Sui Generis--a New York law blog

Muzzling Minor Dissent

This week's Legal Currents column, which is published in The Daily Record, is entitled "Muzzling Minor Dissent"  The article is set forth in full below and a pdf of the article can be found here.

My past Legal Currents articles can be accessed here.

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Muzzling minor dissent

“How come Andrew gets to get up? If he gets up, we’ll all get up, it’ll be anarchy!” — “THE BREAKFAST CLUB” (1985)

It is the thorn in the side of every school administrator: organized student dissent, which “substantially and materially interfere[s]” with schoolwork and discipline.

This legal standard, which controls all student speech, was first enunciated in the pivotal U.S. Supreme Court decision on the First Amendment rights of students, Tinker v. Des Moines, 393 U.S. 503 (1969).

The issue of student free speech rights was re-visited last year in Morse v. Frederick, 127 S. Ct. 2618 (2007). At issue in Morse was whether a high school student’s unfurling of a banner stating “Bong Hits 4 Jesus” on a sidewalk not located on school property was speech protected by the First Amendment. The Supreme Court concluded that the First Amendment does not protect student speech that could “plausibly be interpreted” by school administrators to promote illegal drug use in violation of “established school policy.”

Central to the court’s decision in Morse was its conclusion that the conduct at issue, while not occurring on school property, happened during a school-sponsored event, rendering the protections of the First Amendment inapplicable to the speech at issue.

Last week, the U.S. Court of Appeals for the Second Circuit Court heard arguments in another interesting student speech case, Doninger v. Niehoff, 3:07-cv-1129.

In this case, the plaintiff, a 17-year-old high school senior, alleges the officials at her high school violated her First Amendment rights by preventing her from serving on the student council as a result of statements she wrote on a blog, from her home computer, regarding the administration.

Specifically, she expressed her disappointment with the cancellation of the school’s annual “Jamfest,” a musical event she had helped to organize, and blamed the “douchbags [sic.] at the central office” for the cancellation.

The school administrators learned of the comment two weeks later, and subsequently barred her from serving on the student council as a direct result of the blog post.

The U.S. District Court of Connecticut found in favor of the school, concluding the penalty imposed — barring her from serving on the student council — was not discipline but, rather, the denial of a privilege, thus failing to implicate her First Amendment rights.

Alternatively, the court concluded the off-campus blog entry actually was on-campus speech for First Amendment purposes, since it was related to school issues and it was reasonably foreseeable other students would read it.

In other words, the court decided to engage in the creative endeavor of redefining “discipline” and “reality” rather than accepting an unpalatable alternative: acknowledging that students have the constitutional right to criticize school administrators, as long as the on or off-campus critique does not “substantially and materially interfere” with school operations or the dissent levied on-campus is not lewd, profane or sexually explicit, see, Tinker, supra. and Bethel v. Fraser, 478 US 675 (1986).

Granted, the blog post in question certainly is not a shining example of the diplomatic use of terminology. However, the fact remains that it was created using a computer that was not located on school grounds. Even assuming the language used was, in fact, lewd or profane, it simply does not fall within the Bethel exception to Tinker and, likewise, cannot be viewed as substantially and materially interfering with school operations.

The method of delivery of the dissent is irrelevant, and the advent of new ways of communicating should not alter this conclusion. A blog post is no different than the use of a megaphone or mass mailing.

The First Amendment protects students from being subjected to in school penalties as a result of their off-campus dissent, no matter how upsetting or annoying the conduct may be to school administrators. As Judge Sonya Sotomayor aptly noted during oral arguments last week: “Pedagogical rights can’t supersede the rights of students off campus to have First Amendment rights.”

Why not err on the side of caution?

This week's Legal Currents column, which is published in The Daily Record, is entitled " Why not err on the side of caution?"  The article is set forth in full below and a pdf of the article can be found here. My past Legal Currents articles can be accessed here.

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Why not err on the side of caution?

Last week the U.S. Supreme Court granted certiorari in Herring v. United States, 07- 513.

At issue in Herring is whether the exclusionary rule should apply when a suspect’s arrest was based on erroneous information from another law enforcement officer.

