I'm a little too busy so far this week to do any substantive blogging. So here's a handful of items in a newsy legal vein appearing in the legal news aggregator this morning:

Here's the new Arizona immigration law everyone has an opinion about. Feel free to share yours.

I thought this was interesting: The defendants in the Michigan militia case (the "Hutaree militia") were allowed to question an FBI agent in court who, it turned out, wasn't able to recall much in the way of incriminating information; and a recording played in court alleged to contain conversations among defendants discussing killing police officers apparently didn't.

In a First Amendment vein, "The Supreme Court said Wednesday that a lower court went too far in ordering the removal of a congressionally endorsed war memorial cross from its longtime home atop a remote outcropping in California."

Also in the Supreme Court, "The [] Court seemed skeptical Wednesday of arguments by gay rights opponents that the names on a petition asking for the repeal of Washington state's domestic partnership law should be kept secret."

In Hawaii, You cannot physically bar the police from illegally entering your home

I discussed this in the Hawaii Appellate Law Blog last August. I bring it up again because, as a case recently published by the Indiana Court of Appeals points out, in Indiana ya can.

The Hawaii case involved a woman charged with Hindering Prosecution in the First Degree after she blocked police at the door when they came to her house to arrest her son without a warrant. When police tried to shove past her, she braced herself into the doorway and told them, “Get the f— out of here. You need a search warrant.” Police pushed past her anyway and the woman grabbed the sleeve of one of the officers, tearing it and scratching the officer’s arm.

The Hawaii Supreme Court stated:

Although the entry by the police into the home was illegal, we are constrained to apply the hindering prosecution statute inasmuch as the risk of dangers associated with physically resisting such an intrusion at the time it occurs, outweighs whatever vindication of personal rights might be accomplished through physical resistance at that moment.

State v. Line, No. 27850, slip op. at 26-27 (August 11, 2009).

In the Indiana case, filed on the 15th this month, Defendant and his wife were arguing while Defendant was moving out of their apartment. During the argument, the wife tried to call her sister, but Defendant grabbed the phone and threw it against the wall. The wife then used her cell phone to call 911. When officers arrived, Defendant was walking out of the apartment with a bag. The wife came out with another bag, threw it on the ground, and told him to take the rest of his things. When the wife and Defendant went back into the apartment, officers tried to follow them inside.

When they reached the doorway of the apartment, Defendant turned around and told the officers that they could not enter. An officer said they needed to come in to investigate the 911 call. When the officer attempted to walk past Defendant to enter the apartment, Defendant shoved the officer into the hallway. The two continued to struggle and eventually another officer on the scene grabbed Defendant in a vascular neck restraint and took him to the ground. Defendant continued to struggle and officers used a taser to subdue him. (Incidentally, the defendant suffered an adverse reaction to the taser and was transported to the hospital).

I won't go into all the procedural details. (The appeal involved whether Defendant should have gotten jury instructions regarding his right to resist unlawful entry by the officers). In contrast to the Hawaii court's holding that "the risk of dangers associated with physically resisting such an intrusion at the time it occurs, outweighs whatever vindication of personal rights might be accomplished through physical resistance," the Indiana court stated:

“Indiana law recognizes the right to reasonably resist the unlawful entry of a police officer into a person‟s home.” Robinson v. State, 814 N.E.2d 704, 707 (Ind. Ct. App. 2004) (citing Alspach v. State, 755 N.E.2d 209, 211 (Ind. Ct. App. 2001), trans. denied). “[W]here the arrest is attempted by means of a forceful and unlawful entry into a citizen‟s home, such entry represents the use of excessive force and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.” Adkisson v. State, 728 N.E.2d 175, 179 (Ind. Ct. App. 2000) (citing Casselman v. State, 472 N.E.2d 1310, 1316 (Ind. Ct. App. 1985)).

I'm guessing the dean is not favorably disposed toward unlimited corporate political speech

via the Advertiser -

The legal issues surrounding the sale of The Advertiser and Honolulu Star-Bulletin will be among the topics discussed [today] at the Rotary Club of Honolulu luncheon meeting.

