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U.S. Supreme Court Finds that a Crime-based Removal Provision is Unconstitutionally Vague

Posted By admin 2018-04-23 01:30:28

In California, defense lawyers have a legal and ethical duty to advise clients on their criminal cases’ immigration consequences. This duty is extremely important because a criminal conviction can result in deportation, even for an immigrant who has lived and worked legally in the United States for decades. In light of the Trump administration’s emphasis on the removal of “criminal aliens,” we are seeing an increase in litigation of criminal removal cases, and gaining clarity in this complex area of the law.

As a criminal defense lawyer working in Los Angeles, I represent many clients whose immigration status is threatened by their criminal charges. This is why I am passionate about following developments in criminal-removal cases, and am particularly excited about a U.S. Supreme Court case decided this week called Sessions v. Dimaya. The Dimaya case involved a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been almost wholly immune from judicial review.

The defendant, James Dimaya, challenged the constitutionality of a provision in the Immigration and Nationality Act (INA) allowing for deportation for aggravated felonies involving “crimes of violence.” An immigrant convicted of an “aggravated felony” under 8 U.S.C. §1101(a)(43) is subject to mandatory removal and is ineligible for most forms of relief from removal. The definition of “aggravated felony” incorporates by reference 18 U.S.C. §16(b). Section 16(b) defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” What constitutes a felony involving a “crime of violence” is a murky legal issue that courts have interpreted differently. The result is an unpredictable and counterintuitive body of law.

For example, Mr. Dimaya,had two residential burglary convictions, neither of which involved violence. He was charged under California statute, which defines residential burglary so broadly that it could cover dishonest door-to-door salespeople.

Is a burglary a “crime of violence” when it need not entail any actual violence? Immigration judges held that it was, and that Dimaya’s convictions fell within the “residual clause” of the definition of a violent crime. This allowed Mr. Dimaya’s deportation to move forward. Mr. Dimaya appealed, challenging the constitutionality of this “residual clause.” He argued that the provision is too vague to comport with the Due Process Clause, which guarantees that ordinary people have fair notice of the conduct a law prohibits. The 9th U.S. Circuit Court of Appeals agreed, holding that the residual clause violated due process.

The U.S. Supreme Court affirmed the 9th Circuit’s ruling that Section 16(b) is unconstitutionally vague. The Court noted that to determine whether a person’s conduct falls within the ambit of Section 16(b), “courts use a distinctive form of what we have called the categorical approach.” Rather than assessing whether the particular facts of someone’s conduct pose the substantial risk required under the statute, courts consider the overall nature of the offense, and ask “whether ‘the ordinary case’ of an offense poses the requisite risk.” Defining the “ordinary case” under the “crime of violence” provision poses vagueness and due process problems, including unpredictability and arbitrariness. Mr. Dimaya’s case is illustrative. It defies logic that Mr. Dimaya could be deported for committing a so-called “crime of violence” when the crimes he was convicted of involved no violence.

The Court’s finding that this residual clause deprives immigrants of fair notice as to what qualifies as a “crime of violence” will create more uniform, predicable law. In reaching its decision, the Court pointed to judicial disagreement over what crimes count: Some federal appeals courts have found that car burglary, statutory rape, evading arrest, residential trespass, unauthorized use of a vehicle, stalking, and firearms possessions are crimes of violence. Other appeals courts have reached opposite conclusions. This made it difficult to provide concrete legal advice to clients on how certain outcomes to their criminal cases could affect their immigration status.

Sessions v. Dimaya is beneficial to non-United States citizens who are facing felony charges in the United States for non-violent acts. Such individuals should seek representation from a criminal lawyer who is well-versed in the recent changes to criminal removal case law.

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Trump Signs Anti-Sex Trafficking Law that Endangers Free Speech and Safe Sex

Posted By admin 2018-04-23 01:27:16

President Trump recently signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), a law that aims to fight sex trafficking by reducing legal protections for online platforms. FOSTA passed the Senate in March, and it has been endorsed by the Internet Association (representing major companies like Facebook and Google), and a handful of celebrates like Amy Schumer.

As a criminal defense lawyer in Los Angeles who specializes in sex crimes, I am skeptical that this new law will seriously limit online platforms for sex trafficking. I am also troubled by FOSTA’s adverse consequences for online free speech and consensual sex work.

