CrimLaw

17 August 2020

Virginia: Proposed New Laws: Changes to Court Procedure

SB5030 - Unless a judge allows a variance, search warrants would be served during the day after the officers announce their presence and purpose. If the officers do the search at night or without the knock and announce (and do not have judicial approval for the variance) then the evidence is not admissible in court.

SB5013 - Would allow marijuana citations to be prepaid.

SB5033 - (1) Would first define the "good cause shown" needed for a nolle prosequi , but do so in such vague terms that just about anything could be argued to for under it (or against). Wouldn't change much. (2) Would codify the taking of cases under advisement, but would require prosecution agreement. Currently, a judge can do it without approval from a prosecutor and changing that may not be constitutional as Starrs says it is an inherent power of the judge rooted in the constitution.

SB5007 - Beyond the attempt to dismantle jury sentencing mentioned previously this bill contains a couple other provisions:

(1) If a jury hangs and a mistrial is declared the defendant would not be retried on any of the unresolved charges.

Don't like dynamite charges now? Wait until this goes into effect. Judges won't let jurors go until they resolve everything no matter how deadlocked they think they are. Actually, I don't have a problem with an end being declared at some point, but perhaps it should be after two juries deadlocked so that one rogue juror (or corrupted juror) cannot spike a trial because "the defendant's a Gemini; Gemini would never do this sort of thing; I don't care what the seven nuns testified to." Or, perhaps the judge could ask the numerical breakdown of the deadlock and if more than three are for a not guilty finding declare a permanent mistrial.

(2) Prosecutors would not be able to demand a jury during a declared emergency. As discussed in the last post, this is most likely not constitutional.

SB5043 - Would allow expungement of conviction of (1) under 21 possession of alcohol, marijuana, or tobacco products, (2) under 21 possession of alcohol, or any possession of marijuana or drugs if the charge has been deferred and dismissed under a first offender program, and (3) someone who received a simple pardon unless they've been convicted of a violent crime, drug distribution, and some others.

Nothing particularly troublesome there.

SB5046 - Would eliminate all mandatory minimum sentences.

While the mandatory minimums serve a purpose in some crimes, they did get expanded too far. It's a shame they're taking a nuke 'em all approach instead of trying to address this in a more nuanced manner.

Virginia: Proposed New Laws - Removing Democracy from the Courtroom

SB5007 - This statute would remove juries from sentencing in Virginia unless the defense asks for a jury sentencing. It is probably the most anti-democratic bill of the year, removing one of the best aspects of Virginia's jury system: local democratic participation in choosing a proper sentence reflective of community norms. And why is it being removed? It's a blatant attempt to shift power to defendants at the expense of the People.

The counterargument to this would be that jury sentencing is an impediment to the exercise of the jury right by defendants and often a threat usable by prosecutors because jurors are expected (in some cases required) to sentence higher than a judge and judges rarely reduce a jury sentence even though it is within their power (because a jury sentence is the will of the citizens). This is easily solvable. Have the advisory sentencing guidelines be published to the jury prior to their sentencing deliberations so they have the same parameters to start from as the judge would. Don't inform them of any mandatory sentence a judge could suspend and if they sentence lower than the mandatory have the judge impose the mandatory and suspend all but the jury's sentence. These two steps would make the jurors what they are intended to be, the voice of the citizenry in the courtroom.

The desire to get rid of jury sentencing is elitism writ large. Attorneys don't like it because it is unpredictable. Academic types hate it because it is reflective of the will of the local community rather than what is imposed as a one size fits all solution from outside. Defendants might get a heavy sentence for theft because the community despises theft despite it's relegation to almost a non-crime by legislation and sentencing guidelines. Prosecutors might get a light sentence for a drug distribution (particularly if the fix I suggest above was implemented) because the citizens don't see a problem with buprenorphine. Both sides should be forced to face sentencing juries and if I had my way they would whether the defendant pled guilty or not for all violent and sexual felonies. Trying to suppress it is a failure and anti-democratic.

Unconstitutional

It also appears that allowing jury sentencing only at the beck and call of the defendant is violative of Virginia's constitution. Jury sentencing has been a part of Virginia law since it abandoned death as the sole punishment for felonies in 1796. Our constitution lays out the situation in which a defendant can be sentenced by a judge:

In criminal cases, the accused may plead guilty. If the accused plead not guilty, he may, with his consent and the concurrence of the Commonwealth's Attorney and of the court entered of record, be tried by a smaller number of jurors, or waive a jury. In case of such waiver or plea of guilty, the court shall try the case. Art I sec. 8.

