The Blue Party Gets Blue-Slipped

By Joseph Damele

On November 21, 2013, the Senate changed the game for judicial nominations. Previously, President Obama had faced unprecedented opposition for nominations to the judiciary. According to politifact.com, there have been 147 filibusters to derail a nomination vote for the judiciary. 79 of these were against President Obama.[1]

The “nuclear option” stopped this by allowing cloture to occur by a simple majority rather than the 60-member majority. This did not apply to the Supreme Court, which still requires a 60-member majority for cloture. Soon after, the first post rule change confirmation of a judge occurred when Patricia Millet was given the position of associate justice to the D.C. Circuit. However, as Jeffery Toobin predicted, the blue slip was another weapon that the Republicans could use.[2]

A blue slip is simply a letter asking for approval of the nomination by the senators from the state in which the nominee would sit if confirmed. Nothing in the Senate rules mentions this procedure, but it began in the early 20th century as a polite way to ask for the advice of the home state senator. Since then, it has evolved to something of an informal veto to block or delay nominations.[3] Toobin took notice of this practice and noted that in states with two Republican senators, there were a greater number of vacancies even prior to the rule change.

Toobin went on to predict that a state with a Republican senator would eventually use this informal mechanism to continue to thwart the President’s nominations. After the rule change, President Obama re-nominated 54 candidates for these judiciary positions. Earlier this month, however, Senator Marco Rubio, R-Fl. did in fact use the blue slip to block the re-nomination of Judge William Thomas to the Southern District of Florida. The White House has since decided it would not nominate Judge Thomas a third time.[4]

The interesting part of this use of the blue slip is that Senator Rubio recommended him to President Obama in 2012. Another interesting fact is that, if confirmed, Judge Thomas would be the first openly gay African American on the federal bench. Some, such as Chad Cronon (president of the Central Florida Gay and Lesbian Association), have claimed this is open hostility to the fact that Judge Thomas is a homosexual. Some believe this event related to Senator Rubio’s blue slip withholding of another African American nominee, Brian Davis, and shows his dislike of the black community. Still others believe this is simply a push to regain support from the Senator’s political base due to a botched policy statement regarding illegal Hispanic populations.

In response, Senator Rubio’s office declared two cases that Judge Thomas had presided over as the reasons for failing to return the blue slip. Due to these cases, Rubio has since questioned his judicial temperament and sentencing practices, despite the ABA finding Judge Thomas exceptionally qualified. In these cases, Judge Thomas reportedly cried when he sentenced a defendant to death for a 2002 gang rape and sentenced another defendant to 22 months in prison with 2 years house arrest for a fatal hit and run accident.[5]

 

Judge William Thomas

Despite what you may believe about the reasons for the failure to return the blue slip, the more important question is; should there be such mechanisms or should they be changed? The constitutionality of the blue slip is debatable and uncertain.[6] Assuming it is constitutional, at its best the blue slip is a way for senators from the commission state to have direct input regarding the type of judges the judiciary employs in their state. It also could serve the function of coalition and deal building like many other congressional tools that promote kinship among the Senate chamber.

At its worst, the blue slip can be used, as it is today, as a tool to obstruct a President’s nominations for political, even hateful, reasons. As many other informal processes in institutions, blue slip has considerable force regardless of its wavering use and following. Ideally, this tactic would only be used for instances where perhaps the President attempted to push a nomination that was completely out of line with the state demographics or where the President and Senate have not shared ideas regarding who should receive the nomination. However, we do not live in ideal worlds and there are much better ways to receive the benefits of the blue slip without risking the possible misuses.

In build up to his main proposal, litigating the matter, Karl Schweitzer lays out a couple ways to improve the system. His first is for the Senate to establish deadlines for confirmation hearings and votes. Doing so would force all issues on the table in a timely manner allowing for full “advice and consent” and allowing individual senators to voice their concerns. As Schweitzer remarks, this does have the side effect of forcing the Senate to give up the power to uphold confirmations as a political tool, even for genuine reasons.

His second proposal is a dual branch model producing a formal procedure for the President to receive “advice” from the Senate in exchange for a quicker nomination vote. While, as Schweitzer states, this may be consistent with the Constitution (at least more so than blue slipping) the practical feasibility is slight that the two branches would collaborate in such a manner. Of course, as stated above, his third option is for litigation over Article II, Sec. II, Clause II claiming that use of tabling mechanisms and failure to vote on nominations violate the Constitution by failing to attempt consent.[7] While litigation may settle the matter once and for all, such a plan has large costs as pushing the issue may back fire against either the Senate or President, cost all three political branches political capital and weaken the already uneasy relationships between the executive and legislative branch.

***

However, I believe another proposal may be suited for this problem. The core problem with Schweitzer’s first solution was that the Senate would not give up power to delay confirmations. However, a solution allowing for limited delay would alleviate such concerns. Assuming the worst, that delay is due to political opposition rather than any significant meaning, the opposing Senators will be hoping to wait for the next Presidency to nominate their choice of candidates.

The solution I put forward would create a Senate bipartisan advice committee (or change the function of the judiciary committee) that would control the nomination process. In this committee, two seats would be rotating for the Senators from the commission state, allowing them to voice any concerns. Once a nomination occurred, the committee would have a set timetable in which they would debate amongst themselves regarding the qualifications of the nominee and for the wisdom of bringing the nomination to a full vote. A simple up down vote would determine whether to: a) allow the full chamber to debate and vote under another timetable or; b) shelf the nomination for up to one year’s time in which it would return to the committee for another discussion of the matter.

The solution has the benefits the best practice use of the blue slip by allowing for input of the commission senators. It further allows the Senate to orderly resolve disputes regarding any qualification or political issues about the nominee under a clear plan. However, unlike requiring only a timetable for a full, actual vote on a nomination, the committee formulation allows reasoned discussion to occur at two periods and allows the Senate to keep its delay power intact. Doing so also is a more realistic solution to the problem than asking for meaningful cooperation between the Senate and the President, particularly in today’s political climate.

There are two other benefits to this plan. This plan’s duel structure could allow for testing of the waters prior to the full vetting process. By passing the committee, any nominee could perhaps find the full nomination easier. Thus, the plan would allow for limited early vetting of a candidate allowing the President to nomine those who may not wish to be tribute to the full process at first but are otherwise fully qualified. The other benefit is that early vetting under controlled situations could de-incentivize the nomination of polarizing figures. By providing for a quick vote to delay or end to polarizing nominations, one may avoid the incentive to cause drama and use of nominations for any sort of malicious political gain. For example, under such a model, Robert Bork would have voted upon quickly and efficiently without the drama behind the nomination.

While the informal mechanisms within the Senate are slow to change and will, probably, never be completely discarded, there is still hope. These mechanisms delay the process and only hurt the Senate by making them seem incompetent and childish. Through reasoned change, the Senate has the ability to be more efficient and less of a nuisance to the function of the government and judiciary.

 


[1] Tampa Bay Times. Politifact.com Truth-O-meter, Nov. 22, 2013.

[2] Jeffery Toobin, Editorial, Blue-Slip Battle: The Senate Obstructionists’ Secret, The New Yorker, Nov. 26, 2013.

[3] See generally, Karl A. Schweitzer, Comment, Litigating the Appointments Clause: The Most Effective Solution for Senate Obstruction of the Judicial Confirmation Process, 12 U. of Pa. J. of Const. L. (2010).

