A Second Amendment Case Ready for Cert?

by · Mar 25, 2021 9:30 pm

Kent noted yesterday a split Ninth Circuit en banc decision that upholds Hawaii’s very strict gun control law.  The percolating Second Amendment question out in the country is whether and under what conditions a law-abiding citizen can legally carry a gun for self-defense outside his home.  The Hawaii case might very well prove to be grist for that mill, but there is another case in the pipeline that might get there first.  My friend Prof. Josh Blackman has the story.

Continue reading . . .

Courts Must Consider an Arrestee’s Ability to Pay Money Bail in California

by · Mar 25, 2021 4:10 pm

This morning the California Supreme Court held that trial courts must consider an arrestee’s ability to pay when setting the amount of money bail in the case of In re Humphrey (S247278).

Humphrey, a repeat offender, was charged with robbery and burglary. Bail was initially set at $600,000, then later reduced to $350,000.  Humphrey’s request for pretrial release on his own recognizance (“OR”) without financial conditions was denied because the trial court found he was a danger to public safety and a “flight risk.”  Humphrey was unable to post bail and remained detained pretrial.  Humphrey filed a petition for a writ of habeas corpus, arguing that the trial court’s failure to inquire into his financial circumstances and to not consider less restrictive alternatives to money bail was a violation of his constitutional rights.  The California Attorney General initially opposed Humphrey’s position.  However, the AG later changed his position and agreed that Humphrey was entitled to a new bail hearing stating that he would “no longer defend ‘any application of the bail law that does not take into consideration a person’s ability to pay, or alternative methods of ensuring a person’s appearance at trial.'”    CJLF filed a brief (found here) arguing that public and victim safety, and whether the arrestee is considered a “flight risk,” are the primary considerations to be evaluated by a court when initially deciding whether an arrestee is eligible for pretrial release, and, if eligible, what type of pretrial release is appropriate under the circumstances—money bail or release on OR without financial conditions.  It was CJLF’s position that to release Humphrey on an amount that he could afford, or on other less restrictive alternatives, would essentially permit his release on his OR, which is contrary to the trial court’s findings regarding his danger to victim and public safety. Continue reading . . .

Covid-19 and Economic Hardship are not Responsible for Spike in Murder Rates

by · Mar 25, 2021 1:17 pm

A blog post by Hans Bader of Liberty Unyielding presents a comparison between the United States and Latin America in response to the notion that the rise in homicide rates in 2020 is a result of the pandemic and citizens being desperate for means to support themselves. Bader notes, “In reality, murder rates fell in much of the world during the pandemic. People’s situation was far more desperate in Latin America, where the pandemic left many people without adequate food, yet murder did not increase in many Latin American nations.”  While in the United States homicides greatly increased in many major cities.

Continue reading . . .

Newsom Appoints New California Attorney General

by · Mar 25, 2021 10:01 am

California Governor Gavin Newsom has filled the Attorney General’s seat left open after Xavier Becerra’s confirmation as federal HHS Secretary with Oakland Assemblyman Rob Bonta.  According to Wikipedia, Bonta joined a San Francisco law firm after graduating from Yale Law School and worked with the ACLU to develop anti-racial profiling restrictions for the California Highway Patrol.  He also served as a Deputy City Attorney of San Francisco and spent one year on the Alameda City Council before his election to the state Assembly.   Paul Rogers and Robert Salonga of the Mercury News report that Assemblyman Bonta co-authored SB 10, a bill signed in 2018 by Governor Jerry Brown which abolished cash bail in California.  State voters adopted a referendum to reject that law at the 2020 general election by over 56%.  In announcing Bonta’s appointment Governor Newsom told reporters, “Rob has become a national leader in the fight to repair our justice system and defend the rights of every Californian.”  What this means with regard protecting the public from criminals, which is supposed to be the Attorney General’s job, is anybody’s guess.

Supreme Court Holds Shooting a Fleeing Suspect is a “Seizure”

by · Mar 25, 2021 8:31 am

The U.S. Supreme Court held today that a police officer “seizes” a fleeing suspect, within the meaning of the Fourth Amendment, by shooting her, even if the officer never gains actual control and the suspect escapes.

The Court split 5-3* in the case of Torres v. Madrid, No. 19-292.

