Are We Even Asking the Right Questions With Refugees?

For people who still think that we should continue trucking in refugees without stopping to have a serious think about it:

I am not just afraid of the refugees (or rather, of the relatively small number of refugees who are likely to be a threat), I am also afraid of us and of where this might lead. Let's say that the overwhelming majority of the refugees are wonderful people and only 4 terrorists sneak in and start killing people in Southwest Missouri. Let's even say that it is not as bad as what happened in Paris (which is likely).

How would our people respond? After Paris, French and even Americans are demanding more intense bombing in Syria. France, the US, and Russia have all intensified their bombing raids and people are cheering. Do most people even care if the bombs will help solve the problem? Do most people stop to ask if the right people are being blown up or what the moral cost is with the women and children who are also dying? Maybe it is worth the cost, maybe it is going to be effective, but do we stop to ask?

Most people do not have a Syrian in their neighborhood to take the anger out on. Syria is far away and the government acts as our proxy. We would like to think that they are acting with restraint and targeting the attacks, for instance, to avoid hospitals run by international humanitarian missions. Maybe they are, maybe they are not.

What happens after an attack in our cities when we have a handy group of Syrian refugees to take out the anger on?

Ask yourself whether some of our hotheads are going to stop and ask whether those particular refugees are really at fault. What happens here when we have American police having to decide whether to fire on American citizens attacking Syrian refugees in retaliation for dead Missourians killed by Syrians. Ask yourself who moderate Muslims will side with after pictures of Americans attacking refugees are played over and over on international news.

Don't think this can happen? You maybe have not paid attention: to the fact that Sikhs (who are not even Muslim) were mass-murdered in Milwaukee after 9-11, or that a Mosque in Joplin was burned to the ground after that same community actively volunteered to help victims of The Tornado. Or that Evangel in Springfield had to close an event related to refugees because of someone who wrote something they absolutely *should not* have written. Maybe you missed the Muslim family who had their house shot up while they were (fortunately) attending an event in support of the Paris victims. Maybe you have not been paying attention to what Trump has been advocating which belongs more in '30s Germany than in America. If we go through with this, Trump's solution is going to get much more popular. Could we live with that and call ourselves Americans? I know that I could not.

We need to stop and think this through. Very, very carefully.

A Letter On Marijuana Legalization

A letter to Mike Moon, Missouri 157th District State Representative in response to his recent Capitol Report:

Mike,

Hoping this letter finds you in good health and in the best spirits possible during your self-imposed exile among the strange and barbaric tribes which inhabit our state capitol ;-)

First of all, thank you for making your stand on the Miller vote, and no, you are not standing alone because we back here are standing behind you.

On the subject of marijuana, obviously a difficult one, I am strongly in favor of legal medical use. There are many of us with chronic pain conditions whose only lawful choice is opiate-based pain-killers. Opiate pain-killers work well for short-term trauma (broken arm) but poorly for long-term pain. Opiates do not stop pain, per se, but allow us to temporarily disassociate from it. Disassociating from life cannot be a long-term solution to pain. We have to daily balance how much we want to be dependent on such medications and how much we wish to suffer. Vicodin/oxycontin/etc. damage the liver, develop tolerance, can be addictive, are often abused, and are hell to come off of.

Medical marijuana might or might not help my condition, but because of the legal issues, I may not find out, even though doctors may prescribe heroin legally, even though there are varieties and formulations of marijuana which have medicinal but no recreational value, even though legalization would encourage the development of those solutions: it is simply not permitted. Whether or not it would help me, I want the option, and I want others who suffer to have the option. Denying access to palliative care is inhuman.

A note of caution, however: when medical marijuana use is legalized, thought must be given to legal definitions of intoxication. Legal thresholds are well-defined for alcohol and opiates usually have a standard. In states where marijuana use has been permitted, they have encountered difficulty with DUI/DWI definitions because marijuana is detectable at significant levels in the blood long after its effects have worn off and alcohol-oriented laws are not appropriate. I can read the law and have a reasonable idea of when I can drive after ingesting alcohol or an opiate-based pain-killer or which pain-killers count as "intoxication" in what amounts and which do not. The law must also give fair notice of expected behavior for medical marijuana in order for people to have the ability to comply.

