The Legislative Response to Mass Police Surveillance, Stephen Rushin, 79 Brooklyn L. Rev. 1 (2014). Abstract:
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New law review article: The Legislative Response to Mass Police Surveillance
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New Law Review Article: Probable Cause on A Leash (Florida v. Harris)
Probable Cause on a Leash, Taylor Phipps, 23 B.U. Pub. Int. L.J. 57 (2014). Abstract:
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In Sex Abuse Case, Eighth Circuit Affirms Exclusion of Prior Sex Abuse Conviction to Avoid Confusion
The headline of this post may be misleading, since it implies a rare ruling excluding a defendant’s prior conviction similar to the charge at issue. In United States v. Patrick Brown Thunder, issued on March 12, 2014 (published), however, at issue was not a prior conviction of the defendant, but a prior conviction of someone [...]The post In Sex Abuse Case, Eighth Circuit Affirms Exclusion of Prior Sex Abuse Conviction to Avoid Confusion appeared first on Murray Law LLC.
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Historyapolis Publishes Blog Entry about Lena Olive Smith
The fabulous Historyapolis Project, run by Kirsten Delagard, Scholar-in-Residence in the Department of History at Augsburg College, is running a series of blog entries this women’s history month showcasing notable Minneapolis women. On March 13, 2014, the Project ran this entry by JaneAnne Murray on civil rights lawyer and activist, Lena Olive Smith. The post Historyapolis Publishes Blog Entry about Lena Olive Smith appeared first on Murray Law LLC.
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Eighth Circuit Affirms Sentences Based on Uncontested Facts in the PSR
How must a defendant effectively object to facts in the presentence report (PSR)? With “specificity and clarity,” the Eighth Circuit repeats in United States v. Pepper, issued on March 20, 2014 (published), so as “to put the Government on notice of the challenged facts.” In other words, it is not enough for the defense lawyer [...]The post Eighth Circuit Affirms Sentences Based on Uncontested Facts in the PSR appeared first on Murray Law LLC.
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D.D.C.: Govt still hasn’t complied with the D.D.C.’s requirements for electronic searches; do it again
The government still hasn’t complied with the D.D.C.’s requirements for electronic searches. Do it again. In re Odys Loox Plus Tablet Serial Number 4707213703415 in Custody of United States Postal Inspection Service, 2014 U.S. Dist. LEXIS 37110 (D.D.C. March 20, 2014), a sequal to In re Search of Black iPhone (posted here):
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D.C.Cir.: Common authority over premises did not extend to a shoebox next to bed in defendant's separate bedroom
The cotenant consenter lacked common authority to consent to a search of a shoebox that was next to defendant’s separate bed. She stated to the police that it was his stuff in the room, and that put the police on notice she lacked common authority. United States v. Peyton, 2014 U.S. App. LEXIS 5296 (D.C. Cir. March 21, 2014):
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The Rise of Automated Policing
Anil Kalhan, Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio St. L.J. 1105 (2013).Jennifer ChaconScholars analyzing immigration enforcement often do so in a way that treats the matter as separate from more general trends and developments in law enforcement. In fact, however, many of the trends in immigration enforcement are mutually reinforcing of, and in evidence throughout, various law enforcement domains. Anil Kalhan neatly captures that reality in his article Immigration Policing and [...]
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Trolled By The Big Soapbox
My pal, Venkat Balasubramani, twitted me a link to an article that was on a subject that interested me, disruption and non-lawyer ownership of law firms. It was written by Sarah Reed, who identifies herself as the general counsel of a venture capital firm, CRV, which would give it some superficial credibility. But more importantly, […]
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OKC Lawyer Accused of Sex Tourism Denies Allegations
Last fall, we brought you the story of an Oklahoma City criminal defense lawyer and an Ada bail bondsman who were accused of taking international trips for sex with minors. The FBI began investigating the men after an informant told the agency that the two had traveled to Peru on multiple occasions–as frequently as four to […]
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WaPo: Volokh notes the recent D.D.C. decisions on electronic searches in the last two weeks
WaPo: Volokh: Judge denies warrant application because he thinks the government doesn’t need a warrant by Orin Kerr:
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TSA’s Billion Dollar Scam
The New York Times reports that the Government Accountability Office has taken issue with the Transportation Safety Administration for squandering $1 billion on voodoo. Like the rest of us, airport security screeners like to think they can read body language. The Transportation Security Administration has spent some $1 billion training thousands of “behavior detection officers” […]
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HuffPo: Jimmy Carter Is Pretty Sure The NSA Is Spying On His Email
HuffPo: Jimmy Carter Is Pretty Sure The NSA Is Spying On His Email by Mollie Reilly:
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Today's Teleforum on the Smarter Sentencing Act
The Smarter Sentencing Act, co-sponsored by Sens. Dick Durbin (D-IL) and Mike Lee (R-UT) would substantially reduce the mandatory minimum sentences that must be given defendants convicted of dealing in Schedule I drugs -- everything from pot to methamphetamine and...
