Ch 12 Public Order, Safety & SecurityPresentation Transcript
Scheb and Scheb, Criminal Law and Procedure 7 th edition Chapter 12: Offenses against Public Order, Safety and Security
Overview of Offenses in this Area
Breaches of the Peace
Vagrancy, Loitering, Curfews, and Panhandling
Motor Vehicle Violations
Offenses against National Security
Terrorism and Weapons of Mass Destruction
Unlawful Assembly, Rout, and Riot: Common-Law Misdemeanors:
If three or more persons met together with the intention of cooperating to disturb the peace by doing an unlawful act, their gathering was an unlawful assembly.
If they took steps to achieve their purpose, it was a rout.
If they actually executed their plans, they committed a riot.
Under the Indiana Code, a person who is a “member of an unlawful assembly who recklessly, knowingly, or intentionally engages in tumultuous conduct commits rioting.”
The offense is punishable as a misdemeanor unless committed while armed with a deadly weapon, in which case it becomes a felony.
West’s Ann. Ind. Code § 35-45-1-2.
The Federal Anti-Riot Act
Applies to persons who travel in or use any facility of interstate and foreign commerce.
Proscribes interstate travel and use of the mail, telegraph, telephone, radio, or television with intent to incite, encourage, participate in, or carry on a riot; or to aid or abet any person in inciting or participating in a riot or committing any act of violence in furtherance of a riot.
18 U.S.C.A. § 2101(a).
The Indiana Code proscribes disorderly conduct:
“ A person who recklessly, knowingly or intentionally: (1) engages in fighting or in tumultuous conduct; (2) makes unreasonable noise and continues to do so after being asked to stop; (3) disrupts a lawful assembly of persons; commits disorderly conduct.…”
West’s Ann. Ind. Code § 35-45-1-3.
“ The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.”
Edwards v. South Carolina (1963)
The Public Forum
“ It is … true that ‘public places’ historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be ‘public forums.’ … In such places, the government’s ability to permissibly restrict expressive conduct is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions ‘are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’ … Additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest.…”
United States v. Grace, 461 U.S. 171 (1983)
Vagrancy and Loitering
At English common law, vagrancy was the crime of “going about without visible means of support.”
The common-law offense of vagrancy has been replaced in most states and communities by laws that prohibit loitering.
Vagrancy and loitering laws have been assailed as an inherently vague offense and courts have struck down such laws as violations of due process.
Chicago v. Morales (1999)
In 1992, the Chicago City Council enacted an ordinance prohibiting criminal street gang members from loitering in any public place.
Over the next three years, the police issued over 89,000 dispersal orders and arrested more than 42,000 people for violating the new law.
In 1999, the United States Supreme Court declared the ordinance unconstitutional.
Writing for the Court, Justice Stevens concluded that the ordinance did not provide “sufficiently specific limits on the enforcement discretion of the police” and failed to meet “constitutional standards for definiteness and clarity.”
The Court found that the ordinance succumbed to the vice of vagueness--that the city council had failed to meet its obligation to specify the criminal law with reasonable precision.
Most curfew laws define juveniles as unmarried persons under age eighteen and prohibit them from being on public streets or in other public places from midnight to 6:00 a.m. unless accompanied by a parent or guardian or another adult approved by the juvenile’s parent or guardian.
Some local ordinances proscribe all begging on public ways; others prohibit “aggressive begging.”
In some instances courts have analyzed the problem based on the “time, place, and manner” doctrine that guides the regulation of expressive conduct in the public forum.
States, and many municipalities, have adopted laws defining a wide range of motor vehicle violations:
failing to yield the right-of-way
failing to observe traffic officers, signs, and signals
driving without required equipment
These are generally strict liability offenses.
In some jurisdictions, these infractions have been decriminalized.
Most states have adopted model laws, providing legal uniformity to the “rules of the road.”
Seat Belts, Cell Phones, and Text Messaging
During the 1980s and the 1990s many state legislatures enacted mandatory seat belt laws and mandatory child restraint laws.
Such laws usually provide for a violator to pay a small fine and have generally been accepted by the driving public and upheld by the courts.
