President Trump’s Model Justice Scalia Was a Criminal Defense Hero

President Trump campaigned on “law and order.” Everyone knows that there is an all important looming Supreme Court nomination on the horizon. President Trump has said that he wants the next U.S. Supreme Court Justice to be in the mold of the late Justice Scalia. If this is so, he may be in for a surprise when a case regarding criminal defendant’s rights comes on the Court’s docket.

In the legal world, rights of criminal defendants have not followed the traditional left/right model. In fact, the Justice Scalia often sided with criminal defendants in recent history. He actually authored the famous Crawford v. Washington opinion, which required accusers to physically come into court and present live testimony against criminal defendants. This case overturned 24 years of precedent, which previously allowed for accusers hearsay to be used against defendants as long as it was considered to be “reliable” by the trial court. In Rodriguez v. United States, he agreed that the Government cannot conduct a dog sniff of a home without a warrant. In Riley v. California, he reasoned that the Government cannot search a cell phone without a warrant when one is arrested. Justice Scalia helped strike down a state statute that allowed a trial judge unilaterally to increase a sentence if they found by a preponderance of the evidence that the crime was motivated by the race of the victim in Apprendi v. New Jersey. His vote was critical in that 5-4 decision, as the Court held an “aggravator” like this one had to be decided by a jury, and required proof beyond all reasonable doubt.

In fact, there are multiple instances of Justice Scalia going farther than Justice Stevens, widely regarded to be one of the Court’s more “liberal” Justices of the last quarter century. In Kyllo v. United States, a 5-4 decision that Justice Scalia authored, the Court threw out a conviction of Mr. Kyllo, reasoning that it was illegal for the government to use a heat sensor to see inside someones house without a warrant. Justice Stevens voted to allow the conviction to stand. In Arizona v. Gant, Justice Scalia again went farther than Justice Stevens on the rights of criminal defendants. Justice Scalia said it was a “charade” that officers should be able to search a car after an occupants arrest due to officer safety and it left too much discretion to individual officers.

If President Trump wants to nominate someone like Justice Scalia, maybe criminal defendants do not have so much to worry about after all despite all the “law and order” rhetoric. If President Trump wants “law and order”, he should probably model his U.S. Supreme Court nominee after someone else.

How Donald Trump Can Increase Stop and Frisk on Day 1

President Elect Donald Trump touted stop and frisk as an effective tool against crime during his run for president. Many of his opponents labeled him as a racist for heralding this policy. Even though local law enforcement do not take orders directly from the President, there is one thing Donald Trump can do day one to increase the use of stop and frisk among law enforcement across the nation without Congress.

President Elect Trump derided the “War on Police” during his campaign. President Obama launched 24 civil rights investigations against state and local policy agencies, most recently into the Baltimore Police Department. These investigations almost always allege, at least in part, excessive use of stop and frisk. His Department of Justice issued a report for the Police Department of Ferguson, Missouri, alleging “Ferguson Police Department engages in a pattern of unconstitutional stops…in violation of the fourth amendment.” In 2014 the Department of Justice claimed at least 75% of the stop and frisks that local police in Newark, New Jersey conducted were illegal. These DOJ investigations have caused push back from local police. For example, in 2013, after an investigation by the DOJ into Miami, Florida police practices, the Miami Fraternal Order of Police President Javier Ortiz wrote “there is clearly a disconnect between the USDOJ and the reality of what our Miami police officers confront on a daily basis.”

These investigations sometimes lead to police departments voluntarily changing their ways or an informal agreement. What really marked President Obama’s administration, was an increased use of consent decrees. A consent decree is when the Department of Justice forces direct federal regulation on local police departments. President Obama has secured 11 consent decrees in his term of president, compared to 3 during President George W. Bush’s term. The Department of Justice is part of the executive branch, and President Trump could instantly halt existing investigations and decline to start future ones.

President Obama has worked to limit stop and frisk throughout his presidency with increased federal oversight of local police. The Department of Justice has been President Obama’s main tool to influence police behavior. President Trump could change this, day one, without Congress.

FL Medical Marijuana Will Be Among Broadest in the Nation

Medical Marijuana’s passage via Amendment 2 has left many more questions than answers. We have poured over the full text of the amendment to pull together as much information as possible for those who want to know how Marijuana law is going to change in Florida.

Eligibility

Anyone with HIV, AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s or any other debilitating medical conditions of the same kind or class as or comparable to those enumerated will be able to get Medical Marijuana. ANY medical disorder can qualify you for Medical Marijuana if you can find a doctor that says it is comparable to one of these diseases. This could include chronic pain, migraines, severe anxiety or really, anything. It will be near impossible for anyone to challenge a doctor’s opinion that someone should qualify for medical marijuana.

Dispensaries

Unlike many states, Florida will have dispensaries to provide medical marijuana. In fact, there will likely be places where people can actually use marijuana on premises like a cannabis club. Amendment 2 provided for the legalization of Medical Marijuana Treatment Centers that can “administer” marijuana or products containing marijuana. Even in Colorado, the wild west of Marijuana legalization where Marijuana is legal for recreational purposes, these cannabis clubs are of questionable legality. There will almost certainly be an upcoming court battle regarding this provision.

Caregivers

One of the biggest potential issues I foresee is with caregivers. A caregiver is someone who agrees to assist a patient with medical marijuana use. They will be permitted to possess marijuana. They will be able to walk into a dispensary and buy marijuana. They will not be permitted to consume marijuana. This will be likely impossible to enforce, as consuming marijuana is not even illegal in Florida. Possession is. Unless a police officer actually catches someone in the act, caregivers will likely have near impunity. These caregivers will be subject to background checks, and there will likely be limits on both how many caregivers a patient may have and how many patients a caregiver may take care of.

Limitations

The amendment does not insulate anyone from being prosecuted under federal law. With the election of President Trump, it is unclear whether the feds will clamp down on state medical marijuana programs. Medical Marijuana will not be covered by health insurance. There is no protection from a job firing you for using marijuana, even if you are following the program’s guidelines. Employers, correctional facilities, and educational facilities do not have to accommodate medical marijuana usage. Obviously, one will not be allowed to use a vehicle or boat while under the influence of marijuana. Children under 18 need their parents permission.

Timeline

It is up to the Florida Department of Health to develop all of the rules regarding Medical Marijuana usage by July 1st, 2017. However, the Florida Legislature could supersede the department and create the rules themselves. The Legislature convenes from March-May in 2017, so we will learn a lot more then. The Florida Department of Health has until October 1st , 2017 to start issuing licenses. If the Florida Department of Health refuses to comply, there will be a looming lawsuit and the Court will likely force the Department to act or create rules themselves.

Lingering Questions

Although the Amendment passed with 70%+, many senators and house members are from districts where medical marijuana is not popular, especially with the base that votes in primaries and in midterms. Governor Rick Scott and his Department of Health have vehemently opposed most forms of medical marijuana. I will be tracking the following questions closely: Will home growing be legal? Will there be a 90 day waiting period similar to the rules promulgated for low-THC marijuana usage? What will the quantity limits be? Will there be THC % limits? How many dispensary licenses will the state issue?

 

The preceding is not legal advice and is provided merely as informational.

Questions? Comments? Call Nathan Nevins Law at 954-249-3144.