Has the Supreme Judicial Court Disavowed Automatic Standing for Possessory Offenses?

Massachusetts courts decided long ago that where a possessory offense is charged, a defendant has automatic standing to challenge evidence. In a recent case, the Supreme Judicial Court seemed to pull back from that determination.  In Commonwealth v. Tatum, the SJC discussed an interesting circumstance in which the police had a several active arrest warrants for an individual they believed to be in a third party residence's home.  Posing as a Verizon repairman, one officer peeked in through the windows of this home, discovered the defendant (and indeed had a conversation with him) and through this corroboration of a tip that the defendant would be found there, the police obtained a search warrant of the third party residence in order to execute the arrest warrants.  There was no evidence presented as to why the officer did not radio another officer and just arrest the person on the outstanding warrants at that time.  

During the execution of the search warrant to facilitate the arrest warrant, the defendant was indeed discovered and arrested; in that process the police saw "in plain view" a significant amount of drug paraphernalia and drugs.  Armed with that information, they obtained a second search warrant for the home in which they obtained significant contraband with which they charged the defendant.  He challenged the search based upon the first search warrant in which the police obtained evidence while unlawfully present within the curtilage of the home.

The SJC reviewed Payton v. New York (where the police may not enter an individual's home without a warrant even if they have probable cause to arrest; case also contains dicta that an arrest warrant would serve to allow for a search to execute the arrest warrant inside an individual's home) and Steagald v. United States (arrest warrant for individual not sufficient to satisfy Fourth Amendment for police to enter third party residence).  Given these parameters, the SJC ruled that the subject of a valid arrest warrant in a third party home has only the right to require that the police have a reasonable basis to believe he will be present when they enter the home of a third party to execute the arrest warrant...even if the evidence to suggest that the arrestee will be present was obtained unlawfully.  That is, the arrestee - who claims no residence in the third party home and has the status of an invitee or guest - cannot challenge the search warrant required to execute the arrest warrant when the search warrant plainly included evidence obtained via an illegal trespass.  This is the opposite of the automatic standing principle.  Although the Massachusetts Constitution has routinely provided broader protections for individual rights than has the federal Constitution, the SJC appears to be adopting a notion it previously rejected.  But because it fails to mention automatic standing at all, the ramifications of Tatum other than to the defendant himself are unclear.

Courts developed the "automatic standing" rule for precisely the conundrum in Tatum: when charged with a possessory crime, one need not assert specific protections of the Fourth Amendment in order to challenge the evidence because to do so would be to all but admit to the crime.  In Jones v. United States, the Court realized that a charge of possession of contraband put the defendant in a terrible situation - if he claimed an interest in the contraband then he was admitting the crime of possession.  Therefore, the Court ruled, that those charged with possessory offenses had automatic standing to challenge the search and seizure of that evidence.  Twenty years later, as the nation battled the "war on drugs" on every front, the Court rethought that grand idea and overturned Jones in United States v. Salvucci ruling that defendants cannot avail themselves of the exclusionary rule unless their own Fourth Amendment rights were violated.  And, in so determining, the Court linked the notion of standing and a reasonable expectation of privacy as the "reasonable expectation of privacy" was considered the threshold over which one must step in order to be protected by the Fourth Amendment.

Massachusetts Courts rejected the ruling of United States v. Salvucci, 448 U.S. 83 (1980) (a case reaching the Court from Massachusetts) and created a state law rule of automatic standing for all possessory offenses in Commonwealth v. Amendola.  Indeed, this point was mentioned by the dissenting Justices in Tatum even as the majority opinion ignored the concept of automatic standing throughout the opinion.  Further, the recent Court cases of United States v. Jones (GPS attached to vehicle without a warrant violated Fourth Amendment) and Florida v. Jardines (police need warrant to search curtilage of house, at least in regard to use of drug sniffing dogs) emphasize that the more traditional idea of trespass is fundamental to Fourth Amendment protections and that the reasonable expectation of privacy argument is in addition to, not in lieu of, trespass.

Because Massachusetts has allowed for automatic standing, the basis for the challenge is the charge of possession of the contraband and therefore any challenge should question whether the search and seizure was reasonable or whether the evidence should be suppressed.  But the SJC seemed to turn tables on the idea of automatic standing where the challenge to the evidence had to do with another's home.  Certainly the police did not violate the defendant's Fourth Amendment right to be free from government intrusion into his home, papers, possessions or person when the police violated another's right to be free from such intrusion.  

But, that is not the proper question to ask.  The question is whether the search and seizure was reasonable.  In Massachusetts people enjoy protections as per Art. 14  when they are overnight guests (Commonwealth v. Lopez, 458 Mass. 383 (2010)) or temporary tenants (Oystead v. Shed, 13 Mass. 520 (1816)) or residents of shelters (Commonwealth v. Porter P., 456 Mass. 254 (2010)).  The Supreme Court has ruled, similarly, that an overnight guest has a reasonable expectation of privacy (Minnesota v. Olson, 495 U.S. 91 (1990); other federal courts have recognized a reasonable expectation of privacy in less protected areas such as benches commonly used by homeless residents (Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012)).  Even under the tougher Fourth Amendment principles, whether the right is one of a reasonable expectation of privacy or the idea of trespass, the issue for the exclusionary rule under Salvucci is whether the individual enjoys the protections of the Fourth Amendment, not whose home is involved in the search.  It appears that tatum could validly assert both Fourth Amendment and Art. 14 protections under decisional law.  Therefore, even if rejecting the long standing rule for automatic standing, the SJC still should have analyzed whether the search and seizure of contraband in Tatum was reasonable.