Aviam Soifer, dean and professor at the University of Hawaii William S. Richardson School of Law, will talk about issues that might affect the planned sales of Hawaii's two dailies, as well as views on the Supreme Court's recent decision allowing corporations to make unlimited campaign contributions.

Soiefer, who is said to be normally reserved when it comes to voicing opinions on public policy and politics, plans to speak candidly about issues that have the potential to negatively impact freedom of speech and political processes at the local, state and national levels.

(The report needs a little clarification: Citizens United v. Federal Election Commission, 558 U.S. ___ (2010) didn't address direct corporate campaign contributions to candidates but instead held that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment).

Upcoming crim pro arguments before the Hawaii Supreme Court

Oral argument schedule, No. 29130- Thursday, May 6, 2010 at 10 a.m.

Petitioner argues that the ICA gravely erred in holding that the police adequately apprised Petitioner of his constitutional rights and that Petitioner validly waived these rights when the police told Petitioner at the time his Miranda rights were read and waived that they would be questioning Petitioner about one particular crime but subsequently questioned Petitioner on three other crimes.

An interesting question, especially for the criminal defense bar. But, if it's like any of my appeals in the queue, it could be a long, long time before there's a resolution.

This is what I'm looking forward to

A next generation e-reader concept called The Page that is as thin as a sheet of paper, can fold up and has an e-ink screen that can display text and images - to replace my Kindle (here held by a female model)...

Government abandons claim that emails stored online are not protected under the Fourth Amendment

...at least for now.

via cnet -

The U.S. Justice Department has abruptly abandoned what had become a high-profile court fight to read Yahoo users' e-mail messages without obtaining a search warrant first.

In a two-page brief filed Friday, the Obama administration withdrew its request for warrantless access to the complete contents of the Yahoo Mail accounts under investigation...

Much of the information about the case in federal court in Colorado remains unclear, including the nature of the possible crime being investigated, how many e-mail accounts are at issue, and whether it was the flurry of publicity in the last few days or something else that prompted the U.S. Attorney's office in Denver to back down.
...
A 17-page brief (PDF) that the Justice Department filed last month acknowledges that federal law requires search warrants for messages in "electronic storage" that are less than 181 days old. But, Rhyne had argued, the Yahoo Mail messages don't meet that definition.

"Previously opened e-mail is not in 'electronic storage,'" Rhyne had written. "This court should therefore require Yahoo to comply with the order and produce the specified communications in the targeted accounts." (The Justice Department says that what's known as a 2703(d) order--and is not as privacy-protective as the rules for search warrants--should let police read e-mail.)

Back in February, the Justice Dept argued before the 3d Circuit that warrantless tracking of people via their cell phones should be permitted because Americans enjoy no reasonable expectation of privacy in their whereabouts.

Summary disposition in the Catherine Ham Young/Pierce Brosnan water dispute

(Officially captioned, Ham Young v. Lee, et al)

The facts spelled out in the decision are not entirely complete. One can gather though that, before the Brosnans were in the picture, the Lees altered a ditch running through their property in order to feed one or more artificial ponds there. Downstream, Ham Young owned property through which the ditch passed and on which she used the water to cultivate taro. Ham Young asserted that there is no longer a consistent flow of water to her property and sued the Lees for a declaratory judgment that the Lees had violated her water rights, and for a permanent injunction requiring the restoration of the ditch to its original state, and for money damages for damage to Ham Young's land and intentional infliction of emotional distress. (The Brosnans acquired the Lee property at some point and Ham Young successfully had them joined as defendants in the suit). The Lees presented evidence that the water merely flowed through the ponds and that any depletion before it exited their property and made its way downstream to the Ham Young property was minimal.

After cross motions for summary judgment, the 5th Circuit court found that the Lees' use of the water - running it through their ponds and returning it to the ditch - was not unreasonable, and ruled in favor of the Lees on the declaratory judgment and money damages claim. On the other hand, the court ruled for Ham Young in ordering that the ditch be restored to its original state.

