‘‘Native Hawaiian Government Reorganization Act of 2010’’

...which again passed the House yesterday, is available here. I would quibble with the title. It wasn't really a Native Hawaiian government that was overthrown. It was more of a late modern-era monarchy governing a multi-racial society.

"Copies of ordinances are available at the County Clerk's Office for purchase by the public. For further information, please call"

That's what one finds under the "County Ordinances" tab on the County web site. 'If you want to know what the law says, you can purchase it from us.' Does that strike anyone else as potentially unconstitutional? I think I feel another non-billable research project coming on.

Lessons from today's Supreme Court Miranda ruling

The Fourth and Fifth Amendment protections against unreasonable search and seizure and self-incrimination are widely known. But there is always also a state corollary. (For instance, Article 1, sect. 7 of the Hawaii Constitution closely tracks, with an additional clause, the federal Constitution's Fourth Amendment). Sometimes, even if the state statute is not discernible from the federal, state courts nonetheless rule that a state protection is more protective than its federal counterpart (it can never be less so). Attorneys should always make state law arguments in suppression motions. And try to get the court to rule (in your favor) based on state law. Always give the court - especially in the appellate context - the opportunity to establish that state law dictates the outcome. That way, you first of all give the court the opportunity to establish a state protection in excess of federal protections, and second, to the extent you can get the state appellate court to couch in state law terms even those protections not in excess of federal law you succeed in inoculating the protection from the vicissitudes of federal court interpretations of the federal protections.

This is a longish introduction to a short comment I have about today's U.S. Supreme Court decision in Florida v. Powell in which a 7-2 court overturned the Florida Supreme Court and held that officers adequately warn a criminal suspect of his Miranda rights when they advise him that “You have the right to talk to a lawyer before answering any of our questions” and “[y]ou have the right to use any of these rights at any time you want during this interview.” (The defendant argued that the warning did not adequately inform him that he could have an attorney with him during questioning). I don't think it's a particularly controversial development, nor does it appear to me to trim Miranda protections (though the dissent argues, not frivolously in my judgment, that it could entice departments to indulge in more ambiguously worded warnings).

What caught my eye was that the court took the Florida case in the first place. The Florida court said, “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning,” and that the warnings given to the defendant did not satisfy either the State or the Federal Constitution.

There's a doctrine that says the Supreme Court lacks jurisdiction to review state decisions that rest on adequate and independent state grounds. I would have thought that a decision that announces that its ruling is based on both federal and state grounds would fall under the state grounds doctrine, even if its federal analysis turns out to have been erroneous.

However, the court felt that the lower court didn't really analyze the question on state grounds -

Although invoking Florida’s Constitution and precedent in addition to this Court’s decisions, the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave [the defendant] rights distinct from, or broader than, those delineated in Miranda.

Beginning with the certified question—whether the advice the Tampa police gave to [the defendant] “vitiate[d] Miranda,” and continuing throughout its opinion, the Florida Supreme Court trained on what Miranda demands, rather than on what Florida law independently requires.

[Citation omitted]. In the long run, this might not be terrible for the defendant. The Florida court might on remand say, "fine. We were wrong about Miranda. Nevertheless, the fact remains, under Florida law, the warning has to be clearer." However, there's always the danger the Florida court won't do that but will instead say, "really? Oh, we thought... never mind. The defendant is guilty after all."

Which brings me back to my original point. Attorneys have to get the state courts to address state guarantees. Talk up the state constitutional section and state cases. Background to the extent you can the federal analysis. Sure, it makes suppression motions and appeals a little more challenging. But you know what? It also makes 'em more fun.

9th Cir. approves "police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency"

..."in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home," writes Judge Kozinski in dissent of yesterdays denial by the court to rehear the case en banc.

In the original decision, United States v. Lemus, the court had upheld the warrantless search of a defendant's apartment into which the defendant had unsuccessfully tried to retreat when police arrived to arrest him. According to the court, "officers were there in an instant, taking hold of Lemus and handcuffing him before he could fully enter the doorway." Officers then entered the apartment where they found stuffed between the cushions of a couch a weapon for which the defendant was charged.

I practice a lot of Fourth Amendment law. It's one of my specialties. I regularly write suppression motions for a number of criminal defense attorneys (just a plug, there, for the local bar). And given the facts of this case, I would have assumed I had a slam dunk. I find in this case a disturbing retreat from the presumption of the home's inviolability absent exceptional circumstances. Judge Kozinski's indignant rant dissent is worth quoting at some length -

Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the “government bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement.” (Citation). The place where warrantless searches are deemed “presumptively unreasonable.” (Citation).