The court is authorized upon a plea of guilty to "try the case." The logical reading of "trying" at that time is the sentencing. This, read in conjunction with the history of Virginia jury trials having jury sentencing as long as the ability to be sentenced to something other than death has existed in Virginia, establishes a strong case that jury sentencing is part of any jury trial herein. Reading further into the language above, juries can only be waived by the defendant with the agreement of the Commonwealth and the judge. Nothing allows the defendant the right to pick and choose those parts of a jury trial she prefers to take place.

16 August 2020

Virginia: Proposed New Laws: Trying to Bring Back the Parole Travesty

Members of the General Assembly want to bring the parole monster back to life.

HB5015 - The mildest of the proposed parole bills, it requires the parole board to contact the victim (not just make an effort) and allows a victim to testify before the parole board virtually.

HB5035 - Would exclude 1st degree murder and sexually violent offenses from eligibility for geriatric parole. Probably DOA.

SB5018 & SB5034 (Elitist~3, Defense~3, Rights~4) - This allows inmates who are "terminally ill" or "permanently physically disabled" to get parole with no requirement that they have served a certain amount of time or be of a certain age. It comes from a good place in that it lets people out who are in a bad way if they can get past the parole board (which will presumably stop bad offenders from getting out). It will also be subject to all sorts of gamesmanship.

SB5016 - Turns parole back on and makes it available to all persons sentenced when it was not available. This is full on taking away sentencing as it was done by the people through juries and as it was promised to the people; we will have been lying to sentencing juries for 20 years because we have told them their sentence would not be subject to parole. It is removing sentencing from the jurors and judges and vesting it in a sentencing bureaucracy.

Parole was abolished in Virginia in 1995. There were good reasons to do this. Not that I want to adopt the old political slogan, but its corollary is true: under the parole system courts lied to victims and citizens. Ten years didn't mean ten years. It meant whatever the parole board decided it meant under guidelines both statutory and self created. I've been told stories from prior to 1995 of defendants getting misdemeanor, non-parole convictions because it was accepted that they would serve more time on them than felonies. There was no final sentencing hearing, only a string of potential end of sentences so that the victims would never have finality and be forced to relive the experience every time the guilty party came back before the parole board. It also creates a perverse incentive for the guilty party to keep contacting the victim in attempts to win her over or to engage in worse activities so that the victim stopped being an obstacle to his freedom. Parole is a bad idea that benefits no one but the guilty and those who want to save money by emptying prisons.

SB5034 - This puts in place a convoluted credit system wiping out most of the sentence for inmates not convicted of violent crimes. In the most likely classification, a person sentenced to five years would serve 17 days per month in the first year (57%), 14 days per month the second year (47%), 10 days per month of the third year (34%), 5 days per month the fourth year (17%), and 15 days per month in the fifth year (50%). Working that out is something of a nightmare, but I think 5 years would be killed with a little over 2.

That's such a bad law, imposing from above a serious cut in sentencing that is contrary to the judge's sentence and/or the democratic will expressed in a jury's sentence, that I have to wonder if it's not an attempt to offer a really, truly horrendous law in order to get the merely very bad parole law passed.

Keep your calculators close folks. If they pass either of these statutes we're all going to become junior accountants as we figure out what has to be imposed to get the actual sentence which should be served. One wonders if the sentencing guidelines, already adjusted to be about where parole would have put someone prior to 1995, will be adjusted upwards to reflect the re-imposition of parole. Logic would dictate that it should.

Virginia: Proposed New Criminal Laws : Police on the Street

So, the Virginia General Assembly is going back into session on Tuesday, 18 August 2020, for a session which I believe was originally meant to be about fiscal problems caused by the 'Rona, but has mutated into a session which I've heard called everything from the anti-police session to the criminal law reform session. As it currently stands, the bills introduced have ended at SB5047 and HB5044 (17 August 2020). I won't be surprised if all sorts of bills drop tomorrow, but there are a limited few as of today and here's my short breakdown and off the thumb analysis.

Changing Substantive Law Regarding Officer Protections

SB5029 - This bill would raise the bar for felony convictions on attacking a police officer, requiring an actual battery (not just an assault) and "a visible bodily injury." It will also do away with the mandatory minimum six months in jail upon conviction.