[4] Alex Leary, “After Rubio objection, Obama officially ends federal nomination for Miami-Dade judge,” Miami Herald Blog, Jan. 7, 2014.

[5] John Pacenti, Administration Doesn’t Renew Thomas’ Federal Nomination; Lawmakers, Attorneys Blame Pressure from Rubio, 55 Daily Bus. J., Jan. 9, 2014 at (2014).

[6] See Caprice L. Roberts, Discretion & Deference in Senate Consideration of Judicial Nominations, 51 U. of Louisville L. Rev. (2012); Brannon P. Denning, The Judicial Appointments Process: The ‘Blue Slip’: Enforcing the Norms of the Judicial Confirmation Process, 10 William & Mary Bill of Rts. J. (2001).

[7] Karl A. Schweitzer, Comment, Litigating the Appointments Clause: The Most Effective Solution for Senate Obstruction of the Judicial Confirmation Process, 12 U. of Pa. J. of Const. L. 920-924 (2010).

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Colorado Amendment 64 and the Marijuana Edibles Packaging Problem

by Joseph Damele

Never the one to stop herself from placing her foot in her mouth, Nancy Grace lovingly called those who disagreed with her position regarding Colorado’s legalization of recreational use of marijuana as “fat and lazy” as they were most likely “sitting on the couch eating potato chips.” [1] I immediately took offense to this as I was sitting on a chair eating Reese’s peanut butter cups. I often find potato chips too greasy.

In all seriousness, Nancy Grace had a point behind her shocking and uneducated words. She lamented that she would not want her babysitter smoking, or high, while watching her kids and that driving while high would lead to disastrous results. She then wanted to know how Colorado would regulate for these concerns. Well, admittedly, my first thoughts were that her babysitter, if she used marijuana, most likely was already high illegally while watching her kids and drove to her house high. The fact of the matter is that, for most of my parents’ lives and all of mine, marijuana use has been flaunted and open.

Further, I would bet my bottom dollar that driving under the influence of marijuana is more common than driving while drunk. Perhaps unknown by Nancy Grace, Colorado has already announced and implemented regulations to address these concerns, similar to those for alcohol. [2] However, it was the CNN reporter in this interview that raised another, and more important, concern; how do we stop children from mistakenly ingesting edible marijuana products?

To a certain point, the responsibility surely falls to the parents. After all, just like alcohol and other drugs, the parents must place the items where their little ones will not find, open and ingest them. However, unlike these other products, edibles come in brownie, cookie, candy and even gum forms. Many a small child will see a bottle of prescription pills or a bottle of Jack Daniels and know intuitively that these are for adults. For example, my own little cousin of 6 years old told me that wine was “ADULT grape juice.”

Yet, these edible marijuana products look and taste like their favorite snacks and goodies. An exploring child may find these products even in the best hiding places, fail to read or recognize that it is marijuana and then eat the product, harming the child. It seems instructive to this point that Dr. George Wang from the Rocky Mountain Poison and Drug Center in Denver, Colorado found that out of the 14 child marijuana emergency room visits (in one hospital) since decriminalization, 7 cases were from edibles. [3]

Dr. Wang, who has been studying the effects of marijuana on children for years, has also found a dramatic increase in cases since decriminalization in Colorado had occurred. Often these cases include sleepiness, nausea and inability to stand/walk. For example, in Longmont, Colorado, a two year-old girl found a marijuana cookie in her home. Her mother, Aida Hernandez, told her to throw it away. She instead ate the cookie. Later, while the two were walking through the mall, she became sleepy, could not walk well and was opening and closing her eyes. She was taken to the local hospital where she tested positive for THC. [4]

Other similar stories have come from California and Washington, two of the most pot-friendly states in the country. These side effects are not uncommon. In fact, users of marijuana often seek these side effects. However, as Dr. Wang stated in his medical report regarding child exposure, “you get such a high dose on such a small child, the symptoms are more severe.” While this sounds harmless, two of these 14 cases resulted in intensive care treatment and the others still required hospital “supportive care treatments.” [5] So, the question that comes to mind is: what are states doing to stop this from happening?

According to many news articles, Colorado is leading the way in packaging with states such as Washington following suit. Last July, the Colorado legislature introduced legislation to require more stringent packaging. The old packaging was compliant with the federal standard of “child resistant” for items that could potentially harm children. However, this new packaging is designed to be “child proof” or “significantly harder for a child of 5 to open,” much like prescription pill bottles. In Colorado, these containers must be opaque and conform to the new formulation of child-resistant. [6] Often, dispensaries are using what is called a “stink sack.” These bags are smell proof with a double locking mechanism.

However, many other dispensaries are having trouble complying with the law. One such example is of the large dispensary chain called The Clinic. The Clinic had bought 40,000 bags in anticipation of the January 1st legalization that are only opaque on one side despite upholding the new child resistant standard required by Colorado. [7] However, the day of selling marijuana in plastic bags may already be in the past. A&A Packaging, a California company specializing in medical marijuana packaging, has a full line of pharmaceutical grade plastics, acrylics and glass containers that are becoming popular. [8] Such products have two benefits; the look and feel of a pharmaceutical product, and similar locking and safety features as regular prescription containers.

This may, or may not, be a real solution to the problem. One could reasonably assume that if a child does not know a brownie or cookie is in the container, and it looks like other prescription containers they have encountered, then the child will open the container at a similar rate to other prescription drugs or packaging of that kind. Nevertheless, the legalization of recreational pot has caused a small problem for the well being of the children of marijuana users. Colorado is the test case for this experiment and as their policy evolves, so will our knowledge of how this problem may be solved.


[1] Mike Posner, Nancy Grace: Legalizing marijuana for recreational use is a ‘horrible idea’, Yahoo! News, Jan 6, 2014, http://news.yahoo.com/nancy-grace-doesn-t-like-pot-heads–pot-heads-say-feeling-is-mutual-215746455.html.
[2] See Colo. Const. Art. XVIII, Section 16.
[3] Steven Reinberg, Kids Poisoned by Medical Marijuana, Study Finds, Health Day News, May 27, 2013, http://health.usnews.com/health-news/news/articles/2013/05/27/kids-poisoned-by-medical-marijuana-study-finds. See also Dr. George Wang, Pediatric Marijuana Exposures in a Medical Marijuana State, 167 J. of Am. Med. Associations (2013).
[4] Matthew Mientka, Legalized Marijuana Cookie Sends 2-Year-Old Girl To Hospital In Colorado, Medical Daily, Jan 4, 2014, http://www.medicaldaily.com/legalized-marijuana-cookie-sends-2-year-old-girl-hospital-colorado-266338.
[5] See Dr. George Wang, Pediatric Marijuana Exposures in a Medical Marijuana State, 167 J. of Am. Med. Associations (2013).
[6] Eric Gorski, Marijuana shop owners racing to bag safety, The Denver Post, Dec 7, 2013, http://www.denverpost.com/ci_24674467/shops-racing-bag-safety.
[7] Id.
[8] Expansion of Marijuana Legalization Spurs Movement for Child Safety in Washington and Colorado, PR Web, Dec 26, 2013, http://www.prweb.com/releases/2013/12/prweb11447697.htm.