Government encroachment into the home, which I lamented three years ago in United States v. Black (citation) has continued, abetted by the creative collaborators of the courts. This is another example: The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus’s home after he was arrested just outside it. The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.
...
How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plainview case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it.

This is a case in point. While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in “plain view.” So, the detectives went in and, while there, Diaz thought he saw “something sticking out from the couch” that “looked like the butt of a weapon.” Lemus, 582 F.3d at 960. Longoria then lifted the couch cushion “to make sure” and found a gun. Id. at 961. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant—if they could—based on what they saw, before rummaging through the couch?

(Cross-posted at Hawaii Appellate Law Blog).

Going paperless with my Kindle

I'm in the research stage of co-writing an article on federal Indian water law and the other night I downloaded hundreds of pages of articles from SSRN. Normally, I would print a number of articles and carry them around in my bag for the next few days reading them when I can grab some time between deadlines, or while waiting in the car for the kids to get out of whatever practice. While I'm not remotely a self-denying, ascetic, hair-shirt environmentalist, all the paper and ink I churn through my printer does at times seem pretty wasteful - especially now that my kids are past the age at which they would happily fill the backs of reams of old discarded documents with drawings. It's also expensive.

The Kindle Mrs. Foster bought me for Christmas turns out to be the perfect device for carrying around readable pdf files. I can either plug the Kindle into my laptop and copy files over to it, or I can email the files from my computer to my Kindle account and in a few minutes they are downloaded wirelessly. I'm sort of assuming the whole Kindle/Sony reader technology will some day be subsumed into something like the iPad. But for now, I'm really happy about all the work I can cram into a carry-around reading device the size of a very slim paperback book.

A section 1983 blog

...has just come to my attention. 42 U.S.C. § 1983, commonly referred to as "section 1983" provides that "Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State...subjects, or causes to be subjected, any citizen... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress..."

In other words, section 1983 is a federal law that enables citizens to sue for violations of their constitutional rights. The cases discussed in the previous posts about police use of tasers were Section 1983 cases. The individuals tazed had sued the officers under section 1983.

The blog is appropriately enough called Section 1983 Blog.

The Ninth Circuit's (lack of an) established taser rule

Paul Curtis had a longish piece yesterday about last November’s tasing by Kauai police of LeBeau Lagmay. There is mention of a 9th Circuit case I discussed previously,  Bryan v. McPherson, which, as I wrote back then

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.”

At the time I wrote about the McPherson case I supposed it helped establish potential liability on the part of the officers who had tazed Lagmay. But soon after McPherson, the 9th Circuit decided Mattos v. Agaranos in which a tazing was deemed justified under the following facts (officers had responded to a domestic disturbance call) -

Troy [husband] entered his home to get Jayzel [wife], and Officer Agarano stepped inside the doorway. When Troy returned with Jayzel, Troy became upset that Agarano was in his house, and he demanded that the officers leave, insisting that they had no right to be in the house and yelling profanities at them. The officers asked Jayzel to speak to them outside. Jayzel agreed and asked her husband and the officers to calm down and not wake her sleeping children. Aikala then entered the hallway area to arrest Troy, who was still yelling at the officers. Jayzel asked Aikala why her husband was being arrested and again asked that the officers and her husband calm down, leave the house, and not disturb her children.

At this point, Jayzel was cornered between the officers and her husband—Officer Agarano was in front of her, Officer Aikala was at her right, and her back was against her husband’s chest. Aikala moved to apprehend Troy and bumped against Jayzel. Feeling uncomfortable and exposed with Aikala squarely in front of her, Jayzel raised her hands, palms forward at her chest, to “keep [Aikala] from flushing his body against [hers].” Jayzel agrees that both of her hands touched Aikala’s chest, but asserts that she did not put her hands up until Aikala was pressed up against her.

Aikala immediately stepped back and asked Jayzel if she was touching an officer. Jayzel testified that she was scared and again implored everyone to calm down and not wake her children. At that moment, Jayzel felt a pinch on the back of her right hand and then felt “an incredible burning and painful feeling locking all of [her] joints,” she heard herself scream, and felt herself fall to the floor. Aikala had tased Jayzel and cycled it for five seconds.

After Mattos, I threw up my hands trying to divine the 9th Circuit's rule regarding the constitutionally permissible use of tasers by police.

Moving burials to make way for construction

...of an airport in Chicago. (Thanks to inversecondemnation.com for first noting the story).

