Kurt William Havelock had this plan. He planned to arrive at the Super Bowl in Glendale in 2008 and start shooting people. His goal was to commit “suicide by cop. ¹”

His first stop on Super Bowl Sunday was a post office near the stadium. From there he mailed six identical envelopes addressed to The New York Times, the Los Angeles Times, the Phoenix New Times, the Associated Press; theshizz.org and azpunk.com. The last two being music related websites. The “media packages” as he called them contained “a five-page ‘econo-political’ manifesto entitled ‘Karma Leveller: Bad Thoughts on a Beautiful Day’ (the ‘Manifesto’); a brief account of a recent incident involving Havelock, faux pipe bombs, and the police of Tempe, Arizona; an apologetic letter to ‘the Police,’ directing them to his car, ‘which would be parked in Glendale somewhere around the stadium, and imploring that the police ‘not take their hatred for him out on his dogs’; and another letter comprised of self-described ‘random blatherings.’”

After mailing the packets he went to the stadium where he got cold feet and thankfully did not shoot anyone. Instead he called his parents and arranged to meet them and his fiancee. When he told them the story they suggested that they go to the police. The Tempe police could not find any crime committed in Tempe and they called in the FBI. Havelock was indicted and convicted on six counts of of mailing threatening communications in violation of 18 U.S.C. § 876(c).

On appeal he argued that he was not guilty since the media packet were not directed to individuals but instead to corporations. Normally a corporation is considered a person unless the intent of Congress is otherwise. Section 876(c) states in pertinent part

Whoever knowingly so deposits or causes to be delivered [by the Postal Service according to the direction thereon], any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another . . .

The government argued that the jury could consider the contents of the letter to determine the addressee of the letter and the dissent by Judge Graber argued that when a letter is sent to a corporation the addressee is whoever opens the letter. But the majority supported Havelock’s position that the addressee must be a natural person and must be named on the front of the envelope. It found that the common meaning of the language in the statute which says that the offending communication must be addressed to a person indicates that it means a natural person and not a corporation. Therefore the majority reversed the conviction.

Jeff Quon, as a member of the city of Ontario, California’s SWAT team, was assigned an alphanumeric pager, capable of sending text messages. The city had a contract under which it paid a flat fee for a limited number of text messages and then paid additional for each text message above the agreed upon number.

Quon , fairly regularly exceeded the set number of messages. He was given the option of paying for the excess messages, which he accepted. But the city and the police department started an investigation to determine whether the standard number of messages was sufficient. They picked two months and viewed all of his messages, excluding those that he wrote while he was off duty. They found numerous non work related messages, some of which were of a sexual content. (Whether these were to his soon to be ex-wife or to his girl friend, I do not know. Both joined in the suit.)

He sued, claiming violations of the Fourth Amendment’s protection from illegal searches and Federal law.

Some expected the Supreme Court to break new ground and rule on the interrelationship between the new technology and the Fourth Amendment. But the court was not ready to rule on whether or not there is an expectation of privacy in text messages. Instead if answered the question based on traditional Fourth Amendment concepts. In this case prior to being given the pager Quon was familiar with the city’s policy that their was no expectation of privacy in text messages. While reading someone’s text messages is certainly a search, the Fourth Amendment does not outlaw all searches. It only forbids unreasonable searches and the Supreme Court held that a business search conducted to finds ways to make the business more efficient is not unreasonable. The search by the Ontario Police Department was conducted in order to find ways to make its use of text messages more efficient. The search had a reasonable work related purpose and it was limited in scope. Therefore it did not violate the Fourth Amendment.

The Ninth Circuit Court of Appeals ruled that California’s law against indecent exposure is not necessarily a crime of moral turpitude.

Victor Ocegueda Nunez entered the country illegally when he was fifteen years old. He is now 31, married to a United States citizen and they have three children all of whom are citizens. Homeland Security moved to deport him. An illegal alien who has been in the country for over ten years can apply for cancellation of removal unless he he/she has been convicted of a felony or more than two misdemeanors involving moral turpitude. Cancellation of removal is not available to anyone who spent more than six months in jail on a misdemeanor.

Nunez has two misdemeanor convictions one for petty theft, a crime of moral turpitude, and one for indecent exposure. Crimes of moral turpitude are nigh impossible to distinguish from other crimes. But generally they are are crimes that involve either fraud or “base, vile, and depraved” conduct that “shock[s] the public conscience.” For example theft crimes are crimes of fraud and therefore involve moral turpitude. It the intent is to seriously injure someone, such as murder, rape or kidnapping the crime has been found to be a crime of moral turpitude. Sex crimes are only crimes of moral turpitude if someone is injured as in the case of rape or “lewd and lascivious conduct toward a child.