To be fair, this statute needed a little more nuance. A person who missed when she threw a pebble at an officer faced the same punishment as someone who jumped out of an alleyway and hit an officer with a crowbar. However, it would probably have been better if they'd left the mandatory time in for a class of more serious offenders.

Flaws: The visible bodily injury would seem to leave out things like broken bones or torn ligaments or internal organ damage all of which could be as bad or worse than a visible injury.

Unintended Consequences: The removal of the mandatory minimum six month sentence will probably result in more felony convictions. Previously, there has been a strong incentive to lower lesser batteries to misdemeanors because six months was a disproportionate sentence. That will be gone with the passage of this statute.

SB5010 - This statute would increase the punishment for assaulting or battering a police officer to a mandatory minimum year or two years if it happens during a state of emergency.

DOA - Less chance of passing in the current General Assembly then I have of inheriting Bill Gates' billions (I'd be satisfied with just 1 or 2, Bill).

Changing Police Street Enforcement Procedures

SB5002 - This bill would make it illegal for officers to use "choke holds."

This method of disabling a combative individual has held on in law enforcement because it is an effective means of bringing down someone without resorting to disabling sprays, electric shock, metal batons, or bullets. This is just the General Assembly removing choke outs from the use of force continuum. It may well have the consequence of hastening the officer up the continuum to more drastic means of gaining control with higher potential lethality, but that's the General Assembly's call.

HB5029 - This bill would make an officer failing to stop another officer from using unlawful force guilty of a class one misdemeanor or a class 6 felony if deadly force is used or a class 4 felony if the citizen is killed or suffers a permanent injury.

The difference between necessary force, unlawful force, and deadly force is going to be highly subjective. This could also subject officers to gamesmanship as yahoos go to the magistrate and try to take out misdemeanor charges against officers.

SB5030 -

(1) Forbids choke holds.

(2) Forbids shooting at a car unless it is a danger to a person.

(3) Forbids use of deadly force unless necessary. Lists circumstances in determining whether necessary including whether the officer tried to de-escalate.

This is dumb. It assumes officers don't already abhor killing someone. I've known officers involved in fatal shootings; they are shaken by it. Also, they always attempt de-escalation as best the situation allows it.

(4) A police officer witnessing another officer using unlawful force shall intervene and report the unlawful use of force to her superiors.

(5) Punishment as proposed under this bill for 1 thru 4 would be disciplinary action.

SB5029 (0, Defense~5, Rights~5) - This bill would make several offenses "secondary offenses." In other words, it makes it illegal for officers to act against these illegal activities unless another offense occurs first. This is the General Assembly trying to eliminate what the defense bar has called for years "pretext stops." It affects bad mufflers, bad license plate lights, noisy exhaust systems, illegal window tinting, items hanging from rear view mirrors, and possession of marijuana. Furthermore, it makes any evidence found after a search pursuant to the odor of illegal marijuana inadmissible in Virginia courts.

That last part is interesting and may be constitutionally suspect. Can the General Assembly tell courts to ignore evidence found pursuant to a search based on solid probable cause of illegal activity? A little research makes me tend to think they can, See Greenwood, but I don't see how that can be a universal rule. Imagine if the General Assembly were to write a law stating that although rape is illegal no evidence found pursuant to a search based upon probable cause that a rape occurred is admissible in court. I don't see how that could stand, but I don't have the time to sit and puzzle out a valid rule that would apply to both situations equally. There might be some sort of Moore-ish work around. Maybe after I finish breaking down all these potential statutes I might have time to come back to it.

08 August 2020

The New Jury Selection Statute (Virginia)

Last time, I used the new jury selection statute as an example:

The court and counsel for either party may inform any such person or juror as to the potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case.

That part of the statute is just rife with potential for abuse. To begin with, nobody really believes the part proclaiming its purpose. I would respect this a lot more if they'd just stuck a period after punishment and struck the rest of that sentence. I don't expect legislators to admit that they are trying to bake in potential jury nullification, but leaving it blank would have been better than adding the wink-wink, nudge-nudge "sure we mean that it's only used for sentencing purposes" language. There are other possible solutions to the problem identified which would have accomplished the same thing without risking jury nullification:

§ 19.2-00000: Sentencing Fairness

Upon motion by the Defendant after a jury has found him guilty, the judge shall inform the jurors of the sentencing range and question the members of the jury to ascertain if any individual jurors cannot set a sentence within that range. The judge shall remove individual jurors who cannot set a sentence.

