Category Archives: Criminal Law

What exactly is Sedition?

As the first indictments are coming down from the riot that occurred at the Capitol last week, the allegation of sedition has been referenced several times. Since it’s not a statute that is prosecuted very frequently, I thought it worth considering the legal definition. Federal Law defines “Seditious Conspiracy” under 18 U.S. Code § 2384 as “…two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof…” It’s a felony that carries a fine or a prison sentence up to 20 years. It certainly seems that those rioters who occupied the Capitol building would be subject to prosecution under this statute.

First, it requires that two or more people be conspiring, and there were hundreds working together to breech the Capitol building, so that element is satisfied. While it mentions putting down the government, which is arguable, it also includes other ways to break the law including levying war, oppose the authority of, hinder the execution of law or most notably, “by force to seize, take, or possess any property of the United States”. That certainly seems to be an apt description of the mass of people who breeched the Capitol building and occupied it. The Federal government certainly could make a case that the activity was seditious, especially if more information were to come out about conspiratorial actions in the lead up to the riot.

Some have suggested the President could also be criminally liable for the inflammatory language he used preceding the riot. It would be difficult for him to face criminal liability, though he not need be present to have conspired to commit a crime. Conspiracy charges, such as Seditious Conspiracy, punish not only the direct actors, but those that conspire with them. However, since the President did not directly call for invading the building, it would be difficult to make a case without something more. If things come to light over time that suggests there were actions or conversations with the President and those intending violence at the Capitol, he could face criminal liability, but his bigger concern is probably being held civilly liable.

The first indictments related to the riot have been issued, and sedition charges have not been filed against those individuals, including one who did enter the building. Mark Leffingwell does face a felony charge under the Federal Anti-Riot act for allegedly interfering with an officer during a civil disorder. He faces several other charges, including assault on law enforcement. The other individual is Lonnie Coffman, who was caught later in the day with weapons and a bunch of Molotov cocktails in his vehicle: he also faces felony charges. Dozens more have been arrested, and at least one law enforcement officer died, so many more charges are slated to come down, including homicide for anyone responsible for the officers death.

*UPDATE The FBI indicated this afternoon they are considering an array of charges, including possible sedition charges.

Challenges growing to use of Cell Phone location- “Geofencing” Warrants by Law Enforcement

Law enforcement is increasing its use of reverse-location warrants with companies like Google, known as “geofence” warrants. Instead of asking Google, or Verizon, or AT&T for the specific history of a person, these warrants ask for the identifying information of all the people in a certain area. For instance, a bank is robbed, and the authorities file a warrant on Google demanding that all of the Google Maps users with a certain radius of that bank be turned over to authorities. While the perpetrator may be included in that group, it could also potentially include the private data of dozens or even hundreds of innocent people. That’s where the biggest privacy concern arises.

The use of geofence warrants is growing, Google indicated that they were receiving 180 requests per week at the end of last year, and the numbers have been steadily increasing. The cases challenging these searches, generally most will target the lack of specificity and the invasion of privacy, have not yet resulted in many appellate decisions detailing when such warrants may be appropriate. One judge wrote in denying a warrant application, “The potential to use Google’s capabilities to identify a wrongdoer by identifying everyone (or nearly everyone) at the time and place of a crime may be tempting, but if the government can identify that wrongdoer only by sifting through the identities of unknown innocent persons … a federal court in the United States of America should not permit the intrusion.”

There is likely a path to make such reverse-location warrants valid, but it will likely encounter strict scrutiny to ensure limiting the request as narrowly as possible by size, time, and other factors to target the likely offenders, and not invade the privacy of law-abiding citizens. The concerns about unconstitutional intrusions were brought to light when NYC sought geofence data for people protesting and counter-protesting last year in the hunt for data about criminal rioters. The concern here is not only the invasion of privacy, but also the chilling effect on the 1st Amendment rights of lawful protestors. There are a lot of complex issues here, and it will likely be some time for the courts to develop guidance as to when geofence warrants are permissible, and when they are not.

Punta Gorda man Charged with Manslaughter in Accidental Drowning Death of Child

An arrest was made this week in the tragic death of a 1-year-old in Charlotte County in October. Deputies have charged Shahzad Sayed in relation to the drowning of his young child in the pool of their Deep Creek home on October 3, 2020. The primary charge Sayed is facing is Aggravated Manslaughter: the charge is aggravated because a child was the victim. The bigger hurdle for the state will be convincing a jury to convict the grieving father of manslaughter for a tragic, accidental drowning.

The Florida statute on manslaughter does permit a conviction for manslaughter by culpable negligence: it does not require an intentional act if the negligence of a caretaker is especially egregious. That is, someone can be found guilty of the crime by omission instead of an act; but the law saw the omission must evince a state of mind so wanton or reckless it could be considered intentional. Case law has said that the state must prove a gross and flagrant violation of the duty of care that causes injury; a course of conduct showing reckless disregard for human life or the entire want of care raising the presumption of indifference of consequences. A jury may find that the facts support such a finding, but it’s a high bar.