Crimes of moral turpitude have been divided up into two group. Categorical crimes are those in which all violations of the law are crimes of moral turpitude. This involves crimes such as theft and rape. The second group, the modified categorical includes crimes where a conviction is possible for behavior that is not necessarily a crime of moral turpitude. In these cases the Immigration Court must decide whether whether the particular behavior is “base, vile, and depraved” and whether it shocks the public conscience.

Under California law crimes of indecent exposures involve three different types of behavior; 1) those meant to sexually excite the person exposing himself, 2) those meant to sexually excite someone else, and 3) those meant to insult someone. Not all crimes in all of the categories are crime of moral turpitude. For example the statute has been used to convict nude dancers. But nude dancing is not “base, vile, and depraved.” Likewise one may be convicted of indecent exposure for by showing your behind to someone who cuts in front of you while you are driving but again that is not “base, vile, and depraved.” Therefore, since the trial court did not specify the behavior resulting in Nunez’s conviction the Ninth Circuit remanded the case to the Immigration Court for a determination of whether or not Nunez’s conduct involved moral turpitude. If it did not he will be entitled to request a cancellation of removal.

The Ninth Circuit Court of Appeals upheld the blanket search of all inmates entering general population at the San Francisco County jails. In Bull v. San Francisco the court reversed a twenty-five year policy and allowed the Sheriff’s Department to strip search all inmates entering general population without an individualized suspicion or probable cause.

The District Court denied the sheriff’s request for partial immunity finding that the searches violated the Fourth Amendment and that the law was clear at the time of the searches. While stating that inmates do not give up all of their Fourth Amendment rights when they are incarcerated, the court found that inmate’s rights must be subject to the administrative and security needs of the institution.

However, the Ninth Circuit reversed alleging that Supreme Court precedent allowed the searches and required the courts to give deference to law enforcement officers in the area of inmate and deputy safety. Considering the problems that the San Francisco jails had with contraband entering the jail the court determined that the search policy was not unreasonable and therefore it did not violate the Fourth Amendment.

The dissent points out that the searches are not reasonable. Among the defendants challenging the searches is one who is charged with pour fake blood during a demonstration and another who is charged with writing bad checks. Furthermore only a small percentage of those who enter the jail bring contraband with them. The long history of litigation in the Ninth Circuits and most of the other circuits has upheld the need fior an individualized evaluation and not the blanket acceptance of strip searches accepted by the majority opinion.

The Ninth Circuit Court of Appeals ruled that Washington’s law banning felons from voting violated the Voting Rights Acts since the criminal justice system is racist and tends to search, arrest and convict African Americans in a greater number than their proportion of the state’s population.

In Farrakhan et al v. Gegroire et al that the racist nature of the state’s criminal justice system was the only possible reason for the high percentage of African Americans arrest and convicted of crimes in Washington.

The Court stated that Congress passed the Act for the “broad remedial purpose of ridding the country of racial discrimination in voting” as part of its duty to enforce Section Two of the Fifteenth Amendment. Section 2(a) of the Act as it is currently amended states:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .

The plaintiffs, all parolees, provided “compelling” by expert witnesses that:

the racial disparities in the state’s criminal justice system cannot be explained by “legitimate” factors, such as racial minorities’ higher level of involvement in criminal activity. . . evidence of “unwarranted” racial disparities in the rates of vehicle searches, . . . and “observable racial differences” in the processing of criminal cases (e.g., charging and bail recommendations, lengths of confinement, and alternative sentencing) . . .

Among the findings of the experts is that

African Americans in Washington State were over nine times more likely to be in prison than Whites, even though the ratio of Black to White arrest for violent offenses was only 3.72:1, suggesting that substantially more than one half of Washington State’s racial disproportionality in its criminal justice system cannot be explained by higher levels of criminal involvement as measured by violent crime arrest statistics. A
study of the Washington State Patrol shows that Native Americans were more than twice as likely to be searched as Whites; African Americans were more than 70 percent more likely to be searched than Whites; and Latinos were more than 50 percent more likely to be searched. A study of the Vancouver, Washington Police Department (“VPD”) indicated that of those stopped for traffic violations by the VPD, African Americans are nearly twice as likely to be searched as Whites, and Latino were three times more likely to be searched. This,despite the fact that searches of Whites more frequently resulted in the seizure of contraband than searches of African
Americans and Latinos.