On recreational use, it is not and has never been "my thing". Even if it were legal, I would be unlikely to avail myself of the opportunity, but I do not know that this gives me the right to forbid someone else from making that choice for themselves. I also am dubious of the distinction between my choice to have a beer on occasion or home brew a batch of wine (have one in the kitchen waiting to be bottled) and someone else's choice to smoke a joint, grow some pot, or make brownies. In particular, there is not and never was a rational basis for including marijuana in the most dangerous category of illegal drugs. The law should be rational and not arbitrary.

More than that, the Drug War has been an unmitigated disaster, causing decades of suffering, destabilizing foreign relations, playing a part in the militarization of police and urban communities, in the misuse of civil forfeiture laws, expanding the black market, placing peace officers in a position as enforcers of morality which many of them have no desire to be, and contributing to the world's largest prison population. It has lead to the eradication of industrial hemp for fiber and fuel, and to the outlaw of medical marijuana. We recognized Prohibition as a mistake and retracted it. It is long past time that we come to the same recognition with marijuana: no matter what we personally may think of the practice.

Sometimes we make mistakes and simply have to live with them, whether we like it or not. Once in a while, we have an opportunity to reassess and choose again. This is one such opportunity, and the process must begin somewhere, with someone. In the meantime, I remain:

Your Most Obedient Servant,

Eric Vought,

Writing in my personal capacity; these opinions are my own and are not official statements of any group or organization.

MO HB 75 -- Should All Cops Wear Video Cameras?

In response to Mike Brown/Ferguson, Garner/New York, our local issue with the arrest and beating of Bob Estep, and so forth, people across the country have proposed requiring all cops on duty to wear video cameras. In Missouri, this issue has come to a head with the filing of HB 75. People I respect are supporting this measure and I agree with some of its aims, but I also have problems with it, some of which can perhaps be resolved by better wording and some of which perhaps can not. In this article, I am going to explain the proposal as I understand it, explore the underlying issues, and lay out my objections. Hopefully this will lead in the direction of a solution which works.

What Is the Goal?

Let me start by making it clear that I do not believe that all of the examples of police abuse currently in the news are examples of abuse. I am not convinced that Mike Brown is such an example, for instance, but do believe that the throttling of Garner in New York probably is. Sometimes the evidence for or against abuse is simply not there, and this is what advocates of HB 75 hope to change by recording objective evidence from every encounter to help make that decision. In theory, that evidence cuts both ways by:

1. Providing evidence that a victim was abused when law enforcement goes too far
2. Providing evidence to clear the officer when the suspect escalated the encounter.

Michael Steinberg, Legal Director of the ACLU of Michigan, states this "win-win" outcome as the position of the ACLU["Violence In Ferguson Spurs Interest In Police Body Cams", CBSDetroit, 5 Oct 2014].

The Missouri law justifying a peace officer's use of force is found in chapter 563:

1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, he is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.

2. The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful.[emphasis mine]

[RsMO §563.046]

The rest of the section goes on to discuss use of deadly force in making an arrest. I discuss this in detail elsewhere in the context of the Supreme Court Garner decision and the fact that Missouri law may be unconstitutional as written[Eric Vought, "Tennessee v. Garner and Missouri's Use of Force Statute" guest blog on gundebate.com].

Note the use of the term "reasonably believes" three times in this section. In criminal law, "reasonably believes" sets up both a subjective and an objective standard. The peace officer must believe that the suspect is guilty of an offense and that the arrest is justified. Belief is subjective. The peace officer may truly believe something and be completely mistaken: it still counts as "belief".

The law goes further and requires that the belief be "reasonable", which means that there must be rational cause for the belief. The mythical "reasonable person", confronted with similar circumstances, must be capable of holding such a belief. This is an objective standard which is influenced by previous case law defining what is considered "reasonable" and what is not[Joel Samaha, "Criminal Law, 5th Edition", West Publishing Company, Minneapolis, MN 1996. pp 220-221]. The textbook case dealing with "reasonable belief" is People v. Goetz [68 N.Y. 2d 96, 506 N.Y.S.2d 18, 497 N.E. 2d 41 (1986)]. The opinion in that case goes into detail on the difference between "belief" and "reasonable belief" in finding that a man in the NY subway did not have a "reasonable belief" that the teens he shot were armed and a threat to his life.

So, in the end, then, the question of "reasonable belief" is what we hope to use video evidence to answer, and, specifically, the objective "reasonable" component. There is also an inevitable trap, however: video evidence shows us what actually happened and may go to proving whether an attempt to arrest (and therefore to use force to effect it) was actually correct. The actual question in justifying use of force is not whether the arrest was justified, however, but whether the peace officer "reasonably believed" the arrest was justified. The temptation of video evidence is to get distracted by hindsight rationalization and lose sight of the what the peace officer knew or should have known at the time he (or she) was forced to make the decision. Those two issues are not always the same.

