Category Archives: Arizona News

Mental Health Call Diffused By Phoenix PD

Phoenix police handled a very difficult situation where a man who suffers from schizophrenia wanted to harm others.  According to the ABC 15 News reporting.

At one point, the man had a knife and lunged at an officer.  It is reported the police officer drew his gun and thought about using it to protect himself, he ultimately did not use it.  The situation was diffused and the man was taken in for a psychiatric evaluation.

The result was not the same in mid-August where a woman wielding a hammer was killed during a mental health call when a Phoenix police officer shot her.

Looking through the index of the Phoenix Police Department Operation Orders it appears the section Mental Health Orders Tactical Response 9.7.3.F governs how mental health calls are dealt with.

I cannot analyze or share with the readers Section 9.7.3.F because it is restricted in the copy Operation Orders I have.  As this topic is in the news a few times recently, I will file an public records request and see if I can get access to this particular provision and shed some light on how Phoenix Police are expected to dealt with mental health calls.

It is important to note, once again, the Phoenix Police estimate they serve ten mental health calls a day.  It appears the vast majority of these are handled successfully without incident, such as the present case.  The police are put in a very complex and potentially very dangerous situation when dealing with mental health calls.

One residual thought I have from both incidents is why are guns only mentioned as weapons the police used or considered?  It is curious that non-lethal options are not mentioned.  It is not clear from the news articles if non-lethal means were available or used.  The Operation Orders should be able to provide a clearer picture about this.  And I hope it is a question that can be answered.

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Arizona Proposes Hotels Background Checks for Employees

Arizona hotels have come under fire for potential negligent hiring of employees of who have unfettered access to rooms.  During the last two years a couple of hotels in Maricopa County have hired employees who were convicted felons, gave them access to hotel rooms, and allegedly the former employees sexually assaulted guests.

Now, a few state lawmakers are looking into whether background checks should be required for certain employees who work at hotels.

Continue reading Arizona Proposes Hotels Background Checks for Employees

Phoenix Police Kill During Mental-Health Call

Last week the Phoenix Police Department shot and killed a woman while trying to serve a mental health order.  Caseworkers “were trying to get her to come in for treatment. It got to the point that she wouldn’t do that. … She had a weapon and was making threats.”  Reported the AZ Republic.

Last spring I gave a talk to several Arizona charities and non-profits about what the Americans with Disabilities Act requires as “reasonable accommodations” when law enforcement agencies enter into situations with people who they knew have a mental illness.  The ADA was passed by Congress only in 1990 and only a handful of cases involving the ADA and the police have made it to federal court of appeals, let alone cases specifically dealing with mental illness.  This is an emerging area of the law and there is not much written about it.

The Police’s Duty to Accommodate Under the Americans With Disabilities Act.

Police Have Affirmative Duty to Accommodate Disabilities.

This incident with the Phoenix Police Department fits that situation precisely.  The Phoenix Police Department is a law enforcement agency and is governed by Title II of the Americans with Disabilities Act, dealing with public entities.  Title 42 U.S.C. § 12131, et. seq.  A person with a serious mental illness with a serious mental illness qualifies for the protections of the Americans with Disabilities Act.  Title 42 U.S.C. § 12132 (1).  Lastly, since the police are aware of the disability, they should make reasonable accommodations.

“Title II’s affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be said to be so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.”  Tennessee v. Lane, 541 U.S. 509, 533 (2004) (internal quotation marks omitted).

Even the United States Supreme Court acknowledged individuals with mental illness are persons with disabilities who have suffered unconstitutional behavior in the past, and need the prophylactic protections of the ADA.

[T]he mentally retarded have been subject to a ‘lengthy and tragic history,’ of segregation and discrimination that can only be called grotesque.

— City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 461 (1985) (Marshall, J., concurring in part and dissenting in part) (quoting University of California Regents v. Bakke, 438 U.S. 265, 303 (1978)).