According to news reports, detectives claim that Mr. Sayed “knowingly” went to bed while his two small children were still up. The resultant injury to the child is per se evidence of negligence, but whether it rises to the level of culpable negligence is less clear. The child opened a door and went out to the pool area, where there were no safety devices. Certainly, pool gates are expected safety devices in homes where small children reside, but that omission alone is not enough to rise to the level of culpable negligence. Does the fact that the father fell asleep demonstrate a reckless indifference to life? It’s an issue on which reasonable minds could certainly disagree, and will likely be difficult to convince a jury beyond and to the exclusion of any reasonable doubt.

Mr. Sayed has also been charged with some drug related offenses, reportedly due to videos the detectives found that purportedly show drug transactions, and evidence of drugs in the common areas of the home. However, there’s no indication that there was any harm to the children due to the drugs, which means it’s a non-factor as to the manslaughter charge. Those charges may even be severed from the other for trial, so that the jury doesn’t consider them together. (Though, if they have evidence of his drug use the night of the accident, that may be admissible.) The legal aspects of the case are interesting, though the loss of a young child is obviously tragic. Regardless of what Mr. Sayed is convicted of, he will have to live with this the rest of his life.

A Real-Time Reminder of the Value of Police Cameras

I was able to get back into a courtroom for a socially distanced trial this week. It was my first since the pandemic hit, and quite a different experience, between physical distancing and the clear face masks that were provided so that we could see the faces of the jurors and the witnesses. We got a not guilty verdict for my client’s DUI, which was a huge win for him, and a relief to be able to move past the case now that it was done. And it was made easier for us since there was no video.
I’ve talked about the failure of many law enforcement agencies to provide regular video recording of their citizen interactions and arrests, including just recently. Many times, the video would assist the government in their prosecution of the case. That’s particularly true in DUI cases, where the only form of proof is the officer’s testimony about their subjective opinion about the performance on field sobriety exercises. Jury’s expect that evidence, and defense attorneys hammer the absence of video (or often, any corroborating evidence to the opinion testimony.)
In my trial this week, there were several jurors that indicated during jury selection that they would WANT to see video evidence. While the ones that said it out loud may have been struck from the panel, there were likely jurors selected that had a similar, unstated desire to see video evidence as well. After all, jurors want as much evidence as possible, and prosecutors want as much evidence to introduce to help prove their case. There’s a concern that a video might not support an officer’s testimony, but if that’s the case, we shouldn’t be prosecuting those cases. For instance, on a DUI case, if the video doesn’t help the impairment case, prosecutors can know which cases should not be taken to trial before they drag a panel full of jurors in for the day, particularly during a pandemic. 
Frequently, there are disputes between different versions of a story by witnesses on a case. Often, there is a discrepancy between what an officer says, and what the Defendant or his witnesses say about the details of a case. I suspect there is a thinking that it is beneficial for law enforcement not to create video, so that it is harder to challenge the officer’s version of events; the reality is that many disputes would be settled by the video. Disputes in evidence lead to more hearings and trials to settle the disputes, where a video is usually the best qualitative evidence that could be presented. The lack of video hurt the state’s prosecution in this case, and I have several other cases that are still pending because we don’t have video to resolve the dispute in facts. 
I feel like I do an “all cops should have videos” blog post nearly annually here, and several of our local agencies have added body cameras (Fort Myers and Cape Coral police both have done so). But the majority of law enforcement officers in Southwest Florida still do not have body or even car cameras. And defense attorneys like myself are going to keep hammering the issue in court, and jurors are going to keep being surprised that videos are not readily available in the year 2020. 

Kentucky I-75 Shooting Ruled Self-Defense

Kentucky prosecutors announced that no charges will be filed against a driver who shot another driver on Friday afternoon. Details are unclear as to what led up to the accident, but multiple witnesses confirmed one driver got out of his car with a rifle and approached the other car. The driver of the other car was already on the phone with 911 when he saw the rifle, and drew his own gun. the operator heard an exchange between the two men, and then the man in the car shot the man with the rifle.

If the photograph above is any indication, it certainly sounds like a clear cut case of self-defense. If you walk up on somebody with a firearm in hand, and in that photo he appears to be pointing it at the other driver, that other party is likely to have a reasonable fear of death or serious bodily injury. It sounds like the witnesses and the 911 call verify that the guy was justified in using deadly force to defend himself.

High-Speed Chase ends poorly for Truck and Police Car

Austin Westgate fled a Polk County deputy this weekend, initiating a high speed chase that ended up with his vehicle on top of a deputy’s patrol vehicle. Fortunately, nobody was hurt, and deputies were able to arrest the suspect sitting on top of their car.
austin-westgate-1Deputies responded to a possible burglary, and a suspect jumped into the gold truck. He fled, evaded stop sticks, took out some mailboxes and ultimately struck a steel support cable, causing the rear of his vehicle to pop in the air. Deputies arrested the driver, Austin Westgate, and learned he already had an outstanding warrant for fleeing. Suffice to say he took a bad situation and made it much, much worse.