The Limits of Video Exemplified In Rodney King Trial

The Rodney King incident is a good example of misuse of video when context is lost. The short clip the media played over and over showed a number of police beating an apparently helpless man. The media did not show the crucial 13 seconds of video or the non-taped events leading to that moment where the suspect beat and hospitalized several officers and brushed off the effects of the taser, because, the officers believed, King was under the influence of PCP.

Although the later evidence questioned the idea that he was drugged at the time it is clear that the taser was completely ineffective for some reason, the officers did not know at the time whether or not he was drugged, and lawyers for both sides stipulated that King was intoxicated. The extent to which the police used force almost certainly went too far, but the question of whether the police "reasonably believed" that escalation of force was justified was lost (for many people) in the hindsight, knee-jerk reaction to the video clip, which lead to the outraged public reaction at their unexpected acquittal.["The Limits of Videotape: An Echo of Rodney King"]

This is not to say that video is not useful, but rather that it comes with its own dangers which we must be mindful of. In some cases, video from dash-cams or bystanders makes the critical difference in obtaining a prosecution or disciplinary action for use of force, such as the beating of 76-year-old Pete Vasquez where dash-cam footage lead to the firing of the officer. We have to recognize that video footage is not magic, it can be misused, and must be balanced with other evidence.

Some People Are More Equal Than Others

The problem is that other evidence often comes down to two factors:

1. The word of the the suspect
2. The word of the arresting officer

Both of these parties have strong motives to lie or color the truth. Both of the parties may have their perceptions colored by stress. Both of them may make mistakes. All things being equal, the testimony of both should be weighed the same.

All things are not equal, however. The incidents are generally investigated by the police themselves and the local prosecutor has a close relationship with law enforcement. The courts and jurors also tend to believe law enforcement over the word of the suspect, especially if the suspect is actually a criminal or can be painted by law enforcement as anything other than a perfect citizen. The problem here is that criminals and riff-raff are no less entitled to the protection of the law regarding use of force than anyone else, and even the most honorable citizen has done something which can call their word into question. Past behavior of police officers in the arrest, however, is often barred by the judge as prejudicial unless the officers themselves call witnesses or submit evidence to their character.

In an ideal world or even one which is moderately fair, a peace officer should be given some benefit of the doubt in whether their actions are justified. Law enforcement does deal with criminals on a regular basis, they are required to put themselves at legal and physical risk to carry out their public duty, they are (theoretically) given adequate training in the limits of the law, and they are often the only ones in the place to judge whether they believed an adequate threat existed. This is the exact same sense in which Castle Doctrine creates a presumption that a home owner is justified in using force to defend themselves and places obstacles in the way of armchair quarterbacks second-guessing their fear of an intruder who awakens them in the dead-of-night.

But again, the world is not ideal and often is not even "moderately fair". Especially when police encounter citizens going about their lawful business and instigate an encounter the citizen has no ability to avoid, we rightly question the deference accorded the law. Pete Vasquez had done nothing wrong. He had dealer plates on his vehicle which temporarily exempted him from having a valid inspection sticker. He did no more than explain this (relatively courteously) to the officer who was in fact mistaken about the law. Vasquez had no ability to avoid the encounter initiated by a police officer. Other similar encounters suggest that, in the absence of video evidence (and the word of a bystander, incidentally), Vasquez not only would not have received justice but he might have found himself charged with being the aggressor and prosecuted. An intruder can choose not to break into a home, but a citizen cannot necessarily avoid an encounter with law enforcement.

Even with body cams, the suspect does not always win a claim of abuse, such as the controversial case in Florida where Victoria King was dragged out of her car at a traffic stop and convicted of resisting arrest despite allegations of excessive force and brutality. The officer was wearing a body cam but the video does not clearly resolve the different claims of how the window came to be broken or whether King attempted to roll up the window on the officer's arm. A video does give the citizen an opportunity to present evidence which might not otherwise exist.

What Does HB75 Try To Accomplish

Let's take the bill summary [PDF] a piece at a time (the bill text is also online [PDF]). We are referring to the Introduced version here, which will likely change as the bill makes its way through committee.

