Impossibility, What

If you're looking for inspiration in the California Civil Code this weekend, look no further than section 1597:

IMPOSSIBILITY, WHAT. Everything is deemed possible except that which is impossible in the nature of things.

The first two words of the statute appear to have been dictated by someone who had expected an impossible contract to be performed, but just learned that the entire contract was void under California law.

I prefer the statute standing alone with no further explanation. But readers interested in learning more can start by knowing that it is not legally impossible to build and operate a sawmill, while ensuring that no sawdust or debris from the mill fall into a stream. Peterson v. Hubbard, 9 P. 106, 107 (1885). It is, however, impossible to grade and level a parcel of land on which there are many trees without removing some of those trees. Greathouse v. Daleno, 57 Cal. App. 187, 190 (1922).

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New California Law on Care of Pets in Divorce Proceedings

The San Diego Union-Tribune reports that California recently passed a law (AB 22764) clarifying how courts may take into account care of pets in determining who will receive them following divorce proceedings.

The text of the new section 2605 of the Family Code (which will go into effect on January 1, 2019) is as follows:

2605. (a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal. 

(b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal. 

(c) For purposes of this section, the following definitions shall apply: 

(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter. 

(2) “Pet animal” means any animal that is community property and kept as a household pet.

Prior to the passage of this law, pets were deemed community property to be split equally among the parties to the proceedings. Now, courts have a formal basis for considering which of the parties to the divorce fed the pet, took the pet to the vet, or cared for the pet in other ways in determining which of the parties should get custody.

Notably, subsection (c)(2) specifies that this law only applies to pets that are "community property," so this law does not apply to pets that either of the parties may have had before the marriage. As for pets that both parties bought or adopted together, but before they were married, this could be complicated. If one of the parties paid for the pet, the court may well view that pet as that party's separate property. If the parties adopted the pet from a farm in northwest Iowa without making any payments, this could make things more difficult to determine. The parties could also agree in writing that a pet owned prior to the marriage is deemed community property following the marriage.

All of this seems very complicated, so the California legislature would do well to pass a law clarifying the disposition of pets obtained by two people in a relationship before the marriage. A simple solution would be preferable, such as (just off the top of my head) a law that the pet should go to the third party the married parties know from law school who frequently cares for the pet while the married parties are out of town. That law has yet to materialize, but at least for now, judges have a formal basis to consider care of pets when determining who gets custody.

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Montclair Passes Broad Ordinance to Combat "Distracted Walking"

The city of Montclair in Southern California recently passed an ordinance that bans crossing the street while talking on the phone, looking at the screen of an electronic device, or wearing headphones or earbuds on both ears (regardless of whether they are playing music).

Many outlets have reported on this ordinance. I learned about it this morning from a teaser for a local public radio report that you can find here. Illustrious publications such as the LA Times reported on the ordinance. Local outlets as well report on it here and here.

Because I'm a lawyer with a blog and not a "journalist," I'm going to depart from the standard practice that all of these reports have in common, which is to fail to provide a link to the text of the ordinance. Here it is. You're welcome. Here, also, are the minutes for the December 4, 2017 meeting where this Ordinance was approved.  The minutes contained the ordinance number (17-791), which finally led me to the text. (Two links to the text in one post. I'm out of control.) 

To make things even crazier, here's (most of) the text of the municipal code sections that the ordinance added to the Montclair Municipal Code (and which became effective on January 3, 2018):

8.02.010. Definitions. 
As used in this Title, the following definitions shall apply. For purposes of Title 8, these definitions shall supersede any other definitions of the same terms elsewhere in this Code.  

Emergency Responders include, but are not limited to, public safety officers of either a municipal or county police department or fire department, emergency medical technicians, paramedics, private ambulance service responders, emergency management workers, and federal and state law enforcement and fire service officers on duty and responding to an emergency service request.  

Mobile Electronic Device means any handheld, head- or body-mounted, or portable electronic equipment capable of providing wireless and/or data communication between two or more persons or a device for providing amusement, including but not limited to a cellular phone, smart phone, text messaging device, paging device, personal digital assistant, laptop computer, video game, video/audio player, digital photographic device, or any other similar electronic device. 

Pedestrian means a person who is afoot or who is using any of the following: (1) a means of conveyance propelled by human power other than a bicycle; or (2) an electric personal assistive mobility device.  

Personal Audio Equipment means any device placed in, on or around a person's ears capable of providing an audible sound, including but not limited to headphones or ear buds.  

Viewing means looking in the direction of the screen of a mobile electronic device.  

Chapter 8.28 PEDESTRIANS  

8.28.020. Pedestrian Use of Mobile Electronic Devices.  

A. No pedestrian shall cross a street or highway while engaged in a phone call, viewing a mobile electronic device or with both ears covered or obstructed by personal audio equipment.  