FOSTA carves out a new exception to Section 230 of the Communication Decency Act, which shields website operators from liability for user-generated content. Section 230 defines Internet culture as we know it: It allows websites to offer platforms for critical and controversial speech without the threat of being sued or charged criminally. FOSTA undoes these protections for online site providers. It stipulates that Section 230 does not apply to civil and criminal charges of sex trafficking, or to conduct that “promotes or facilitates prostitution.” The rule applies retroactively to sites that violate it.

FOSTA is clearly aimed at sites like Backpage.com, which are hubs for illegal sex work. The law’s reach is much broader, and will also likely deter many site operators from allowing users to post any sexual material, especially site operators who lack the legal and technical resources of huge web platforms. For instance, Craigslist removed its personals section to avoid a lawsuit before the bill was passed.

It is unclear to what extent, if any, FOSTA will strengthen existing anti-prostitution and anti-trafficking law. The Justice Department shut down Backpage and filed criminal charges against its founders last week, before FOSTA was signed. The owner of Rentboy.com, another sex work site, was sentenced to prison for promoting prostitution last year. These recent prosecutions indicate that FOSTA is not necessary for the government to successfully target the most notorious websites facilitating illegal sex work.

I do not think Congress properly weighed the supposed benefits of FOSTA against the law’s likely adverse consequences for free speech, consensual sex work, and even victims of the illegal sex trade.

The array of online services protected by Section 230, and thus hurt by FOSTA, is vast. It includes review sites, online marketplaces, discussion boards, and even news publications with comment sections. By attempting to add an additional tool to hold liable the tiny minority of those platforms whose users who facilitate illegal sex work, FOSTA does real harm to the overwhelming majority, who will inevitably be subject to censorship. Websites run by nonprofits or community groups, which have limited resources to restrict user content, would face the most risk. It is little wonder why the Electronic Frontier Foundation has called FOSTA “the most significant rollback to date of the protections for online speech in Section 230.”

Perversely, some of the discussions most likely to be censored could be those by and about victims of illegal sex trafficking. Moreover, FOSTA does not address the demand for sex trafficking, and could push sex traffickers onto the Dark Web to continue online solicitation. In these ways, FOSTA could further marginalize vulnerable workers in the illegal sex trafficking industry.
FOSTA also problematically conflates stopping sex trafficking with stopping consensual sex work, making it difficult for sex workers to screen clients or build communities through online services.

My experience working on sex crimes cases has shown me that tough laws on sex crimes do not weaken the illegal sex trafficking industry. Instead, they often further marginalize sex workers and make the industry even less safe for participants. This is not smart policy, and certainly not worth the high cost FOSTA places on online free speech.

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California Supreme Court Upholds a Troubling Arrestee DNA Collection Law

Posted By admin 2018-04-23 01:24:28

As a criminal defense attorney who practices in Los Angeles, I have successfully defended countless arrestees to stop criminal charges from being laid and, when charges exist, to secure an acquittal on all counts. The process to remove these innocent people’s DNA from California’s database is arduous and slow due to complex state rules for expungement. The California Supreme Court recently upheld the state law mandating DNA collection from arrestees. In doing so, the Court failed to properly consider the significant privacy costs this law has, especially for indigents and racial minorities.

People v. Buza involved a San Francisco man who challenged his conviction for refusing to provide a DNA sample after he was arrested. California law permits police to collect DNA from anyone arrested on suspicion of a felony. No procedural safeguards, such as a warrant or a judicial finding that there was sufficient cause for the arrest, exist. California stores arrestees’ DNA samples indefinitely, and allows DNA profiles to be searched continuously by local, state, and federal law enforcement agencies.

A lower court held that this law violates the privacy and search and seizure protections guaranteed under the California constitution. Like the U.S. Supreme Court’s 2013 opinion in Maryland v. King, the majority of the California Supreme Court in Buza accepted the government’s argument that a DNA sample is no different from a fingerprint and that the government’s interest in “identifying” an arrestee outweighs the arrestee’s right to privacy. The California Supreme Court’s decision allows the troubling DNA collection law to stand.

The California constitution enshrines the right to privacy, unlike the U.S. constitution. The Court’s reasons should have fleshed out how the unique constitutional status of the right to privacy in California impacts collection of arrestees’ DNA, rather than simply adopting the U.S. Supreme Court’s line of reasoning in King.