Unpacking that a bit, the reason Tatum DID enjoy the protections of Art. 14 was because he was charged with possessory offenses and therefore had automatic standing under Massachusetts decisional law.  The SJC staying silent on that matter does not change the law in regard to automatic standing, however it has thrown the idea into a bit of a tailspin.  Even if decided under solely federal concepts, given the requirement for a search warrant to execute the arrest warrant as per Steagald, mustn't this search warrant be a valid search warrant premised upon legally obtained evidence to establish probable cause?  In Tatum, there very well may have been proper probable cause established to believe the defendant would be present even without the violation onto the curtilage of the home, but this was never analyzed.  There was a blatant statement that the defendant did not enjoy constitutional protections when he denied that the residence was his home.  This was error by the SJC under its past decisions regarding Art. 14 - but because it upholds federal law, it is unreviewable in the federal courts.

At common law, two concepts in particular presented glaring offenses to liberty: the “general warrant” which provided a law-enforcement officer with broad discretion or authority to search and seize unspecified places, people or goods and “writs of assistance” where customs officers had continual authority to search for stolen goods anywhere; indeed the writs only expired upon the death of the sovereign and they were transferable from officer to officer.  Among the treasures of artwork gracing the halls of the Massachusetts State House is a mural depicting James Otis arguing against the Writs of Assistance. For review, James Otis was a prosecutor for the Crown.  When the authorities began executing general warrants and writs of assistance, he quit his job and argued, gratis, on behalf of the Colonists.  He lost, but that case forever changed the trajectory of police intrusion into private spaces. To grasp how central the notion of individual liberties was to the Massachusetts colonists, one need only begin to read the constitution; unlike the amendments added to the United States Constitution, the rights of the people precede the organization of the government under the Massachusetts Constitution.  The Declaration of Rights was not an afterthought.  

Yet it barely gets a sideways glance from the SJC in Tatum.  In practice, what difference is there between a specific arrest warrant with authority to execute it anywhere, including inside a private home, and a general warrant?  The odious notion of the general warrant was this idea that the police could enter anywhere - a home, a neighbor's home, a ship, a church - in order to seize an individual.  The writs of assistance were repulsive because they allowed the police to search for contraband anywhere they believed contraband could be discovered.  At common law, there was no exclusionary rule; the remedy for such an unwarranted search and/or seizure was to sue the officers in court for trespass.  Query whether the defendant in Tatum could so proceed; he was subject to a valid, specific arrest warrant (several, indeed).  However, he was inside a residence, an area considered protected certainly as to the residents of the home but also as to guests and invitees - this was the whole point of the uproar against the general warrant. Courts developed the exclusionary rule to deter these distasteful practices in the first place and to streamline the process; where the police overstepped, they could not use the evidence at trial.  

In Katz v. United States, the Court stated that the Constitution protects people not places.  It protects them from unreasonable searches and seizures particularly within places in which they expect to be safe from government intrusion.   A residence - whether one's own or another's in which one is an invitee or guest - is one of those places.  Under past decisional law, Tatum had a reasonable expectation of privacy and was thus protected by both the Fourth Amendment and Art. 14 under the Katz principle.  If he did not have such a right, the search warrant would not be required under Steagald.

What he did not have was the authority to exercise the ownership interest in the home in regard to trespass.  At common law, the owner could sue the police for unlawful entry as per the phony Verizon worker scheme because the police were, at that time, not lawful invitees or licensees or guests; they were intruders not lawfully present.  Anything the police witnessed in a place they had no right to be should not be used against the residents of the home under the trespass theory - the evidence obtained as per the trespass should be excluded from trial as against the home owner or leaseholder.  But the guest or invitee has no authority to exercise this protection of the Fourth Amendment.  He has no right to declare a violation of trespass when he could not sue at common law for the same. 

But this historical journey does not address the issue in Tatum - charged with a possessory offense, he had automatic standing in Massachusetts- an idea not even mentioned by the majority opinion (it is unclear whether it was raised by the defendant at all).  Under automatic standing, everything is on the table to challenge the reasonableness of the search and seizure of evidence because the protection is presumed based upon the charged offense.  While the specifics of the case are unlikely to be repeated, it does open the door for arrest warrants to be executed more freely within private homes, it does open the door for lax measures to be taken in obtaining a search warrant for the purpose of executing an arrest warrant because the police know that their behavior will not be challenged.  

The SJC would do well to reread the cases that announced and extended the exclusionary rule.  In Weeks v.United States, 232 U.S. 383 (1914), federal officials gained access to a house first by information from a neighbor as to the location of a key and later by another boarder in the house, discovered papers in Mr. Week’s room and used these documents against him.  And, Mapp v. Ohio, 367 U.S. 643 (1961) where police officers unlawfully entered a private home without a warrant, having been denied access, handcuffed and ordered Ms. Mapp into a room, searched her home which she shared with others and arrested her for possession of obscene materials.  

Before Tatum was decided, defendants in Massachusetts had a right to automatic standing in challenging evidence related to possessory charges under accepted principles of due process of law.  After Tatum, this is less clear.  “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp v. Ohio, 367 U.S. at 659.  Words to live by.

Our Republic's Long Tale Continues

“Your tale is of the longest," observed Monks, moving restlessly in his chair.  “It is a true tale of grief and trial, and sorrow, young man," returned Mr. Brownlow, "and such tales usually are; if it were one of unmixed joy and happiness, it would be very brief.”