The witnesses also proved that “blacks and Latinos are overrepresented, and whites underrepresented, among Seattle’s drug arrestees,” and that “the organizational practices that produce these disparities” — specifically, the police’s focus on crack cocaine, on outdoor drug activity, and on the downtown area — “are not explicable in race neutral terms.”

The effect of racism in the criminal justice system is that more African Americans, Latinos and American Indians are denied the right to vote and therefore the law banning felons from voting violates the Voting Rights Acts and therefore the law banning felons from voting is void.

The decision creates a split in the circuits and Washington officials have announced their intention to appeal the decision.

The Ninth Circuit denied an appeal by the Coronado, California Police Department and Officer Brian McPherson from a denial of a summary judgment motion in a 42 U. S. C. 1983 action by Carl Bryan after McPherson used a taser on Bryan during a stop for failure to wear a seatbelt.

The defendants moved to dismiss the action claiming qualified immunity. The court refused to dismiss the action finding that use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.

One day in the summer of 2005 McPherson stopped Bryan for failure to have his seatbelt on. He ordered Bryan to pull his car over to the curb and to turn down his radio. After first blankly staring ahead Bryan complied with the order. There is some question about what happened next. McPherson says he ordered Bryan to stay in the car. Bryan said he did not hear McPherson and and he got out of the car. McPherson claims that Bryan took a step towards him but the physical evidence showed that Bryan was fifteen to twenty five feet away from McPherson and not facing him. McPherson then shot Bryan with his taser causing hospitalization.

When a motion for summary judgment, based on qualified immunity, is denied on appeal the court must determine whether, taking the facts in the light most favorable to the plaintiff, the officer’s conduct violated a constitutional right and whether the right was “clearly established in light of the specific context of the case”

When excessive force is used the Fourth Amendment is violated. The court “balance[s] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” The court found that the taser which uses an electrical impulse to override “the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless” to be a weapon of intermediate or medium force requiring “a strong government interest that compels the employment of such force.”

The government’s interest is determined by examining three core factors:

(1) the severity of the crime at issue,
(2) whether the suspect poses an immediate threat to the safety of the officers or others, and
(3) whether he is actively resisting arrest or attempting to evade arrest by flight.

The court found that none of these exist. The charged crime was an infraction and even if McPherson thought that misdemeanor had occurred violence was not involved. The trial court and the evidence before the appellate court showed no evidence of any attempt to resist arrest or of a threat to the officer. Furthermore the officer failed to warn Bryan of the possible use of force and McPherson knew that back up officers were on the way and would soon arrive. As a result the Ninth Circuit found that considering all of the circumstance McPherson use of the taser was the use of excessive force.

Finally the court found that McPherson was not entitled to qualified immunity because a reasonable officer facing a situation where it was only a minor crime alleged and knowing that a taser injury can cause severe damage should know that the use of the taser would violate the Fourth Amendment.

The Ninth Circuit Court of Appeals upheld the forfeiture of the proceeds of the sale of a warehouse worth $345,000 used to grow marijuana in Oakland.

Thomas Grossi owned an Oakland warehouse raided by the California Highway Patrol and the DEA in June of 2004. They seized 2400 plants. He was indicted and convicted of maintaining a property where marijuana was grown and sentenced to two and a half years in prison and forfeiture of the warehouse.

On appeal he argued that forfeiture of the warehouse violated the Eighth Amendment’s prohibition of cruel and unusual punishment. However the Ninth Circuit ruled that since the maximum permissible punishment is over $345,000 the punishment is not cruel and unusual.

The Ninth Circuit Court of Appeals ruled yesterday that an Idaho conviction for which the defendant received a pardon under Idaho law remains a prior conviction for the purpose of the Sentencing Guidelines.

Clinton DeWitt Bays, Jr. pleaded guilty to a charges of being a drug user in possession of a firearm and possession with intent to distribute methamphetamine. He was sentenced to 78 months in the Federal Penitentiary and he appealed claiming that the District Court judge wrongly considered 1992 convictions in Idaho for two counts of vehicular manslaughter and one count of aggravated driving under the influence. The state charges were pardoned in 2007 by State of Idaho Commission of Pardons and Parole. The pardon restored “all civil, political, and other rights enjoyed prior to the commission of the crime.”

Section 4A1.2(j) of the United States Sentencing Guidelines
. . . states that sentences for expunged convictions are not included when determining a defendant’s criminal history category. U.S. Sentencing Guidelines Manual § 4A1.2(j) (2008). Application Note 10 to section 4A1.2 states, however, that previous convictions which are “set aside or . . . pardoned for reasons unrelated to innocence or errors of law” are to be counted. Id. § 4A1.2 cmt.
n.10.