 

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Treading Lightly in Second Life: Manti Te’o, Megan Meier, and the World of Cyberbullying

By Ian Osteen
Edited by Kevin Hollinshead and Lindsay E. Landstrom

The recent Manti Te’o debacle illustrated a significant sociological quandary Millennials face. Anonymity is both something that makes the Internet a valuable tool and a dangerous weapon. It allows people to seek out and express ideas without the fear of being stigmatized, thereby widening the social forum and perhaps furthering tolerance. However, it also creates a level of vulnerability and the possibility of exploitation, because people have to look to intangible characteristics of an inanimate object (i.e. pictures or words on a computer screen) rather than a person to determine its relative scale of truth.

A context in which one recognizes this dichotomy is that in the life of an American youth. Cyberbullying has been a pervasive subject since it entered the public conscience in the mid 2000’s.Authorities have struggled with how to manage or counteract the problem, especially in light of the exponential growth of social media. It is ironic that Mark Zuckerberg created Facebook in the wake of his own act of cyberbullying, Facemash. Although there has yet to be any federal law sanctioning turpid behavior via the Internet, a number of state legislatures have begun developing legislation to that effect.

The most common trend among the statutes created as a result of cyberbullying is that they are directly related to relationships between fellow students in high school or middle school. Forty-nine states have created statutes that require schools to either incorporate policies that punish students who take part in cyberbullying or create investigative procedures if faculty or staff get wind of any such activity. The only state that has not created a schoolyard cyber-bully statute is Montana, who instead has incorporated a criminal statute that prohibits harassment via electronic means. However, only ten states and the District of Columbia hold students accountable for activity they take part in during their time off campus. Furthermore, only twelve states other than Montana have statutes that criminally punish cyberbullying, and all but one of these classify the crime as a Class A or B misdemeanor.

Oregon’s cyberbullying statute came into effect this last year on the first of July and is procedural in nature; it requires “each school district [to] adopt a policy prohibiting harassment, intimidation or bullying, and . . . cyberbullying.” It also calls for school employees to report these types of acts and school districts to incorporate educational programs that aim to prevent this type of activity. The state legislature justifies the statute by declaring “harassment, intimidation or bullying and cyberbullying, . . . is conduct that disrupts a student’s ability to learn and a school’s ability to educate its students in a safe environment.” In many ways, Oregon’s statute is illustrative of the most common type of statute that has been passed in almost every state to remedy cyberbullying problems.

Megan Meier

The only state where cyberbullying is potentially a felony offense is Missouri. The Missouri legislature passed its statute in the aftermath of a horrific and tragic incident in 2006. Megan Meier was a 13 year-old girl who had a friendship that dissolved with a neighborhood girl. Evidently, in the process of becoming foes, Megan called her former friend a lesbian. The offended mother of the girl down the street, Lori Drew, decided to take matters into her own hands. Drew proceeded to create a fake MySpace account where she portrayed an attractive high school aged boy who took interest in Megan. After the building the relationship up over a period of time, Drew took it upon herself to end the relationship in a tormenting fashion. The last message sent to Megan from the fake boy’s profile essentially said that the world would be a better place without her. Megan attempted suicide and died in a hospital the following day. Because of Lori Drew, cyber harassment is a felony in Missouri when committed by a repeat offender or by a person over the age of 21 upon a person younger than 17.

As it is, there are currently three types of law that punish social behavior between persons on the Internet. One are the above school cyberbullying statutes. The other two, cyberstalking and cyber-harassment, are really no different than their non-cyber counterparts; they prohibit using the Internet as a means for this type of behavior. However, the Manti Te’o story presents a situation that lawmakers have yet to consider: cyber-manipulation.

Although Te’o was ultimately not the victim of a crime, his story demonstrates how any person may be vulnerable to being duped by another over the Internet. Te’o’s problems never progressed to the point where he was actually swindled, but the plight of his invisible girlfriend undoubtedly took an emotional toll on him. There was even a time when Michael Scott was fooled into donating to an African Prince’s ponzi scheme. Adults can be, and are, tricked and manipulated via the Internet on a daily basis.

Lori Drew

Back to Megan Meier. What eventually happened to the mother was that she was charged under the federal Computer Fraud and Abuse Act (CFAA). Congress passed the CFAA in 1984 as a protection against the burgeoning trade of computer hacking. Particularly, the legislation was meant to punish those that were drawing from the bank accounts of others without their permission. Drew was charged with multiple felony counts of unauthorized use of the MySpace account for furtherance of a tortious act. In MySpace’s quick-click user agreement, the terms of service prohibit a number of actions including threatening or obscene language, tortious behavior, and use of another person’s photograph without their consent. The felony counts were later reduced to misdemeanors, and after being convicted in a jury trial, Drew was acquitted upon appeal. The court held that finding Drew criminally liable for consciously violating the user agreement would be contrary to the void for vagueness doctrine.

In a more recent case, United States v. Nosal, the Court of Appeals for the Ninth Circuit distanced itself from the notion that one can be held criminally culpable under the CFAA if he or she does not strictly adhere to a terms of service agreement in a social media setting. The court rejected the district court decision’s broad interpretation of the CFAA, because reading the statute in that manner would have implications on a much broader group of citizens than Congress originally intended in 1984:

“If Congress meant to expand the scope of criminal liability to everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer—we would expect it to use language better suited to that purpose. Under the presumption that Congress acts interstitially, we construe a statute as displacing a substantial portion of the common law only where Congress has clearly indicated its intent to do so.”

In its decision, the court emphasized that the statute was primarily created to protect users against hacking, and it encouraged Congress to construct statutes that explicitly create liability for computer misappropriation if it deemed that was necessary.

It is likely that, as technology continues to develop, and the virtual world becomes more closely linked with the physical, that laws concerning online conduct will become more expansive. However, for the time being, it is apparent that the government is going to take a hands-off approach to regulating people’s private interactions on the Internet. So, make use of this wonderful tool that will probably go down in history as one of Al Gore’s top three most impressive inventions, but do so with responsibility and vigilance. Good day gentlemen, but until that day comes, keep your ear to the grindstone.

 

 

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A Night in Coconino County Jail

Written by Amanda Klimczak
Edited by Lindsay E. Landstrom

Over Christmas break, a friend of mine was arrested. He was kind enough to recount the tale of his one night in county lock up (hopefully his first and last) and all of the lasting connections he made with regulars.

Note: Names and charges have been changed to preserve confidentiality, duh.

Another note: I do not think that committing a crime is joke. This is a commentary about a night in jail. Many readers, Legality staff included, have never been to jail despite the fact that our future profession is pervasively intertwined with correctional facilities. Hopefully, my commentary on the issue will help to enlighten some readers to the realities of state prison.

My friend, Ryan, had the pleasure of being arrested in Coconino County, Arizona on New Year’s Eve. The charges? Extremely flimsy accusations stemming from lighting fireworks in the backyard of a home in a rural area. After detaining Ryan, the officer gave me his camera and forced me to figure out how to take off his pricey watch that was now entangled in his Smith and Wesson handcuffs. I must say, those handcuffs live in the handcuff equivalent of a day spa; they were shiny, polished, and any scratches or wrist blood that may have interfered with their pristine condition had been buffed out of sight. Once the officer whisked Ryan off, I hurried to the house to call his parents, incoherently ramble about Miranda, and find the Yellow Pages attorney most like Saul Goodman from Breaking Bad. Little did I know that my night of searching for Arizona criminal statutes on an iPhone with Edge reception was nothing compared to what Ryan saw while ringing in the New Year.