― Charles Dickens, Oliver Twist

Hot and steamy summer days cause the mind to wander to hot and steamy days of yore.  In a sweltering July in 1925 - entertainment came from the radio as Bessie Smith and Ma Rainey's blues songs mingled with Tea for Two and If You Knew Susie to top the popular music charts.  Not much was happening in southeastern Tennessee so folks came from miles around to a courtroom - no matter what the temperature, the trial of John Scopes was the hottest thing that summer.  The Tennessee Legislature had recently passed a criminal law prohibiting the teaching of evolution from grade school through college, punishable by a fine.  With trial as theater and the ACLU advertising free representation, a civil liberty-minded group recruited Mr. Scopes, a general science teacher, to act as plaintiff challenging the law.  Friends of Scopes agreed to prosecute the case.  Along with an illustrious team, the great Clarence Darrow defended Scopes and William Jennings Bryan defended the law.  Every person involved in the trial had agreed to his role before it began...indeed Darrow asked for a guilty verdict in order to challenge the constitutionality of the law.  He got it.  And, in a masterful - though, to Darrow not at all satisfying - ruling, the Supreme Court of Tennessee did not reach the constitutionality of the law but reversed on a technicality (the law required a jury to fix the fine but the jury had been dismissed prior to the judge's administration of the $100 fine in violation of the law.).  It may very well be that the Supreme Court of Tennessee felt hoodwinked into the melee and chose to step aside rather than fight.  If so, it deserves more kudos than anyone involved in the phony trial.

The law would remain on the books until 1967, a year before the Supreme Court of the United States would rule - on a wholly different (and as Justice Black noted, unconstitutionally vague) anti-evolution statute in Arkansas - that such types of laws infringing upon teaching and learning violate the First and Fourteenth Amendments.  Considered a "landmark case", Epperson v. Arkansas in reality is as phony as the Scopes situation.  Mrs. Epperson, a teacher, was not charged under the law; she sued the state under First Amendment principles even though it appears that evolution was widely taught in Arkansas schools with no threat of prosecution anywhere.  By all accounts, the state's lackluster argument to uphold the statute indicated that it did not care about the outcome. Mrs. Epperson had already moved from Arkansas and was teaching - or not teaching - whatever she wished elsewhere in the country.

Indeed, these laws of fervor, many passed in the roaring 20's when the country fatigued from foreign war sought to nourish an ideal of American roots - in the Age of Prohibition while drink was scarce and crime was growing - when the first migration of African Americans from the Southern states to the great, gleaming cities of the North began - just 6 years after the 19th Amendment, women were taking charge in state houses of Texas and Wyoming - and so despite the quest to return to pre-war normalcy, everything was changing...and that scared people.  So, they did what people have done for as long as people have had language and known fear - they made rules so they could feel less frightened.  Rather than accepting change, they legislated a strict version of morality and decency that never has existed and never could in a diverse and growing nation. 

It's not new - it happens all the time and it is happening still.  On evolution, on climate change, on abortion, on marriage equality.  Perhaps folks believe that if they just make a law then everything that frightens them will go away.  They will "win" with laws.  Legislators of the past said flat-out what they sought to prohibit whether it was alcohol or teaching evolution or intermingling among races.  The statutes seem brutal through the rear-view mirror of our modern society, but it was more honest than today's deceptive approach.  Folks declare that their laws are really not about evolution or climate change or abortion or marriage equality or self-defense at all - they are about balance in education which challenges children to think; a healthy scientific division on man's contribution to the planet's health, if any; a safer medical environment for women; the sanctity of traditional marriage; and the ability to feel safe under threat through the use of force.  Poppycock. Many of the reasons center not on Constitutional principles or prior law, but rather a fundamentalist version of Biblical doctrine.  If those who attacked the laws did so less on a sense of right and wrong and justice and fairness but on First Amendment principles the challengers might be the David to the seeming Goliath.  It worked in Epperson.

Where the old approach presented straightforward language, they were flashes of rhetoric more than enforceable law.  Neither Scopes nor Epperson was prosecuted by the state; both were test cases designed to ridicule the legislature in open court.   But, this is no longer the case.  Despite budget woes, prosecutions, convictions and sentences do not wane.  Legislators are less blatant these days and more clever because they know they will face challenge in federal courts (something revolutionary in the 1920's).  The Supreme Court in the mid-1920's boasted the Four Horsemen of conservatism - McReynolds, Butler, Van Devanter and Sutherland - who are petting zoo ponies to today's Gang of Four - Roberts, Scalia, Alito and Thomas.  The Four Horsemen were balanced by the brilliance and courage of both Holmes and Brandeis but there is no such balance to the Gang of Four.  The Four Horsemen were conservative but not mean-spirited; the same cannot be said for the Court today.  Those in the Gang of Four are not conservative by any definition- they are reactionaries determined to create a nation that never existed from their own version of what is and what should be rather than the world in which they live. So, constitutional challenges today are less likely to succeed than they may have been in the 1920's.

In the 1920's legislators gave lip service to halt progress with no intent to pursue it and this seemed to satisfy the populace.  Today, states are actively defying constitutional principles long decided to a Court very happy to review them while a tiny but powerful segment of society foots the bill.  The Majority Leader of the House of Representatives is on record saying that Congress should not be passing laws, or even amending ones that fall short, but repealing them altogether.  Just as the state legislators pretend they are not seeking to infringe on people's rights with their myriad laws on what can be taught and how medicine should be practiced and whether oil pollutes the planet or just falls harmlessly off the edge, the House Majority leader feigns an interest in effective law enforcement.  With so many laws are on the books, he claims, the Executive Branch cannot possibly enforce all of them.  But, of course, the Legislative Branch has nothing to do with enforcement of the laws so why would he really care?  That is, pass the laws that make sense and allow the Executive Branch to enforce those it wishes to enforce. 

