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Recent Blog Posts
Welfare Drug Testing and the Constitution
Governor Walker announced during his recent campaigning that he was planning on introducing drug testing for people who receive welfare or unemployment benefits. The idea behind the plan is to weed out the recipients of government funds who are using those funds to support drug habits. This has led to much debate about whether the policy is a good idea, but it has an even more basic hurdle to clear; it may not be legal. The core of Governor Walker's problem is the Fourth Amendment, which protects people from unreasonable searches. The fact that a person is receiving state benefits likely does not give the government the right to assume they are engaging in criminal activity.
Constitutionality of Suspicionless Drug Testing
Lawmakers Consider Changes to John Doe Proceedings
Ordinarily, criminal prosecutions begin with a crime and a person accused of committing it, but that does not necessarily have to be the case. In fact, under certain circumstances, district attorneys can start legal proceedings without a defendant and possibly without even a crime. These proceedings, known as “John Doe proceedings,” are special investigative processes by which Wisconsin law allows prosecutors trigger to determine if a crime has been committed and who may have committed it. However, after two lengthy John Doe probes into Governor Walker's campaigns and fundraising, some lawmakers are proposing changes to a John Doe process that they think has gotten out of hand.
What John Doe Proceedings Are
John Doe proceedings are part of an old legal process that was originally designed to protect people from baseless prosecutions. In the past, prosecutors could begin prosecutions based on nothing more than suspicions, and many of these prosecutions would eventually turn out to be without merit. In order to put an end to these sorts of overly aggressive prosecutions, legislators introduced the John Doe proceeding.
Supreme Court Rules on Driving Away from Traffic Stop
A recent Wisconsin Supreme Court decision sheds more light on the complex question of regading a police officer detaining a person. Police stops come in two forms, voluntary and mandatory. If the interaction is voluntary, then the person is free to leave at any time, but if the interaction is mandatory, then the person must stay. These interactions come with important legal differences, such as when a person must be informed of his or her rights and when the police are allowed to detain someone. The Wisconsin Supreme Court recently ruled in Grant County v. Vogt that a driver was free to drive away when a officer tapped on the window of the driver's parked car without turning on his squad car's lights.
The Case
Social Hosts and Dram Shop Liability in Wisconsin
Social hosts and dram shop owners are two groups of people who often end up bearing responsibility for the intoxicated actions of others. Social hosts are people who have others over to their home or otherwise throw a party and end up getting other people dangerously drunk. Dram shop is an outdated term for bars and other establishments that serve liquor. Many states have laws that hold social hosts or dram shops accountable for the damage done by the people that they served alcohol to. Ordinarily, Wisconsin law provides immunity for people who provided alcohol to others. However, there is an important exception to that immunity: serving alcohol to minors. Social hosts or bars who provide alcohol for underage drinkers may end up facing both criminal penalties and civil liability for their actions.
Traffic Stops: When Police Get the Law Wrong
Police officers have a fairly large amount of discretion when it comes to making traffic stops, but their discretion is not unlimited. Instead, officers must have a reasonable suspicion of a crime before they can pull someone over. This is not usually an issue because many traffic law violations are quite obvious, like speeding or running a red light. However, there are quite a few traffic laws, and it would be impossible to expect police officers to know all of them by heart. That means that courts need to know what to do when a police officer pulls someone over, believing that he or she is committing a crime, when in fact what he or she is doing is lawful.
Heien v. North Carolina
The U.S. Supreme Court recently handed down a decision in a case, Heien v. North Carolina, where that sort of stop had occurred. A North Carolina police officer observed Heien's car on the road with one broken taillight. The officer used that as justification to stop the car, genuinely believing that driving with a single broken taillight was a violation of North Carolina law.
Corporate Crimes: Charging Companies with Criminal Activity
Advances in technology have allowed modern corporations to develop a size and reach that are historically unprecedented. This poses problems because corporations are made up of people, and consequently are just as capable as ordinary people are of committing crimes, and charging corporate crimes presents unique considerations. Certainly, some of those can be avoided by charging the managers and directors of companies with crimes, but it is also possible to charge a corporation with a crime, if the prosecution can prove a few extra things. Of course, even when corporations are convicted of a crime, punishing them still presents particular problems.
Unique Considerations
Charging a corporation with a crime presents unique issues because companies are legal fictions. They are just legal devices that allow groups of people to coordinate responsibilities and contract together. The only way that they can act through the real world is through their agents, like their directors and employees.