B. Upon presenting evidence, it is an affirmative defense to any citation for a violation of subsection (A) that the cited person was engaged in, or making, a "911" emergency communication with a mobile electronic device.  

C. Emergency responders viewing a mobile electronic device, or whose ears are covered or obstructed by audio equipment, while in the performance and scope of his or her official duties are exempt from subsection (A).  

D. Persons with medically prescribed hearing aides [sic] are exempt from subsection (A).  

E. Any person who violates any provision of this Chapter is guilty of an infraction violation punishable in accordance with Chapter 1 .1 2 of Title 1 of this Code.

A few things.

Montclair City Manager Edwin Edward Starr said that he wanted to address "distracted walking" in the city, and that he eventually found Honolulu's distracted walking ordinance which was passed in 2017. (For the record, the LA Times did not link to the text of Honolulu's ordinance, but the Daily Bulletin did).

I too had heard of Honolulu's ordinance, which I blogged about here. I concluded that while Honolulu's ordinance could give rise to some strange situations and maybe abuse of discretion in its enforcement, it was narrow enough that these problems either would not arise, or at least only have a minimal negative effect. Starr claims that he "took cues" from the Honolulu ordinance, but it is unclear what this means, as Montclair's ordinance prohibits far more conduct than Honolulu's ordinance.

Honolulu banned looking at the screen of an electric device while crossing the street. This makes sense because if a pedestrian is looking at the screen, they are not looking elsewhere -- such as to either side to ensure that no cars are coming, or ahead to see if the "Walk" sign is indeed lit. Montclair, on the other hand, bans looking at screens, but also bans talking on phones and having headphones on both ears while crossing the street. These activities may distract pedestrians to a certain degree, but they at least involve circumstances where the pedestrian not necessarily looking at the screen, and therefore far less likely to be blindsided by a car or to fall into a pothole.

Not Montclair's ordinance, however.  Montclairs broad ban means that anyone who is jogging while listening to music must now remove their headphones before crossing a street. The ordinance does not defined "engaged in a phone call," so it is not clear if simply putting a phone down by one's side before crossing the road is fine, as the phone is still "engaged" in that call. The safest bet would be to hang up your phone while crossing the street, so good luck if you are on the phone asking for directions to anywhere in Montclair.

While Starr and his staff who drafted the ordinance attempted to curtail its foolish overreach to exempt people with hearing aids from the ban's gratuitous scope, they even failed at this.  The ordinance states that people with medically prescribed "hearing aides" are exempt from the ban.  This apparently refers to the rare circumstance in which a doctor decides to address a patient's hearing loss by prescribing two or more assistants to follow the hard-of-hearing person around and yell any words that the person may not have heard, or scream at the person to alert them to quiet noises that may otherwise be missed. I think it would have been better had they exempted people with "hearing aids," but I'm not the municipal-code-drafter.

If Montclair had copied and pasted Honolulu's ordinance, that would have been fine. But the ordinance that Montclair passed prohibits a far greater range of conduct, which could give rise to selective enforcement of the law. After all, if the number of people who violate the ordinance is far greater than the number who may be practically cited, it falls on law enforcement to decide when to enforce it and against whom the ordinance should be enforced. This makes it all the more likely that the law will be enforced along racial or class-based lines.

"But it's only a $100 fine!" a supporter of the ordinance may say. To which I respond: $100 is a significant amount for some, these penalties could add up since they prohibit such a routine activity, and fines are often accompanied by various court and administrative fees that expand the amount that people end up needing to pay.

"But the city is going to put 'stencils' on every crosswalk corner warning people not to use phones!" a supporter may argue. To which I respond: the sign itself should be enough to alert people, removing the need for an ordinance, and the city's plan to put up "decals depicting a no-cellphone symbol below the words: 'Don't be Distracted'" is misleading because those decals imply that only cellphone use is prohibited when, in fact, the ordinance prohibits far more.

Honolulu's ordinance banning looking at screens while crossing the street was fine, if perhaps unnecessary. Montclair's ordinance is sloppy, overly-broad, and should never have been passed.

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Supreme Court Declines to Hear Second Amendment Challenge to California Gun Restrictions

Various news outlets, including the LA Times, report that the United States Supreme Court recently declined to hear a case challenging California's 10-day waiting period for purchasing firearms. The New York Times reports on the denial of certiorari here. The case, Silvester v. Becerra, joins a long line of Second Amendment cases that the Supreme Court has refused to hear. From the LA Times:

In 2008 and 2010, the high court struck down ordinances in Washington, D.C., and Chicago that prohibited the private possession of handguns as violations of 2nd Amendment. Americans have a right to have guns at home for self-defense, the court said in 5-4 decisions.

But since then, the justices have turned down gun rights advocates who have sued to challenge gun regulations based on the 2nd Amendment.

"There are simply not four justices who are eager to jump back into this fray," said UCLA law professor Adam Winkler, an expert on gun rights. It takes the votes of at least four justices to grant review of a case. "The California case highlights that the gun debate will play out in the legislatures and in Congress."