And therein lies the rub.  Regardless of the tools available, prosecution being expensive, states tend to pursue the easiest crimes, and the offenses du jour rather than destructive forces in society.  There is no question that some laws are enforced disproportionately: these include, but are not limited to, overwhelming prosecution for drugs and guns in poor communities with very little prosecution for scams and fraud in wealthy communities.  The state places the resources wherever it wishes.  So, for example states that are changing their laws in order to eliminate abortions will allocate resources to shutting down clinics that fail to abide.  Similarly states with "stand your ground" laws will not prosecute homicides where there is a claim of self-defense.  It really is not the number of laws or the content of the laws that matter.  For example, in Massachusetts, it is still a criminal offense to be a member of the Communist Party (or even to rent a hall to Communist Party members), to provide articles of "self-abuse" such as contraceptives, to cause a miscarriage "unlawfully" (let us know when things get too vague to interpret fairly) and to commit blasphemy, Commonwealth v. Kneeland, 20 Pick. 206 (1838)(never overturned - never again enforced).

John Boehner is leading the charge on dishonesty when he claims that in repealing laws he is seeking to fulfill the role of Congress.  For reference, the role is defined and restricted in Art. 1 sec. 8.  This is not to defend the state legislators trying to enact utterly unenforceable laws whether they be to deny that human activity is devastating the planet or to deny that two people of the same gender can have as valid a relationship and two of the opposite gender or to deny that women will obtain abortions or to deny that the earth is round and 4 billion years old.  Passing a law - even seeking to enforce a law does not make something false true.

In most states, George Zimmerman would have been convicted of a crime after he pursued, shot and killed Trayvon Martin.  We know why Martin was unarmed, but it is not clear why Zimmerman was - and Florida law does not care.  Young men in poor neighborhoods carry guns because they feel afraid of other people around them they know to be carrying guns.  By the "stand your ground" logic, exactly none of them is guilty of a homicide when the gun goes off - it's all self-defense, no matter who started it and no matter what the quibble.  This is not a defense; it is anarchy.  The traditional law of self-defense understands that people will, out of necessity, defend themselves or others by applying reasonable force under the circumstances to repel the force upon them.  Allowing for deadly force in the face of non-deadly force - allowing for pursuit rather than defense -  is so far removed from the roots of criminal justice as to be unrecognizable.

During the Boston Massacre trial John Adams explained that the British Regulars were armed (this was no secret; there was no such thing as concealed muskets) and many of the townsfolk on King Street were armed (again, openly, with clubs).  Deadly force was met with deadly force.  Outnumbered by and angry, armed mob, the soldiers fired out of fear for their own safety.   At no time before the "stand your ground laws" could non-deadly force be met with deadly force, especially when, by all accounts, the person who initiated deadly force also initiated the altercation.  That is not self-defense; at a minimum, it is murder mitigated to manslaughter; but in most jurisdictions, it would fall under some grade of murder.  If the point of a powerful army is deterrence then the point of carrying a gun is to show it, not to use it.

But there was something more in the colonial trial of the Incident on King Street; Adams also arguably asked the jury to acquit the defendants despite any animosity toward them or any law allowing them to convict.  This ancient right of the people to jury nullification has all but disappeared as the laws have gotten more and more insane. So, while Tennessee and Arkansas never had the intent to prosecute the teaching of evolution, had such prosecution occurred, a jury could have acquitted based on its distaste for the law.  Query whether this same jury-nullification process would be available as against a defense at trial.  For example, if the prosecution could illustrate that George Zimmerman did not act out his known ability to stand his ground under Florida law, but rather out of malice, could the jury nullify the defense provided by law rather than the instance where it can defy enforcement of unjust laws in prosecution?

It is a close question.  Rarely does a legislature write laws protecting otherwise criminal acts.  While jury nullification is one means of the people speaking out against the government, can it do so in order to convict rather than acquit?  Oddly, had the Zimmerman matter proceeded as do most felonies, by presentment to a grand jury rather than the cowboy style of prosecution employed, it is probable that the grand jury would not have indicted.  This demonstrates that the problem with the stand your ground laws.  While many are asking for reconsideration of these statutes, state legislatures do not have the same zeal of repeal as does John Boehner.  But it puts a difficult question to the idea of jury nullification whose goal is not to convict where the law is too lenient but to acquit when the law is too harsh.

The Scopes trial was arranged to get Dayton, TN on the map - the population had dwindled in recent years and the town needed some excitement.  The trial - which began, over objection, with a prayer - was broadcast live; the judge even wanted to set up the case in a tent to accommodate the crowds.  It was a carnival, a circus and all for show.  All of the actors were in on the joke.  Even where the people had sympathy for the law and adoration for Bryan, the law was designed as a deterrent not as punishment (the maximum penalty was a $500 fine).  But court cases today are no joke; even if they put places like Sanborn, FL on the map, they are expensive and destructive.

When laws are written as backlash to a changing world, they wreak massive havoc.  Prohibition and the Volstead Act gave rise to the success of organized crime.  Anti-Communist fears caused many people's lives to be upended.  While anti-child abuse laws have always been appropriate, the hysteria of the 1980's against day care providers was a direct assault to women working outside the home.  The rise in anti-abortion legislation even as the number of abortions has remained stable or fallen and even as the procedure has become much safer (most abortions are now medically, rather than surgically, performed) is nothing more than an attempt to strike fear into women; if enacted, it will result in more back alley abortions and deaths (along with a huge expense in shuttling poor women to safe abortion providers).  The rise in educational "reforms" on what people should teach and how in the age of the internet hosting free, amazing, online courses, is simply irrational.

