The Right Thing to Do

On June 15, 2012, President Obama announced that he had directed Secretary of Homeland Security Janet Napolitano to create a process to grant what is known as "Deferred Action" to certain young undocumented immigrants that were brought here to the United States as children. Right away, opponents have asserted at least two charges against the President. They charge that the President is providing so-called "amnesty" to undocumented immigrants. They also charge that the President is exceeding his authority and usurping power from Congress. Both of these charges are as politically motivated as they are false.

First let's address the charge that President Obama has exceeded his authority in the Executive Branch of our government and has usurped power from the Legislative Branch. A few weeks ago, I was asked by a friend of mine to go to Bartow, a central Florida small town, to cover a couple of traffic hearings on behalf of two of his clients. I do not know much about court procedures in the county court in Bartow nor do I cover traffic hearings in criminal traffic court very often. The first thing I do on these occasions is talk to the local state attorney handling these cases as soon as I get to the court. In this county, there is program known as a pre-trial intervention. If the charge against the defendant is Driving Without a License, a person may be able to escape prosecution provided he or she meets certain criteria. First, it must be their first offense of driving without a license. Second, they must demonstrate that he or she is able to obtain a license within a certain period of time, and third they must pay the civil fine assessed. If the person meets these criteria, the state attorney agrees to drop the charges and forgo prosecution in the case. To be sure, the person allowed to take advantage of this program has broken the law and has been cited for it. But the state will end prosecution and the person's record will not reflect the charge, provided they meet the established criteria. This is what is known as Prosecutorial Discretion.

What is the difference between the process I described above in a local county court and the Deferred Action for Childhood Arrivals (DACA) process announced by President Obama? Not much really. Both programs involve someone breaking the law. Both programs involve establishing certain criteria that the law breakers must meet. In both programs if the law breakers meet the criteria, they are provided a benefit and reprieve from prosecution. In fact in the local program we are foregoing prosecution for a crime done intentionally. The law breakers knew they had no license and they chose to drive knowing it was illegal. Most young people eligible for the DACA broke the law unknowingly because their parents caused them to do it. In any case, both programs involve a law that has been violated. In both programs officials of the executive branch who enforce the law establish a program by which the law breakers are excused from prosecution so long as they meet certain criteria. So if the DACA program is in fact illegal, then it follows that thousands of programs granting prosecutorial discretion every day in thousands of criminal courts across the United States of America have been operating illegally for as long as our great nation has existed.

The second charge is that this program provides "amnesty" to undocumented immigrants. Let us examine that charge the same way a judge would examine the meaning of a statute. First the judge would examine the plain meaning. For the plain meaning of "amnesty" let's look at the dictionary. The American Heritage Dictionary for the English Language defines "amnesty" as "a general pardon granted by a government". The same dictionary in turn defines "general" as "Concerned with, applicable to, or affecting the whole or every member of a class or category". "Pardon" is defined in the legal sense as "Exemption of a convicted person from the penalties of an offense or crime by the power of the executor of the laws". Let's examine then whether the DACA constitutes "amnesty" as defined here.

In order to constitute "amnesty", the DACA would have to apply to just about every member of the class referred to as illegal or undocumented immigrants. If you narrow that class to undocumented young persons it would have to apply to nearly all members of that class. This is clearly not the case. The DACA provides for very strict criteria that have to be met in order to be considered. First, you must be under 31 years of age and over 15 years of age. You must have been physically present in the USA as of June 15, 2007 and for the subsequent five years. You cannot have been convicted or plead guilty or no contest to any felonies or a "significant" misdemeanor at any time. You must prove you entered the USA before the age of 16 and that you have been physically present in the USA since June 15, 2007. You also must show that you are either in a course of study or have earned a diploma or GED. Clearly, the DACA does not apply in general to every member of the young undocumented immigrant class. It applies only to the ones that meet the strict criteria.

