I thought this Highway Loss Data Institute study, in the news lately for obvious reasons, was interesting given Kauai's pending ban on handheld electronics for drivers across the island.
(The Highway Loss Data Institute is a nonprofit research organization sponsored by the automobile insurance industry).
Saturday, January 30, 2010
Friday, January 29, 2010
Evidence?
There's an app for that.
I see that Tekk Innovations offers a number of iPhone legal apps, including free Federal Rules of Evidence, Federal Rules of Civil Procedure, and Federal Rules of Appellate Procedure. Also, a number of state-specific codes (nothing relevant to Hawaii, however).
Careful though. I only know about this because Robert Ambrogi's LawSites (linked in the sidebar) reports that the FRE app is missing Rule 502 (on attorney-client privilege and work product, of all things).
(I'm still a Blackberry lawyer, so this doesn't apply to me. However, I know some Apple lawyers who are just law-obsessive enough to get a kick out of this).
I see that Tekk Innovations offers a number of iPhone legal apps, including free Federal Rules of Evidence, Federal Rules of Civil Procedure, and Federal Rules of Appellate Procedure. Also, a number of state-specific codes (nothing relevant to Hawaii, however).
Careful though. I only know about this because Robert Ambrogi's LawSites (linked in the sidebar) reports that the FRE app is missing Rule 502 (on attorney-client privilege and work product, of all things).
(I'm still a Blackberry lawyer, so this doesn't apply to me. However, I know some Apple lawyers who are just law-obsessive enough to get a kick out of this).
Wednesday, January 27, 2010
State of the Judiciary Address
...available now on the spiffy new state judiciary web site. Looks pretty good. (The new site, that is. Haven't had time to read the report yet).
Tuesday, January 26, 2010
Free speech for me and for thee
I've been following with interest the debate that ensued after last week's Supreme Court decision protecting corporate political speech in Citizens United v. Federal Election Commission. The decision clearly upset a lot of people, but I think it is essentially correct and I think critics labor under a number of misconceptions.
First, many critics point to societal harms resulting from a flood of corporate money pouring into election politics as an argument against the court's decision. Some of those fears might well be valid, however they are irrelevant to whether the constitution actually protects such speech. The Fourth Amendment right against unreasonable search and seizure protects murderers and child molesters, but the social ills caused by such protections are irrelevant to whether such people enjoy the protection.
Second, critics assert that the First Amendment's prohibition against congress making any law "abridging the freedom of speech, or of the press" reflects an exclusively individual right meant to protect only individual human beings. I see no support in the text or in history for such a position. Nowhere does the First Amendment assert that it protects an "individual" right. It was in part a response to prior restraint, taxation, and licensing fees imposed by the crown on printed materials. It would be a surprise to the founders if a manifesto drafted and signed by a dozen concerned citizens was somehow outside the protections of the First Amendment merely by virtue of it being a group statement.
Third, critics assert that the decision represents a sudden and radical judicial recognition of corporations "as people." I think this is mere hyperbole. The decision recognizes that speech, even if "tainted" by corporate funding, is still speech and as such demands protection under the First Amendment. The decision did not declare corporations to be people.
Fourth, critics assert that the application to corporations of speech and press protections represents a radical change, and they imply that corporations have never before been granted First Amendment rights. Here, the critics are simply mistaken. In 1952 the Supreme Court ruled in Joseph Burstyn, Inc v. Wilson,343 U.S. 495 (1952), that a law prohibiting the showing of movies deemed to be "sacrilegious" violated the First Amendment rights of the Appellant who was "a corporation engaged in the business of distributing motion pictures." Interesting in view of the charge that corporate speech does not warrant constitutional protection because corporations operate for profit, the court noted:
Furthermore, while the decision did explicitly overrule two precedents - Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), upholding restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, 540 U.S. 93 (2003), upholding the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions - those are relatively recent cases in the grand scheme of First Amendment jurisprudence and their demise can't be said to represent any radical shake-up of free speech principals going back to the founding.
In my view, the campaign law overturned by this decision rested on an artificial, arbitrary distinction that speech somehow lose its constitutional protection just because those who produce it have organized themselves as a corporation. Think of it, If you start a political advocacy group which puts out group voter recommendations or takes out campaign ads, your group's activities are protected against prior restraint and censorship by the First Amendment. But if your group incorporates, suddenly, the same activities by the same people were deemed under the campaign law outside the protections of the constitution. That is an arbitrary and artificial distinction and the court was correct in throwing it out on its ear.
First, many critics point to societal harms resulting from a flood of corporate money pouring into election politics as an argument against the court's decision. Some of those fears might well be valid, however they are irrelevant to whether the constitution actually protects such speech. The Fourth Amendment right against unreasonable search and seizure protects murderers and child molesters, but the social ills caused by such protections are irrelevant to whether such people enjoy the protection.