Should the number of jurors remaining be seven or more the jury shall retire and determine an appropriate sentence.

Should the number of jurors remaining be less than seven the judge may proceed directly to sentencing without a jury recommendation upon the agreement of the defendant, attorney for the Commonwealth, and the trial judge. If a judge does not proceed directly to sentencing a new jury shall be empaneled specifically for the purposes of determining the sentence.

Nothing in this statute shall authorize either the defendant or the attorney for the Commonwealth to question the jury.

But, I can here someone stammering, that removes people from the jury who might argue for a lesser sentence because they don't agree with the sentencing range. The only problem with that statement is that if the statute actually adopted above works the way it proclaims it is supposed to it would eliminate the same people. The one I propose would be a trade-off. In order to receive a pristine finding in the culpability phase it has a potential to sacrifice several jurors in the sentencing phase who, if voir dire is done properly under the adopted statute, would never be there to begin with. So, it doesn't eliminate a mindset that the General Assembly proclaims it wants in the sentencing phase; it eliminates a mindset which the General Assembly has stated it wants eliminated. Of course, the statute I propose wasn't the one adopted so let's look at how the actual statute can be applied.

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Best Practices

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As I see it, the defense should probably make a motion in limine to have the judge introduce the possible punishment and ask a general question as to whether there are any jurors who cannot apply it if there is a conviction - foreclosing the parties from asking questions about the sentence. This should probably go something like this:

Judge: The offense charged today is the illegal hunting of snipes, a felony which carries a punishment of between 5 and 40 years incarceration. Does anyone believe that if Mr. Jones is found guilty they will not be able to impose that sentence?

A judge will, and should, want to do this as a means of controlling the chaos in his courtroom by foreclosing any games played around the introduction of the potential sentence by the parties.

The defense will want this because the defense isn't actually interested in striking jurors who disagree with the level of sentence required for a charge considering the set of facts in the particular case. Presuming honest jurors, those jurors who disagree with any punishment for snipe hunting or think snipe hunting should be punished with a fine and not a felony will be struck even from the judge's question. However, by having the question come from the judge and forbidding the parties to question jurors about this the defense would preserve jurors who generally agree with the sentence provided by statute, but would think that it's not appropriate if all the prosecution can show is the defendant shot one snipe that was in his back yard.

On the other hand, if the jurors are going to be informed of the sentence range, the prosecution almost surely wants to have questioning of the jurors in this area to be done by the parties - specifically by the prosecution. Again, assuming honesty from the jurors, those jurors who disagree with any punishment for snipe hunting or think snipe hunting should be punished with a fine and not a felony will be struck even from the judge's question. However, the prosecutor has exactly the opposite motivation of the defendant. She wants to eliminate those jurors who generally agree with the sentence provided by statute, but would think that it's not appropriate if all the prosecution can show is the defendant shot one snipe that was in his back yard. She badly wants to ask a question something like this:

Ladies and gentlemen, the judge has told you that snipe hunting carries a punishment between 5 and 40 years. Snipes are so rare that almost none of us have seen one and the General Assembly has determined that they are a species requiring a high level of protection because they are endangered. If the Commonwealth were to show beyond a reasonable doubt that someone knew that this creature - so rare it is almost mythical - was coming into his backyard every couple days and that person didn't contact animal control or conservation officers or even try to capture the animal himself to release it into the wild but instead sat in wait and shot the animal - if the Commonwealth proves all this, could you impose the 5 to 40 year sentence? Please raise your hand if you can. Now please raise your hand if you cannot.

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When I first saw this statute, I figured the best way for it to be handled is for the judge and the judge alone to ask the question. However, as I've mulled it over, I've come to the conclusion that this would unbalance the trial process. If telling the jury and limiting questions to the judge is the procedure adopted in the courtroom it is at best neutral and at worst introduces a factor in favor of the defendant that has nothing to do with the defendant's actual culpability. Worse, unless the judge has in depth knowledge of the facts of the case he probably shouldn't have pretrial he won't be able to determine if it introduces a prejudicial collateral issue. Therefore, I've changed my mind on this.