Continue reading Phoenix Police Kill During Mental-Health Call

American Bar Association Blawg Contest

First, some good news.  Arizona Common Law is now officially listed in the American Bar Association blawg directory (that is the term for legal blogs, get it b-law-g).  Anyway, I thought that was pretty cool that this site is entered into their directory and they even gave a shout-out to my sister site Colorado Common Law.

We’re working on our annual list of the 100 best legal blogs, and we’d like your advice on which blogs you think we should include.

Use the form below to tell us about a blog—not your own—that you read regularly and think other lawyers should know about. If there is more than one blog you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit.

Friend-of-the-blawg briefs are due no later than 5 p.m. ET on Aug. 8, 2014.

http://www.abajournal.com/blawgs/blawg100_submit/

To nominate your favorite legal blawg, time is running out.  It must be submitted by tomorrow at 5pm Eastern Standard time.

Here are some Arizona Blawgs which I enjoy reading:

Brown and Little PLC – The firm’s practice is criminal defense and the blog is filled with frank and honest commentary about the Arizona criminal justice system.

Carter Law Firm – The firm’s practice business law and contract.  Attorney Ruth Carter has been at the forefront of social media and internet law for a few years.  The blog offers some really insightful blog posts on all topics that her practice covers.

Who are your favorite blawgers?  They don’t have to be in Arizona.  Just where do you find interesting discussions about the law.  Post in the comments which blawgs you think are noteworthy.

Interstate Transfer of Undocument Immigrants

More bus loads of immigrants are being dropped off at Phoenix bus stations.

Arizona Governor Jan Brewer, said in a letter to President Barack Obama that thousands of immigrants from south Texas are being transported to bus stations in Tucson and Phoenix by the Department of Homeland Security (DHS). A local news outlet is reporting that Arizona is the only state in which immigrants are currently being shipped.  Apparently, immigration holding facilities in south Texas are overflowing and are seeking relief. “Everyone was packed in like sardines. Too close to sleep. They came in the middle of the night to drop off bread and bang on the doors,” and then loaded onto a bus headed for Phoenix. Xiomara Maldonado, a passenger on the DHS bus, told ABC15.

There are many humanitarian issues surrounding the transportation.  First, the immigrants do not have anywhere to go when dropped-off at the bus stations in Phoenix and Tucson.  There was no prior coordination between Texas, Arizona or the Federal government on a protocol.  Arizona officials claim they had no prior knowledge of the transportation, whatsoever. It is “especially disconcerting that (the United States Department of Homeland Security) instituted this operation without any notification to my office, the Arizona Department of Public Safety or the Arizona Department of Homeland Security. We instead learned of this action from the news media.” Governor Brewer wrote in her letter.
Second, when immigrants are dropped off in Arizona, no food water or shelter is arranged, which is especially dangerous because there have been excessive heat warnings for the last several days.  Local charities and volunteers are trying to help in any way possible.

My problem is the kids, it’s getting hot and you just dump them off at the bus station? Who’s going to take care of the kids? Is that humane? No it’s not humane.

— Mariciopa County Sheriff Joe Arpaio told Fox 10 news.

While driving in downtown Phoenix yesterday, I saw one of the DHS buses…going somewhere.  News channel Fox 10 in Phoenix later saw the same bus dropping off immigrants at a bus station.

Ice Transfer of Undocumented Immigrants in Phoenix, Arizona
Department of Homeland Security transfer of undocumented immigrants in Phoenix, Arizona, June 3, 2014.

It is unclear at this time what are the legal implications.  Setting aside jurisdictional issues, what happens if someone is hurt or injured because of this process?  With buses arriving daily, it appears that it is a new policy or custom of DHS made at a higher level and not just some rogue employee calling the shots.