This bill imposes an additional tax of one cent on every retail sale of any handgun or ammunition in Missouri. All revenues derived from this tax must be used solely to provide funds for video and audio equipment for law enforcement officers.

This is the mechanism proposed for funding the body cameras. It should be noted that the bill text is specific, limiting the use of the funds to the implementation of body cameras not video and audio equipment generally. However, the precedent this would make is alarming: gun-control advocates have often proposed taxes on ammunition and firearm sales to fund violence prevention. Those taxes are often shot down (by the electorate or the courts) as impermissible restrictions on the Right To Keep and Bear Arms.

Why should gun owners bear the burden of this enactment? Why not a tax on basketballs or cars or donuts? To put a specific perspective on this, why should unpaid law enforcement volunteers— who already pay for their own equipment (including firearms and ammunition) in order to serve the public— pay for the body cameras as well? If it is important enough to require peace officers to wear video cameras why is it not important enough to fund from general revenue and share the cost equally among all citizens? If this is passed, what precedent does it set for other taxes on firearms and ammunition for other public uses with arguably just as much merit? I would oppose HB 75 on these grounds alone.

The bill requires all uniformed law enforcement officers in Missouri to wear a video camera affixed to his or her uniform while on duty. The video camera must record the interaction between a law enforcement officer and a member of the public. The recording must include both audio and video.

Uniformed law enforcement officers arguably would exclude uniformed volunteers without arrest powers, but, e.g., the Lawrence County Sheriff's Auxiliary includes uniformed volunteers, some of whom are commissioned, who do not possess law enforcement powers and the language is potentially ambiguous. It would be preferable to specify "licensed peace officers" or require arrest powers explicitly. Volunteers may be deputized during an emergency, thus temporarily gaining arrest powers under RsMO 57.119, and the wording may require further tweaking to exclude this case. It is not practical to equip temporary deputies called up in the middle of a dire crisis with cameras. These are wording problems, however, and not fatal to the bill if corrected.

All law enforcement agencies must preserve any recordings made by a video camera for a minimum of 30 days and must develop any policies and procedures necessary to execute these provisions.

Clearly if we are to bother making the recordings, we need to ensure that they are preserved, so this portion is common sense. It is worth mentioning, however, that the videos should not be publicly accessible nor necessarily amenable to Sunshine request (Missouri's equivalent of FOIA) because they likely contain confidential data. This is not to protect the LEO but the rights of victims and suspects. Some of this has been discussed in Columbia, MO where officers now wear body cams (which can be switched on and off at need).

I reject out of hand the idea that law enforcement officers have any privacy right in their public actions. The public they interact with, however, clearly does have a privacy right. It is also important to note that some actions of law enforcement, while being technically public, may endanger law enforcement efforts or the public if revealed. This encompasses the entire sphere of data typically classified as For Official Use Only or Law Enforcement Sensitive and exempted from Sunshine Act requests. Often this protection should only be temporary, such as data revealing details of an ongoing investigation or security measures for a public event.

At a minimum, body cam videos should be accorded the same protection as 911 recordings under RsMO 610.150 ("... shall be inaccessible to the general public... Any closed records pursuant to this section shall be available upon request by law enforcement agencies or the division of workers' compensation or pursuant to a valid court order authorizing disclosure upon motion and good cause shown.") It can be argued that this is made possible by "...shall develop any policies and procedures necessary..." in the bill text, but I, for one, would be more comfortable were it spelled out. Again, this is not a fatal problem with the bill.

These provisions cannot apply to detectives or other law enforcement officers while they are working in an undercover capacity or to any law enforcement officer in any situation where the wearing of the video camera would endanger the safety of the officer or the public.

This provision is also common sense. Detectives interviewing witnesses or dealing with confidential informants obviously should not be [required to be] recorded and nor should undercover activities. In many agencies, detectives are not "uniformed" and undercover officers forgo uniforms for obvious reasons. There is a minor but significant ambiguity here where the lack of punctuation can imply that detectives are only exempted while undercover, which is clearly not the intention but potential confusion can probably be eliminated with slight rewording.

The Devil In the Details

So far we have a major issue with the funding source of the proposal and some wording problems, all potentially fixable. As we dig a little deeper, however, there is a nest of difficulty which is much tougher to resolve.

A large agency often has a clear distinction between patrol officers and detectives. As noted above, detectives are often not uniformed in such agencies, so they might be exempted under the wording of this proposal in any case. It seems likely that large agencies can shuffle responsibilities to make it easier to separate those who must wear cameras and those who should not.