Robert Kraft’s Charges Dismissed

Robert Kraft, the billionaire owner of the Patriots was charged in Palm Beach County with soliciting prostitution for allegedly going into a massage parlor and receiving sexual contact. His attorneys challenged the case on many fronts, but ultimately succeeded by attacking the validity of the search warrant that allowed them to place a video camera in the private areas of the massage parlor. The court was troubled by the fact that the cameras would film people in an intimate setting, many of which may not have been breaking the law. The State argued that the warrants were justified, in part because they could help fight human trafficking, but no trafficking charges were filed in relation to these cases.

The court suggested that such a warrant could potentially be possible if it included enough restrictions to prevent filming innocent individuals, but that it fell far short. Placing a video camera in such an intimate place is extremely invasive, and is the kind of thing that troubled the court greatly, and the court suppressed all the evidence obtained through these searches, which covered Kraft and several other co-defendants that were caught up in the same operation.

The State appealed the court’s ruling, and the case was on hold until the recent decision by the 4th DCA appellate court that agreed with the trial court. The court wrote, “The type of law enforcement surveillance utilized in these cases is extreme,” and set a precedent that will set limits on the use of “sneek and peek” warrants. The State declined to appeal the case to the Florida Supreme court, making today’s announcement that they were dropping the charges inevitable. Several other defendants, in multiple counties, who still had charges pending will see their cases dropped, and many of the others involved had already gotten their charges dropped by completion of a diversion program. Most importantly, this case, between the trial judge and the appellate court, has sent a strong message against law enforcement doing invasive searches like the sneek and peek warrants.

Florida Man Convicted of Smuggling Water Monitor Lizards

Akbar Akram with a Water Monitor lizard

A Florida man was sentenced for his part in a scheme to traffic in Water Monitor lizards from the Philippines. Adbar Akram and an accomplice in Massachusetts imported lizards that were taped into socks, and then concealed in audio speakers and other electronic equipment. Akram admitted to his part in the scheme, and to selling lizards to buyers around the United States. All this is illegal, and he was sentenced to 4 years of probation with 90 days home detention and 288 hours of community service.  Don’t smuggle wildlife!

Making the Case for Body-Worn Cameras

I have repeatedly recommended the adoption of body-worn cameras for law enforcement. It’s a win-win situation. There’s never a problem of having too much evidence. Having active cameras can only help get to the truth for police-citizen encounters. The body cameras cut both ways, and do not favor a party who’s statement does not line up with the video… the video favors facts.

Body worn cameras would be beneficial in the recent Los Angeles shooting of Dijon Kizzee. L.A. deputies claim that he dropped a firearm and was picking it up when they shot him. However, they did not have body cameras. The only video was earlier by someone with a camera phone and that footage only shows Kizzee running away. We don’t know what happened that led up to the moment of the shooting, and if deputies had bodycams, that might have given us an answer. It certainly would be beneficial to the Sheriff’s Department if they had body cameras that showed Mr. Kizzee reaching for the weapon. Departments have resisted using body cameras when so often, when the officers are acting appropriately, the cameras would be for their protection. Admittedly, there are flaws: the cameras don’t catch everything, but that’s not a reason not to try to get video.

Sarasota is considering body cameras for their police force. One of the concerns is the expense. The Herald-Tribune ran this editorial last week, arguing that the cost is worth it to acquire body cams. The editorial also ran here in Fort Myers the other day- Fort Myers and Cape Coral do issue body cameras, though the Lee County Sheriff’s Office has not. The Charlotte County Sheriff has recently reconsidered his stance, and will now be seeking body cameras for his department. I applaud this decision and encourage other law enforcement agencies to join CCSO, FMPD, CCPD and many others in outfitting their officers with this important equipment.

Again, be sure to check out the editorial: https://www.heraldtribune.com/story/opinion/editorials/2020/09/15/police-use-force-can-lessened-body-cameras-if-done-right/5790554002/

Sweetie the Alligator has been Deputized by Florida Sheriff’s Office

This video of an Alligator being carried into a Key Like Pie store, in addition to being the most Florida thing ever, when viral when it was shared a few months ago. Sweetie is a rescue Gator that lives at Jungle Adventures park… when she’s not visiting schools or hanging out at the Key Like Pie store. You can read more about the background of “Sweetie” the Alligator in this story by Craig Pittman.

Sweetie became such a hit, that Brevard Sheriff Wayne Ivey decided to swear her in as a “resource reptile”. You can see Deputy Sweetie most weekends at the Key Lime Pie store on Cocoa Beach, when she’s not back at jungle adventures!

Sweetie being sworn in