Sources:
Arizona Governor Jan Brewer letter to President Barack Obama

Fox 10 News – Sheriff Joe Speaks Out; DHS Continues Immigration Drop

ABC 15 News – Transfer of Undocumented Immigrants

Arizona Legal News

  • U.S. Veterans Affairs Secretary Eric Shinseki resigned on Friday amid growing criticism from Congress. [AlJazeera] Why has it taken this long?  In early 2012, Dr. Katherine Mitchell, warned then Director of the Phoenix VA Sharon Helman of problems at the hospital.  In July 2013, another employee questioned the wait times being touted by the Hospital. In July 2013, Mitchell files a complaint to the Inspector General via Senator McCain’s office.  In October 2013, Dr. Sam Foote, a doctor of internal medicine at the Phoenix VA, claims in a complaint to the Inspector General that the wait time reduction is due to a manipulation of data. [AzCentral].
  • Can popular opinion force the name change of the Washington Redskins football team?  [NPR] Maybe, with the intervention of the league or Congress, but not if left up to its current owner.  In the wake of the Los Angeles Clippers forced sale and 50 United States Senators calling for a name change to the Washiginton football team, owner Bruce Allen wrote a letter to Congress defending the team’s name.  [Redskins.com]
  • Can cop-worn cameras restore the public’s faith in police?  In what looks like a Google Glass knock-off, New Orleans police are making the “body cameras” standard issue to its police force.  It will be interesting to see if the police keep the recordings and make them available for investigations, or if videos that negatively depict the police mysteriously disapperar.  [NPR]
  • Last week, law enforcement in New York City arrested 71 people in a child pornography sting.  [AlJazeera] I applaud the police for their efforts, in what appears to be a tough crime to prosecute, since the pictures are typically tracked across the internet.  I question, how much is the NSA helping with these investigations?  With their apparent internet-wide dragnet (that is unconstitutional in my opinion), why isn’t the NSA helping to remove child pornography from the internet?
  • The House of Representatives passed a law to curb mass data collection.  [ABC]

 

 

 

Arizona Legal News

  • Apparently there are trampoline parks in Arizona (where have I been?) and new tougher regulations are being implemented, including increased insurance minimums.  [MyFoxPhx]
  • Some states are pushing legislation to try to increase the access of terminally ill patients to experimental drugs without the federal government’s approval.  Will the drug makers side with the states or the federal government?  [AzCentral]
  • A Federal Communications Commission study found that cable prices are rising at three times the rate of inflation.  Studies are nice, but what is the FCC going to do about it?  [BGR]
  • Another inmate died of apparent suicide while serving out a two and a half year term for marijuana violations and incarcerated in the Arizona Department of Corrections. [ABC15]
  • The Federal Communications Commission is under pressure from the courts, trade groups and public on net neutrality.  Here is a cheat sheet to help understand the options.  [ReadWrite]
  • Wage and hour issues are becoming a hot topic in civil rights litigation. Large corporations are coming under scrutiny. [Salon]
  • A federal court is hearing arguments on the conditions for Guantánamo detainees.  The court is hearing arguments whether the United States government can force feed a Syrian prisoner who has refused food.  The Guantánamo detainees have been staging hunger strikes since 2005 to protest their conditions. [MSNBC]

 

Arizona Legal News

  • The Food and Drug Administration is considering whether to make Naloxone (brand name Narcan), a drug used to combat heroine and morphine overdoses, available over-the-counter.  With herione overdoses up sharply over the last few years, legislators are trying to find answers to help prevent more deaths.  [ABC 15]
  • Arizona might create a new specialized court for businesses.  The Arizona Supreme Court is creating an advisory committee to look at the merits.  [ABC 15]
  • Google has a mountain of data on any person who uses their popular services — data that it does not have to delete.  A European Court recently held the indefinite retention of data is a privacy violation.  Should people be allowed to delete their digital footprints?  [NPR]
  • Three family members family residing in Washington state were arrested for a medical marijuana garden on their property.  Law enforcement feared the plants were being grown by a collective, instead of by individuals.  As residence in rural Washington who sometimes have encounters with big game, they had guns in their home.  Subsequently, they are being charged with drug trafficking, in addition to manufacturing and distribution of marijuana.  This case may force the federal and state governments to come to a more definitive conclusion to the criminal status of marijuana.  [Huffpost]
  • Congress is debating whether or not it will fight the District of Columbia’s decriminalization of marijuana.  [Slate]