Arrested at 12:00 pm, he was sitting in the intake cell after a 45 minute drive with the arresting officer to Flagstaff (or as the court officials called it: “Flag city”… Flag city, flag, flag city, bittt…nevermind). Ryan said the officer softened from bad cop to good cop during the drive asking Ryan “how could you not love country music being from LA??” Um. No comment. While waiting to be processed, an officer threw Ryan into a cell with two other men, both completely drunk. The floors were solid cement, no chairs to sit on (except the toilet, but c’mon) and the room was freezing. Ryan said his first source of misery was his “butt-bones” (he is a twig!) hurting after sitting on the ice slab of cement. After an hour, a jailhouse regular, Thomas, joined the party.

After a good fifteen minutes of pacing back and forth and cursing the cops and the jail, Thomas, an American-Indian/Chinese-American 20-year-old who stood not an inch over 5’2”, finally relaxed and sought out the only other sober person to chat with. Thomas told Ryan that he violated his probation and was picked up when he went to meet with his probation officer. He told Ryan that he would not be in jail tonight if he had been thinking with the correct part of his body, as the only reason he went to his PO’s was to ask her out for the hundredth time.

As Thomas was telling Ryan just how hot this PO was (his words, not mine), another man was tossed into the cell, completely toasted. He sat catatonic for a few minutes and then started screaming, “ Where am I??!” Thomas popped up in his face and said, “You’re in jail, dude!!” in a tone that was more appropriate for saying, “You’re at Disneyland, pal!” The guy plopped down on the floor and then just began muttering, “Ive gone way past stupidity this time”… over and over again. It was just the five of them for the next several hours until the dinner crowd rolled in.

For dinner, served on a plastic tray with no plates or utensils (Hey, this isn’t the Ritz, bud!) the newest version of O-Town ate a chicken patty (no bun or ranch to dip it in… the nerve!), some watery green jell-o, and a baked potato. Since Ryan has been out, I have heard about this baked potato several times. He said that the potato was so over baked that even though while it was on the tray and looked huge, when he picked it up it was all a lie. The brown skin was the size of a large potato, but the inside was the size and density of a golf ball. That sounds so weird that I want one. Ryan and friends ate this, still sitting in street clothes in a freezing room.

Right after dinner, an officer offered Ryan a new outfit and a phone call. As payment for the goods, the officer asked Ryan to strip, hold and cough, and, wait for it, squat and cough. (Editor: I have no idea what any of this means, so please direct all technical clarifications at Ms. Klimczak). To add insult to injury, the week before the trip, I convinced Ryan to get a pedicure and have Rasta-colored snowflake designs painted on his toenails. Officer Gomez thought they were a real treat. Ryan was given a navy blue, button-up, collared jumpsuit (way classier than the teal, oversized v-neck nurse’s scrubs given out at Lane County!), socks with orange rubber sandal-clogs, and a large wool blanket. He was able to make a thirty-second phone call that I commandeered by just repeating everything that Saul Goodman told me to tell him, including avoiding spooning with his bunkmate.

Better call Saul. I can make it legal!

In Flagstaff on New Year’s Eve, there is a tradition called the “Great Pine Cone Drop” where Flag City drops a huge pinecone in lieu of a crystal ball. The event is well attended by the 15-30 year old crowd, so, naturally, cops on horseback patrol in great numbers (similar to that scene in Planet of the Apes). Apparently, the event can get pretty gnarly due to the high number of out-of-control drunks wreaking havoc by fighting or driving. After 11:00pm, Ryan’s community cell was inundated with these types. Several times throughout the night, the drunks urinated in the middle of the room and/or projectile vomited anywhere but the toilet. At one point, one the urinators, a youngish guy, was thrown into the cell bars by a much larger American-Indian man who was screaming to the guards that if they did not get the young guy out of there that he was going to kill him. The guards promptly removed the urinator. Who would have thought that threatening crimes while in prison was a way to get what you want? Ryan should have threatened to kill someone to get some condiments for his chicken patty… hindsight is 20/20.

At some point during the night, a woman was brought into the jail and housed in the women’s community cell. From the second she entered the building, she was screaming at the top of her lungs, again and again, “I have Lou Gehrig’s disease and that means that I cannot go for three hours without seeing my kid!” Logic, folks. Finally, the big, threatening American-Indian man screamed, “You better not let me out of here or I will kill her!” Just like last time, he got what he asked for. The woman screamed herself to sleep at around 3:00 am.

Another noteworthy visitor was named Julius. Julius came in wearing a suit donned for NYE celebratin’ with the pinecone. He came in, drunk, after being picked up for violating his probation…you know, for being drunk. His first and only words were, “S***, I’m goin’ back to the pen!” and then he plopped down on the floor and almost immediately began snoring. Ah, the blissful sleep of someone who has been-there-and-done-that.

Julius, like many of the other men arrested at the Cone Drop, blamed his girlfriend for his misfortune. Some of the colorful narratives orated by Ryan’s new buddies included, “Ho, was actin’ way too drunk,” and “She can’t hold her liquor and its all her fault.” Shockingly, their girlfriends were also arrested. Another colorful gentleman had come down from Scottsdale (a two-hour journey) for the festivities, where he somehow became blackout drunk. The last thing he remembered was mixing it up with a cop on horseback (those nets are tough to dodge). He chuckled to Ryan that he had no idea how his girlfriend was getting home before adding that his aunt was an elected official in Arizona who had helped him “get out” of his last DUI. His phone call was likely more helpful than Ryan’s.

After not sleeping at all, officers escorted Ryan to the jailhouse courtroom at 8:00 am for his initial appearance that was transmitted by video to a court in downtown Flagstaff. Because it was a holiday, we had to fight to witness the proceeding. There on a snow vacation, the only “court appropriate” clothes we had were Ugg boots, leggings, and North Face coats. Ryan asked the judge to be released on his own recognizance despite living in California and listed all of his positive attributes (per Saul Goodman’s advice) to demonstrate that he was not going to flee to Mexico. Before making her decision, she asked if one of his friends would like to say something on his behalf. In between choking back tears (the jumpsuit and cuffs were not a good look for him), I was thrust up to the bench to speak. After some time as judicial extern for a criminal judge, I thought that speaking on behalf of a friend or family member to a judge should be easy. Wrong. The emotions of the situation (possibly not being released until his arraignment late in January, his future on the line, his pale, sad face looking back at me from a TV screen, etc) made me sound like a complete moron. I stammered, I stuttered, but I got the job done. Ryan was released that afternoon on his own recognizance.

After picking him up and driving him back to the house, while hearing all about his night in county, Ryan took a scalding shower, then a bath where he scrubbed himself raw with a loofa brush, and then a shower again. I sat him down and had him retell everything that he could remember while I took notes. At this point in time, there have been no charges filed and Ryan’s next court appearance has been cancelled. He is tentatively optimistic that this whole thing was an attempt to “scare him straight.” Boy, did it work.

 

 

 

 

 

 

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The Klimczak Kronikals: Portland’s Best All-Inclusive for Troubled Youth

Written by Amanda Klimczak
Edited by Lindsay E. Landstrom

Editor’s note: This entry of K.K. is a continuation of the previous entries. Read Part I here and Part II here.