Although they get a lot of press, many of the now-proposed laws mirror those on the books in most states, including Massachusetts.  We have a strict parental consent with judicial override law; we have requirements on explaining what an abortion is and the possible effects; we have a requirement to inform patients seeking an abortion of the alternatives to the procedure.  The question is not always what law is on the books, but its enforcement.  Massachusetts has no interest in expending resources to police a system that seems to be functioning safely and effectively.  As the statistics demonstrate, where abortion is available, fewer people have them and where it is unlawful, more people die seeking them.  While states should provide individual laboratories for experimentation, we know how this one ends up; more poverty and more despair.  It is ironic that the states seeking to restrict abortions are the same ones seeking to expand gun rights. 

Democracy is a funny business.  We want a say in what goes on in our lives but when it really comes down to brass tacks, we are not always happy with the result.  In places where they elect Tea Party activists, they get bizarre, often unenforceable laws that have no bearing on better government.  Those states tend to have higher poverty rates combined with weaker educational systems.  They have a patchwork of criminal laws that do not resemble justice.  This was not the intent or that aspiration of any of the Framers.  They were men of progress and of science and of hope in the ability of people to see beyond themselves for a greater good.

There is not one of the Framers who could understand a stand your ground law; the Wild West was not part of their history - indeed their revolution was a last resort borne from repeated attempts to compromise with Britain.  There is not one who could possibly understand legislating medical procedures; in their world pregnancy and childbirth was left to the auspices of midwives and medical school had not yet been created.  There is not one who would support denying scientific discoveries; theirs was an ongoing quest to learn as much as possible whether by flying a kite or creating a nation.  It is even doubtful that any would scoff at marriage equality; they were more progressive than people give them credit for being.  But, really, democracy is not about the past: it is about the now.

With new laws seeking to restrict voting power, to deny voice, to limit access to medical, nutritional and educational services, to restrict liberty - all of which will be enforced through devoted resources at the expense of promoting the general welfare - we must hold up a mirror and ask what exactly it is that we are doing with our gift of democracy.  John Scopes' "Monkey Trial" was a make-believe media event set up by those who sought to strike down a law.  Contrast that frivolity with the death of Trayvon Martin and the media-driven trial resulting in the acquittal of George Zimmerman.  In Scopes, the point was to make a mockery of the law; in Zimmerman, the law made a mockery of justice.

As the nation was forming, an inquisitor asked Benjamin Franklin what form of government the convention had agreed upon.  He replied that we had formed a republic... "if you can keep it."  It is worth keeping and fighting for, no matter how long the tale of grief and sorrow and trial and truth.  It anticipates mistakes and compromise and trial and error; but gives us all the opportunity to continue to establish a more perfect union.  Together.  For as long as it takes.

The End of Joint Venture for Possessory Firearm Offenses: Commonwealth v. Humphries Exposes Theory Flaws

Massachusetts has developed a rather unusual approach to accomplice liability when the Commonwealth's theory of the case is one of joint venture.  Having torn down the distinction between principal and participant, joint venture allows the Commonwealth to convict an individual involved - even if tangentially - in a criminal act regardless of whether there was an agreement to commit a crime and regardless of whether the offensive acts exceeded the realm of reasonable foreseeability.

The current incarnation of the theory is that because all "joint venturers" carry the same intent, all are charged equally regardless of individual action.  Because it is a theory and not an actual offense, it need not be charged in an indictment.  For clarity, in the Commonwealth of Massachusetts, whether an individual commits the actus reus of a criminal offense or s/he does not, so long as s/he aided and abetted the offense -even if only verbally - the common intent to commit the crime ultimately alleged is shared.  Now, to those who have actually thought about this it sounds a lot like conspiracy which, unlike joint venture, requires the Commonwealth to establish a relationship, agreement to commit a crime, and complicity only to the limit of the reasonable foreseeability of that agreement. Pinkerton v. United States, 328 U.S. 640 (1946).

The agreement within the conspiracy is the essence of the crime - the intent to participate in the offense and all that might flow from it - establishes the mens rea of the crimes that eventually occur.  Yet, with no agreement required, the theory of joint venture liability is fashioned entirely out of air.  The most recent case on this theory of liability exemplifies why its flaws; through these flaws it fails to comport with due process of law.  Although the outcome of the case appears to favor the defendant, it does nothing to advance criminal justice.  Even if accomplice liability is appropriately considered, the current state of joint venture theory is a civil concept and has no place in criminal law.

In Commonwealth v. Humphries, SJC-11237 (July 12, 2013), on both possessory and non-possessory crimes, the defendant was charged as a joint venturer.  The court addressed only the offense of unlawful weapon possession in its joint venture analysis.  Essentially, it reviewed the state of the law that an individual so charged could demonstrate by some evidence that s/he had a license or firearm identification card and shift the burden to the Commonwealth to disprove the defense of license.  The information regarding a license is uniquely known to the defendant in such cases.  Massachusetts has no statewide firearm license registry; the law leaves licensing to the individual police chiefs thus the work for the Commonwealth to prove this element is overwhelming and it need not do so unless the defense of license is raised before trial.  This post says nothing about the constitutionality of that framework both because the Second Amendment has been held to be an individual right and is applicable to the states and because the Commonwealth bears the burden of proof beyond a reasonable doubt of every element of the offense but routinely obtains a jury instruction informing the jury that it may presume the absence of license, merely that this is the state of the law as it stands.

However, when a joint venturer is involved, particularly one not charged with the defendant, that third party may or may not have had lawful possession of the firearm involved in the offense.  Due to the difficulty for the defendant to know this, the burden is not first upon him or her to assert license as a defense; rather the Commonwealth must now prove absence of lawful possession for the firearm of the third party (as to the defendant, the burden-shifting paradigm is the same).  The defendant in such cases need only assert the defense of license prior to trial to trigger this new element of the offense upon the Commonwealth.