It makes sense to use officers without arrest powers in some situations and I advocate the selective use of non-peace officers in law enforcement to separate certain responsibilities and thereby reduce instances of abuse. Lawrence County's intelligence section is entirely non-peace officer volunteers. This has created important opportunities because some witnesses and informants have come forward who would not be comfortable first approaching an officer with arrest powers. The non-peace officer has no authority to escalate the situation under 563.046. The non-peace officer volunteer becomes a viable bridge between "us" and "them". Such opportunities might also come into play with this proposal.

St. Joseph Missouri's experience with body cameras came with mixed results and issues were raised about the cameras discouraging the interaction of potential witnesses with uniformed officers.

What about small agencies and, in particular, rural Sheriff's Offices?

In many such offices, all deputies wear uniforms. Some of them primarily patrol and some of them primarily work as detectives, but all or most deputies will do both at least some of the time. The county Sheriff himself is a "uniformed law enforcement officer" and may, by turns, respond to a violent incident (should be recorded) or speak with a confidential informant (must not be recorded). A sheriff's office with (e.g.) 20 or fewer full-time deputies likely cannot shuffle responsibilities to make this proposal work.

Unlike the other minor textual problems of HB75, I see no way to tweak the wording to rescue it. Dash-cams, now becoming ubiquitous, do not suffer the same issues. An officer can step away from his vehicle to take a conversation off-the-record. If we give officers the discretion to turn off the cameras according to the nature of their task-of-the-moment, then the entire point of the bill would be undermined: how would we judge the claim that an officer was right to turn off the recorder in a situation where we have no recording and differing accounts? What happens when the recorder is 'accidentally' switched off during an altercation? Alternately, sheriff's offices might be exempted, but will a small-town police department with 6 full-time officers be any better able to comply than a rural Sheriff? If sufficient exemptions are made to correct the problem, will the bill be able to accomplish its objective of deterring police misconduct?

Alternative Solutions?

I am open to the idea that there may be ways to rescue the bill which satisfy my concerns and perhaps some will be suggested by readers.

The State Highway Patrol is clearly an agency with the size and structure. The Highway Patrol already has dash cameras (inward and outward facing) and audio on the troopers themselves. It might be a worthwhile experiment to start with body cams on SHP patrol officers. As a statewide agency, it is clearly appropriate to subject them to statewide policy.

Columbia's experience (along with that of Lowell, Michigan) suggests that body-cams have value even when officers can switch them on and off at will. The Columbia cameras retain video for 30 seconds before they are switched on. If policy requires the use of cameras in police-public encounters, then an officer switching off a camera in a questionable situation will need to justify that decision. If an officer's actions are above-board, they have an incentive to record in order to justify their actions to later review.

If cameras are to be always on (and perhaps even if they are not), the decision of whether to use them should be left to the jurisdiction and its voters. With large structured agencies and access to funding, it is likely that they are appropriate, leaving small localities to balance their needs, funding, and priorities. Columbia enacted their policy without the need for a statewide requirement. I am generally opposed to a one-size-fits-all statewide policy on body cameras and am therefore opposed to the HB 75 proposal as it stands.

Disclaimer and Disclosure

This author is the Commander of the Lawrence County Sheriff's Auxiliary, a unit of non-peace officer volunteers in service to law enforcement. I therefore have a relationship with law enforcement but am neither compensated nor employed by them.

These opinions are my own. Nothing in this article represents any official policy or opinion of the Lawrence County Sheriff's Auxiliary, the Lawrence County Sheriff's Office, any other agency or public/private organization.

Against Missouri Amendment 2 and Propensity Evidence In Sexual Crimes

There has been a low level of discussion on the ballot initiatives for tomorrow's election, including Amendment 2, "Rules of Evidence in the Prosecution of Crimes of a Sexual Nature Involving a Victim Under Eighteen Years of Age". In particular, I just received an email that the Missouri GOP has endorsed this Amendment. I therefore wanted to make a formal statement that I do not support Amendment 2.

The official ballot language is as follows:

Official Ballot Title: Shall the Missouri Constitution be amended so that it will be permissible to allow relevant evidence of prior criminal acts to be admissible in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age?

If more resources are needed to defend increased prosecutions additional costs to governmental entities could be at least $1.4 million annually, otherwise the fiscal impact is expected to be limited. 