Recent laws in some states prohibit use of cell phones and/or text messaging while driving.
Texting while Driving
California’s Wireless Communications Device Law, effective January 1, 2009, makes it a traffic infraction to write, send, or read a text-based communication on an electronic wireless communications device while driving a motor vehicle.
In July 2009, Tennessee became the 10 th state to ban texting while driving.
There are numerous state and federal statutory prohibitions against the manufacture, sale, possession, and use of firearms and other weapons.
Federal law prohibits the sale, possession, and use of machine guns and other automatic weapons.
Today, a great debate rages in the land over the need for tougher gun control legislation and/or increased enforcement of existing prohibitions.
The Second Amendment
“ A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”
Key interpretive questions:
What is a “militia”?
What does it mean to be “well regulated”?
Who are the “people”?
What does it mean to “keep and bear”?
What are “arms”?
United States v. Miller (1939)
The Supreme Court upheld a federal law banning the interstate transportation of certain firearms.
Miller, who had been arrested for transporting a double-barreled sawed-off shotgun from Oklahoma to Arkansas, sought the protection of the Second Amendment.
The Court rejected Miller’s argument, asserting that “we cannot say that the 2nd Amendment guarantees the right to keep and bear such an instrument.”
The Federal Gun Control Act of 1968 Codified at 18 U.S.C.A. § 921 et seq .
Established a comprehensive regime governing the distribution of firearms.
Prohibits dealers from transferring handguns to persons under 21, nonresidents of the dealer’s state, and those prohibited by state or local laws from purchasing or possessing firearms.
Forbids possession of a firearm by, and transfer of a firearm to convicted felons, users of controlled substances, persons adjudicated as incompetent or committed to mental institutions, illegal aliens, persons dishonorably discharged from the military, persons who have renounced their citizenship, and fugitives from justice.
Lewis v. United States (1980)
The Court reaffirmed the Miller precedent.
In upholding a federal gun control act, the Court said:
“ These legislative restrictions on the use of firearms are neither based on constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. . . . [T]he Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’”
United States v. Evans 928 F.2d 858 (USCA 9 th Cir. 1991)
In this case the 9 th Circuit upheld the federal statute that prohibits possession of unregistered machine guns, 26 U.S.C.A. Sec. 5861(d) (1982).
The appellant, Creed M. Evans, was convicted of making false statements to the ATF.
Evans argued that the mere possession of machine guns is not sufficiently related to interstate commerce to permit Congress to make it a criminal offense.
Does the 9th Circuit’s reasoning here square with the Supreme Court’s decision in United States v. Lopez ?
The Brady Bill
In 1991, former President Reagan shocked many observers by endorsing a bill that would require a 5-day waiting period on the purchase of handguns.
The bill was named for Jim Brady, Reagan’s press secretary who was shot and incapacitated by John Hinkley’s assassination attempt on Reagan in 1981.
The purpose of the waiting period was to allow for a background check on the prospective buyer, with the goal of prohibiting convicted felons or persons with a history of mental illness (e.g. Hinckley) from buying a gun.
The Brady Bill (cont.)
The Brady Handgun Violence Prevention Act of 1993, codified at 18 U.S.C.A. § 922, was passed with the strong support of President Clinton.
In Printz v. U.S. (1997) the Supreme Court struck down provisions requiring state and local law enforcement officers to conduct background checks on prospective handgun purchasers.
The Court said these provisions infringed state sovereignty as protected by the 10th Amendment.
The Brady Act remains in effect, as the FBI now operates a national database for background checks.
D.C. v. Heller (2008)
The Supreme Court struck down a District of Columbia ordinance that effectively prohibited possession of handguns.
The Court held that the Second Amendment protects a personal right to possess a firearm for “traditionally lawful purposes” irrespective of one’s service in any militia.
State Gun Control Laws
Typically prohibit manufacture/sale/possession of machine guns, assault rifles, silencers, sawed-off shotguns, exploding bullets, armor piercing bullets.
Most states also have statutes making it unlawful to carry concealed firearms.