The court considered a similar issue in Arizona v. Evans, 514 U.S. 1 (1995). In Evans, marijuana was discovered on the defendant during the execution of what the arresting officer mistakenly believed was a valid arrest warrant. The court concluded the marijuana was not subject to suppression even though the warrant, which had been quashed, remained in the computer system due to a court clerk’s clerical error: “If court employees were re-sponsible for the erroneous computer re-cord, the exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction. … Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime … they have no stake in the outcome of particular criminal prosecutions.”

In so holding, the court left open the possibility that the exclusionary rule might apply to evidence discovered due to an error caused by a law enforcement officer, as was the case in Herring, where a member of the Sheriff’s Department, rather than a court clerk, failed to modify the computer records to indicate the arrest warrant was recalled.

I suspect the current court will extend the Evans holding and conclude the exclusionary rule is inapplicable under these facts as well.

To do so would be a mistake.

As Justice Ruth Bader Ginsberg astutely noted in her dissentin Evans, society’s newfound reliance on computers and technological advancements presents unusual issues for law enforcement: “Widespread reliance on computers to store and convey information generates, along with manifold benefits, new possibilities of error, due to both computer malfunctions and operator mistakes. … [C]omputerization greatly amplifies an error’s effect, and correspondingly intensifies the need for prompt correction; for inaccurate data can infect not only one agency, but the many agencies that share access to the database.”

Justice Ginsberg’s insight from 1995 rings all the more true in our post-9/11 era as our government mines and collects vast amounts of data regarding its citizens, both from public and private sources.

The more data is collected, the more time and money will be required to manage the data. It is unlikely, however, that sufficient resources will be allotted for regulating, reviewing and updating the massive databases used by law enforcement agencies in the absence of strong incentives such as the deterrent effect of the exclusionary rule.

Should the court carve out a “computer error” exception to the exclusionary rule, the possibility of perpetual arrest warrants is not all that farfetched. Realistically, what incentive would there be to promptly remove recalled arrest warrants from government databases if any evidence obtained as a result of a mistakenly executed, recalled warrant could be used at trial?

To err is human. We all know that. But when one of our most fundamental constitutional rights is at stake— freedom from unlawful governmental intrusion — shouldn’t we err on the side of caution?

Maggie Brooks--Have You Been Reading My Column?

I suspect that she has--or at least someone at the County Law Department read my recent article: It all Depends on How You Define Marriage.

As reported in this Democrat and Chronicle article, the County intends to appeal the Martinez decision, in which the Fourth Department held that valid marriages of same-sex couples performed in other jurisdictions must be recognized in New York.

From the D & C article:

On Friday, Monroe County Executive Maggie Brooks announced that the county would appeal the appellate court ruling to protect taxpayers. "We certainly cannot ignore the definition of marriage that currently exists under New York state law," she said in a statement...A county statement issued Friday states: "According to the New York state law, marriage is an institution that exists strictly between a man and a woman..."

And, this from a Canada.com article:

On Friday, Monroe County's top political official, Republican executive Maggie Brooks, announced that the judges' clear "misinterpretation" of New York law must be challenged, and ..argued that "we're letting people in Ontario, Canada define marriage for people who live in New York State. I don't think that's appropriate."

And, finally, from my Daily Record article published on February 12, 2008:

From a philosophical standpoint, I agree wholeheartedly with the Fourth Department, just as I found the dissent’s argument in Hernandez to be far more palatable than the majority’s...Determination of the issues raised in Hernandez necessarily revolve around the definition of the term “marriage.” The concept is not defined in the Domestic Relations Law and, instead, has been refined through case law...As explained in Hernandez, “implicitly or explicitly, the Domestic Relations Law limits marriage to opposite-sex couples.” In New York, in other words, the term “marriage” is limited to a marriage contract entered into between a man and a woman. That another jurisdiction chooses to define marriage more broadly than New York may not require our state to expand its concept of marriage.

I hesitated prior to penning my column about the Martinez decision when I realized that my legal analysis potentially lead to a result that conflicted with my philosophical views.  However, I felt that the decision was too important to ignore.  And, I felt that to address the decision by either avoiding any legal analysis or to alter my legal analysis simply because I did not like where it lead would be disingenuous, at best.

