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.

A Marshall Plan for Arizona

I think the state of Arizona needs to seriously consider the Marshall Plan while things are in a state of flux with the death penalty.

Both sides have agreed to a time out in the lawsuit seeking to make public Arizona’s execution protocols, theoretically giving the state some time to implement the Marshall Plan.  The agreed upon time out  is because changes in the State may or may not be afoot.  The Arizona Department of Corrections said they will review the death penalty procedures based upon the report on the botched execution of Joseph Wood.  Newly sworn-in Governor Doug Ducey could also play a role in releasing or obscuring death penalty protocols.

While waiting for the dust to settle on this important right to know issue, I want to delve into what the Marshall Plan is and why it could be impactful in the death penalty landscape.

Continue reading A Marshall Plan for Arizona

Article – Nonbinding Bondage

BDSM contracts … sigh, I never got to study these in law school.

Apparently, these non-legally binding agreements are used to layout the terms of a BDSM sexual relationship between two or more individuals.  Since I still not have read or watched 50 Shades of Grey and apparently do not get out enough to know about these contracts independently, I was not aware of these types of contracts until I read the article “Nonbinding Bondage” in the Harvard Law Review. To my credit I have watched the trailer to 50 Shades of Grey and analyzed it in a previous blog post through the lens of obscenity in movies, if that counts for anything.

These contracts are not legally enforceable because contracting for sex is generally against public policy.  A special problem with BDSM is determining where consent exists because otherwise it could be rape.1 See State v. Van, 688 NW 2d 600, 613-14 (Neb. 2004) (noting it can be difficult to differentiate where consent exists in BDSM even with prior writings outlining intents and roles because people can change their minds)   As in State v. Van2 State v. Van, 688 NW 2d 600 (Neb. 2004) the men sent hundreds of letters back and forth outlining what they wanted in their BDSM relationship.  However, the court had difficultly ultimately determining if there was consent during the sexual acts itself because one of the participants was saying ‘no’ when he said ‘yes’ in the exchanged letters.

Even with contracts, or extensive prior writings, as in the Van case, courts can still struggle with whether there is consent during the act.  In my opinion, this is one of the biggest hurdles to legitimizing BDSM.BDSM Sample Contract

Part of a BDSM Sample Contract

Even though presently BDSM contracts are not viewed with any legal backing, I could envision that possibly changing one day.  Some academics argue the concept of BDSM is becoming mainstream3 Margot D. Weiss, Mainstreaming Kink, Weslyann University, available at: http://wesscholar.wesleyan.edu/cgi/viewcontent.cgi?article=1046&context=div2facpubs&sei-redir=1&referer=http%3A%2F%2Fscholar.google.co.uk%2Fscholar%3Fhl%3Den%26q%3Dbdsm%26btnG%3D%26as_sdt%3D1%252C5%26as_sdtp%3D#search=%22bdsm%22. not only because of  50 Shades of Grey, but also due to its cinematic predecessor the Secretary (2002).

Perhaps with the ever “evolving standards of decency that mark the progress of a maturing society,”4 Furman v. Georgia,  408 US 238, 242 (1972) (Douglas, J. concurring) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)   BDSM contracts may be legally binding one day in the future.

Until then the possibilities are fun to think about.

The rise of Fifty Shades of Grey, however, points to a sea change in attitudes toward BDSM. The erotic novel has not only exposed vast popular interest in “kinky sex” — so vast the adaptation is expected to become the biggest film of 2015 — but has raised the critical profile of BDSM, bringing commentators to look more closely at the practice and significance of such “transgressive” sex. Yet even as BDSM takes popular culture and criticism by storm, its relationship to the law remains surprisingly obscure. A mere handful of cases and articles address the legal questions posed by BDSM, and these generally confront the practice at its most extreme, asking whether “victims” can consent to violence. Acts, like those in Fifty Shades of Grey, involving sexual domination devoid of or barely tinged with pain seem to exist largely beyond investigation, the legal gaze averted until the locked playroom doors open to reveal an unwilling or oppressed participant.

If law has been slow to recognize mainstream BDSM, however, BDSM has not forgotten law. Far from locking law out of its bedrooms, mainstream BDSM has deliberately imported one unlikely legal form: contract. Lifestyle guides encourage the use of BDSM contracts, which employ contract forms to set limits and rules of play for BDSM sex. These contracts are negotiated, drafted, and framed in much the same manner as conventional contracts and have become an increasingly accepted part of BDSM practice. Indeed, the contract’s popularity is evidenced by its very inclusion in Fifty Shades of Grey, as E L James not only references such an agreement but takes pages away from erotic play to depict the couple’s negotiations and to reprint in full the draft contract, complete with twenty-one different sets of terms and the parties’ enumerated objections and amendments.

Nonbinding Bondage, 128 Harv. L. Rev. 713 (2014).