Drones for Aerial Surveillance by Police
Technology's forward progress is usually reason for celebration. New technologies can cure disease, make work easier, or improve people's quality of life. Still, new technology can also breed controversy, and one of the most controversial pieces of new technology to appear lately has been unmanned aerial vehicles, or drones. Much of the controversy has centered on drones as used by the military, but as the technology has become cheaper, local police forces have begun to invest in drones for aerial surveillance. This raises new concerns about people's privacy and their right to be protected from unreasonable searches under the Fourth Amendment.
Aerial Surveillance and the Fourth Amendment
The limits of the rights of citizens under the Fourth Amendment are often determined by cases that go before the U.S. Supreme Court. That Court has yet to hear a case about drone surveillance, but it has heard multiple cases on aerial surveillance and manned aircraft. The cases on searches by manned aircraft have tended to center on cases in which the police flew over a person's land and spotted marijuana plants from above. In response to these cases, the Supreme Court created the Flyover Exception to the Fourth Amendment. The Flyover Exception states that a person cannot have a “reasonable expectation of privacy” with regard to things that are clearly visible to anyone flying over in a plane. Without a reasonable expectation of privacy, the Fourth Amendment does not apply, so the police do not need a warrant to perform aerial surveillance.
Revenge Porn in Wisconsin
The recent trend of posting revenge porn has proven to be a significant problem for law enforcement officials. Revenge porn is the posting of naked pictures of a former significant other online following a breakup. While some states charged the crime as harassment, many states have passed laws specifically designed to criminalize the posting of revenge porn. Wisconsin has now joined those states. The law, which went into effect in the middle of last year, authorizes heavy penalties for people found to be violating it. However, it also has several exceptions that are important for people to understand.
The Revenge Porn Law
Wisconsin's revenge porn law is based around the idea of a “private representation.” Private representations are pictures or videos of a person that depict nudity or sexually explicit conduct that the person depicted intended only to be viewed only by the person who took the picture or by someone who the person in the picture gave the representation to. That legalistic definition is basically designed to encompass private, sexually explicit selfies and photos taken by a significant other. The law makes it a crime to post a private representation online or publish it in any form without the consent of the person pictured. Doing so is a Class A misdemeanor with penalties of up to nine months in jail and a fine of up to $10,000.
Understanding Probation in Wisconsin
The criminal law has a wide variety of different punishments it can impose for crimes. The ones that people think of most commonly are probably jail sentences and fines. However, these are not the only options. Another common option is criminal probation. Probation is a period of court-authorized supervision of the offender by the Department of Corrections. A person can be placed on probation for a variety of reasons For instance, some courts may choose to put a person on probation instead of sentencing them to prison. Other courts may hand down a prison sentence, but hold off on it to see if the person can successfully complete a period of probation.
Probation Basics
At its heart, probation is about supervision. A person on probation is still free. They can live at home, and keep their job. However, they will be subject to a variety of rules. One of the overarching rules is the need to meet with a probation agent, who supervises the person's probation. The frequency of the visits will depend on the specific case, and the location may change as well. These sorts of meetings may take place in the agent's office, at a person's work or school, or even at their home. However, this is not the only rule. People on probation will also likely be required to refrain from using controlled substances and avoid getting charged with another crime. The court may also set specific conditions of probation based on the crime in question. For instance, a person may need to attend drug and alcohol treatment programs, or make restitution to the crime's victim. These rules are important, and violations of them can result in a person being placed on a probation hold, which can have serious consequences.
Accidental Antitrust Violations
The notion of accidentally committing a crime can be hard for many people to swallow. After all, part of the reason that a society has a criminal justice system is to express moral disapproval for things beyond what a civil lawsuit, like a personal injury suit, can do. Much of that moral culpability stems from people's conscious decision to do the wrong thing. That can make criminal antitrust violations difficult to accept because many people accidentally run afoul of antitrust laws in the course of doing what may seem to them to be an ordinary, acceptable business practice.
Antitrust Basics
Antitrust law is the branch of law designed to promote healthy competition among rival businesses. This branch of law has several important statutes, but the most important is the Sherman Antitrust Act. The Act has two major sections for defining antitrust. One section punishes monopolies, companies that have a lock or near-lock on a market, and use that lack of competition inappropriately to drive up prices or keep out competitors. While the exact definition of an “inappropriate” use of market power is a difficult line to draw, this portion of antitrust is difficult to violate accidentally because most monopolists understand the position that they are in.