Fair Ballot Language:

A “yes” vote will amend the Missouri Constitution to allow evidence of prior criminal acts, whether charged or uncharged, to be considered by courts in prosecutions of sexual crimes that involve a victim under eighteen years of age. The amendment limits the use of such prior acts to support the victim’s testimony or show that the person charged is more likely to commit the crime. Further, the judge may exclude such prior acts if the value of considering them is substantially outweighed by the possibility of unfair prejudice to the person charged with committing the crime.

A “no” vote will not amend the Missouri Constitution regarding the use of evidence of prior criminal acts to prosecute sexual crimes.

If passed, this measure will have no impact on taxes.

[Proposed by the 97th General Assembly (First Regular Session) HJR 16]

Proponents of the measure claim that it merely brings Missouri in line with other states and federal rules which allow such 'propensity evidence'. This is not strictly true. The federal rules have very strict restrictions on propensity evidence across the board with a very limited exception for prosecution of sex crimes against minors. Most states closely align with the federal rules. The Missouri proposal is, by comparison, extremely broad, allowing not merely allegations of prior sex crimes against children but of virtually any criminal acts whether charged or uncharged.

Why is Propensity Evidence Bad?

Isn't that a good thing? I mean, we're talking about convicting child predators here, right? It is a good thing to convict the right people of the right crime. I do not see how it helps to turn a courtroom into a circus in order to convict the wrong person of the wrong crime. Opening up propensity evidence also violates several important Constitutional protections, including the right of the accused to face their accuser and the double jeopardy protections. Propensity evidence allows the prosecutor to bring in mere accusations of former conduct--- which may have resulted in dropped charges or a failed indictment, possibly even a not-guilty verdict previously or may not have been charged at all due to lack of proof or inadmissible evidence.

Worse still, we are amending the Constitution rather than simply implementing a rule or statute. A rule or statute can be readily adjusted later. The Constitution is difficult to correct if we find that it has gone seriously wrong.

An excellent blog on Simple Justice goes into many of the reasons that propensity evidence is a big problem. This blog was posted by a public defender in 2008 when Connecticut was dealing with many of these same issues. An excerpt:

The irony of this dichotomy is that uncharged prior bad acts are unproven by definition.  The court is supposed to act as gatekeeper, only admitting those prior bad acts that are shown by “clear and convincing evidence” to have occurred and were performed by the defendant.  This sometimes creates a “trial within a trial,” which puts a defendant in the position of not merely defending against the charged offense, but disproving the uncharged offense as well.

Missouri has serious problems with its public defender system which already leads many defendants to plea bargain even when they have not committed a crime. Propensity evidence may accelerate this problem because anyone with any black mark on their record may realize that they simply cannot win at trial. So now we have the situation where someone who is wrongly accused may have to plea out simply because they were wrongly accused before and because they do not have access to competent counsel to defend them. Meanwhile, when one person is locked up for a crime they did not commit, the person who actually did it goes free.

Plea bargaining creates a viscous cycle because once someone please for a crime they did not actually commit, then that becomes part of their record and becomes propensity evidence for the future. Like a bad movie, we start "rounding up the usual suspects" instead of actually investigating crimes. The usual suspects are almost never rich sons of well-connected individuals. The word "villein" actually means "villager" or "commoner". The British believed that well-bred aristocrats were simply incapable of committing murder, which is why the old murder mysteries always revolved around "uncovering the villein": finding the revolting peasant hidden in the midst of the perfumed aristocrats. Such a two-tiered system is inherently un-American, un-Christian, and unjust.

Text of Existing Rules and Proposed Changes

Federal Rule of Evidence 413: Similar Crimes In Sexual Assault Cases:

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

Text of HJR 16, the actual language of Amendment 2:

Section 18(c).  Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged.  The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. [emphasis mine]

Notice that the proposed Missouri amendment considers all "prior criminal acts, whether charged or uncharged" and does not require notice to the defendant. Compare the text of Federal Rule of Evidence 404 "Character Evidence; Crimes or Other Acts", particularly 404 b) and the rationale at the bottom. Propensity evidence is and always has been considered a bad idea. Just because someone says, "think of the children" doesn't make it suddenly a good idea, especially when amending the Constitution.

Please vote this bad idea down.

Addendum: Why Is This a Constitutional Amendment?

