News from Illinois
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Judge orders journalist to reveal confidential sources
Court: Illinois Twelfth Judicial Circuit Court
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| Joe Hosey, a journalist for Patch.com in Illinois refused to comply with a court order to reveal the identity of a confidential source of police reports in a particularly gruesome double murder case. Hosey was found guilty of "minor direct criminal contempt" as a result. The reporter has been ordered to pay $1,000 in court costs, additional fines of $300 a day for three months, and spend up to three months in jail.[5] Patch Media immediately appealed the ruling, and the penalties have been stayed until the appeal process is complete.[6]
On September 20, 2013, Will County Judge Gerald R. Kinney of the Twelfth Circuit revoked Hosey of his reporter’s privilege by requiring him to turn over leaked documents and possibly testify about how he obtained police reports about a double murder in Joliet.[7] Judge Kinney’s decision was based on a motion filed by Attorney Chuck Bertz, who represented one of the defendants charged with the murder. Bertz argued that the articles published by Hosey could taint the jury pool.[8] The judge ruled that the court had exhausted all other available sources of information after over 500 signed affidavits stating they were not responsible for the leak were collected from the Joliet Police Department, the Will County State’s Attorney’s office and lawyers in the case. Kinney’s ruling states that obtaining the source of the leak is necessary for the public interest, because it could potentially impact the murder trial or prove someone violated grand jury secrecy.[8]
Patch’s attorney Ken Schmetter disagrees with the ruling, arguing that shield laws should apply in Patch’s case. Chuck Tobin, a top media lawyer, commented:
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The identity of the person who leaked the police reports to the Patch won't help the court decide whether the defendants are guilty or innocent of these terrible murders. So there doesn't seem to be any interest in this case that would outweigh the public's interest, under the Illinois shield law, in helping reporters honor their promises to sources.[5][4]
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Lucy Dalglish, a former head of the Reporters Committee for Freedom of the Press explained that there are a couple factors that might sway a judge in Kinney’s case. First, judges tend to give more leeway to requests like Bertz’s coming from the defense, based on the Sixth Amendment’s fair trial imperative.[5] Dalglish also noted that Kinney may feel that grand jury secrecy was compromised, something that can be very upsetting to judges. Despite this, she agrees with Schmetter and Tobin that revealing the source would not affect the outcome of the case.[5]
Rulings like Hosey’s present a balancing act to judges, who must decide if the need to uncover the source outweighs First Amendment and freedom of information concerns. |
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News from Louisiana
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Louisiana Supreme Court upholds ruling against anti-panhandling law
Court: Louisiana Supreme Court
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| The Louisiana Supreme Court has affirmed a district court’s ruling that New Orleans’s anti-begging law is unconstitutional.[9]
The law, penned in 1968, has a turbulent history. It was first challenged in 1984 when a federal court found its conditions—which prohibited hitchhiking, selling goods or begging on city streets—"overbroad". The court requested that the ordinance be modified to bar these solicitations only when they threaten public safety, but the city did not comply.[10]
A decade later, in 1995, the city council revisited the statute—but contrary to the federal court’s previous suggestion, it expanded the law’s reach, adding restrictions against soliciting charitable donations and advertising for employment. The ordinance was eventually challenged again when it resurfaced in the state supreme court in 2009. A city attorney promised that the law would cease to be enforced "until such a time as it is amended or re-enacted in a substantially altered form."[9]
Yet between 2009 and 2012, over 1,000 panhandlers were arrested under this supposedly suspended law. One of them was Joseph Thornton, 24, who was begging for money at a New Orleans intersection when he was discovered by police to have a bag of cocaine hidden in his mouth.[9]
Thornton was arrested on the begging charge as well as a felony charge for the drugs, but when District Judge Arthur Hunter researched the history of the anti-begging law, he found that the search of Thornton’s person had been unwarranted. The drug charges were dismissed because the city’s agreement to shelve the anti-begging law rendered the evidence illegally obtained.[9]
Hunter reprimanded the city for never rewriting or rescinding the anti-panhandling law. The New Orleans District Attorney’s Office appealed his ruling in June to the 4th Circuit Court of Appeal, which upheld the decision and found that "begging is not sufficient grounds to raise reasonable suspicion, a necessary requirement for an investigatory stop of the defendant."[9]
Upon a second appeal. the Louisiana Supreme Court declined to hear the case, leaving in place the ruling against the begging law.[9] |
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News from California
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California appellate court upholds block on handgun ammo law
Court: California Fifth District Court of Appeal
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| On November 6, 2013, California's Fifth District Appellate Court upheld a lower court's decision to block a law that limits the purchase of handgun ammunition.