Most of the reports on this case fail to note who brought the Second Amendment challenge. The case was brought by two California gun owners (and two nonprofits) who argued that the 10-day waiting period was an unconstitutional burden on their right to bear arms. The fact that the petitioners were gun owners served to strengthen their argument that a 10-day period was unnecessary for running a background check (the petitioners had already passed the check on obtaining their other firearms) and for petitioners to "cool down" before purchasing firearms on a violent impulse (the petitioners already owned guns, so if they had violent intentions, they would already be capable of acting on them). Adam Winkler (the law professor quoted in the LA Times article above) raises this point, among others in an informative Twitter thread which begins with the tweet below:

The Supreme Court's refusal to decide whether California's 10-day waiting period is unconstitutional indicates that the majority of justices do not share the NRA's view on the scope of the Second Amendment. https://t.co/b8uG8P3zGi

— Adam Winkler (@adamwinkler) February 20, 2018

Winkler's main point in the thread is that the Court is unwilling to take on what may be an easy Second Amendment case. Rather than addressing broad questions of carrying firearms in public, the case was limited to a narrow set of circumstances: a 10-day waiting period on people who already owned guns. Winkler recognizes, however, that the case may not be as strong as the petitioners though, as the fact that they currently own guns means that their ability to defend themselves should not be significantly infringed by a delay in purchasing additional guns.

This case has been drawing attention because it was decided very soon after the recent school shooting in Parkland, Florida, and also because Justice Clarence Thomas authored a lengthy dissent to the Court's decision not to hear the case. Thomas attacks the Ninth Circuit for failing to properly apply intermediate scrutiny to the 10-day waiting period, and argues that the Ninth Circuit upheld the constitutionality of the restriction based on speculation as to the law's effects and assumptions that the law would not significantly burden firearm purchasers. Thomas criticizes the Court's decision not to hear the case as the latest in a long line of failures to take up Second Amendment cases, arguing that "If a lower court treated another right so cavalierly, I have little doubt that this court would intervene." Those familiar with the Court's Fourth Amendment jurisprudence got a chuckle out of this proclamation.

I have doubts about the claims Thomas makes in his dissent, largely for Winkler's point that I highlighted above -- that these particular petitioners already own firearms, and therefore can defend themselves with the guns they already have. The Court, in District of Columbia v. Heller, held that the right of self-defense is "central" to the Second Amendment's protections, and the petitioners would face an uphill battle in claiming that this right was significantly burdened. Perhaps this is why no other conservative justices joined in Thomas's dissent.

As a final note, Thomas cites to Footnote 27 of the Heller opinion to support his claim that the appropriate level of scrutiny for laws restricting the Second Amendment must be higher than "rational basis" scrutiny. Footnote 27 of Heller states:

Justice BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 2850-2851. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 602, 128 S.Ct. 2146, 2153-2154, 2008 WL 2329768, *6-7, 170 L.Ed.2d 975 (2008). In those cases, "rational basis" is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) ("There may be narrower scope for operation of the presumption of constitutionality [i.e.,narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments ..."). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

Because the Court in Heller determined that the District of Columbia's firearm restriction would not prevail under any standard of scrutiny, this footnote is dicta, although Thomas cites it as precedent in support of his claim that a level of review higher than rational-basis is required. I have not previously evaluated this footnote at length, although I did locate this commentary by Josh Blackman expressing confusing over the footnote and whether it is consistent with the Court's jurisprudence.

The footnote does not seem correct to me, as it would wreak havoc on equal protection law if it were the law. The Fourteenth Amendment guarantees equal protection under the law, but many laws apply to certain people or groups, and unless these distinctions are based on "protected classes" of individuals, the distinctions are generally upheld as constitutional as long as there is a rational basis for the different treatment. (See, e.g. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464-465 (1981)). The equal protection guarantee is in a constitutional amendment (albeit not in the "first ten"), but the logic of Footnote 27 would require any law that treated any group differently to be subject to a level of scrutiny beyond rational basis. This could result in a crippling level of challenges against legislation, and would be contrary to extensive precedent.

Silvester joins the ranks of the numerous other Second Amendment challenges the Supreme Court has refused to hear. It remains unclear when the Court will choose to clarify the scope of Second Amendment protections, and despite a great deal of noisy debate on gun control, it is far from certain whether further gun regulations will be implemented on the state or federal level as mass shootings continue to occur.

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Marijuana, Federalism, and Guns

The Wall Street Journal reports:

28 states and Washington D.C., allow marijuana use in some form, including eight that allow recreational use. Yet federal law still holds that anyone who uses marijuana, even medicinally, is doing so illegally and can’t buy a gun. 

That is upsetting advocates for both gun owners and pot smokers, groups that don’t always find themselves on the same side of the cultural divide. 