I think best practice under this statute will probably be as follows:

1. The Judge tells the jurors what the sentencing range is.

2. The judge asks generally if the jurors would have difficulty in imposing a sentence in the range.

3. The prosecution asks questions similar to the one above (during normal voir dire).

4. The defense has an opportunity to ask questions (again during normal voir dire)

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As to 3 above, this might well be characterized as "witherspooning lite." Witherpspooning has been the practice of questioning jurors in order to eliminate those who categorically will not impose the death penalty. However, in most other violent or large theft cases the prosecution probably shouldn't bother to ask questions about the range of punishment. After all, you aren't going to find many people who think that heavy punishment should not be imposed in ponzi schemes, rapes, murders, etc. It's only in cases where the prosecutor believes the defense is shooting for jury nullification based upon a possibility that the jurors will decide the potential sentence is too high that a prosecutor should engage here.

As to 4 above, I'm not sure a defense attorney should engage here at all. After all, he's not able to say out loud that the sentence range is so high that his client shouldn't be convicted. That is grounds for a mistrial if said after the jury is sworn in and if done during jury selection it's grounds to dismiss a tainted jury venire. While there is probably someone more clever than me who may figure out a way to raise a pertinent question that colors inside the lines, IMHO it's a situation where the foundation has been laid by the judge and the prosecution has probably built somewhat on it. After all, the prosecutor had to point out that only one snipe was killed in his question to the jury. A competent defense attorney can work with that in opening statements, questioning, and closing saying "one single snipe" a lot so that the insignificance of the crime sinks in without ever mentioning the range of punishment.

About the only time the defense should raise this is when the judge and prosecutor fail to. If the judge refuses to state it during her brief initial voir dire ("I believe the parties can handle this adequately.") and the prosecutor commits malpractice by not addressing it in his voir dire then, if the case is one in which the facts may seem minor compared to the range of punishment, the defense should raise the point.

Snipe hunting carries a punishment of 5 to 40 years. Does anyone have any problem with that?

The first sentence would be said nice and loud; the second - not so much. Basically, the defense wants to get the information out there, but doesn't want to strike anyone who actually has a problem with that sentencing range because they would presumably come down on the side of the defense.

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If we ever get back to doing jury trials (sometime in 2025 after they've built cones of silence for every juror), it's going to be interesting to see how the judges handle this and what case law develops.

29 July 2020

The Measure of a New Criminal Law

I've been trying to come up with a model for determining what the effects of a new criminal procedure statute are and think I've come up with a workable model.

[Elitist] E5 . . . E4 . . . E3 . . . E2 . . . E1 . . . 0 . . . D1 . . . D2 . . . D3 . . . D4 . . . D5 [Democratic]

[Defense] D5 . . . D4 . . . D3 . . . D2 . . . D1 . . . 0 . . . P1 . . . P2 . . . P3 . . . P4 . . . P5 [Prosecution]

R5 . . . R4 . . . R3 . . . R2 . . . R1 . . . 0 . . . O1 . . . O2 . . . O3 . . . O4 . . . O5

[Individual Rights]-5 . . . -4 . . . -3 . . . -2 . . . -1 . . . 0 . . . 1 . 5 [Societal Order]

You could picture this as a 3D model, but I'm not competent enough with 3D modeling to give you a graphic much above crayon level. So, you'll get it as coordinates: [Statute] (D1,0,R2).

Elitist-Democratic: There is a disturbing tendency in the American judicial system to move toward autocracy. This seems to happen no matter the political leanings of those passing laws and it's understandable behavior. Juries are messy and the ultimate indicator of local democratic decision making. The best form of this would be a jury finding innocence-guilt and, if it finds a defendant guilty, setting the sentence. And that perturbs just about anyone in the legal system from lawyers to judges to legislators. Juries are inefficient, inconsistent, and consider factors they shouldn't no matter how often they're told not to. Their primary sin in the eyes of the legal elites is that they are not a controlled, predictable factor and everyone hates that. A D5 here would be a system in which juries are a default that has to be waived by both parties and the judge, juries sentence, and even upon a plea of guilty juries sentence in serious crimes (rape, murder, robbery). A E5 here would be a system in which juries are theoretically allowed at the behest of the defense only, but for all practical purposes are banned by a combination of laws, practices, and procedures. Virginia's current location on this scale is probably somewhere between a E3 to E4 (and I doubt many States are different). Very good in theory. Withering on the vine in reality.

