Maryland High Court Denies Reconsideration of King v. Maryland: Will SCOTUS Grant Cert to Resolve the Constitutionality of DNA Testing Upon Arrest?

On Friday, May 18,2012, the Maryland Court of Appeals, the state’s highest court, denied a request to reconsider its decision in King v. Maryland.  On April 24, 2012, in a 5-2 opinion written by Judge Harrell, the Court found that collecting a DNA sample from an individual who had been arrested, but not convicted, of a violent crime was a violation of the individuals Fourth Amendment right.  In arguing for the reconsideration, or in the alternative a stay on the decision until the case could be considered by the United States Supreme Court, the Maryland attorney general stated that the decision could affect prosecutors’ use of evidence that could help solve 190 unsolved cases, as well as exonerate an unknown number of innocent individuals.

In 2009, Alonzo Jay King, Jr. was arrested for first and second-degree assault.  Section 2-504(3) of the Maryland DNA Collection Act authorizes law enforcement authorities to collect a DNA sample from individuals arrested for a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary.  Pursuant to this statute, King’s DNA was collected via a buccal swab, and entered into Maryland’s DNA database.  Buccal swabs are cotton tipped applicators that the officer inserts in an arrestees’ mouth in order to collect cheek cells used to test DNA.  Since the swab enters the arrestees’ body, it is considered a search under the Fourth Amendment.  Before he was convicted of the charges, King’s DNA was matched to an unsolved rape in 2003, and this match provided the sole probable cause for a grand jury indictment of King on the rape charge.  

The majority ruled that arrested individuals have a higher level of privacy than those who have been convicted, that an arrested individual’s expectation of privacy in his biological information outweighed the state’s interest in gathering information to solve other crimes, and that DNA sampling is more intrusive than simply taking a suspects fingerprints.  Additionally, in King’s case, the sample was not necessary to identify him for the assault charge; in fact the law enforcement officers did not receive the “hit” on King’s DNA until almost four months after he was arrested for assault.  Thus the DNA sample taken from King was solely used for investigating him for the prior rape incident, not for identification.    

The dissenting opinion written by Judge Barbera and joined by Judge Wilner argued that a swab of the mouth is the least intrusive of all seizures and the government’s interest in solving crime far outweighs the privacy interests of those arrested and detained.  The dissent further argued that the majority overstated the amount of biological information that could be obtained from this sample, as there are strict laws governing the use of DNA information, and what the DNA sample shows is virtually identical to that of a fingerprint that can only be used to identify the specific person.

Though a cert petition has not yet been filed, state officials have indicated they will seek to take the case to the Supreme Court and it is preliminarily set for conference at the end of September.  State officials are also considering asking the Justices to postpone the state court ruling in the meantime.  Previously, the Supreme Court refused to take a similar case, Mitchell v. US, where a DNA sample from a Pennsylvania man was not used to identify the individual as the perpetrator of a different crime.  However in King’s case, the DNA sample taken from him was not used to identify him for the charge he was arrested for but was used, months later, to identify him in a rape case.  Though cert was not granted in Mitchell’s case, the fact that King’s DNA was used to identify him as the perpetrator of a different crime, as well as the disparate rulings between lower state and federal courts on this issue, makes it likely King’s case will be heard.  

Currently, twenty-five of fifty states and the federal government have statutes similar to the statute in Maryland regarding gathering DNA samples from individuals arrested for violent crimes, as well as many other states with similar legislation pending.  Currently, the Third Circuit, the Virginia Supreme Court, the Western District of New York, and the District of Colorado have all found statutes requiring DNA analysis upon arrest (the statutes differ on which crimes invoke this statute) constitutional.  Alternatively, along with the Maryland Court of Appeals, the Minnesota Court of Appeals, and the California Court of Appeals have found similar statutes to be unconstitutional.  

Since there is no doubt a buccal swab is indeed a search under the Fourth Amendment, the question now becomes whether the Supreme Court will hold that the legitimate government interests for the search outweigh the privacy interests of the arrestee.  Does the interest of the government in solving cold cases and exonerating innocent individuals outweigh the privacy interests of an individual whom officers had probable cause to arrest for a violent crime, but not necessarily probable cause necessary for a search warrant?  Alternatively, does the interest of the government in correctly identifying the individual outweigh the privacy interest of the arrestee, even if they could be or already have been identified by their fingerprints?  These are the questions the Supreme Court will have to answer if they decide to grant cert in King v. Maryland, and one would hope they do in order to align state and federal law on this sensitive issue. 

