Criminal Law Newsletter July 2016
The following is a compendium of news reports over the past month that may be of interest to our AG offices who are involved with criminal law issues. Neither the National Association of Attorneys General nor the National Association of Attorneys General Training & Research Institute expresses a view as to the accuracy of news accounts, nor as to the positions expounded by the authors of the hyperlinked articles.
Among 90 new laws taking effect in Kentucky are those that allow state courts to permanently seal the criminal records of low-level felons (HB 40); criminalize the use of jail booking photographs for profit (HB 132); and make it a felony to participate in dog fights or to own, possess, breed, train, sell, or transfer dogs for that purpose (HB 428). The level of felony for dog fight-related animal cruelty would permit a defendant to seek expungement under HB 40 at the conclusion of his or her sentence.
Missouri’s governor signed into law seven bills, including legislation that updated the state’s use-of-force statute to comply with U.S. Supreme Court precedent in Tennessee v. Garner, 471 U.S. 1 (1985) (HB 2332); and a bill that eases the path for defendants who have completed their sentences—including restitution—and have become law abiding citizens to expunge their criminal records (SB 588).
North Carolina has passed a law, House Bill 972, that blocks the release of recordings from body cameras on law enforcement with limited exceptions. The state’s attorney general, Roy Cooper, has criticized the law as shielding footage that should be treated as a public record unless the rights of crime victims or the needs of an ongoing investigation suggest it should be kept private.
Sen. John Cornyn has introduced legislation that would make killing a law enforcement officer a death penalty-eligible federal crime. The “Back the Blue Act of 2016” (S 3184) would apply to murders of federal judges, law enforcement officers, and public safety officers and would carry a 30-year mandatory minimum sentence.
Congresswoman Jackie Speier has introduced a bill that would make so-called “revenge porn” a federal crimes. The “Internet Privacy Protection Act” would criminalize sharing nude images without the consent of their subjects—whether former paramours, celebrities, or people in nursing homes. The federal law would follow the 34 states that have introduced similar laws. (Discussion draft of bill here.)
The Texas Bar is offering its 2016 Advanced Criminal Law Course in Houston (Sept. 7-9, 2016) and San Antonio (Sept. 14-16, 2016). Attendees will receive 24 hours of CLE credit and can also register to view the training via video.
The California Bar will stream a one-hour Webinar on July 27, 2016, called “Litigating Confessions, Admissions and Statements, Part I” (Part II is scheduled for August 3, 2016).
The National District Attorneys Association will present “Investigating and Prosecuting Drug Cases” from October 18-21, 2016, in New Orleans.
At least two police departments in southern Indiana are now suspending their body camera programs because new legislation, HB 1019, will result in costly digital storage bills and expensive image-altering software that the departments cannot afford. The bills require all footage to be maintained for 190 days and for private information—like identities of minors and rape victims—to be obscured. The bill’s sponsor said he was surprised that the programs were being dropped and added that his bill had been supported by the Indiana Sheriffs’ Association and the Indiana Association of Chiefs of Police.
A new study by a professor of economics at Harvard concludes that black men and women or more likely to be subject to some kinds of force after being stopped by police, but actually less likely to be shot by the police than whites. In Houston, for example, black suspects were about 20 percent less likely to be shot by police than white suspects in situations involving suspects who were later charged with serious offenses.
In the Courts
Eighteen states have filed an amicus brief in District of Columbia v. Wesby, a case presenting important questions about qualified immunity for law enforcement officers. The defendants in Wesby were two police officers in Washington, D.C.. who were sued after they arrested suspects for trespassing in a vacant home at 3:00 AM after police confirmed that none of the suspects had permission to be in the home. Utah Attorney General Sean Reyes, whose office is primarily responsible for the brief, said that the D.C. Circuit “misapply[ied] the doctrine of qualified immunity” by allowing the arrestees’ civil case against the officers to go forward, which resulted in a nearly $1 million judgment for which the officers are personally liable.
A federal judge in New York has suppressed evidence from a stingray, a device that mimics a cell tower to communicate with specified phones to determine their location. Judge William H. Pauley concluded that the use of a stingray without a warrant violated the rights of a defendant charged with narcotics trafficking. The stingray had been used to locate the defendant, who then consented to a search of an apartment where officers found narcotics, three digital scales, empty zip-lock bags, and other paraphernalia in the defendant’s bedroom.
Other News of Interest
A lengthy piece in the New York Times Magazine discusses problems with narcotics field tests that yield false positives. While the tests are not admissible at trial in nearly every court in the United States, many jurisdictions rely upon them as proof sufficient to support a guilty plea. The article discusses the case of one woman who entered a guilty plea to felony drug charges based on what was later determined to be a false positive test on substances that were found in her vehicle, and the decision by the Harris County (Texas) District Attorney’s Office to seek out her—and similarly situated others—to allow them to seek exoneration.
East Baton Rouge District Attorney Hillar Moore has recused himself from the investigation of the shooting death of Alton Sterling, a black man who was killed by police officers. While noting that his office was prepared to act, Louisiana Attorney General Jeff Landry will await the outcome of a federal investigation—to which his office will not have access—into the killing.
In Chicago, around 2,100 people have been shot so far this year—about 700 more than at this time in 2015. Of those, at least 344 (102 more than last year) victims were killed. Notably, Chicago had the largest number of homicides of any U.S. city last year, with 2,900 shootings and 468 murders—which was said to be a significant increase from the gun violence it experienced in 2014.
Amie Ely is the Editor of Criminal Law Newsletter and may be reached at 202-326-6041. The Criminal Law Newsletter is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail email@example.com.