All parties - Ham Young, the Lees, and the Bronsans - unsurprisingly appealed this somewhat schizophrenic circuit court decision.

Ham Young appealed the part of the order allowing the Lees to run water from the ditch through their ponds then back to the ditch, and she appealed the part denying that she had suffered any damages. The Lees and the Bronsans appealed in relevant part the portion of the order requiring that the ditch be restored to its original state, given the court's finding that Ham Young was not harmed by the diversion.

The appellate court noted that there was evidence that the water diverted to the ponds merely passed through them then returned to replenish the ditch before it left the property. The court noted that Ham Young did not argue that the diversion of the water through the ponds changed the water's ultimate volume or flow or physical characteristics, but that she argued rather that the diversion for the water's use in conjunction with ornamental ponds is per se unreasonable. (The court noted in a footnote that there are at least three other properties between the Lee property and the Ham Young property and that Ham Young did not present any evidence that the use of the water on the Lee property caused the alleged reduction of water flow to her property).

In the end, the court vacated the mandatory injunction requiring restoration of the ditch to its original state, and, finding that Ham Young had presented evidence of harm to her taro crop during 1999 and 2000, it remanded for further proceedings on her claim that the Lees caused her to suffer damages during that period.

Outlawing the seizure of legal firearms

via the Adversiser -

A bill preventing the government from seizing legal firearms in Hawaii during an emergency is likely heading for final legislative approval.
...
The proposal prohibits the seizure of firearms or ammunition when the government invokes emergency powers during a disaster.

More on the firing of attorneys in Kuhio widening case

In her blog today, Joan Conrow provides a potential rationale for the plaintiff's firing yesterday of her NHLC lawyers in a suit to halt the highway widening and the burial of underground cables between Wailua Beach and the Coco Palms resort property. The paper had reported that the plaintiff complained that

she had not “received adequate representation” from Murakami and Frankel, that the attorneys did not disclose certain documents to her and failed to address some pertinent issues, and that they may have a conflict of interest in the case.
...
Lots of important information has not been provided to Palmeira and Watanabe, said Palmeira.

I characterized these comments as vague (in the post preceding this one). As to the potential conflict of interest, Joan writes

Waldeen reportedly was motivated in large part to sever her relationship with NHLC because she felt she couldn’t trust the organization or the Office of Hawaiian Affairs, whose compliance officer, Kai Markell, was scheduled to testify as an expert witness.

Because OHA was created by the state and receives money from the state — albeit revenues generated by the state’s leasing of the so-called “ceded lands” that comprise the Hawaiian nation’s land base — and because NHLC receives funding from OHA and the state Judiciary, among other sources, both organizations are considered by some to be instruments, pawns, of the state, and so are suspect.

If this accurately reflects the plaintiff's thinking, then I would have to say she underestimates Alan Murakami's personal and professional commitment to Hawaiian cultural preservation.

Legal effort to halt Kuhio Highway widening put on hold

According to Paul Curtis in the Garden Island this morning, the plaintiff surprised everyone in court yesterday by firing her Native Hawaiian Legal Corp lawyers. According to the paper, the hearing had been calendared for Plaintiff's "motions for a preliminary injunction to stop the widening project from going forward until an EIS is prepared, and for summary judgment to stop the project permanently" and for a motion by the state "to dismiss the lawsuit for lack of merit or, in the alternative, to grant summary judgment in favor of the state." Judge Watanabe continued the hearing to June 8.

The plaintiff (Waldeen Palmeira) was pretty vague about her reasons, and this sort of a delay, generally speaking, is going to have a negative impact on a preliminary injunction motion to halt an ongoing project.

Here is a link to to the Complaint filed by NHLC in October asserting violations of state environmental law (Chapter 343 and relevant rules), state burial law (Chapter 6E and relevant rules), "failure to identify constitutionally protected cultural rights," and violation of public trust doctrine.

Consent to search - just don't give it

...especially when the vehicle contains moonshine and weed.