So, write about it, I did.  And, perhaps I offered ammunition to the County.  Or, perhaps my humble article wasn't even on its radar.  I'll never know. 

But, I'm comfortable with my decision to write about the decision as I did.  And, isn't that what's important?

Hat tip: New York Legal Update.

It all depends on how you define ‘marriage’

This week's Legal Currents column, which is published in The Daily Record, is entitled "It all depends on how you define ‘marriage’ "  The article is set forth in full below and a pdf of the article can be found here.

My past Legal Currents articles can be accessed here.

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It all depends on how you define ‘marriage’

Last week, in Martinez v. County of Monroe, 2008 NY Slip Op. 00909, the Appellate Division, Fourth Department held that valid marriages of same-sex couples performed in other jurisdictions must be recognized in New York.

In Martinez, the plaintiff sued her employer, Monroe Community College (MCC), seeking, in part, a declaration that MCC was required to recognize her valid Canadian marriage to her same-sex partner and provide her partner with spousal health care benefits.

The court noted that New York recognizes all marriages occurring outside of the state unless the marriage is prohibited by the “positive” law of New York, or the marriage is contrary to the prohibitions of natural law, such as those involving incest or polygamy. The court concluded same-sex marriages did not fall within either of the exclusions to the rule.

The Fourth Department reached this conclusion in spite of the recent New York State Court of Appeal’s decision in Hernandez v. Robles, 7 N.Y.3d 338 (2007), in which the court held the New York Constitution did not compel the recognition of same-sex marriages occurring in New York. Rather, because the court in Hernandez indicated the Legislature was free to enact legislation recognizing same-sex marriages, same-sex marriages were not necessarily against public policy in our state, despite MCC’s assertions to the contrary.

From a philosophical standpoint, I agree wholeheartedly with the Fourth Department, just as I found the dissent’s argument in Hernandez to be far more palatable than the majority’s.

In my opinion, marriage, at its most fundamental level, is about the connection and commitment between two people, founded on mutual respect and love, a joining of two souls, entered into by individuals willing to weather the course together, for better or for worse, for richer or for poorer, in sickness and in health.

The Hernandez majority, however, reduces this fine institution to its most base level, and focuses an inordinate amount of attention on heterosexual sex and one potential outcome of that act — a pregnancy.

Although the Fourth Department distinguished the Hernandez decision, I predict it will be pivotal, should this case reach the Court of Appeals, although for an entirely different reason than that discussed in Martinez.

Determination of the issues raised in Hernandez necessarily revolve around the definition of the term “marriage.” The concept is not defined in the Domestic Relations Law and, instead, has been refined through case law.

As explained in Hernandez, “implicitly or explicitly, the Domestic Relations Law limits marriage to opposite-sex couples.” In New York, in other words, the term “marriage” is limited to a marriage contract entered into between a man and a woman. That another jurisdiction chooses to define marriage more broadly than New York may not require our state to expand its concept of marriage.

By way of example, suppose New York enacted a law requiring all dogs transported into the state to be quarantined for one month. Cats, however, are not to be subjected to the requirement.

One day, a woman attempts to enter the state with a dog and asserts it is not subject to the quarantine requirement since her state recently passed legislation deeming all four-legged domesticated animals as “cats”; therefore, what appears to be a “dog” actually is a “cat”.

Under this scenario, New York reasonably could assert that “a dog is a dog,” despite another jurisdiction’s legislation to the contrary, and the animal entering would be quar- antined.

Likewise, because New York defines marriage as between a man and a woman, it is not required to recognize a same- sex commitment made in another jurisdiction since it does not fall within New York’s definition of “marriage.” The issue of whether the out-of-state commitment should be recognized is moot, since the commitment is not a “marriage” under New York law.

In my opinion, the strongest defense to this argument would be that, because the Legislature chose not to specifically define “marriage” in the Domestic Relations Law or elsewhere, its intent was to allow the concept of marriage to change with the times, rather than limiting it to a single, rigid definition.

