Courtroom Weekly: Action in the courts on guns and police chases

August 22, 2013

by: the State Court Staff

Executions, guns and a high-speed chase

Courtroom Weekly The latest and greatest in court cases around the nation In this issue... Featured case News from Indiana News from North Carolina News from Oregon News from Utah

Featured case Missouri Supreme Court approves use of controversial drug for executions   Court: Missouri Supreme Court By Ryan Cherry The execution dates for two death row inmates were set on August 14, 2013 by the Supreme Court of Missouri, even though concerns still exist regarding the drug that the state plans to use for the injections. The drug in question, propofol, has been blamed for the death of former pop star Michael Jackson, and is currently the focus of legal challenges from several death row inmates. According to an article on Reuters.com, the basis for the inmates' challenges is that the drug "causes pain and is cruel and unusual punishment." Although Missouri added the drug to the execution protocol last year, there has yet to be an execution since the new protocol's establishment. One of the reasons for the new protocol is that the makers of the "three-drug cocktail" typically used for executions have prohibited the drugs' continued use in executions. The two inmates scheduled for execution, Allen Nicklasson and Joseph Franklin, were each found guilty of separate murders in 1996 and 1997, respectively. Nicklasson's conviction arises from the 1994 execution of a man who had stopped to help Nicklasson and his two passengers with their broken down car. Nicklasson and his partners forced the good Samaritan to drive them down the road, and then shot him in the back of the head after taking him into a field. One of the two partners was executed in 2009. Franklin's conviction arises from his confession to the 1977 murder of a man who was leaving a bar mitzvah in a suburban area of St. Louis. According an article by MSN, at the time of the confession Franklin "was serving several life sentences in a federal prison for the killing of two black joggers in [Utah] and an interracial couple in [Wisconsin], and the bombing of a synagogue in [Tennessee]." The shooting in St. Louis also resulted in the wounding of two other victims. The reason the use of the sedative propofol as the means for executions is controversial, beyond the argument for or against the death penalty, is because the drug is typically administered by a physician. However, in Missouri, physicians are no longer a part of the execution process. If the drug is not administered properly, some experts say that the inmate could suffer, which is why the executive director of the Death Penalty Information Center in Washington, Richard Dieter, called the act "an experiment with a human subject." Missouri Attorney General Chris Koster, however, stated that "the court has taken an important step to see that justice is finally done for the victims and their families." Missouri's inmates may not be the only ones affected if the state proceeds with the use of propofol as a means for executions. Fresenius Kabi, the U.S. seller of the drug, prohibits its use in executions. Matt Kuhn, a spokesperson for that company, explained that the European Union, due to its strong opposition to the death penalty, could ban the import of propofol from Europe, where it is manufactured, to the U.S. Since the drug is used abundantly in the U.S. by doctors, a ban's impact on patients could be rather significant.

News from Indiana Indiana Supreme Court nullifies adoption after lengthy lawsuit with birth mother   Court: Indiana Supreme Court By Alma Cook In a 5-0 decision, the Indiana Supreme Court nullified the adoption of two fraternal twins over the age of five after the adoption was finalized. The now-ten-year-old twins, whose father is unknown, were originally removed from their mother's care for unspecified reasons at 18 months of age and placed with foster parents. In 2007, the children's appointed guardian sought to terminate the natural mother's parental rights (TPR)—and succeeded in doing so, though the natural mother promptly appealed. While the appeal was being processed, the twins' foster parents petitioned to adopt them. The Department of Child Services granted the request, finalizing the adoption in July of 2008 despite the natural mother's ongoing appeal for parental rights. Because the mother had not sought a stay of judgement, her rights were terminated during that period and she was not notified (as she was not required to be notified) of the adoption. Wrote Justice Loretta H. Rush in the court opinion on August 16, “ Our statutes specifically allow those competing processes [of adoption and termination of parental rights] to overlap. But choosing to do so creates the devastating possibility of jeopardizing a finalized adoption if the underlying TPR judgment is later reversed on appeal. ” That is just what happened here. The Court of Appeals reversed the TPR judgement in September 2008 after taking into account "recent positive changes in [the natural mother's] life." The court determined that though the birth mother had not been entitled to notice of the adoption, the Department of Child Services nevertheless acted "capriciously" by failing to provide such notice and by consenting to the adoption without providing it. They reversed the TPR ruling but did not grant the motion to set aside the adoption decree. Upon appeal, Justice Rush and the other supreme court justices upheld the TPR reversal but went on to set aside the adoption decree as well, ruling that the adoption petition be reset and that the trial court speedily decide on temporary custody for the twins. Concluding the opinion, Justice Rush continued, “ There are no winners in some cases, and this is one of them. Ruling in favor of the adoptive parents would violate the natural mother’s constitutional rights, while the opposite ruling would risk pulling the twins away from the family they have lived with for most of their lives, and the only stable family they have ever known. But despite the twins’ need for permanency, natural parents’ consent is a vital condition precedent to most adoptions—and we must take a narrow view of the exceptions to that principle, out of due regard for the limitations of judicial power into family life, even for very imperfect families. ”