“This idea that you somehow waive your Second Amendment rights if you smoke marijuana” is wrong, said Keith Stroup, founder of NORML, which advocates marijuana legalization. “In particular, if you are using marijuana as a medicine, the idea that you have to choose between your health and the Second Amendment is offensive.” 

“The Gun Control Act prohibitions are governed by the Controlled Substances Act, and marijuana remains an illegal, controlled substance under federal law,” said Justice Department spokesman Peter Carr.

This issue sets up the possibility of a very strange coalition of marijuana and gun advocates, and leads to Republican senators like Lisa Murkowski making the following statements:

Ms. Murkowski wrote Attorney General Loretta Lynch in March urging her to reconsider the policy. “In my judgment, the disqualification of an entire class of marijuana users acting consistent with state law from possessing any firearm merits a review of federal legal policy,” she wrote.

The article notes that the Ninth Circuit has held that banning those holding medicinal marijuana cards from purchasing firearms does not violate the Amendment. That case is Wilson v. Lynch, and you can find the full opinion here.

The Wall Street Journal's article highlights one of the numerous tensions between state and federal law regulating marijuana -- tensions that will doubtless gain more attention and prompt more dissent as more states continue to legalize recreational and medical marijuana. Erwin Chemerinsky, Jolene Forman, Allen Hopper, and Sam Kamin explore the federalism conflicts that marijuana legalization creates in this notable article in the UCLA Law Review. Here is the (somewhat lengthy) abstract:

The struggle over marijuana regulation is one of the most important federalism conflicts in a generation. The ongoing clash of federal and state marijuana laws forces us to consider the preemptive power of federal drug laws and the appropriate roles for state and federal governments in setting drug policy. This conflict also creates debilitating instability and uncertainty on the ground in those states moving from prohibition to regulation of marijuana. 

While the courts have yet to establish the precise contours of federal preemption doctrine in this context, we argue that the preemptive reach of the federal Controlled Substances Act (CSA) is relatively modest. Recognition of this legal reality likely played a significant role in the recent Department of Justice (DOJ) decision not to challenge the Colorado and Washington State ballot initiatives legalizing and regulating marijuana for adult use. Yet even if the federal government honors its commitment to not enforce federal drug laws against those complying with robust state regulatory regimes, the ancillary consequences flowing from the continuing federal prohibition remain profound. Banks, attorneys, insurance companies, potential investors, and others—justifiably concerned about violating federal law—are reluctant to provide investment capital, legal advice, or other basic professional services necessary for marijuana businesses to function. Those using marijuana in compliance with state law still risk losing their jobs, parental rights, and many government benefits if their marijuana use is discovered. 

We suggest an incremental and effective solution that would allow willing states to experiment with novel regulatory approaches while leaving the federal prohibition intact for the remaining states: The federal government should adopt a cooperative federalism approach that allows states meeting specified federal criteria—criteria along lines that the DOJ has already set forth—to opt out of the CSA provisions relating to marijuana. State law satisfying these federal guidelines would exclusively govern marijuana activities within those states opting out of the CSA but nothing would change in those states content with the CSA’s terms. This proposed solution embodies the best of federalism by empowering state experimentation with marijuana regulation while maintaining a significant federal role in minimizing the impact of those experiments on states wishing to proceed under the federal marijuana prohibition.

It will be interesting to see if any other conservative politicians join Murkowski in protesting the application of federal gun law to marijuana use legalized by states. Conservative politicians who take Murkowski's critical stance walk a fine line between appearing too restrictive towards gun rights or too favorable towards marijuana users.

I tentatively predict that Republicans in the House of Representatives will be less likely to criticize federal gun laws, even if they are from a state that legalized recreational or medicinal marijuana. This is because their particular constituency may not have favored the policy ultimately adopted by the state, while senators who represent a broader constituency may be more likely to favor policies adopted by their states as a whole. Let's keep an eye on Representatives Kevin McCarthy and David Valadao (both R-CA) to see if they take stances similar to Murkowski. (I'm just naming the members of Congress I was able to locate after doing a Google search for which members of Congress represented any portion of Bakersfield, California).

While waiting for Representatives McCarthy, Valadao, and others to take a stance, I recommend reading the Chemerinsky, et al. article in full.

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No, It is Not Legal to Smoke Marijuana While Walking On the Sidewalk in Downtown Los Angeles

...or in any other California city or town for that matter. On November 8, California passed Proposition 64 (text of the Proposition here, analysis here) which legalized the recreational use of marijuana. The LA Times reports on the passage of Prop 64 here. From the LA Times:

The approval of the ballot measure creates the largest market for marijuana products in the U.S. It comes six years after California voters narrowly rejected a similar measure. Activists said passage would be an important moment in a fight for marijuana legalization across the U.S.

“We are very excited that citizens of California voted to end the failed policy of marijuana prohibition," said Nate Bradley, executive director of the California Cannabis Industry Assn. "Proposition 64 will allow California to take its rightful place as the center of cannabis innovation, research and development.”