In my view, the California constitution bars collecting arrestees’ DNA. The constitutional right to privacy includes protecting our rights to privacy of our personal information, as well as our right to self-determination over our bodies. The majority opinion in Buza focuses on the somewhat minimal impact a cheek swab to obtain DNA has on bodily privacy, which misses the point. The state’s retention, processing, and ability to continually search individuals’ DNA samples is an incredibly serious invasion of an arrestee’s privacy. This is because, as Justice Cuellar wrote in his dissenting opinion:

A DNA sample stored by the state contains an arrestee’s entire genetic code – information that has the capacity to reveal the individual’s race, biological sex, ethnic background, familial relationships, behavioral characteristics, health status, genetic diseases, pre-disposition to certain traits, and even the propensity to engage in violent or criminal behavior.

In Buza, the defendant pleaded guilty to committing arson. The majority emphasized that its ruling is narrow and limited to defendants whose arrests were supported by probable cause. The Court wrote that someone else arrested in the future absent probable cause could have a valid as-applied challenge to the adequacy of the DNA Act’s expungement procedures, in addition to other remedies for unlawful arrest. Unfortunately, many innocent arrestees in California are indigent and cannot afford an attorney to help them apply to remove their DNA from the state database. The Court’s holding problematically ignores that most arrestees lack the resources and legal knowledge to mount such challenges, so their DNA samples will remain in the state system indefinitely.

DNA collection severely undermines people’s right to privacy on a massive scale. The state law authorizing DNA collection impacts tens of thousands of innocent Californians each year-nearly a third of 200,000-plus people arrested each year are never charged with or convicted of a felony, according to state records.

The privacy costs of a state DNA database that is designed to hold innocent people’s DNA profiles especially troubling for racial minorities. Felony arrests of African Americans disproportionately result in no charges or dropped charges, which means that innocent African Americans are disproportionately represented among the thousands of DNA profiles that the state has no legal basis for retaining. In my view, the law’s massive impact on privacy should have proved fatal under the California constitution.

Lawmakers should respond by reforming arrestee DNA collection law to at least provide for mandatory expungement in innocent cases.

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Federal Government Given Green Light to Prosecute Medical Marijuana Growers in California

Posted By admin 2018-04-23 01:19:47

As a criminal defense attorney who specializes in drug offences, I am fascinated by the conflicting state and federal laws on the use and cultivation of marijuana in California. My law firm is based on Los Angeles, a city that has long been at the forefront of efforts to reform cannabis laws. In addition, I am among a minority of defense lawyers in California who work on drug cases at both the state and federal levels. The nuances of state and federal law regarding marijuana are critical to my practice, but also the marijuana industry. A significant new decision from the Ninth Circuit provides important guidance on how courts in California will deal with federal prosecutions of marijuana cases in the Golden State.

The US Court of Appeals for the Ninth Circuit ruled in United States v. Gilmore that the federal government can prosecute cases where marijuana is grown on federal land in California. This may come as a surprise to some because marijuana is legal for both medical and recreational use in California. However, marijuana remains a Schedule I prohibited drug under federal law, and the U.S. Constitution provides that the federal government is free to enforce its laws on federal lands.

The Ninth Circuit’s decision was in the case of Russell Gilmore and Richard Hemsley, who were charged with conspiracy and growing marijuana illegally on land under control of a federal agency in El Dorado County, east of Sacramento. The Ninth Circuit in Gilmore affirmed the district court’s denial of a motion to enjoin the federal government’s prosecution.

The defendants in Gilmore tried to stop the prosecution of their case under the Consolidated Appropriations Act, which Congress passed to bar the Department of Justice from using government funds in ways that prevent states from implementing medical marijuana laws. In my view, Congress’ prohibition could reasonably be interpreted as banning or at least discouraging prosecutions of medical marijuana growers in states where marijuana is legally grown and consumed. This reading would allow states to implement local medical marijuana laws without federal interference.

However, the Ninth Circuit found in Gilmore that even if state law tolerated marijuana cultivation on public land, enforcing federal law that prohibits cultivation on federal land does not “prevent” California from otherwise implementing its medical marijuana regime. The result in Gilmore was that the defendants, who did not even know that their medical marijuana plants were on federal land, were subject to prosecution by the federal government.

The decision was an unexpected turn for the defendants, as well as some cannabis attorneys and the marijuana industry in general. The U.S. Justice Department had laid off prosecutions for medical marijuana cultivation in the Obama era, and California marijuana bloomed in the meantime.