Second, critics assert that the First Amendment's prohibition against congress making any law "abridging the freedom of speech, or of the press" reflects an exclusively individual right meant to protect only individual human beings. I see no support in the text or in history for such a position. Nowhere does the First Amendment assert that it protects an "individual" right. It was in part a response to prior restraint, taxation, and licensing fees imposed by the crown on printed materials. It would be a surprise to the founders if a manifesto drafted and signed by a dozen concerned citizens was somehow outside the protections of the First Amendment merely by virtue of it being a group statement.
Third, critics assert that the decision represents a sudden and radical judicial recognition of corporations "as people." I think this is mere hyperbole. The decision recognizes that speech, even if "tainted" by corporate funding, is still speech and as such demands protection under the First Amendment. The decision did not declare corporations to be people.
Fourth, critics assert that the application to corporations of speech and press protections represents a radical change, and they imply that corporations have never before been granted First Amendment rights. Here, the critics are simply mistaken. In 1952 the Supreme Court ruled in Joseph Burstyn, Inc v. Wilson,343 U.S. 495 (1952), that a law prohibiting the showing of movies deemed to be "sacrilegious" violated the First Amendment rights of the Appellant who was "a corporation engaged in the business of distributing motion pictures." Interesting in view of the charge that corporate speech does not warrant constitutional protection because corporations operate for profit, the court noted:
It is urged that motion pictures do not fall within the First Amendment's aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. We fail to see why operation for profit should have any different effect in the case of motion pictures.The court also upheld the First Amendment rights of a corporation in a pair of famous landmark free speech cases, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and New York Times Co. v. U.S., 403 U.S. 713 (1971)(the Pentagon Papers case).
Furthermore, while the decision did explicitly overrule two precedents - Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), upholding restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, 540 U.S. 93 (2003), upholding the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions - those are relatively recent cases in the grand scheme of First Amendment jurisprudence and their demise can't be said to represent any radical shake-up of free speech principals going back to the founding.
In my view, the campaign law overturned by this decision rested on an artificial, arbitrary distinction that speech somehow lose its constitutional protection just because those who produce it have organized themselves as a corporation. Think of it, If you start a political advocacy group which puts out group voter recommendations or takes out campaign ads, your group's activities are protected against prior restraint and censorship by the First Amendment. But if your group incorporates, suddenly, the same activities by the same people were deemed under the campaign law outside the protections of the constitution. That is an arbitrary and artificial distinction and the court was correct in throwing it out on its ear.
Friday, January 22, 2010
State law enforcement's legislative lobbying efforts
It's good to be busy, but too busy to blog is a bit much. Still, any substantive posts from me will have to wait until the weekend or next week. Until then, today's Star Bulletin has a piece on state law enforcement's legislative lobbying efforts.
[One of the bills supported by "a coalition of Hawaii law enforcement officials"] pending in the state Legislature since last year, would raise misdemeanor assaults and terroristic threatening crimes to felonies for a domestic violence offender who has been served with a temporary restraining order.
...
The coalition also supported a bill that would expand the definition of second-degree murder to include an act committed with the probability of causing deadly or serious bodily injury to another person which results in death.
...
The coalition said it supported a bill that make more offenses eligible for charges filed through paperwork signed by judges, rather than by a preliminary hearing or grand jury.
Prosecutors want to add felonies related to unauthorized entry into a dwelling, unauthorized possession of confidential personal information, and methamphetamine trafficking in the second degree.
Tuesday, January 12, 2010
Ninth Circuit establishes taser rules
Late last month the 9th Circuit filed an opinion in Bryan v. McPherson, which establishes limits on the legitimate use by police of tasers.
Early one morning in the summer of 2005, a Coronado, CA police officer deployed his taser against Carl Bryan during a traffic stop for a seatbelt infraction. When stopped by the officer, Bryan “hit his steering wheel and yelled expletives.” He stepped out of the car clearly agitated and stood “yelling gibberish and hitting his thighs.” The officer testified that he told Bryan to remain in the car and that Bryan refused (Bryan testified that he did not hear the order), and that Bryan advanced a step toward the officer at which point, “[w]ithout giving any warning, [the officer] shot Bryan with his taser gun…The electrical current immobilized [Bryan] whereupon he fell face first into the ground, fracturing four teeth and suffering facial contusions.”
Bryan sued the officer under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment. The officer moved for summary judgment based on qualified immunity, which the court denied. On appeal, the Ninth Circuit affirmed the denial of the officer’s motion, saying his use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.
The appellate court ruled that the use of tasers “constitute[s] an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force,” and that “[a] desire to resolve quickly a potentially dangerous situation is not the type of governmental interest that, standing alone, justifies the use of force that may cause serious injury. Rather, the objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public.”
The court further concluded that even from the officer’s subjective point of view, Bryan’s non-compliance constituted passive or minor resistance and did not justify the use of a taser. According to the court, “Shouting gibberish and hitting one’s quadriceps is certainly bizarre behavior, but such behavior is a far cry from actively struggling with an officer attempting to restrain and arrest an individual.”