Arizona Legal News

  • Arizona legislators filed a friend of the court brief to encourage the Ninth Circuit Court of Appeals to implement new restrictions on use of abortion-inducing drugs.  [ABC15]
  • A new report claims the Border Patrol fails to take action on complaints.  Out of 809 complaints of abuse from Jan. 2009 to Jan. 2012 only 13 resulted in any kind of action, according to the report.  [AZCentral]
  • The Arizona Court of Appeals – District 1 is partially overturning a Superior Court ruling on police negligence.  In the aftermath, of a car accident in which one of five passengers died, the police mistakenly told the wrong family their child died.  The family sued for intentional infliction of emotional distress [IIED] and negligence of the police officers.  The Court of Appeals ruled there isn’t enough for an IIED claim to go to trial, but there is enough for negligence.  The Court reversed the summary judgment on the negligence claim and cleared the way for a trial.  [AZ Court of Appeals]
  • Three top officials at the Phoenix VA have been placed on administrative leave, one of whom is the director.  The allegation that forty or more veterans died while waiting for care is making waves nationally.  [CNN]

Arizona Human Trafficking and Prostitution Law 2014

Arizona Governor Jan Brewer quietly signed House Bill 2454 into law on April 22, 2014.  The intent of the bill is to add human trafficking to offenses that can be pursued under racketeering and makes some changes to the current law on child prostitution.

Human trafficking is a problem in Arizona.  Simply, human trafficking is the trade of persons for the purpose of forced prostitution and labor, or for the extraction of organs.  Since Arizona is a border state, and has three of the fifty most populous cities in the United States (Phoenix, Mesa and Tuscon); it is is ripe for smuggling people in and forcing them into servitude.  Human smuggling is a an enormous problem in Arizona for both forced prostitution and labor.

The Phoenix Police Department see it as a large problem, as indicated in this presentation: Sex Trafficking in Arizona. In the presentation are recommendations made by the Vice Unit, which is interesting because of their street side view of the situation.

Before we look at where we are currently with sex trafficking laws in Arizona, let’s see where we came from.

Human Trafficking Historically in Arizona

A year after Arizona entered the union as a new state in February 1912 the first statutes in Arizona were officially codified as the Arizona Revised Statutes. This is the closest law I could find to a human trafficking law on the books, way back then.

Any person. or persons, transporting or attempting to transport, by any railroad, steamboat, railway, or by any other means of conveyance, through or across this state, any woman or child for the purposes of prostitution or concubinage, or for any other immoral purposes, may be prosecuted, informed against, indicted, tried and convicted in any county or city in which the said offender may he apprehended, and on arrest shall be taken to any court of competent jurisdiction in any such county or city and the said prosecution, information, indictment, and trial, shall be had in the same county, or city, in which the arrest occurs.

— Ariz. Rev. Stat. ch. I. Rape, Abduction, Carnal Abuse of Children, and Seduction § 247 (1913).

The law goes on to state a woman who was trafficked would act as a witness to testify for the state. A violation would be classified as a misdemeanor, and upon conviction the punishment would be less than $100 or by imprisonment in the county jail for six months, or both.

An interesting distinction, the historic law does not require a use of force. The law merely states bringing a woman or child across state lines for prostitution or other immoral purposes is a prosecutable offense. In fact, there are not many limitations that the law imposes at all — jurisdictionally, state of mind for the accused, or the intent of the law.  It is a very broad encompassing law.

The language is very similar to the current federal human trafficking law, 18 U.S.C. § 2421.

What are Racketeering Laws?

Racketeer Influenced and Corrupt Organizations (RICO) acts are a tool for prosecutors to handle the complexities of organized crime activities.  Organized crime “weaken[s] the stability of the Nation’s economic system, harm[s] innocent investors and competing organizations, interfere with free competition, seriously burden[s] interstate and foreign commerce, threaten[s] the domestic security and undermine[s] the general welfare of the Nation and its citizens.”  Andrew J. Melnick, A ‘Peep’ at RICO: Fort Wayne Books, Inc. v. Indiana and the Application of Anti-Racketeering Statutes to Obscenity Violations, 69 B.U. L. Rev. 389, 392 (quoting Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 1, 84 Stat. 922, 923).

