Gun Rights vs. States’ Rights

Recently the 7th Circuit, which covers Illinois, upheld the Chicago and Oak Park gun bans. I think this decision caught a lot of casual court watchers off guard. Many people had taken the Supreme Court’s decision striking down Washington D.C.’s total ban in the Heller decision to be the final word. But the 7th Circuit made an obvious point, does the Second Amendment, which clearly applies to Federal action, also apply to the States or municipalities?

It is not such a simple matter to assume that all aspects of the Federal Constitution directly apply to other entities. How often have you heard people pop off to another person “you can’t tell me to be quiet, I have freedom of speech.” The speaker of such nonsense fails to appreciate that there is a distinction in the Federal Constitution between limits on the Federal Government and the States or other government entities.

Many constitutional rights we take for granted did not apply to the States until the 14th Amendment was passed following the Civil War and subsequent court decisions specifically stated that certain rights enumerated in the Federal Constitution also limit the States’ power through the concept of “incorporation.” Prior to that, the 5th Amendment required at least procedural due process for federal action but was largely seen as silent in regard to the States.

So an inescapable irony in the current gun rights cases is that historically the most vocal supporters of gun rights have been found on the paleo-conservation side of most issues where most are “states’ rights” advocates and generally opposed to federalism. Despite this basic organizing principle, their strongest argument has appeared to be a federalist argument that the 2nd Amendment trumps local or State laws. The U.S. Supreme Court has, in my opinion, ruled clearly and directly on the applicability of the 2nd Amendment to federal action.

What is the prediction? Who can say, there are a variety of ways that judges analyze incorporation questions. A real spectrum of positions are currently represented on the Court. The new nominee, judge Sonia Sotomayor, has ruled in a similar manner on a similar case previously, basically stating that the Supreme Court needs to answer this question. I guess we’ll soon see how she answers her own question.

Just watch the court case uphold the 7th Circuit and assert that the rights enumerated under the 2nd Amendment are not incorporated, that of States’ Rights control, that Federalism does not apply. Dissonance will ensue and the irrational patchwork of gun regulations across the country will remain in place.

Why do the Lawyers go First?

Economics, that’s why. In order to make a living as a trial attorney in the private sector, criminal and traffic attorneys often have to take on multiple court appearances on any given day. Most appearances take but minutes or seconds before the judge, so it becomes a matter of getting to your first appearance of the day as early as possible and having things sorted out before the case is actually called. Missing parties (cops, witnesses, probation officers, etc.) or documents can jam up the proceedings and cause delay.

Consequently, especially in heavy traffic rooms, people with attorneys get called first. This is not done merely to disrespect the non-represented, but out of recognition that the attorneys often have to be somewhere else, often right now.

With this in mind, in my last two appearances at two different Cook County traffic rooms, it was the judge that was missing. First the judge in my courtroom for a DUI left the bench for about an hour mid-call to cover another room where the judge failed to show up for the day. Consequently, I was unable to make my next appearance of the day in a timely manner. Second, less than a week later, in another Cook County Courthouse we all waited over an hour for them to find a judge to start the call. Fortunately on this day I had nothing else scheduled. In both cases the assembled citizens did get restless as time dragged on. Fortunately, in both cases the Sheriffs assigned were very calm and respectful, consequently we got through it without incident or unnecessary tension in the room. Regular court watchers/participants will know exactly what I am talking about – the powermad/arbitrary bailiff who has no “off” switch, and is all too common in Cook County courtrooms. We know these guys and gals. They invariably make bad situations worse and gratuitously loose waves of intimidation on the assembled citizens. Really helps improve the bonds between the people and their government. However, in both of the situations noted above, the courtroom staff were actually nice and tried to keep the people informed about what was going on rather than just barking orders.

The rules of supply and demand still apply in the public sector to an extent. The number of hours a day a judge can hear cases is finite. Like other large organizations, there are some judges that shoulder most of work day to day. Those that are working hard to move their call while giving parties full opportunities to present their cases are easily identified, recognized and appreciated by those of us who also show up every day.

So if your attorney says he’s got another case the same day, it’s not that he or she doesn’t care about your case. There are only so many work days in a year and only so many opportunities to be heard. Sometimes there is some necessary juggling. With this being the case the Lawyers often need to be the first act in the daily circus.

How a Sagging Economy Impacts Criminal Defense Law

Once again I have to respond to another cocktail party question. It goes like this: “So with the economy like it is, I bet you are getting a lot more criminal defense business.” The insinuation being that in tough economic times more people turn to crime to get by.

