Ninth Circuit distinguishes different modes of Taser use

...in a new case overturning a trial court's determination that officers were not entitled to qualified immunity when they tased a pregnant woman who refused to sign a traffic citation and refused to exit her car to be arrested.

(Qualified immunity entitles officers not to stand trial provided their conduct did not violate a clearly established federal right. A qualified immunity inquiry asks two questions: (1) was there a violation of a constitutional right, and, if so, then (2) was the right at issue “clearly established” such that it would have been clear to a reasonable officer that his conduct was unlawful in that situation? If the Officers’ actions do not amount to a constitutional violation, or the violation was not clearly established, or their actions reflected a reasonable mistake about what the law requires, they are entitled to qualified immunity.)

In this case, Brooks v. City of Seattle (opinion by Judge Hall, Berzon dissenting), the court considered the different modes in which Tazers can be employed:

The Taser’s use in “touch” or “drive-stun” mode—as the Officers used it here—involves touching the Taser to the body and causes temporary, localized pain only. According to the SPD’s Use of Force Training Guideline,10 this usage was considered a Level 1 tactic, akin to “pain compliance applied through the use of distraction, counter-joint holds, hair control holds, [and pepper spray]” and used to control passively or actively resisting suspects. By contrast, applying a Taser in dart mode (wherein darts are shot at the suspect from some distance) achieves greater distance between the contact nodes which can cause neuro-muscular incapacitation. In dart mode, the Taser’s use is a Level 2 tactic to be employed only against aggressive resistance.

The court held that the trial court failed to differentiate between the possible modes of use and that the trial court overestimated the force used by the officers. The court ultimately ruled that

this case presents a less-than intermediate use of force, prefaced by warnings and other attempts to obtain compliance, against a suspect accused of a minor crime, but actively resisting arrest, out of police control, and posing some slight threat to officers. In this situation, we find, assuming all the facts in Brooks’s favor, that the Officers’ behavior did not amount to a constitutional violation.

A potential new shoreline definition

...over at HawaiiOceanLaw.com

Ben Lowenthal interviews Hawaii State Bar Assoc. President, Hugh Jones...

...at Ben's Hawaii Legal News blog. Normally I read Ben's blog for its case synopses. This is its first interview and I hope to see more.

On social media and blogs:

You have your own twitter account. How can the HSBA use twitter and other social online media? I am pushing heavily on the bar association to start using twitter as a communications vehicle. The Judiciary has launched its own twitter account. I think it's a good communications tool, but certainly not the only one. For example, twitter messages about legislation or proposed rules that could affect attorneys' legal practice could be an effective use of this tool. I think the Bar Association will start providing small bursts of information via Twitter like that before my term is up.

Do you think Hawai'i law blogs should be part of the HSBA website? I think that's worthy of examination. There are some sticky issues under the US Supreme Court decision, Keller v. State Bar of California, 496 U.S. 1 (1990), which forbids the use of bar dues in connection with lobbying. For example, providing a link to a blog that would advocate certain policies would be problematic. But our job is not to be the gatekeeper and I would definitely consider a blogroll that simply provides links to all blogs without advocating them.

There's also discussion of making CLE programs more available online as well as releasing them as podcasts. Not that the whole interview is limited to new media subjects. It's wide ranging and just short enough to read right now.

Coincidentally, the Star-Bulletin today also has an interview with Hugh Jones.

Ethics Board sees the light

Michael Levine reports that a 2003 letter authored by the State Ethics Review Commission, along with public testimony, apparently finally convinced county ethics board members that the "private interests" county officers and employees are prohibited by the county charter from representing before county boards and commissions includes private non-profit, charitable organizations.

It seems a no-brainer from both textual and policy perspectives. Textually, the charter makes no exceptions to the prohibition. And as a matter of policy, many of the same concerns regarding private for-profit interests are also present in the case of charitable interests – favoritism, for instance, or horse-trading, and the appearance of those harms.

Nonetheless, the county attorney's office had issued an opinion that the reach of the charter prohibition is restricted by a section of the county code. (I have argued previously that the ordinance cited by the county attorney's opinion and the charter section are unrelated, and that even if the code did contradict the plain meaning of the charter, the code would give way to the charter, not vice versa).

Michael's Garden Island piece (linked at the beginning of this post) contains details regarding the letter and interesting quotes from various folks close to the issue.

Lisa Ginoza confirmed to the Intermediate Court of Appeals as Associate Judge

From the Hawaii State Judiciary Facebook page.

Judge Ginoza's bio:

Ginoza has served as first deputy attorney general for the State of Hawai‘i since January 2005. In her current position, she is directly involved in and supervises a variety of matters for the Attorney General’s Office, including litigation by and against the State, advice and counsel to Hawai‘i’s public officials, review of administrative and criminal investigations, asset forfeiture cases and legislative matters.

“Lisa has been a valuable member of the Attorney General’s Office and has played a lead role in many complex and high-profile cases on behalf of the State and the public,” said Governor Lingle. “Over the past five years, Lisa has provided legal advice and well-thought-out counsel to my Administration and has always demonstrated integrity, fairness and compassion. I feel very confident Lisa will do an outstanding job on the Intermediate Court of Appeals where she will continue to serve the public with her legal expertise, strong work ethic and sound judgment.”

Prior to joining the State, Ginoza was a partner with the law firm of McCorriston Miller Mukai MacKinnon, where she worked since 1990. While in private practice, Ginoza specialized in complex litigation, including insurance litigation, personal injury, commercial and contract disputes, employment litigation and product liability cases.