Defense-Prosecution: Pretty self explanatory. As a side note, let me say that in order to avoid any bias, I used a random number generator (1-5=Defense; 6-10=Prosecution) to choose which would be positive and which would be negative numbers. I even went best three out of five (Number Order was 8,7,8,3,5).

Individual Rights - Societal Order: While these two don't necessarily oppose each other, in every society they are going to conflict at some point. Thus, they make a useful semi-dichotomy.

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Let's test this out by running Virginia's brand new jury selection law (voir dire) through it. § 19.2-262.01 is a law which generally repeats much of the normal processes already used, but hidden in its core is this gem:

The court and counsel for either party may inform any such person or juror as to the potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case.

This overrules a Virginia Supreme Court decision that rejected this as an obvious call to jury nullification. Those against this law point toward that conclusion. Those in favor tend to avert their eyes, grin, and assert that the second part of that sentence is for real and not a rice paper thin excuse. And then there are the truly dedicated superprosecutors who tell me I'm an idiot, rub their hands together, get malicious grins, and start muttering something about "whitherspooning" - not that I have the vaguest idea what they're talking about (some of you guys are slightly scary - and you, the guy in the back from Pitcairn County, stop cackling - no cackling is allowed on the blog).

Anyway, I rate this part of the statute § 19.2-262.01 (D5,D3,R3).

[D5] You can't get much more democratic than to give information to a jury that has nothing to do with actual guilt or innocence and allow them to have it to nullify if they disagree with the punishment assigned the crime.

[D3] Despite the joke above, does anyone actually believe that a judge will allow extensive whitherspooning in a theft case or a DUI? This will play out most often in the defense's favor in the form of jury nullification.

[R3] Order would call for the determination of innocence or guilt to be decided without any collateral issues coloring the decision. Telling the potential sentence introduces a factor that will either be neutral or break in favor of the defendant that has nothing to do with whether the defendant committed the crime of which she was accused. It's not exactly a constitutional right, but it is a statutory right awarded to the defendant by the General Assembly.

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Next, I'll try to find enough time to do this in future posts for the proposed statutes of the August session of the Virginia General Assembly.

[addendum] I changed from a positive/negative system to the way it is above to avoid any implications of value judgment in the use of negative number.

26 July 2020

Purposeful Confrontation in Northern Illinois City

I was looking for information about proposed social programs which are being proposed to replace police departments and this popped up. I think it might have been because of the very last question where the Superintendent says Chicago needs both.

This is last weekend. The attackers came with a shield to the front and overhead and weapons to bombard the clearly unprepared Chicago police officers. It's hard to say how many people are involved in the attack, but it looks like more than the officers on site. The objective appears to have been for the attackers to bombard the officers from behind their shields in order to get the police to do something that could be used as propaganda.

24 July 2020

Does the ADA Override a Governor's Mask Requirement?

If you've talked to anyone about masks (or gone within a mile of social media) since they became the latest thing that is going to save us all, you've heard several arguments for and against their effectiveness. To be clear from the outset, I think they are an effective tool for stopping someone with congestion who is coughing, sneezing, or having nasal discharge from spreading the disease.¹ I think when they are used by the asymptomatic they do little to keep anyone from catching a disease and are a long-tail solution with minimal effectiveness.² However, it doesn't terribly bother me when I wear one in public. If the irrationally fearful are soothed somewhat by an asymptomatic person (me) walking past them wearing a mask at a grocery store that I know probably only changes their chance of getting the disease (were I infected) from something like .00003% to something like .00001% ³ then I'm okay with giving them a little respite from the fear the media has done its level best to drum up and drive home every second of every day.

That said, let's address the argument that's now being used to support their use. (1) You have a right not to wear a mask, but (2) a business also has the right to exclude you for not wearing one. That's true as far as it goes, but leaves out the third element: (3) It's still a governmental action if the government requires the business to do it. That third step changes this from something under trespass law based on personal preferences of the business (no one wearing Steelers gear may enter this store⁴) to the business acting as government's enforcement arm (sin tax imposed by a State on anyone buying Steelers gear, but collected by the merchant). A day to day customer may not care about the difference; all that's really pertinent to him is that his shopping experience has had burdens placed upon it. However, understanding who is requiring the wearing of masks makes a difference in understanding how far the mandate can go.⁵ Your mandate comes from your State government and it's probably from your governor speaking per ipsum without the specific approval of your legislature.⁶ The State government can hide its individual mandates by requiring private businesses to enforce its mandate, but the mandate is still a State government mandate.