The Ninth Circuit ruled that the Idaho pardon was not an expungement for the purpose of the Guidelines because it was not a complete removal from Bays’ criminal record. Nor was it necessarily unrelated to innocence or errors of law. Rather it was given in order to restore his civil rights and to remove the stigma associated with a conviction. As such it is not an expungement under the Guideline and it can be used to determine Bays’ criminal history. In fact Idaho has a separate expungement statute which allows a defendent to petition the court for an expungement that vacates the conviction and it becomes a nullity. While this statute was not before the Ninth Circuit it is likely that an expunged conviction under this statute would not count in determining a criminal history score.

The one thing that is certain is that each state has different pardoning and expungement statutes. Each pardon statute and each expungement statute must be considered separately to determine whether it is exempt from the criminal history score granted as part of a guidelines determination.

In Mohamed v. Jeppesen Data Plan the Ninth Circuit reversed a Northern District of California decision upholding the Bush/Obama administrations’ use of extraordinary rendition. Extraordinary rendition is the transportation of individuals from one country to another often for the purpose of torture or to avoid the requirements of extradition treaties.

In Jeppesen five people who were abducted and transported to foreign jails run either by the CIA or foreign governments are suing a CIA contractor for its part in arranging transportation for the five. They claim that they suffered injuries in the form of torture in the foreign jails.

Upon the government’s request the Ninth Circuit has agreed to rehear the matter en banc. A panel of eleven judges will rehear the matter. Six of the twenty-seven judges on the Circuit, including Jay Bybee who while working for the Bush administration wrote a memo supporting extraordinary rendition recused themselves from the vote. A majority of the remainder voted for the en banc hearing. The government claims that if the suit proceeds important government secrets will exposed. The original panel found that since the subject of the suit is not a state secret entered into between the parties the state secret privilege did not apply. But the matter will be reconsidered in the en banc proceedings.

Last May the Ninth Circuit ruled that it was not a violation of Charles Byrd’s civil rights to be searched by a female sheriff’s deputy during a pretrial detention at Maricopa County (Phoenix) Durango jail. Apparently the Court is now having second thoughts because a majority of the judges on the Ninth Circuit voted to grant an en banc hearing where eleven of the judges will reconsider the issue.

During a search of his housing area in the jail for contraband, Byrd was ordered to strip to his underwear. Then a female cadet was ordered to search him including his groin area through his underwear even though male officers were nearby and could have performed the search. The opinion states:

When it was Byrd’s turn, the officers ordered Byrd to walk
over to the cadets, stand facing away from them, raise his
arms above his head, and spread his legs. O’Connell
approached Byrd from behind and conducted the search as
follows: She ran her hands across the waistband of Byrd’s
boxer shorts and pulled the waistband out a few inches to
check for anything hidden or taped inside; she did not look
into his boxer shorts. She lightly frisked over his boxer shorts
and down the outside of his thigh, stopping at the bottom of
the shorts. Through the boxer shorts, O’Connell moved
Byrd’s scrotum and penis with the back of her hand in order
to frisk his groin, applying light pressure to feel for contraband.
She then placed her hand at the bottom of his buttocks,
ran it upward over his boxers, and separated the cheeks to
search for any contraband taped, placed, or hidden inside

The original Ninth Circuit panel stated:

We are troubled by the overall circumstances
of the search in question. The scope of the search was
invasive in that it involved contact with Byrd’s genital region,
albeit through his boxer shorts. The embarrassment inherent
in such a pat down and partial strip search was amplified by
several factors: the cross-gender aspect; the fact that it took
place in the presence of many officers and cadets, one third
of whom were female; and that it took place in the presence
of a person with a hand-held camera, notwithstanding the fact
that the record does not give rise to the inference that Byrd’s
search was recorded.

But it found that the search did not violate the Fourth or the Fourteenth Amendments to the Constitution. It found that the search was done for a legitimate security need of the jail and it was done pursuant to jail regulations limiting the cross gender physical connection. Therefore it complied with the reasonableness requirement of the Fourth Amendment.

Judge Fernandez dissented from the panel’s finding that the search complied with the Fourth Amendment’s reasonableness requirement. While he admitted that cross gender searches might in some circumstances be necessary, he found no emergency or particular need for a cross gender search in this case and without an emergency he stated the reasonableness requirement was not met.

Now the Ninth Circuit will have a chance to review and reconsider its decision.