Daily Archives: April 28, 2005

Ross ruling appealed

You knew it was going to happen. You just didn’t know how soon. Well, today Thomas Groark filed an appeal directly with the Supreme Court. He also asked for a stay of the execution, which is currently just twelve days away.

In his filing Groark claims that Judge Clifford made several mistakes.  He says the New London judge:

  • "erred in concluding that Michael Ross decision to waive his right to seek post-conviction relief was voluntary."    
  • "erred in concluding that Michael Ross was not   suffering from a mental disease."

Groark also claims the judge is mistaken because he sided with the two
experts that claim Ross is competent instead of the two that Groark
brought to court who said he was not.

In other related news, seven prosecutors have filed a complaint against Judge Chatigny for his handling of the Michael Ross case. The complaint will be reviewed by Chief Circuit Judge John M. Walker, who can either dismiss the complaint or order an investigation. So wait, are we for activist judges or against?

Written consent for vehicle searches… in Texas?

Injustice Anywhere (by way of Grits for Breakfast) reports on a new bill in Texas that would require peace officers to get signed consent from motorists before inspecting their vehicles during a routine traffic stop. The bill states [bill text]:

A peace officer who stops a motor vehicle for any alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the peace officer:
(1)  has probable cause or another legal basis for the search; or
(2)  obtains on a form that complies with Section 411.0207, Government Code, the written consent of the operator of the vehicle.

SECTION 2.  Subchapter A, Chapter 411, Government Code, is amended by adding Section 411.0207 to read as follows:
(a)  The director by rule shall establish requirements for a form used to obtain the consent of the operator of a motor vehicle under Article 1.06, Code of Criminal Procedure.
(b)  At a minimum, the rules must require the form to contain:

(1)  a statement that the operator of the motor vehicle fully understands that the operator may refuse to give the peace officer consent to search the motor vehicle;
(2)  a statement that the operator of the motor vehicle is freely and voluntarily giving the peace officer consent to search the motor vehicle;
(3)  the time and date of the stop giving rise to the search;
(4)  a description of the motor vehicle to be searched; and
(5)  the name of each peace officer conducting the stop or search.

I think the part requiring written consent in the absence of probable cause is great, because as Grits reports, jurisdictions that already require written consent have seen a 63% decline in motorists willing to waive their rights. At the very least, people will be more informed of their right to decline to consent.

Meet force with force: FL’s new self-defense statute – II

Update: Jeff Spivack has provided a link to a great website that has an excellent analysis of this law. Here is an excerpt:

Another interesting facet of the law is that persons who appear to be validly relying on the law, are supposedly "immune" from criminal prosecution and arrest unless and until "probable cause" exists to believe that the use of force was not legal. How that provision will work out in reality is anyone’s guess. It will probably be an issue litigated in the courts for years to come. The final benefit, which is really an empty shell: It allegedly awards attorney fees, lost income, and all expenses of defending any civil action to any person sued because of their use of defensive force who is found to be "immune" in the civil case. As a practical matter, this provision will be useless. I’ll explain why later in this article.

As to the other areas of the bill, it’s hard to say how much value they’ll have because the Legislature didn’t really think them through. Let’s do a little analysis on that:

The presumption that the person breaking in the residence/vehicle is doing merely an "unlawful act" involving "force or violence" falls far short of the required legal standard of a "forcible felony" as a predicate to any use of deadly force. A forcible felony allows deadly force as a response where the defender "reasonably believes" the force was "necessary" to stop the forcible felony – an "unlawful act with force" can merely be a misdemeanor such as battery or trespass, and the Legislature really screwed up on choosing this language.

The alleged "immunity" against arrest is probably an illusion.  Although the law says law enforcement "may use standard procedures for investigating the use of force", and shall not arrest unless they first determine that probable cause for the unlawful use of force exists – the problem is that there are no "standard procedures" for investigation, and more importantly, there is no requirement that a reasonable investigation of the lawful use of force "shall first be made before any determination of probable cause is valid". Furthermore, the phrase "may use" means law enforcement can still ignore standard procedures, and do only a bare bones job of investigation – which, unfortunately, many departments follow. The law also leaves in place other easier methods of arrest under Florida Statute 901.15, which only require probable cause of a lesser crime. Thus, the "immunity" section of the law will likely have no enforcement value before the courts, and get little respect from the police.

Original post: After my post on Florida’s new self-defense statute, I have received a number of extremely interesting and well thought out comments. These comments provide a different point of view, one from a Florida law enforcement officer, and worth a read. Commenter "Jeff Spivak" helpfully lists "non-forcible felonies" in Florida:

In Florida, non-forcible felonies include, but are certainly not limited to: Perjury; Bigamy; Fraud; Procuring person under age of 18 for prostitution; Deriving support from the proceeds of prostitution; Sale, manufacture, delivery or possession with intent of controlled substances or counterfeit controlled substances; Making or having instruments and material for counterfeiting driver’s licenses or identification cards; Dealing in stolen property; Forgery, Counterfeiting, and related crimes; Grand Theft (without the use or threat of violence). And many, many others. Note: the prostitution related crimes CAN be forcible under conditions when violence or threats of violence are used.

So I’m assuming all others are forcible. I agree that the example I used (purse-snatcher) is not really conducive to a discussion of the "prevent a forcible felony" prong of this new self-defense statute. But it does point out the inherent problem – subjectivity. For long, the determination of reasonable subjectivity has been the realm of the jury. This statute – and this is my biggest problem with the bill – takes that away and leaves it up to …. no one. Despite the thoughtful comments, I still don’t have an answer to the immunity problem. Who decides immunity – or rather, who grants it? If there is someone who makes that determination, how do they do it? Is there an arrest first? Clearly not – since the statute prohibits that. Then what? Is the police officer on the scene the one to make a determination of immunity? The statute doesn’t grant that authority – and I’d have serious constitutional problems with that as well.

But again, please read those comments.