The City of Chicago on Monday was awarded possession of a 161-year-old cemetery that lies in the path of a future runway at O'Hare International Airport, and the relocation of about 1,200 graves could begin within weeks.

DuPage County Judge Hollis Webster ordered that the title of the 5.3-acre St. Johannes Cemetery in Addison Township be transferred from St. John's United Church of Christ to the city. She also ordered that Chicago pay the church $630,000 for the land, which stands between two segments of a new runway already under construction.
...

The church has maintained for years that the removal of the graves violates the religious beliefs of the church.

The ubiquity of ancient Hawaiian burials and the inevitable controversy arising from their discovery in construction projects makes disputes elsewhere over the use of land occupied by buried bodies somehow relevant here. For instance, such disputes here are generally cast in terms of a conflict of Hawaiian versus non-Hawaiian culture - and, of course, there's plenty that can be, and is, said from that perspective. But it is also useful to recognize that such conflicts arise from the inevitable clash of the present with the past.

Naue burials, Hawaii Administrative Rules, and Gordian Knots

I've been following with fascination in the Garden Island the serial rejections of Naue burial treatment plans by the burial council over the past months (the paper reports rejection number 16 today). In understanding the story it helps to get an overview of the relevant law. The administrative rules spell out the process as follows:

Under HAR §13-300-33, an applicant submits a request to preserve in place or relocate a Native Hawaiian burial site to the Department of Land and Natural Resources in the form of a burial treatment plan.

Under the rules, the applicant consults with the department in the development of the burial treatment plan. Once approved by the department, the applicant submits the completed burial treatment plan to the council accompanied by a request to be placed on the council agenda for a determination of burial site treatment.

Once the burial treatment plan is in its hands, the council is to render a determination to preserve in place or relocate burial sites "within forty-five days of referral by the department."

The next step in the process appears to me to be the point at which things are hung up. Section 13-300-38 provides that -

Where a council determination to preserve in place is accepted as final, the applicant shall develop the burial site component of the preservation plan consisting of the requirements of section 13-300-33(b)(3)(A) and any accepted recommendations relating to burial site treatment. Within ninety days of the council determination, the department shall approve the plan following consultation with the applicant, any known lineal descendants, the appropriate council, and any appropriate Hawaiian organizations.

(13-300-33(b)(3)(A) requires a burial treatment plan to contain statements describing measures to protect and manage all burial sites including, but not limited to, fencing, buffers, site restoration, landscaping, and access by known lineal or cultural descendants).

Apparently, the rejections of the burial plan are occurring at the "consultation with...the appropriate council" stage of 13-300-38. However, two things seem to me to militate against the current impasse. First, while the rule requires consultation with the council, it doesn't appear to require the council's approval (otherwise, instead of saying, "following consultation with" the various consulted parties, it would say, "following approval by" the consulted parties). Second, the rule appears to impose a strict ninety-day time limit on the DLNR to approve a plan.

That said, the rule is unclear on a number of matters. What happens if the applicant and the DLNR never agree on an acceptable plan? What does "consultation" mean in this context? How are the various consultations supposed to impact the plan? Can the DLNR, if it chooses to, make approval of a plan contingent on a burial council's approval? What then about the ninety-day time limit for approval?

This particular case has an additional twist. The project had already passed this step and the DLNR had approved the plan. However, the court later determined that the DLNR had failed in its consultation requirements. The court sent the case back to the DLNR but, the footings having already been poured, the court declined to enjoin further construction. Now the house is all but finished. The burial council's objection is essentially that the house exists there at all. And the classic Kauaian property-burial law Gordian Knot is achieved.

9th Circuit: placing hands on head constitutes consent to search; also, the ballsy, knowledgeable "reasonable person"

U.S. v. Vongxay, No.09-10072, slip op. (9th Cir. February 9, 2010) -

The encounter in question began when [Officer] Campos approached [Defendant] Vongxay on foot and, after some preliminary questions about this presence at the club, asked him if he had a gun. Vongxay said “no.” Campos then asked Vongxay if he could search him for weapons. Vongxay did not answer verbally, but placed his hands on his head.

After determining that a "Jones factor" analysis weighed in favor of a finding of voluntary consent (the Jones factors are whether the defendant was in custody; whether the arresting officer had his guns drawn; whether Miranda warnings were given; whether the defendant was notified that he had a right not to consent; and whether the defendant had been told that a search warrant could be obtained, derived from United States v. Jones, 286 F.3d 1146, 1152 (9th Cir. 2002)) the court then resorted to what is really the operative fiction in many search and seizure cases, saying -

Further, Campos’s conduct would not have “communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Vongxay willingly lifted his arms, so as to enable a search, in response to Campos’s request for permission to search him.(citation omitted).