There is a classroom attached to each of the pods, where a teacher comes in five days a week. The inmates are required by law to attend 240 days of instruction, as opposed to the mandatory 180 days in public school. The director tells me that, often, the long-term inmates finish high school ahead of time because they have nothing else to do. I don’t know how true this is. I’ve seen The Wire season 4. I know that if kids don’t want to do school work, they wont. Wait, I forgot to ask if Presbo works there teaching probability through playin’ dice.

The director tells me that, through grants, they had an Artist-in-Residence for two years who worked with the kids to paint five murals now displayed in the courthouse and the detention center.  We walk by the murals and the cynical side of Amanda wonders if the kids just watched while the artist painted.  The paintings are that good.  The director says that another grant allowed them to turn one of the pods into a library.  The library has a decent selection of non-violent, non-sexual, non-problematic-parent stories donated by the Multnomah County Public Library.  Because this was previously a pod, there are cells.  The cells were turned into dioramas of popular fiction.  When you look into the windows, you see dioramas of books such as Where the Wild Things Are, The Lion, the Witch, and the Wardrobe, and Moby Dick.  This is pretty cool… if you’ve read the books.

Overall, the Juvenile Detention Center seemed like a pretty cushy place to spend a sentence especially compared to the lives some of these kids had before being sentenced.  With a menu service, a library, and an art program, it seems it that would be hard to go back to a world of stealing to survive. I’ll end with this final observation. When walking by occupied pods, I noticed that the inmates were not foaming at the mouth, tattooing each other with Walkman motors, or turning toothbrushes into shivs.  Rather, they were doing math homework, coloring a family crest art assignment, or returning from a basketball game in the gym.  Ultimately – although the inmates would vehemently deny it – they looked happy.

 

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To Sext Or Not To Sext: Exploring The Consequences And Remedies Of Digital Flirting

Written by Laura C. Budd
Contributing Editor: Amanda Klimczak
Managing Editor: Lindsay E. Landstrom

Please note: some of the hyperlinks in this essay lead to definitions that some readers may find offense. Therefore, please take appropriate caution when exploring the hyperlinks.

I. Didn’t I Go To High School With Her?

In recent years, websites touting “revenge porn” have become immensely popular. Revenge porn sites, such as the infamous (and now defunct) IsAnyOneUp.com, have been the target of numerous lawsuits and complaints from individuals whose photos find their way to the website’s creator. These websites differ from a traditional pornographic websites because most of the content is not self-submitted; rather, people other than the subject submit the pornographic images.  Often, the culprit is a jilted ex-lover/partner or other individual seeking to humiliate or expose the subject. The most common source of these types of images is a “sext” from one former lover to another. Revenge porn websites offer sexted images accompanied by a screen shot of the subject’s Facebook profile, which displayed his or her personal information for the entire Internet world to see.  Since Facebook profiles generally include a person’s city of residence, place of employment, school, and family members, the very detailed information that accompanies the image eases cyber-bullying of the victim.

The creator of IsAnyoneUp.com, Hunter Moore, claimed to receive over 10,000 images as submissions in as little time as three months. It was an immensely popular website with devoted followers. Fans created a Twitter page that featured uploaded pictures of the website’s ‘hash tag’ tattooed on their bodies. Fans even created a song on YouTube that has over 280,000 views to date. The site itself brought in roughly $13,000 a month, but that figure could have been higher if Moore had sought advertisers for the website. Moore alleged he paid approximately $8,000 in fees for the use of the server alone for the website, which severely limits the profits he obtained. Legally, he was able to do this under §230 of the Communications Decency Act, which protects site owners from legal liability of items provided by users.  In other words, even though Moore violated the legal rights of the subjects by posting the images, he arguably was not criminally liable because the website was user based.

Moore did take some legal precautions on his website.  When users submitted photographs, they were asked a series of questions regarding the legality of the photograph. Moore required users to agree that they are submitting legal images, and states that the site will not post “professional/copyrighted materials.” The site also required users to take full responsibility for the content they submitted, thus further helping to diminish Moore’s liability for images he displayed (the biggest liability being that for underage subjects).

Despite being shrouded in legality, IsAnyOneup.com received legal attention from other websites including Facebook, and victims threatening lawsuits.  Facebook issued a cease and desist letter to demand the removal of Facebook links from the website. However, this action did not prevent Moore from posting screenshots to the site of the subject’s profile.  The ease with which images from the Internet may be copied allowed Moore to easily disclose all of the victim’s information.  Most people who appear on the site reported a huge increase in ‘friend requests’ and ‘pokes’ on Facebook from people they do not know. This has led to some victims deactivating accounts to escape the onslaught of attention.

Following a deal with BullyVille.com, an anti-bullying safe haven for bullying victims, Moore took down the site and received a nominal fee for his ‘humanitarian’ decision.  Attempts to go to Moore’s website now automatically link to BullyVille.  Following the site takedown, Moore then continued to target Twitter users with hurtful comments and then turned his attention to his former ally.  Most recently, the BullyVille.com site owner has alleged that Moore has made several defamatory and hurtful statements, causing him to file a defamation claim against Moore.

II. There Must Be Something She Can Do…Right?

There are, unfortunately, very few legal remedies for people whose images and information surface on a revenge porn site. As surprising as it may be to the average sexter, there is not a clear-cut remedy available under American copyright law.  In order to be protected under the United State’s legal system, a work must have a valid copyright.  This occurs if the creation satisfies the conditions required by 17 U.S.C. § 102:  “Copyright Protection subsists…in original works of authorship fixed in any tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” When an individual takes a picture of his or her self (for example a sext), he or she creates a work that falls under the protection of copyright law.  As long as the subject is also the author, typically the person who took the picture, the ownership of the copyright naturally vests with that individual and does not require any form of registration to protect the exclusive rights under copyright law.

Luckily for the victims of IsAnyOneUp and other similar websites, copyright law does provide some recourse.  When one takes a photo, he or she is the author of that photo, and copyright in a work naturally vests with the author. Therefore, all self-taken photographs vest exclusive property interest in the subject (the author and, usually, the victim).  Although the author may send an image to a lover or friend, the Copyright Act provides that the transfer of ownership of a copyright or of any exclusive rights under a copyright must be in a written agreement. Since very few people will create an agreement transferring all rights to the image when sexting, the authors retain full rights to prevent future copying and publication of the image.

Hunter Moore

Moore misconstrued the rights in the image the subjects retain in multiple interviews.   He has incorrectly claimed in interviews that, because the image was intended for someone else the ex who submitted the photograph owns the copyright.  However, that is far from the truth under American copyright law.  The ownership right an ex has in the image differs from a claim to the copyright.  The copyright act provides that the “ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.” Although the ex has a property claim to the image in the actual embodiment of the work he or she possesses, there is no property right in what the work contains.

Since the authors/victims retain full copyright ownership of their images, they are able to pursue several avenues of recourse.  First, victims may first submit Copyright Takedown Requests as provided in the Digital Millennium Copyright Act (DMCA).  These requests allow a subject to demand the removal of the photo as long as he or she owns the copyright to the image. In addition to the take down requests, victims may pursue copyright infringement claims.  Luckily for the victims, these actions provide several avenues of relief, and, potentially, damages for the use of the image.