Nicole Irwin

Blogger, Criminal Law Brief

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Georgia Incarcerates Death Row Inmate Wilburn Wiley Dobbs for Fifteen Years Without a Sentence

A few months ago, in late September of 2011, the Georgia criminal justice system shocked the world when it executed a self-proclaimed innocent man by the name of Troy Davis.  Troy was able to capture the attention of civil rights groups, human rights activists, and innocence projects around the world with his story, but in the end all the media support would not budge the Governor of Georgia or the U.S. Supreme Court to stay his execution.  Despite Troy’s passing, his strength of character has been an example to many, including a fellow inmate at the Georgia Diagnostic and Classification Prison, Wiley Dobbs.

Over the past three decades, Wilburn Wiley Dobbs has been serving time on death row in Georgia, and became close to Troy, who acted as a father figure to Wiley.  In 1974, Wiley was convicted of murdering a convenience store clerk amidst an armed robbery gone wrong.  Wiley grew up in a rough neighborhood in Atlanta, with an absent father and a mother who often ran a brothel infested with drugs and alcohol out of their home.  As a result, Wiley often found himself on the streets at a young age struggling to survive.  Though crime should not ever be the answer, it would not be surprising for a young teenager in Wiley’s circumstances to feel that robbing a store might be his only chance to continue to survive.

To this day, Wiley insists that he was not at the scene of the crime when the murder occurred, but he feels that given Troy’s experience, fighting for innocence in Georgia is a lost cause.  In 1987 however, Wiley received a break in his case when the Supreme Court ruled that he was entitled to a re-sentencing hearing to reconsider his death sentence.  At his initial sentencing trial, Wiley’s attorney failed to provide effective assistance of counsel.  His attorney never once pled for his life to be spared, failed to present any character witnesses on Wiley’s behalf, and even suggested that should the jury impose the death penalty, the State would never follow through with such a sentence.  Clearly, these acts and omissions fell short of the standards opined by the Supreme Court interpreting the Sixth Amendment of the Constitution.

The odds however, continue to fall against Wiley’s favor.  The Court ordered that Wiley is entitled to a re-sentencing hearing, but fifteen years have passed and he has yet to see a courtroom.  Wiley has been through approximately twenty attorneys, and none of them have seemed to be able to get the case back into the courtroom.  The system has chosen to shuffle the case to the end of the line, turning a blind eye to justice.  For reasons unspoken, the Georgia criminal justice system has decided that despite an order from the Supreme Court, it is acceptable to keep a man waiting in prison for almost two decades while he wonders as each day passes whether he will live or die.  Political beliefs aside, the legal profession should be setting higher standards for itself.  A man is sitting on death row without any sentence whatsoever.  Wiley deserves an answer, and we all deserve a system with more integrity.

For more information about Wilburn Wiley Dobbs' story, check out my newly-created blog: http://lettersfromwiley.wordpress.com/. 

Ali Eacho

Junior Blog Editor, Criminal Law Brief

Relax, Stay Home: Election Fraud Goes Unenforced

 
Take a moment and imagine the following.  It is Election Day 2010 in your state of Maryland, and on your way home you plan to stop by your assigned polling place to exercise your right to vote.  Two hours before the polls close, though, you receive a robocall telling you to “relax” and that there was no need to vote because Governor Martin O’Malley has won re-election.  If you think this sounds like an underhanded method to discourage you from voting, then you would be right and it is precisely what happened last year in Prince George’s and Baltimore County, Maryland.

 The origin of the call stems from a conspiracy between Paul Schurick, a former senior aide to former-Governor Robert Ehrlich (R), and campaign consultant Julius Henson.  The conspiracy was simple – use the robocall in the final hours of Election Day to discourage people from heavily Democratic and minority counties from casting ballots.  Mr. Henson had an employee, Rhonda Russell, of his Democratic political consulting firm, Universal Elections, record and purchase the robocall through robodial.org, which does business exclusively with Democrats.  Mr. Henson made thousands of dollars in consulting fees from the Ehrlich campaign.

In addition to telling people that O’Malley had won, the call stated: “the only thing left is to watch TV tonight.”  Mr. O’Malley won re-election in 2010 by over 250,000 votes, but there is no doubt that the information in the call, expressed as the truth, was a blatant lie.  Under Maryland law, using fraudulent information knowingly or intentionally for the purpose of discouraging voting is a crime.  Additionally, disclosure rules require an “authority line” describing the source of the call, which was omitted.