The case brings to mind last November’s tasing by Kauai police of a suspect:
Early one morning in the summer of 2005, a Coronado, CA police officer deployed his taser against Carl Bryan during a traffic stop for a seatbelt infraction. When stopped by the officer, Bryan “hit his steering wheel and yelled expletives.” He stepped out of the car clearly agitated and stood “yelling gibberish and hitting his thighs.” The officer testified that he told Bryan to remain in the car and that Bryan refused (Bryan testified that he did not hear the order), and that Bryan advanced a step toward the officer at which point, “[w]ithout giving any warning, [the officer] shot Bryan with his taser gun…The electrical current immobilized [Bryan] whereupon he fell face first into the ground, fracturing four teeth and suffering facial contusions.”
Bryan sued the officer under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment. The officer moved for summary judgment based on qualified immunity, which the court denied. On appeal, the Ninth Circuit affirmed the denial of the officer’s motion, saying his use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.
The appellate court ruled that the use of tasers “constitute[s] an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force,” and that “[a] desire to resolve quickly a potentially dangerous situation is not the type of governmental interest that, standing alone, justifies the use of force that may cause serious injury. Rather, the objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public.”
The court further concluded that even from the officer’s subjective point of view, Bryan’s non-compliance constituted passive or minor resistance and did not justify the use of a taser. According to the court, “Shouting gibberish and hitting one’s quadriceps is certainly bizarre behavior, but such behavior is a far cry from actively struggling with an officer attempting to restrain and arrest an individual.”
The case brings to mind last November’s tasing by Kauai police of a suspect:
With lights and sirens activated, the pursuit began, Lagmay failed to stop even though he had places where he could have stopped, but did not until he turned into the Wilcox Memorial Hospital parking lot, Caspillo said under questioning from county Deputy Prosecuting Attorney John Murphy.
Caspillo said Lagmay, a mixed martial arts fighter, drove into a parking stall, exited his vehicle, and faced Caspillo, his arms raised, elbows bent and palms facing Caspillo. Lagmay repeatedly asked why he was under arrest, Caspillo said.
When Caspillo ordered Lagmay to put his hands behind his back because he was under arrest for refusing an order to stop his vehicle, Lagmay refused despite Caspillo giving the order three times.
After that, Caspillo deployed his Taser, he said. Ramson and officer Marnie Fernandez tried to get Lagmay’s arms out from under him, but were unable to do so, and Caspillo “ran another cycle of the Taser,” and then another before Lagmay was able to be restrained and handcuffed, Caspillo said.
Monday, January 11, 2010
What not to write on an in-flight passenger comment card
Recall last week's Hawaiian Airline passenger who, by acting "weird," got his Maui-bound flight turned around and returned to Oregon with a pair of F-15 escorts. Here's the federal complaint (Dist. of Oregon) with an affidavit of the whole story as told by an FBI agent, and a copy of the odd and rambly in-flight passenger comment card that the guy filled out and handed to an attendant. The card reads in its entirety -
I thought I was going to die, we were so high up, I thought to myself: I hope we don’t crash and burn or worse yet landing in the ocean, living through it, only to be eaten by sharks, or worse yet, end up on someplace like gilligans Island, stranded, or worse yet, be eaten by a Tribe of head hunters, speaking of head hunters, why do they just eat outsiders and not the family members? Strange…and what if the plane ripped apart in mid-flight and we plumited to earth, landed on gilligans Island and then lived through it and the only woman there was Mrs. Thurston Howell III? no mary anne (my favorite) no ginger, just lovey! If it were just her, I think I’d opt for the sharks, maybe the headhunters.According to the FBI agent's affidavit, the accused intended this as a joke and said that "he thought the card was going to be taken back to an office somewhere, opened, and everyone in the room would “get a laugh” from it, and that perhaps he’d even get some frequent flier miles out of it.” Nevertheless, it got him charged with violating Title 49, § 46504, Interference with flight crew members and attendants.
An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both. However, if a dangerous weapon is used in assaulting or intimidating the member or attendant, the individual shall be imprisoned for any term of years or for life.Although he acted a little strange, the accused certainly didn't assault anyone. Notice there's no intent requirement so whether he "intimidated" someone would seem to be a subjective question for the intimidatee. I'm sure there's some interesting caselaw that puts more nuance on enforcement of the statute. We might look into that later if this doesn't end up quietly going away.
Tuesday, January 05, 2010
New for 2010 in Hawaii courts - electronic records access
The proposed Hawaii Electronic Filing and Service Rules are worth a look. Great for attorneys and staffs who currently have to travel to the courthouse to file or view documents. Under the proposed rules, the public would have access to documents I'm guessing through terminals at the court house. Online public access to documents seems somewhat up-in-the-air-ish and at the discretion of the Administrative Director.
Rule 11. PUBLIC ACCESS TO ELECTRONIC CASE FILES.
11.1 On-Site Access. The clerks of the respective courts shall provide public access to the dockets and documents of non-confidential cases maintained in JIMS through public computers in their respective locations....
11.2 Internet Access. The Administrative Director shall provide internet access to the dockets of non-confidential JIMS cases without cost. The Administrative Director may provide internet access to public documents in non-confidential cases by subscription at such rates as shall be determined from time to time by the supreme court....
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