Assembly Bill No. 962, which would require people to purchase handgun ammunition in person, rather than online or by mail, was approved by Gov. Schwarzenegger in 2009. Additionally, the law would require purchasers to provide their thumbprint when buying the ammo and would require sellers to keep records of the transactions.[11]
The law would have gone into effect in February of 2011, if it had not been for Judge Jeffrey Y. Hamilton of the Fresno County Superior Court. Judge Hamilton blocked the law from being enforced, saying that it was unconstitutionally vague.
The appellate court agreed that the law was too vague, specifically because it only applied to "handgun ammunition". The court's job was to find out if a certain type of ammunition was used primarily for handguns. However, they found that such ammunition is often interchangeable with different types of guns. Regarding testimony from gun-expert Blake Graham, the court explained: "Given there are over a thousand different cartridges, and accepting the undisputed premise that almost all of them can be used interchangeably with handguns and rifles, Mr. Graham’s statements underscore the uncertainty of the statutory language."[12]
Attorney C.D. Michel, of the National Rifle Association, was arguing against the law. He stated that it made it "impossible for vendors or law enforcement or ammunition purchasers to learn what was or wasn't regulated."[13] Because of the inability to clearly define "handgun ammunition," Justices Gene Gomes and Stephen Kane ruled that the law was unconstitutional.
Justice Dennis Cornell dissented, explaining that though the definition of "handgun ammunition" could be more clearly defined, the law shouldn't be completely thrown out. He said that he would limit the application of the law "to those cartridges that generally are recognized as 'principally for use' in handguns."[12] He also pointed to the recognized ammunition encyclopedia, Cartridges of the World, which has a specific section titled "Current Handgun Cartridges of the World". Justice Cornell explained, "The logical inference from this evidence is that certain ammunition is recognized as handgun ammunition, despite its possible use in rifles."[12]
The case could still go to the California Supreme Court, if the Attorney General wishes to appeal. |
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News from Florida
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A tale of two mothers
Court: Florida Supreme Court
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| The Supreme Court of Florida has ruled in a custody battle between two lesbian mothers over their daughter. The child, bore by one mother from an egg given by the other, was born in 2004. Shortly after the birth of the child, the birth mother fled to Australia and was out of contact with the biological mother. The biological mother was able to locate the birth mother and child through a private investigator and promptly pursued a custody battle.
Florida law forces egg and sperm donors to relinquish parental rights over children born from donated material. The court, however, found such law to be inapplicable in this instance, as the law pertains to anonymous donors only. The opinion found that the couple clearly had an agreement to raise the child together, as evidenced by their behavior before the girl was born.[14] The couple had even provided the baby girl with a hyphenated last name, further evidencing the intent for the child to be raised in a two-parent household.[15]
The majority opinion said it could not find a reason to put the child under the custody of one parent instead of both. There was no pertinent law or issue demanding an "all-or-nothing" custody decision if the aforementioned donor law had been found inapplicable. The Florida Supreme Court ordered a lower court to determine visitation and custody details based on the best interest of the nine-year-old girl.
Though Florida does not recognize same sex marriages, the majority opinion claimed the biological mother should have the same rights as an unwed father who assumed parental responsibilities. According to the court, "It is not the biological relationship per se, but the assumption of parental responsibilities which is of constitutional significance."[16]
Some speculation arose about whether or not this was a win for GLBT rights. The likening of a second mother to a fatherly role has "normalized" the relationship to some, but the court proper was silent on such implications. The court did determine, however, that it is net beneficial for the child to be in a home with two loving parents instead of one, again fueling controversy over the intent of the rule.[16] |
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News from New Mexico
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No jail time for New Mexico armed robber
Court: New Mexico First Judicial District Court
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| In a ruling on November 1, 2013, a man who pleaded guilty to armed robbery and attempted armed robbery in Santa Fe was not sentenced to any jail time in New Mexico. Instead, after appearing before Judge Sylvia LaMar of the First District Court, he received a suspended 12-year sentence, which means that he will not serve jail time unless he re-offends. He is also required to surrender himself in South Carolina by November 19, where he is wanted for armed robbery, possession of a firearm during a violent crime, and three counts of kidnapping.[17][18]
George Smith, the defendant, had been a deputy in South Carolina, and had also worked briefly for the Rio Arriba County Sheriff's Office and the Española Police Department in New Mexico. The charges of armed robberies were in connection to two hold-ups that occurred in December 2012 at Santa Fe area pharmacies. In the first incident, Smith demanded hydrocodone, an opiate painkiller, while pointing a gun at the pharmacist. He left after he was told the pharmacy did not have hydrocondone. In the second incident, he held up a another pharmacy and got away with 500 oxycodone pills, another perscription painkiller. The charges in South Carolina are also a result of an armed robbery of a pharmacy, where he took four bottles of oxycodone pills.