Really? A police officer approaches you outside a nightclub, asks you a number of questions about your presence there, then asks if you have a gun. Then asks to search you. Does a "reasonable person" really think he is "at liberty to ignore the police presence and go about his business?" I think a reasonable person would worry that turning heal and walking away from that situation could well lead to being tackled and brought down from behind by one or more police officers.

It's funny too for the courts to endow the fictional "reasonable person" with such a firm understanding of his or her fourth amendment rights seeing as how the courts themselves often disagree about whether consent was given and if so whether it was given voluntarily.

Hawaiian Seniors Win Class Certification in suit against Midland National Life Insurance Co.

Courthouse News Service -

Through independent brokers, Midland sold life insurance annuities to Hawaiian seniors from 2001 through 2005. The insurance company's brochures failed to disclose that the annuities were too risky and thus unsuitable for seniors, the investors claim.

The district court [had] denied class certification under Hawaii law, ruling that "each plaintiff would have to show subjective, individualized reliance on deceptive practices within the circumstances of each plaintiff's purchase of the annuity."

It said Hawaii state law requires a showing of individualized reliance.

But the 9th Circuit panel in Honolulu found that the class certification hinged on whether the alleged misrepresentations would likely deceive a reasonable consumer, not the individual damages. If the plaintiffs succeed under this standard, the three-judge panel ruled, there might be an issue of individual damages at a later point in litigation.

Leagle.com provides an HTML version of the order and opinion here.

Akaka Bill debate

This sounds pretty good. According to the Advertiser -

Ilya Shapiro, editor-in-chief of the Cato Supreme Court Review, and University of Hawaii-Manoa law professor Jon Van Dyke will debate the Akaka bill Wednesday at the UH law school.

State senate confirms new appellate judge

Star Bulletin -

The Hawaii Senate has unanimously confirmed Lawrence Reifurth as a judge on the Hawaii Intermediate Court of Appeals.

Lessons from the bar: don't make masturbatory gestures while making eye contact with the court

Actually, the Austin, Texas, criminal defense attorney sentenced to 90 days in jail for making "a simulated masturbatory gesture with his hand while making eye contact with the Court," committed his offense a couple of years ago. It's back on the radar because, notes the Law of Criminal Defense blog, his sentence for contempt was recently reduced to 10 days. Still, he must participate in a work-release program and wear an electronic monitor.

To recap: when you find yourself standing before the court exchanging glares with the judge, and things are clearly not going to go your way on this one, you can imagine yourself making the big up-and-down motion with your fist, but you cannot, under any circumstances, actually allow yourself to make any remotely masturbatory gestures in court.

I'm a happily, unapologetically consumerist lawyer today

...having just ordered Professor Bowman's Hawaii Rules of Evidence Manual (with great commentary on caselaw on each rule; oft' cited by the Hawaii Supreme Court) and Professor Imwinkelried's Evidentiary Foundations.

But apparently nobody offers an annotated Hawaii court rules unbundled from the entire set of statutes?

Justice Thomas on "electioneering communications"

The NY Times reported yesterday on remarks Justice Thomas made about Citizens United v. Federal Election Commission.

“I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company,” Justice Thomas said. “These are corporations.”

The part of the McCain-Feingold law struck down in Citizens United contained an exemption for news reports, commentaries and editorials. But Justice Thomas said that reflected a legislative choice rather than a constitutional principle.

He added that the history of Congressional regulation of corporate involvement in politics had a dark side, pointing to the Tillman Act, which banned corporate contributions to federal candidates in 1907.

“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”

It is thus a mistake, the justice said, to applaud the regulation of corporate speech as “some sort of beatific action.”

Justice Thomas said the First Amendment’s protections applied regardless of how people chose to assemble to participate in the political process.

“If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he said. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association.”

“But what if you put yourself in a corporate form?” Justice Thomas asked, suggesting that the answer must be the same.

While his remark about the Tillman Act is historically interesting, it is ultimately irrelevant to whether free speech and press protections extend to corporate entities. But, as I commented a few days ago, I am persuaded that speech and press freedoms extend to associations. Limiting such protections to "individual people" strikes me as arbitrary and artificial.

New First Circuit judge

Pacific Business News -

Former U.S. Attorney for Hawaii Edward H. Kubo has been confirmed as a judge for Honolulu’s 1st Circuit Court.