Is a “Canadian marriage” the same as a “New York marriage” in this context? For now, the answer is “yes.”

It will be interesting to see what tomorrow brings.

Fourth Department Upholds Search Conducted Pursuant to the Navigation Law

Matter of Murtaugh v New York State Dept. of Envtl. Conservation, 2007 NY Slip Op 06085, is an interesting decision that appears at first glance to be a boring, dry decision, but ends on a high note with the discussion of lofty constitutional issues.

At issue was the constitutionality of sections of the Navigation Law that permitted the DEC to enter the premises of the petitioner's motor vehicle dismantling business in order to investigate the alleged release of toxic substances.

The Court concluded that the statutory framework did not violate the petitioner's search and seizure rights:

Although constitutional protections against unreasonable searches and seizures apply to administrative inspections of private commercial property, those engaged in business in industries subject to a complex and pervasive pattern of regular and close supervision and inspection have a substantially diminished expectation of privacy in such business affairs, and that diminished "privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections" (Donovan v Dewey, 452 US 594, 599; see generally Marshall v Barlow's, Inc., 436 US 307, 313; People v Quackenbush, 88 NY2d 534, 541-542). The dismantling of vehicles is a pervasively regulated industry (see People v Cusumano, 108 AD2d 752, 753). Under the statutory scheme, respondents' entry is in furtherance of the substantial governmental interest in environmental protection and remediation, rather than in furtherance of criminal investigation and prosecution (cf. People v Scott, 79 NY2d 474, 498-499; People v Burger, 67 NY2d 338, 344). Moreover, the statute furnishes " a constitutionally adequate substitute for a warrant' " by informing the property owner of the prospect of the inspection and limiting the discretion of the inspecting officers (Quackenbush, 88 NY2d at 542)...We thus conclude that the Navigation Law provisions do not violate the proscription against unreasonable searches and seizures contained in the Fourth Amendment of the United States Constitution or article I, § 12 of the New York State Constitution

I'm not particularly surprised by this holding.  One of the larger projects I've been working on as of late is updating a search and seizure treatise and this holding comports with recent federal court decisions regarding administrative searches.  While I haven't researched this particular issue under New York law and our fine state has been known to expand constitutional rights under our State Constitution, nevertheless, I'd be surprised if this holding was overturned on appeal.

Is Collection of DNA From Probationers Convicted of Non-violent Federal Crimes Constitutional?

You may recall that one of my recent Legal Currents articles for the  Daily Record focused on Gov. Spitzer's proposal to broaden the DNA database.  The article was entitled "Distracted by bright and shiny objects?" and can be found here.

I recently received an email from a regular reader who informed me of a decision by the United States Court of Appeals for the 2d Circuit in US v. Amerson,  Docket Nos. 05-1423-cr; 05-1063-cr, in which the Court concluded that the collection of DNA from probationers convicted of non-violent federal crimes pursuant to the DNA Analysis Backlog Elimination Act 10 of 2000 (“the 2000 DNA Act”), Pub. L. No. 106-546, 114 Stat. 2726 (2000) does not violate the probationers' 4th Amendment right to be free of unreasonable searches and seizures.

The decision, in its entirety, can be found here.

In upholding the DNA collection, the Court relied on the "special needs" exception to the Fourth Amendment, a doctrine which I have examined in the past here and here:

This Court and the Seventh Circuit, on the other hand, have applied the “special9 needs” test to uphold the constitutionality of earlier DNA indexing laws...

(W)e (will) analyze the constitutionality of the 2004 DNA Act as it applies to 16 Appellants under the two-prong special-needs approach. First, in Part I, we consider whether thesearch and seizure is justified by a special need beyond the ordinary needs of normal law enforcement. Concluding that under Nicholas it is, we examine in Part II whether the search was reasonable in light of that special need. We do so by weighing the government’s interest against the intrusion on the Appellants’ privacy interests...

While we do not hold that a probationer has no expectation of privacy in his or her identity,we agree that, like all convicted felons, a probationer’s expectation of privacy in his or her identity is severely diminished...As a result, we conclude that for probationers, as for 4 the incarcerated felons in Nicholas, “[g]iven that the state likely already has a plethora of identifying 5 information about [them], in light of their status as convicted felons,” id., the additional intrusion 6 of privacy entailed by the taking of the DNA sample is small...