While the underground economy in general grows in any society during times of economic stress, I’m not so sure that directly translates into more business for me. I’m not alone in the belief that regular people don’t just wake up one day and embark on a life of crime due to new financial difficulties. I think it’s more likely that most thieves (which is who we are talking about) go about it as a vocation. In other words, theft is their job, they have been doing it for years regardless of their current financial situation or other employment. What seems more likely, and some law enforcement friends of mine have suggested, is that regular people under financial strain are now more likely to purchase goods of questionable origin. The result being that there is more demand for hot goods and the professional thieves, burglars, pilferers and shoplifters just increase their activity in response. I think it’s more appropriate to consider the recent parallel increase in parking and ordinance enforcement by municipalities throughout Cook County as a parallel development.

In contrast, many of my fellow criminal/traffic attorneys have noted a drop in traffic cases, especially in Chicago. This might be due to a moral crisis in the Chicago Police Department and in effect an informal work slow down or form of ad-hoc protest by beat officers. Murders in Chicago seem up as well, but there are so many variables in analyzing this trend that I hesitate to try to explain it.

What has definitely dropped off is divorces. There has been a jarring, steep decline in new filings noted by most of my colleagues who practice in this area. Are people just riding it out, waiting for improved economic conditions before making the leap? Divorce is expensive and has been the ruin of families. If people are staying together out of financial concerns despite the collapse of their relationship, we may soon see an increase in domestic abuse and order-of-protection side of my business. Sad, but likely.

10 Reasons a Traffic Charge Becomes a Felony

The recent Lake County case wherein an inattentive motorist, Lora Hunt, apparently killed motorcyclist, Anita Zaffke, is resulting in calls for new legislation. The allegations are that Ms. Hunt admitted to police shortly after the accident that the reason she plowed into Ms. Zaffke at a stoplight was that she was too busy with her nails and failed to see the light change or apparently Ms. Zaffke.

Numerous people have asked me if this driver could be charged with murder or reckless homicide due to the extreme lack of regard on display here. I don’t think Illinois law really contemplates this kind of scenario. There are felony provisions and reckless homicide statutes for alcohol related situations especially where there is an accident or injury. In my opinion, the current laws do not adequately address this kind of reckless conduct where there is no substance abuse involved. There are misdemeanor penalties for “reckless driving” but for cases resulting in death, such as we have here, the misdemeanor charge appears inadequate in light of the magnitude of the result.

In Illinois a traffic case can be charged as a felony in the following cases:

1. DUI if defendant has two prior convictions or a prior conviction and a supervision
2. DUI while driver knew auto was not insured
3. DUI resulting in injury to a minor passenger
4. DUI resulting in crash and bodily injury or death
5. DUI with prior conviction for reckless homicide
6. DUI while license is suspended or revoked due to DUI
7. Multiple convictions for driving while suspended or revoked
8. DUI while never even issued a license
9. DUI while driving a school bus
10. Second DUI if defendant had minor in vehicle (no crash required, supervisions count too)

(It should also be noted that reckless homicide, a felony, also addresses impaired drivers rather than just inattentive ones)

As you can see, most of these felony provisions revolve around substance abuse. Mere recklessness, self-absorption, narcissism behind the wheel are not yet felony offenses generally. Across the nation DUI accidents and incidence of DUI have been declining. The efforts of groups like Mothers Against Drunk Driving (MADD), have paid off with increased penalties, awareness and corresponding changes in driver behavior. On the other hand inattentive, distracted driving is a new plague. Most of us can agree the biggest offenders on the road day to day are the cell phone users and texters. The legislature and law enforcement are now playing catch up with cultural changes leading to new threats on the road.

No More Free Searches

“Search incident to arrest.” The words send a chill down the spine of defense attorneys and put a smile on the face of prosecutors. Until last week police in most states had the ability to search the car of any arrestee without the need for any real articulate reason. But with the U.S. Supreme Court decision of Arizona V. Gant issued on April 21, automobile searches should no longer be automatic when someone is arrested for a simple traffic matter or warrant.

Basically, since 1981, police have been able to search the car of a defendant upon arrest for anything. It is notable that in some states, they went back and put more protections in their statutes and/or state constitutions following the 1981 decision. Not so in Illinois.