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Jacksonville police officer arrested in Clay County on domestic assault charges
A Jacksonville police officer faces three misdemeanor charges, after being accused of assaulting his wife and her father during an argument this month. Clay County police were called to his home after the officer was allegedly threatening his wife and fighting with his father-in-law, according to a report in the Florida Times-Union. He is charged with two counts of domestic assault, a second-degree misdemeanor punishable by up to 60 days in county jail and a $500 fine. He is also charged with resisting an officer without violence, a first-degree misdemeanor with a maximum penalty of a year in the county jail and a $1,000 fine.
The actual charges do not reflect the headlines and the takeaway from the media coverage on the Clay County arrest. In the police report, the officer's wife claims he has pointed a gun at her in the past, and those details dominate the story. But he is not charged with any crime that involves a firearm. If he was, that would be a felony and he'd be looking at the potential of serving time in state prison. But the state would have difficulty trying to prove a case that the wife was threatened with a gun, but didn't call police. Police did take the officer's gun into evidence, the newspaper reported, so technically there could be the possibility of upgrading the charges in this Clay County Domestic Violence Case, though that charge appears to be more difficult to prove beyond a reasonable doubt. Either way, the arrest itself in this Clay County Domestic Assault Case will likely result in at least a placement on desk duty while the case resolves itself and could lead to a suspension or even termination.
Though they are often used interchangeably, there is a difference between assault and battery in Clay County Domestic Assault Cases. An assault is threatening someone - yelling at the person, raising a fist - anything that would indicate there is a serious possibility of violence. Battery is actual physical contact. So in this Clay County Domestic Assault case, the officer is accused of charging at his wife and then throwing punches at his father-in-law once the father-in-law stepped in and brought him to the ground, according to the newspaper report. But the punches never connected, hence the assault charges instead of battery. Domestic battery is a first-degree misdemeanor, like the resisting charge, so it would have opened the officer up to more time in the county jail and a larger fine, but would remain a misdemeanor. Clay County Domestic Violence Cases can be difficult for the state, especially because in some instances the alleged victims end up not wanting to cooperate with police once the dust has settled. The charges, though, are very serious and our Clay County Domestic Violence Attorney can fully investigate the case against you or your loved one to help you determine the best course of action going forward.
If you or a loved one needs a criminal defense attorney in Jacksonville or the surrounding area, call The Mussallem Law Firm at (904) 365-5200 for a FREE CONSULTATION. Our Clay County Domestic Assault Attorney, Victoria "Tori" Mussallem, is available 24 hours a day, 7 days a week.
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Lawyer Arrested for Allegedly Submitting False Loan Application and ID Theft
Jeffrey Witt, St. Charles, Missouri, was arrested on an indictment charging him with falsifying documents to obtain a line of credit on a St. Louis County, Missouri, home which did not belong to him, as well as aggravated identity theft. According to the indictment issued by the federal grand jury, during September 2013, Witt, an […]
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Politix: Americans Need to Know What the Cia Did in Their Name. Will Congress Make it Happen?
Politix: Americans Need to Know What the CIA Did in Their Name. Will Congress Make it Happen? Op-ed by Derek Khanna (http://politix.topix.com/news/11115-americans-need-to-know-what-the-cia-did-in-their-name-will-congress-make-it-happen):
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"The Good Wife": How Not to Handle a Major Character's Departure
The creators of "The Good Wife" decided that the best way to handle Will Gardner's decision to leave the show was to have him killed by a client at the courthouse. Here's their explanation. Poor choice.
Even worse, now the show will...