(T)he government’s interest in getting appellants’ DNA 5 samples is not much attenuated by the fact that appellants are non-violent felons.  And appellants’ expectation of privacy (as probationers) is no less diminished than that of other categories of probationers. Nor is the degree of intrusion any greater for appellants than for others as to whom DNA testing has been upheld. Under the circumstances, the reasonableness balance can only come  out one way...

Taking and storing samples of DNA under the restrictions of the DNA Act fulfills many  important governmental interests, only some of which are limited to the criminal history of the  subjects of the DNA testing. The invasion of privacy, both immediate, and long term, from DNA testing of convicted felons—even those convicted of non-violent crimes and sentenced only to probation—is, given the safeguards of the 2004 DNA Act, relatively small. Accordingly we conclude that the 2004 DNA Act, as applied to appellants, does not constitute an unreasonable search or seizure and hence does not violate the Fourth Amendment.

Needless to say, I disagree with the Court's conclusion.  As in the cases relying upon the special needs doctrine that I'd discussed in the past, the special needs doctrine should be inapplicable in this case since it is obvious that the primary purpose of collecting DNA is law enforcement--a recognized exception to the special needs doctrine.

The defendants/appellants disagreed with the Court's decision as well, and as such will be filing a petition for certiorari with the United States Supreme Court in July.

I'll keep you advised as to any developments in this case.

Supreme Court Upholds Federal Abortion Ban

I knew it was coming.  I knew it when Alito was confirmed.  I knew deep in my heart that that day would alter the course of women's lives forever.  And, it has.

Inexplicably, in Gonzales v. Carhart, the Supreme Court ignored prior precedent and held in a 5-4 decision that the federal law banning partial birth abortions was facially valid despite the fact that it only contained an exception to the ban in the event of a threat to a woman's life, as opposed to a threat to her health.

And, the majority opinion stated that the facial challenge should not have been allowed in the first instance.  As explained at the SCOTUS blog,

The proper way to make a challenge, if an abortion ban is claimed to harm a woman's right to abortion, is through an as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims "in discrete and well-defined instances" where "a condition has or is likely to occur in which the procedure prohibited by the Act must be used."

In other words, a woman who alleges that her health would be threatened should she continue her pregnancy--something she likely would not learn of until at least 3 months into her pregnancy--will be required to seek assistance in the courts and desperately hope that the case makes it way up to the Supreme Court before she dies.

I'm speechless and, quite frankly, in mourning for the loss of my right and the right of all women to make decisions regarding our own destinies.

All progress made for women since my time on this earth began has been erased as if it never happened. This decision is a disgrace and this day is a dark mark in our history. 

Justice Ginsberg, I stand beside you.  This decision is an abomination:

Ginsburg, in a lengthy statement, said "the Court's opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman's health." She said the federal ban "and the Court's defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court -- and with increasing comprehension of its centrality to women's lives. A decision of the character the Court makes today should not have staying power."

That final comment, concluding angry remarks that were delivered without an open display of emotion, clearly was a suggestion that the ruling might not survive new appointments to the Court -- just as the arrival of Chief Justice John G. Roberts, Jr., and, especially, Justice Samuel A. Alito, Jr. -- had led to the switch she claimed had come about this time. Ginsburg pointedly noted that the Court is "differently composed than it was when we last considered a restrictive abortion regulation" -- in Stenberg in 2000.

(via SCOTUS blog).

Rebel With a Cause, or Without a Clue?

As my regular readers know, I'm now writing a weekly column for Sui Generis' partner The Daily Record.  My prior columns can be accessed here.

This week's Legal Currents column is entitled Rebel With a Cause, or Without a Clue?:

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Jim Stark: Nobody talks to children.
Judy: No, they just tell them.
                           
                             — “Rebel Without a Cause”

I’m not sure Joseph Frederick knew what he was getting into when he unfurled a 14-foot banner that stated “Bong Hits 4 Jesus” on a cold, snowy Alaskan day in January 2002. Or, perhaps he did.