Take this example, one that I have encountered throughout my career:

-”Bob” has suspended/revoked license or warrant
-Bob drives anyway and gets stopped for a minor matter and officer learns of the suspension or warrant
-Bob gets cuffed and placed into the cruiser
-Officer returns to Bob’s car and searches it thoroughly, finding a joint or hard drugs, paraphernalia, gun, porn, etc.
–Bob, now more accurately named “future client”, just went from a traffic violation to a serious charge or even felony.
–Bob, along with every other thinking person, is wondering what the car search had to do with his traffic violation and/or old warrant, but he is still looking to plead on the charges resulting from this bogus search.

Before last week, through some convoluted reasoning, the justification has been that this subsequent search was necessary for “officer safety” and/or to preserve evidence (what evidence has never been stated). Ask yourself, if Bob is already secured in the cruiser, what can he do to threaten the officer or destroy evidence? It is this lax reasoning that a slim majority finally tossed out. But before we all throw a party, let’s remember that there will still be exceptions, but the “free search” is no more.

As an aside, since this had been the law of the land for nearly 30 years, I have been consistently baffled by the number of people who continue to drive without a driver’s license or on a warrant while transporting contraband. This scenario has been a recurring theme and source of employment for people like me. Now we have a better response in many cases.

Asset Forfeitures Take Over

Back in the 1980’s, shortly after my first read of George Orwell’s “1984,” the Feds started using a new law enforcement tool in the “War on Drugs.” This was, of course, the advent of the now widely used asset forfeiture regime. Back then we were all assured and the various court decisions stated that this tool would be used sparingly in combating the dangerous international narcotics rings. The notion was that it did no good to merely arrest and incarcerate dealers or importers, but that we had to take the profit motive out of the underground economy by taking their assets.

The problem with this is that the standard of proof and proceeding necessary to effectuate these confiscations is always well below the standard of proof to convict a person of a crime. The reasoning is that the proceeding is typically civil and against the “property” and not the “person.” Well, any reasonable person will see attempts to take his property as very personal. Bizarrely, one can be vindicated or found not guilty at trial, but still without their property at the end.

Today, this concept of asset forfeiture has now spread throughout other areas of law enforcement. Now Alderman Thomas Allen wants to give local traffic cops similar vast powers in relation to driving while suspended or revoked. Having done traffic cases for years, I feel safe in stating that a lot of defendants get suspended for what are really petty matters or get caught driving when they did not even know they were suspended. People move and forget to update their information with the Secretary of State all the time.

There are offensive, dangerous unlicensed drivers, out there. But as is often the case, the proposed cure will disproportionably impact the poor and those who merely make an innocent mistake. Trust me, the unlicensed guys who are serials offenders (who constitute a huge chunk of the accidents are the real threat) don’t usually own the vehicle they get caught in! They are typically mopes. Law enforcement people know this. So, what is the real purpose for this proposed ordinance? What was the purpose behind privatizing the parking meters? What was the purpose behind privatizing the Tollways? What was the purpose in increasing the number of tickets, boots and traffic enforcement in general? Has there been an increase in traffic accidents, deaths, parking violators? Actually all indicators are that traffic deaths and accidents are still trending down. Whenever you see someone proposing an answer to a question that no one asked, follow the money.

I will answer my questions with a direct quote from the Tribune story on the issue, “Of course the proposal also comes at a time when the city is increasingly relying on traffic fines and other driving-related measures to fund the city budget.”

Rethinking the Legal System

Senator Jim Webb continues to show that he has the stones to lead. As the Huffington Post called it, he has grasped one of the “third rails” of politics. He has proposed that our “War on Drugs” needs to be reviewed.

As one who has had a first row seat for the “war on poor people” which is what this really is, I was pleasantly surprised to see any senator, much less one with so little seniority, even approach the issue.

It is a sad state of affairs here in the United States. Anyone who broaches the subject is automatically labeled “soft on crime”. This is a typical reaction from the right, argue that your opponent is advocating something they are not. Listen to Senator Webb speak sometime. I don’t think he is soft on anything. Resolute and an uber-boyscout. The right wishes they had someone on their side with such credibility and unimpeachable credentials.

He is not merely looking at the legislation issue, but a real re-thinking of what we are trying to accomplish in our ever-expanding police forces and increasingly punitive legal system. Don’t get me wrong., no credible, responsible people in this debate are advocating full legalization of hard narcotics or loosening laws related to violence. The main points of debate seem to be regards to sentencing and possible, limited to legalization of the relatively benign pot.