Some states allow citizens to carry handguns if they obtain permits.
Many states also require registration of handguns and waiting periods/background checks to purchase handguns.
Some cities have attempted to ban handguns altogether.
Gun Control & the 2 nd Amendment
As currently interpreted, the Second Amendment does not pose a significant constitutional barrier to the enactment or enforcement of federal gun control laws.
The Second Amendment has never been incorporated into the 14 th Amendment; therefore, it does not apply to state or local gun control efforts.
The U.S. Constitution vests in Congress the power “[t]o establish an uniform Rule of Naturalization...."
Federal statutes prohibit improper entry by aliens, make it an offense for an alien who has been removed from the United States to reenter the country, and include a variety of offenses that make it unlawful to enter the country by false and misleading actions or by knowingly entering into a marriage or establishing a commercial enterprise to evade the immigration laws.
Controversy over Immigration Laws
Lax enforcement of immigration laws in the face of massive illegal immigration across the nation’s southern border has led to a divisive political battle over “immigration reform.”
In 2006 the president and Congress began to seriously address the problem, but by 2009 major political differences continued to thwart Congressional action to achieve a unified approach to the numerous issues surrounding immigration and border control.
Offenses involving National Security
The U.S. Constitution provides that treason against the United States “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
No one has been convicted of treason since the Second World War.
Federal Statute on Treason
“ Whoever owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.…”
18 U.S.C.A. § 2381.
Sabotage is the intentional destruction of the country’s military infrastructure by an enemy agent or civilian and is proscribed by federal and state laws.
18 U.S.C.A. § 2153 prohibits sabotage during time of war or national emergency and carries a thirty-year maximum prison term.
Most states have similar laws, many of them enacted during World War II.
Federal Sabotage Law
“ Whoever, with intent to injure, interfere with, or obstruct the national defense of the United States, willfully injures, destroys, contaminates or infects, or attempts to so injure, destroy, contaminate or infect any national-defense material, national-defense premises, or national-defense utilities, shall be fined under this title or imprisoned not more than 20 years, or both, and, if death results to any person, shall be imprisoned for any term of years or for life.”
18 U.S.C.A. § 2155(a).
Espionage consists of turning over state secrets to a foreign government and is covered by a number of federal statutes which criminalize gathering or transmitting defense information “with intent … that the information … be used to the injury of the United States, or to the advantage of any foreign nation.”
The Intelligence Identities Protection Act of 1982 prohibits disclosure of the identities of undercover intelligence officers, agents, informants, and their “sources.”
Sedition is the incitement of insurrection or revolution.
The Smith Act (1940) makes it a crime for a person to knowingly or willfully advocate the overthrow of federal, state, or local govt. by force, violence, or assassination.
In 1957, the Supreme Court held that the Smith Act prohibited “advocacy directed at promoting unlawful action,” as distinct from “advocacy of abstract doctrine.”
In Brandenburg v. Ohio (1969), the Court held that mere advocacy could never be criminalized in the absence of “imminent lawless action.”
Antiterrorism and Effective Death Penalty Act of 1996
Expanded federal jurisdiction with respect to investigation and prosecution of international terrorism.
Made it a crime for persons in the U.S. or subject to U.S. jurisdiction to provide material support to groups designated as terrorist organizations by the State Dept.
18 U.S.C.A. § 2339B.
USA PATRIOT Act
§ 802 defines terrorism as “activities that … involve criminal acts dangerous to human life that appear to be intended to intimidate or coerce a civilian population, to influence government policy by intimidation or coercion, or to affect government conduct by mass destruction, assassination, or kidnapping.”
§ 803 prohibits knowingly harboring persons who have committed or who are about to commit an act of terrorism.
§ 805 applies prohibitions against providing material support for terrorism offenses outside of the U.S.
§ 806 subjects to civil forfeiture all assets, foreign or domestic, of individuals and terrorist organizations that plan or perpetrate domestic or international terrorism against the United States.
Federal Statute on Weapons of Mass Destruction
“ Whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens, or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both. There is extraterritorial Federal jurisdiction over an offense under this section committed by or against a national of the United States.”