Despite IsAnyoneUp.com’s demise, numerous other websites still exist. To combat the burgeoning popularity of revenge porn sites, victims and lawyers have created websites to help people who have been illegally featured on a revenge porn site. The pro-victim sites, like BullyVille.com and RegainYourName.com, generally explain the steps one can take to have photos removed and instructions on how to initiate an infringement claim and DMCA takedown request.  One lawyer has gone so far as to provide safe sexting tips in his blog. Many victims ask how they could have prevented this from happening.  Obviously, one answer is to be wary of sending explicit images of your self to others via digital transmission. However, if someone who the victim thought he or she could trust places a personal image on the Internet, these resources provide some legal steps he or she can take to regain their privacy.

The ease with which images, documents, and music can be transferred on the Internet presents a different problem than seen in traditional copyright cases.  As more of the population becomes comfortable using the Internet to transmit data, the likelihood of copyright infringement greatly increases.  Although Congress has taken steps to protect against digital infringers with the DMCA, there are still numerous occasions where the exclusive rights of a copyright owner are violated.  The digital world is forcing society to rethink how we should treat ownership rights in copyrighted material.  Revenge porn websites crudely demonstrate how easily private images can be disseminated on the Internet.  Knowing that one’s private image is up on a website that thousands of people, both strangers, friends, and even family, visit every day can severely harm a victim, not just legally but emotionally.  If Hunter Moore has shown us anything of value, it is that the present and future of copyright infringement lies very close to home for some people, and that copyright law needs to adjust to account for the largely unregulated world of the Internet to allow copyright owners to better protect their property.

 

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The Klimczak Kronikals: Only In Portland Would There Be Food Carts…

Written by Amanda Klimczak
Edited by Lindsay E. Landstrom

Today I took a tour of the Juvenile Detention Center for Multnomah County. I had a blast. Besides the fact that I think the digs were better than my apartment in Eugene, I couldn’t help but compare it to what juvenile detention facilities look like where I am from. I don’t imagine that juvenile criminals in Los Angeles live in swanky “pods” like their Portland compatriots.  This was later confirmed by my personal “tour guide,” the director of the whole she-bang.

First, we walk through all of the locking, sliding, slamming metal doors that all prisons in the movies have. The interior decorator went with paint named Mint Majesty, which the guide tells me was an effort to promote happiness in the children. Go figure. It reminds me of my great grandma’s nursing home. We walk down the corridor to the Main Control Center, where two women watch several monitors that switch between images of doors and hallways. Above the monitors, each woman has a personal computer. One woman is on Facebook. The other is paying her Comcast bill. Michael Scofield would run all over this place.

While walking to one of the pods, a food cart rolls by with different individual meals and a bevy of condiments. Instantly, my mouth waters for some Tapatio. My guide tells me that the center has switched to a different meal service. Instead of piling each prisoner’s plate with every food option available and having most of it thrown away (read: vegetables), the inmates order from a daily menu. This has cut down the food waste by 68%!  Pretty remarkable, especially as these kids will probably never eat their green bean casserole, nor do they have sleeves in which to hide their broccoli so they can flush it later. What, you never did that?!

Each of the pods houses sixteen kids. They are placed with the same sex, age, and offense level as reasonably possible. Each inmate has his own room equipped with a metal toilet, metal sink, and a mirror that previous occupants have turned into a circus distortion mirror because there are so many carvings reppin’ gang signs or professions of love. “Fernando + LaQuesha + baby boi” was my favorite. The cots resemble wrestling mats and there are no pillows. Outside of the rooms is a sitting area with circular tables that you would see in the outdoor seating area of In-N-Out, a TV corner with no chairs, and small area were the kids organize ping pong tournaments. I can’t help but ask, “I see that there are no chairs in the room. I assume that is because they are considered a weapon.” The director nods. “So, a chair is a weapon but a ping pong paddle is not…?” The director draws in a deep breath and squeaks out, “Yes, there have been incidents.” I imagine inmates turning that paddle into a shiv in two seconds flat. Maybe I think that because I saw it on Oz.

To Be Continued…

 

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Insane Clown Posse To Sue FBI

Written by Kevin Hollinshead
Edited by Amanda Klimczak

Well, they say they’re going to. Before getting there, here’s a little background.

Fans of the hip-hop duo Insane Clown Posse, better known as Juggalos and Juggalettes, are one of nature’s great gifts to comedy writers. The outside world largely sees them as white trash kids who listen to terrible music with violent lyrics, wear face paint, drink Faygo, love backyard wrestling, call each other “ninja,” and yell “whoop whoop!.” They even congregate for the annual Gathering of the Juggalos in Cave-in-Rock, Illinois.

That being said, Juggalos seem generally harmless. Sure, a few overzealous ninjas will get tanked and throw rocks at a D-list celebrity at a show, but most are only as violent as the Hatchet Man decals they slap on their cars. That’s why many Juggalos went insane in the membrane when the FBI classified them as a gang.

The 2011 National Gang Threat Assessment categorized Juggalos as a “loosely-based hybrid gang,” in which many subsets “exhibit gang-like behavior and engage in criminal activity and violence.” In fact, the Juggalos are legally recognized as a gang in four states (Arizona, California, Pennsylvania, Utah). What’s more amusing, however, is the FBI’s reasoning behind this classification.

From the report:

Most crimes committed by Juggalos are sporadic, disorganized, individualistic, and often involve simple assault, personal drug use and possession, petty theft, and vandalism. However, open source reporting suggests that a small number of Juggalos are forming more organized subsets and engaging in more gang-like criminal activity, such as felony assaults, thefts, robberies, and drug sales. Social networking websites are a popular conveyance for Juggalo sub-culture to communicate and expand.

The report cites a January 2011 incident in which a suspected Juggalos shot and wounded a couple in King County, Washington. It continues:

Juggalos’ disorganization and lack of structure within their groups, coupled with their transient nature, makes it difficult to classify them and identify their members and migration patterns. Many criminal Juggalo subsets are comprised of transient or homeless individuals, according to law enforcement reporting. Most Juggalo criminal groups are not motivated to migrate based upon traditional needs of a gang. However, law enforcement reporting suggests that Juggalo criminal activity has increased over the past several years and has expanded to several other states. Transient, criminal Juggalo groups pose a threat to communities due to the potential for violence, drug use/sales, and their general destructive and violent nature.”

The report cites a January 2010 incident where two suspected Juggalos were charged with beating and robbing an elderly homeless man.

It’s pretty clear why Juggalos are annoyed. In classifying Juggalos as a gang, the FBI report cites a few incidents that have no clear connection. Due to their distinct appearance and incessant use of “whoop whoop”, Juggalos are an easier group to identify than, say, for example, people who listen to country music. Despite this reality, it is still disconcerting to see such blatant profiling against a group that calls itself an accepting family of misfits. It makes sense, then, that ICP has given fans a place to report suspected profiling.

Chances are, the FBI included the Juggalos in their report because it didn’t know what to make of them. While the aforementioned violent incidents are not necessarily indicative of the group as a whole, Juggalos tend to be a rowdy, excitable bunch that take pride in drawing attention to themselves (hence the Hatchet Man logos, the weird hairdos, the “whoop, whoop” thing, etc.).  Classifying Juggalos as a gang presumably frees FBI resources that can be used to further investigate that subculture, and to determine whether further gang classification is necessary.

