers who are HIV-positive. If a prostitute is convicted of solicitation, he or she faces up to 16 months in prison.

Legal Defenses

Proving intent to infect someone with HIV is extremely difficult. You cannot be prosecuted if you did not know you were HIV positive, or even if you have never even been tested. Criminal statutes punishing HIV transmission have been held not to violate the Constitution’s equal protection clause because these laws punish voluntary conduct rather than the status of being HIV positive.

Lastly, just because you are not criminally liable does not mean you cannot be held civilly liable for damages in civil court.    Continue reading

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This past summer, the Los Angeles Police Department’s elite Metropolitan Division flooded high-crime, predominantly African American and Latino communities in unmarked police cars, stopping drivers with paper license plates, tinted windows, or broken tail lights as a pretext to search for illegal guns and find dangerous criminals. The operation was part of an emergency operation in South  L.A. While terrorizing its residents, there is evidence that the strategy paid off. During the six-month operation, the LAPD Metro Division seized 300 guns and the number of killings in the area stabilized. It is reported that half of Los Angeles’ violent gun crimes occur in South L.A.

According to the Los Angeles Times, which interviewed many of South L.A’s residents, the Black residents felt deeply resentful over how often they are pulled over and the way they are treated by some police officers. A recent survey funded by the LAPD confirmed what many already knew: Black residents are much less likely than other residents to view cops as honest or trustworthy.

The LAPD now faces a conundrum: They want to crack down on crime, but they also want to build ties with historically marginalized communities, and not alienate law-abiding citizens.

Pretextual Searches are Legal

Pretext, in both civil discrimination cases and criminal law cases, generally refers to a reason that covers up other true motives or intentions. Pretextual stops (ie. traffic stops) are often used by police to initiate a stop and search of people they suspect to be involved in criminal activity.  This means police will stop you for an innocuous ‘violation,’ such as a broken headlight, and then proceed to investigate you on a separate and unrelated criminal offense.

Because automobiles and traffic flow are so heavily regulated, police officers have wide discretion (called prosecutorial discretion) as to whom they stop and ticket for a traffic violation. Not only are police able to make traffic stops based on countless legitimate ‘offenses,’ they also get to decide whom they will ticket for traffic offenses or investigate.

Judges have repeatedly sided with police on pretextual searches, and courts have generally ignored a cop’s subjective motivation while evaluating the legality of their conduct. The Supreme Court has held that if a cop has a valid legal basis for detaining a driver, the stop is valid no matter what the officer’s subjective purposes might be. See Whren v. U.S., U.S. Sup. Ct. 1996; Arkansas v. Sullivan, U.S. Sup. Ct. 2001. Continue reading

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