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Swinging, Interception and Unauthorized Access
--> This post examines an opinion a federal judge in Alabama issued in a civil suit: Michael and Tanya Bruce sued Joshua McDonald, James R. McKoon, Jr., and Melissa B. Thomas and her law firm, asserting interception, disclosure, and use of electronic communications in violation of the Wiretap Act of 1968, as amended, 18 U.S. Code § 2511.” Bruce v. MacDonald, 2014 WL 931522 (U.S. District Court for the Middle District of Alabama 2014). In this opinion, the judge is ruling “on the parties various cross-motions for summary judgment”. Bruce v. MacDonald, supra. As Wikipedia explains, in U.S. legal practice, summary judgment can be awarded by the court before trial, effectively holding that no trial will be necessary. Issuance of summary judgment can be based only upon the court's finding that: there are no disputes of ‘material’ fact requiring a trial to resolve, andin applying the law to the undisputed facts, one party is clearly entitled to judgment. A party seeking summary judgment (or making any other motion) is called the `moving party’. A `material fact’ is one which, depending upon what the factfinder believes `really happened,’ could lead to judgment in favor of one party, rather than the other. Sometimes, as in this case, both sides, i.e., the defendants and the plaintiffs move for summary judgment . . . which is what this judge is ruling on. According to the judge, this is how the suit arose: At issue in this case is McDonald's access to three electronic accounts: Mrs. Bruce's individual email account hosted by Yahoo.com; second, the joint email account the Bruces shared; and third, a joint account the Bruces shared on a website called `Adult Friend Finder’ (or `AFF’). McDonald first gained access to Mrs. Bruce's individual Yahoo account. There is some dispute about how, exactly, [he] did so. The record contains evidence that Mrs. Bruce may have logged into her individual account on McDonald's computer and failed to log out; or that McDonald may have observed her enter her password for that account; or that Mrs. Bruce may have given McDonald the login information for that account on one occasion for the limited purpose of printing tickets for a joint activity with their child. In any event, Mr. McDonald has acknowledged he had no permission to read the emails in Mrs. Bruce's individual account, with the possible exception of printing the tickets. . . . McDonald later also gained access to the joint Yahoo account and the AFF account. He located an email from Mr. Bruce to Mrs. Bruce, in her individual account, which contained their joint AFF login information. He used that information to access private messages in the AFF system (which functions in a similar way as email, but only among AFF users). . . . The record does not clearly indicate how McDonald gained access to the joint Yahoo account. However, that he accessed all three accounts is clear because he printed out hundreds of pages of emails and documents from the three accounts. The documents McDonald obtained and printed relate to mostly the Bruces', within their committed relationship, engaging in sexual conduct with other individuals, commonly referred to as `swinging.’ The documents and photos are very sexually explicit. A packet of the documents was anonymously sent to the Alabama Board of Pharmacy and allegedly played a role in adverse action regarding Mrs. Bruce's pharmacist's license. . . . The Bruces believe McDonald sent the packet and also that information about their sexual lifestyle was disclosed to other individuals, including McDonald's co-workers and current wife; the defendants dispute this. It is, however, undisputed that McDonald provided copies of all the documents to his attorney in the child-custody case, Melissa B. Thomas, who is the principal of the Thomas law firm. Thomas, in turn, engaged another attorney, James R. McKoon, Jr., as co-counsel. The attorneys concluded they could lawfully use that evidence in the custody case. Thomas produced the documents to Mrs. Bruce's counsel in discovery in the state matter. The parties obtained a protective order from the state-court judge governing the use of the documents. Thomas marked and referred to some of the documents as exhibits at Mrs. Bruce's deposition in that case and alluded to the information contained in them in argument to the state judge; she may have also disclosed them to the mediator during the course of mediation. The parties reached a new agreement as to custody. This agreement resulted in increased custody time for McDonald, specific limitations on Mrs. Bruce's sexual activities, and other terms benefitting McDonald. The Bruces then brought this lawsuit, alleging that McDonald illegally intercepted their electronic communications and that McDonald, McKoon, and Thomas and her law firm illegally disclosed and used those communications. All parties seek summary judgment on all the claims. Bruce v. MacDonald, supra. The judge then outlined the applicable law: In 1986, Congress amended the Wiretap Act of 1968 to protect electronic communications as well as traditional wire communications (such as telephone calls).As amended by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99–508, 100 Stat. 1848 (1986), the Wiretap Act now imposes criminal and civil liability on any person who `intentionally intercepts . . . any . . . electronic communication.’ 18 U.S. Code § 2511(1)(a). The Wiretap Act also imposes liability on any person who `intentionally discloses,’ 18 U.S. Code § 2511(1)(c), or `intentionally uses,’ 18 U.S. Code § 2511(1)(d), the contents of an electronic communication `knowing or having reason to know’ the communication was intercepted in violation the Wiretap Act. Thus, `interception’ is a necessary element for each type of violation. Bruce v. MacDonald, supra. And he explained that the Bruces have alleged violations of all three sections. In essence, they argue that McDonald `intercepted’ their personal emails and AFF messages by logging into the three accounts without their authorization. The defendants all argue that there has been no interception within the meaning of the Wiretap Act. Bruce v. MacDonald, supra. As the judge noted, the Wiretap Act defines `intercept’ broadly, as `the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.’ 