Discouraged law enforcement officials said they will closely monitor implementation of the ballot measure.

At this point, it looks like the sites I typically link to for California laws have not yet been updated to reflect Prop 64's passage. I will add links to those sections when they become available. For now, the text of the news laws is available in the text of the proposition itself.

The central statute in Prop 64 is the newly created Health and Safety Code 11362.1 which states:

(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
 

(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;
 

(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products;
 

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;
 

(4) Smoke or ingest marijuana or marijuana products; and  

(5) Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 21 years of age or older without any compensation whatsoever.
 

(b) Paragraph (5) of subdivision (a) is intended to meet the requirements of subdivision (f) of Section 863 of Title 21 of the United States Code (21 U.S.C. § 863(f)) by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute marijuana accessories.

(c) Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.

What was I thinking with my extremely specific, negatively worded title? True, it has been a little off-putting that in the three days since Prop 64's passage I have:

1. Walked through a cloud of marijuana smoke to get to the front door of my office building in the center of downtown Los Angeles;
2. Walked past a young professional in a suit on the sidewalk in downtown Los Angeles in the early evening who was smoking marijuana while chatting with friends;
3. Had the privilege of being stuck behind a slow person taking up the entire sidewalk (which, in itself, should be a crime) who also happened to be smoking marijuana.

But all of this looks legal right?

Not so fast. Newly created Health and Safety Code section 11362.3 states:

(a) Nothing in Section 11362.1 shall be construed to permit any person to:

(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Section 26200 of the Business and Professions Code.

(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.

(3) Smoke marijuana or marijuana products within 1,000 feet of a school, day care center, or youth center while children are present at such a school, day care center, or youth center, except in or upon the grounds of a private residence or in accordance with Section 26200 of the Business and Professions Code or Chapter 3.5 of Division 8 of the Business and Professions Code and only if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present.

(4) Possess an open container or open package of marijuana or marijuana products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(5) Possess, smoke or ingest marijuana or marijuana products in or upon the grounds of a school, day care center, or youth center while children are present.

(6) Manufacture concentrated cannabis using a volatile solvent, unless done in accordance with a license under Chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code.

(7) Smoke or ingest marijuana or marijuana products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(8) Smoke or ingest marijuana or marijuana products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation except as permitted on a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation that is operated in accordance with Section 26200 of the Business and Professions Code and while no persons under the age of 21 years are present.

Smoking marijuana is prohibited in any public place, unless the place is a business registered to sell marijuana (a quick summary of the exception in Business and Professions Code section 26200). This means that people walking down the sidewalk in a city or suburb or outside of a home or office building are in a public place and therefore violating Section 11362.3, which is an infraction (under the newly created Health and Safety Code section 11362.4).

Notably, while Section 11361.1 states that permitted marijuana possession or use cannot serve as a basis for search or seizure by law enforcement, Section 11361.3's prohibition on marijuana use in public and possession of open containers of marijuana in vehicles covers most conduct that would have served as the basis for such searches and seizures before Proposition 64's passage. Those who thought that Prop 64 would reduce incidents of search and seizure due to officers' detecting the scent of marijuana were therefore mistaken.

Those considering taking advantage of California's new marijuana laws should consider smoking marijuana as a combination of smoking cigarettes and drinking alcohol. You cannot smoke cigarettes inside of (most) businesses or (in Los Angeles) on restaurant patios -- and you cannot smoke marijuana in these locations either. You cannot drink a beer while walking down a sidewalk -- and you cannot smoke marijuana while walking down the sidewalk either. You cannot drive with an open container of alcohol -- and you cannot drive with an open container of marijuana either.

Would-be marijuana smokers should treat smoking marijuana as subject to the combined restrictions on alcohol and cigarettes, and should therefore avoid smoking in public -- particularly if they are in downtown Los Angeles during the early morning or evening hours when I am most likely to be outside. We'll all be better off that way.

READ MORE - No, It is Not Legal to Smoke Marijuana While Walking On the Sidewalk in Downtown Los Angeles

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Oakland's Resistance to Mass Surveillance: Would it Play Out the Same Way Today?

The BBC has this interesting article on an attempt by the City of Oakland, California to adopt a wide-ranging surveillance system, and the resistance to the city's efforts. From the article:

Most cities, including Oakland, have cameras monitoring traffic intersections and public areas. But a Domain Awareness Centre, or DAC, is far more sophisticated. It is still based around a bank of screens, but the camera feeds are augmented by data from weather reports, shipping movements, social media chatter, email records, emergency calls and other data sources. 

The port of Oakland had been given federal funds in 2008 to build a DAC as part of a post-9/11 push to protect critical infrastructure from terrorist attack. 

At some point, the city council decided to extend the system to cover the whole of Oakland and its population of 400,000 people. 

. . .