Frederick was a kid who enjoyed pushing the limits and, by all accounts, was a thorn in his school principal’s side. Prior to the “Bong Hits 4 Jesus” incident, police had been called to his school after he refused to leave the commons area, where he was reading an existential novel by Albert Camus.

Another time, he flexed his free speech muscles and refused to stand for the pledge of allegiance, after which he was sent to the principal’s office and threatened with suspension.

But, his rebel yell piece de resistance occurred on the day that the Olympic torch was scheduled to pass by the school. Students were allowed to leave school early to watch the event, and Frederick, who had skipped school that day, stood with friends on a sidewalk located across the street from the school. With the goal of attracting media attention, he strategically unveiled his banner as the torch and camera crews approached.

According to Frederick, a five-day suspension was initially imposed, but the principal increased the suspension to 10 days after Frederick uttered a Thomas Jefferson quote about free speech. Frederick challenged his suspension and then filed a Section 1983 lawsuit alleging that his constitutional right to free speech had been violated.

On March 19, the U.S. Supreme Court heard oral arguments in this case, during which our finest judicial minds used their collective brainpower to decipher the underlying meaning and free speech implications of a nonsensical phrase first seen by Frederick on a snowboard. “Bong Hits 4 Jesus” — a seemingly meaningless slogan made suddenly meaningful by virtue of the possibility that it could change First Amendment jurisprudence for generations of teenage pranksters to come. By either design or mere happenstance, Frederick hit the judicial jackpot.

The issue over which the justices puzzled in Morse v. Frederick is whether Frederick’s unfurling of the offending banner on a sidewalk not located on school property is speech protected by the First Amendment, or whether he engaged in disruptive speech that interfered with the school’s educational mission to combat student drug use.

The latter argument, offered by former White House Independent Counsel Kenneth Starr, has disturbing implications. Essentially, Starr asserts that schools have nearly unlimited jurisdiction to suppress student speech, regardless as to whether it occurs on school grounds.

Under Starr’s argument, there seem to be no restrictions upon what a school’s educational mission includes, and the determination of whether the offensive statement violates the educational mission is a subjective one. Starr would allow school officials the unfettered power to suppress any student speech that does not conform to the limited reality spoonfed to the students by virtue of a limitless educational mission.

As Justice Alito explained during oral arguments, the problem with this position is that it allows schools to “suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions.”

In other words, it would be a big mistake to allow a school’s broadly framed educational mission to squelch the type of discourse often found at the crossroads where adolescent angst meets discriminatory thinking.

Regardless of whether Frederick landed on the doorstep of the highest court as a result of intelligent design or dumb luck, one thing is certain: The outcome will resonate for generations to come.

Should Starr’s alternate reality prevail, in which students are told what to think, the unintended and unfortunate result may be generations of teenage rebels without a clue.

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And, for those who are interested, Frederick, his banner and the olympic torch are shown at the beginning of this video clip of that cold day in Alaska:

New York Court of Appeals--You're Not Damned If You Do

In a rather interesting decision, People v Havrish, 2007 NY Slip Op 02787, the New York Court of Appeals considered whether the defendant could be charged with Criminal Possession of a Weapon in the Fourth Degree where the defendant surrendered a gun in compliance with an order of protection that directed him to turn over his firearms to the police.  At issue was whether the defendant's act of turning over the gun was privileged under the Fifth Amendment.

The Court first examined the essence of the Fifth Amendment's privilege against self incrimination:

The Fifth Amendment guarantees that an individual shall "not be compelled in any criminal case to be a witness against himself" (US Const 5th Amend). "[T]he privilege protects an accused . . . from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature" (Schmerber v California, 384 US 757, 761 [1966]). There are thus two elements to the privilege: the presence of compulsion and the solicitation or receipt by the government of evidence of a testimonial nature.

The Court then considered whether the act of turning over the gun was privileged.  It reiterated the two-prong test established by the Supreme Court in Fisher v United States, 425 US 391 (1976):

First, a court must assess whether the compelled act of production is sufficiently testimonial. Under the Fifth Amendment, evidence is deemed testimonial when it reveals defendant's subjective knowledge or thought processes — when it expresses the contents of defendant's mind...(T)he inquiry is whether the existence of the item sought, or defendant's possession of it, was a "foregone conclusion and the [defendant] adds little or nothing to the sum total of the Government's information by conceding that he in fact has the item"...

