CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

November 6, 2011

POLICE POWERS PUT IN CHECK

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 3:30 pm

Recording Police Misconduct Protected by First Amendment

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Simon Glik was, and remains, a good citizen. He understands right from wrong no matter who the author of the wrongful action may be. So what he did on the evening of October 1, 2007 was a natural response of a good citizen. As he was walking past the Boston Common, he saw three of Boston’s finest arresting a young man. Moments later he heard a bystander exclaim, “you are hurting him, stop!” Glik, who was only ten feet away from the arresting officers, was concerned enough that the police were using “excessive force,” he began filming the incident on his cell phone.

The officers quite naturally did not appreciate a good citizen recording their questionable conduct. Once they got the young man in handcuffs, one of the officers turned to Glik, saying: “I think you’ve taken enough pictures.” Glik replied: “I am recording this. I saw you punch him.” One of the officers quickly passed the threshold of annoyance and escalated the confrontation with Glik into full-blown abuse of police power. He asked Glik if the cell phone recorded audio. Glik said that it did at which time the officer placed him in handcuffs. The officer informed Glik that he was being arrested for “unlawful audio recording” in violation of Massachusetts’ wiretap statute. After Glik was taken to the South Boston police station, the police there in the course of booking him took his “cell phone and a computer flash drive and held them as evidence.”

Boston police are apparently oblivious to having their misconduct “caught on camera.” Just last year a woman videotaped officers roughing up a 16-year-old teenager. The video captured police hovering around the teen as he lay on the ground while one of the officers punched him (here and here and here). You would think the Boston police would have learned something from the Glik, but apparently they didn’t.

The Boston police managed to get Glik charged not only with a violation of the wiretap statute but with disturbing the peace and aiding in the escape of a prisoner. The First Circuit Court of Appeal reported that the district attorney’s office voluntarily dismissed the aiding in escape of a prisoner charge which was followed by a February 2008 decision by the “Boston Municipal Court” dismissing the other two charges. The state court judge, as cited by the First Circuit, “noted that the fact that the officers were unhappy they were being recorded during an arrest does not make a lawful exercise of a First Amendment right a crime. Likewise, the court found no probable cause supporting the wiretapping charge, because the law requires a secret recording and the officers admitted the Glik had used his cell phone openly and in plain view to obtain the video and audio recording.”

(more…)

October 16, 2010

FREEDOM OF SPEECH SURVIVES YET ANOTHER ASSAULT

Filed under: Federal Crimes Lawyer — Tags: , , , , , , , — johntfloyd @ 6:37 am

Freedom of Speech: Conviction for Lying about Medal of Honor Reversed

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

No one likes a liar, a blowhard, or someone who takes credit for something he doesn’t deserve. But that description applies to most of us at one point or another in their lives. People lie about things to make themselves look better in the eyes of others; people embellish life events (the proverbial fish story about the “one that got away”); and people tend to take more credit than they deserve when they are part of a group success (like claiming credit for scoring the winning touchdown in a flag football game when they actually never caught a pass in their lives). This is the general state of human nature, a mirror reflection of those who tediously grope through mundane, sometimes insignificant, lives trying to simultaneously cope with personal fallibility and certain mortality.

But, as a class, politicians seem to be the worse about lying and taking credit for things they did not do. There are the recent cases of U.S. Democratic Senate candidate and Connecticut Attorney General Richard Blumenthal and Illinois Republican Senate candidate Mark Kirk who have overstated their military records to impress voters about their patriotism and loyalty to country. And then there are politicians like Arizona Gov. Jan Brewer (R-Ariz.) who go far beyond the realm of overstating to outright lying. “Knowing that my father died fighting the Nazi regime in Germany, that I lost him when I was 11 because of that … and then have them call me Hitler’s daughter,” Brewer told the Arizona Republic. “It hurts. It’s ugliness beyond anything I’ve ever experienced.” Problem is that Brewer’s father died in California in 1955 of lung disease.