Hundreds of new cameras would be installed across the city and data would be incorporated from from licence plate readers, gunshot-detection microphones, social media, and, in later phases, facial recognition software and programmes that can recognise people from the way they walk. 

The city said it needed an early warning system to give "first responders" a head start when dealing with emergencies like chemical spills and earthquakes, as well as major crime and terrorist incidents. 

But privacy campaigners in the city were alarmed at the thought of the Oakland Police Department having access to an all-pervasive real-time surveillance network. Particularly one that did not have a policy on what data would be stored and for how long. 

The article goes on to report that the Oakland City Counsel hosted a "marathon" meeting on March 4, 2014 to debate the scope of the DAC. At the meeting, privacy advocates, former "Occupy" protesters, and members of Oakland's African American and Muslim communities spoke out against the DAC, and the proposed surveillance program was ultimately scaled back "dramatically."

I blogged about the federal grant Oakland received back in 2013. In that post, I shared the concern of many of the privacy advocates cited by the article that the widespread surveillance system would be implemented or employed in a manner that would lead to disproportionate surveillance of racial minorities and less-wealthy citizens.

Oakland's attempt at surveillance, and the resistance the attempt inspired, is an interesting case study for the implementation of widespread, automated security measures in urban settings. The BBC suggests that the timing of the Snowden leaks gave momentum to the protest against the proposed surveillance -- as both the content of the Snowden revelations and Oakland's proposals involved the issue of technologically enabled mass surveillance.

I am curious as to whether the same level of resistance would arise in today's political climate, in which most attention seems focused on instances of excessive force employed by police officers and fear of excessive force in personal encounters with officers. These issues seem far-removed from questions of systematic surveillance practices their broader impact on privacy. Indeed, as I discuss at length in this post, today's discussions of policing practices often include calls for body cameras despite warnings from groups like the ACLU that these cameras may lead to systematic privacy violations.

Moreover, those concerned with police excessive force may be tempted to advocate for wider, automated surveillance systems. These systems may appear to enforce the law in a manner that avoids officer discretion, which may arguably reduce the incidence, or opportunities for instances, of excessive force. But as commentators like Elizabeth Joh point out, officers can still exercise discretion with widespread, automatic surveillance systems by focusing those systems on particular people or groups of people.

More cities will likely attempt to adopt wider, more technologically sophisticated surveillance systems as time goes on and as the technology becomes more accessible. I suspect that resistance to these proposals will be less pronounced than in 2014 as notions of mass surveillance become more normalized and as long as protests against law enforcement remain focused on the actions of individual officers rather than on the policies and procedures adopted by departments and municipalities as a whole.

READ MORE - Oakland's Resistance to Mass Surveillance: Would it Play Out the Same Way Today?

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Volokh (and Dolinko's) Lost Maxims of Equity

Here's some informative Monday evening scholarship for those who are interested in learning more about remedies, equity, or life in general. My favorite maxim, which I try to include in every motion I write is "Equity delights in a good practical joke," although "Equity is crunchy on the outside, soft and chewy on the inside," is a close second.

For those interested in California's attempt at generating interesting maxims / fortune cookie sayings, check out this post on California's Maxims of Jurisprudence.

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California Lawsuits Allege That Suspension of Drivers' Licenses Violates Due Process

The Los Angeles Times reports:

Civil rights lawyers filed suit Tuesday accusing the Los Angeles Superior Court of improperly suspending driving privileges for tens of thousands of poor people because they can’t afford to pay their traffic fines. 

The suit said the court triggers license suspensions by the Department of Motor Vehicles without determining whether the motorists “willfully” ignored fines or were too broke to pay the often exorbitant penalties. The suspensions disproportionately hurt black and Latino people, the suit alleged. 

“If they are poor and don’t have the money to pay, by definition, they cannot be found to have willfully failed to pay,” said Antionette Dozier of the Western Center on Law and Poverty, one of the lawyers on the case. “They are just poor.”

The ACLU reports that they recently filed a similar lawsuit in Solano County:

A lawsuit was filed today against Solano County Superior Court, challenging the court’s practice of suspending the driver’s licenses of people who are too poor to pay exorbitant traffic fines. In 2015, over 11,000 driver’s licenses were suspended in Solano County for failure to pay alone. In California, millions of people do not have valid driver’s licenses because they cannot afford to pay traffic fines and fees. This is the first lawsuit in California to challenge the suspension of driver’s licenses as a means of collecting unpaid traffic fines. 

Lead plaintiff in the suit is Rubicon, a nonprofit that provides employment, career, financial, legal and health & wellness services thousands of low-income people across the Bay Area. “Many of Rubicon’s program participants rely upon having a driver’s license to find or keep employment,” said Jane Fischberg, CEO, Rubicon Programs. “When their license is suspended due to traffic fines and fees they cannot afford to pay, our participants’ lives are put on hold, and their families suffer.”:

Here is the complaint for the ACLU lawsuit. I have not yet been able to find a copy of the Los Angeles County lawsuit. The ACLU complaint and this press release on the Los Angeles complaint indicate that both lawsuits allege violations of due process rights when drivers' licenses are suspended due to failure to pay traffic fines.