Last year Mr. Schurick was convicted on four separate counts of election fraud for his involvement in this scheme.  Last week, though, Mr. Henson was acquitted of three out of four charges of election fraud, and is appealing his conviction for failure to include the “authority line” in the robocall.  Somehow the jury accepted the defense’s bizarre argument that the call was designed to be a “counterintuitive” method to encourage Republicans to vote, even though it was intended only to be sent only to Democrats.  Mr. Henson claimed his actions were acceptable because “this is what we do in politics each and every day.”  More troubling was the spectacle of Mr. Henson’s trial, which the Baltimore Sunreported included injections of race and classism.  Mr. Henson’s defense attorneys in closing arguments compared the prosecution in the case to the Fugitive Slave Act (Mr. Henson is African-American), and said that the prosecution wanted to convict because Mr. Henson had made lots of money during the campaign.

For their role, members of robodial.org have said that they were caught off guard by the call.  Ms. Russell had done business with the company in the past and robodial.org trusted this was for a Democratic candidate.  That sense of trust was violated and expressed by robodial.org’s owner Mark Hampton.  “I think these calls were just what people say they are,” Hampton said.  “Why would anybody send a call, you know, telling people to relax, everything’s okay. Nobody pays for a call like that.  There’s only one reason somebody sends a call like that and that’s to get people to stay home.”

The mockery of the right to vote represented by this case is simply deplorable.  The fact that this conspiracy was so clear and targeted in its intentions, yet one of the co-conspirators goes basically unpunished does not bode well for the right to vote.  Political campaigns attempt to appeal to your values and aspirations.  The negativity we are accustomed to watching can be overcome with leadership and candidates willing to live up to the right values and goals.  An unabashed assault on basic truth – like claiming an election is over before polls close – undermines the basic process of openly selecting our representatives.  That is several levels above a dirty political trick.

It is easy to envision future political operatives using bolder and smarter tactics that could actually sway the outcome of a close election.  It is likely impossible to have a redo of an election where one cannot ever know how much such a tactic affected the outcome.  That is why the law is prepared to punish a person with jail time for these behaviors.  The larger symbolic value this case represents is a reminder that political power is seductive to a point that people are prepared to make really stupid choices.  In the heat of passion to win an election, it is easy and not at all surprising that someone may act irrationally.  Let us hope that political candidates are not irrational themselves and exercise better judgment in who they hire.

Joe Hernandez

Blogger, Criminal Law Brief

Image by Donald J. Bergquist

Racial Discrimination By Any Other Name: Connecticut vs. Arizona

Connecticut state legislature passed a bill on Monday, May 7^th, providing a system for citizen complaints regarding possible racially motivated traffic stops.  “The Act Concerning Traffic Stop Information,” SB 364 mandates that local and state agencies develop their own policies prohibiting the stopping and detention of persons motivated solely by race, color, ethnicity, age, gender or sexual orientation.  The bill is expected to be signed by Gov. Dannel Malloy and go into effect January 1, 2013, after which those pulled over will get a copy of a standardized form filled out by the police and which can be used to file a complaint for prompt review by the police department and a state agency.  The bill comes months after four East Haven police officers were arrested for allegedly targeting and harassing Latinos during traffic stops.

SB 364 is in direct opposition to another ethnic profiling law currently before the Supreme Court – Arizona’s SB 1070 or “Support Our Law Enforcement And Safe Neighborhoods Act.”  SB 1070 makes it a misdemeanor crime for an alien to be present in the state without the proper paperwork, allows law enforcement officers to inquire as to the person’s status during a lawful stop or detention, bars restrictions on federal immigration laws, and reproaches harboring of illegal immigrants. 

On April 25, 2012, the Supreme Court heard arguments on whether federal law pre-empts SB 1070 – essentially, whether the Arizona law can be reconciled with federal laws and policies.  The main issue before the eight Justices – with Justice Kagan recusing herself due to working on the matter in her previous position as a Solicitor General – was the provision requiring law enforcement officials to determine the immigration status of people they stop and suspect are not in the U.S. legally.  Based on their questions, the Justices seemed inclined to uphold the controversial parts of SB 364, but by noting that the Solicitor General, Donald B. Verrilli, did not address the possibility of a challenge that the law discriminates on the basis of race and ethnic background, the Court left open the possibility of an equal protection challenge in the future.  Paul D. Clement, counsel for Arizona, argued that Arizona only borrowed the federal standards and was more assertive in applying them.  But Mr. Verrilli contended that regulation of immigration matter is vested exclusively with the federal government.