News from North Carolina Registered sex offenders allowed freedom of speech on Facebook   Court: North Carolina Court of Appeals By Jong Son On August 20, 2013, the North Carolina Court of Appeals ruled that a law that prohibits registered sex offenders from accessing social networking websites was unconstitutional because it violated the First Amendment’s guarantee of free speech. The appeal stems from a case involving Lester Gerard Packingham, a registered sex offender, who was active on Facebook and had his own Facebook profile page. An officer of the Durham Police Department, who regularly monitors activity by registered sex offenders on social networking websites, recognized Packingham’s image on Facebook under a different name. Packingham was then convicted for maintaining a personal website and profile page on Facebook in violation of North Carolina's statute, N.C. Gen. Stat. § 14-202.5, which provides: "It is unlawful for a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site." The North Carolina Court of Appeals found the N.C. Gen. Stat. § 14-202.5 to be too broad, in that it prohibited sex offenders from being able to participate in alternative forms of communication. Additionally, the court held that the statute was not narrowly tailored, but instead applied to every sexual offender in the state equally and did not differentiate between sex offenders who had been convicted of sexual battery of an adult and those who had been convicted of sexual offenses towards a minor. The court concluded: “ [The statute] is not narrowly tailored, is vague, and fails to target the “evil” it is intended to rectify. Instead, it arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal. ” North Carolina Attorney General Roy Cooper concedes that the overly broad statute may have to be rewritten, but plans to appeal the decision to the North Carolina Supreme Court. Jim O’Neill, the district attorney for Forsyth County, says that N.C. Gen. Stat. § 14-202.5, implemented in 2008, has helped investigators catch sexual predators who target minors. Forsyth County currently has five hundred registered sex offenders and employs detectives to monitor any online activities. O’Neill remains vigilant, asserting that “[s]exual predators are on social media plain and simple. They are online; they are trying to talk to children.”

News from Oregon Portland's ban on loaded guns upheld   Court: Oregon Supreme Court By Matt Latourelle A Portland law banning the possession of loaded guns in public was upheld by the Oregon Supreme Court on August 15, 2013. The court decided that the ordinance does not infringe upon a citizen's constitutional right to bear arms. The case revolved around Jonathan Christian, who was arrested in 2008 after officers discovered that he was in possession of two loaded 9-mm handguns, as well as additional magazines. There is a mandatory minimum of 30 days in jail for publicly possessing a loaded firearm in Portland. Christian was convicted of violating state and local weapons laws in Multnomah County Circuit Court. The Oregon Court of Appeals upheld the conviction in 2011. On appeal to the state Supreme Court, Deputy Public Defender Neil Byl, Christian's lawyer, argued that the right to bear arms for the purpose of self-defense in one's own home also implies a right to carry loaded firearms in public. The court declined to hear his other argument that the law was over-broad and thus violated the Second Amendment, noting that even the U.S. Supreme Court will not consider such types of arguments except in First Amendment cases. Regarding the "overbreadth" argument, Byl stated, "We knew if we lost that we were going to be in trouble." Byl was right, as the Supreme Court unanimously affirmed the rulings of the lower courts. The court's opinion, written by Justice Richard C. Baldwin, explained: “ Because the right to bear arms is not an absolute right, our Article I, section 27, holdings reflect a judicial recognition that the legislature has wide latitude to enact specific regulations restricting the possession and use of weapons to promote public safety. We have consistently acknowledged the legislature's authority to enact reasonable regulations to promote public safety as long as the enactment does not unduly frustrate the individual right to bear arms for the purpose of self-defense as guaranteed by Article I, section 27. ” Portland's gun law does provide a number of exceptions, such as for those "licensed to carry a concealed handgun" or for "[l]icensed hunters or fishermen while engaged in hunting or fishing." This ruling not only upholds Portland's gun law, but supports similar restrictions throughout Oregon.