Above, I criticize this proposal for using a Constitutional Amendment rather than statutory change or rule. To be fair to the proponents of Amendment 2, this is not precisely the issue. It is true that the attempt has been made before to accomplish this by statutory change. RSMo 566.025 contains:

In prosecutions pursuant to this chapter or chapter 568, RSMo, of a sexual nature involving a victim under fourteen years of age, whether or not age is an element of the crime for which the defendant is on trial, evidence that the defendant has committed other charged or uncharged crimes of a sexual nature involving victims under fourteen years of age shall be admissible for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he or she is charged unless the trial court finds that the probative value of such evidence is outweighed by the prejudicial effect.

Which was ruled un-Constitutional in State v. Ellison 239 S.W.3d 603 (Mo.banc) as violating Article Sections 17 and 18 of the Missouri Constitution (citing basically the same concerns with propensity evidence we outline above). Two other legislative attempts to admit propensity evidence have also failed in Missouri.

So, in one sense, a Constitutional amendment is the only way to accomplish the admission of propensity evidence, however:

1. That does not make it a good idea. The exact same issues which caused the previous attempts to run afoul of the Missouri Bill of Rights still exist. If we throw those principles out the window for accusations of sexual assault, why do they have meaning for anything else?
2. The proposed amendment is much more broad than RSMo 566.025 as can readily be seen by comparing the text quoted above. Amendment I admits a wider variety of crimes under a wider variety of circumstances than that which the courts already found problematic. Therefore:
3. If we decided that propensity evidence was a necessary thing and we decided that amending the Constitution were the way to go about it, simple prudence and respect for the protections in our (state and US) Bills of Rights would dictate that we do so in the least intrusive way possible and then use more malleable statute to place further restrictions. For instance, we could allow the prosecutor to use only evidence of past charged or convicted offenses of sexual assault against minors. Or only charged offenses of sexual conduct (alleged victim of any age) and empower the writing of legislation or appropriate rules of evidence to tighten that down a bit.

Amendment 2 fails this test in all respects. There is an entire world of potential amendments in-between un-Constitutional 566.025 and the Amendment 2 text.

My Provisional Support For Missouri's Right To Farm amendment.

There has been a lot of controversy surrounding Constitutional Amendment No. 1 on the 5 August ballot in Missouri. Many people do not understand the potential meaning of the language or distrust the motives of the Amendment's promoters. I have personally supported "Right To Farm" proposals in the past, particularly as part of the Well-Fed Neighbor Alliance, and discussed potential language with State Senator Lembke's office several years ago. I have been opposed to Amendment 1 on the grounds that I was, like many others, uncertain of the meaning of the language and have spent a good bit of time over the last few days exploring that issue, as well as Facebook conversations with Tom Martz, Paul Curtman, and Shane Schoeller on the issue. As a result of my exploration, I am going to retract my opposition. I am not certain yet which way I will vote, but I do believe that the promoters of the amendment have taken care with the wording and that there is at least a good argument to be made about how the amendment will be interpreted. This post will explain some of what I have found to hopefully help others make their decision in the short time remaining to us.

I have tried to include direct links where possible to allow people to more quickly do their own reading.

Motives and Motivations

First of all, let me make clear my own motives. I am a disabled farmer, primarily raising sheep in a small family operation, first for wool but also for food, breeding stock, and other uses. We spin wool, knit, weave, and produce other fiber products, raise or wild harvest plants for natural dye use, from time to time market free-range eggs, raise a garden, and so forth. We have sold at farmers' markets in the past and currently mostly sell finished goods (e.g. woven shawls) at art festivals. Given that I am disabled, the size of the operation is limited to what my wife and daughter can do and what I can help with within my physical limits.

My wife and I are strong supporters of local cottage industry, small and family farms, and self-reliance. We were involved with the Well-Fed Neighbor Alliance from its beginnings and helped Galen Chadwick organize and launch the first local conference (under the banner of the WFNA and the Statesmen For Our Constitutional Republic). We are active in the Ozarks Property Rights Alliance, Lawrence County Chapter. This essay is, however, my own work and is not an official statement of any other organization.

The motives of the core promoters of this proposal are also very clear to me. State Representative Paul Curtman, Shane Schoeller, and State Senator Jim Lembke, in particular, are people I respect, who were involved in the promotion of this amendment and whom, largely, I find know what they are doing. I do not suspect them in any way of being a front for Monsanto or corporate agriculture. Whether the amendment effectively does what it claims to do and is a good idea is and has been my concern.