Vehicle Code section 14601.1 criminalizes driving on a suspended license. There is a mandatory minimum fine of $300 for first time offenses, and a mandatory minimum $500 fine for offenses that occur within five years of an initial violation. With court fees and penalties factored in, these fines can total to thousands of dollars. These can be a substantial -- if not impossible -- burden on people whose licenses were suspended due to failure to pay fines on other traffic offenses. And, as this report suggests, the burden of suspended licenses tends to fall disproportionately on racial minorities and the poor.

Unfortunately, I do not have the time to investigate the legal questions these lawsuits raise to give an evaluation of the complaints' merits. But I do think that these lawsuits highlight an important, if under-emphasized aspect of California criminal law. The mandatory fines accompanying suspended license violations may render it impossible for those convicted to pay off their fines and obtain the ability to drive.

In areas of California where driving is a virtual necessity, these laws and their associated penalties may present an insurmountable obstacle on those who are convicted. While these violations are misdemeanors or infractions, the impact they have on people's lives can be profound. These lawsuits will hopefully draw attention to this unfortunate reality, and perhaps will prompt changes that lead to a more practical set of suspended license laws.

DISCLOSURES

One of the organizations representing the Plaintiff in the Los Angeles lawsuit is A New Way of Life, which runs a reentry clinic in conjunction with UCLA School of Law's El Centro legal clinics program. I volunteered for the reentry clinic from 2011 to 2014. On the other hand, I filed and prosecuted dozens of driving on suspended license cases between 2014 and 2015 while I worked for the Orange County District Attorney's Office.  So it is up to you, dear reader, to determine the direction of my potential biases.

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Evaluating the Pokemon Go Class Action Lawsuit

Several news outlets have reports on Marder v. Niantic, Inc., filed July 29, 2016 in the Federal District Court for the Northern District of California. A copy of the complaint is available here.

Coverage of the complaint is available here, here, here, and here, although the Boston Herald seems to have the most direct quotes from various people involved in the suit or otherwise wronged by Niantic's Pokemon Go app.

The Complaint outlines Pokemon Go's success, but notes that the game places "PokeStops" and "Gyms" -- locations that attract players -- on or near private property. The Complaint states that Niantic "blithely" acknowledges that players may trespass, although a round of updates a few days ago added more explicit admonishments against trespassing. The Complaint also notes several times in bold and italicized letters that "Niantic even placed three Pokéstops within the United States Holocaust Memorial Museum."

Strong stuff.

The Complaint goes on to describe the terrors inflicted on the named Plaintiff, Jeffrey Marder:

In the days following the U.S. release of Pokémon Go, Plaintiff became aware that strangers were gathering outside of his home, holding up their mobile phones as if they were taking pictures. At least five individuals knocked on Plaintiff’s door, informed Plaintiff that there was a Pokémon in his backyard, and asked for access to Plaintiff’s backyard in order to “catch” the Pokémon.

The Complaint goes on to cite other instances of Pokemon Go causing people to drive or park near people's houses, and again notes that "Niantic placed at least three Pokéstops within the United States Holocaust Memorial Museum in Washington, D.C." (emphasis [unfortunately] in the original).

Interestingly, one of the stories the Complaint cites is that of Boon Sheridan, whose house used to be a church. Sheridan reported that the game made his house into a Gym and that many players would park outside or drive slowly past. The Boston Herald managed to get in touch with Sheridan, however, and he stated that he complained to Niantic who removed the Gym designation from his house within 48 hours. Sheridan further stated that he likely would not join Marder's lawsuit.

The Complaint alleges causes of action for nuisance (invasion of the use and enjoyment of one's land) and unjust enrichment (Defendants received monetary benefits from their alleged tortious conduct). The Complaint seeks class action status for the class defined as:

All persons in the United States who own property (i) the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application or (ii) abutting property the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application.

While I will readily acknowledge that the intricacies of class action litigation are not the focus of my legal practice or research, my initial reaction is that this class definition will face an uphill battle in proving commonality among the class members. Like the class members in Wal Mart v. Dukes who were thwarted by the jump from an individual experience of sex discrimination to a business-wide policy of discrimination, here, the Plaintiff must show that class members living on or near property designated as PokeStops suffer a similar loss of enjoyment of their land. This will be difficult for Plaintiff to show.

I base this assessment on the game's design and Plaintiff's choice to limit the class definition to Plaintiffs owning property near Gyms and PokeStops. Plaintiff will be hard-pressed to show that class members tend to have people knocking on their doors in search of Pokemon as a result of PokeStops or Gyms placed on the property. Off the bat, Gyms are not a source of catching Pokemon -- players simply need to be within a certain distance of the Gym in order to interact with it. That distance used to be 100 meters, after the latest round of updates, it is apparently 70 meters. Even with the decreased distance, there should often be no need to approach or knock on the door of the property where the Gym is located.