Arizona’s racketeering laws, Ariz. Rev. Stat. § 13-2301 et seq., are based upon their federal counterparts, 18 U.S.C. § 1961 et seq. State v. Feld, 745 P.2d 146, 149 (Ariz. Ct. App. 1987).  Since there is more written about the federal racketeering laws I will use those sources as my base to explain racketeering.

The federal Racketeer Influenced Corrupt Organization statute (RICO) was intended to help prosecutors in their cases against organized criminals.  John Dombrink and James W. Meeker, Racketeering Prosecution: The Use and Abuse of RICO 16 Rutgers L. J. 633, 634. Prosecutors first tried to focus their attention and resources to receiving a conviction for the head of the organization — this was known as the “attrition” strategy. Id. at 635. After a while the lesson was learned that targeting just the leaders of criminal organizations had little impact because the leaders could be replaced with relative ease.  In response, Congress passed the Organized Crime Act of 1970, which included the RICO statute.

One of the changes from the past to RICO is the concept of a “criminal enterprise,” and not just looking at an individual.  Conspiracy law was available before RICO, but sometimes proving a conspiracy was difficult with the wide array of criminal activity by unrelated individuals. “RICO applies to those who participate directly and indirectly in the enterprises’ affairs, and can be used to prosecute those who are even peripherally involved.” Id. at 638. The flexibility of RICO can be both good and bad.

The breadth of RICO statutes gives prosecutors the discretion they need but didn’t have previously.  On the other hand, with so much discretion for the prosecutors to choose which cases to prosecute it can be easily abused.

In Arizona, racketeering is applied to two different categories: terrorism and things done for financial gain (money).  There are thirty acts listed, when done for financial gain, can be considered racketeering, including obscene acts.  Ariz. Rev. Stat. 13-2301(D)(4)(b).

State v. Feld, 745 P.2d 146 (Ariz. Ct. App. 1987).

The defendants were charged with showing obscene films in combination with individual defendants and a C.A.T. Inc. dba Erotica Motel.  The trial court dismissed the the obscenity count on the indictment, finding it unconstitutional to apply obscenity charges to Arizona RICO laws because of several enumerated reasons, including: impermissible prior restraint, the post-conviction remedies stated are inappropriate for obscenity cases, and several sections of the law are not constitutionally compatible with each other.

The Arizona Court of Appeals looked at the issue whether the trial court erred by finding that the Arizona organized crime and fraud statutes (RICO) unconstitutional as applied to obscenity proceedings.

At the time the only other court to look at whether obscenity could be applied to RICO was the Indiana State Supreme Court.  The Indiana Court of Appeals found there was a constitutional violation because the government used prior restraint.  In a bookstore where some obscene materials were sold, the government locked -up the entire building, including some constitutionally protected materials.  The court found it was a violation of the First Amendment because the good was locked up with the bad before the trial.

In interpreting Arizona statutes dealing with obscenity, this court has, when possible, given the questioned statute a constitutional construction.  State v. Feld, 745 P.2d 146, 153 (Ariz. Ct. App. 1987).

[W]e have construed the RICO statutes as they relate to a criminal prosecution involving obscenity, such that they pass constitutional muster and do not have a chilling effect on protected rights.

State v. Feld, 745 P.2d 146, 156 (Ariz. Ct. App. 1987)

So in Arizona a criminal enterprise can deal with obsencity and be charged under the state RICO statutes.  The Court did acknowledge that it did not agree with an all-or-nothing approach to interpreting the statute.  This suggests that in some contexts the court may find the state RICO statute applied to obscenity as unconstitutional. Racketeering laws are really broad and give the prosecutor a lot of leeway in what situations she wants to prosecute.The breadth of the existing RICO law in Arizona is staggering.  However, that is a subject left for another blog post. This post will just focus on the new additions.