And therein lies the rub. People and businesses (1) know the federal government's laws carry more weight than the States' laws⁷ and they (2) know the Americans with Disabilities Act (ADA) exists. Businesses have a positive requirement under the federal law and regulations to accommodate people with disabilities. They are also not allowed to inquire as to the nature of a disability.⁸ For public accommodations - such as a store - a disability includes being "regarded" as having an impairment that significantly limits a life activity. 28 CFR 36.105. The federal government requires "disability" to be given a broad interpretation. 28 CFR 36.101(b).

Faced with a preemptive federal law, many businesses are not stopping anyone who enters their stores without masks. They are assuming that the unmasked person has a disability which the business is not allowed to ask the unmasked about. It's also amazing how quickly I heard people saying that if questioned they would pull out the disability card and refuse to answer what their disability is because the question is illegal to ask.⁹ A lot of people and businesses are applying the ADA as they understand it with an understanding that it overtops any directive the governor can dictate that businesses require people to mask.

Are they right? Can a business use this as a defense when the Virginia governor's health department brute squad comes knocking at the door?

It appears so - assuming the courts operate in a dispassionate manner, interpreting the law strictly without letting themselves be influenced by the ongoing panic or politics. On the other hand, the ADA is supposed to make businesses accommodate disabilities and 30 out of 35 customers at a store not wearing masks isn't accommodating disabilities - it's 30 people taking advantage of a loophole to avoid a dictate from the governor. It ends up being a questionable loophole provided by federal regulations against questionable dictates being mandated by governors without specific backing from their legislatures.

Do I expect to see big lawsuits about this? No. I do not. Let's be honest. On the one side you have governors who are engaging in health theater. They aren't going to start shutting down Wal-Marts and grocery stores. On the other side, the companies with enough money and resources to fight something like this in federal court are supremely uninterested in doing anything other than making money and protecting themselves against lawsuits from people with actual disabilities. Sure, were they to deny entry to a person with COPD or heart issues because they weren't wearing a mask the companies could face a lawsuit of their own, but their argument would be that that person is endangering himself by simply being at the store. And the odds of such a lawsuit getting anywhere before all this fades away are low indeed (federal courts consider snails to be speedsters).

That fact renders this a mostly intellectual exercise for lawyers. For regular persons its just another gubernatorial imposition which quiets the strident and is at best tolerated and at worst ignored by the majority. At least this time it's a relatively minor imposition.¹⁰

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¹ This is the much lauded person urinating on you scenario we all heard when people were first pushing masks. No pants means the person hits you. You panted means it provides a slight barrier before soaking through. Pants on him stops the fluid from ever reaching you. The scenario is true as far as it goes, but it only makes sense if it assumes incontinence. Otherwise there is no threat of you getting wet. It works the same way for sneezing and coughing.

² Think your governor is implementing the best available solid, rational, scientific solutions? Then ask yourself why none of them have banned air-conditioning. Viruses die in heat and humidity. COVID-19 has been proven to follow the same pattern. Human beings can survive without air conditioning making our spaces cold and dry. Some of us are old enough to remember the days before AC when we all had to make do with *gasp* fans and iced drinks to survive the Summer. If we banned AC from public accommodations and homes of anyone under 60 it would likely make a bigger dent than masks. You think any governor is going to be brave enough to do this?

³ Those numbers are WAG's folks. Anybody who tells you that they can give you accurate numbers for an uncontrolled situation such as this is full of bunkum.

⁴ Clearly, I am only using this as an example because some places ban sportswear because gangs have been known to wear sports clothing to indicate their affiliation, not because the Steelers are evil incarnate perhaps only surpassed in their ghastliness by the St. Louis Cardinals.

⁵ Please note that I am not addressing the various arguments that the mandate itself is a burden on the constitutional rights of individuals. Of course it is. Almost any action undertaken by government burdens an individual's constitutional rights. The question is whether the burden is so much that it is not allowed and I'm not addressing this question today.

⁶ No, will not opine on the legality of this in each State. There are 50 States for goodness sake. I know I don't have much of a life, but even I haven't got the time to look at the constitutions and laws of all fifty States and opine on each.