That’s why ICP probably has an uphill legal battle ahead. Unless ICP’s legal team can prove that Juggalos’ new gang label has a tangibly negative effect on the group – whether it be financial consequences linked to defamation, or a pattern of government profiling against Juggalos – their suit will likely prove little more than a public relations headache for the FBI. Until then, all Juggalos can do is hope for future declassification when and if the FBI deems the aforementioned incidents isolated in nature.

Should ICP actually take the FBI to court, we’ll provide updates on the case as they become available.

 

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Word of the Week: United States Patent and Trademark Office

Written by Lindsay E. Landstrom

Occasionally, we at The Legality like to clear up confusing legal terms, phrases, and entities. The administrative state certainly qualifies as “confusing.”

An agency within the Department of Commerce, the United States Patent and Trademark Office (USPTO) is responsible for issuing patents and trademark registrations to qualified inventors and mark owners. Article I, section 8 of the US Constitution establishes the basis for the patent system in this country: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…” Trademark law developed towards the end of the 19th century as a means to prevent unfair competition in the marketplace.

The two legislative acts that govern the agency’s standards for issuing patents are trademarks are the Leahy-Smith America Invents Act of 2011, which takes full effect in 2013, and the Lanham Trademark Act of 1947. David Kappos is the current Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Under him is a Deputy Under Secretary. The Under Secretary and his Deputy oversee nine “head” positions (the commissioners for patents and trademarks, chief officers for external affairs, administration, communications, finances, and information, a director of equal employment opportunities and diversity, and general council).

There are four administrative bodies within the USPTO where most of the legal “action” happens. On the patent side, the Board of Patent Appeals and Interferences (BPAI) adjudicates issues of patentability that are appealed by inventors. Usually, once a patent examiner has issued an inventor a final rejection, that inventor is afforded the opportunity for an ex parte review of his or her application (if he or she can afford the added time and litigation costs). A Chief Administrative Patent Judge heads the BPAI. The Patent Public Advisory Committee “will review the policies, goals, performance, budget, and user fees of the patent and trademark operations, respectively, and will advise the Director on these matters. The Secretary of Commerce appoints members to the Advisory Committee. The trademark side has two similar administrative bodies for issues regarding trademark litigation and policy review.

The agency employs 9,000, including roughly 600 lawyers. Strikingly, over two thirds of the agency’s employees are patent examiners (a position which does not require a law degree, but does require a background in science). Despite this relatively huge number of patent examiners, the agency has become notoriously backlogged in issuing patentability decisions. It takes an average of two years to receive a reply from a patent examiner (and an inventor is entitled to two rejections before he ore she must appeal or abandon the application). An increase of highly technical innovations, business method applications (which the courts have since turned against), and silly applications by determined inventors have all contributed to the USPTO backlog.

 

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The Klimczak Kronikals: Klimczak Causes A Ruckus

Written by Amanda Klimczak
Edited by Lindsay E. Landstrom

This is the first entry of a journal chronicling my six weeks as a judicial extern in Portland this summer. Don’t expect fireworks, people.  I am fully aware that this is not going to be groundbreaking stuff, but maybe I can manage to dissuade some hapless 1L who believes that you are a mini-lawyer as an extern.

In pure Klimczak fashion, I manage to make a blunder as soon as I enter the building.  I was told to come to the courthouse at 8am (rude awakening as I am staying a hour outside of Portland with traffic), so I could fill out paperwork to get my badge. I arrive downtown at 7:55am and go through the line with the “normal people” (not employees or attorneys) where the man in front of me was muttering about the “germ laden doors to hell” and refusing to touch the door causing it to slam into me.  I am overdressed (as usual) and struggling with my Cole Haans. Having the disease-enriched hell doors slam into my ankles puts me in a mood. I get up to the metal detector, remove my shoes, and walk through.

Immediately there is a loud beep. It’s my watch. When I take it off and hand it to the security woman, she takes this opportunity to size me up and snort, “nice watch.” Before I can fashion some sort of witty response, another security officer ushers me away, claiming he found a knife in my bag. What!? I had no clue what he was talking about, especially as he made it sound like they found a switchblade caked in blood. Four security guards then confronted me. One by one, they moved aside to allow the man holding my contraband to come forward. In his rubber-gloved hand, the security officer held…a butter knife. Probably from a Court Café bagel I ate last year.

Rubber Gloves lectured me in front of everyone in the lobby, which was made only more humiliating by the accompanying snickers of the officer who thought me a snob due to my offensively expensive watch. Rubber Gloves dangled my IKEA butter knife as if it was the murder weapon in a high-profile case and declared that I had to take it outside and get rid of it, or he could “dispose of it” himself. After struggling once with my shoes and having made it through the germ laden doors to hell, I didn’t want to brave the general public entrance line, so I told him to throw it away. His eyes widened and went blank as he pressed “play” on the tape recorder in his head to give his spiel in this type of top-level-priority situation: “Ma’am, you understand that by telling me to dispose of this knife, you will not receive it back in your possession and the weapon will be destroyed?”  Umm… dude, it’s only a butter knife.

Cole Haan specialtiesAfter the fiasco of my overblown potential-courtroom-terrorist activity, I walked upstairs to check in. I was given a two-page explanation of statutes that forbid anyone with a badge to carry a knife into the courthouse.  I don’t know if it was just my emotions running high, but all I could think was that the Rubber Gloves and the Watch Witch had made a call on the Batphone to my supervisor the second I waddled away from the security station struggling to clasp my overpriced shoes and refusing to touch any germ laden railing to balance myself.

 

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The DOJ is Right to Prosecute Marijuana Growers in Southern Oregon

Written by Lindsay E. Landstrom
Edited by Amanda Klimczak

This opinion represents the author’s opinion and not necessarily the opinion of anyone else affiliated with The Legality.

In southern Oregon, people like to grow marijuana. Perhaps it’s the climate. Perhaps it’s the people. Perhaps it’s because there’s nothing better to do. No matter the reason, gobs of people grow around Medford, and because lots of people grow, lots of people get in trouble for growing illegally. Not everyone, obviously. Many folks who grow marijuana do so legally. They remain in strict compliance with Oregon’s medical marijuana program and stay out of trouble. The Obama administration has said that it is not a priority of the Department of Justice to prosecute growers who remain in strict compliance with state growing and possession laws. In short, if you follow the letter of the law, you’ll be fine.

Unfortunately, some folks down in southern Oregon are quite brash and bold in exploiting Oregon law for their own gain. It should not be surprising that profiteers exploit a law that operates on as much faith and trust as Oregon’s medical marijuana law. Therefore, the Department of Justice is left with a quandary: the President said his administration will not go after growers in strict compliance with state law, but many growers are rather sketchy in their interpretation of state law. Others just cast aside reasonableness and grow hundreds of plants that produce hundreds of pounds of bud and shake. So what’s the DOJ to do?

The obvious answer to me is that the DOJ should go after those who are blatantly not in strict compliance with state law. The problem is that the neither the media nor many of the libertarian-minded southern Oregonians see it that way. They see it as the DOJ simply changing its mind and unfairly targeting legal growers. In essence, Obama said one thing and now he’s doing another. Entrapment by estoppel, if you will. People are willingly and knowingly breaking well-established law, but because the President and the DOJ offered one narrow caveat for medical growers, they’re bewildered when the sheriff and ADA knock on their door.