The two opposing laws address essentially the same question – can states set radically different racial/ethnic discrimination laws, provided they meet the minimum standards set forth by the federal government?  At first glance, Arizona’s law concerns immigration status of aliens residing in the state but it can be argued, and which the Supreme Court alluded to, the possibility of considering the argument that the law as applied would discriminate against Latinos.  In that case, would it be no different the illegal actions taken by the East Haven police officers and, as such, unconstitutional?

Elena Gekker

Blogger, Criminal Law Brief

First Criminal Charges in Gulf Oil Spill Provide Little Solace

 Last Tuesday, April 24, the first criminal charges were quietly filed in connection with the 2010 Gulf of Mexico oil spill.  Kurt Mix, a former engineer for British Petroleum (BP), was arrested and charged with two counts of obstruction of justice.  On Thursday, May 3^rd, Mix pleaded not guilty to the crimes.  Unfortunately, this arrest does little to help those whose lives and businesses were forever changed after the catastrophe.

Mix was assigned to the Top Kill effort, a procedure designed to eliminate the flow of oil from the leaking well in the Gulf.  Mix’s alleged duties include monitoring the flow of oil from the well.  In the last week of April 2010, Mix’s text messaged oil flow-rate estimates to his supervisor.  These estimates allegedly ranged from 64,000 barrels per day (BPD) to 138,000 BPD.  At this same time, Mix gave estimates to a contractor assisting in the response effort ranging from 8,600 BPD to 69,500 BPD. 

On May 18, 2010, Mix allegedly presented additional estimates to his supervisor ranging from 1,000 BPD to 146,000 BPD.  When assessing Top Kill’s viability in a meeting, Mix, his supervisor, and BP scientists concluded that Top Kill could be successful if the well was flowing oil at a rate of around 5,000 BPD.  They also determined that if the oil flowed at a rate higher than 15,000 BPD, Top Kill would likely fail.  BP decided to commence the Top Kill effort on May 26^th. 

BP’s public estimate at this time was that the well was leaking at a rate of 5,000 BPD — even though at only one time did Mix estimate that that the spill was less than 5,000 BPD.  Top Kill was publicly given a sixty to seventy percent chance of success.  At the end of the first day of the Top Kill effort, Mix allegedly sent a text message to his supervisor that read in part: “[t]oo much flowrate – over 15,000 and too large an orifice.”  This text message was allegedly deleted. 

At this same time, BP was publicly stating that Top Kill was going according to plan.  On May 29^th, BP announced that the Top Kill effort was a failure, and that it was discontinuing the program. 

In early 2010, the Department of Justice and the Securities Exchange Commission began a criminal investigation into the BP oil spill.  BP’s outside counsel contacted Mix in September 2010 in order to “collect all electronic data” relating to the oil spill.  Mix met with the outside counsel and allegedly gave them hardcopy documents.  On October 4^th or 5^th, Mix allegedly deleted over two hundred text messages between him, his supervisor, and the outside contractor.  Investigators were able to recover some, but not all of the deleted messages. 

It is worth noting that from April 2010 to June 2010, Mix received six Legal Hold Notices, all notifying him of his legal obligation to retain all records relevant to the oil spill, and explicitly referenced text and instant messages as records to preserve.

The specific offense with which Mix is charged is codified at 18 U.S.C. 1521(c)(1), and reads as follows: “[w]hoever corruptly alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding shall be fine and punished . . . .”  As Mix was alerted to potential official proceedings several times before allegedly deleting the text messages, the Department of Justice argues that the deletions were made “corruptly” and with the intent to impair the object’s availability “for use in an official proceeding.”

It is good to see that the Department of Justice is looking to ensure that people are held accountable for this catastrophe.  Nevertheless, if this is all that can be mustered up — two counts of obstruction of justice against a single person that allegedly committed criminal activities months after the spill — it does not seem like an adequate administration of justice.  This is true even though BP recently agreed to a $7.8 billion settlement in a pending class action lawsuit.  At the end of the day, maybe no one else did in fact commit any criminal acts.  After all, not all poor decisions equate to criminal liability.  Either way, it is hard to believe that Kurt Mix was the only person responsible for both the spill and the ensuing response from BP.  The Department of Justice is still investigating, and hopefully all illegal activities are uncovered.