News from Utah Law enforcement must protect their target in high-speed pursuits   Court: Utah Supreme Court By Susan Lawrence The Utah Supreme Court reversed a lower court ruling and determined a family may sue a Weber County sheriff's deputy involved in a 2010 high-speed chase which resulted in the death of their son, Wayne Torrie. In making the ruling, the court relied on a strict interpretation of a Utah state law which requires law enforcement officers and emergency vehicle operators to exercise reasonable care when driving to prevent both those who are being chased and bystanders from being injured. The statute exempts emergency vehicles from state traffic laws but requires the drivers of those vehicles to use caution when driving to prevent others from being injured. According to the supreme court, the statute does not exempt officers who are pursuing a suspect from also using reasonable care. On March 23, 2010, Wayne Torrie took his family's SUV without permission after he came home from school. He was reportedly upset about being teased at school and had argued with one of his siblings. When his mother, Raeghn Torrie could not get her son to come home, she contacted the Cache County Sheriff’s Office for assistance. A short time later, her son realized he was being pursued by law enforcement. He began sending his mother texts telling her he was afraid to go to jail and refused to stop. He told her he would crash the SUV and commit suicide because he did not want to be caught by the sheriff. At that time, his mother notified the Cache County Sheriff's Department that her son was suicidal. Torrie continued driving and eventually passed into neighboring Weber County. Officials from Cache County informed Weber County that Torrie could possibly be suicidal. Weber County Deputy Sheriff Denton Harper spotted Torrie and attempted to get him to pull over, but Torrie refused to stop his vehicle. According to Harper, Torrie began to speed away from him, while weaving back and forth between lanes, and Harper pursued. Although Harper indicated he reached speeds of 75 miles per hour during the chase, officials learned later Torrie had been traveling as fast as 90 miles per hour. Less than a minute into the chase, Torrie's vehicle veered off the road and rolled over multiple times. Torrie was thrown out of the car and died instantly. The parents of Torrie filed a lawsuit saying the Weber County Sheriff's Department and Deputy Denton Harper were responsible for the death of their son because the deputy had not exercised proper care when he pursued their son on the high speed chase. Both parties filed summary judgment motions. When the case came before Judge Robert J. Dale on the Second Judicial District Court in Utah, Weber County argued law enforcement officers may be required to avoid injuring bystanders during a high speed pursuit. However, they have no duty to prevent the person they are pursuing from being harmed during a police chase. The judge agreed with the county and dismissed the family's case. In his ruling, the judge stated, "Defendants Weber County and Denton Harper owed no duty to Plaintiff's Decedent, Wayne Torrie". The family appealed the ruling to the supreme court. The supreme court found the district court had dismissed the family's case against Denton Harper prematurely. The court noted a plain language interpretation of applicable Utah law requires law enforcement officers to drive in a reasonably prudent manner when pursuing someone during a high speed chase. Peter Stirba, the attorney for Harper and the sheriff’s office, explained that the decision allows anyone to sue the police who chased them: “ If that person, for whatever reason, gets hurt, they can sue...It sort of creates a perverse incentive to a wrongdoer. ” The attorney for the family, Jim McConkie, had a different view: “ Police officers have rules and regulations they’re supposed to follow. . . (t)hey’re not supposed to chase people if they haven’t committed serious offenses and aren’t a threat to the community. ” The case will be returned to the district court so the case against Deputy Denton Harper can be decided. However, the case against the Weber County Sheriff's Department remains dismissed per the original district court ruling.

See also

• Courtroom Weekly