We all need to take a step back and ask-What are the goals of our current criminal law regime? Clearly, public safety can not be compromised. But safety and security are tied to economics. When you take a young man and tag him with even a minor drug convinction it is as if he had his foot cut off. He will, in effect, suffer a disability for the remainder of his life. So now we have a young man, who probably would have gone on with his life, despite any drug involvement, had it not been for involvement of law enforcement. But because he got caught, unlike the vast majority of users and sellers, he is now disabled. Though I know overdoses and bad things happen to users of hard drugs, most people do get along, move on eventually, and live their lives. How many alcohol abusers get by. Which raises another issue–the arbitrariness of the current legal regime.

Numerous studies highlight the vast destruction caused by legal addictions. These are choices. We can choose to handle our public safety with a mind toward public safety, rather than mere punishment for its own sake. Changing the paradigm requires leadership, maybe we now have some.

Cook County Suspect Packs Heat in Court

So, once again an inmate of the Cook County Jail managed to slip contraband past several Chicago police and jail guards. What is most concerning is the threat the presence of a weapon in the jail creates for everyone–guards, social workers, attorneys, support staff, ministers and visitors. But I think we need to keep in mind who is most a risk–other inmates.

Having spent many years going in and out of the jail multiple times a week as an attorney, it baffles me how this keeps happening. Even with my County ID and Attorney ID I routinely get subjected to quite a search when I visit clients.

People should keep in mind that a significant portion of the 10,000 or more souls held at the Cook County jail have not been found guilty of anything, but are unable to make bond while their case is pending, or are merely serving out a few more days on a relatively harmless misdemeanor. The guy at the center of the current scare sounds like a much more dangerous character than these people. I think we need to keep them safe while they are unwilling guests of Todd Stroger and Tom Dart.

Eligible for Expungement?

In Illinois from 2006-2007, annual applications for sealing and expungement jumped 68 percent statewide, according to the Chicago Reporter. This was largely due to a change in the law. However, it seems to me that job losses, especially at the low end of the employment market, actually began during that period and some of this jump in applications is a direct result of people seeking new work.

Now with the loads of white collar and mid-level people finding themselves back in the job market, I expect a second wave of expungement requests, but from a more diverse spectrum of people. With employers increasingly selective (and intrusive in my opinion) people may find themselves thinking about that juvenile case or underage consumption from their college years or that misdemeanor pot charge or the DUI arrest after that family member’s wedding in the 90s or the felony forgery from that lost year in California, etc., etc., etc.

However, in most cases, actual convictions, felony or misdemeanor are NOT expungeable. Supervisions (or alternative to prosecution or suspended sentence) or arrests which did not lead to a conviction (dismissed, found not guilty following a trial, failure to prosecute) may be expunged. Also, in some cases, pardons can allow for a subsequent expungement.

So, if you are looking to get away from that homicide conviction, save your time and money, but it may well be worth it to leave behind for good any of the adolescent, petty stuff from your old permanent record.

Jurors: Listen to the Judge or Learn a Harsh Lesson

Judges and lawyers are complaining that jurors are using social networking sites like Twitter or search engines like Google to conduct their own investigations during trials, but independent “research” has been happening since the dawn of cell phones.

Many years ago during a DUI jury trial, my client testified quite precisely and accurately about the direction he was traveling and a unique aspect of the particular street he was driving on as the police approached him. In contrast, the police officers’ testimony about the street and details was confused. At least one juror apparently took it upon herself to call her husband during a break for his opinion on the piece of street in question.

A juror actively seeking out un-sworn, unexamined and effectively un-sourced evidence, which she certainly shared with her fellow jurors, tainted the proceedings to say the least. As a result, the jurors found themselves on the stand. Awkward and uncomfortable for all involved. Some of these jurors now found themselves the subject of a possible criminal investigation. The juror accused could have been arrested for contempt of court.

Now, it is common practice throughout the land that jurors’ electronics of all kinds are held by the Sheriff until the jury has completed their deliberations and ruled or in the event of an emergency. Some courthouses don’t even allow electronic devices in the building at all. Warning signs are prominent in any courthouse.

The electronic landscape continues to evolve, but my advice for jurors and all other vistors to that place we call “Court” is quite old-fashioned-listen to what the judge instructs you to do. He or she and the other actors in the court take this all quite seriously, you should too. Cleanest advice-leave the expensive, fancy, electric tether at home or you could get a rather Spartan pair for free courtesy of the sheriff and find yourself really out of touch.