A copy of the complaint can be accessed here.

Ryan Weir

Blogger, Criminal Law Brief

Secret Service Prostitution Scandal

Cartagena, Columbia

Secret Service agents involved in the prostitution scandal in Cartagena, Columbia in April 2012 before President Obama’s visit to the Summit of the Americas have recently been investigated.  Agents have been accused of bringing prostitutes back to their hotel rooms in Hotel El Caribe.  The Secret Service Director Mark Sullivan has cooperated with congressional investigators for the prostitution scandal.

The House Homeland Security Committee chairman Peter King has given fifty answers to questions from the controversy in Cartagena of a possible security breach.  He has also has reported that ten women have been questioned in relation to the scandal and nine were claiming they had been paid as prostitutes by the Secret Service agents.

Three Secret Service agents involved with the scandal have refused to take polygraph tests and cooperate with authorities.  The other nine have decided to cooperate and did not fail the tests, yet their responses have led to the loss of their jobs either by resigning or by being forced out.  Others have been cleared of serious wrongdoing.  One agent reportedly answered that he had “actively engaged” with a prostitute, but told officials he did not realize that she was a prostitute.  The military was conducting its own investigations but has since cancelled security clearances of the twelve Secret Service agents involved.

Since these investigations have ensued, other allegations have surfaced regarding agents’ misconduct including events in Utah in the Winter Olympics 2002, in Encinitas, California in February 2002, and in El Salvador last year.  These allegations have raised doubts about the professionalism and integrity of the agents as they should portray a better reputation.  They should still be held to the same standards as the rest of the U.S. citizens, if not to a higher level.  In fact, it is not a surprise that they have been the subject of jokes even at the White House Correspondents’ Association dinner this past Saturday, April 28 when President Obama joked, “I really do enjoy attending these dinners.  In fact, I had a lot more material prepared, but I have to get the Secret Service home in time for their curfew.”

 

Monica Trigoso

Editor-in-Chief, Criminal Law Brief

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Justice for Sierra Leone: Charles Taylor Guilty Verdict is Announced by International High Court

After hearing nearly four years of argument and witness testimony, the Special Court for Sierra Leone at The Hague has handed down a guilty verdict in the Charles Ghankay Taylor trial.  Taylor, former President of Liberia, was charged with eleven counts of war crimes, crimes against humanity, and other serious violations of international humanitarian law that included rape, murder, terrorizing civilians, looting, sexual slavery, mutilating and beating, enslavement, and recruiting and using child soldiers.  The judges found Taylor unanimously guilty on all charges on the grounds that that he knowingly aided and abetted activities with the Revolutionary United Front and the Armed Forces Revolutionary Council, both of which contributed to the rebel forces in Sierra Leone form November 30, 1996 to January 18, 2002.

Taylor was indicted for his crimes on June 4, 2003, after hiding in exile for nearly three years in Nigeria to avoid his arrest.  While in exile, Taylor faced pressure from the newly elected Liberian president, Ellen Johnson-Sirleaf to return to Liberia and confront the charges.  On March 29, 2006, Nigerian officials caught Taylor when he attempted to flee into Cameroon.  Once Taylor arrived in Monrovia, Liberia, he was immediately arrested and subsequently transported to Freetown, Sierra Leone to face the Special Court for Sierra Leone.  Due to security concerns, the United Nations (UN) Security Council passed Resolution 1688 ordering the transfer of Taylor’s trial to the International Criminal Court in The Hague on the condition that if Taylor were found guilty, his sentence would be served elsewhere.

Though located on International Criminal Court premises, the Special Court for Sierra Leone presided over Taylor’s trial, which began at The Hague on January 6, 2008.  Both the UN Secretary General and the Government of Sierra Leone appointed the judges and attorneys.  The judges presiding over the trial were Teresa Doherty from Northern Ireland, Richard Lussick from Samoa, and Julia Sebutinde from Uganda.  Brenda Hollis served as the Chief Prosecutor, leading a team of ten prosecuting attorneys.  Courtenay Griffiths served as Lead Defense Counsel, presiding over just five defense attorneys.