⁷ "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." US Constitution Article VI. This is expanded upon by the preemption doctrine which says the if federal law conflicts with State laws the federal law shoves the State law to the side and is the law that applies.

⁸ See 29 CFR 1630.13(a) (cannot inquire about disability before offering a job), & 29 CFR 36.302(c)(6) (cannot inquire about the disability of a person entering with a service dog). Arguably the latter forbids the question entirely: "A public accommodation shall not ask about the nature or extent of a person's disability." Even if it doesn't it's a clear indicator of where the law stands.

⁹ I live in the land of former coal miners. Heart problems, lung issues, and long term physical injuries have given a lot of people a working knowledge of disability law.

¹⁰ And, judging from what I see, one that has faded fast. I imagine there are places where it may be strongly enforced and followed, but where I spend my time there was a surge in use immediately after our governor's dictate which fell off in days. Go to a gas station, fast food restaurant, or your local grocer and the only people you see wearing masks are the employees and a good number of times they're following the governor's example and wearing them under their chin.

15 July 2020

A moment in Court: I Decline!

Jane Smith is having a hearing to determine whether she is competent to stand trial and she demands to speak to Judge Greene. It wasn't my case so I didn't see the whole thing, but it caught my attention when I walked into the courtroom and Jane started talking about the Judge's ex-wife.

Judge Greene's head bobs back and all the attorneys in the courtroom look over at Jane and then up at the Judge. For her part, Jane doesn't even notice. She just starts describing the atrocities that the Judge's ex has done to her in the jail. After a little of this Judge Greene gets his feet back under him and interrupts Jane.

"Ma'am, I don't have an ex-wife."

This, of course, bounces right off Jane and she keeps going. For the next fifteen or so minutes I'm walking in and out of the courtroom trying to take care of my case, but each time I walk in Jane is trying to convince the Judge that he has an ex-wife, she works at the jail, and she has been doing terrible and strange things to Jane.

Finally, things start to wrap up. To absolutely no one's surprise, the Judge finds Jane incompetent.

"Ma'am, I'm ordering that you be transferred from Pitcairn County Jail to Better Minds Mental Care Hospital for treatment to restore you to competency."

"I decline."

The Judge had started to write some notes so his decision could be reduced to a written order, but at Jane's statement his head comes back up looking bemused.

"Excuse me?"

"I decline to go to Better Minds."

Up to this point, the Judge has been remarkably calm and patient considering the fact he just found out that he has an ex-wife who is apparently tormenting inmates at the local jail. Now he looks like the patience might be slipping a little bit.

"Ma'am, I can't force you to cooperate with treatment, but you're going to Better Minds. If you don't cooperate you'll probably be there longer than you need to be."

"I decline to go to Better Minds and I decline any treatment."

At this point, I have to leave the courtroom to deal with some absolutely vital matter (probably had to sign some discovery order or something). I never saw how the case ended exactly. However, I have to say that the "I decline" defense is a novel and interesting one. All sorts of innovative uses come to mind.

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Judge: For the crime of bank robbery, I sentence you to 20 years in Black Plague Supermax Penitentiary.

Defendant: I decline.

Judge: Ummmm . . . Okay, how about 10 years at New Hope Medium Security?

Defendant: I decline.

Judge: Okay, look, I have to sentence you to something. How about we take advantage of our Canadian prison exchange program? You spend two years in a Canadian penitentiary where they feed you caribou steaks and sauteed truffles while apologizing to you every day because the unenlightened bank tellers couldn't understand the robbery from your point of view and how it wasn't really your choice but a reflection of societal failures? How about that? I do have to warn you that Canadian prisons are infested with house hippos and you will probably be forced to eat poutine, which is considered cruel and unusual punishment here in the States. Still, most people think that's balanced out by the daily hockey games and availability of maple syrup for every meal.

Defendant: Yeah, okay. I can take that.

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I think any defense attorney who doesn't recommend this exciting, new technique to their client may be committing malpractice.

13 July 2020

2020 New Virginia Criminal Laws

Before you watch, open New_Laws_2020(a).pdf . If that link doesn't work, go to kenlammers.com and under New Laws open the file that says New_Laws_2020. You'll need it to understand what I'm talking about. I start at the beginning of the document and work my way through to the end.

Sorry that the sound is out of sync for the first twenty or so minutes. I've tried to fix this for a couple hours with different programs and eventually gave up. At about the twenty minute point it fixes itself.