Second, a court must determine whether the act of production is incriminating. If the subjective information the government will obtain through the act of production does not "pose any realistic threat of incrimination"...but presents "merely trifling or imaginary hazards of incrimination"...the act enjoys no Fifth Amendment protection. (Internal citations omitted).

The Court then concluded that the two-pronged test had been satisfied in this case since the defendant's surrender of the gun was not a "foregone conclusion" and was sufficiently incriminating to trigger Fifth Amendment protections. 

Thus, the Court concluded that the defendant was most certainly not damned if he did in this particular case and granted his motion to suppress and dismissed the accusatory instrument.  Sounds like the correct (and just) result to me.

Lock ‘Em Up And Throw Away The Key?

As I mentioned last week, Sui Generis has formed a partnership with The Daily Record, a daily legal and business newspaper.  And, I'll also be writing a weekly column for the The Daily Record entitled "Legal Currents." 

My first article was published on Monday, and is entitled "Lock ‘em up and throw away the key?":

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As a society, what do we do with violent and predatory sexual offenders? Is the civil confinement of sex offenders the answer to this elusive problem? Truth be told, I find myself pulled in two directions on this issue.

On the one hand, as an attorney with a criminal defense background, I am offended by the notion that people should be civilly committed indefinitely upon the expiration of their duly served prison sentences simply because they might commit an admittedly horrific crime in the future.

Equally offensive to me is the SORA law, which I find to be problematic for any number of reasons, not the least of which is the unnecessarily broad range of offenses that require registration on the sexual offender registry.

As a mother and a woman, however, I wonder if this particular type of criminal might merit special treatment given the high rates of recidivism for sexual offenders. Certain types of offenders, such as child molesters, are extremely predatory and have little chance of being cured.

If released from prison upon serving their sentences, they will continue to prey upon children while creating future offenders in the process.

For certain classes of sexual predators, something needs to be done to prevent further crimes from being committed. For this reason, the mother in me tends to think that the concept of civil confinement has potential. In theory, it might be possible to strike a balance between protecting the constitutional rights of potential re-offenders and protecting future innocent victims, but only if the program is narrowly tailored to prevent future crimes and applies only to individuals who are convicted of a very limited class of sexual offenses.

Still, the question remains: Is civil confinement that answer?

Our newly-elected governor and state legislators seem to think so, as evidenced by the recent bill signed by Gov. Eliot Spitzer that allows for civil commitment of Level 3 sexual offenders upon the expiration of their prison sentences.

The new law, a product of lengthy closed door meetings between Spitzer and legislative leaders, will implement a procedure requiring mental-health professionals to evaluate Level 3 sex offenders before their sentences expire in order to determine whether they are likely to commit similar crimes.

The attorney general will consider the recommendations when deciding whether to seek civil confinement in court. During a court proceeding, a jury will determine whether a prisoner’s release from prison is appropriate, and a judge will decide whether to confine the offender civilly or impose strict supervision. I’m not entirely convinced that the new law sufficiently limits offenses that would fall under the new requirements for post-release supervision or confinement. The civil confinement law necessarily relies upon the current and, arguably, less than perfect system of making the one-size-fits-all determination of whether registration on the sexual offender registry is required.

Until such problems with SORA are cured, application of the new civil confinement law will be as arbitrary as the classification system upon which it is based.

As to whether the civil confinement law will be effective in preventing future crimes, my gut reaction is that it likely will encounter problems in this area as well. Other states have implemented similar programs with less than stellar results.

It remains to be seen how it will operate in practice, and whether the estimated annual cost of $80 million for the estimated confinement of a mere 100 people and intensive supervision of 250 other offenders, is an effective use of taxpayer dollars.

The mother in me is hopeful that civil confinement will work, while the criminal defense practitioner in me is skeptical. For our children’s sake, I hope my maternal instincts prevail.