And this is how we come to write about Xavier Alvarez who, in 2007, won a seat on Three Valley Water District Board of Directors in California. That victory was not enough to appease Alvarez’s need for public recognition. At his first board meeting, July 23, 2007, Alvarez rose to introduce himself to other board members, saying: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987 I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

The Ninth Circuit Court of Appeals this past August pointed out that “Alvarez’s misrepresentations during the 2007 water district board meeting were only the latest in a long string of fabrications. Apparently, Alvarez makes a hobby of lying about himself to make people think he is ‘a psycho from the mental ward with Rambo stories.’ The summer before his election to the water district board, a woman informed the FBI about Alvarez’s propensity for making false claims about his military past. Alvarez told her that he won the Medal of Honor for rescuing the American Ambassador during the Iranian hostage crisis, and that he had been shot in the back as he returned to the embassy to save the American flag. Alvarez reportedly told another woman that he was a Vietnam veteran helicopter pilot who had been shot down but then, with the help of his buddies, was able to get the chopper back into the sky.

(more…)

April 24, 2010

THE SUPREME COURT MAKES A DIFFICULT CHOICE

Filed under: Federal Crimes Lawyer — Tags: , , , , , — johntfloyd @ 5:48 pm

Free Speech:  Federal Law Criminalizing Depictions of Animal Cruelty Declared Unconstitutional

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There are times when the U.S. Constitution protects human activity that is repugnant and seemingly socially irredeemable. The U.S. Supreme Court recently handed down a ruling in the case of Robert J. Stevens who was convicted under a federal statute titled 18 U.S.C. Sec. 48 which prohibits the “depiction of animal cruelty.” This statute was enacted by Congress to, as the Supreme Court said, “criminalize the commercial creation, sale, or possession of certain depiction of animal cruelty.”

Robert Stevens operated a business called “Dogs of Velvet and Steel” in Pittsville, Virginia. Through an associated website, he sold videos depicting pit bulls fighting each other or attacking other animals. Two of the videos, “Japan Pit Fights” and “Pick-A-Winna: A Pit Bull Documentary,” depicted pit bull fighting in Japan (a legal activity in that country) and pit bull fights in this country from the 1960s and ‘70s. A third video sold by Stevens was titled “Catch Dogs and Country Living.” This particular video was particularly gruesome, depicting pit bulls hunting wild boar and a dog attacking a domestic farm pig.

On the basis of these three videos, Steven was indicted by a federal grand jury for violating Sec. 48. A jury convicted him on three counts and he was sentenced to three concurrent 37-month prison terms followed by three concurrent 3-year terms of supervised release. In a pretrial motion Stevens sought to have the Sec. 48 indictment against him dismissed on the basis of a “free speech” challenge under the First Amendment. The trial court denied the motion, pointing out that the depiction of animal cruelty, like child pornography and obscenity, did not enjoy First Amendment protection.

An en banc Third Circuit Court of Appeals decision, however, found Sec. 48 “facially unconstitutional” and reversed Stevens’ convictions. The appeals court essentially said that Sec. 48 was an attempt to regulate speech, adding that the court was not prepared create a “new category of unprotected speech” for cruelty to animals. The constitutional underpinnings of the Third Circuit’s rationale was that Sec. 48 did not serve any “compelling government interest” because the statute was not tailored to prevent animal cruelty, or, at the very least, was not the least restrictive means of accomplishing that objective.

(more…)

January 2, 2009

ONLINE SOLICITATION OF A MINOR

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 5:35 pm

Online Solicitation of a Minor Statutes and Free Speech

By:  Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

In 2005 the Texas Legislature enacted Article 33.021, Texas Penal Code, which prohibits “sexually explicit” communications between someone who is 17 years or older and someone who “represents himself or herself to be younger than 17 years of age.” Some respected legal bloggers have opined that such online sexually explicit “communications” may violate the First Amendment’s guarantee of free speech.

Existing case law, however, indicates this will be a difficult constitutional violation to establish. A First Amendment challenge to a criminal statute must be based on two established constitutional doctrines: overbreath and vagueness. First, “the overbreath doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002).

Although similar, the vagueness doctrine is not identical to the overbreath doctrine. A criminal statute runs afoul of the First Amendment for vagueness if it “forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.” See: Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)

The issue of whether § 33.021 violates either doctrine has not been addressed by either the Texas Court of Criminal Appeals or the federal courts. But it should be pointed out that § 33.021 is similar to 18 U.S.C. § 2422(b) which prohibits: (more…)

Powered by WordPress © 2010 John T. Floyd III Crimnal Defense Attorney : Webmaster Kevin Grey Lee