However, the ruling was not surprising to me. In an earlier decision, United States v. McIntosh, the Ninth Circuit concluded that Congress’ prohibition applies narrowly to those specific rules of state law that authorize the use, distribution, possession or cultivation of medical marijuana. Accordingly, the Ninth Circuit’s interpretation of Congress’ prohibition is that it does not limit the U.S. government’s ability to enforce federal drug laws on federal land.

In addition, U.S. Attorney General Jeff Sessions recently rescinded Obama-era guidance that generally allowed states to implement their own marijuana laws without federal interference. The Justice Department issued a memo on marijuana enforcement in January 2018 which denounced the Obama administration’s guidance on marijuana laws as “undermining the rule of law”. The memo directed all U.S. Attorneys to use previously established prosecutorial principles to enforce federal drug laws, which, of course, reflected a tough on marijuana mentality.

The federal government’s decision to prosecute in Gilmore seems to reflect a revived interest in Washington to be tough on marijuana. The Ninth Circuit’s ruling shows that it is still important for California’s marijuana industry to closely follow federal law pertaining to cannabis, even though recreational use of cannabis is legal at the state level. Participants in California’s marijuana industry should seek advice from an attorney who specializes in both state and federal drug crimes to better understand the nuances of cannabis law.

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Skinner’s Bill Could Help the Defense Prove Police Misconduct

Posted By admin 2018-04-02 16:09:28

As an experienced criminal defense attorney practising in Los Angeles, I have won numerous cases by showing that the police acted unlawfully. A key obstacle I tackle when defending such cases is to obtain information about police officers’ prior acts of professional misconduct. Obtaining officer personnel records, which document prior misconduct, is hard-fought but could be made easier by proposed changes to California law.

A Pitchess motion is a request made by the defense in a California criminal case, such as a DUI or resisting arrest case, to access a police officer’s personnel information. Types of police misconduct that could support a Pitchess motion include excessive force, lying about events surrounding the arrest, racial profiling, and coerced confessions.

The defense files a Pitchess motion by alleging an officer’s misconduct in an affidavit to show “good cause” for disclosure of the officer’s records. A showing of ‘good cause’ exists if the affidavit sets forth both a specific factual scenario that supports allegations of officer misconduct in the defendant’s case, and reasons why the misconduct would be material to the defense case. This can be a difficult threshold for the defense to meet. Laying the factual foundation for a Pitchess motion typically demands investigatory resources, and sometimes no evidence exists to corroborate a defendant’s truthful allegations of police misconduct.

If a court grants the Pitchess motion, the information provided to the defense will include the officer’s prior incidents of use of force, allegations of excessive force, citizen complaints, and information gathered during the officer’s pre-employment background investigation.

Thankfully, legislative change could be on the horizon in California and make it easier for the defense to access officer personnel files. State Sen. Nancy Skinner (D-Berkeley) plans to introduce a bill next week that would require the disclosure of investigations of serious uses of force, including police shootings. Currently, the public is completely shut out of the disciplinary process. Besides opening access to use of force investigations, Skinner’s proposed bill would also require the disclosure of confirmed cases of sexual assault and lying while on duty. Public disclosure of police conduct would likely make it easier for defense counsel to obtain some information sought in a Pitchess motion, as well as information that would help lay the factual foundation for a successful Pitchess motion.

California currently has some of the most stringent laws in the United States against disclosing police personnel records. Most information about discipline is presumed confidential, even when complaints are determined to be valid.

The proposed legislative changes would benefit members of the public beyond defendants in criminal cases. Under current law, the Sacramento Police Department investigation of its officers for the fatal shooting of Stephon Clark earlier this month will not become public except through any potential criminal prosecution of the officers or civil litigation against the city. Mr. Clark, a 22-year-old unarmed black man, was fatally shot earlier this month by Sacramento police in his grandmother’s backyard. Discrepancies between the shooting officers’ version of events and a family-funded autopsy of Mr. Clark highlight the importance of the public serving as a watchdog on police misconduct. The autopsy found on Friday that Mr. Clark was shot eight times in his back, contradicting the shooting officers’ assertions that Mr. Clark was advancing toward them as a threat. Seven of those shots were of fatal capacity, the autopsy showed.

Making investigations of police misconduct transparent to the public will help the defense and public check unlawful police acts, which unfortunately are still common today in criminal cases and the broader community.

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