She has also served as an adjunct professor in appellate advocacy at the University of Hawai‘i William S. Richardson School of Law. She was a law clerk for United States District Judge Samuel P. King and worked as summer associate for Goodsill Anderson Quinn & Stifel as well as Shim Tam Kirimitsu Kitamura and Chang.

Ginoza earned her law degree from the William S. Richardson School of Law and served on and published a note in the school’s law review. She earned her undergraduate degree from Oregon State University, where she was a Presidential Scholar, and graduated with valedictorian honors from Kailua High School.

Hawaii Supreme Court addresses admissibility as a "business record" of “speed check card” certifying the accuracy of police vehicle’s speedometer

State v. Fitzwater, No. 28584 slip op.(Hawaii, March 3, 2010).

At trial, a police officer testified that he fell in behind and followed the defendant’s motorcycle after he observed the defendant traveling at what appeared to be a high rate of speed. The officer further testified that the speedometer in his vehicle indicated that the defendant was traveling 70 miles per hour in a 35 mile per hour zone. The officer also testified that a “speed check” had been conducted to determine the accuracy of the police vehicle’s speedometer about five months earlier. Over the objection of the defendant’s counsel, a card purporting to document the results of that speed check was admitted into evidence, and the officer was allowed to testify that the results of the speed check showed that the speedometer was accurate.

The ICA, in a Summary Disposition Order, concluded that the district court did not err in admitting the speed check evidence.

On review, the Hawaii Supreme Court held that although the speed check was conducted with the understanding that its results would likely be used in the prosecution of speeding cases, because it was not created specifically for the prosecution of the defendant, the card could nevertheless qualify as a business record under HRE Rule 803(b)(6).

However, there was insufficient foundation to admit the card as a business record under that rule, and there was additionally insufficient foundation regarding the reliability of the speed check.

In order for a record to be admissible under HRE Rule 803(b)(6), the proponent must establish a sufficient foundation. Specifically, “[t]he proponent must establish (1) that the record evidences “acts, events, conditions, opinions, or diagnoses”; (2) that the record was made in the course of a regularly conducted activity; and (3) that the record was made “at or near the time” of the acts or events that are recorded.” HRE Manual § 803-3[5][B]; see HRE Rule 803(b)(6). Furthermore, “[t]he record must also survive the discretionary untrustworthiness exclusion of the rule.” Addison M. Bowman, Hawaii Rules of Evidence Manual § 803-3[5][B] (2008-2009 ed.). The "trustworthiness" analysis concentrated on a factual wrinkle in the case - that the speed checks were conducted by a private shop which created the record.

Finally, the court rejected the defendant’s argument that the admission of the speed check evidence violated his right to confrontation under the Sixth Amendment of the U.S. Constitution.

The latest in Doe v. Kamehameha Schools - under abuse of discretion standard, plaintiffs may not proceed anonymously

This is the latest in the ongoing challenge to Kamehameha Schools’ race-based admissions policy. The plaintiffs, four minor children (“the Doe children”), seek to proceed anonymously. However, the lower court decided that the prejudice to the defendants and the public’s interest in open courts outweigh plaintiffs’ fears of harm.

The magistrate judge found that various public threats against plaintiffs were not threats but merely "voic[ed] the commentators’ frustration with this lawsuit.” Likewise, the magistrate judge discounted anonymous internet comments suggesting that the Doe children would be injured at Kamehameha Schools. In reviewing the lower court's decision, the 9th Circuit said -

To determine whether to allow a party to proceed anonymously when the opposing party has objected, a district court must balance five factors: “(1) the severity of the threatened harm, (2) the reasonableness of the anonymous party’s fears, . . . (3) the anonymous party’s vulnerability to such retaliation,” (4) the prejudice to the opposing party, and (5) the public interest. Id. at 1068 (internal citations omitted).

The...analysis here is quite difficult, particularly in light of the controversy surrounding the case, the recognized tension between some Native Hawaiians and non-Natives in Hawaii and the threats against the anonymous plaintiffs. Still, the district court did not abuse its discretion in refusing to allow anonymity because the district court did not clearly err in its conclusion that the Doe children do not reasonably fear severe harm. Thus, the district court did not unreasonably conclude that the public interest and possible prejudice to the defendants outweigh the plaintiffs’ interest in anonymity.

Essentially, then, while the 9th Circuit sympathized with the plaintiff's fear of reprisals, it held that under the abuse-of-discretion standard of review, it's hands were tied:

We are sympathetic to the concerns of the Doe children and their parents, but we recognize the paramount importance of open courts. For this reason, the default presumption is that the plaintiffs will use their true names. We also emphasize that, as an appellate court, we are constrained by the applicable standard of review. Had the district court found that anonymity was appropriate, we likely would have concluded that the district court did not abuse its discretion. Or, were we permitted to make findings and weigh the factors anew, we might have held that anonymity here was appropriate. As it is, however, we review the district court’s decision only for abuse of discretion. Because the district court did not abuse its discretion in determining that the Doe children do not reasonably fear severe harm, we affirm the district court’s order dismissing the case based on plaintiffs’ failure to disclose their identities.

The appeal was heard by Circuit Judges Beezer, Graber and Fisher. Judge Beezer wrote the opinion. I'll be watching for a petition for rehearing en banc.

McDonald v. Chicago - sounds like the Supreme Court is not ready to revive Privileges or Immunities

Josh Blackman, who was present at this morning's oral argument, prefaces his analysis by stating -

The Court was not at all receptive to arguments on Privileges or Immunities but incorporation on Due Process is a slam dunk.

Meanwhile, SCOTUSblog says -

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

Both posts contain interesting discussions of the justices' questions to counsel about privileges or immunities.