Tom Martz is also a voice I respect, however, and he, with some justice, has opposed this idea from the beginning. Tom Martz opposes a lot of things, and some people may get the idea that he is a nay-sayer and an alarmist, however, he also very consistently puts a lot of his own sweat, blood, and toil into coming up with alternative approaches and solutions, such as all the work he put into the Springfield audits and the good which has come out of that. Both sides have very good and respected voices. We should not lose sight of that.

The Amendment Text

The proposed text would go into Article I (Bill of Rights) of the Missouri Constitution:

Section 35.  That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri’s economy.  To protect this vital sector of Missouri’s economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.

The first sentence is preamble and has no legal import. The second sentence, first clause states the rights to be protected ("the right of farmers and ranchers to engage in farming and ranching practices") and the second clause states that this right is subject to constitutional powers of the local and county governments (of which there are extremely few). Concern over the text revolves around the precise definition of "farmers" and "ranchers" and over the escape clause for local/county governments.

Looking At Definitions

One of the confusing aspects of this is that there are multiple potential definitions of farm or agriculture which might be applied from state or federal law. Typically, if not expressly defined, constitutional terms take their common language or dictionary meaning, The Constitution underlies statute, so statutory definitions can sometimes set up a "chicken and egg" problem, especially when statute changes over time.

Paul Curtman states that the definition of farm which would control is in RsMO 350.010(6):

"Farming" means using or cultivating land for the production of (a) agricultural crops; (b) livestock or livestock products; (c) poultry or poultry products; (d) milk or dairy products; or (e) fruit or other horticultural products, provided; however, "farming" shall not include a processor of farm products or a distributor of farming supplies contracting to provide spraying, harvesting or other farming services.

There are potentially other places a definition could come from, including the Department of Revenue, registrations of "agricultural land", etc., but I have to agree given my digging in statute and what case law I could find, that this definition is the most likely and that it is not incompatible with common or dictionary definitions of "farm" or "ranch". I have spent a lot of time digging through statute but I am not a lawyer and there is always the possibility that I have missed something. Your mileage may vary.

Ranching practices seems redundant to me in this context since the definition of "farm" includes livestock and the definitions of livestock are fairly broad. For example in RsMO 277.020:

(1) "Livestock", cattle, swine, sheep, ratite birds including but not limited to ostrich and emu, aquatic products as defined in section 277.024, llamas, alpaca, buffalo, elk documented as obtained from a legal source and not from the wild and raised in confinement for human consumption or animal husbandry, goats and poultry, equine and exotic animals;

Note that animals not raised for human consumption, such as horses, are included. There are a number of definitions of livestock in Missouri statute, but the all seem to be at least as inclusive. It may be possible that dogs or other animals raised for farm use might be included or included for those specific purposes (e.g. sheep dogs or livestock guardians).

The backyard raising of chickens or growing corn in an urban garden might not be included under these terms, but they are not specifically mentioned now.

There is already some protection from "agricultural nuisance" suits in RsMO 537. If you raise pigs and someone moves next door to you (after you raise pigs), they cannot readily claim in court that your pigs are a nuisance. The proposed amendment would leave that protection intact and potentially strengthen it. I have some concern about the impact on 537.295.3 which states:

The provisions of this section shall not affect or defeat the right of any person, firm or corporation to recover damages for any injuries sustained by it as a result of the pollution or other change in the quantity or quality of water used by that person, firm or corporation for private or commercial purposes, or as a result of any overflow of land owned by or in the possession of any such person, firm or corporation.

My initial reading of case law suggests however that actual damage caused by farming or a public health threat from a CAFO would be supported as reasonably overriding the offender's right to farm or ranch and the article VI escape clause retains the ability for localities to prevent such excesses.

For a specific (and exhaustive) discussion of the effects of Article VI on this language and what precisely a locality might be able to do, see David Cosgrove's excellent analysis.

Conclusion

There is much more which can be written, but given the limited time, at some point we need to roll the dice and take our chances. In some sense, if people are concerned about the text, the prudent case would be to vote it down and we could always explore the issue later. Amending the Constitution is always a ticklish and tricky proposition. My specific concerns over the wording, however, are greatly reduced and I am not 'worried' about the amendment. Given my long-time support of protections for the right to farm, I may end up voting for it tomorrow.

Whether this amendment passes or not, nothing changes the need to continually get good people into office, and in Missouri, good people who respect the traditions of farming, ranching, and local industry. In order to get good people into office, they must make it into the primaries, and, in our disagreement over Amendment 1, we must not distract ourselves from the importance of the 5 August primary itself.