The New Arizona Law – House Bill 2454
House Bill 2454 is really long and contains a lot of changes to the law.  Please read along of the full law with all of the changes, as I try to walk through it.  Arizona House Bill 2454 – Human trafficking; Prostitution.

Civil Provisions

The first change that was made is non-criminal.  It adds a completely new civil statute to the law defining an escort agency.  Ariz. Rev. Stat. § 9-500.10.  “Escort and escort agency advertising requirements; civil penalty; definitions.”  It may be surprising, in light of the tough laws against prostitution, but escorts and escort services are legal in the state of Arizona.  For example, the city of Phoenix has in the past, regulated escorts within the city limits.  Phoenix also has its own ordinances for escort services (I couldn’t find an official site for the ordinance, sorry). Not every city or town in Arizona had licensing set up to accommodate this. This definition does not go as far as what the city of Phoenix does to regulate its escorts, but I think it is a good first step.

Largely the same language is added in Ariz. Rev. Stat. § 32-4255, as mentioned in the previous paragraph, except for this time it applies to massage therapists.  This definition in the Profession and Occupations is to clarify the rules for massage therapists, as a professional

A special human trafficking  victim’s fund will be created with Ariz. Rev. Stat. § 41-113.  This appears to be different from the other victim’s fund created under the criminal, which is more broad serving many types of organizations.

Criminal Provisions

The majority of the changes happen in the criminal code.

The felony sentence of imprisonment law, Ariz. Rev. Stat. § 13-701, will more clearly define when sex trafficking is a felony or can be an aggravating factor to a charge when a person is is charged with Ariz. Rev. Stats. §§ 13-1307 (Sex Trafficking Classifications) and 13-1308 (Trafficking of Persons for Forced Labor or Services).

Three new categories will be added to the racketeering definition: child prostitution, sex trafficking, and trafficking of persons for forced labor or services.  Ariz. Rev. Stat. § 13-2301(D)(4).  There were already thirty categories of racketeering under the old definition, but I think these new ones follow in the spirit of organized crime and are a good addition.

The new law clarifies that any money seized as a result of forfeiture will go into a fund for programs that serve the offense listed.  Ariz. Rev. Stat. §§ 13-2314.01, 13-2314.03.

Next the law changes some of the language related to prostitution.  Ariz. Rev. Stat. § 13-3209.  Language will be changed to further define what it takes to encourage someone into prostitution.  Ariz. Rev. Stat. § 13-3209(A)(2),(4).

Additionally, language is strengthened for child prostitution.  It is not enough anymore for a person to know, but that she/he should have known, that the prostitute is a child under the age of eighteen.  That lowers the barrier for prosecution significantly.  Ariz. Rev. Stat. § 13-3212(B)(2).  A new section is added later in the law making it a class 2 felony if the child prostitute is fifteen, sixteen or seventeen years of age.  It also lists the presumptive and maximum sentences.  Ariz. Rev. Stat. § 13-3212(G).

A new affirmative defense was created for prostitutes, if the act of prostitution is because of being trafficked.  Ariz. Rev. Stat. § 13-3214(D).  An affirmative defense is where the defendant acknowledges they committed the act, but says they had a legitimate reason to do so (self-defense is a good example of this).

Creates the definition of ‘advertising’ or ‘advertisement.’ Ariz. Rev. Stat. § 13-3551(1).  This will probably work hand-in-hand for the newly created laws on escorts and massage therapists, both of which have sections on advertising and advertisements.

Any advertisements that depict children for purpose of prostitution.  Ariz. Rev. Stat. § 13-3552(5). Interestingly, this new language creates immunity for internet service providers and websites who allow third parties to post on them.  For example, if FicticiousWebSite.com hosts advertisements (for jobs, dating, used goods, etc.) where anyone can post to their website to place an advertisement, they are immune from criminal prosecution if an advertisement depicting a child for prostitution ended up on their website.

The changes in the law also strengthen the victim’s right to privacy. Ariz. Rev. Stat. § 13-4434.  There are several additions, you can read the changes to see all of the victim privacy enhancements.