The Medford division of the District of Oregon recently wrapped up a weeklong illegal growing and distribution trial (the guy also had several unregistered machine guns). Many similar cases are in the pipeline. These folks are all accused of growing hundreds of plants and, in some cases, conspiring to distribute hundreds of pounds of the devil’s lettuce. These are not cases of the DOJ bullying innocent medical marijuana growers.

The DOJ versus marijuana growers debate often erodes into a debate on the legality of marijuana. Personally, I believe history will prove marijuana to be textbook malum prohibitum. My children will look back and think, “Why did everyone care so much about grass?” Everyone has an opinion on the legality of marijuana.  However, the legality debate doesn’t help the DOJ’s quandary. Congress decides what laws are on the books and the DOJ works to enforce these laws. As long as marijuana is illegal at the federal level, the DOJ has a job to do. It’s unfortunate that the DOJ’s obligation to follow the law is rarely acknowledged in the media or non-legal circles. Quite simply, it seems, that marijuana growers have two simple options: remain in compliance with state law or potentially face a heavy sentence.

 

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Just Chill, Brahs: An Open Letter to 1L’s

Greetings, 1L’s!

On behalf of The Legality staff, welcome to the awesome community that is O Law. I can confidently say, with no flowery hyperbole, that you will love it here. For real. Thus, it’s a little sad (but mostly funny) for us 2/3L’s to see some of you freaking out. Fortunately for you, lucky reader, we’re here to help assuage some of your deepest law school-related fears!

What should I expect at O Law? How should I study? How will law school cut into my drinking schedule? While we don’t necessarily answer any of these questions directly, we did each come up with a list of things- some serious, some anything but- you should keep in mind this fall. If you do, you’ll be the coolest kids in school like us in no time!

Enjoy,

Kevin and The Legality staff

***

Amanda Klimczak:

1. Don’t discuss your LSAT score. Your first semester will be rampant with douche-baggery that starts with comparing LSAT scores. Avoid the trap!!! You got in, so LSAT scores don’t mean anything anymore. So when you are dominating the law school rankings, you can sit back and laugh at your 145.

2. Don’t eat garbage. The Court Café food is tempting, but it leads to sweatpants and acne. Everyone always says to find time to work out and while I agree, I also believe that those 1,000-calorie scones don’t help with the inevitable feelings of self doubt caused by law school.

3. Go to ThuNBaR [Thursday Night Bar Review]. Meet people. Have fun. Make at least one decision that makes you cringe every time you think about it.

4. Go to Red Agave at least once. Order the Ahi Tuna Ceviche and enjoy. It’s expensive so only take a date you really like or who is a sure bet. (same goes for Cafe Soriah, Excelsior Inn, and Papa’s Soul Food- this one is inexpensive).

5. The Cinemark 12 in Springfield has $1.75 movies… GO! It’s kind of sketchy, but it’s cheap, popcorn isn’t $11, and there are late showtimes. It’s also at the strangest mall ever (Gateway), so there is great people-watching.

6. If you have the opportunity and it’s the right situation for you, date a law student. They know what you are going through, offer great intellectual insight, and, because they are most likely also Type A, they have no problem telling you when you’re being a pretentious and judgmental lunatic.

7. Go up to Portland when Eugene starts to feel uncomfortably small. Whether you go to a concert, a Trailblazers game, or just stop by Nordstrom’s, Portland can offer an escape from what seems like a never ending cycle of study, sleep, coffee, repeat.

***

Laura Budd:

1. Ignore your friends, professors, Career Services, etc., if they say you won’t find a job. You will. It may not be a good one, but it’ll be a job.

2. Don’t be the gunner with 5 highlighters on your desk during class. Do it in private like a normal person.

3. I know book holders look really handy and will save room on your desk, but everyone will make fun of you.

4. Don’t use class on Friday as an excuse for skipping ThuNBaR. Everyone does it, and you will be lame.

5. Learn to filter your email now. I don’t want to have to read 8,234,643 emails of people complaining about the flame wars clogging your inbox. Similarly, if you are offended by something, email that person. I don’t want to read about your feelings.

***

Lindsay Landstrom:

1. Be yourself. I enjoy book holders. I also don’t care what anyone else thinks of me. That’s important. Remember, you’re here to get an education, not be the most popular or the best looking. That’s what high school is for. Remember why you came to law school if you start to fret about your social standing. I guess my point here is to be yourself in the wake of the immense peer pressure to conform.

2. Work hard and be humble. If you work hard, and are humble and open-minded, you will have absolutely no problem finding work. Take your schoolwork seriously, take your job search seriously, understand that getting a J.D. does not guarantee a lifetime of financial security without hard work, and you will find employment.

3. Strive to get better. If you do poorly your first term, or even your first year, that’s not the end of the world. Recognize your shortcomings and work to improve them. Personally, I don’t like talking grades with anyone. Law school imposes unnecessary competition amongst friends. I would rather assume all my friends get better grades than me, which forces me to work harder. Like how Michael Jordan used to manufacture feuds to fuel him in midseason games.

4. Be wrong once in a while. Don’t be afraid to be wrong. However, when you are wrong, own it. Anybody who’s anybody will respect you more for it. I find that I learn a lot more when I’m wrong – and stand to be corrected – than when I’m right and am tempted to rest on my laurels.

5. Keep your hobbies. This is a huge one for me. Law school hit me like a ton of bricks and I quit playing music because of it. Now, two years later, I have to practically relearn how to play the bass.

***

Kevin Hollinshead:

1. Don’t live on campus/in the library. Don’t be the guy/gal that brags about spending 10 hours a day on campus (s/he’s probably lying anyway). Go out, have fun, have a life. Otherwise, you will get burned out, and your experience here will suffer as a result.

2. Take everything that everyone does/says with a grain of salt. If the kid next to you in class is organizing his outline in a certain way, don’t just scrap yours out of panic. If your LRW professor tells you to make X number of changes to your memo draft, don’t do so if your gut tells you not to. I could go on, but the point is the same. Do what works for YOU- the universe tends to reward you accordingly.

3. Avoid “Wet Blanket Syndrome.” Yes, a few people you encounter over the next three years will probably annoy a lot of you. That said, don’t be the guy/gal that constantly whines about how so-and-so’s girlfriend is a bitch that hates fun, how Gunner A always holds up class, how Professor B sucks, etc. A little criticism now and then is 100% natural in an environment like this, but like everything else, exercise some degree of moderation.

4. Brush aside the little things. Just delete the flame wars in your email inbox (despite the listserv changes this year, a few students will inevitably find a way around this). Ignore the smug, self-referential musings of gunners in class. Don’t sweat it when a passive-aggressive classmate gives you backhanded compliments about your outlines or the job you just got. The little things that don’t matter can and will add up if you let them!

5. Make friends. I won’t mince my words here- life as a law student sucks sometimes. Whether it’s an LRW memo due in 24 hours, a week of summer job interviews with no offer, or the Court Café running out of spinach and feta pizza, a little moral support goes a long way. So become law homies with people you meet at orientation, the folks sitting around you in class, the hottie in [fill in preferred student organization here], etc. Hell, you have my permission to chat me up in the commons. Chances are, we’ll probably be best friends.

If all else fails, just remember that you’re not alone:

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