The opinion of the Court by Chief Justice Roberts applied the common law definition of when a person has been “arrested” to the Fourth Amendment question of when the protection against unreasonable seizures comes into play when the claimed seizure is of the person. The status of arrest had a variety of legal consequences, including liability of the officer for escape or a tort suit for false imprisonment. Continue reading . . .

CA Senate Rejects Bill Cracking Down on Fentanyl Dealers

by · Mar 24, 2021 11:38 am

Yesterday Senator Melissa Melendez presented Senate Bill 350 to the California Senate Public Safety Committee in hopes it would be met with support. However, that was not the case for the majority of democrats on the committee. As defined in the article written yesterday by Katy Grimes of the California Globe, “[This bill] would require a court to issue an advisory to individuals convicted of selling or distributing controlled substances, to serve as a warning that if their action result in another person’s death, they could be charged with murder.” The goal of this bill in California is to address the high rise in Fentanyl-related deaths by holding the drug dealers accountable to the same degree the People v. Watson holds a drunk driver responsible under ‘implied malice’ (see last week’s blog post for more detail). 

Continue reading . . .

Deported Child Rapists Caught at Border

by · Mar 24, 2021 11:16 am

The U.S. Customs and Border Patrol reports that two Honduran nationals with prior convictions for sexually assaulting children in the U.S. have been caught trying to reenter the country.  Jose Moreno was apprehended with a group of eight trying to cross the border near Mission, Texas last Friday.  Moreno had been deported after serving nine years for raping a child in New York in 2007.   A day earlier Jonathan Rosales-Rivera was caught crossing the Texas border.  Rivera was deported after being convicted of second-degree sexual assault on a child in Wisconsin.  With the current surge at the southern border, which has forced agents from patrolling the border and apprehending illegals to processing and servicing the thousands who are now turning themselves in, some are estimating that more than half of those crossing the southern border are not being caught or identified.   How many are convicted criminals like Moreno and Rivera?

USCA9 Upholds Hawai’i Gun Law

by · Mar 24, 2021 10:46 am

The U.S. Court of Appeals for the Ninth Circuit today rejected a challenge to Hawai’i “open carry” law in a 7-4 decision. Judge Bybee writes for the court majority, “After careful review of the history of early English and American regulation of carrying arms openly in the public square, we conclude that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment.” Continue reading . . .

The Legalization of Marijuana and Its Link to Psychosis

by · Mar 24, 2021 5:11 am

A growing body of scientific studies suggest that marijuana use increases the risk of developing psychotic illnesses such as schizophrenia.  There is an ongoing debate among scientists regarding the exact nature of the risk, including whether the risk is largely confined to those who are already genetically predisposed to these illnesses.  But many scientists have raised the concern whether legalization of marijuana might lead to increases in these illnesses.

Which leads me to the current issue of JAMA Psychiatry, with the viewpoint article Balancing the Public Health Costs of Psychosis vs Mass Incarceration With the Legalization of Cannabis.  In essence, the article argues that marijuana prohibition is a unique risk factor for the development of psychotic illness.  How so, you may ask?   Let’s take a look.

First the authors make the observation that legalization of marijuana is a trend among the states.  They then make the very reasonable claim that marijuana use is associated with an increased risk of psychotic illness.  Then the authors state:

The US has the world’s highest incarceration rate, at 655 per 100 000 adults (followed by El Salvador at 590 per 100 000) and the world’s largest total prison population, at 2 121 600 (followed by China at 1 700 000), according to the World Prison Brief database. The criminalization of cannabis is a significant contributor with approximately 8 million cannabis-related arrests between 2001 and 2010, most owing to possession. Cannabis possession accounts for 36.8% of all drug use arrests in the US according to 2018 US Federal Bureau of Investigation data.

So, as written, the reader is to believe that many marijuana users are languishing in jail for mere possession.  If we dig into the some of the latest DOJ data, however, we learn that about 14% of the state prison population are serving time for drug offenses — and that includes both possession and distribution offenses.   To be sure, it is a nontrivial number of citizens, but anyone who works in the trenches knows that personal possession of small amounts of marijuana does not lead to a lengthy (if any) prison sentence.

Which matters as the authors then state:

Although psychosis is not the only form of psychological distress that may result from incarceration, it is worth considering the consequences of incarceration as a potential trauma or stressor that may contribute to the onset or exacerbation of psychosis given that psychosis risk is a primary argument raised against the legalization of cannabis.

Continue reading . . .