18 U.S. Code § 2510(4). However, the [U.S. Court of Appeals for the 11th Circuit] has adopted a `narrow reading’ of `interception’ in the context of electronic communications. U.S. v. Steiger, 318 F.3d 1039, 1050 (11th Cir. 2003). In Steiger, the appellate court concluded that to constitute an interception, the electronic communications must have been acquired `contemporaneously with their transmission.’ Id. at 1049. See also id. at 1048–49 (`we hold that a contemporaneous interception-i.e., an acquisition during “flight” -- is required to implicate the Wiretap Act with respect to electronic communications’). Bruce v. MacDonald, supra. In the Steiger case, which was a criminal prosecution, the court rejected a motion to suppress certain documents and information a hacker had obtained without permission from the defendant's computer and subsequently had provided to the police. Applying the `contemporaneous’ test to those facts, the court found no interception: `In this case, there is nothing to suggest that any of the information provided [by the hacker] was obtained through contemporaneous acquisition of electronic communications while in flight. Rather, the evidence shows that the source used a Trojan Horse virus that enabled him to access and download information stored on Steiger's personal computer. This conduct, while possibly tortious, does not constitute an interception of electronic communications in violation of the Wiretap Act.’ Bruce v. MacDonald, supra. Here, the Bruces argued that Steiger is factually distinguishable from the instant case. In this case, they note, McDonald was not accessing files stored on the Bruces' computers, but was repeatedly accessing their web-based email and AFF accounts over an extended period of time. Bruce v. MacDonald, supra. In making this argument, the Bruces relied on the U.S. Court of Appeals for the 7th Circuit’s decision in U.S. v. Szymuszkiewicz, 622 F.3d 701 (2010). Bruce v. MacDonald, supra. In Szymuszkiewicz, the 7th Circuit upheld the defendant’s conviction under the `interception’ provision of the Wiretap Act for setting up a process whereby the defendant's supervisor's emails were automatically forwarded to the defendant's email account for an extended period of time. The defendant had argued there was no `interception’ because the forwarding happened only after each email arrived in the supervisor's inbox. The court found, first, that the jury could have concluded, as a factual matter, that this was not so; indeed, the evidence indicated that the email server, rather than the supervisor's computer, duplicated each message. But the court went on to find that even if the supervisor's computer did copy each message, that would not change the outcome of the case: `Either the server in Kansas City or [the supervisor's] computer made copies of the messages for Szymuszkiewicz within a second of each message's arrival and assembly; if both Szymuszkiewicz and [the supervisor] were sitting at their computers at the same time, they would have received each message with no more than an eyeblink in between. That's contemporaneous by any standard.’ Bruce v. MacDonald, supra (quoting U.S. v.Szymuszkiewicz, supra). The court also noted that the Bruces claimed that because McDonald had access to the email accounts on a continuous basis, he could have viewed any given message sent or received by those accounts as soon as it hit the inbox (or the sentmail folder). Thus, hypothetically, `if both [Mr. McDonald] and [Mrs. Bruce] were sitting at their computers at the same time, they would have received each message with no more than an eyeblink in between.’ . . But this argument ignores the critical distinction: in Szymuszkiewicz, the evidence showed each email actually was forwarded to the defendant's account contemporaneously with its transmission. In this case, the Bruces argue that McDonald had access to the accounts and could have accessed some particular email contemporaneously with transmission. But there is no evidence in the record to indicate that he ever actually did so. . . . Bruce v. MacDonald, supra (emphasis in the original). The judge noted that [t]his is not to say that mere access, without some duplication device, could never amount to interception. If the Bruces could establish that McDonald had actually acquired even one message contemporaneously with its transmission, they might be able to show interception. That question is not before the court because there is simply no such evidence in this case.`Rather, the evidence indicates that [McDonald] periodically accessed [the] accounts and printed e-mails [and other documents] after they had been delivered.’ Pure Power Boot Camp, 587 F.Supp.2d 548 (U.S. District Court for the Southern District of New York 2008). That is insufficient to establish an interception. Bruce v. MacDonald, supra. The judge therefore ordered that “summary judgment will be entered in favor of McDonald, AMcKoon, and Thomas and her law firm and against the Bruces.” Bruce v. MacDonald, supra. That effectively ends the lawsuit, unless the Bruces appeal the judge’s decision to the 11th Circuit Court of Appeals . . . and win.
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How do You Fight a DWI Second Offense in Virginia?
If you’re facing a charge of DWI second offense, you need to give me a call for a free case strategy session so we can talk about the specifics of your case and begin your defense together. In general, a defense for a DWI second offense is very similar to a first offense case. The […]
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