In order to qualify as "amnesty" the DACA would also have to provide for a pardon as described above.This would mean that persons who qualify would be exempted from the penalties of the law for being in America in an undocumented status. The DACA does not in fact provide for a pardon. What the program provides is what is known as Deferred Action. Deferred Action is simply what the name suggests. That "action" in your case will be deferred for a period of time. In this case, two years. At the end of the two years, one may be able to apply for an extension of the deferred action. On the other hand, the government reserves the right to prosecute your case. In fact, the government has the right to terminate the grant of deferred action at any time. Even if the two-year DACA has been granted. This is far from a pardon and therefore far from amnesty.

Now aside from these issues there is the question President Obama answered with the phrase "because it is the right thing to do". In fact this is the right thing to do for the young people that qualify and for America. There are many problems in America today. To saddle young people who are here through no fault of their own with the inability to work or pursue higher education lives them in a state of limbo living in the shadows. This is a burden for America and unproductive for our society. Many of these young people are, as President Obama said, American in every way but one. Opponents may say that they should go back to their own country. But for most of the young people in this predicament, this is their country and their culture in every way except one. So let's keep doing the right thing for them and for America.

Justifiable Use of Force?

It is astounding to me all the amount of fodder a high-profile case can generate. If you are a private citizen you never know when some unfortunate incident could turn you into an unwanted celebrity and make your case national news. Just take the Zimmerman-Martin case. The contents of discovery in the case were released yesterday and next thing you know, there is non-stop news coverage and Facebook is awash with thousands of comments and responses for days to come. 


The thing about all the comments and responses, though, is that hardly anyone ever gets to the real issue in the case from a legal standpoint. There is no doubt that George Zimmerman killed Treyvon Martin. He admitted it to the authorities. The issue from a legal standpoint is then was this a justifiable homicide? In other words, did George Zimmerman have the legal right to kill Treyvon Martin. 


To put it in more concrete legal terms, was Zimmerman justified in using deadly force in the struggle against Martin? The answer will vary in each of the 50 states of the country so we must look at the applicable law in Florida. The media has no doubt alerted you that the statute in question here in Florida is the so-called "Stand Your Ground" law. But in reality they are misleading you with that label.


The Florida Statute and paragraph in question is titled "Justifiable Use of Force" and it is Title XLVI Chapter 776(3). It reads:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

 

In this case, both Zimmerman and Martin had a legal right to be where the incident took place. Neither was presumably engaged in an unlawful activity. As the statute says, there is "no duty to retreat". What this means is that in the face of an attack against you, you do not have to run away if you can safely do so, as it is the case in many states. This Florida provision is what is known as "stand your ground". You can stay and meet force with force as long as it is proportionally equal. In other words, you cannot stab someone if they slap you in the face and claim that you have met force with force.

But the real key to this statute is not the "stand your ground" part, as the media would have you believe. The real key is the part that says "who is attacked". What that means is that you can only respond with force if you are attacked. If you are the first attacker and provoke the confrontation, you cannot take refuge under this statute and the killing cannot be justified. So you see the real issue here is who attacked first? All the evidence released showing bruises, cuts, black eyes, etc. is irrelevant. We know there was a fight. The real issue is who started it. And the physical evidence does nothing to establish that. In fact, all the witness accounts do not help establish that either.  All we have is circumstantial evidence, such as the 911 call showing Zimmerman was pursuing Martin, and then there is the claim by Zimmerman that he was attacked first. 

In light of this issue, other evidence released is much more important. For example, the fact that Zimmerman was on prescription drugs likely to cause side effects including propensity to do violence, the past injunction against him, the charge of battery on a law enforcement officer. The prosecution is going to have to refute the claim by Zimmerman that he was attacked first. Not an easy task with no relevant physical evidence and no contradictory testimony because your witness is dead.

Arizona v. U.S.

Welcome to my new blog! Today the United States Supreme Court is hearing oral arguments in the case Arizona, et all v. U.S. The question to be resolved here is whether penalties under Arizona law that are imposed for failure to follow federal immigration requirements are constitutional. The Government argues that only Congress has the plenary power to enforce immigration laws in this manner as given to it under the enumerated powers of the U.S. Constitution. Traditionally Congress can either preempt the entire field or share power with the States. The Government argues that in this case the plenary power of Congress over the field preempts action by the States. In a different blog post we will review the outcome of these oral arguments.