If the property has a PokeStop, it may be the location of a "lure" module which increases the frequency of Pokemon appearing within a radius surrounding that location -- but again, the 70-meter radius is often large enough that players need not be inside the property (or within its curtilage, if I may borrow from Fourth Amendment law) to take advantage of the lure. Players can likely stand nearby on a sidewalk which, while potentially aggravating to an ornery landowner, does not appear to amount to a loss of enjoyment of the property. After all, people normally walk, stand, and allow their dogs to defecate on and near sidewalks. Increased foot traffic and the occasional presence of nostalgic hipsters is not much of a change.

In previous posts, I criticized New York State Senators for allowing their staff members to play Pokemon Go for weeks in order to generate ill-conceived policies to combat problems that do not exist. Here, however, I feel that Plaintiff and his attorneys would have done well to play the game a bit more before filing this class action. Doing so would reveal the significant obstacle to establishing the commonality element of his class definition.

And, after all, isn't this exactly what summer associates are for?

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Does California Need a Law Prohibiting Drones Near Wildfires?

Ars Technica reports:

Firefighters working to contain a wildfire in the San Gabriel Mountains of Southern California were temporarily thwarted this weekend when pilots for the Monrovia Fire Department (MFD) spotted a few private drones in their path. For low-flying fire-fighting planes carrying fire retardant and smoke jumpers, an errant drone could mean life or death for the pilot and any crew. As such, the fire department decided to temporarily ground all aircraft on Saturday morning.

ABC News has further coverage on drone interference with efforts to combat wildfires in California.

Additionally, Ars Technica reports on the first arrest in California for flying a drone too close to a wilfire:

Law enforcement officers working for the California Department of Forestry and Fire Protection (Cal Fire) arrested Eric Wamser (PDF), a 57-year-old Placer County man, last Friday [July 19, 2016] for flying his drone too close to a wildfire burning north of Sacramento, California. 

Wamser’s arrest is the first of its kind in the state. 

The incident occurred on the evening of June 28 when the Trailhead Fire broke out. A drone was spotted above the fire, so authorities temporarily grounded firefighting aircraft for about 30 minutes. 

. . .

Wamser was not charged with flying a drone specifically, nor has he been penalized by the Federal Aviation Administration (FAA), but rather he was charged with a more general misdemeanor for “interfering with firefighting efforts.” He was discovered as the drone pilot after he posted some images from the drone on social media. Cal Fire and Placer County law enforcement did not say how they discovered the social media posts, but a Cal Fire spokesperson speaking to Ars suggested Wamser had posted a video and that it had been publicly available. Local news outlet KCRA reports that Wamser had posted a video on Facebook.

One might point to this coverage of drone interference with wildfires as examples of why a law prohibiting drone flight near wildfires is necessary. Utah passed such a law (which also authorizes firefighters to shoot down or otherwise neutralize offending drones). And proposals for this type of law are not new to California. Indeed, I wrote a post about such a law that Governor Jerry Brown vetoed last October. As I noted in that post, Governor Brown's reason to veto that bill, among others, was that it added an unnecessary crime to an already bloated Penal Code.

In light of all the reports of drone interference with firefighting in 2016, was Governor Brown wrong to veto the bill outlawing flying drones near wildfires?

The short answer is no. California Penal Code section 148.2 prohibits the willful interference with the lawful efforts of firefighters in the discharge of their official duties. This is the statute under which Wamser is being prosecuted. Any reasonable drone pilot should know that flying a drone near a wildfire will interfere with firefighters' ability to combat the fire from the air. With all the coverage of drone interference and statements by various agencies regarding obstacles to firefighting, this should be common knowledge. Adding a drone-specific law would be redundant, since section 148.2 is already sufficient to prosecute those whose drones interfere with firefighting efforts.

The best response to this that I can think of is that while a drone-specific law would be redundant, it might draw more attention to the problem of drone interference with firefighting. A drone-specific law would likely attract media coverage -- particularly coverage by outlets directed towards drone users. Drone operators may not be aware of Penal Code section 148.2, but they would likely take notice of a drone-specific criminal law.

Ultimately, I don't think it is worth adding a redundant crime to the Penal Code simply out of hope that it will draw more attention than existing laws. Instead, officials should continue to emphasize that even though there are no laws specifically banning drones near wildfires, flying a drone near a wildfire will likely interfere with firefighting efforts and therefore violate Penal Code section 148.2.

Moreover, governments can act to prevent drone-related offenses before they happen, rendering prosecution unnecessary. Of particular note are efforts toward an alert system warning drone pilots of no-fly zones. Between warning systems and emphasizing existing criminal laws, it hopefully will not take too many more instances of firefighting interference and arrests before drone pilots get the message.

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