References   [ + ]

1.  See State v. Van, 688 NW 2d 600, 613-14 (Neb. 2004) (noting it can be difficult to differentiate where consent exists in BDSM even with prior writings outlining intents and roles because people can change their minds)
2. State v. Van, 688 NW 2d 600 (Neb. 2004)
3. Margot D. Weiss, Mainstreaming Kink, Weslyann University, available at: http://wesscholar.wesleyan.edu/cgi/viewcontent.cgi?article=1046&context=div2facpubs&sei-redir=1&referer=http%3A%2F%2Fscholar.google.co.uk%2Fscholar%3Fhl%3Den%26q%3Dbdsm%26btnG%3D%26as_sdt%3D1%252C5%26as_sdtp%3D#search=%22bdsm%22.
4. Furman v. Georgia,  408 US 238, 242 (1972) (Douglas, J. concurring) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)

Conflict of Interest in Prosecuting Police Misconduct

State level prosecutors are put in an interesting position when deciding whether or not to bring charges during police abuse cases.  Recently a discussion began on how police abuse cases are prosecuted, after a few high profile cases across the country where grand juries chose not to indict police officers for the deaths of unarmed individuals.

This is the second part in the series: Why I Marched On Downtown Phoenix For Police Reform.

Photo Taken by AzCommonLaw at the Rumain Brisbon protest.
Photo Taken by AzCommonLaw at the Rumain Brisbon protest.

There appears to be at least a public perception of a  conflict of interest when state level prosecutors1 County attorneys, district attorneys, states’ attorneys, etc. prosecute police officers for abuse claims.  A symbiosis occurs between prosecutors and police.  The Maricopa County Attorney’s Office on its website2 Frequently Asked Questions, I Feel Like A Crime is Being Committed, Maricopa County Attorneys Office, http://www.maricopacountyattorney.org/faq/ states the police generally perform the investigations then turn over their findings to the prosecutors.  It is this working relationship that creates a call, from some, for special prosecutors to prosecute alleged police abuse.3 Washington Post Editorial Board, Police Abuse Cases Need Special Prosecutors, available at: http://www.washingtonpost.com/opinions/police-abuse-cases-need-special-prosecutors/2014/12/06/fcf57e28-7cd6-11e4-b821-503cc7efed9e_story.html.

Continue reading Conflict of Interest in Prosecuting Police Misconduct

References   [ + ]

1. County attorneys, district attorneys, states’ attorneys, etc.
2. Frequently Asked Questions, I Feel Like A Crime is Being Committed, Maricopa County Attorneys Office, http://www.maricopacountyattorney.org/faq/
3. Washington Post Editorial Board, Police Abuse Cases Need Special Prosecutors, available at: http://www.washingtonpost.com/opinions/police-abuse-cases-need-special-prosecutors/2014/12/06/fcf57e28-7cd6-11e4-b821-503cc7efed9e_story.html.

Why I Marched on Downtown Phoenix for Police Reform

A week ago, I found myself joining the march into downtown Phoenix to protest excessive force used by law enforcement.  The date of the protest I attended, marked one week since a Phoenix Police officer shot and killed unarmed Rumain Brisbon.

For me, Mr. Brisbon was the catalyst of the march —  but the problem is so much bigger than that one tragic incident.  It is about a systemic problem that encompasses both law enforcement and prosecutorial agencies.  The problem is that of excessive force by law enforcement and how the criminal justice system deals with it.

Photo Taken by AzCommonLaw
Photo Taken by AzCommonLaw at the Rumain Brisbon protest.

I believe people are good-natured.  I believe people are civilly-minded.  I believe that abuse against police and from police is wrong.  The question is what can be done?

This post is the first in what I hope will be a series, identifying problems and making suggestions in our criminal justice system.  Here I talk about the Broken Windows theory.

Continue reading Why I Marched on Downtown Phoenix for Police Reform

Arizona Case Studies of Possible Excessive Force

Both Phoenix and Arizona are not immune from allegations of excessive force by local law enforcement. Two very different situations this week are illustrating the problems communities are having with identifying and dealing with excessive force.

There is not enough information whether either of these situations involved excessive force.  I am not taking a stance either way until more information is known.  However, excessive force is a problem and one that I have addressed before on this website.1 Joe Thomas, What is Excessive Force in Arizona, AzCommonLaw, http://azcommonlaw.com/2014/08/excessive-force-arizona/; Joe Thomas, Phoenix Police Kill During Mental Health Call, AzCommonLaw, http://azcommonlaw.com/2014/08/phoenix-police-kill-during-mental-health-call/.   This article is a continuation of the discussion of what is appropriate force.

Phoenix Police
A picture of Phoenix Police at a First Friday art walk in the Arts District. Photo taken by AzCommonLaw.

Continue reading Arizona Case Studies of Possible Excessive Force

References   [ + ]

1. Joe Thomas, What is Excessive Force in Arizona, AzCommonLaw, http://azcommonlaw.com/2014/08/excessive-force-arizona/; Joe Thomas, Phoenix Police Kill During Mental Health Call, AzCommonLaw, http://azcommonlaw.com/2014/08/phoenix-police-kill-during-mental-health-call/.