Article – Food Trucks, Incremental Innovation, and Regulatory Ruts

Food Truck Fridays are fun and delicious!

If you have somehow missed out on this culinary treat which takes place in downtown Phoenix, Arizona on Friday afternoons, you should make time to visit.  Some of my friends look forward all week to Food Truck Fridays.

A new scholarly legal article looks at the history of food trucks, the industry regulations and some potential barriers to innovation.  If you are interested in Phoenix’s evolving culinary landscape, it is an interesting article to look at.

Phoenix Food Truck
Phoenix Food Truck Luncha Libre — Photo Taken By AzCommonLaw\

Continue reading Article – Food Trucks, Incremental Innovation, and Regulatory Ruts

Police Use Car to Ram Armed Suspect

A dashboard camera video that captured Marana Police Officer Michael Rapiejko using their car to ram an armed suspect through a concrete wall is raising questions of excessive force.

Since this use of force situation in Marana, Arizona happened back in Feb. 2015, and is now only getting media attention there has been some time for those involved to their thoughts marinate.

I am not so sure that this use of force is justified under the Arizona Revised Statutes which state when law enforcement is legally justified: in the use of force,1 Ariz. Rev. Stat. § 13-409. in the use of deadly force,2 Ariz. Rev. Stat. § 13-410. and the use of force in crime prevention.3 Ariz. Rev. Stat. § 13-411.

What does the law say about Officer Rapiejko’s use of deadly force?  The law needs to be considered in use of force cases because if law enforcement do not act in accordance with the law then their use of force is not justified and potentially breaks the law.

Continue reading Police Use Car to Ram Armed Suspect

References   [ + ]

1. Ariz. Rev. Stat. § 13-409.
2. Ariz. Rev. Stat. § 13-410.
3. Ariz. Rev. Stat. § 13-411.

Article – Criminal Infliction of Emotional Distress

An interesting trend where the infliction of emotional distress is criminalized.  Civil tort law has long recognized intentional infliction of emotional distress and negligent infliction of emotional distress.  Only recently, have statutes been codified to recognize emotional distress in the criminal realm.

[T]hese cases involved a criminal statute that imposes liability for causing another person emotional harm. They are part of a growing trend; in recent years, thirty states and the District of Columbia have criminalized
the infliction of emotional harm independent of any physical harm or threat of physical injury. These laws, which I term criminal infliction of emotional
distress (“CIED”) statutes, are designed to combat antisocial behaviors such as harassment, stalking, and bullying.

Arizona is one of the states listed as having a CIED statute, by Avlana K. Eisenberg, Criminal Infliction of Emotional Distress, 113 Mich. L. Rev. 607.  The article cites Ariz. Rev. Stat. § 13-2921, describing criminal harassment, as an example of an Arizona CIED statute.

Continue reading Article – Criminal Infliction of Emotional Distress

Article – Digital Innocence

If we have to live in the age of big data, with governments agencies routinely having reams of information about individuals, shouldn’t that information be used to help ensure digital innocence?

Innocence is a bedrock of our criminal justice system.  “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”  Coffin v. United States, 156 U. S. 432, 453 (1895).  As a society we value innocence so much that criminal convictions require the heightened burden of proving elements of a crime by reasonable doubt, instead of the lesser civil standard of preponderance of the evidence.1 See In Re Winship, 397 US 358, 361 (1970).

In fact, even as this article is being written the Federal Bureau of Investigations (FBI) is openly advocating that encryption standards are weakened so law enforcement can more readily have access to that data. 2 See video supra. FBI Director James Comey, Testifying Before Congress on Smart Phone Encryption.

Continue reading Article – Digital Innocence

References   [ + ]

1. See In Re Winship, 397 US 358, 361 (1970).
2. See video supra. FBI Director James Comey, Testifying Before Congress on Smart Phone Encryption.

Public Not Entitled to Know MCAO’s Rationale

The Maricopa County Attorney’s Office (MCAO) said it would take a court order for the contents of letters to Messrs. Alford and Padilla  to be revealed, that were provided as a part of a public records request.  The request asked for documents responsive concerning the incident between the Glendale Fire Department and James Murillo.

As can be seen below, the letters are fully redacted, except for the metadata.  The letters are sent from Leslie LeMense, PTD Charging.  At least judging from her title, Ms. LeMense appears to be involved in pre-trial charging determinations for MCAO.

Maricopa County Attorney Redacted

Prosecutorial discretion permits the MCAO to make the decision whether to pursue charges or not.  But as the Maricopa County Attorney is a publicly elected office, doesn’t the office have a duty to explain how it uses its prosecutorial discretion?
Continue reading Public Not Entitled to Know MCAO’s Rationale

Arizona SB 1445 Almost Law

The Arizona Legislature passed Senate Bill 1445 (SB 1445) and the legislation is sitting on Governor Doug Ducey’s desk waiting either to be signed into law or vetoed.

Two competing interests are at stake: officer safety and public transparency.  Here in Arizona, the legislation would allow the government to withhold a law enforcement officer’s name who is involved in the use of deadly physical force.  The officer’s name is to be withheld for 60 days or unless one of six conditions occurs (see the legislation below for the conditions).