Additional charges against Smith of aggravated assault with a deadly weapon were dropped. These were related to an incident with his wife, Deputy District Attorney Dorie Biagianti-Smith. She reported her husband in December after seeing the pharmacy surveillance video in the news and recognized that it was him. He was found a few days later in a hotel, suffering from an overdose. In July, when Smith was out of jail, he allegedly threatened Biagianti-Smith with a fireplace poker and a gun in their home, and took her cell phone to prevent her from seeking help. After she managed to get away for help the next day, Smith barricaded himself in the house. This resulted in a standoff with a police SWAT team for four hours, which ended when the team fired gas canisters inside to home to force Smith out.[18]
District attorney Donald Gallegos, explained why he offered the deal in Smith's case. He believes that Smith would receive an equal or greater sentence in South Carolina due to more stringent laws there. "We knew early that [Smith] was wanted out of South Carolina...He's not our problem any more," he said. He also mentioned that proceeding this way would save New Mexico taxpayers money on trial and jail costs. However, if Smith is not convicted in South Carolina, he will not serve any time for his crimes.[17]
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In a sense we are taking a risk. But barring something crazy happening, I am confident he's going to be held accountable - District Attorney Donald Gallego[4]
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Many are confused by the lack of jail time in Smith's sentence. The Albuquerque Journal calls the sentence "baffling," and a poll in the Santa Fe New Mexican, showed that 75 percent of responders believed that Smith should have been sent to prison in New Mexico, instead of counting on South Carolina to sentence him.[19][17] |
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News from Virginia
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Virginia Supreme Court overturns settlement for VA-Tech shooting victims' families
Court: Virginia Supreme Court
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| Virginia Tech did not act negligently when it failed to alert the university community that a gunman was roaming the campus during the infamous mass-shooting incident in 2007, according to the Virginia Supreme Court. The court’s decision overturned a lower court ruling that had found the university negligent in a wrongful death suit brought by the families of two victims, Erin Nicole Peterson and Julia Kathleen Pryde.[20]
At issue was whether the university should have taken additional steps to warn university students, faculty and staff of potential danger after the shooter, Seung-Hui Cho, shot two people in a dormitory at 7:30am. A little more than two hours later, at approximately 9:45, Cho chained the doors at an academic hall on campus and went on a shooting rampage that resulted in the deaths of 30 more people, including Peterson and Pryde.[21]
The young women’s families were the only ones who had refused to be part of the $11 million settlement that the commonwealth reached with the other victims’ families in 2008, which prevented them from suing the university or the state. The Peterson and Pryde families maintained that they wanted to uncover truths that they felt officials were withholding.[22] Their primary contention was that if officials had notified the university of the 7:30am shooting incident and placed the campus on lockdown at that time, additional deaths may have been prevented.
Despite the two families' arguments, the unanimous decision ruled that “there was no duty for the commonwealth to warn students about the potential for criminal acts” by a third party as a matter of law. Indeed, according to University of Richmond School of Law professor Carl Tobias, “there usually isn’t much of a duty to protect someone against third party criminal acts” in tort law, “unless the acts are foreseeable.”[22] The court’s decision aligned with the university’s argument that officials and law enforcement had acted appropriately based on the information they had at the time. The opinion stated:
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It cannot be said that it was known or reasonably foreseeable that students…would fall victim to criminal harm.[20][4]
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The Virginia Supreme Court’s decision reversed the ruling of the Montgomery County Circuit Court, which had found the state negligent. A jury panel had awarded the two families $4 million each, though the award was later reduced to $100,000 each. An appeal to the U.S. Supreme Court may be possible, but “extremely unlikely,” according to Tobias. “I don’t know that there are any other avenues left for the plaintiffs in the civil justice system,” he said.[22]
The incident—one of the largest mass-shootings in U.S. history—resulted in the deaths of 32 people and spurred colleges and universities nationwide to develop plans for quickly issuing alerts to students, faculty and staff in the event of an emergency.[22] |
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