FW: [Legislativedrafting] First Amendment - Trespass - Misrepresentation of Intent on entering property
From: Saluri, Dan [mailto:dan.saluri@cosatx.us]
Sent: Monday, January 8, 2018 2:16 PM
To: Chuck Thompson cthompson@imla.org; federal@lists.imla.org; la@lists.imla.org; Policeadvisors@lists.imla.org; legislativedrafting@lists.imla.org
Subject: RE: [Legislativedrafting] First Amendment - Trespass - Misrepresentation of Intent on entering property
I think that the answer to your questions is well stated in footnote 9. Law enforcement entry without warrant is not a valid comparison to entry with permission by a private individual. Legislation providing for civil liability and injunctive relief might be considered.
"9. We disagree with the district court's suggestion that the only harm from gaining access to property by misrepresentation "would arise, say, from the publication of a story about the facility." Such reasoning is problematic because it assumes, among other things, that a publication about the facility will necessarily harm the facility. At issue here is the speech to gain entry to the facility, not the journalistic creation or speculative harm that may "arise" after entry. Focusing on such speculative harm sweeps in too many scenarios in which a person entering the property causes no harm to the property or its owner. This approach also places a value judgment on the reporting itself and undermines the First Amendment right to critique and criticize."
From: Legislativedrafting [mailto:legislativedrafting-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Monday, January 08, 2018 12:25 PM
To: federal@lists.imla.orgmailto:federal@lists.imla.org; la@lists.imla.orgmailto:la@lists.imla.org; Policeadvisors@lists.imla.orgmailto:Policeadvisors@lists.imla.org; legislativedrafting@lists.imla.orgmailto:legislativedrafting@lists.imla.org
Subject: [Legislativedrafting] First Amendment - Trespass - Misrepresentation of Intent on entering property
In a decision issued January 4, the 9th Circuit concluded that Idaho's law prohibiting misrepresentation to gain entry to farming operations violated the First Amendment. Frankly, while I grew up thinking the world of Upton Sinclair for his book describing the horrors working in a packing plant and its effect on changing the laws applicable to that industry, I'm simply at a loss to understand the 9th Circuit's theory on this one. It relied on the case overturning the stolen valor law decided by the Supreme Court a couple of years ago U.S. v Alvarez. But what about Florida v Jardines in which the court held that police officers could not use the implied invitation to enter property that we all give and accept to knock on someone's door if the intent of the police was to conduct a search of the smells because they trespassed? Wouldn't a law that prohibited misrepresentation to gain entry to property essentially confirm existing trespass law? Hopefully, the state will seek certiorari on this one and seek to have the court at least explain why it's a problem for police to enter property with an intent inconsistent with the owner's but fine for the press to do so.
ANIMAL LEGAL DEFENSE FUND V. WASDEN http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/04/15-35960.pdf
Charles W. Thompson, Jr.
Executive Director and General Counsel
International Municipal Lawyers Association, Inc.
51 Monroe Street
Suite 404
Rockville, Maryland 20850
202-466-5424 x7110
Direct: 202-742-1016
Cell: 240-876-6790
Plan ahead:
IMLA's Annual Seminar and Section 1983 Defense Conference - April 20- April 23, 2018 Washington, DC
Support Houston! Come to our Annual Conference in beautiful downtown Houston -
October 17-21, 2018 - Come to both Seminar and Conference for bundled rate at www.imla.orghttp://www.imla.org/
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When I was in NY Cnty DA’s Office I a few times prosecuted burglary on the theory that entry obtained by fraud on the owner with intent to commit a crime in the building was entry without consent of the owner. I don’t remember if any defendant appealed. Most were guilty pleas - including David Hampton (Six Degrees of Separation) - without right to appeal. There may be reported cases on this point from NY & other states. There may be fed caselaw too if such state court convictions were treated as prior convictions for offense or sentence enhancement in fed prosecutions.
Pete Haskel
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On Jan 9, 2018, at 8:43 AM, Chuck Thompson <cthompson@imla.orgmailto:cthompson@imla.org> wrote:
From: Saluri, Dan [mailto:dan.saluri@cosatx.us]
Sent: Monday, January 8, 2018 2:16 PM
To: Chuck Thompson <cthompson@imla.orgmailto:cthompson@imla.org>; federal@lists.imla.orgmailto:federal@lists.imla.org; la@lists.imla.orgmailto:la@lists.imla.org; Policeadvisors@lists.imla.orgmailto:Policeadvisors@lists.imla.org; legislativedrafting@lists.imla.orgmailto:legislativedrafting@lists.imla.org
Subject: RE: [Legislativedrafting] First Amendment - Trespass - Misrepresentation of Intent on entering property
I think that the answer to your questions is well stated in footnote 9. Law enforcement entry without warrant is not a valid comparison to entry with permission by a private individual. Legislation providing for civil liability and injunctive relief might be considered.
“9. We disagree with the district court’s suggestion that the only harm from gaining access to property by misrepresentation “would arise, say, from the publication of a story about the facility.” Such reasoning is problematic because it assumes, among other things, that a publication about the facility will necessarily harm the facility. At issue here is the speech to gain entry to the facility, not the journalistic creation or speculative harm that may “arise” after entry. Focusing on such speculative harm sweeps in too many scenarios in which a person entering the property causes no harm to the property or its owner. This approach also places a value judgment on the reporting itself and undermines the First Amendment right to critique and criticize.”
From: Legislativedrafting [mailto:legislativedrafting-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Monday, January 08, 2018 12:25 PM
To: federal@lists.imla.orgmailto:federal@lists.imla.org; la@lists.imla.orgmailto:la@lists.imla.org; Policeadvisors@lists.imla.orgmailto:Policeadvisors@lists.imla.org; legislativedrafting@lists.imla.orgmailto:legislativedrafting@lists.imla.org
Subject: [Legislativedrafting] First Amendment - Trespass - Misrepresentation of Intent on entering property
In a decision issued January 4, the 9th Circuit concluded that Idaho’s law prohibiting misrepresentation to gain entry to farming operations violated the First Amendment. Frankly, while I grew up thinking the world of Upton Sinclair for his book describing the horrors working in a packing plant and its effect on changing the laws applicable to that industry, I’m simply at a loss to understand the 9th Circuit’s theory on this one. It relied on the case overturning the stolen valor law decided by the Supreme Court a couple of years ago U.S. v Alvarez. But what about Florida v Jardines in which the court held that police officers could not use the implied invitation to enter property that we all give and accept to knock on someone’s door if the intent of the police was to conduct a search of the smells because they trespassed? Wouldn’t a law that prohibited misrepresentation to gain entry to property essentially confirm existing trespass law? Hopefully, the state will seek certiorari on this one and seek to have the court at least explain why it’s a problem for police to enter property with an intent inconsistent with the owner’s but fine for the press to do so.
ANIMAL LEGAL DEFENSE FUND V. WASDEN http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/04/15-35960.pdf
Charles W. Thompson, Jr.
Executive Director and General Counsel
International Municipal Lawyers Association, Inc.
51 Monroe Street
Suite 404
Rockville, Maryland 20850
202-466-5424 x7110
Direct: 202-742-1016
Cell: 240-876-6790
Plan ahead:
IMLA’s Annual Seminar and Section 1983 Defense Conference - April 20- April 23, 2018 Washington, DC
Support Houston! Come to our Annual Conference in beautiful downtown Houston –
October 17-21, 2018 – Come to both Seminar and Conference for bundled rate at www.imla.orghttp://www.imla.org/
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