Unpacking that a bit, the law now goes something like this: on a possessory offense, where the Commonwealth proceeds under a joint venture theory, if the defendant raises an affirmative defense as to a third party (the presumed joint venturer, whether charged or not), then the Commonwealth must disprove that defense in order to gain conviction.  This necessarily will cause prejudicial joinder in every single possessory case for firearms and motions to sever must be allowed in order to comply with Art. 12's mandate that every subject has the right to produce all proofs that may be favorable to him (or her).  The problem then lies in who is tried first because information gleaned from one trial (i.e. the defendant does not assert an affirmative defense of license, merely raises the question of license of the third party) can be used to convict the second one to face trial (because there was no evidence produced on the defense of license by the first defendant to face trial).  Joint venture does not require any kind of an agreement between the two parties that one member would carry a firearm and it does not recognize the reasonable foreseeability concept (also straight out of civil liability) that an individual who participates in an offense would anticipate consequences outside the immediate commission of the crime.

Query whether this triggers a de facto Wharton's Rule type of dismissal when only one person is charged.  Wharton's Rule - technically not required under Massachusetts law but almost always applied - provides that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as necessarily to require the participation of two persons for its commission.  Classic Wharton's Rule offenses include adultery, incest, bigamy, and dueling and all are crimes characterized by an agreement to complete the substantive offense.  

In Commonwealth v. Cantres, 405 Mass. 238, 242 (1989), the court declined to make a general determination of the rule in Massachusetts and stated, possibly in dicta, that it would not apply to conspiracy to distribute controlled substances.  That limitation is questionable after Humphries when, for example, the charge is distribution of under one ounce of marijuana or if there is a defense of a medical prescription for one or more charged – at least with the possession with intent to distribute – when more than one person is charged.  That is, firearms and small amounts of marijuana have moved from the category of presumptive contraband to mere evidence where the evidence may be lawful or excusable but that knowledge is in the mind only of one participant in the offense and as unknowable to any other participant as it is to the Commonwealth.

Taking that into firearms offenses, the Commonwealth has been known to prove complicity in an ultimately charged offense by demonstrating that an individual was aware of the presence of a firearm.  But if the firearm is possessed legally - and there is no way for the individual to know that - and there is no agreement to commit an offense, but an offense ultimately occurs -what culpability does the unarmed individual have?  Or, if several people gather together, some with lawful, licensed weapons and others without and one of the group commits an offense, what kind of liability accrues to those who indeed carried firearms, had no intention to use them save lawfully, and yet were present when a group member committed a criminal act? 

Wharton's Rule applies solely and exclusively to conspiracies and not to joint venture although given the construction of joint venture liability, it is unclear why.  Perhaps it is that the SJC has stated that joint venture liability finds its roots in accessorial or accomplice liability.  Yet, conspiracy or vicarious liability rests in agency law.  This is part of the analytical problem in all of the joint venture theory cases where the Commonwealth is not obliged to indict an additional element in order to net all alleged participants under the actions of the principal. 

Accomplice liability must be, and traditionally has been, a specific offense crime even if the underlying offense may be a general intent crime. Yet this is not the jury instruction given in a charge where the Commonwealth proceeds on joint venture liability.  The jury only must decide whether there has been proof beyond a reasonable doubt for the intent requirement of the underlying offense which, in this era of minimizing mens rea, is almost always a general intent to commit the crime alleged.  The tragedy of joint venture is that the government need never prove that the defendant agreed to commit the ultimate offense charged; merely that the defendant aided and abetted the ultimate offense in some way (or often, that the individual was present at the time the act occurred) regardless of any specific intent to engage in the act charged.

Conspiracy is a different offense altogether.  It has its roots in agency law with the idea that, due to the agreement itself, co-conspirators speak with one voice. United States v. Gooding, 12 Wheat 460, 469 (1827); Lutwak v. United States, 344 U.S. 604, 617 (1953).  This form of liability is vicarious: if two people agree to commit an offense and one person actually accomplishes it, the person who agrees is equally liable through the unity established with the agreement to act.  Thus, the government must prove the specific intent to conspire, the agreement to commit a crime, the fact that the crime alleged flows with reasonable foreseeability from that original agreement and that the conspirator who acted acted with the proper intent to commit the alleged offense.  The tragedy of conspiracy is the broad interpretation of reasonable foreseeability.

Accomplice liability and vicarious liability are NOT the same thing.  Accomplice liability requires both the mental state to commit the crime involved, the participation in some way with the offense AND the knowledge of the principal that the accomplice is there, ready willing and able to help.  It is satisfied only if the accomplice aids or encourages the principal with the intent to promote the crime.  Vicarious (or conspiratorial) liability presumes that all think and act as one; however even actual conspiracy cases have forced courts to shift away from full liability when they infringe upon the demands of due process.  See, i.e. United States v. Hansen, 256 F.Supp.2d 65, 67 n.3 (2003)(citing circuit court decisions questioning vicarious liability for offenses in which the defendant has only a slight connection despite the initial agreement to conspire.  The case also states at 67, "'Foreseeability' is the language of negligence law.  It is not a usual criminal law concept and surely not a concept that puts meaningful due process limits on criminal liability.")

While Massachusetts punishes joint venturers under the accomplice theory, it does not concomitantly increase the mens rea requirement of the Commonwealth's burden of proof.   And, it need not prove any kind of agreement as it would have to do in a conspiracy charge.  As disturbingly broad as conspiracy charges are, joint venture theory cases are often worse for defendants since the burden of proof is too low for an aider and abettor to be charged, convicted and possibly sentenced as the principal without any agreement with the principal to act.