While the guilty verdict undoubtedly represented justice for the victims of War in Sierra Leone, the Prosecution and Defense have both found solace in the verdict.  From the Prosecution’s perspective, a verdict that found Taylor guilty of aiding and abetting rebel forces and recognizing his role in planned attacks will certainly mean prison time for Taylor.  On the other hand, as the Defense has noted, the Special Court failed to find that Taylor exercised direct command and control over the rebel forces in Sierra Leone.  Another foundational argument the Prosecution made throughout trial, but was not upheld by the Court, was that Taylor took part in a Joint Criminal Enterprise, a doctrine also known as “common purpose” in the post-World War II Nuremburg Trials.  The doctrine has also been utilized in the International Criminal Tribunal of Yugoslavia, and it recognizes the culpability of all individuals who contribute to the carrying out of crimes for a common purpose.  Joint Criminal Enterprise recognizes a greater role in the execution of crimes than simple accomplice liability.

This verdict handed down from the Special Court of Sierra Leone has been much anticipated from the international criminal law community.  Since international criminal law is still a young, developing field, the Court’s verdict carried a significant amount of weight in the eyes of critics.  International courts continue to struggle with the issue of legitimacy, since they are seen as an expensive, lengthy process with no means of enforcement.  Though the Taylor trial may have corroborated some popular criticisms of the trial process, the Court’s verdict, refusing to recognize all of the Prosecutor’s arguments as valid, may have earned international courts a small victory in the battle for legitimacy.

Here is a link to the official website for the trial: www.charlestaylortrial.org

Ali Eacho

Junior Blog Editor, Criminal Law Brief

Image by: tlupic
 

Threats Against the President: Is Ted Nugent a “True Threat?”

At the National Rifle Association (NRA) Convention on April 14, Ted Nugent made this statement: “If Barack Obama becomes the President in November, I will either be dead or in jail by this time next year.” This is not the first time Nugent has made inflammatory remarks about the President.  He  also compared President Obama to coyotes that need to be shot, and mentioned that people should “ride into that battlefield and chop their heads off in November.”  The Secret Service investigated each of these statements and declined to arrest him, stating the situation had been resolved.

Title 18, Section 871 of the United States Code, makes it a crime to make “any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States.”  In light of this statute, why isn’t Ted Nugent behind bars?  Two reasons have kept the musician free. First, federal courts have found that a person must have made a true threat, rather than a passing comment or political statement.  Second, the First Amendment of the United States Constitution broadly protects individual and political expression.

The Supreme Court noted both of these requirements in Watts v. United States.  In that case, the Court refused to sustain a conviction against Watts, who stated “[i]f they ever make me carry a rifle, the first man I want to get in my sights is LBJ[.]”  While the Court held the government had a “valid interest . . . in protecting the safety” of the President, the Court viewed this statute narrowly.  In fact, the Supreme Court stated  the government must show a true threat, not just “political hyperbole.”  Further, the Court found that the language of the statute must be interpreted “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

In this case, the Secret Service apparently found that Nugent is not a true threat against President Obama.  However, do these statements really deserve this protection?  Nugent’s statements are markedly different than those of Watts’.  Watts commented on the draft and his opposition to the war.  Ted Nugent, on the other hand, was not engaging in public discourse.  Rather, he appears to have been pandering to the crowd and looking for publicity.  If his comments to the NRA were more specifically about the Second Amendment, for example, the policy noted in Watts v. United States, would be more applicable.  But does Nugent’s contention that he would “either be dead or in jail” if the President were re-elected really add anything to the “debate on public issues[?]”

Even if Nugent’s statements are not protected by the First Amendment, Nugent has likely not made any plans to carry out his threat.  In 2008, Walter Bagdasarian was arrested after posting on Twitter threats to shoot President Obama.  Bagdasarian was later released because prosecutors could not prove that he had plans to shoot the president. The fact that a .50 caliber rifle in his home, which was the same caliber weapon he threatened to shoot the President with was found, it was still insufficient to warrant prosecution.  If Bagdasarian could not be prosecuted under those circumstances, prosecutors would be hard pressed to charge Nugent.

Regardless of the precedent, Nugent’s comments are particularly concerning.  This is the third time he has made such inflammatory remarks.  Requiring the Secret Service to investigate repeated threats (even if they are veiled threats) against the President is a waste of our resources.  This President has  received 400% more threats than former President George W. Bush—about thirty threats a day.  Ted Nugent should not be allowed to add to this burden by issuing threats for publicity.

Bonnie Lindemann

Blogger, Criminal Law Brief