Privacy - Photo Taken by AzCommonLaw
Privacy – Photo Taken by AzCommonLaw

Continue reading Arizona SB 1445 Almost Law

Fire Department’s Duty to Known Mentally Ill

A mental health check-up made because of a possible seizure and drug overdose went wrong in the city of Glendale, Arizona in late Oct. 2014.  It ended up with punches being thrown by both parties, threats made, an involuntary sedation, Youtube videos capturing the incident posted by bystanders.  The prosecutor did not pursue criminal charges on either party.1 Sterling Fluharty, City Faces $11m Claim over FireFighters; available at: http://www.glendalestar.com/news/article_bfa75248-cc0a-11e4-8799-77f32d20660d.html.   It appears the only rebuke is a pair of two day suspensions handed down by the Glendale Fire Department to employees involved.

This post seeks to act as a case study of a fire department’s duty when interacting with individuals who are known to have mental illness.  It will examine how the Maricopa County Attorney (MCAO) used it’s prosecutorial discretion over the criminal charges and how the Glendale Fire Department used its administrative discretion over penalizing the fire fighters.

Continue reading Fire Department’s Duty to Known Mentally Ill

References   [ + ]

1. Sterling Fluharty, City Faces $11m Claim over FireFighters; available at: http://www.glendalestar.com/news/article_bfa75248-cc0a-11e4-8799-77f32d20660d.html.

Proposed Privacy Measure for Officers Involved in Violent Incidents

Shakespeare famously asked “what is in a name.”1  William Shakespeare, Romeo and Juliet act 2, sc. 2.  Here Juliet tells Romeo that a name is an artificial and meaningless convention, and that she loves the person who is called “Montague”, not the Montague name and not the Montague family.   There is a bill in the Arizona Legislature to withhold law enforcement officer’s names who are involved in incidents that result in the death of an individual.  The measure is designed to increase the privacy of the officer and his family.

While this measure may add extra protection for officer and his family after a violent incident, I think it deprives the public of a chance to know all of the facts.

Phoenix Police Officer on Motorcycle - Photo Taken by AzCommonLaw
Phoenix Police Officer on Motorcycle – Photo Taken by AzCommonLaw

Continue reading Proposed Privacy Measure for Officers Involved in Violent Incidents

References   [ + ]

1.   William Shakespeare, Romeo and Juliet act 2, sc. 2.  Here Juliet tells Romeo that a name is an artificial and meaningless convention, and that she loves the person who is called “Montague”, not the Montague name and not the Montague family.

Bad Proposed Public Records Policy in Arizona

If Arizona Legislators pass Senate Bill 1339 (2015), they would be sending mixed signals on public records.  The bill intends to weed out burdensome requests, by allowing public records custodians to claim the request “unduly burdensome” or “harassing.”

This is bad public policy – it is as simple as that.  This legislation undermines the principles of Arizona’s public records law and ignores the historical precedent set by the common law which barred unduly burdensome or harassing requests.

One of the reasons why public record laws exist is to give the government legitimacy.  The laws allow individuals to check up on the government and look for corruption, bad actors, etc.  The Arizona Legislature is obfuscating this common law right1  “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents.”  Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).   I recognize that there is a problem, but this is not the solution.

Sign for Suicide Lane in Phoenix, Arizona taken by AzCommonLaw
Sign for Suicide Lane in Phoenix, Arizona — taken by AzCommonLaw

Public records in Arizona are going to become like some of the street signs — indecipherable to passersby.  When things become muddled, usually is not a good thing.

Continue reading Bad Proposed Public Records Policy in Arizona

References   [ + ]

1.   “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents.”  Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).

Marijuana Sentencing Reform Proposed Legislation

Arizona is seventh in the United States for incarceration rates.  This means that 586 out of every 100,000 people are incarcerated in the state.1 Bureau of Justice Statistics, Imprisonment rate of sentenced prisoners under the jurisdiction of state or federal correctional authorities per 100,000 U.S. residents, Bjs.gov.   It comes out to 41,000 and change of inmates in the state’s prisons, in case you are wondering.  Marijuana sentencing reform can save the state money (investigations, prosecutions, and incarcerations), and increase the productivity of its citizens (individuals will have more chances to contribute to society when not in imprisoned).

Arizona ranks seventh for incarceration rate by state.2 Id. Only six states have a higher incarceration rate (play around with the graph below to see where the different states rank).

— Chart created by AzCommonLaw

While the incarceration rate in the state only rises over time.  This is in part because of the influx of people moving to the state over the years, but it is also attributable to the more harsh sentencing laws. It is unclear how many people in Arizona are incarcerated for marijuana offenses.

— Chart created by AzCommonLaw

Currently, there is a bill in front of the Arizona Legislature that would reform the sentencing laws in the state.  It seems to be a good solution socially and economically.

Continue reading Marijuana Sentencing Reform Proposed Legislation

References   [ + ]

1. Bureau of Justice Statistics, Imprisonment rate of sentenced prisoners under the jurisdiction of state or federal correctional authorities per 100,000 U.S. residents, Bjs.gov.
2. Id.