Common law in Massachusetts recognized a principal in the first degree - the individual who with the required mens rea completed the act of the offense.  It also allowed for a principal in the second degree, which was essentially aiding and abetting.  The crime charged and the punishment varied appropriately.  That distinction no longer exists - the Commonwealth is free to charge all alleged participants as principals but present the theory of joint venture liability at trial to all of those charged.  The joint venturer's culpability depends on whether the principal commits the crime...even though there was no agreement to do so and even if no specific intent to perform the criminal acts committed by another exists in the minds of the co-venturers and even if the ultimate offense was not reasonably foreseeable to a casual participant in the events. Given that the Commonwealth can demonstrate accomplice liability from any indication of participation - regardless of agreement to do so - the casual comment could rise to the level of incitement.  This seems to fray the edges of due process of law.

Although there will be both puzzled faces and cheers from the recent Humphries decision, the case itself - along with all of the joint venture cases, especially since the landmark Zanetti case, should press counsel to question whether the theory comports with basic criminal law procedural requirements.  This is true in regard to the charge, the potential punishment, the idea that a co-venturer's statement, even if it would be considered "in furtherance of" a conspiratorial crime, could possibly be submitted against an accomplice without violating the prohibition against hearsay, the application of "reasonable foreseeability" where no initial agreement ever existed or need be proven, and the intent the Commonwealth must prove to obtain conviction which should be the specific intent to aid and abet combined with the principal's intent to commit the offense.  

Humphries is a case to celebrate so long as it is the beginning and not the end of the destruction of joint venture liability in criminal law.

Dissolving Political Bands: How Federal Enforcement Powers Trump the Tenth Amendment

As this nation concludes the celebration of its birth 237 years ago, it also commemorates the sesquicentennial of two enormous events that advanced the opportunity for such celebration.   One hundred and fifty years ago, General Grant accepted General Pemberton's full surrender after the devastating siege at Vicksburg.   While the terms included all munitions, out of character for General Grant, rather than his standard "Unconditional Surrender," he paroled the Confederate soldiers as he had no desire to transport, feed, clothe and care for 30,000 more men.  The victory at Vicksburg secured the Mississippi River to the Union and ultimately elevated Grant to General in Chief of the Union Army.  It was an essential victory in the Civil War.

As the Army of the Tennessee hunkered down in Mississippi, the famous three day battle of Gettysburg was underway in Pennsylvania.  That would end with Lee's retreat after three brutal (and somewhat indecisive) days of fighting.  Just as the Battle of Antietam provided Lincoln with the opportunity to issue the Emancipation Proclamation the year before, the Battle of Gettysburg followed by the fall of Vicksburg gave the president the opportunity to remind Americans of their identity along with the decisive goals of the war.  In mourning these brave men, a grateful nation promised to pursue their fight so that they would not die in vain.   Between the roughly 18,000 dead or wounded in Vicksburg and the 51,000 in Gettysburg there were twice as many casualties in those two battles than for both sides combined in the entire Revolutionary War.  This sacrifice had a purpose; the Civil War would forever change this nation and hold it to the promise espoused in the second sentence of the Declaration of Independence we continue to aspire to achieve: that the equality of all is a self-evident truth.

Though the guns have silenced, the fight is not yet over.  In the case of Shelby County, AL v. Holder, Justice Roberts speaking for the majority of the Court declared that the 15th Amendment was not designed to punish for the past, but to ensure a better future.  This is an astonishing rewrite of history because the 13th, 14th, and 15th Amendments were, without question, war reparations designed unquestionably to punish for the past.  The drafters of these Amendments did not carry Lincoln's malice-free hearts; they intended to alter the relationship between the states and its federal government.  John Bingham and Thaddeus Stevens sought to rectify past wrongs by incorporating the first 8 Amendments of the United States Constitution to the states and, to protect civil rights both men knew would be ignored because they had been ignored.  They were architects of a military occupation of the states formerly in rebellion.  Indeed, the same men who drafted the Amendments sought to impeach President Johnson for failing to enforce radical reconstruction of the South through occupation of martial law.

The men who drafted and pushed through these Amendments were not stupid and they were not naive; they were skilled lawyers grounded in constitutional law.  Having lived through war, they were determined to dictate the peace.  Enforcement of the Amendments would prove challenging due, in large part, to failures of the Johnson administration in advancing Reconstruction.  By the time the Grant Administration issued the Enforcement Acts seeking to guarantee the vote to African Americans and quell the rising KKK, the rest of the country was tired and just wanted to move on.  Without denying the overall racist tendencies of the majority population that prevented its full impact, the 15th Amendment was originally intended as punishment.  Given the high numbers of African Americans in the Southern states: roughly half the population of Alabama, Florida and Louisiana and more than half of South Carolina and Mississippi, it was intended to entrench an empowered electorate and a truly republican form of government where previously an oligarchy existed.

Justice Roberts, and the Court, in saying otherwise is deluded.  Indeed, this is not the first time the Court has confused the purpose and intent of the Reconstructionist Amendments.  While early justices (who also rode the circuit) seemed to grasp the metamorphic change wielded by the amended Constitution, See, i.e.  United States v. Given, 25 F.Cas. 1324 (1873) and this blog post, within short order, the Court grew fearful, weak and further from the directive of the revisions - indeed all of its incorrect decisions on the 14th Amendment have since been overturned. See, The Slaughter House Cases, 83 U.S. 36 (1873);  United States v. Cruikshank, 92 U.S. 542 (1875), and Plessy v. Ferguson, 163 U.S. 537 (1896).  To suit its own philosophy rather than the document it is entrusted to uphold, the Court then, as now, glorified the Revolution against Great Britain without so much as a head nod to the required sacrifice of the Civil War where the victorious Union literally rewrote the rules of government.  The original Constitution was a compromise to unify Northern and Southern interests; the Reconstructionist Amendments were the bounty of war victory and did not need to compromise much.

Noting only the 15th Amendment - nothing within it took away state powers; states were still free to establish elections, set standards for voting age, prohibit foreigners (and, as was clear from Congressional banter at the time, women) from voting, but what they could not do was discriminate on the basis of race, color or former condition of servitude which included both slaves of African descent and indentured servants, as both slavery and indentured servitude were outlawed under the 13th Amendment.  And to ensure that discrimination did not occur, Congress was authorized to enforce the Amendment by any appropriate legislation. (As an aside, while both contain identical language on enforcement, note that the 15th Amendment prohibits discrimination in all elections, but the 24th Amendment prohibits poll taxes only in federal, but not state elections.  Putting aside whether states would be wise to establish poll taxes, the 24th Amendment recognizes that the states reserve the power to determine certain aspects of their own elections - the question under the 15th Amendment deals exclusively with race, color and former condition of servitude, not poverty).

The original Framers constrained the powers of the federal government; but for the first time in the 13th Amendment, the Constitution granted new powers to the federal government as against the states (in favor of the people).  How anyone can interpret the 10th Amendment pre-1868 and post-1868 the same on citizenship, due process, equal protection of the laws, voting rights, and slavery of any kind identically strains the imagination.  The Reconstructionist Amendments delegated enforcement authority to the Congress thus any power reserved to the states must succumb to the supremacy of the federal government. 

In Shelby County, the Court says that the Voting Rights Act of 1965 was unusual.  The truth is that the failure of certain jurisdictions to comply with the mandates of the federal Constitution was unusual.  Defiance required significant enforcement legislation.  It takes an enormous leap of constitutional jurisprudence to declare that when the duly elected legislature passes a bill into law or reauthorizes a law for an extended period that this, somehow, is "inappropriate."  Much of the legislation emanating from Congress is truly inappropriate such as the establishment of all-powerful FISA and Immigration courts none of which is subject to Article 3 judicial review.  But guaranteeing the fair access to the polls can never be inappropriate.

Since the ratification of the 10th Amendment, Amendments to the Constitution have shifted power from the state both to the federal government and to the people.  Beginning with the Reconstructionist Amendments, the trend continued with the 17th Amendment decommissioning state powers by granting direct election of United States Senators.  The 19th, 24th and 26th Amendments all contain enforcement language similar or identical to the Reconstructionist Amendments.  Curiously, the now repealed 18th Amendment granted concurrent jurisdiction to enforce prohibition of alcohol.  This language is in direct contrast to the supremacy language of the 13th, 14th, 15th, 19th, 24th and 26th Amendments, all of which relate to individual rights, several relate to voting privileges and election of representatives.  Within the body of the original document, the federal government guarantees to every state in the Union a republican form of government implying by its very nature that citizens retain the right to vote for their elected officials who will, in turn, represent them according to law. US Const. Art IV sec.4.  Amendments to the Constitution duly ratified indicate that the federal government seeks to abide that promise even if it requires intrusion into policies traditionally held by the states when those states fail to protect liberty interests. 

So, the Court is simply wrong in determining that the Amendment was intended benevolently.  It does not guarantee individuals the right to vote - it prohibits state discrimination in voting practices.  If it were seeking to "ensure a better future" as the Court now claims, it would have been worded differently.  It was intended as punishment, specifically to restrict powers of states when they restricted the voting rights of the citizens.   The Voting Rights Act of 1965, including the now defunct Sec. 4, is appropriate; the issue is cleaner than the Shelby County case would suggest - the Court has repeatedly stated that it will not second guess Congress in its determination of policies that otherwise abide by the Constitution.  Why some legislation, for example creating federal crimes where once only states had power to punish can be considered "appropriate" while others such as enforcing the 15th Amendment's promise "inappropriate" simply because the Court disfavors the data used to establish the parameters of the law is preposterous.

More preposterous still is the inane and unsupportable notion that the state governments and the federal government are equal sovereignties; they are not and never have been.  States surrendered significant powers in exchange for an organized Union; the federal government surrendered little and, indeed, averred in the 10th Amendment that ONLY powers not delegated to the United States would be reserved to the states - it does not say that the states retain every single power they had at the time of entry into the Union or that they would continue to retain power despite amendment to the Constitution.  The United States delegated to the federal government the enforcement powers of the 13th, 14th, 15th, 19th, 24th and 26th Amendments ergo states no longer reserve those powers.  This has nothing to do with a love of strong central government or a diminution of federalism; it is simply the language of the Constitution.  The Court was dead wrong in deciding otherwise.

As this sesquicentennial comes and goes - and lingers - the meaning and purpose of those tens of thousands of men dying on battlefields in Mississippi and Pennsylvania, that sacrifice was to ensure the more perfect Union James Madison envisioned.  The intent of the original Framers was to establish a nation without ethnicity, without religion, without class where all who came could develop their potential.  It would take a Civil War and some changes to the Constitution to make that real on paper; it will take the continued will of all of us to envision and aspire to continue to improve upon this Union to ensure that all are free to be who they are, fully equal under the law and in the eyes of their countrymen and women.   Those who signed the Declaration of Independence had no idea how it would all resolve.  Those who lived 150 years ago had no idea that the war would continue for two more years; only after it ended could they see the significance of Vicksburg and Gettysburg.

As illuminated by Abraham Lincoln in memorial to the events that would turn the tide of war and ultimately secure Union victory giving us all this continued opportunity to improve upon our humble beginnings:

Four score and seven [today: eleven score and seventeen] years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

Truer and more appropriate words were never uttered.  In independence there is liberty; in liberty responsibility; in responsibility battles; in battles victories; in victories sacrifices; in sacrifice resolve.